Byrnes v Repatriation Commission

[1993] HCATrans 215

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl45 of 1991

B e t w e e n -

CLIFFORD JOHN BYRNES

Applicant

and

THE REPATRIATION COMMISSION

Respondent

Application for special leave

to appeal

MASON CJ	GAUDRON J
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 9 AUGUST 1993, AT 2.51 PM
Copyright in the High Court of Australia
Byrnes(2) 1 9/8/93
MR A.T. McINNES, OC:  May it please the Court, I appear with

my learned friend, MR I.R. SANDERSON, for the applicant. (instructed by Vardanega Roberts)

MR A.R. EMMETT, OC:  May it please Your Honours, I appear

with my friend, MR A. ROBERTSON, for the

respondent. (instructed by the Australian

Government Solicitor)

MR McINNES: Might I hand up some submissions, Your Honour.

MASON CJ:	Mr Mcinnes, I think we might Gall on Mr Emmett to hear what he has to say in relation to the grant of
special leave to appeal.

MR McINNES: Yes, Your Honour.

MASON CJ: Yes, Mr Emmett.

MR EMMETT:  May it please Your Honours. Might I hand up a

piece of paper that addresses that question.

MASON CJ: Yes.

MR EMMETT:  Your Honours will recall that this leave

application first came on last year before Bushell

had been decided. The parties thought it was

appropriate to stand over the leave application

until after the judgment had been given in Bushell.

It is our submission, shortly, that there is

nothing in what the Court said in Bushell which

casts any doubt on the correctness of the approach

taken by the majority in the Full Court.

Your Honours have said in Bushell that there can be

two stages in which one applies section 120.
Subsection (1) requires the tribunal of fact to be

satisfied beyond reasonable doubt as to certain

matters, and subsection (3) is a deeming provision

that says in certain circumstances the Tribunal is

deemed to be satisfied beyond reasonable doubt.

It may be, of course, that if subsection (3) does not apply, the Tribunal will nevertheless,

under subsection (1), be satisfied as to the

matters that are relevant. So much, in our

submission, follows from what the Court said in

Bushell.

The Tribunal, in this case, considered,

relevantly, two sets of medical evidence:

Dr Rowden and Dr Whitty. In a sense, there is no

conflict at all between those two medical

practitioners, at least as to what might be called

the medical thesis; that is, that if there is an

injury of sufficient severity, that injury is

Byrnes(2) 9/8/93

capable, after a considerable period of time, of

developing into spondylosis. Dr Whitty agreed with

that and Dr Rowden, of course, said that that was

the proposition.

One must find material which point to

facts which, if they are true, then support that

hypothesis. So that there was really no

disagreement between the medical practitioners as

to the medical hypothesis.

What the Tribunal, in effect, said was, "I do

not find any evidence at all which points to the

necessary severity of an injury which would support

the hypothesis."

McHUGH J:  If that is what it did, it was clearly in error,

was it not, because to begin with they had an

opinion of Dr Rowden that a serious injury - had

sustained a significant injury to his neck?

MR EMMETT:  No, no. Dr Rowden assumed that there was

significant - he did not give any -

McHUGH J: According to the finding at page 5:

Dr Rowden explained that he believed the

applicant had sustained a significant injury

to his neck - - -

MR EMMETT:  Yes, but when one looks at the evidence of

Dr Rowden as cited by Mr Justice Burchett, it is

quite clear that Dr Rowden was simply making an

assumption as to the severity of the injury. He

could not, from his observations - and his evidence

certainly does not indicate -

McHUGH J:  Mr Emmett, it is a question of how you frame

these things, how you frame the hypothesis. If you
say that the hypothesis was that having sustained
this injury to the neck it would have caused his

present condition, if he had suffered a severe

injury to his neck, then that is part of the

hypothesis, is it not?

MR EMMETT:  Yes, but Dr Rowden, clearly, could not give any

evidence as to the severity of the injury unless,

by saying, "I observe clinically that there is

evidence of some injury of sufficient severity some

time before" but he does not say that.

McHUGH J: The steps in his reasoning are: present

condition - fall, injury to neck back in the war

years; hypothesis is that fall caused significant

injury to his neck which, in turn, caused the

spondylosis. That is the hypothesis.

Byrnes(2)	9/8/93
MR EMMETT:	No. But he says, "I assume an injury of

sufficient severity".

McHUGH J: That is part of the hypothesis; to get him from

injury to the neck to the present spondylosis.

MR EMMETT: But, Your Honour, that cannot be right in the

light of what the Court said in Bushell.

GAUDRON J: But, in any event, there was evidence of an

injury of sufficient severity to require

hospitalization in respect of which the applicant

said he had suffered pain from then on.

MR EMMETT:  Yes.

GAUDRON J: Are they not facts or material raising an

hypothesis as required by Bushell at page 414?

MR EMMETT: In our submission, no, because those findings do

not constitute a finding of any particular

severity. They simply make a finding of an

accident.

GAUDRON J: They point to an accident of sufficient severity

to require three days hospitalization, at least.

MR EMMETT:	Yes, but that is not sufficient - -
GAUDRON J:	And one of which the applicant asserts was of

such severity that he was thereafter not free from

pain on any regular basis.

MR EMMETT:  Yes, but the Tribunal then said, "I also take

into account other factors" which Your Honours have

said in Bushell it must do, of taking into account

these other factors, namely, the fact that it was

only three days; the only treatment that was given

was pain killing treatment; there was never any

complaint on discharge, nor for many years

thereafter; and - - -

GAUDRON J:	On the application of Bushell, why was the question not one for the Tribunal then as to
whether it was satisfied beyond reasonable doubt
that it was not of sufficient severity?
MR EMMETT:	That is, in effect, what the Tribunal said at

page -

GAUDRON J:  You may say it is what the Tribunal said but it

is by no means obvious to me that if the Tribunal

had approached the matter on the basis that there

is an hypothesis to this effect and now the

question is, "Am I satisfied beyond reasonable

doubt that the injury was not severe enough?", then

it would have been so satisfied.

Byrnes(2) 9/8/93

MASON CJ: Paragraph 17 seems to deny that.

MR EMMETT:  One has to read paragraph 17 in the light of

what has already gone in paragraph 16.

