FEDERAL COURT OF AUSTRALIA

Whitworth v Repatriation Commission [2003] FCA 1530

ALICE WHITWORTH  v  REPATRIATION COMMISSION

V 743 of 2002

RYAN J

19 DECEMBER 2003

MELBOURNE

On appeal from the decision of the Administrative Appeals Tribunal

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs, to be taxed in default of agreement.

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

On appeal from the decision of the Administrative Appeals Tribunal

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) delivered on 26 September 2002 by Senior Member Mr J Handley.  The Senior Member summarised the background to the case and the evidence of the applicant at paragraphs [1]-[12] of his reasons for decision, as follows:

‘1.        The applicant applies to review a decision of the Veterans’ Review Board (“VRB”) made on 11 May 2001.  The VRB then decided to affirm a decision previously made by the respondent on 6 May 1999 which refused a claim made by the late Ronald Albert Whitworth for medical treatment and pension for incapacity by reason of the condition, multiple myeloma. 

2.         The late Mr Whitworth died on 1 March 1999 aged 73 years.  Death was certified as “pneumonia-two days: pancytopenia-months; multiple myeloma-months”. 

3.         In a Statement of Facts and Contentions lodged prior to the commencement of the hearing, the solicitors for the applicant submitted that pancytopenia was “one of the causes and a contributing factor of death”.  It was submitted that a reasonable hypothesis existed between the exposure of the deceased to benzene in service and pancytopenia.  It was also submitted that a Statement of Principles did not exist with respect to this condition and the claim was to be determined upon the beneficial standard of proof namely, reasonable hypothesis.  The respondent submitted that death was by multiple myeloma for which Instrument No 72 of 1999 applied.  It was submitted that there were no factors within paragraph 5 of that Instrument which could establish a reasonable hypotheses connecting death with service. 

4.         The hearing commenced in Mildura on 25 June 2002 and resumed in Melbourne on 11 July 2002.  In Mildura, evidence was heard only from Mrs Whitworth.  Mrs Black appeared on behalf of Mrs Whitworth and Mr Douglas appeared on behalf of the respondent. 

Alice Whitworth

5.         Mrs Whitworth is the widow of the late Ronald Whitworth.  Mrs Whitworth said that she met her husband in Mildura in 1943, became engaged to him in 1948 and married in 1949.  She said that her husband served in Borneo, Moroati and Labuan.  Later she said he volunteered to serve in Japan.  At all relevant times Mr Whitworth was an aircraft mechanic. 

6.         Mrs Whitworth said that her husband described his job as having to repair aeroplanes and by reason of the absence of adequate parts and supplies, planes were frequently stripped and rebuilt which involved extensive washing of metal parts in petroleum.  Additionally she said that her husband had told her that his overalls were washed in petroleum and he would frequently wash his hands with the same substance.  She recalled that he had skin rashes after he returned from service for the remainder of his life.  Initially she said that her husband suffered from boils and carbuncles and he was also “poisoned”.  She said that he bathed with special soaps and she used special detergents when washing his clothes. 

7.         In cross-examination Mrs Whitworth said that her husband was an aircraft mechanic and fitter, although when pressed by Mr Douglas, Mrs Whitworth said that she had assumed that he was a fitter.  Apparently the service records indicate that he was an aircraft mechanic only. 

8.         The applicant said that she and her husband frequently talked about his experiences in service and he had often told her that he washed aircraft parts with petrol and/or aircraft fuel in addition to washing his overalls in it. 

9.         The applicant said that she did not speak of the use of petrol as a washing agent during service when she attended at the VRB because she was not ever asked about it.  Additionally she said that she did not ever prepare a statement or proof of evidence because the VRB had never asked for such a document.  She acknowledged that Dr Woolfe had provided a medical report at the request of Legacy, however she had not ever been interviewed by him. 

10.       With respect to the cause of death, Mrs Whitworth was taken to the medical reports of Dr Marrows which were obtained by the respondent and lodged with the Tribunal.  At page 18 of his files there is a report from Dr Dowty, dated 18 September 1998.  Dr Dowty is described in the report as a “consultant physician”. 

11.       Mrs Whitworth said that Dr Dowty was treating her husband and she agreed with the diagnosis made by him in her husband’s lifetime of “myeloma”.  (In the second paragraph of that report, Dr Dowty - the report is addressed to Dr Marrows - records in part “...  it is likely that his problem is multiple myeloma”). 

12.       The hearing resumed on Melbourne on 11 July.  Mr De Marchi appeared then with Mrs Black.  Dr Bryon Collins, a forensic pathologist was called.  Additionally, two witnesses gave evidence with respect to aviation fuel being used as a detergent.’

2                     The Tribunal expressed its conclusions on matters of fact and law at [66]-[86];

‘66.      The deceased died from causes certified as “pneumonia - 2 days; pancytopenia - months, multiple myeloma - months.”

