CATCHWORDS

DEFENCE AND WAR - Ex-Servicemen - Pensions - claim for a pension on basis that veteran's brain tumour was war-caused - requirement that material before Repatriation Commission raise "reasonable hypothesis" that tumour was war-caused - where material consists primarily of an hypothesis postulated by one medical expert - whether hypothesis raised more than a mere possibility - whether conflict between medical opinions sufficient to make hypothesis unreasonable.

Veterans' Entitlement Act 1986 - s 9, sub-ss 120(1) and (3)

Administrative Appeals Tribunals Act 1975 - sub-s 44(1)

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Webb (1987) 76 ALR 131

East v Repatriation Commission (1987) 16 FCR 517

Collector of Customs v Pressure Tanks Pty Ltd (1993) 115 ALR 1

REPATRIATION COMMISSION v ROY NEIL JENKINS

No VG 411 of 1996

CORAM:    Foster, Lindgren, North JJ

PLACE:    Melbourne

DATE:     26 March 1997

IN THE FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY        )         No VG 411 of 1996

GENERAL DIVISION                  )

  On appeal from a Judge of the Federal Court of Australia

          BETWEEN:

REPATRIATION COMMISSION

                           Appellant

          AND:

ROY NEIL JENKINS

                          Respondent

JUDGES MAKING ORDERS:   Foster, Lindgren, North JJ

PLACE:    Melbourne

DATE:     26 March 1997

                      MINUTE OF ORDERS

THE COURT ORDERS THAT:

          1.   The appeal be dismissed.

          2.   The appellant pay the respondent's 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        )         No VG 411 of 1996

GENERAL DIVISION                  )

  On appeal from a Judge of the Federal Court of Australia

          BETWEEN:

REPATRIATION COMMISSION

                           Appellant

          AND:

ROY NEIL JENKINS

                          Respondent

CORAM:    Foster, Lindgren, North JJ

PLACE:    Melbourne

DATE:     26 March 1997

                    REASONS FOR JUDGMENT

INTRODUCTION

On 16 January 1992 the appellant ("the Commission"), by its delegate, determined that an intra-cranial meningioma from which the respondent ("Mr Jenkins") had suffered and which had been successfully surgically resected in 1988, had not been war-caused within the meaning of s 9 of the Veterans' Entitlements Act 1986 ("the Act"), and accordingly refused his claim for a pension.  On 20 October 1993, the Veterans' Review Board ("VRB") affirmed that decision.  Upon Mr Jenkins' further application for review by the Administrative Appeals Tribunal ("AAT"), the AAT affirmed the Commission's decision.  Mr Jenkins appealed to this Court.  On 24 June 1996, Heerey J allowed his appeal.  The Commission now appeals against that decision.

BACKGROUND

The following account of the background is taken from the
comprehensive and detailed judgment of the learned trial Judge.

     "War service

     On 6 January 1942 Mr Jenkins, then aged 18, enlisted in the AIF. In the following year he transferred to the Royal Australian Air Force. After training in Canada he served with Bomber Command as a rear gunner on Lancasters. During 1945 he was involved in two incidents. The first occurred while on a training flight. On landing, the rear wheels of the aircraft touched before those at the front. Mr Jenkins was thrown forward and hit his forehead on the metal framework of the rear gun turret. The second, and more serious, incident occurred on a return flight from a bombing mission over Germany. The aircraft suddenly lost height and Mr Jenkins hit his forehead against the machine gun. He was unconscious for some four to five hours and admitted to hospital on landing. He was hospitalised for approximately three weeks. There was a statement before the tribunal from Mr Kevin McKenna, a crew member on the same mission, that Mr Jenkins was unconscious when the plane landed and that there was `a bruise high on his forehead’. No medical or hospital records relating to this episode were produced.

     Meningioma

     After discharge from the RAAF in 1946 Mr Jenkins resumed his former employment with the State Bank of Victoria, eventually becoming a branch manager. In 1980 he obtained early retirement. He was then experiencing general loss of concentration and sleepiness. In 1988 he was diagnosed with a left sphenoid ridge meningioma. A meningioma is a benign connective tissue tumour arising from the membranes covering the brain and spinal cord. The meningioma was successfully resected in December 1988. The site of the meningioma, the left sphenoid wing, was level with the top of the ear but a little bit forward."

