Counsel for the Appellant: Miss M.J. Beazley QC with

Miss R.M. Henderson

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr A.T. McInnes QC

with Mr A.L. Hill

Solicitors for the Respondent: Messrs Kenneth Harrison

The orders made by Einfeld J. on 5 April 1991 be varied by setting aside orders 2 and 3 and by ordering in lieu thereof that the respondent's claim be granted. Otherwise, the appeal is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The late Frank Richard Whetton, who died on 13 August 1986, had served in the Royal Australian Navy from 13 July 1936, throughout World War II, and until 17 August 1948. On 9 August 1942, he received multiple wounds in the sinking of HMAS Canberra in the battle of Guadalcanal. After his death, his widow Isabel Lena Whetton (the respondent, referred to in the Administrative Appeals Tribunal, and consequently in these proceedings, as Belle Whetton) made a claim for a pension which fell to be determined in accordance with the provisions of s. 120 of the Veterans' Entitlements Act 1986. The claim was rejected. Following its further rejection by a decision of a senior member of the Administrative Appeals Tribunal, the question whether that decision involved an error of law came before a judge of this court, who upheld Mrs Whetton's appeal. From the decision of the judge, the Repatriation Commission now appeals to this full court.

2. Section 120 is well known, but it is convenient to set out here subss. (1) and (3) of the section, as follows:

"120. (1) Where a claim under Part II for a pension in

respect of the incapacity from injury or disease of a

veteran, or of the death of a veteran, relates to the

operational service rendered by the veteran, the Commission

shall determine that the injury was a war-caused injury,

that the disease was a war-caused disease or that the death

of the veteran was war-caused, as the case may be, unless it

is satisfied, beyond reasonable doubt, that there is no

sufficient ground for making that determination.

(3) In applying subsection (1) or (2) in respect of

the incapacity of a person from injury or disease, or in

respect of the death of a person, related to service

rendered by the person, the Commission shall be satisfied,

beyond reasonable doubt, that there is no sufficient ground

for determining:

(a) that the injury was a war-caused injury or a

defence-caused injury;

(b) that the disease was a war-caused disease or a

defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration

of the whole of the material before it, is of the opinion

that the material before it does not raise a reasonable

hypothesis connecting the injury, disease or death with the

circumstances of the particular service rendered by the person."

3. It is accepted that the genesis of subs. (3) was the dissenting judgment of Brennan J. in Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422. In that case (at 438), after pointing out that "(t)he claimant bears no onus of proof", Brennan J. said:

"If the facts thus ascertained support a reasonable

hypothesis that the claimant is entitled to a benefit under

the eligibility provisions of the Act, the Board or the

Commission must determine to grant the claim. If a

reasonable hypothesis of entitlement arises on some of those

facts, the Board or Commission must determine to grant the

claim unless other facts dispel the hypothesis beyond

reasonable doubt. If the Board or Commission is satisfied

that no reasonable hypothesis of entitlement is supported by

the facts or that any such reasonable hypothesis is

dispelled beyond reasonable doubt, the Board or Commission

should reject the claim. Where, on the whole of the

material no reasonable hypothesis of entitlement arises,

there are `insufficient grounds for granting the claim'."

4. Not long after the amendment of s. 120, a full court of this court considered the meaning of the amended section in East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517. The joint judgment of the full court (at 532-533) cited a passage from a decision of a Veterans' Review Board in an unreported matter, as follows:

"A hypothesis may be conveniently defined as:

`proposition made as basis for reasoning, without assumption

of its truth; supposition made as starting point for further

investigation from known facts; groundless assumption': The

Concise Oxford Dictionary.

. . .

The addition of the word `reasonable' would however

seem to imply that what is required is more than a mere

hypothesis. In the opinion of the Board, to be reasonable,

a hypothesis must possess some degree of acceptability or

credibility - it must not be obviously fanciful, impossible,

incredible or not tenable or too remote or too tenuous. For

a reasonable hypothesis to be `raised' by material before

the Board, we think it must find some support in that

material - that is, the material must point to, and not

merely leave open, a hypothesis as a reasonable hypothesis.

