a> ™ ony JUDGMENT No. 503/21. a CATCHWORDS Veteran's Affairs - Veteran's Entitlements Act 1986 (s.120) - onus of proof in relation to causation of medical condition - "reasonable hypothesis" - aetiology of disease unknown. ee os ee ee gee oe alain Ren THE REPATRIATION COMMISSION v. WILLIAM FRANCIS WEBB No. G279 of 1987 Beaumont, J. Sydney 16 September 1987 re Rasy IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G279 of 1987 ) GENERAL DIVISION ) ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: THE REPATRIATION COMMISSION Applicant AND: WILLIAM FRANCIS WEBB Respondent MINUTES OF ORDER Judge making order: Beaumont, J. Date order made: 16 September 1987 Where made: Sydney THE COURT ORDERS: l. Appeal allowed. 2. Decision of the Tribunal set aside; the matter remitted to the Tribunal for further consideration with the hearing of further evidence. 3. Liberty is reserved to the Commission to apply for costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. eee or we ere IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G279 of 1987 ) GENERAL DIVISION ) - ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN : THE REPATRIATION COMMISSION Applicant AND: WILLIAM FRANCIS WEBB Respondent CORAM: Beaumont, J. DATED: 16 September 1987 REASONS FOR JUDGMENT Pursuant to s.44(1) of the Administrative Appeals Tribunal Act (1975), the Repatriation Commission now "appeals" from a decision of that Tribunal that the chondro-sarcoma of the right humerus of Mr. Webb, the respondent, was due to war service for the purposes of the Veterans' Entitlement Act 1986 ("the Act") and that the respondent was accordingly entitled to pension. The Tribunal stated the issue for its decision as follows: "The issue posed by the evidence put before the Tribunal and the submissions thereon, is as to whether a reasonable hypothesis has been raised on the whole of the material put before the Tribunal, as to a connection between the trauma on the applicant's war ee —~ eye 2. service during an incident in which he was hit with a rifle-butt on the arm, and the development of chondro-sarcoma of the right humerus - either by initial causation of malignancy or aggravation to an existing benign tumour in the humerus to the point of 1ts becoming malignant. Unless such a reasonable hypothesis is found to be raised, the Tribunal is required by the Veterans' Entitlement Act 1986 ("the Act") to find that it 1s satisfied beyond reasonable doubt that there are no sufficient grounds' for determining that the injury the subject of claim is a war-caused injury [sub-section 120(3)]. If such a reasonable hypothesis be shown, and not dispelled on the whole of the material beyond reasonable doubt, the applicant 1s entitled to the determination sought." (Emphasis added) War-caused injuries or diseases are defined by s.9 of the Act. It 1S not suggested that the Tribunal fell into any. error in the interpretation of this provision. The principal question here is the proper construction of s.120. So far as relevant, it provides: 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 1s satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination." (2) ... (3) In applying sub-section (1)...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 - (b) that the disease was a war-caused disease or a defence-caused disease; as the case may be, if the Commission, after consideration of the whole of the material before it, Fe ee An 3. 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. (4)... (5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that - (b) a disease contracted by a person is a war-caused disease or a defence-caused disease; (da) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act. (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on - (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application, any onus of proving any matter that is, or might be, relevant to the determination of the claim or application." The Tribunal found that after enlisting in the army in September 1941, the respondent suffered an injury to his right arm during bayonet drill in early 1942. His opponent knocked him above his elbow. The next day his arm was swollen and bruised. Towards the end of 1942, the respondent, still suffering pain in his arm, sought medical attention. He was advised that rheumatism was the cause of his discomfort. The pain, which he had not previously experienced, continued during the War and after his discharge at the end of the War. He sought further eH eee eee enemereenpenne Tepe I ee pe et tees aa ee ee ee wee ateereee 4. medical advice from the Repatriation Department in 1959 and later in 1971. In 1959, x-rays