67.       The applicant’s representatives did not advance a connection between death from multiple myeloma and service because that hypothesis clearly did not meet any of the applicable factors in Statement of Principle No.  72 of 1999.  The factors within that Instrument which must exist as a minimum before a reasonable hypothesis could be raised connecting death from multiple myeloma and service are being within 4 kilometres of the epicentre of the atomic explosions in Japan, being occupationally required to work as a painter, spraying or decanting herbicide 2,4-D or 2,4,5-T, being on land in Vietnam or at sea in Vietnamese waters for at least 30 days and then for at least 5 years before the clinical onset of multiple myeloma or the inability to obtain appropriate clinical management for it.  It is clear from the material raised by these proceedings that none of the above factors could be satisfied by Mrs Whitworth and it follows that even if this had been raised as a hypothesis, it would not be “reasonable” because it would not be consistent with the “template” as found within the Statement of Principle (refer Repatriation Commission v Deledio 1998 49 ALD 193 at 206). 

68.       Statements of Principle have not been issued by the Repatriation Medical Authority with respect to the remaining two certified causes of death namely pneumonia and pancytopenia.  Accordingly, the reasonableness of any hypothesis connecting death from these conditions with service is to be determined by the well known principles advanced in East v Repatriation Commission 1987 74 ALR 518, Bushell v Repatriation Commission (1992) 109 ALR 30, Byrnes v Repatriation Commission (1993) 116 ALR 210. 

69.       The condition of pneumonia was not raised by the applicant prior to the commencement of the hearing as a reasonable hypothesis between service and death.  It was first raised during the proceedings.  It arose from the evidence of Mr Stacy who said that during service in Japan persons who attended sick parade frequently did so because of colds and rashes.  In addition to this evidence, Dr Collins said that the pneumonia suffered by the deceased could have been caused by his inability to resist infections because of alterations to his blood cells.  Dr Collins said further that pneumonia was not uncommon in the case of persons who suffer pancytopenia, however death would have been hastened only if the pneumonia was severe.  Professor Fox said that he regarded it as being speculative that the deceased suffered from a chest infection in Japan which had an association with exposure to high octane fuel. 

70.       In East v Repatriation Commission the Federal Court examined the words “hypothesis” and “reasonable”. 

71.       In its discussion of the word “reasonable” the Court concluded (page 533-534)-

“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”.  (refer Re Dell & Repatriation Commission 1986 9 ALD 596 at 615). 

72.       At 534 the Court concluded-

“A reasonable hypothesis requires more than a possibility not fanciful or

unreal consistent with the known fact.  It is an hypothesis pointed to by the facts even though not proved upon the balance of probabilities”. 

73.       In the present application the hypothesis between service and death from pneumonia had a two fold basis.  Firstly it was put that because there was a high incidence of presentation at sick parades in Japan from persons with colds and that was the precursor to the deceased suffering a chest infection giving rise to pneumonia.  There is no material at all of the deceased attending a sick parade in Japan or anywhere else with the condition of a “cold” or any other illness or injury.  This basis for the hypothesis is obviously fanciful and is obviously unreal.  Nothing points to it and it has no credibility nor is it tenable.  It is a hypothesis which is therefore unreasonable. 

74.       The other basis for the suggested hypothesis between service and pneumonia was that death was hastened by pneumonia which had its basis in the deceased’s inability to resist infection by reason of alteration to his blood cells which had its genesis in the pancytopenia.  For reasons which will follow later, I am not satisfied that any reasonable hypothesis exists connecting service with death from pancytopenia and it therefore follows that this part of the hypothesis must also be regarded as not being reasonable. 

75.       Insofar as s.8 of the Veterans Entitlements Act 1986 is concerned, I am unable to find that death by pneumonia was hastened by the accelerated progress of the disease of pancytopenia because I am not satisfied that pancytopenia is a war-caused condition.  It follows that the deceased’s death from pneumonia can not be attributable to his service (refer Doolette v Repatriation Commission (1990) 21 ALD 489 at 492). 

76.       With respect to the hypothesis between death from pancytopenia and service, the connecting link was said to be exposure to benzene.  The association between pancytopenia and benzene as advanced in this application is curious.  Mr Whitworth in his lifetime claimed an association between multiple myeloma and service by his exposure to atomic radiation being located in the epicentre in Japan (page 48 T-documents).  He did not claim for pancytopenia and makes no reference to benzene. 

77.       Mrs Whitworth in her claim, suggested that the connection between service and death was “smoking”, “drinking”, “malnutrition”, “skin complaints” and “refuelling aircraft” associated with service in Japan (pages 108 & 109).  She did not refer to exposure to “benzene”.  She did not refer to or use the word “benzene” in her evidence in Mildura. 

78.       Mr Thorpe did not refer to “benzene” in his letter which was received into evidence and Mr Noyce did not refer to “benzene” at all in his evidence or in his proof of evidence lodged prior to the hearing.  Mr Stacy referred to the substance “benzine” in his proof of evidence and said when giving evidence that he used that word because he observed it (with that spelling) on the side of fuel tankers describing the content as being 100 octane.  Mr Piper said that benzene was not added to fuel during war-time.  He said that his research had indicated that octane levels were raised by addition of a substance known as Tetraethylead as opposed to benzene.  Additionally, he said that he had located a report “Inland Aircraft Fuel Depots” in Australia where no reference at all was made to benzene or benzol, being used by the RAAF as an additive to war-time fuels. 