Paragraph 17 simply says that all they find is the

possibility of a causal connection. He does not

say that there is any evidence that says it is even

more likely or not. What the Tribunal had said in

paragraph 16 is that there is no evidence to show

that the three occurrences caused severe injury.
That is the critical finding of fact.

McHUGH J: But it is not a finding of fact. It is part of the hypothesis. All you have got to show is that

there was some material which raises an hypothesis.

The hypothesis is this man sustained a particular injury. We know that. He gave evidence about it

himself, and what is more he was hospitalized.	And
then the doctor reasons: that caused severe
ligamentous injury which ultimately caused the
spondylosis.

MR EMMETT:	One does need to go to what Mr Justice Burchett says about the evidence of Dr Rowden. At page 29
of the application book, the last four lines, referring to the evidence of Dr Rowden:

He was referring to the diving injury which he

described as "a ligamentous injury to the neck

and perhaps an injury to the disc, but this is

all hypothetical, of course".

McHUGH J: That is the whole point I am putting to you, that

that is all part of the hypothesis.

MR EMMETT: Yes, but, Your Honour, there must be, according

to what Your Honours have said in Bushell, material

which first points to the facts which, if true,

would support the hypothesis.

McHUGH J: It is the injury, it is the fall. That is the

material.	I mean, he was hospitalized as a result
of it.

MR EMMETT:  But the hypothesis is not that any fall - there

is no hypothesis advanced that any fall is capable

of leading to spondylosis. The evidence was it

must be a fall of sufficient severity. There is

was no evidence of the severity which the doctors

no question there is evidence of the fall and the

said must be found in order to reach the conclusion

that the medical hypothesis is made out.

McHUGH J:  I understand how you put it and the question is

whether that is the right way to look at the matter. What do you say about the fact that

Byrnes(2)	9/8/93 Dr Whitty said that the odds against the hypothesis
were 20:1?

MR EMMETT: Well, he is expressing a view about the

hypothesis, but he accepted the notion though that if there was an injury of sufficient severity then

spondylosis could develop at a later time. But he

made no comment at all about whether -

McHUGH J: But he said it was 20:1 in this case against him,

that being the case. Now, how could you say that

there was not a reasonable doubt if he thought

there was a 20:1 chance?

MR EMMETT:  It is not clear whether he is expressing that

view about the likelihood or probability of the

injury having been of sufficient severity.

McHUGH J: But this is a case where you have got a man

having a fall; being hospitalized and years later

this condition is diagnosed and, as I read what

Dr Rowden was saying and also Dr Whitty, they are

saying, in Dr Rowden's case, "There is this

hypothesis because what has happened, the fall was

of sufficient severity to set in train this process

which led to the spondylosis.11 Dr Whitty says,

"Well, I think there is only a 20:1 chance that

that is what happened from this particular fall."

MR EMMETT:  He is not saying that about whether or not the

injury was severe enough, but whether or not,

assuming there was injury severe enough, that

medical hypothesis would support the conclusion.

McHUGH J: But he surely would not be saying that, would he,

"There's only a 20:1 chance" about the hypothesis

being correct if there was a severe injury?

MR EMMETT:	One perhaps needs to look at the whole of the material if one were going to -
McHUGH J: But you are saying there is no dispute about

this, that, in effect, it is an accepted - - -

MR EMMETT:  No. We accept that there is a reasonable

medical hypothesis, even if it is a 20:1 chance.

MCHUGH J:  ..... 20:1 chance in a particular case.

MR EMMETT: Well, no, a 20:1 chance that an injury

of a particular severity can result in spondylosis. It is not every severe injury which will result in spondylosis. What Dr Whitty seems to be saying is

that there is a 20:1 chance that severe injury can

result in spondylosis; saying absolutely nothing

about whether this patient actually suffered injury

of sufficient severity.

Byrnes(2) 6 9/8/93

To conclude otherwise, really, is inviting the

High Court to make findings of fact that are within

the exclusive province of the Tribunal. The

Tribunal makes quite clear what its findings are in

the second sentence at paragraph 16:

that there is no evidence to show that any of

the three occurrences ..... caused severe

injury.

GAUDRON J:  But it certainly came to that conclusion by a

process which did not conform with what was said in

Bushell.

MR EMMETT:  In our submission, it does conform with what was

said in Bushell. Subsection (3) applies not only to the medical hypothesis but also to the factual material which, if true, would support the

hypothesis.

If I can take Your Honours to the joint

judgment in Bushell, 175 CLR 408, at page 414:

The material will raise a reasonable

hypothesis within the meaning of s. 120(3) if

the material points to some fact or facts

which support the hypothesis and if the

hypothesis can be regarded as reasonable if

the raised facts are true.

So, there are two elements involved in the exercise

that is called for under subsection (3). First of

all, the hypothesis but, secondly, there must be material that points to the facts which, if they are true, would support the hypothesis.

McHUGH J: But the facts are those set out in

Mr Justice Lee's dissenting judgment, are they not,

that raise this hypothesis? At page 55, line 9:

a twenty year old man diving from a

springboard into a shallow pool and striking

his head and shoulders on the floor of the

pool -

and I interpose, sufficiently powerfully to put him

in hospital for two days at least -

were capable of suggesting the likelihood of

significant ligamentous injury being suffered

as a result.

MR EMMETT:  They are findings which Mr Justice Lee might

have made. It was not open to him, in our

submission, to make findings of fact.

Byrnes(2) 9/8/93

McHUGH J: But that is the material that was before the

Tribunal and yet the Tribunal said there was no evidence.

MR EMMETT:	But, apart from anything, there is a real doubt as to whether Mr Justice Lee got it right on the
basis of the material that was before the Tribunal.
Your Honours do not have that before Your Honours
at the moment, but there is no evidence in the finding by the Tribunal that the applicant struck his head and shoulders on the floor of the pool. The only finding is that he struck his head. So,
Mr Justice Lee has made some other finding based on
some evidence which is not specified which, in our submission, is an impermissible step for him to
take.

But can I just go back to what I was

endeavouring to say in relation to Bushell. There

are two ways of approaching the matter. First of

all, one has to find material which points to facts

which, if true, would support the hypothesis. It

is not sufficient to find the mere possibility of

those facts. Justice Brennan in Bushell refers to

what the Full Federal Court says in East's case at

page 428 in the Commonwealth Law Reports. At the

top of page 428 there is a reference to the

hypothesis. Then after the reference to the

Concise Oxford Dictionary:

The addition of the word 'reasonable'

would however seem to imply that what is

required is more than a mere hypothesis. In

the opinion of the Board, to be reasonable, a

hypothesis must possess some degree of

acceptability or credibility - it must not be

obviously fanciful ..... 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."