were taken. The Commission's medical officers were then unable to diagnose the existence of tumour in the arm, though, 1n the light of subsequent events, these x-rays were later found to have "suspiciously indicated" incipient chrondo-sarcoma. In 1983, malignancy was affirmatively diagnosed and, after surgery, a prosthesis was inserted. Amputation of the whole arm was necessarily effected in 1984, The Tribunal referred in some detail in its reasons to the expert medical evidence before it. In discussing the evidence of Dr. Ellis, an orthopaedic surgeon, the Tribunal said: "Dr. Ellis was of the view that the lesion observed in the x-rays could have been connected with the 1942 injury described to him; but felt unable to say whether the connection was 'likely', on the anformation given him. In his view there is nothing 'classical' in the type of pain which will identify chondroma in the arm. On the subject of trauma causing a change from a benign to a malignant lesion, Dr. Ellis stated it to be common, in his view, that surgical intervention can cause the relatively quick spread of tumour of low-grade malignancy. And he stated he knew of several instances where part of the bone's being resected to remove a so-called benign tissue has been followed necessarily by whole-limb amputation because of the development of malignancy. He understood there to have been contrary opinions expressed on this subject from centres of excellence." The Tribunal also mentioned the evidence of Dr. Shepherd, another orthopaedic surgeon, concluding with his report dated 10 November 1986: "Further enquiries have rendered it somewhat doubtful that my long held belief that previous trauma can lead to later malignant change in a benign enchondroma" (sic) "...I would be hard put to counter the evidence of your eminent adversary." The Tribunal also mentioned the opinion expressed by Dr. 5. Newland, a specialist in anatomical pathology at Concord Repatriation Hospital, as follows: "(1) It 1s beyond reasonable doubt that the lesion within the shaft upper right humerus seen on x-ray in 1959' (sic) 'is causally related to the chondro-sarcoma which developed at the same site and was diagnosed histologically in 1983. The time lapse is too long for the original lesion to have been chondro-sarcoma. (2) The precise nature of the original lesion was not established however, the radiologist suggested a localised fibrous cyst. (3) The only intraosseous benign lesion with any potential to spontaneously undergo malignant change to chondro-sarcoma is a chondroma. It is well established that patients with multiple chondromas within bones are at increased risk of developing chondro-sarcoma. I am therefore of the view that the original lesion was a chondroma which may well have been present during Mr. Webb's war service. (4) In my search of the literature I have been unable to find any reference to a relationship between trauma and the development of either a chondroma within bone or a chondro-sarcoma of bone." The Tribunal concludes: "On the whole of the material before us, we find an hypothesis raised which is in no way irrational, and is in apparent accordance with lay, and _ some experienced medical opinion, over many years - that trauma can contribute to the onset of some forms of cancer; viz that the trauma involved in Mr. Webb's being hit severely in the upper arm in 1942 during his war service is connected with the causation either of the development initially of the chondro~sarcoma which was diagnosed in 1983 or the aggravation of a benign tumour existing in 1942 to the point of its becoming malignant. We do not find on consideration of the whole of the material before us that that hypothesis has been dispelled beyond reasonable doubt; and therefore must under sub-section 120(1) of the Act make a determination in the applicant's favour." (Emphasis added) After the Tribunal gave its decision in the present case, the Full Court (Jenkinson, Neaves and Wilcox JJ.) oe ae ny 9 ree ke oie eee 6. considered the meaning of s.120 in East v. Repatriation Commission (22 July 1987, unreported). Their Honours said (at pp.-28-9) that the adoption, in s.120, of the notion of a "reasonable hypothesis" meant that Parliament was requiring something by way of causal link, "but which fell short of proof of the link - even prima facie - as a fact." The Court approved the following statement by the Veterans' Review Board in Stacey, applied also in Dell (1986) 9 ALD 596 at p.615: ",..