79.       At the Veterans Review Board, the hypothesis advanced on behalf of Mrs Whitworth by her advocate was that an association existed between benzene exposure and death from multiple myeloma, thereby constituting a reasonable hypothesis.  The foundation for the hypothesis was the occupational exposure to paint.  The advocate conceded that the veteran was not a painter but advanced the proposition that paint contained benzene and it could be inferred that the Statement of Principle was drafted on the basis that benzene is a carcinogen which in the circumstances of this application would have given rise to multiple myeloma.  An alternative hypothesis advanced was death from pancytopenia which had its basis in benzene exposure.  (p.5 VRB reasons). 

80.       The veteran’s solicitor prior to the hearing lodged a Statement of Facts and contentions purporting to advance a hypothesis of death from pancytopenia by benzene exposure.  The contentions recorded in the Statement are a verbatim (unattributed) quotation from a publication of the United States Department of Health and Human Services (Toxic Substances and Disease Registry agency), working paper CAS71-43-2 which was submitted in evidence at the hearing. 

81.       On balance therefore the only material before the Tribunal concerning exposure to benzene is the Statement of Facts and Contentions and the evidence of Mr Stacy.  But this assumes also that the substance “benzine” that he said was labelled on the drum of a fuel storage container, is the same substance as “benzene”.  On the balance of probabilities I would have little difficulty finding as a fact that the deceased was not exposed to benzene.  A combination of the absence of evidence from the deceased (in his lifetime) his widow, his former colleagues, and the evidence of Mr Piper suggests that the deceased was not exposed to benzene at all.  However it appears that from time to time Australian servicemen had access to fuel having its origin in the United States and it is conceivable that the storage facility observed by Mr Stacy and labelled benzine was fuel of United States origin.  I am satisfied that the deceased and others did wash tools and aircraft parts and their hands and their overalls in a substance variously described as either petrol or aircraft fuel and on the basis of the evidence of Mr Stacy - and because the case need not be established on the balance of probabilities - I am bound to find that there was benzene exposure, because there is material which points to it. 

82.       The case for Mrs Whitworth was advanced largely by the evidence of Dr Collins who variously supported the hypothesis either of benzene contributing to pancytopenia and/or pancytopenia existing at a “sub-clinical” level in turn infiltrating bone marrow.  The hypothesis advanced by Dr Collins also assumes that death was from pancytopenia (which I will return to later). 

83.       Professor Fox was critical of the hypothesis advanced by Dr Collins referring to it as “contrived”.  He said there was nothing which pointed to benzene exposure giving rise to pancytopenia more than 50 years later, dismissed the suggestion of pancytopenia existing in a “sub clinical level” and said that on the basis of clinical records made available to him, pancytopenia had not ever been found on routine blood testing for many years prior to the diagnosis of multiple myeloma. 

84.       It is not the role of the Tribunal to be the arbiter or referee between medical witnesses who offer differing medical opinions.  The Tribunal is obliged to find that a hypothesis may be reasonable even if it is unproved or “opposed to the weight of informed opinion”, nonetheless the Tribunal is obliged to examine “the validity of the reasoning” which is said to support the hypothesis advanced.  (refer Bushell v Repatriation Commission) 1992 109 ALR 30. 

85.       Even assuming that there was exposure by the deceased to benzene there is no material which (i) points to benzene contributing to pancytopenia 50 years after exposure which (ii) existed at a “sub-clinical” state or in any other form, independently of multiple myeloma, and which in turn was (iii) responsible for death.  Had pancytopenia existed sub-clinically, it would have been evident from routine blood testing.  There is no material that it was evident or detected at all until multiple myeloma was diagnosed.  Dr Collins and Professor Fox were in heated agreement that pancytopenia is a well known complication of multiple myeloma and its presence is explained by the presence of multiple myeloma.  On the material, I am satisfied that it can only be explained by reason of multiple myeloma for which the Statement of Principle cannot be satisfied. 

86.       Having regard to the above I am unable to find from the material that there is any support for the hypothesis advanced by the applicant which has some degree of “acceptability or credibility” permitting a finding that the hypothesis advanced has been raised by the material is reasonable (refer Repatriation Commission v Whetton (1991) 24 ALD 33; East).  Mrs Whitworth of course has no onus, however because I am of the opinion that the material before this Tribunal does not raise a reasonable hypothesis connecting death with the circumstances of service, I am obliged in those circumstances to find that the decision under review should be affirmed.’

3                     The applicant appeals from the findings in relation to pneumonia and pancytopenia.  The applicant submits that the Tribunal failed properly to apply s 8, as well as ss 119, 120(1) and 120(3) of the Veterans Entitlements Act 1986 (Cth) (“the Act”).  It is agreed between the parties that there is not a relevant statement of principles in force in respect of the conditions of pneumonia and pancytopenia and the applicant’s claim falls to be determined according to the principles, correctly identified by the Tribunal, as expounded in East v Repatriation Commission (1987) 16 FCR 517, Bushell v Repatriation Commission (1992) 109 ALR 30 and Byrnes v Repatriation Commission (1993) 177 CLR 564.