THE LEGISLATION

The question whether Mr Jenkins' meningioma was war-caused required the Commission, the VRB, the AAT and the learned
trial Judge to consider the facts and the medical evidence by reference to sub-ss 120 (1) and (3) of the Act.  Those sub-sections provide as follows:

     "(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.

     (2)  ...

     (3)  In applying subsection (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:

          (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."

THE MEDICAL WITNESSES

The trial Judge gave a detailed account of the medical evidence which had been before the AAT.  We will not repeat that account here.  Mr Gavin Fabinyi, the neurosurgeon who had
removed Mr Jenkins' tumour in 1988, wrote a letter to Mr Jenkins dated 3 December 1992 and provided a later report dated 30 March 1993, both of which were in evidence before the AAT.  Mr Fabinyi was not, however, called as a witness.

Mr Jenkins called Dr Robert Hjorth, a neurologist of 25 years' standing.  His report dated 4 October 1994 was in evidence and he was examined and cross-examined.  Mr Jenkins relies on Dr Hjorth's evidence, in particular, as supporting the existence of a reasonable hypothesis connecting the meningioma with the circumstances of his war service.

The Commission called Professor Richard Fox, the Director of the Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital.  His report dated 2 September 1994 was in evidence and he was examined and cross-examined.  Other material before the AAT included an article by Dr John F Annegers and others of the Mayo Clinic and Mayo Foundation, Rochester, Minnesota, entitled "Head Trauma and Subsequent Brain Tumours" (1979) 4 (3) Neurosurgery pp 203-206 ("the Annegers study").

FACTUAL FINDINGS OF THE AAT

The facts as found, expressly or by implication, by the AAT are as follows:

·    Mr Jenkins suffered trauma to the left side of his forehead while returning from a bombing mission in 1945.

·    The trauma may have been serious.

·    In 1988 Mr Jenkins was diagnosed as having a left sphenoid ridge meningioma at the base of the skull on the left side.

REASONING OF THE AAT

The AAT considered that the foregoing findings raised an hypothesis connecting the meningioma with the trauma and that the issue for decision by it was whether the hypothesis was a reasonable one.  It concluded that it was not.  The AAT addressed what it perceived to be a conflict between the evidence of Dr Hjorth and the Annegers study.  It said that the Annegers study was not merely "one negative epidemiological or general survey", a description given to it by Dr Hjorth in his report.  The AAT thought that the Annegers study and other material before it, including the views expressed by Mr Fabinyi, showed that the hypothesis of a causal link was "contrary to known scientific facts and ... therefore not reasonable".  The AAT therefore decided that Mr Jenkins' claim must fail because of the operation of sub-s 120 (3) of the Act.

REASONING OF THE TRIAL JUDGE

The trial Judge discussed the concept of "known scientific facts" which was central to the AAT's reasoning.  On the appeal, the Commission has accepted as correct his Honour's conclusion that the AAT erred in law in treating the Annegers study as exposing a "scientific fact" which was contrary to the hypothesis of a causal link between Mr Jenkins' trauma and the later development of his meningioma, and as therefore rendering the hypothesis unreasonable.

The Commission submits that, nonetheless, the learned trial Judge himself erred in the following passage from his Honour's judgment:

     "The hypothesis advanced on behalf of Mr Jenkins satisfied the requirements laid down in Bushell [Bushell v Repatriation Commission (1992) 175 CLR 408] and Byrnes [Byrnes v Repatriation Commission (1993) 177 CLR 564]. It was related to the particular circumstances of Mr Jenkins’ case and the trauma which, as the tribunal accepted, he had suffered while on war service: Owens [Owens v Repatriation Commission (1995) 38 ALD 481] at 485. Dr Hjorth advanced an explanation of the possible mechanism. He was not challenged in cross-examination as to this. His hypothesis was not shown to be irrational, absurd or ridiculous; the respondent did not attempt such a task. The most that can be said is that Professor Fox disagreed. Dr Hjorth was a specialist of 25 years’ experience in the appropriate field. Indeed his experience and expertise was more relevant than that of Professor Fox, who did not have clinical experience of meningiomas.