At the same time, however, a hypothesis may be reasonable

without having been proved (either on the balance of

probability or beyond reasonable doubt) to be correct as a

matter of fact. Were it otherwise, it would no longer be a

hypothesis but would have been elevated to some higher

status. Accordingly a connection asserted by a hypothesis

to exist between death or incapacity and service may still

be reasonable even though theoretical, and it may be

theoretical in either or both of a least two senses: by

postulating a known medical fact but in circumstances not

known to have definitely existed in the instant case; or by

postulating a medical principle which science is not yet

able to definitely prove but is unable to describe as

unreasonable."

"We agree with this analysis. A reasonable hypothesis

requires more than a possibility, not fanciful or unreal,

consistent with the known facts. It is an hypothesis

pointed to by the facts, even though not proved upon the

balance of probabilities."

This exposition of the statute has since been accepted as a touchstone for the determination of claims to which s. 120(3) is relevant: Webb v Repatriation Commission (1988) 78 ALR 696; Gilbert v Repatriation Commission [1989] FCA 31; (1989) 86 ALR 713; Repatriation Commission v Bushell (Davies, Morling and Neaves JJ., unreported, 3 May 1991).

6. It is convenient, at this point, to note some aspects of the application of s. 120(3) which are particularly relevant to the present case. First, as the concluding observation in the citation made in East illustrates, the antithesis of "reasonable hypothesis" is not "speculative hypothesis", but "unreasonable hypothesis". Indeed, an hypothesis is by definition speculative. In the Shorter Oxford English Dictionary (1980), the word is relevantly defined as:

"a supposition or conjecture put forth to account for known

facts; esp. (i.e. especially) in the sciences, a provisional

supposition which accounts for known facts, and serves as a

starting-point for further investigation by which it may be

proved or disproved."

And Blakiston's Gould Medical Dictionary 4th ed. (1979) defines hypothesis as "a supposition or conjecture put forth to account for known facts." Next, the explication with which the full court expressed its agreement in East expressly accepts, as reasonable, an hypothesis asserting a connection between death or incapacity and service which is uncertain both because it postulates a medical principle in circumstances not known to have definitely existed in the instant case, and because the medical principle is one which science, although unable to describe it as unreasonable, is not yet able to prove definitely. What is required is "some degree of acceptability or credibility", to make the hypothesis "reasonable", and "some support in (the) material" before the Tribunal, so that the hypothesis can be said to be "raise(d)" by that material. Finally, not merely does the section not place any onus on the applicant for a pension - it does not require the formation of a positive opinion in the applicant's favour. To the contrary, a decision against an applicant is permitted only if the Tribunal is able to form the opinion that the material before it does not raise a reasonable hypothesis connecting the injury disease or death (as the case may be) with the circumstances of the particular service rendered by the incapacitated or deceased person.

7. In the present case, the Tribunal accepted detailed evidence pointing to the exposure of the deceased to asbestos "(d)uring the whole period of his service". He was a shipwright, who became a chief petty officer in that capacity. As a shipwright, he was responsible for replacing asbestos lagging throughout his ship, which tended to become loose during firing or rough seas. His duty station during action or test firing exposed him to asbestos dust. A witness specifically described him "on one occasion in the showers washing a coating of asbestos dust off himself". The Director of Naval Engineering Requirements - Ships' Systems gave a certificate concerning Mr Whetton's exposure to asbestos which included the following:

"The disturbance of sealed lagging and contact with

accumulated dust in areas accessed by Whetton while at work,

would have resulted in a high probability of exposure."

"It is clear that the deceased's exposure to asbestos and

asbestos dust was predominantly whilst he was a seagoing

member of the Royal Australian Navy and that any contact

prior to or after that time was minimal. The degree of

contact during his war service was in excess of the three

years referred to as a minimal exposure for risk for

civilian workmen alleged to be suffering from asbestos

related diseases."

(It would seem the word "minimal" in this passage is a mistaken synonym for "minimum".)