4                     The relevant requirements of the Act may be stated shortly.  A veteran’s surviving spouse is entitled to compensation for the war-caused death of a veteran.  Under s 8, a veteran’s death is war-caused if, among other possibilities, it has been caused by a disease “contracted while the veteran was rendering eligible war service” and that disease “was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran”.  Section 120 provides that “the Commission shall determine … that the disease was a war-caused disease or that the death of the veteran was war-caused … unless it is satisfied [otherwise], beyond reasonable doubt”.  The Commission must be so satisfied where “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”.  It is not in dispute that, if the reasonable hypothesis is raised, the veteran’s death was war-caused within the meaning of s 8; and that if no reasonable hypothesis is raised the veteran’s death was not war-caused.

5                     The applicant’s first complaint is directed to the Tribunal’s findings in respect of pneumonia.  The only material on which the applicant can rely as pointing to the hypothesis that the veteran’s pneumonia was war-caused is the evidence of Mr Stacy that, during service in Japan, servicemen frequently presented at sick parades with colds.  There is absolutely nothing to connect this fact with the veteran.  Had he presented often at sick parades complaining of respiratory ailments there might have been some material pointing to an hypothesis that, as a consequence of his war-service, he was left peculiarly susceptible to pneumonia.  That is not an issue I need consider, as there is no such material.  The only possible hypothesis the applicant can advance is that the pneumonia was the result of the underlying pancytopenia.  It follows the pneumonia claim stands or falls upon whether there is a reasonable hypothesis that the veteran’s pancytopenia was war-caused.

6                     The applicant’s case on pancytopenia is that there is a reasonable hypothesis linking the applicant’s exposure during war-service to “benzine” (or “benzene”), as found by the Tribunal at [81] of its reasons, to the development of pancytopenia 50 years after exposure.  Mr de Marchi for the applicant criticised the Tribunal for, variously, choosing between the expert evidence of Dr Collins and Dr Fox (which in terms, it did not, at [84]); rejecting the hypothesis as unreasonable simply because it was advanced by Dr Collins and not Dr Fox; for scrutinising the reasoning of Dr Collins’ hypothesis against the background of Dr Fox’s evidence rather than looking for material pointing to that hypothesis; for failing to acknowledge that the chain of reasoning in a reasonable hypothesis may involve suppositions; and for failing to treat Dr Collins’ evidence as material raising a reasonable hypothesis.

7                     The starting point for identifying any error of law on the part of the Tribunal remains Bushell v Repatriation Commission (1992) 175 CLR 408 where Mason CJ, Deane and McHugh JJ observed at 414-5 (footnotes omitted, emphasis added);

‘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(3), 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 The Commissioner for Government Transport v.  Adamcik, 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:

“The most that could be urged against Doctor 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”.  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) 74 ALR 518, at p 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 or 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.’

8                     While an hypothesis may yet be reasonable though scientifically unproven, the High Court’s discussion clearly proceeds on the basis that the hypothesis is founded on facts pointed to by the material.  That requirement is inescapable.  Even in a case where a scientifically unproven hypothesis is put forward by a relevantly qualified witness, the Commission and the Tribunal must, in such a case, still scrutinise that theory in light of the other available medical evidence and consider “the validity of the reasoning” supporting it.  True it is that there need not be, necessarily, material pointing to every step in the process of reasoning by which the hypothesis connects war-service with the development of a disease.  In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-70 the High Court said;

‘The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis.  When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.  …

In some cases, the hypothesis may assume the occurrence or existence of a “fact”.  That itself does not make the hypothesis unreasonable.  So, in the present case, the 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.’

9                     However, none of these statements detracts from the principle that an hypothesis cannot rise to the level of being a “reasonable hypothesis” if it does not satisfy the requirement that it be raised by the material.  The appropriate test has been set out in East v Repatriation Commission (1987) 16 FCR 517 at 532-3, where this Court adopted what was said in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255 (emphasis added);

‘The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis.  Inthe 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.’

The Full Court concluded;

‘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.’

10                  As Emmett and Allsop JJ observed in Bull v Repatriation Commission (2001) 188 ALR 756 at 761 [18]-[24] (emphasis added);

‘[18]   It is important to understand the following about East.  The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous.  However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable.  The material must point to the connecting hypothesis … …

[19]    … … it should be borne in mind that the hypothesis to be raised by the material must be one connecting the disease or injury or death with the circumstances of service.  Secondly, the phrases used by the Court such as ‘not obviously fanciful’, ‘not impossible’, ‘not incredible’, ‘tenable’, ‘not too remote’ and ‘not too tenuous’ are useful elucidators of the meaning of ‘reasonable’.  This is especially so given the subtle range of meaning of the words and phrase ‘reasonable’, ‘unreasonable’ and ‘not unreasonable’.  Much depends on context and purpose.  However, the words of elucidation should not be substituted for the words of the statute: see generally the comments of the Full Court in National Mutual v Campbell (2000) 99 FCR 562 at 571, [36].  What is required of the decision-maker by subs 120(3) is the formation of an opinion that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service.

… …

[21]    There is no doubt that the Tribunal is obliged to look at all the material, not just some of it.  It is not entitled at this point to find facts or reject matters.  See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

[22]    The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it.  It involves reaching an opinion about a factual matter.  It is, in that sense, a question of fact:  Bey [(1997) 79 FCA 364], supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904.  Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material.  The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented.