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 at 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." The Full Court concluded (at p.30)" "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." Thus the central question in the present case was to determine whether the hypothesis advanced by the respondent as to the cause of his disease was "reasonable" or not. It 1s hardly necessary to observe that the question whether an hypothesis 1s "reasonable" is one thing; to determine whether, as a matter of professional opinion, that hypothesis represents the preferred view is a different matter: a number of opinions may be held by a number of experts in the field; each view may be reasonably held notwithstanding that they may lead to different conclusions. The point sought to be achieved by the introduction into s.120 of the notion of a "reasonable" hypothesis is the distinction eine 7. between a theory that is rationally based, on the one hand, and an opinion or view that is irrational, absurd or ridiculous, on the other. It is possible, especially as here, where the aetiology of the disease 1s unknown, to have more than one reasonable hypothesis advanced which suggest different causes of the disease. The exercise is not one of balancing or weighing the respective merits of a range of professional opinions. Rather, it is a case of determining whether the particular theory has a rational foundation. It is not a question of considering the probabilities or even the possibilities (see Attorney-General's Department v. Cockcroft (1986) 64 A.L.R. 97 at p.106; cf. Sir Richard Eggleston, Evidence, Proof and Probability, 2nd ed. at pp.134-5). In the passages cited from the Tribunal's reasons which have been emphasised, 1t appears that the Tribunal interpreted s.120 as requiring the Commission to dispel beyond reasonable doubt the hypothesis relied upon by the respondent. With all respect, this cannot be a correct construction of s.120. It is true that s.120(1), in laying down a general standard of proof, requires the Commission to determine that the injury was war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. It may be accepted that, by virtue of s.120(3), the test prescribed by s.120(1) will be satisfied if the Commission is of the opinion that the whole of the material raises a reasonable hypothesis which connects the disease and war service. But neither expressly nor by implication does s.120, in any of its provisions, require the Commission to rebut an hypothesis beyond Sop rain ne er Seed A 8. reasonable doubt. Rather, the legislation proceeds upon the assumption that the circumstances will indicate whether or not the hypothesis advanced has a rational foundation. If such a foundation exists, a claimant will be entitled to pension. But neither the claimant nor the Commission bears the onus of establishing its rationality or its lack of rationality beyond reasonable doubt. Put differently, there is no onus built into s.120(3) imposing on the Commission the burden of disproving beyond reasonable doubt that the hypothesis advanced was "reasonable", Rather, the question 1s whether, in the Commission's, or, on review the fTribunal's, opinion, the hypothesis advanced by the claimant is reasonable or not. If the Commission or the Tribunal is of the view that it lacks a rational foundation, the claimant will not be entitled to pension. It must follow that the Tribunal erred in its construction of s.120. In the circumstances, the appropriate course is to remit the matter to the Tribunal for reconsideration. For the sake of completeness, it should be noted that both sides urged that the Court should itself express a view on the merits of the dispute. The Court was invited to consider the whole of the expert evidence and express an opinion on the question whether the respondent's "traumatic" hypothesis was a reasonable one. The invitation must be declined. The Court's jurisdiction is supervisory only. Where, as here, the issue is a medical one, the Tribunal is far better equipped to deal with it. spr ata 9. The appeal must be allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal for further consideration with the hearing of further evidence. Liberty 1s reserved to the Commission to apply for costs. I certify that this and the preceding £¢&/4r- (x7) Pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont. FF hile RAM TSOAN JA Associate Counsel and Solicitors for Applicant: Counsel and Solicitors for Respondent: Date of hearing: Date Judgment Delivered: Dated: 16 September 1987 Mr. A. Robertson instructed by Australian Government Solicitor Mr. J.H. Laurence Q.C. with Mr. H. Bleicher instructed by Raymond Beltrami 4 September 1987 16 September 1987 ee ee ef . . * Sr et gp tee wate eee ee setulae aenenneneaanameedeaiiadaaer diene wo =