8. The Tribunal found that the effective cause of Mr Whetton's death was a non-Hodgkin's lymphoma. On behalf of his widow, the contention was put to the Tribunal that the whole of the material before it raised a reasonable hypothesis connecting his death with the circumstances of his service, namely, that his exposure to asbestos and asbestos dust contributed to the development of his non-Hodgkin's lymphoma. Although no specific point was made in argument that the Tribunal misapprehended the relevant hypothesis in the respect to be mentioned, it is worthy of note that the proposition discussed in evidence was that "Mr Whetton's exposure (i.e. to asbestos) had an association with his non-Hodgkin's lymphoma"; but the Tribunal said: "The hypothesis raised on the Applicant's behalf was that the deceased's contact with asbestos during his period of operational service was the cause of his non-Hodgkin's lymphoma." (Emphasis added.) This was to state the matter much too highly, and to the disadvantage of the respondent, in two respects. First, it suggests something in the nature of an onus upon the respondent, which, as has been pointed out above, is to reverse what s. 120(3) requires. Secondly, and more importantly, the hypothesis had been correctly described during the evidence in terms which reflected the statutory language, and there was no warrant for the Tribunal's elevation of it to the status of an hypothesis to account for "the cause" of the deceased's disease. As so elevated, the hypothesis could, of course, be more easily discounted.

9. Two medical experts gave evidence before the Tribunal in terms which do not suggest that either of them considered his opinions to conflict with those of the other. One was a specialist surgical oncologist, Dr Payne, who, for personal reasons, had made a particular study of non-Hodgkin's lymphoma. He explained that asbestos fibres are immunogenic. They can enter the body either through the gastrointestinal tract or the lungs and "inhaling the fibres is associated with dissemination of those fibres throughout the body via the bloodstream so they do not necessarily stay in the lungs". He said that the fact the cancer is found in a particular site does not necessarily mean that is where it originated. He confirmed in oral evidence his written report which concluded:

"However, I am of the same opinion as Dr Crane. Prolonged

exposure as experienced by Mr Whetton and the added evidence

in (two publications also cited by Dr Crane) lend support

which would be sufficient to establish a reasonable

hypothesis (connecting Mr Whetton's death with the

circumstances of his service)."

In oral evidence he said: "It is the case that although the association is not proven it is certainly something which warrants further research".

10. Dr Crane is a haematologist, and haematology is the specialty which is concerned with non-Hodgkin's lymphoma. His standing is beyond question; he has for 15 years been the senior specialist in charge of the haematology department at the Repatriation General Hospital Concord and is the consultant in pathology to the Department of Veterans' Affairs. Dr Crane wrote a report concerning Mr Whetton's case which concluded:

"To summarize, in my opinion the evidence incriminating

asbestos in the causation of malignant lymphomas is

certainly not conclusive. However, the positive and

negative evidence taken together suggests that casual or

short-term exposure is not relevant; but that substantial

exposure to asbestos (the equivalent of 3 years working in a

high-exposure environment, sufficient to produce the common

pulmonary complications of asbestos), may promote the

development of non-Hodgkin's lymphoma in later life, at

least in susceptible subjects. On the information available

to me I cannot express an opinion on the likelihood or

severity of Mr Whetton's exposure, and this is the key piece

of information necessary to decide the validity of the claim."

11. In oral evidence, Dr Crane referred to the occupation of shipwright as involving "high risk exposure" (i.e. to asbestos). He said that his reference to "3 years" in his report was "a bit arbitrary". That was a modification in favour of the respondent. He did not retract anything else in his report. He said:

"There is theoretical evidence or theoretical concepts to

say that asbestos could be related to the development of

them (i.e. non-Hodgkin's lymphomas). Some of those points

Dr Payne mentions in his submission, some of them are

mentioned for example in the Ross paper (a scientific paper)

to explain, or offer a possible explanation for their

findings of the association, and there is some animal

experimentation as well, but all that does not necessarily

extrapolate to the situation in humans working in that sort

of environment. So that there is a theoretical basis - not

strong, but it is there. There are those two pieces of

evidence which have not been confirmed by other studies

subsequently - have not been confirmed precisely, but one

autopsy study that appeared last year did suggest a

relationship between increasing levels of occupational

exposure to asbestos and the development of other B cell

malignancies. In my view - on the other hand, another study

found no relationship, and that was the story over the last

several years. In my view, the hypothesis has some evidence

to support it, at least in relationship to non-Hodgkin's

lymphomas arising in the gastrointestinal tract, and I refer

now to the Ross paper, but that has not been supported by

other evidence; neither has it been refuted by other

subsequent evidence."