[23]    If the Tribunal examined all the material and if the Tribunal followed the correct approach to its task under subs 120(3) as enunciated in East, any error will be one of fact, unless the opinion was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted or unless the opinion was one which was not capable of being reasonably formed…

[24]    Put another way, the opinion is to be honestly held and not reached capriciously or arbitrarily and it must not be irrational:  Boucaut Bay [(1927) 40 CLR 98],  R v Connell [(1944) 69 CLR 407] at 432, FCT v Bayly (1952) 86 CLR 506, 510;  Buck v Bavone [(1976) 135 CLR 110] at 118-9.’

On the basis of these authorities, the principles to be appliedin assessing an hypothesis put to the Commission or Tribunal can be summarised as follows:

·                the hypothesis must not be fanciful, unreal or inconsistent with the known facts;

·                crucially the material must point to, and not only leave open, an hypothesis; and

·                an  hypothesis asserting a connection between a veteran’s death and war service may still be reasonable, although theoretical in the sense of postulating a chain of reasoning that medical science is unable to confirm, but unable to describe as unreasonable – provided that the material does in fact point to it.

11                  It may well be that, in the course of a hearing, an hypothesis is put forward by a witness which is not impossible or fanciful and yet the hypothesis itself will not be a reasonable one.  It will remain a mere, and not a reasonable, hypothesis if there is no material pointing to it beyond the hypothesis itself; see Bull at 761 [18], as quoted above.  There is a crucial difference between material that raises an hypothesis, and an abstract hypothesis raised by a witness which cannot be ruled in or excluded on the basis of what the High Court in Bushell called the raised facts.  In the former case, material may both raise an hypothesis and point to it with the result that a reasonable hypothesis could be made out; in the latter case the hypothesis will merely have been put before the Tribunal which, without more, will not be able to find it to be reasonable.

12                  As to the hypothesis of death from pancytopenia by benzene exposure, Counsel for the applicant claims that insufficient weight or consideration was given by the Tribunal to the “corroborating” evidence of the applicant widow or that of other servicemen who had been exposed to aircraft fuel.  That evidence could only be relevant to whether the veteran had been exposed to the fuel and any benzene it contained.  The Tribunal found that the applicant had been exposed to benzene.  The material referred to by the applicant in no way points to any adverse consequences of that exposure for the health of this veteran.  The only evidence tending to link that exposure to the veteran’s death is that of Dr Collins, a consultant forensic pathologist, with over twenty years experience.

13                  It becomes necessary at this point to reproduce at some length Dr Collins’ evidence as recorded in the transcript of the hearing before the Tribunal (emphasis added):

MR DE MARCHI:        … [Dr Fox] seems to think that you are saying that there was no connection between the pancytopenia and the multiple myeloma?--- Yes. 

Is that what you are saying in your report?---No, what I am saying is that there is a - in my view, a real possibility that part of the condition of pancytopenia was caused by the exposure to benzene.  I am not saying, as it appear that Professor Fox has interpreted my report, that it was - that is the benzene exposure was the total cause of the pancytopenia. 

Right.  And can you explain to the Tribunal what pancytopenia means?--- Yes, it means literally the decrease of all the cellular elements within the blood and these cellular elements are manufactured in the bone marrow and these cellular elements consist of red blood cells or the erythrocytes and their main function is to carry oxygen to various organs of the body.  The white blood cells, of which there are a number of sub-populations but their, I suppose, in general main function is to fight infection and the platelets are involved in the cloning mechanism.  Now, in pancytopenia, that I suppose in broad terms, simply means a decrease in all these elements but the decrease may be different in each of those elements.  It doesn’t necessarily mean to say that they are all totally absent or totally decreased to the same amount. 

And are there perhaps various stages or degrees of manifestation of the condition?---Yes, there may be.  It depends, I suppose, very much on which one of those cellular elements is perhaps damaged or compromised in its production the most.  So if, for example, somebody has relatively normal platelets and relatively normal white cells but has a decrease in their red cells, then their main symptom will be in relation to anaemia. 

Ye? (sic) --- On the other hand, if the white blood cells show significant decrease then there may be an increased tendency to infections.  On the other hand, if the platelets are decreased, then the prominent symptom will be in relation to bruising and haemorrhaging.  If they are all decreased to a significant degree then a person may present with a constellation of all the clinical signs and symptoms relating to decrease in all those three cells so I suppose in summary one can say that there is a wide spectrum of clinical presentation in people who are suffering pancytopenia and in some people it may be relatively mild, a set of symptoms which are difficult to diagnose and none-specific or to quite catastrophic as a reflection of a decrease in all of those elements. 

Now, did you read Professor Fox’s reports in terms of the studies that had been carried out that examined the exposure to benzene and multiple myeloma and the consequences of multiple myeloma?--- Yes, I did, although this - what we are looking at is the relationship between benzene and pancytopenia which is difficult (sic) from multiple myeloma. 

What is your understanding about the cause and effect of the exposure to benzene and pancytopenia?--- I don’t think there is any doubt that there is a cause and effect relationship between exposure to benzene and the development of pancytopenia and in fact Professor Fox also agrees with that at paragraph 3 of his report dated 24 June.  It is a well accepted causal relationship. 

Yes?---And it has been said that any exposure to benzene can be dangerous. 