     The existence or otherwise of a reasonable hypothesis is not to be resolved by a choice between competing medical opinions: Bushell at CLR 414, 428 and 430. This is particularly so when the aetiology of the condition is unknown (Webb, supra [Repatriation Commission v Webb (1987) 76 ALR 131 at 135]) and a competent view, that of Mr Fabinyi, is that ‘there is really no scientific evidence one way or the other’." ((1996) 137 ALR 729 at 739)

The error which the Commission suggests that this passage reveals, is that the trial Judge undertook the task of determining what was, in truth, a question of fact for the AAT and which, in view of the limited approach which it had taken, had not been decided by it, namely, whether, on the basis of all the materials before it, the hypothesis of a connection between the meningioma and the injury propounded by Dr Hjorth was reasonable.  Accordingly, subject to its primary submission referred to below, it contends that his Honour should have remitted the matter to the AAT.

The second and related error which the Commission propounds, concerns the orders made by his Honour.  It is desirable to set out the whole of the relevant part of his Honour's judgment:

     "Orders

     The primary relief sought by Mr Jenkins in his notice of appeal was an order setting aside the tribunal’s decision of 7 December 1994 and ‘that a decision he [sic] substituted for it that the applicant is entitled to a pension under the Veterans’ Entitlements Act 1986 for the war-caused injury or disease of meningioma’. The Commission did not advance any argument that such an order was inappropriate were the appeal to be upheld.

     In my opinion the order sought by Mr Jenkins is appropriate. There is `no fact finding task left for the tribunal to perform’: Lowerson[Lowerson v Repatriation Commission (1994) 50 FCR 252] at 271; Repatriation Commission v Nation (1995) 21 AAR 351 at 360-1. The case was not conducted before the tribunal on the basis that, even if a reasonable hypothesis were found, the Commission had nevertheless disproved causation beyond reasonable doubt for the purposes of s 120(1).

     In their joint judgment in Bushell[Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30] Mason CJ, Deane and McHugh JJ said (at CLR 416; ALR 36):

            But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, `beyond reasonable doubt, that there is no sufficient ground for making the determination’ even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.

     In the present case the tribunal have accepted the evidence as to Mr Jenkins’ trauma and thus the factual foundation of the hypothesis is made out. There could be no dispute as to the trauma being war-caused."

The formal orders made by his Honour were as follows:

     "(1)The appeal is allowed.

      (2)The decision of the Administrative Appeals Tribunal dated 7 December 1994 is set aside, and in lieu thereof there is substituted a decision that the applicant is entitled to a pension under the Veterans’ Entitlements Act 1986 (Cth) for the war-caused injury or disease of meningioma.

      (3)The respondent pay the applicant’s costs including reserved costs."

The Commission's first submission is that the trial Judge erred in not holding that the posited hypothesis was, as a matter of law, on the material before the AAT, incapable of being characterised as "reasonable".  Accordingly, the Commission goes further than to submit that his Honour should merely have set aside the AAT's decision and remitted the matter for further consideration by the AAT in accordance with law.  The Commission goes so far as to submit that his Honour should have dismissed the appeal from the AAT.  Accordingly, it now submits that this Full Court should, in allowing the appeal from his Honour, substitute an order dismissing Mr Jenkins' appeal from the AAT to this Court.

Its second and alternative submission is that the matter should be remitted to the AAT on the basis that his Honour erred in holding that there was "no fact finding left for the Tribunal to perform".  Although his Honour's remarks in the passage set out may have been directed to the absence of any contest in respect of issues under sub-s 120(1), there were, nevertheless, according to the submission, definite unresolved issues of fact under sub-s 120(3).

For Mr Jenkins it is submitted that Heerey J was correct in holding that, as a matter of law, the material before the AAT could point to only one conclusion, namely, that the hypothesis relied on was "reasonable".

In order to resolve these questions it is necessary to refer to the construction given to sub-ss 120 (1) and (3) of the Act by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 ("Bushell") and Byrnes v Repatriation Commission (1993) 177 CLR 564 ("Byrnes"), both of which were, as appeared earlier, referred to by the trial Judge.  Although they are lengthy, we think it desirable to set out the passages to which his Honour referred.