12. At the conclusion of his evidence, Dr Crane was asked by the Departmental representative this very leading question:

"Doctor, the fact that there is no available evidence, would

you put the hypothesis that Mr Whetton's exposure had an

association with his non-Hodgkin's lymphoma in the criteria

(sic.) of being speculative?"

13. A question can never, of course, permissibly compel a witness to accept as factual an unfair summary of his earlier evidence, which is what the opening words of this question did. However, the doctor began to answer:

"I am not quite sure what the distinction between

speculative and fanciful is, which is the word I have used

in this situation."

"Well, put it this way: how would you rate it?"

14. The Tribunal made the finding: "In Dr Crane's opinion the paper by Ross et al. (a particular scientific paper) referred to in his written report ... establishes that exposure to asbestos is a risk factor for malignant lymphomas arising in the gastro-intestinal tract." The Tribunal continued:

"It is imperative that the evidence of any link between

exposure to asbestos and a non-Hodgkin's lymphoma referred

to in (Dr Crane's written report) is not extended beyond the

limits circumscribed by (Dr Crane) in his oral evidence."

This comment is difficult to understand, since there is no indication that Dr Crane qualified in any way (apart from the one respect already mentioned, which is in favour of the respondent) anything said in his written report. That report emphasised that "the key piece of information necessary to decide the validity of the claim" was information concerning the likelihood or severity of Mr Whetton's exposure to asbestos. At the hearing, this key piece of information was provided in ample measure, and the evidence as to it was expressly accepted by the Tribunal. That being so, one would have expected the uncontradicted opinions of two medical experts, one an oncologist and the other a haematologist, to have established beyond further debate the relevant reasonable hypothesis. Reference may be made to the remarks of Davies J. in Bushell (supra, at 3). When it is recalled that the rejection of the respondent's claim required the formation of an opinion that the material before the Tribunal did not raise a reasonable hypothesis, the extent of the difficulty is apparent.

15. A careful re-reading of the evidence shows that neither doctor expressed any disagreement with the evidence of the other. Dr Crane, who was called by the representative of the Repatriation Commission, referred more than once in his evidence to Dr Payne's report. When he was asked about portions of it, he expressed agreement with the propositions contained in it of which mention was made. He did not state any disagreement with any statement in it. Dr Crane's conclusion in his report, that the likelihood or severity of Mr Whetton's exposure to asbestos was the key piece of information necessary to decide the validity of the claim, clearly implies that, given sufficient evidence of exposure, the link between exposure and Mr Whetton's death was credible and acceptable from the standpoint of medical science. Remembering that exposure was proved, and indeed expressly accepted during the course of the hearing by the representative of the Commission who said "we are not disputing that Mr Whetton was exposed", one is scarcely surprised to find there were no questions asked of Dr Crane by way of cross-examination. As to the suggestion that Dr Crane's oral evidence in some way "circumscribed" (whatever that may mean) what he had said in his written report in a way that it would be "imperative" to observe, there is simply no evidence upon which it was open to the Tribunal to find that Dr Crane had changed his opinion adversely to the respondent. However, the Tribunal elsewhere described the report as "qualified" by the oral evidence.