In terms of the contents of the aviation fuel and benzene, are you aware of the component of the aviation fuel?---Only in very broad terms.  I understand that it may be an additive to aviation fuel but I can’t tell you the concentrations. 

…

And, in your opinion, do you believe that there is a reasonable connection between the exposure that this veteran might have had during the Second World War and is subsequent development of this condition?--- Well, I think that that is all that one can say, [is] that is a reasonable possibility.  It is an alternative explanation for some of the pancytopenia possibly that is present and that is as far as one can go. 

In terms of the connection between the benzene exposure and pancytopenia, there is no - you are quite clear that there is a connection in that regard?---Yes, that is so. 

Right, well, thank you, Doctor.

MR HANDLEY:            Mr Douglas. 

CROSS-EXAMINATION BY MR DOUGLAS …

MR DOUGLAS: Now, Dr Collins, … it is your view that the underlying basic pathological condition in this case is multiple myeloma?---Well, that is the principal disease process, yes. 

And that had been present for considerably longer than two months? ---One would have thought so.  I think what has happened here is a common practice, that the period of time that these disease conditions are said to be present date from the time of diagnosis. 

Are you are aware of what the prognosis is likely to have been for a diagnosed case of multiple myeloma like this one? --- Yes, in somebody who has this degree of severity of the disease, where he had bone deposits and pancytopenia, it is counted in the number of few years rather than many years and I think that that is not an unreasonable comment. 

Now, you described the mechanism by which multiple myeloma operates or is characterised by in paragraph 3 and you mentioned that:

multiple myeloma results in destruction of bone and replacement of normal bone marrow resulting in anaemia, leukopenia and thrombocytopenia. 

I take it this is pancytopenia?--- Yes. 

All right.  And it is a typical result of multiple myeloma? --- Yes, there is no doubt that it is a common complication of myeloma. 

Given the way that myeloma operates, is it almost an inevitable consequence of myeloma?--- Yes, I suppose it is, if the treatment is unsuccessful. 

Was the treatment is this case successful?--- Well, he has died. 

Was there any reduction in the degree of pancytopenia resulting from his treatment in this case?--- I can’t tell you that without looking at the series of blood films but I doubt that there was any significant alteration in the course of this disease. 

Now, when you describe the relationship between benzene and pancytopenia as - in terms that there is no doubt about a relationship between the two, what is the biological mechanism by which benzene exposure causes pancytopenia?--- Well, I think one needs to look at where it acts and it acts in the bone marrow which is the area which produces all - the three basic constituents of the blood that I have discussed previously.  Benzene is known to alter or inhibit RNA and DNA synthesis by the marrow cells from experimental work and it can produce chromosomal abnormalities.  It is not quite certain as to where it has its major effect by it would appear that it has an affect on the maturation of the various cell lines which are all derived from what is fairly topical at the moment and that is the primitive stem cell.  Just to give you a very general outline of how the blood cells are produced, they all derive an initial basic undifferentiated primitive stem cell and then from various mechanisms the three separate lines then develop and along that developmental or production process, benzene acts to a greater or less degree or may act to a greater or lesser degree. 

As far as you are aware, over what sort of time frame does benzene exposure produce these haematological abnormalities?--- Well, it may - obviously it depends on the degree of exposure to this substance but it may act very rapidly; within weeks.  It may take a number of years to be produced over - during which time an individual is chronically exposed to low doses of benzene or it may occur many years after the benzene exposure has ceased because, as I said before, there is an error that has been caused by the benzene in the RNA and the DNA, in other words, the templates which make the various stem cells which may not become obvious until many years later so all I can say to you is that there are a number of time courses which are possible after benzene exposure. 

Would you anticipate to find such a connection where pancytopenia develops 50 years after exposure?--- Certainly a long time, I would agree with you.  I don’t think it can be excluded because of the way the benzene acts, as I said.  Obviously if it had been a significant and severe compromisation of the production of the stem cells during this time, then this man would have presented with significant clinical signs and symptoms. 

Well, Hunters Diseases of Occupations does deal with haematological effects of benzene exposure.  Perhaps if I could first ask the question: Are you aware of studies that deal with benzene exposure and the development of pancytopenia?--- There are a number of studies that are listed in the various text books, no doubt, in Hunters and in Winthrops, the text book which I use.  I have not accessed them directly. 

…

MR DOUGLAS: Hunters [textbook on diseases] … would suggest a fairly rapid response to - a fairly rapid haematological change as a result of benzene exposure, wouldn’t it?-- As one mechanism, yes, but it is not the only mechanism.  Perhaps if we are quoting from text books, then I should quote to you a paragraph out of another recognised haematological text book which is Winthrops Clinic Haematology, 10th edition, 1999, published by Williams and Wilkins and they state at page 1454:

Great variations are noted in susceptibility to benzene poisoning.  Evidence of poisoning may appear in a few weeks or only after many years of exposure or it may not be discovered until the onset of infection, long after exposure has ceased.  Any degree of exposure is potentially dangerous. 

And I think - you know, look, all that one can say is that whatever text book you read there will be variations on the basic theme that benzene causes haematological abnormalities which may appear to be reversible or may not be reversible. 