In Bushell, Mason CJ, Deane and McHugh JJ said (at 414-415):

     "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.  Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran.  However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon.  So, in determining whether a hypothesis is reasonable for the purpose of s.120(2), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service.  Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.  Thus, in Commissioner for Government Transport v. Adamcik (1961) 106 CLR 292, this Court held that there was reasonable evidence to support a claim for damages that emotional disturbance, brought on by an accident, had caused acute lymphatic leukaemia even though only one doctor supported the claim, others rejected it, and there was evidence that for nearly 20 years the medical literature had discarded earlier suggestions that some cases of leukaemia had been the result of trauma.  Windeyer J. said (at 306):

          `The most that could be urged against Dr. Haines' evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others: not that it can be scientifically established as false.'

     However, a hypothesis cannot be reasonable if it is `contrary to proved scientific facts or to the known
phenomena of nature': Adamcik at 306.  Nor can it be reasonable if it is `obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous': East v Repatriation Commission (1987) 16 FCR 517 at 432; 74 ALR 518 at 533.

     But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge.  Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.  As we have earlier pointed out, it is not the function of s.120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another.  This does not mean, however, that in performing its functions under s.120(3) the Commission cannot have regard to the medical and scientific material which is opposed to the material which supports the veteran's claim.  Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of a veteran.  But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion."

Brennan J, who concurred, expressly approved (at 428) the following statement of Beaumont J in Repatriation Commission v Webb (1987) 76 ALR 131 at 135:

     "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 is hardly necessary to observe that the question whether an hypothesis is `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 s120 of the notion of a `reasonable' hypothesis is the distinction 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 is 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."

At 430, his Honour added:

     "The purpose of s.120(3) is to ensure that, though fashion in medical theories changes, veteran claimants who have had operational service should not be prejudiced so long as there is a reasonable hypothesis of connection favouring entitlement to a pension.  It would be an exceptional case in which it would be right for the A.A.T., forming its own view of competing medical theories, to hold an hypothesis of connection favouring entitlement to be unreasonable, when the hypothesis is supported by `a reasonable medical practitioner, speaking within the ambit of his expertise'."

Finally, in Byrnes, Mason CJ, Gaudron and McHugh JJ said (at 571):

     "The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service?  The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.  If the hypothesis is not reasonable, the claim fails.  Proof of facts is not in issue at this point.  (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied.  The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."

REASONING ON THE APPEAL

The Commissions's first submission involved the proposition that a reasonable hypothesis requires more than a mere possibility of a connection between injury or disease and the service rendered by the applicant.  The Commissioner submitted that Dr Hjorth had presented his hypothesis only as one that had not been excluded and was no more than consistent with the known facts.  This submission relied upon the decision of the Full Court in East v Repatriation Commission (1987) 16 FCR 517, in which, at 532, the Court approved the statement of the AAT in an earlier case as follows:

     "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."

The Court was concerned to contrast the requirement under earlier veterans' legislation, which was satisfied where an hypothesis was not excluded by the evidence, and the current legislation, which requires "some reason to believe in the existence of a causal connection" (East at 532).  In the present case, however, Dr Hjorth's evidence, which will be referred to later, did not simply leave the cause of the meningioma unexplained.  He did not merely rely on the fact that the postulated cause had not been excluded by others but instead proffered a positive opinion as to the cause of the meningioma.  Thus, the material did point to, and did not merely leave open, the hypothesis suggested.  Accordingly, we
decline to make the order sought substituting for the order of Heerey J an order dismissing the appeal from the AAT.

As to the second submission of the Commission, it is necessary first to consider the application of sub-s 120 (3) in the circumstances of the present case.  Do all or some of the facts raised by the material before the AAT necessarily and inevitably give rise to a reasonable hypothesis connecting Mr Jenkins' meningioma with the trauma to his forehead?  Or, contrary to the opinion of the trial Judge, are there facts yet to be found by the AAT before that question can be determined?  It is necessary to consider the relevant evidence.

