FEDERAL COURT OF AUSTRALIA Connors v Repatriation Commission [2000] FCA 783 JOHN WILLIAM THOMAS CONNORS v REPATRIATION COMMISSION V 380 of 1998 KENNY J MELBOURNE 13 JUNE 2000 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 380 OF 1998 BETWEEN: JOHN WILLIAM THOMAS CONNORS Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: KENNY J DATE: 13 JUNE 2000 PLACE: MELBOURNE CORRIGENDA 1. In paragraph 19, line 7 of the Reasons for Judgment of Justice Kenny handed down on 13 June 2000, replace reference to "Commission" and insert "respondent". AMANDA FOLEY Associate to Justice Kenny 13 June 2000 FEDERAL COURT OF AUSTRALIA Connors v Repatriation Commission [2000] FCA 783 VETERANS AFFAIRS – War-caused injury or disease – appeal from decision of Administrative Appeals Tribunal – whether veteran's condition of lumbar spondylosis was war-caused – whether Statement of Principles upholds a hypothesis connecting veteran's disease with service where the material does not raise or point to an essential factor. Administrative Appeals Tribunal Act 1975, s 44(1) Veterans' Entitlements Act 1986, s 9, s 13, s 119, s 120, s 120A, s 196B(3) Repatriation Commission v Deledio (1998) 83 FCR 82 applied Deledio v Repatriation Commission (1997) 25 AAR 396 referred Repatriation Commission v O'Brien (1985) 155 CLR 422 referred East v Repatriation Commission (1987) 16 FCR 517 applied Repatriation Commission v Bey (1997) 79 FCR 364 discussed Bushell v Repatriation Commission (1992) 175 CLR 408 discussed Repatriation Commission v McKenna (1998) 28 AAR 7 referred McKenna v Repatriation Commission v McKenna (1999) 86 FCR 144 applied Repatriation Commission v Gosewinckel [1999] FCA 1273 followed Byrnes v Repatriation Commission (1993) 177 CLR 564 discussed Repatriation Commission v Stares (1996) 66 FCR 594 referred Shelton v Repatriation Commission (1999) 85 FCR 587 referred JOHN WILLIAM THOMAS CONNORS v REPATRIATION COMMISSION VG 380 of 1998 KENNY J MELBOURNE 13 JUNE 2000 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 380 OF 1998 BETWEEN: JOHN WILLIAM THOMAS CONNORS Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: KENNY J DATE OF ORDER: 13 JUNE 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 380 OF 1998 BETWEEN: JOHN WILLIAM THOMAS CONNORS Applicant AND: REPATRIATION COMMISSION Respondent JUDGE: KENNY J DATE: 13 JUNE 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Mr John Connors, appeals, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), from part of the decision of the Administrative Appeals Tribunal ("the AAT") given on 13 July 1998. In particular, he appeals from that part of the Tribunal's decision which affirmed a decision that his lumbar spondylosis was not war-caused within the meaning of s 9 of the Veterans' Entitlements Act 1986 ("the VE Act"). factual background 2 The relevant facts, as found by the Tribunal, are as follows. Mr Connors, who was born on 25 March 1921, served in the Australian Army between 5 August 1941 and 3 November 1941 and between 16 December 1941 and 6 May 1946. During his second period of service, he served in Australia and in the South West Pacific. Accordingly, in that period, he is to be taken as having rendered operational service for the purposes of the VE Act. 3 In 1945, Mr Connors was stationed at Ravenshoe in North Queensland as a member of a field ambulance unit. On a date in 1945, shortly before he was to be deployed from Ravenshoe to Morotai, he decided to attend an evening church service. As the service had already begun, he and a comrade ran "flat out" to the service across a paddock, instead of walking around its perimeter. It was dark. While running, Mr Connors fell into a trench (some 6 or 7 feet deep and some distance wide), striking his chest against the far wall before landing on his feet. The Tribunal wrote at [19]: He said he felt nauseous and was dazed and confused. He regained his composure and attempted to climb out of the trench but could do so only with the assistance of his friend. Thereafter he walked to the church service, participated in it, walked back to his barracks at the completion of the service and spent most of the next day preparing and packing his kit for embarkation to Morotai. Mr Connors said that he had severe pain in his chest and recalled that he was unable to carry his kit because of its strapping rubbing against his chest. He said he suffered chest pain for about 10 or 11 days thereafter. Upon arrival in Morotai 22 days later, he did not have chest pain. Mr Connors did not seek medical treatment as a result of the fall. He could not recall having suffered any back pain after the incident. 4 In 1993, Mr Connors learned that he had sustained crush fractures of his thoracic vertebrae. According to his radiologist, the fractures were old and could have been caused by a fall. Mr Connors could not recall sustaining any serious falls aside from the incident at Ravenshoe. For about three years before the fractures were diagnosed, he reported pain in his back emanating from the area below the fractures. Since 1994, he has suffered attacks of pain and restricted mobility resulting from lumbar spondylosis, a degenerative condition affecting the lumbar segment of the spine. legislative framework 5 Pursuant to s 13 of the VE Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a war-caused injury or a war-caused disease. In particular, s 9(1)(a) provides that for veterans, who like Mr Connors, have rendered operational service, an injury or disease is deemed to be "war-caused" for the purposes of the VE Act if the injury or disease "resulted from an occurrence that happened while the veteran was rendering operational service". 