16. Dr Crane's long association with Concord Hospital and with the Department of Veterans' Affairs, and particularly his position as consultant in pathology to the Department, makes it almost inevitable that he would have had some knowledge of the accepted tests for the application of s. 120(3) of the Veterans' Entitlements Act. Indeed, Dr Payne, in a report which Dr Crane read, specifically referred to a decision of the Administrative Appeals Tribunal. When, then, the Commission's representative put her leading question to Dr Crane suggesting that the relevant hypothesis was "speculative", the doctor's answer is easily understood. No relevant distinction could be drawn on the basis that the hypothesis in question was speculative; all hypotheses are speculative. If what was once an hypothesis ceases to be speculative, that is because it is either rejected or has become established theory or fact. For the purposes of the statutory concept of a "reasonable hypothesis", the discrimen which has been adopted to enable unreasonable hypotheses to be discarded has frequently been expressed, as it was in East, by the word "fanciful". (See also Bushell (supra, per Davies J. at 3, 4, 6 and per Morling and Neaves JJ. at 7, 8); Gilbert (supra, at 720) citing Webb (supra, at 705); O'Brien v Repatriation Commission [1984] FCA 95; (1984) 1 FCR 472 at 499.) Given an hypothesis that is not fanciful, East requires only the additional element that it be "raise(d)" by the material, that is, that the material point to it as applicable to the particular case. The doctor's reference to "the word I have used in this situation" is, clearly enough, a reference to other cases in which he has been asked to distinguish between a reasonable hypothesis and an unreasonable one; it is not a reference to anything said in the present case, since he had not, either in his oral evidence or in his report, used the word "fanciful", or indeed ever suggested that the hypothesis propounded on behalf of the respondent was in fact fanciful.

17. But the Tribunal attached a quite unwarranted significance to the doctor's next reply, in which he answered the question, how he would "rate" the hypothesis, by the single word "plausible". This answer it described as "pejorative". The Tribunal seems to have misunderstood the ordinary scientific use of the word "plausible", which is the antithesis of "implausible". "Plausible" is relevantly defined in the Oxford English Dictionary 2nd ed. (1989) vol. XI as "Having an appearance or show of truth, reasonableness or worth; apparently acceptable or trustworthy (sometimes with implication of mere appearance); fair-seeming, specious." But although the last of those meanings might be described as pejorative, it is in the sense of "apparently acceptable or trustworthy" that the word is used in a context such as the present. Every one of the examples given in the dictionary of its usage in modern times in a scientific context (and a number of such examples are given) exemplifies the meaning "apparently acceptable or trustworthy". Interestingly enough, the Shorter Oxford English Dictionary (1980), under the definition of "hypothesis", also exemplifies this usage in a quotation which applies the word "plausible" to an hypothesis. Recently, Samuels J.A. in Mifsud v Campbell (1991) 21 NSWLR 725 at 728 used the word "plausibly" in a corresponding sense.

18. The facts were, of course, for the Tribunal to find, and whether an hypothesis is reasonable is a question of fact. However, it was not open to the Tribunal to base its finding of fact on the proposition that Dr Crane had described the relevant hypothesis as "plausible" in a pejorative sense. Quite apart from ordinary usage in a scientific context, the whole tenor of Dr Crane's evidence was to the contrary. Had the word been merely ambiguous, it would have been perverse to give it a meaning so contrary to the doctor's other evidence and the terms of his considered written report.

19. The Tribunal did not assign any precise meaning to Dr Crane's answer, nor did it explain in what way it thought his oral evidence "qualified" a clear opinion he had given in writing. Furthermore, it failed to reveal why it disregarded the opinion of the oncologist, Dr Payne, except to say that he was a surgeon who "stated that he would defer to the opinions of his colleague Dr Crane as to the relationship between asbestos and non-Hodgkin's lymphoma." This was to misquote the evidence in two respects, since Dr Payne was also an oncologist, and, while he said he had worked with Dr Crane and regarded him very highly, he deferred to him only "as far as the haematology is concerned", Dr Crane being a haematologist. Although the ultimate question was, of course, for the Tribunal, it was not entitled, simply on that account, to set aside relevant evidence. In the end, this is what the Tribunal seems to have done. It did not consider Dr Payne's opinion, supposing him to have deferred to Dr Crane; but then it did not consider whether Dr Crane's opinion should properly have led to the conclusion that it could not be said there was not a reasonable hypothesis, "on the basis that the standing of the hypothesis raised is the ultimate question for the Tribunal and it should not be deflected from that task by the opinion of experts." The legal principle referred to does not mean that a Tribunal is excused from understanding, and making findings upon, expert evidence relevant to the question that it has to decide, but simply that it must not abdicate its own function.