In his report dated 4 October 1994, Dr Hjorth referred to a monograph by Cushing and Eisenhardt which linked meningioma to trauma.  In cross-examination he said that the "individual case reports linking trauma to meningioma" related to instances of "meningiomas arising out of [the] particular site of the trauma" (T38).  Dr Hjorth also referred in his report to the Annegers study.  That study, a prospective one, investigated 2,953 patients who had suffered head trauma, for a total of 29,859 person-years, and recorded the number of subsequent brain tumours at 4.  This did not differ from the expected number in a "control group" of 4.1.  Dr Hjorth's report continued:

     "From all this I conclude that the relationship of
general head trauma (as opposed to local trauma) to the subsequent development of meningioma is unproven. However, if one looks at the history of medical science, there has often been great difficulty in proving an association which clinicians have suspected and which individual cases have highlighted. Indeed, it took many decades to `prove’ that cigarette smoking caused cancer of the lung. One negative epidemicological [sic] or general survey cannot exclude the possibility of a small association.

     If one accepts, as I do, that local trauma can certainly cause the subsequent development of meningioma, then, it seems to me a reasonable hypothesis that generalised trauma may also predispose or cause the subsequent development of meningioma. Of course it is impossible to prove, and in the individual case beyond all reasonable doubt that the head injury played a role but on the other hand I believe that the possibility of the head injury contributing to the subsequent development of the meningioma is at least `a reasonable hypothesis’."

As the learned trial Judge noted, Dr Hjorth offered an explanation of the possible biological mechanism by which Mr Jenkins' meningioma might have been caused by the trauma to his forehead. 

In his report, Dr Hjorth had stated that there was a long history of individual case reports linking trauma to meningioma dating back to the first monograph on meningiomas produced by Cushing and Eisenhardt.  He had said that while it was fair to say that the evidence had always been disputed, some doctors dealing with neurology and neurosurgery had accepted that there was a relationship between trauma and the subsequent development of meningioma, while other doctors had rejected the apparent relationship as simply coincidence.  His report had continued:

     "I do not think that there can be any reasonable doubt however, about the relationship between severe and local trauma and the subsequent development of meningioma at the site of the trauma. Numerous individual case reports or small series attest to this. Individual early cases are described in the British Medical Journal Editorial of 16 August 1969. To concentrate for a moment on the case of Zulch where a meningioma developed 20 years after an explosion and the meningioma contained a piece of metal wire from that explosion, one would have to say that the idea that the meningioma coincidentally developed in the territory of the metal wire strains credulity. Other cases involve fractures or local surgery or local wounds with the meningioma actually growing in the area concerned. I believe that an examination of the number of such case reports and bearing in mind the extraordinary anatomical relationship between the trauma and the subsequent development of meningioma makes it very unlikely that this relationship is not a genuine and real one. I believe, in fact, that the majority of practising neurologists and neurosurgeons accept that such a causal relationship exists." (underlining supplied)

In his evidence in chief, he described the proximity between the site of the trauma and the site of the meningioma:

     "Now, how close would you describe the relationship between the site of the injury and the site of the meningioma?---As I understand it, the meningioma is variously described as being on the sphenoidal ridge, or the sphenoidal wing, or the floor of the temporal fossa or the floor of the middle cranial fossa, so that would mean that it was about three inches behind the point where - of the injury.

     Would you describe that as a close connection, or?---It is not right underneath the site of the injury, but it is, in the case of a severe injury there it is part of the - it would not surprise you if you had damage, for instance, to the lower parts of the frontal lobe or to the tip of the temporal lobe from a blow like that, so it is not - it is not very close but it is not very distant either.  It is in the vicinity or region." (T 32 - underlining supplied)

In his evidence in chief he was asked whether Mr Jenkins' case was one of development of meningioma "locally" at the site of the trauma:

     "Would you fit Mr Jenkins injury that I have described, into that category, or not?---No, the reason everybody accepts the local trauma is because the coincidence of it being so local is so great that the meningioma occurs in the scar of the previous operation, or in the actual wound from the stab wound, and so that you do not need elaborate statistics, you just - one just says, well, this - it is too much of a coincidence that this, you know, could - it is too much - this could not be a coincidence, thus must be a causal relationship.  Now, this is not closeness like that; it is not very distant but it is not at the same level.  It is not in the site of a facture or at the site of a wound." (T 33)