Now, that is, in our submission, the distinction.

That in this case it may well be that the

hypothesis was open and that is what Mr Renouf said

in the last paragraph, there was a possibility of

it, but a mere possibility is not sufficient.	You
must find material which points to an injury of

sufficient severity, and that must be an exercise

which is done under subsection (3), not under

subsection (1).

The Tribunal must access all of the material

available to it and then decide whether there is a
reasonable hypothesis, including whether the
material points to facts which, if true, would

Byrnes(2) 9/8/93

support the hypothesis. The second sentence of

paragraph 16, in our submission, is a finding that

the Tribunal was not of that view.

That, of course, is what the majority said.

The reasoning of Mr Justice Burchett, from the

bottom of page 32 to half-way down page 33 in the

application book puts that construction on what the

Tribunal did. Perhaps I should take Your Honours

to the bottom of page 32, line 30:

Dr Whitty did not dispute that a severe

ligamentous injury, producing an abnormal

condition of the cervical spine, could

predispose a man to spondylosis. But he

insisted, and the Tribunal was entitled to

accept, that if the diving incident described

by Mr Byrnes had produced a condition of that

character, much more severe consequences would

have become apparent, and at a much earlier

date, than had in fact ensued. Since

Dr Rowden's hypothesis depended upon the

assumption of an injury of some severity in

1943, an acceptance of Dr Whitty's evidence

would necessarily leave Dr Rowden's hypothesis
without any foundation.

I took Your Honours to the first reference at

the bottom of page 29 to the hypothetical nature of

Dr Rowden's assumptions. The other paragraph where

the evidence is referred to is on page 30 at

line 12 where Mr Justice Burchett again is

referring to the evidence of Dr Rowden:

At another point, he said:  "Now, we do not

know the extent of ligamentous injury that

this man received in that initial neck

injury."

It is against that evidence that one must read what

Mr Justice Burchett says at page 33, namely:

Dr Rowden's hypothesis depended upon the

assumption -

for which there was simply no foundation.

Certainly no finding of fact by the Tribunal;

rather, a finding to the contrary that there was no
evidence to support an injury of sufficient

severity.

McHUGH J: Having regard to Bushell's case, from beginning

to end, the Tribunal just misconceived what the

question is. The facts that raised the hypothesis
are set out at page 53 in Mr Justice Lee's

judgment, or the proper question is at the top of

page 53:

Byrnes(2) 9 9/8/93

Relying upon his expertise -

that is Dr Rowden

and the known facts, Dr Rowden put forward a

supposition connecting the appellant's war

service with his disability.

The known facts are what we know about him diving

into the pool, and you had to destroy those facts.

You had to destroy that material.

MR EMMETT:  But that is a new finding that is now being made

by Mr Justice Lee.

McHUGH J:  No, it is not. He is just simply saying,

"Relying upon Dr Rowden's expertise and the known

facts", the known facts being what we know about

what happened in Townsville.

MR EMMETT: Well, except that Dr Rowden made assumptions as

Mr Justice Burchett said.

McHUGH J: It is part of the hypothesis.

MR EMMETT:  It is but what the High Court makes clear in

Bushell is that it is not just the medical

hypothesis, there must be material which points

to - not simply the possibility - the facts which,

if true, support the hypothesis. One does not have

to find that the facts are there. There must be

material, though, that points to an injury of

sufficient severity. That is what the Tribunal

concluded, that there simply was no evidence that

pointed to an injury of sufficient severity. There

is no doubt there was evidence of an injury, and

the findings are there, that he bumped his head

when he - - -

McHUGH J:  What the facts had to do was to point to an

hypothesis which connected the present condition

with the known facts.

MR EMMETT:  But that, with respect, is not what Your Honours

said in Bushell. It is not that they point to the

hypothesis - going back to 414, the paragraph that

begins:

The material will raise a reasonable

hypothesis ..... if the material points to some

fact or facts which support the hypothesis -

In other words, it is not the material pointing to

a hypothesis. The material has got to point to

some fact or facts which, if they are true, would

support the hypothesis. There does not have to be

a finding - - -

Byrnes(2) 10 9/8/93

McHUGH J: In this particular case, the facts are that he

dived into a swimming pool and hit his head on the

bottom and was hospitalized.

MR EMMETT: That involves the appellate court, in effect,

the Federal Court, making a different finding of

fact.

McHUGH J:	No, it does not.
MR EMMETT:	Which, in our submission, is just not

permissible on an appeal from the AAT, the

Administrative Appeals Tribunal.

McHUGH J:  No, it is question of whether the Tribunal

misdirected itself.

MR EMMETT:	The Tribunal indicated that it was considering the matter under subsection (3): paragraph 3 on
page 1 of the application book.
McHUGH J:	An error is readily apparent in the very first

sentence of paragraph 16 at page 6, it screams out

at you:

This is one of the reasons why I do not

believe that the material before me raises a

reasonable hypothesis -

and that is a reference back to paragraph 15.

MR EMMETT:	Your Honour, if that were the only reasoning, then there may be some difficulty in supporting the
judgment, but - - -
McHUGH J:	I know, and then you go and then seek to stitch

up the obvious error by relying on the sentence

starting, "Other Reasons".

MR EMMETT:  No. The Tribunal, Your Honours, had two

parallel reasons.	One may well have been flawed,
and we do not seek to support the reasoning in so

far as it depends upon the first sentence of 16, but the Tribunal goes on to say, clearly, "Other

reasons", indicating that independent of that first
conclusion. If the first sentence were the only
line of reasoning then I do not think we would be
here. But the Tribunal goes on to say, "There are

other reasons", and if those reasons are valid, the

fact that the Tribunal could independently have

come to the same conclusion by an invalid reasoning

process does not affect the validity of the correct

reasoning.

MASON CJ: But is there not a problem with the first

sentence of paragraph 17 where the Tribunal finds

that there is a possibility?

Byrnes(2) 11 9/8/93

MR EMMETT:  But that is why I draw the distinction between -

the point that Justice Brennan picks up by

referring to East's case, that the mere possibility

is not sufficient -

McHUGH J:	You have used the word "mere" and that does not appear.
MASON CJ:	No, that does not appear.
MR EMMETT:	The fact that there is a possibility is not

sufficient.