6 Section 120, which provides for the standard of proof to be applied in determining a claim for a pension, relevantly provides: (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. Note: This subsection is affected by section 120A. … (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. Note: This subsection is affected by section 120A. The effect of s 120(6) is that neither the Commission nor Mr Connors bore any onus of proving any matter that is, or might be, relevant to the determination of the claim. Section 119, especially s 119(1)(h), of the VE Act is also relevant in this connection. 7 Because Mr Connors' claim was lodged after 1 June 1994 (i.e., on 12 September 1995), s 120A of the VE Act applied. Section 120A(3) provides: For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. (Subsection 120A(4) of the VE Act is of no present relevance.) In this case, s 120A(3) required the AAT to decide whether a Statement of Principles ("SoP") made under s 196B(2) of the VE Act "is in force … that upholds the hypothesis" of connection between Mr Connors' lumbar spondylosis and the circumstances of the particular service rendered by him. SoPs are made by the Repatriation Medical Authority ("the Authority") under s 196B of the VE Act in respect of particular kinds of injury, disease or death. Where a SoP is made under s 196B(2), it must set out the factors that must as a minimum exist, and which of those factors must be related to service, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Subject to qualifications not presently relevant, where a SoP has been determined for a disease of a particular kind, s 120A(3) provides that a hypothesis connecting a disease of that kind (and suffered by a veteran) with the veteran's service is reasonable, for purposes of s 120(3), only if the SoP upholds that hypothesis. 8 In Repatriation Commission v Deledio (1998) 83 FCR 82 at 95-96, the Full Court of this Court expressly agreed with Heerey J, the primary judge in that case, that: [I]t is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can 'uphold' the hypothesis. … the SoP is a subset of proved (Bushell [v Repatriation Commission (1992) 175 CLR 408] at 414) or known (Byrnes [v Repatriation Commission (1993) 177 CLR 564] at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact. See Deledio v Repatriation Commission (1997) 25 AAR 396 ("Deledio") at 411-412. The Full Court went on, at 96, to agree further with his Honour's observations in the following passage at 25 AAR 412: Therefore when s 196B(2) says a factor 'must … exist' and 'must be related to service', it is not interfering with the functions of ss 120(1) and (3). On the contrary, the [Authority] is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the [Authority] is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is: (i) contrary to proved or known scientific facts, (ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or (iii) (since 1994) inconsistent with (not upheld by) an applicable SoP. If the hypothesis is reasonable the claim will succeed unless: (iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or (v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. In other words, the AAT was required to measure any hypothesis raised (or pointed to) by the material before it against the template of any relevant SoP; and, if the hypothesis as raised (or pointed to) by that material fitted that template, the Tribunal could accept the hypothesis as a reasonable hypothesis for the purposes of s 120(3) of the VE Act. If the hypothesis did not fit (because it did not contain the factors which the SoP set out as the minimum that must exist and be related to the person's service), then the hypothesis would not be reasonable for the purposes of s 120(3) and the veteran's claim would fail. 9 On 9 December 1996, the Authority made a SoP concerning lumbar spondylosis (Instrument No 165 of 1996) under s 196B(2) of the VE Act. The SoP specified ten factors, any one of which could connect a veteran's lumbar spondylosis with relevant service. One factor that would support a reasonable hypothesis connecting lumbar spondylosis with operational service was set out in clause 5(g). That clause, which was relied on by Mr Connors, specified as a factor: suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis. Clause 4 provided that this factor (and any other factor in clause 5) "must be related to any relevant service rendered" by the veteran. The term "trauma to the lumbar spine" was defined in clause 7 of the SoP in the following terms: "trauma to the lumbar spine" means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered. Before Mr Connors could succeed on his pension claim for lumbar spondylosis, the AAT had to be satisfied that the hypothesis advanced by him was upheld by this SoP. the aat's decision 10 At the hearing before the Tribunal, Mr Connors advanced the hypothesis that the fall that he had sustained at Ravenshoe in 1945: precipitated the thoracic fractures determined upon x-ray in 1993. It was said that [he] must have suffered an acute episode of jarring or assault upon the whole of his spine in order for the crush fractures to have occurred. The force, it was submitted, necessary to cause crush fractures must have travelled from [his] feet to his thoracic spine and thereby passing through his lumbar spine and thereby