Do you have any clinical evidence in this case that Mr Whitworth’s pancytopenia was contributed to by benzene exposure 50 years before, is there anything about his pattern of development of pancytopenia, of disease process in this case?--- I thought you would be asking me that, counsel.  If you look at the last line in Professor Fox’s report, he is really saying what I have to say as well, is that there is no over (sic) clinical evidence when in his last line he says:

Pancytopenia many years prior to the development of multiple myeloma which did not appear to happen. 

Now, he can’t exclude that it did happen or did not happen either and I am obviously on the same difficulty.  The reason that neither he nor I can comment with any specificity is that we don’t have to hand, and there may not be to hand, any appropriate blood films or blood results which tell us of a relative decrease in any of the cellular elements.  Now, I note that this man had a left knee replacement and an operation on his prostate in 1997 and it is possible that blood films were done at that stage but there is no evidence that neither Professor Fox nor I have.  The only indication - I have got the clinical notes of his local doctor.  He has had some recurrent upper respiratory tract chest infections, obviously there is a 101 causes of those so that is a non-specific finding.  Just because there is no significant pre-existing clinical history though doesn’t exclude that he has a relatively minor decrease in the one or some of his cellular elements of his bone marrow which became clinically significant in association with what we all agree with is some of his marrow replacement by myeloma cells. 

Conversely, while such a change in the components of Mr Whitworth’s blood can’t be excluded, I take it there is nothing actually pointing to that change having occurred?--- No, there isn’t but that is an answer that is only based on inadequate information and that must be stressed. 

Now, you were asked about the reasonability of the hypothesis -the hypothesis you put forward connecting service to the independent development of pancytopenia.  I take it that is based on the information that - perhaps we could ask a broader question first.  At what level does that hypothesis, in your view, cease to be reasonable, at what level of exposure?--- Well, we don’t know what his exposure was so all that one can go on is that if this man were exposed over a number of months then it is likely that there is a causal connection.  One cannot go any higher than that.  If he had been exposed to it every day in large quantities then there would - and he’d shown some clinical signs and symptoms then obviously the argument would be much stronger. 

14                  It is apparent from that evidence that Dr Collins could go no further than to express a belief in a “real possibility that part of the condition of pancytopenia was caused by the exposure to benzene”;  that one could only say there was a possible connection with benzene exposure during the veteran’s war-service, which is an “alternative explanation for some of the pancytopenia”; that it is possible that there could be a delay of 50 years in the manifestation of symptoms, but that this would be a “long time”; and that, as there is no clinical evidence supporting or contradicting the theory, it “can’t be excluded”.  That evidence clearly does not satisfy the test in East as refined in Bull.  Merely because a theory cannot be excluded as impossible, fanciful or contrary to the known facts does not entail it is reasonable.  There must be some material pointing to it. 

15                  Mr DeMarchi for the applicant submitted that Dr Collins’ hypothesis had been detailed and well-reasoned and there was material pointing to it being Dr Collins’ own opinion.  Had Dr Collins been an expert “eminent in the relevant field of knowledge” in the Bushell sense, that might have been sufficient.  However, Dr Collins, on his own admission is not a specialist in oncology or diseases of the blood.  Dr Collins further admitted his hypothesis was not founded on any clinical evidence.  It would be a different matter if there had been blood films or other clinical evidence from the period between the veteran’s war service and his death which showed abnormalities consistent with the progress of the disease.  Factual, rather than purely theoretical, material of that kind may point to an hypothesis so as to make it reasonable.  However, a theory that is entirely unsupported by any substantiating fact, and merely provides an explanation connecting a known condition with a known event in the applicant’s history, remains no more than a theory.  On the authority of Byrnes, an hypothesis is not to be rejected simply because it contains an element of supposition: one link, or even more, in a chain of reasoning may be supposed.  However, the entire chain cannot be successfully founded on supposition or assumption.  There must be some positive fact pointing to a link in the chain.  Dr Collins accepted that in this case there was no clinical evidence pointing to the development of the condition and, that his theory provides only “an alternative explanation for some of the pancytopenia possibly that is present and that is as far as one can go” (emphasis added).  Dr Collins evidence was that, in the absence of any clinical information, it cannot be excluded as a possibility.  That is the highest his evidence can be put and it is clearly not sufficient.  Nothing suggests that the onset of the disease of pancytopenia in this veteran occurred during or was otherwise connected with his war service and that the same disease which had been detected “months” before his death was a progression of the hypothesised service-related pancytopenia. 

16                  The Tribunal, in referring to Dr Fox’s evidence, did not, as I apprehend the Senior Member’s reasoning, do so in the course of choosing, or adjudicating, between experts.  The reference was made by way of noting that, if there had been no other possible explanation for the onset of pancytopenia, then Dr Collin’s theory might have been strengthened.  However, Dr Fox’s opinion was that the veteran’s pancytopenia was a sequel to his multiple myeloma, and Dr Collins accepted that pancytopenia was an almost inevitable consequence of multiple myeloma.  The reference to Dr Fox’s differing explanation of the origin of the pancytopenia was not, it seems to me, introduced as part of a mistaken process of evaluating the material “on balance”.  Rather, it was indicated as reinforcing the correctness of the conclusion that there is no material pointing to the hypothesis; such material as there was pointed away from it to another hypothesis.  In a situation where the only clinical evidence points away from a hypothesis, it is self-evidently not a reasonable one.  The Tribunal was correct, for the reasons given below, in having regard to Dr Fox’s material in assessing the validity of the reasoning which supported the hypothesis propounded by the applicant.