MASON CJ:  I am not persuaded of that. Why is that so?

MR EMMETT:  Because of what Your Honours have said in

Bushell, the facts must do more than merely show

there is a possibility. They must point to the

facts or circumstances which, if true, would

support the hypothesis. That is what - - -

MASON CJ: Yes, I know that is the sentence on which you

rely, "The material will raise a reasonable

hypothesis".

MR EMMETT: Well, the material points to facts which, if

true, support the hypothesis is the language at

page 414. There are two steps involved.

McHUGH J: But the material is descriptive of everything in

the case:  "And from all the material, all the

evidence in the case, you have got to be able to

point to some fact or facts which support the
hypothesis." Here, the relevant fact from which

the material points is the fact that this man dived

into a swimming pool, hit his head and was

hospitalized for two days. Upon those facts,

Dr Rowden constructs an hypothesis that that would

have led to severe ligamentous injury which, in

turn, would have caused a spondylosis.

MR EMMETT:  But he makes it clear that he is assuming -

making an assumption as to the severity, not from

those facts though.

GAUDRON J:  I do not know that he says he is making an

assumption.	He says he is hypothesizing severity
of injury.

MR EMMETT:  Your Honour, if it comes to the question of how

you construe Dr Rowden's evidence, that, in our

submission, is not a matter that can be looked at

by the appellate court. That is a matter for the

Tribunal.

GAUDRON J: That may be so but it does not alter the fact

that one has got to identify the hypothesis. The

Byrnes(2) 12 9/8/93

material that points to the hypothesis of severe

ligamentous injury is the injury, the

hospitalization - well, the accident.	we will call
it an accident.	We know there was an accident:

accident; hospitalization; complaint thereafter of

continuing pain in the area plus the known fact

that accidents of that kind can lead to even more

severe injuries than severe ligamentous injury.

MR EMMETT:  But that is not an issue, with respect.

GAUDRON J: But that is part of the material.

MR EMMETT:  No, there is no evidence that that sort of

injury can lead to greater injury than ligamentous
injury because the only suggestion by any of the

doctors was that this was a ligamentous injury.

GAUDRON J: That sort of accident, striking your head on the

bottom of a swimming pool -

MR EMMETT:  It can lead to all sorts of things but there is

no suggestion - - -

McHUGH J: If there was evidence of severe injury, you would

not be dealing with hypotheses at all. You would

have agreement, as a matter of opinion, that the

severe injury caused the injury. You would be then

in the realm of fact, not hypothesis.

MR EMMETT: But, nevertheless, there must be material which

points to facts, in other words, an injury of

sufficient severity. It is not sufficient that the

material merely leaves open the facts, which is the

language in East's case that Justice Brennan

accepts. It must actually support it. It must

tend to support the correctness of the facts which,
if they are true, would support the hypothesis.

Going back and concluding as Mr Justice Lee does is really making different findings of fact

from those which were made by the Tribunal.

McHUGH J:  I do not see that, Mr Emmett. It seems to me

that all that Mr Justice Lee was saying is that by

reason of the reasoning process of the Tribunal, it

misdirected itself and therefore the decision has

to be set aside.

MR EMMETT:  But one asks, where did it misdirect itself?

McHUGH J: It misdirected itself in the first sentence in

paragraph 16 and then, in the second sentence, it

misdirected itself again because it was not

necessary that there be evidence that it caused a severe injury. The question of severe injury was

part of the hypothesis. It is just as though

Byrnes(2) 13 9/8/93

somebody becomes very sick and you know the person

has eaten something and the doctor says, "Well, my
hypothesis is that whatever he ate contains some

substance which caused him to vomit and therefore

become sick", but in that illustration you do not

have to have evidence that there was something in

whatever the person ate, it is just part of the

hypothesis.

MR EMMETT: But you might need that evidence that he ate

something.

McHUGH J: Exactly, and you have got it in this case.

MR EMMETT: Well, no, in our submission, not. It is like

the bully beef example. It is not sufficient to

show that somebody, while on war service, ate bully

beef because the hypothesis is that it is only if

you eat bully beef with sufficient regularity and

in sufficient quantities that you suffer some dire

consequences.

McHUGH J: Supposing somebody ate bully beef and there was

evidence that he was violently ill within the next

12 hours and a doctor hypothesized that the bully

beef was contaminated? You would not have to call

any evidence to prove a connection in that

situation.

MR EMMETT:  But that does not depend upon a quantity of

assessment.

McHUGH J: But it is part of the hypothesis.

MR EMMETT:  No, but both doctors though indicated that it is

not every injury of this sort which produces

spondylosis. It is only an injury of this sort of

a sufficient degree of severity and there is no

evidence of that at all that it was of

sufficient - - -

McHUGH J:  Dr Rowden thought it was sufficient to raise the

hypothesis of severe injury causing spondylosis and
as I read Dr Whitty, so far as we can - his

evidence, he thought there was a 20:1 chance that

that was the case.

MR EMMETT:  No. But, in our submission, that is putting a

different slant on the evidence. Dr Rowden does

not say, according to the majority, "That I

consider that there was an injury of sufficient

severity, I am simply making an assumption about

it."

McHUGH J:  As Justice Gaudron put to you, that is part of

his hypothesis.

Byrnes(2) 14 9/8/93

MR EMMETT:  In our submission, that cannot be right in the

light of what the joint judgment in Bushell says at

414. There are two steps. You must have material

that points to facts which, if they are true,

support the hypothesis, plus the acceptance of the

hypothesis.

Otherwise, one will end up with a situation

where, if any doctor is prepared to say, "I think

that there is a possibility of some event resulting

in the disease or injury" - disease in this case -

"for which the claim is made", then that would be

an end to the matter. But that cannot be right.

McHUGH J:  No, because, first of all, the courts are just

saying whether that is a reasonable conclusion; a

reasonable hypothesis.

MR EMMETT: Reasonable conclusion based on some assumptions.