20. Having failed to find what the true effect of the expert evidence was, the Tribunal went on to say that it was "not sufficient ... merely to establish that there was a general theory held by some reputable experts, but that the evidence had to go further and suggest a causal link in the particular circumstances of (the) case." The Tribunal then said:

"Applying that standard to this case I am not satisfied that

there has been raised on the facts adduced any hypothesis

which connects the deceased Veteran's non-Hodgkin's

lymphoma, which malignancy apparently had its primary site

in the deceased's retro-peritoneum, with the ingestion by

him of asbestos during war service."

There is a fundamental error in this approach, since s. 120 made it mandatory to reach a finding in favour of the respondent unless her case could be rejected beyond reasonable doubt or, applying subs. (3), the Tribunal could form the opinion that the material before it did not raise the reasonable hypothesis referred to in the statute. It was not a question whether the Tribunal could be satisfied that there had been raised an appropriate hypothesis, a reformulation of the problem in terms obviously unfavourable to the respondent.

21. But there is an even more fundamental error in the Tribunal's formulation, as applied to the facts in evidence. It confuses the nature of a reasonable hypothesis with the circumstances which raise such an hypothesis in a particular case. In the present case, it was undoubted that the deceased had died as a result of the contraction of non-Hodgkin's lymphoma. It was also undoubted, and expressly conceded during the course of the evidence by the representative of the Repatriation Commission, that the deceased's operational service had exposed him to asbestos and asbestos dust. In the context of the concession, and upon the evidence, that exposure was substantial, and extended over a period of at least three years. If the hypothesis that substantial exposure for a period of that order may be a factor in the development in later life of non-Hodgkin's lymphoma is a reasonable hypothesis, there could be no question at all that the material before the Tribunal did raise that hypothesis in the particular case. The facts point to that particular hypothesis as a possible explanation. Because the Tribunal did not examine the effect of the expert medical evidence demonstrating a medically acceptable hypothesis, it failed to appreciate the breadth of the hypothesis in question, and therefore failed to see it as raised by the facts. It asked, rather, whether the facts raised a more limited hypothesis, confined to non-Hodgkin's lymphomas arising in the gastro-intestinal tract. That hypothesis was not raised by the facts unless they supported the view that Mr Whetton's non-Hodgkin's lymphoma may have arisen in his gastro-intestinal tract. On that narrow issue, there is much to be said, contrary to the Tribunal's finding, for the view that the evidence did not permit any conclusion about where Mr Whetton's non-Hodgkin's lymphoma originated. But it is unnecessary to pursue this point, because both the medical experts had actually supported a broader hypothesis which would include non-Hodgkin's lymphomas generally. What the Tribunal did was to fail to take into account a relevant matter (the hypothesis actually suggested), and that constituted an error of law. It follows that the learned primary judge was right to allow the respondent's appeal.

22. There remains the question what order should be made. In O'Brien (supra, at 430), where also a decision of a Tribunal was set aside, the High Court considered the evidence would not permit a finding against the applicant for a pension. The subsequent enactment of subs. (3) will, in many cases, mean that it will have to be determined, as a fact, whether a reasonable hypothesis is raised. In the present case, the facts which have been found and the uncontradicted evidence of both medical experts, whose credit and standing were not attacked in any way, leave no room for controversy. There is simply no foothold to be found in the evidence for a positive finding by the Tribunal that it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of his particular service. Since it would not be open to the Tribunal to make such a finding, if the matter were remitted, and since, as in O'Brien, the Tribunal would also be unable to be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination in favour of the respondent, the matter should be disposed of by this court by the making of an order in the form of the order made in O'Brien. To that extent, the orders made by the primary judge should be varied, but, subject to the necessary amendment of the orders, the appeal should be dismissed with costs.