In paragraph 3 of his report, Dr Hjorth had gone on to discuss the question of whether there was any relationship between "general" head injury and the subsequent development of meningioma.  He acknowledged that this question was "more difficult".  He had referred to the fact that the Annegers study had failed to show an association between head trauma and the subsequent development of intra-cranial tumour.  He had, however, noted that the authors of that study had acknowledged that its results could not absolutely refute the possibility that head trauma predisposes to brain tumour, although they had stated that the individual risk was small and that the weight of evidence did not support an aetiological association.  Dr Hjorth's report had noted the statement by the authors of the Annegers study that if any
association between head trauma and subsequent brain tumour existed, the association was "extremely small" or occurred "only in the presence of other factors, which themselves must be rare".  However, in his evidence in chief, he suggested a mechanism by which non-local trauma might cause a meningioma:

     "Okay. How likely do you say is the connection between those two things? --- Well, I - all of the - I mean, the reason why the local trauma is picked out is that it - because the arguments are so compelling in terms of space and anatomy, but the same kind of damage occurs in general trauma as occurs in local trauma. For instance, you get tearing of the dura and if you get - if local tearing of the dura from a penetrating injury or a depressed skull fracture can cause a meningioma, then it seems to me probable that tearing of the dura from a general head injury could cause it and the processes, you know, one can only speculate about what the kind of healing processes following trauma are that would go awry and produce a meningioma instead of producing a scar, or producing a meningioma in the scar, but presumably those same processes would also apply to closed generalised head injury.

     All right. Would you describe the relationship between generalised trauma and the development of meningioma as - how would you describe the theory of a connection between both of those? --- Well, I mean, it is in the nature of a hypothesis. It is not a proven or established theory and it is just that the pathological processes with some closed generalised head injuries must be very similar to the pathological processes with some penetrating or local injuries and so it seems likely that the same processes would occur.

     You would put it as a likelihood? --- Yes." (T 33 - underlining supplied)

Later in his evidence in chief, Dr Hjorth said:

     "... this is not the case of a local fracture with a meningioma growing in the thing. But it is a question of whether you believe that the same process of damage and recovery occurs with a general - with a closed head injury in which case it would occur at various sites, not just immediately below the point of contact. And if you do believe that then I think it is reasonable to think that the process of repair and recovery would go astray in the same way as it occasionally does with local trauma." (T 34)

In response to a question in cross-examination, Dr Hjorth made certain concessions and also elaborated on the mechanism by which a meningioma may develop out of a severe trauma:

     "What is the mechanism by which meningioma develops out of a severe trauma?---Well, I think that it is a matter of speculation, but the cells that form meningiomas are the same cells that form the linings of the brain and the - I think one would just have to postulate that in some way the - if you cut those linings then the cells multiply to - if it is possible to join the linings, to fuse them at the point of the cut.  Now, orderly cell organisation requires that they multiply rapidly and then stop multiplying, but of course a tumour consists of the failure to stop multiplying, so, I guess that - there are a lot of analogies elsewhere in the body where you can say that a process that causes stimulation and multiplication of cells occasionally goes awry and causes the growth of a tumour.  But that is very much a matter of speculation." (T 36)

     "Is it possible to say then that, I guess the scientific process involves postulating a hypothesis and comparing it to a null hypothesis which is a hypothesis postulating no change and in every [sic] that has been done at this stage, including the Annegers study, the null hypothesis has been the one that has been prevailed; is that fair to say? --- Yes, yes, that’s correct.

     So it is a little difficult to see where the scientific support for this particular hypothesis comes from, is it not? --- Well, it comes from - it comes in part from the humility that derived from the fact that epidemiological surveys have often failed to show relationships that ultimately have emerged as existing.

     But would it be fair to say that these epidemiological surveys and the scientific research done so far is the best evidence - best evidence available on the state of hypothesis? --- Yes.

     You stated earlier in your evidence that you have only actually come across one meningioma that was caused, or could have been caused by trauma; is that correct? --- Yes." (T 39)

At the end of his cross-examination, while acknowledging that the Annegers study showed no statistically significant association between trauma and meningioma, Dr Hjorth said that he remained of the view which he had advanced.  He was not cross-examined on his evidence as to the possible biological connection between Mr Jenkins' head injury and his meningioma.