Medical practitioners or any expert can really only

give evidence based on assumptions. They may be

able to say, "From my clinical observations, I see

this man has suffered an injury and the clinical

observation is consistent only with an injury of a

certain degree of severity." But neither of them

gave that evidence. There is certainly no finding

that they gave that evidence and, indeed, Dr Whitty

They are asked to make assumptions and

says to the contrary. So that Dr Rowden's evidence evidence.

is all based on an assumption, perfectly properly.

on the basis of the assumptions which they make

then they then draw the conclusion and on the two

pages to which I have referred

Mr Justice Burchett's judgment is the process which

Dr Rowden adopted. That, in our submission, is not consistent with what appears at page 414.

I have probably said several times what I want

to say, Your Honours.

MASON CJ:

I think you have. Yes, thank you, Mr Emmett.

Now, the Court need not trouble you, Mr Mcinnes.

The Court is of opinion that special leave should be granted in this case.

Now, are the parties ready to proceed with the

appeal?

MR McINNES: Yes, Your Honour.

MASON CJ: Are you ready to proceed with the appeal,

Mr Emmett?

MR EMMETT: Well, subject to this, Your Honour:

Your Honours do not have the material which it is

Byrnes(2) 15 9/8/93

necessary to consider in order to examine these

matters.

MASON CJ:  Why do we need additional material? We have got

the findings of the Tribunal.

MR EMMETT: 

Yes, but in so far as reliance is put on the

reasoning of Mr Justice Lee, which goes beyond the
Tribunal, then it is necessary to look at the

appeal book in the Federal Court.

MASON CJ: At the moment, I am not disposed to think that it

is necessary to look at the appeal book in the Federal Court in order to take account of what

Mr Justice Lee says.

MR EMMETT:	Mr Justice Lee makes his own findings of fact, in our submission, which must depend upon a
consideration of materials which is not in the
judgment of the Tribunal.

MASON CJ: But is it permissible for him to make his own

findings of fact in so far as they go beyond what

is in the findings of the Tribunal?

MR EMMETT: In our submission, no.

MASON CJ: That being so, why do we need any further

material?

MR EMMETT:  It depends on the arguments put, I suppose. Our

submission is that one cannot go beyond that. If

that is so then, in our submission, the reasons of

Mr Justice Lee must be flawed. Whether that leads to one result or another might be a different

matter. I can only hear what my learned friend has

to say and perhaps if I might indicate that,

depending on how the argument is put on the appeal,

we - - -

MASON CJ: Yes. Well, we will hear what he says.

MR EMMETT:	May it please, Your Honours.
MR McINNES:	Your Honour, if I might start at the matters

that have already been canvassed to some extent.	I
do not know whether Your Honours have copies of
Bushell.	I have copied the case.

Your Honour, we say that the initial

proposition is, as has been expressed from the hypothesis are that the injuries were received, two

in 1943, one in 1945, and the first one in January

1943 was the significant injury. It is important

to note, Your Honours, on page 5, that Dr Rowden

Byrnes(2) 16 9/8/93

was not thinking merely of severity of the injury.

He was considering, in paragraph 13, at line 7:

Dr Rowden explained that he believed the

applicant had sustained a significant injury to his neck at Townsville in January, 1943.

This had most probably been ligamentous.	The
injury had increased the strain upon

Mr Byrnes' neck and this had thereafter been

further increased by work as a stocker.

So that he goes a little bit further than just the

mere injury itself and the severity of it. As has

been said, of course, Dr Whitty agrees that the

facts, if severe enough, could cause spondylosis.

So that, in effect, his hypothesis is that the

injuries received could cause spondylosis but in

his view - and, again, like Dr Rowden, he did not

have the opportunity of seeing the applicant at any

time - any relevant time - and had no knowledge.

So that, in a sense, he has an hypothesis that it

could.cause the spondylosis but he thinks, because

it is an outside chance, it is more likely than

not, the balance of probabilities, in our

submission, Your Honours, and as Mr Justice Lee

said, "Well, when does one get to the stage where

the hypothesis is not reasonable or what are the

odds?"

So that the hypothesis, in our submission,

must be reasonable because both doctors support it,

in one sense.	The only difference is that they
have differing views as to the severity.	On

page 5, and again this has been referred to - might

I say, Your Honours, that my learned friend said

any doctor could come forward with a theory and

that would be the hypothesis. Indeed, that is

raised further on in Mr Justice Einfeld's judgment.

But that is not so. Dr Shapiera's evidence in this

case was rejected. The Tribunal, of course, was

entitled to do that. That is at page - his

evidence, at page 4, paragraph (c).

So that it is not any doctor. It has got to

be a respected doctor or an eminent doctor or

someone that the Tribunal could have some

confidence in, and it is quite clear that the

Tribunal, in this instance, did have confidence in

Dr Rowden, as well as Dr Whitty. They did not

reject the proposition that Dr Rowden was putting

forward as being not acceptable because he was not

of sufficient eminence. What they did at

paragraph 15, on page 5, was to compare the medical evidence, in fact; not only in Dr Rowden's evidence

and Dr Whitty's, but it seems that, on

paragraph 15, page 5:

Byrnes(2) 17 9/8/93

The medical evidence is, in this way,

reduced to that of the two medical officers of

the respondent, the two X-ray reports and the

evidence of Dr Whitty and Dr Rowden. Of this

remaining evidence, only that of Dr Rowden

favours the applicant.

That, in my submission, in accordance with

Bushell, is not open to the Tribunal then to say,

"I prefer one doctor to the other". What they have

to do is to look at the whole of the material and

then decide an hypothesis but not to choose between

the two hypotheses as they did on page 6, line 4:

Other reasons include that there is no

evidence to show that any of the three

occurrences upon which Mr Byrnes bases his

case caused severe injury ..... and that despite
the existence of an anxiety state, Mr Byrnes

did not complain -

et cetera.

Now, Your Honours, my submission is that once

the hypothesis is established, one then has to go

to section 120(1), and the Tribunal has to be

satisfied beyond reasonable doubt that the injury

was not severe enough to warrant the support of the
hypothesis. It is not putting one hypothesis

against another. It goes to the issue of whether

they were satisfied beyond reasonable doubt that
there is a fact upon which the hypothesis could be

found. That fact is the injury, not the severity

of the injury, in my submission, and the fact was

that there was an injury which Dr Rowden said could

support spondylosis later in life.

As has already been pointed out, of course, in

17:

that there is no more than a possibility of a

causal connection between the applicant's

spondylosis and his service.