causing lumbar spondylosis. It was submitted that this hypothesis – therefore satisfying factor 5(g) – was not inconsistent with the evidence of the absence of any recollection of lumbar pain because i) [his] primary concern was his chest pain which probably masked any lower back pain, ii) [he] suffered a limitation of movement because of chest pain which also probably masked lumbar back pain, iii) [he] was subsequently distracted by the prospect of embarkation to Morotai, iv) [he] was also distracted by the woeful and inhumane conditions that he endured during the journey to Morotai and v) the passage of time being 53 years ago. (Tribunal's reasons at [28-29]) In these circumstances, the hypothesis advanced by Mr Connors was upheld by the SoP, so Mr Connors submitted, notwithstanding that he had no recollection of any "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of [the lumbar] spine". 11 There were a number of medical reports before the Tribunal, including reports from Dr Geoff Markov (dated 9 October 1996), Mr John McArthur (who examined him on 8 September 1997), and Dr Stephen Hall (who examined Mr Connors on 18 November 1997). The Tribunal accepted that, if a claim had been made before 1 June 1994 (and hence not been governed by s 120A), the opinions expressed by Mr McArthur and Dr Hall would have permitted it to find that there was a reasonable hypothesis connecting Mr Connors' lumbar spondylosis and his war service, although the contrary opinion of Dr Markov would necessarily have been taken into account: The Tribunal remarked at [43]: Dr Hall, I suspect . . . would have supported a reasonable hypothesis connecting the fall and the subsequent lumbar spondylosis. Before 1 June 1994 there would have been a sufficient basis therefore to support a connection between the circumstances of the applicant's service and lumbar spondylosis as a reasonable hypothesis because there was medical evidence in support. The opinion of Dr Markov would of course have been taken into account but the opinions of Mr McArthur and Dr Hall being reasonably held by persons of eminence and also being opinions which are not fanciful or unreal and would have permitted this application to have succeeded. After noting that legislative amendments for claims made on or after 1 June 1994 required that any hypothesis of connection fit the template of the SoP concerning lumbar spondylosis, the Tribunal held that the material before it did not permit a finding that Mr Connors had experienced any "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of [the lumbar] spine" as the definition of "trauma to the lumbar spine" in clause 7 of the SoP required. The Tribunal said at [45]: [T]he evidence of Mr Connors does not permit a finding of fact that he had within 24 hours (of the injury being sustained) acute symptoms and signs of pain, tenderness and altered mobility or range of movement in his lumbar spine. It is one thing for [counsel for the applicant] to submit that the applicant is unable to deny that he suffered back pain. It is another thing – and fundamental – for there to be a basis upon which such a finding can be made. Veterans may not have to 'prove' any 'fact' however speculation or innuendo of the presence of pain does not convert to a basis upon which a finding of pain then existing could be made as a fact. Even if it could there was no evidence of 'acute symptoms and signs of pain, tenderness and altered mobility or range of movement'. In short, the Tribunal found that the hypothesis advanced was not upheld by the SoP as required by s 120A(3), since there was no evidence pointing to the existence of relevant pain following the fall at Ravenshoe. This meant that the material before the Tribunal could not raise a reasonable hypothesis connecting Mr Connors' lumbar spondylosis with his war service. There was no need for the Tribunal to make any further determination, because, if this were correct, Mr Connors' claim for a pension for this condition had to fail. the ground of appeal 12 Mr Connors submitted that: (a) s 120A(3) of the VE Act "does not require proof, or a finding, of any fact before an hypothesis can be found to be reasonable for the purposes of s 120(3) of the Act"; and (b) "an hypothesis can be said to be upheld by a [SoP] for the purposes of s 120(3) of the Act notwithstanding that the material before the [Commission] does not, in the case of any given applicant, point in isolation to the satisfaction of a relevant factor or factors referred to in such [SoP]". There was no contest between the parties on the first limb of this submission. But there was, so the respondent submitted, a "distinction between requiring each element in the hypothesis to be established as fact by evidence (which would involve an error of law) and examining evidence to see whether there is any reasonable basis in that evidence for the hypothesis (which is entirely consistent with s 120(3) of the VE Act)". The respondent submitted that a pension claim could not succeed unless the material before the decision-maker pointed to a hypothesis, of the kind required to fit the template. If the material did not point to the existence of a specified factor and to the required relationship between that factor and service, a hypothesis of the kind required by the SoP could not be raised by the material before the decision-maker and could not be said to be reasonable for the purposes of s 120(3) of the VE Act. It was not sufficient, so the respondent submitted, that