As the learned trial Judge observed, Mr Fabinyi had said in his letter dated 3 December 1992 to Mr Jenkins that while most people now consider that meningiomas are not due to head injury, "there is really no scientific evidence one way or the other".  Mr Fabinyi's letter also said:

     "I personally have not found a definite association between head injury and tumours of this nature, but this does not necessarily mean I am correct.  The other point is that if you were to postulate the trauma had caused your particular meningioma, you would have had to show that you had an injury to the base of the skull on the left side."

Mr Fabinyi's conclusion in his report dated 30 March 1993 was:

     "At the present time there is insufficient evidence to say whether or not trauma is a long term risk factor for the development of meningioma."

Professor Fox, in his report dated 2 September 1994, observed that the site of the tumour (at the base of the skull on the left side) bore no relationship to the site (on his forehead) of the putative injury which Mr Jenkins had suffered some 44 years earlier.  He expressed the opinion that it was not possible to speculate reasonably that the trauma was linked to the development of the meningioma at such a different site.  He also said that in the light of this, the hypothesis of a connection was "fanciful, impossible and not tenable", and that it was "not a rational hypothesis" and was "not scientifically based".  His report concluded with his statement that he believed that the trauma to a site different from that at which the meningioma later developed disproved the hypothesis beyond reasonable doubt.  In his oral evidence he appears (although this is not clear) to dispute the existence of the biological mechanism postulated by Dr Hjorth.

Does a consideration of this material lead to the result that, as a matter of law, the only conclusion open to the AAT was that the hypothesis was "reasonable"?  While recognising that the case is a somewhat borderline one, we are satisfied, in light of the principles established by Bushell and Byrnes, that it does.

Although Professor Fox's strictures on Dr Hjorth's hypothesis, quoted above, might, at first sight, appear to raise issues of fact for determination by the AAT, closer examination reveals that they do not.  Uncontestably Dr Hjorth's evidence raises an hypothesis of causal connection between Mr Jenkins' war service and his meningioma.  It is an hypothesis "put forward by a medical practitioner who is eminent in the relevant field of knowledge".  It is, therefore, in the category of hypotheses where it would be "rare" that it could be said to be unreasonable.  We might add that in his report Dr Hjorth referred to the Annegers study and acknowledged that his hypothesis of a connection was "unproven". 

Although regard must be paid to opposing medical and scientific material, it is still necessary that that material elevate the dispute beyond the level of mere conflict between medical opinions in relation to a hypothesis which "may still be reasonable although it is unproved and opposed to the weight of medical opinion".  The countervailing material must be capable of establishing that Dr Hjorth's hypothesis is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous".  The evidence of Professor Fox, in our opinion, does not meet this test. 

In the final analysis, Dr Hjorth postulates a connection between injury and meningioma based on a theory that trauma to the skull can cause the development of a tumour at a site in the meninges not directly below the site of the trauma.  He gives reasons of a biological nature for this.  Professor Fox asserts that the absence of coincidence of the two sites precludes the connection.  He appears (perhaps) to dispute Dr Hjorth's reasons.  In our view, nothing more appears from all the material that was before the AAT than a conflict between two medical opinions.  The AAT was required "to choose between competing hypotheses or to determine whether one medical or scientific opinion [was] to be preferred to another". 

In these circumstances, we are satisfied that the material points only to the conclusion that the hypothesis relied on was "reasonable".  Sub-section 120(3) was necessarily satisfied.  The question whether the evidence permitted only the conclusion that there was a reasonable hypothesis is a question of law: Collector of Customs v Pressure Tanks Pty Ltd (1993) 115 ALR 1, 8.  The determination of this question of law attracted the jurisdiction of the Court to determine the appeal from the AAT under s 44(1) of the Administrative Appeals Tribunal Act 1975.

As there was not contest between the parties based on sub-s 120(1), the orders made by Heerey J were correct and should be confirmed.

CONCLUSION

The appeal will be dismissed with costs.

              I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment of the Court.

              Associate:

              Dated:             26 March 1997

Heard:        3 March 1997

Place:        Melbourne

Decision:     26 March 1997

Appearances:  Mr P J Hanks of counsel instructed by the Australian Government Solicitor appeared for the appellant.

              Mr M J Croyle of counsel instructed by Williams Winter and Higgs appeared for the respondent.