Now, that must mean if there is a possibility of a

causal connection, that, in itself, must indicate a

reasonable hypothesis because, in one sense, it is

going further than a hypothesis and it is more than

fanciful or contrary to proven scientific facts,

and a known phenomena of nature. And they are the

things that were said in Bushell to undermine the
hypothesis. That just did not happen in this

instance.

Your Honours, if I might just go to

Mr Justice Einfeld's judgment, page 16, at line 15:

Byrnes(2) 18 9/8/93

Looked at objectively, each raised a

reasonable fully argued hypothesis of nexus. That is Dr Rowden and Dr Whitty.

Either could have been accepted. The Tribunal

heard both of them give evidence orally and

heard the applicant as well. I have read all

this evidence. Having regard to the structure

of the section as explained in the cases, the

applicant might be thought a trifle unlucky to

have had the view in his favour rejected. It

is difficult to imagine how, in the context of

a need for rejection beyond reasonable doubt

and in the absence of an onus on the

applicant, a soundly-based opinion by a

properly qualified expert would not raise and
sustain the necessary hypothesis even in

confrontation to an equally qualified opinion

to the contrary.

When Mr Justice Beaumont, who agreed with

Mr Justice Burchett, looked at that, Your Honours,

on page 26, he said that that was a wrong finding

and my submission is that it is not a wrong

finding.	On line 14, page 26:
As I would read the Tribunal's reasoning,

it was not of the view that two reasonable

hypotheses had been raised. On the contrary,

the Tribunal was of the opinion that the facts
did not support, on any reasonable basis, the
hypothesis contended for by the appellant. It

was on this footing that the claim failed

before the Tribunal and not on the basis, as

the judge appeared to think, of concluding

which of two reasonable hypotheses was more

likely to be correct.

My submission is that His Honour was correct in relation to that matter.

After reviewing various cases, at page 32,

Mr Justice Burchett said, at line 16:

However, in the present case, the only medical

witness to support a finding in favour of the

appellant went no further than to assert a

reasonable hypothesis.

Now, in my submission, that is sufficient,

although, unfortunately, Dr Rowden did use the

words, apparently, "reasonable hypothesis".	But
that is all, in my submission, he has to do.

He did not claim causation in fact.

Byrnes(2) 19 9/8/93

Well, again, that is not necessary. It is only an

hypothesis that has to be established and once that

is done one turns to 120(1).

Of course, whether the hypothesis was or was

not reasonable was the very question the

Tribunal had to decide. In making a decision,

it was entitled to prefer the evidence of

Dr Whitty to the effect that the hypothesis,

as applied by Dr Rowden to the circumstances
in evidence, was not reasonable, and

represented no more than an outside chance. Again, Your Honours, we come back to this

proposition that it might have been an outside

chance but all one requires is a pointing to the

facts which support, not proof; not even a balance

of probabilities but a basis upon which the

hypothesis can be made.

The Tribunal's finding was not at all

inconsistent with the settled interpretation

of s 120(3), according to which a reasonable

hypothesis need not reach, nor even approach,

a probability although it must achieve a

degree of credibility or acceptability.

Your Honours, we would say that that is a

contradiction. The outside chance is sufficient.

His Honour says that the hypothesis does not have

to reach a probability but, nevertheless, when one

has a 20:1 chance, it must be that it comes within

what His Honour is speaking of, not even

approaching a probability. He then went on to say:

Dr Whitty did not dispute that a severe ligamentous injury, producing an abnormal

condition of the cervical spine, could

predispose a man to spondylosis. But he

insisted, and the Tribunal was entitled to

accept, that if the diving incident described

by Mr Byrnes had produced a condition of that

character, much more severe consequences would

have become apparent, and at a much earlier

date, than had in fact ensued.

Now, Your Honours, it is our submission that once

that is established, it then goes back to 120(1)

for proof beyond reasonable doubt.

Since Dr Rowden's hypothesis depended upon the

assumption of an injury of some severity in

1943, an acceptance of Dr Whitty's evidence

would necessarily leave Dr Rowden's hypothesis

without any foundation.

Byrnes(2) 20 9/8/93

Your Honour, that is not what was said in

Bushell. It was said that one - whether two

doctors, one does not set off one doctor's opinion

against another to determine whether there is a

reasonable hypothesis. One hypothesis is enough so

long as it is reasonable and sufficient.

Certainly, Dr Whitty's evidence, on the

assumption, because of what he had seen that there

was insufficient severity, he not having had

personal knowledge of the degree of injury and he, also having made an assumption, could not possibly deprive Dr Rowden's hypothesis of foundation.

His Honour then went on to say:

It would remain a possibility only in the

sense that, if the full facts are not known to

explain an occurrence, almost any explanation

is possible.

That, again, Your Honours, we submit, is not

correct. Once one has the facts to point to the

hypothesis, and the hypothesis is there, it cannot
be said that almost any explanation is possible.

It was necessary in this case to show that the

facts supported an hypothesis and that was the

injury, of course, as Your Honours have said. Once

that is so, it is not any explanation is possible

at all. And then:

An abstract possibility of that kind is not sufficient to prohibit a finding that a

reasonable hypothesis is not raised by the

circumstances.

Again, Your Honours, it is not an abstract

possibility, it is the facts which point to the

hypothesis on which Dr Rowden relied.

So, we would submit, Your Honours, that the

judgment in the majority is incorrect. The proper

task is to look, firstly, to see where the

hypothesis is established and then to look at

section 120(1) to see whether the material had been

dispelled beyond reasonable doubt. That would have

to be, in this instance, in my submission, either
that the accident did not happen or, alternatively,

that the accidents were so minor that it could not

possibly have caused spondylosis at a later stage

in life. But neither of the doctors says that.

They say, as Dr Whitty has repeatedly said, it is a

20:1 chance, and that Mr Justice Lee's

consideration of the matter from page 47 on is a
correct exposition of the law in relation to the

matter.

Byrnes(2) 21 9/8/93

They are the submissions I wish to put to the

Court.

MASON CJ: Thank you, Mr Mcinnes.	Yes, Mr Emmett.
MR EMMETT:	Your Honours, can I refer to two further

passages in what the majority said in Bushell.