17                  On the clear authority of Bushell, the Tribunal when confronted with an unproven medical theory must set about “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” and in this exercise is entitled to take into account competing medical evidence adverse to the applicant’s claim.  That is clearly what the Tribunal did.  This case is not analogous to The Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 where there was some body of previously accepted knowledge, which had later been regarded as mere speculation, to which an expert could advert.  That prior body of knowledge was at least capable of constituting material pointing to the hypothesis.  Statements in Adamick and Bushell concerned with evaluating unproven theories against the body of medical opinion cannot be read as dispensing with the need for material pointing to the hypothesis advanced.  Further, this case is clearly analogous to East, where it was held that it was incorrect to say that where the aetiology of a disease was unknown there must be a real possibility of its being connected with war service, and that the claim should therefore be allowed.  A Full Court of this Court said in East at 533-4;

‘The second submission put on behalf of the applicant in connection with s 120 is that the Tribunal was wrong to reject Dr Hainsworth’s evidence because he omitted to give any quantitative evidence of the factors to which he referred.  The argument is that it can never be right to reject an hypothesis that factor A caused the veteran’s condition B because of an absence of evidence as to the quantity or intensity of A experienced by the veteran. 

Given the findings of the Tribunal, it is not clear that the correctness of this contention would affect the outcome of the present case.  But, in any event, the contention goes too far.  The necessity for quantitative evidence in a particular case must depend upon the nature of the hypothesis being expounded.  For example, if a Tribunal accepts medical evidence that condition B may be caused by any degree of 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 need for “particular” evidence

After pointing out the absence of evidence as to the dietary deficiencies assumed by Dr Hainsworth, the Tribunal commented that the applicant’s case on that matter “is being put on the basis that evidence as to the particular circumstances of the veteran is largely irrelevant to the raising of a ‘reasonable hypothesis’ ”.  The Tribunal went on to express the view that, for an hypothesis to be reasonable, “it must be grounded on evidence as to the circumstances of the particular service rendered by the veteran”.  The comment was made that the applicant had elected not to adduce any evidence on the matter of diet or, indeed, the extent of stress and of quinine consumption. 

These passages in the Tribunal’s decision were attacked as evidencing two errors of law: first, that the Tribunal wrongly regarded the applicant as bearing an onus of proof; secondly, that the Tribunal ignored s 119(1) (h) of the Veterans’ Entitlements Act 1986. 

We do not think that either stricture is justified.  The rule that, in curial proceedings and in the absence of a legislative provision to the contrary, an applicant for relief must prove the facts necessary to ground the claim has no relevance to the administrative determination of claims under the Veterans’ Entitlements Act 1986: see McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356-357 and 368-369.  It would have been an error for the Tribunal to see Mrs East as bearing an onus even to establish a reasonable hypothesis. 

However, having said that, the practical situation remains that it will often be in the interests of a party to proceedings before the Tribunal to adduce particular evidence; the reason being that, in the absence of that evidence, the Tribunal will not be free to make the decision sought by that party.  In a case where that party apparently makes a conscious decision, with the benefit of legal advice, not to deal with that matter the Tribunal would be justified in assuming that the party had no evidence on the point which would assist the case: cf Jones v Dunkel (1959) 101 CLR 298.  In the present case, the Tribunal did not speak of onus.  It simply observed that there was no evidence of the particular matters and that the applicant had apparently made a conscious decision not to deal with the subject; the implication being that any evidence available to her upon that matter would not have assisted her case.  We see no error of law in that statement.’

18                  Those observations, I consider, are entirely applicable to the present case.  There is no evidence as to the length of time over which the applicant was exposed to benzene, or as to the concentrations of benzene to which he was exposed – merely material pointing to the fact that he may have been exposed to benzene.  There are no blood films or other pathological evidence tending to establish onset of the disease, and no medical studies of cases where a person has survived pancytopenia for fifty years after its onset.  The case is quite distinguishable from Repatriation Commission v Whetton (1991) 31 FCR 513, which was relied on by Counsel for the applicant.  In that case there was undisputed evidence of two oncologists that the admitted level of exposure of the veteran to asbestos over a known period of more than three years was a possible explanation for the veteran’s development of non-Hodgkinson’s lymphoma.  Whetton was also a case where the Tribunal mistakenly placed an onus upon the applicant, and misconstrued the effect of the evidence of one witness.  Here there is a bare hypothesis with nothing pointing to it to make it reasonable.  The absence of any evidence one way or another, resulting in a theoretical possibility that cannot be ruled out does not constitute a reasonable hypothesis for the purposes of the Act.

19                  The Tribunal’s conclusion as to the existence of a reasonable hypothesis is relevantly one of fact.  That conclusion was reached by a reasoning process free from any error of law.  Even if I had been persuaded, as I have not, to take a different view of the facts, it would not be open to me to displace the Tribunal’s conclusion.  The application must be dismissed with costs.

Associate:

Dated:              19 December 2003