the material left the hypothesis open as a possibility or, as Mr Connors put it, the material was not inconsistent with the hypothesis. This difference between the parties gave rise to the one question argued on the hearing of this appeal. This was whether a reasonable hypothesis can only be raised, for the purposes of ss 120(3) and 120A(3), where there is material before the decision-maker pointing to the existence of a factor specified by an applicable SoP. a requirement for material pointing to each element of a SoP? 13 Section 120(3), which (with s 120A(3) of the VE Act) gives rise to the present question, was introduced into the Repatriation Act 1920 by s 16 of the Repatriation Legislation Amendment Act 1985, as a consequence of the decision of the High Court in Repatriation Commission v O'Brien (1985) 155 CLR 422. As the Full Court observed in East v Repatriation Commission (1987) 16 FCR 517 ("East") at 522: The consequence of the decision of the majority view in O'Brien was that in any case where, at the end of the day, it was impossible to determine the cause of an incapacity or death – or, in the case of an incapacitating or fatal disease, the cause of that disease – the application must succeed. Cause being unknown, the Commission could not negative, beyond reasonable doubt, the possibility that there was a causal relationship between the veteran's war service and his or her subsequent incapacity or death. Where cause was unknown claims would, therefore, have to be allowed even though there were no facts to suggest a connection between the incapacity or death and the war service; and such claims were, quite properly, allowed in the period immediately following O'Brien. The Court added, at 532-533: The obvious intention of the 1985 amendment was to reverse, to some extent, the trend towards improvement of the position of claimants. Parliament wished to retain the requirement that the Commission should negative claims beyond reasonable doubt but to limit the operation of that requirement to cases where there was some reason to believe in the existence of a causal connection. … The implication as to intention arising out of the history of the legislation is supported by the express statement of the Minister that the Government wished to overrule the effect of O'Brien. … The means chosen to give effect to that intention were apt. The adoption of [the] notion of a reasonable hypothesis meant that Parliament was requiring something by way of a causal link, but which fell short of proof of the link – even prima facie – as a fact. … 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. … [I]f a Tribunal accepts medical evidence that condition B may be caused by any degreeof exposure to factor A, that the veteran was exposed to factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of the exposure. The hypothesis itself makes quantity irrelevant. If, on the other hand, the evidence is that exposure to quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reason to believe that the veteran was exposed to factor A to the extent of quantity X. The Full Court in Repatriation Commission v Bey (1997) 79 FCR 364 at 372-373 reiterated that: A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. It follows that for a reasonable hypothesis to be raised by the material before a decision-maker (as s 120(3) requires), the material must point to the hypothesised connection between the veteran's injury, disease or death with the circumstances of the veteran's service and not merely leave that connection open as a possibility. It is not sufficient that the connection is consistent with the known facts. As Mason CJ, Deane and McHugh JJ said in Bushell v Repatriation Commission (1992) 175 CLR 408 ("Bushell") at 414: The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. That is, the material before the decision-maker must raise the hypothesised causal connection. 14 Whilst conceding that the material must point to the relevant hypothesis, Mr Connors contended that "no individual part or parts of the hypothesis need be supported by facts raised in or by evidence" in order for that hypothesis to be upheld by the SoP. I reject that submission. If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision-maker, then that hypothesis is not raised by that material. Cf East at 533 (in the passage set out above). If the material does raise the hypothesis, then the decision-maker must determine whether it is reasonable. By virtue of s 120A(3), it will be reasonable if the hypothesis fits the SoP (or the SoP upholds the hypothesis). As Goldberg J said in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16: For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by the Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles … . On appeal, the Full Court approved these propositions: see McKenna v Repatriation Commission v McKenna (1999) 86 FCR 144 at 150-1. Subsequently, in Repatriation Commission v Gosewinckel [1999] FCA 1273 at [61], Weinberg J said: In dealing with the causation issue, it was necessary for the hypothesis raised by the material before the AAT to include the elements prescribed by the SoP – Deledio v Repatriation Commission (supra) at 412. The medical-scientific standard prescribed in the SoP required that the veteran's circumstances fall within cl 1(b) since none of the other alternatives within cl 1 were applicable. If the hypothesis raised by the material did not satisfy that requirement, it could not be upheld by the SoP. This approach is, in my view, the one dictated by authority. 