This involves the weighing up process that is involved in looking at the two hypotheses. At page

415, line 6:

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 connexion 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 -

et cetera. In applying those principles to the

particular circumstances, at the end of the joint

judgment at page 422, line 3:

Whether the hypothesis of Dr Schiller and

Dr Miller is right or wrong, it could hardly

be said that it was fanciful, impossible,

incredible, not tenable ..... unless it was
established that there was no temporal

connexion between the appellant's anxiety

state and his hypertension. If the Tribunal

had accepted the opinion of Professor O'Rourke

that the later severe hypertension of the
appellant developed in the absence of anxiety,
the factual basis of the hypothesis of

Dr Schiller and Dr Miller would collapse.

In other words, the joint judgment recognized that there must be some material establishing the factual basis quite independently of the medical

hypothesis itself. Now, that, in our submission,

is precisely what the majority did below when one

looks at page 32, the passage to which my learned

friend referred Your Honours a moment ago, line 16:

However, in the present case, the only medical

witness to support a finding in favour of the

Byrnes(2) 22 9/8/93

appellant went no further than to assert a

reasonable hypothesis.	He did not claim
causation in fact.

In other words, Dr Rowden was not saying, "I am

expressing the view; I'm making assumptions".

Of course, whether the hypothesis was or was

not reasonable was the very question the

Tribunal had to decide. In making a decision,

it was entitled to prefer the evidence of

Dr Whitty to the effect that the hypothesis,

as applied by Dr Rowden to the circumstances

in evidence, was not reasonable, and

represented no more than an outside chance.

McHUGH J: But what does that mean, "prefer the evidence of Dr Whitty to the effect"? Is it the evidence that

it was only a 20:1 chance?

MR EMMETT:  No. What he is saying is, Dr Rowden made some

assumptions but, in effect, they were not

necessarily consistent - there were not necessarily

borne out by the circumstances in evidence. That

is what, in our submission, Mr Justice Burchett is

saying when he says, "as applied by Dr Rowden to

the circumstances in evidence", and that is

precisely what the joint judgment recognized as a
possibility in the passage I just referred to.

If the Tribunal had accepted the opinion of Professor O'Rourke ..... the factual basis of the hypothesis of Dr Schiller and Dr Miller

would collapse.

Recognizing clearly that there are those two

levels: there is the medical hypothesis based on
assumptions, and if the evidence leads to the
conclusion that you cannot make those assumptions

of fact, then the medical hypothesis becomes

irrelevant. That is, really, the reasoning which

was adopted by the Full Court in interpreting what
the Tribunal had done.	The Tribunal simply said,

"There's a conflict between the ultimate

conclusions by these medical practitioners. One of

them has made assumptions which the other one does

not think was necessarily borne out by the

material. But I find, in effect, that there is no

evidence to support those assumptions."

McHUGH J: But, you see, I understand the force of what you

put if there had been positive finding that the

injuries were not severe enough or that the

Tribunal had said, "I am satisfied beyond

reasonable doubt that they weren't severe enough".

That is not what they found. Indeed, Dr Whitty

Byrnes(2) 23 9/8/93

said he did not think they were likely to be severe

enough.

MR EMMETT:  Yes. Well, that is one side. But Dr Rowden did

not say, "I think they were likely to be - - -"

McHUGH J: But he did not have to because part of his

hypothesis was, he said, "In my view, did cause a

ligamentous injury". Now, that seems to be

accepted on all sides. But the process of

reasoning for Dr Rowden was:  "It's a matter of

opinion - ligamentous injury. Hypothesis: it was

severe enough to destabilize the spine", et cetera,

et cetera, "and it led on to spondylosis". Now,

you have got to say that there was no material

which would found that hypothesis.

MR EMMETT:  On the finding, there was not. There was no

evidence to show that the occurrences caused severe

injury; injury sufficient enough.

McHUGH J: That is a misdirection.

MR EMMETT: In our submission, it is a finding. It is not a

direction. He is saying, "I have considered the

evidence and I find that there is no evidence which

supports a conclusion that the injury was

sufficiently severe to support - - -"

McHUGH J: But there did not have to be. That is the

misdirection, to think that there had to be

evidence to show that it caused severe injury. It

is a different thing from saying if the Commission

had been satisfied beyond reasonable doubt that

there was no severe injury.

MR EMMETT:  But that really just involves a question of how

one construes what the Tribunal is saying.

McHUGH J:  I appreciate that, yes.

MR EMMETT:  If there is only that sort of question - then,

maybe it goes back to get him to say one way or the

other, if that is the only question.

McHUGH J:  The case has got to go back in any event, as I

understand it.

MR EMMETT:  No, not if leave is refused. Not if the appeal

is dismissed.

McHUGH J: Not if the appeal is dismissed, no.

MR EMMETT:  If the appeal is upheld, well, that is the only

relief that is sough, is to go back to consider.

McHUGH J: It goes back again, yes.

Byrnes(2) 24 9/8/93

MR EMMETT:  But, in our submission, the only sense you can

make of that sentence is that he is saying, "Under

subsection (3)" - not necessarily under subsection
(1) - "I find that the material does not point to

the facts which, if they are true, would support

that hypothesis. He does not have to make that

finding beyond reasonable doubt.

McHUGH J: But an hypothesis can be destroyed in a number of

ways.	You may destroy the factual foundation which
raises the hypothesis.	Now, part of the hypothesis

usually involves some sort of causal chain and you

may be able to attack the causal chain, because

although one expert says, "This, in my opinion, is

the causal chain", you may be able to prove by some

other means that a link in that causal chain, which

he relies on for his hypothesis, just does not

exist.

In Bushell there was the question of

hypertension and anxiety arising at the same time

or one following the other. Here, it is an

essential part of Dr Rowden's hypothesis that there

was a severe injury.

MR EMMETT:  Yes, an assumption.

McHUGH J:  Of course it is, part of the hypothesis. But the

facts that raise that hypothesis is the ligamentous

injury which he says, "This was a severe type,

which caused" such and such and such.

MR EMMETT: That really is the issue, I suppose, how one

construes Dr Rowden's evidence. Does he say, "I,

from the evidence which is available to me,

conclude that there was an injury of sufficient

severity", or does he not?

McHUGH J:  I do not know that it is set out there.

GAUDRON J: There was an injury and it was exacerbated by

the work later performed.

MR EMMETT:  But it is a question of whether he is saying,

"The facts that are found are sufficient to support

my conclusion", or does he say, "I am assuming that

they are sufficient to support my - - -"

GAUDRON J: But, equally, of course, Dr Whitty was assuming.