15 In this case, the AAT correctly proceeded on the basis that, in order for Mr Connors to succeed, the hypothesis raised by the material before it had to fit one of the templates set out in the relevant SoP. The Tribunal was not (as it itself recognised) engaged in fact-finding. 16 Mr Connors relied (and continues to rely) on a template that include the elements set out in clause 5(g) of the SoP: that is, his suffering a trauma to the lumbar spine (as defined in clause 7) before the clinical onset of lumbar spondylosis. A question for the Tribunal was, therefore, whether the material before it raised (or pointed to) Mr Connors' suffering a physical injury to the lumbar spine that caused the development, within 24 hours, of "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine" which lasted for at least a week immediately after the fall at Ravenshoe in 1945. 17 As it turned out, this was the principal area of contention before the Tribunal. Mr Connors' evidence was that he could not recall suffering pain in the lumbar spine region after the fall. Various factors were advanced on his behalf to explain this lack of recollection, but none pointed affirmatively to his suffering pain at that time. It was, therefore, plainly open to the Tribunal to decide that the hypothesis advanced by him was not upheld by the SoP, since there was no material pointing to the existence of pain following the injury, which was an essential element of the SoP's definition of "trauma to the lumbar spine". 18 The applicant referred to Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-70, Bushell, and Bey at 373 for the proposition that, in some cases, a hypothesis may assume the occurrence of certain facts and the making of the assumption does not render the hypothesis unreasonable. That was, plainly enough, the position prior to the introduction of s 120A and s 196B by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994; and in relation to claims made before 1 June 1994: see Repatriation Commission v Stares (1996) 66 FCR 594 at 601. Thus, in Byrnes at 570, the High Court held that: [T]he appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered. Section 120A did not, however, apply to any of cases relied on by Mr Connors in this connection (namely, Byrnes, Bushell and Bey) since none of them concerned claims made on or after 1 June 1994. Where there is a SoP determined under s 196B(2), then, pursuant to s 120A(3), a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out "the factors that must as a minimum exist" and "which of those factors must be related to service". The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of the veteran's particular service. Because the existence of one of the ten factors specified in clause 5 of the SoP is an essential ingredient of that hypothesis, the material before the decision-maker must point to one of those factors. Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3), where it applies, is that a hypothesis must be supported by evidence pointing to each individual element in an SoP for the hypothesis to be reasonable: cf Shelton v Repatriation Commission (1999) 85 FCR 587. 19 In any event, irrespective of s 120A(3), there is nothing in Byrnes, Bushell, or Bey that would lead me to accept the proposition that a hypothesis need not be supported by evidence pointing to each individual element of it in order to be reasonable for the purposes of s 120(3). As Byrnes at 571-2 shows, if a hypothesis assumes the existence of a fact and is reasonable, then the assumption must be one that is pointed to by the material before the decision-maker. This was also the case in Repatriation Commission v Stares: see (1996) 66 FCR 594 at 601. In Bey, the Commission submitted that the primary judge was wrong in failing to find that the Tribunal had erred in requiring each element of the hypothesis to be established by evidence. In a joint judgment, four members of the Full Court responded to this, at 373, as follows: The hypothesis was that the respondent's physical work and sporting activities in Vietnam caused or contributed to his disease. The Tribunal did not require each element of that hypothesis to be established by evidence. Rather, it examined the evidence to determine whether there was any reasonable basis therein for the hypothesis. There is nothing in this passage, however, that would support the view that there need not be material pointing to each element of a hypothesis. The observation that each element need not be established by the evidence is, as I read it, simply a restatement of the accepted proposition that determining the reasonableness of a hypothesis does not involve making findings of fact: see Deledio at 412. conclusion 20 For the reasons stated, the AAT did not make an error of law in deciding that, as the material before it did not point to a hypothesis that fitted the template of the SoP, then, by virtue of s 120A(3), it could not conclude that the hypothesis advanced by Mr Connors was a reasonable one and, for that reason, Mr Connors' claim for a pension for lumbar spondylosis had to fail. The appeal should be dismissed. There will be no order as to costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 13 June 2000 Counsel for the Applicant: Mr G Moore Solicitor for the Applicant: Mr P J Liefman Counsel for the Respondent: Mr P J Hanks QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 October 1999 Date of Judgment: 13 June 2000