Both were assuming, in that sense. That is why it

is terribly important that you have the question

asked which was not, in fact, asked in this case,

"Am I satisfied beyond reasonable doubt that there

is no reasonable hypothesis?"

MR EMMETT:  That cannot be the test when one is applying

subsection (3).

Byrnes(2) 25 9/8/93

GAUDRON J:	No, of course it is not.
MR EMMETT:	Because that is the very question that is deemed

to be answered by subsection (3) if it applies.

GAUDRON J:  Of course it is not but, I am saying, that is

why you go back to subsection (1) because in cases

of this kind what you have got are two different

hypotheses or, as you say, assumptions as to the

nature of the injury.

MR EMMETT:  But you cannot get over subsection (3) by an

assumption, in our submission. That is what, with

respect, the reasoning that Your Honours are putting to me leads to, that you can make an

assumption as part of the hypothesis, therefore you

find a reasonable hypothesis, therefore you discard

subsection (3).

McHUGH J: But you have got to have a factual foundation.

The factual foundation for the hypothesis is the

injury to his neck when he dived into the pool, and

the hypothesis is that that caused a severe injury

which destabilized the spine which ultimately

caused spondylosis.

MR EMMETT: Except that the Tribunal said - Your Honours are

now substituting a different finding of fact as to

the assumption. The Tribunal says there was no

sufficient evidence, so there is no evidence of an

injury of sufficient severity.

McHUGH J:  No, we are not substituting a different finding.

What we are putting to you is that the Tribunal did not ask itself the right question on the material before it.

MR EMMETT: It said, in paragraph 3:

the Act requires me to find in favour of the

applicant unless I am satisfied beyond

reasonable doubt that there is no sufficient

ground for doing so. S. 120(3) provides that

I shall be so satisfied if, after considering

all the material before me, I consider that

that material does not raise a reasonable

hypothesis -

and it is clear then from the language he uses that

he is still applying subsection (3).

McHUGH J: Subsection (3) is preliminary. If the applicant

cannot raise a case under (3), cannot raise a

hypothesis, then that is the end of it, but if he

does then we then move to subsection (1).

Byrnes(2) 26 9/8/93

MR EMMETT: This really is the crux of it: you cannot get

to subsection (1) - you cannot get over

subsection (3) by making an assumption as to the

facts. There must be a finding about the facts.

There does not have to be an actual finding of the

fact but at least that there is material which

points to the facts.

McHUGH J:  No, but what I have been putting to you is that

you may have certain proved facts. To get to your

final conclusion your hypothesis may then assume

other facts along the line.	Now, that is still
part of the hypothesis.

MR EMMETT:  But if the Tribunal says, "I think there is no

evidence of those assumed facts", then that is

sufficient to dispose of the matter under

subsection (3).

McHUGH J: It is not a question whether there is no evidence

but whether they are negative beyond reasonable

doubt.

MR EMMETT: Well, no, you do not get to the question of

reasonable doubt when you are applying

subsection (3), because that is the very question

that subsection (3) is deemed to have satisfied.

It does not make sense.

McHUGH J:  You will have to argue long and hard to persuade

me that there was not a subsection (3) hypothesis

raised in this case by Dr Rowden's evidence.	It is
not a question whether it was negatived under
subsection (1).	You have got a doctor who goes

into the witness-box and he says, "This is my

hypothesis", and you have got another doctor who

says there is a 20:1 chance that it is correct.

Surely that raises a reasonable hypothesis within subsection (3).

MR EMMETT:  Not if the first doctor says, "This is

hypothetical.	I am assuming the necessary
severity." If he says, "I see material from which	I, as a medical practitioner, would conclude there
was sufficient severity", but he does not say that.
One has to go back to pages 29 and 30 where
Mr Justice Burchett cites the evidence of
Dr Rowden, the oral evidence as is in his written report:

the diving injury which he described as "a

ligamentous injury to the neck and perhaps an

injury to the disc, but this is all

hypothetical, of course".

And then at 30:

Byrnes(2) 27 9/8/93

"Now, we do not know the extent of ligamentous

injury that this man received in that initial

neck injury."

And that is the basis of the reasoning that

supports Mr Justice Burchett's statement at

page 33, line 7:

Dr Rowden's hypothesis depended upon the

assumption of an injury of some severity in

1943 -

and the Tribunal says, "I don't think there is any

evidence to support that assumption."

McHUGH J: All there has got to be is some material which

points to it. The material that points to it is

Dr Rowden's opinion that when he hit the bottom it

set up this process. Now, it is like in a

provocation case, the onus is now on the Crown to

negative that hypothesis beyond reasonable doubt.

MR EMMETT: 

But the Crown does not have to negative the

hypothesis, to start off with. There is reference
made to that analogy in Bushell. But in the

context of saying - the Crown does not start with
having to negative every possibility.

McHUGH J: 

No .

MR EMMETT: There must be some material which first points

to it.

McHUGH J: Yes.

MR EMMETT:  But the essence of the thesis of the hypothesis

is not just injury but injury of sufficient

severity. It is the degree question. There is no

evidence of the necessary degree of severity as

distinct from evidence of an injury.

McHUGH J: Let us test it this way: supposing Dr Rowden had

been the only doctor called in this particular case. Would there have been any evidence of a reasonable hypothesis?

MR EMMETT:  No, because the reasoning in the second sentence

of 16 does not depend upon Dr Whitty. We accept

that if the only reasoning were the first sentence

of 16, then it is flawed. But it is quite clear

that the reasoning processes are independent of

each other and what the Tribunal says is, "Quite

apart from resolving the conflict between Dr Whitty

and Dr Rowden", if there is any, on final analysis,

"I simply find there was no evidence of the

sufficient degree of severity", which is necessary

to support the hypothesis of Dr Rowden, assuming,

Byrnes(2) 28 9/8/93

therefore, that Dr Rowden's hypothesis is medically

justifiable.

GAUDRON J: But you confine the hypothesis that you are

analysing to one of direct causation, as it were.

You are limiting it to causation. You are not

treating the possibility of there being a serious

ligamentous injury as part of the hypothesis?

MR EMMETT:  There is a possibility of it. We do not dispute

it as a possibility of it, but that is not

sufficient.

GAUDRON J: Yes, or reasonable possibility. You see, you

are not treating that as part of the hypothesis.

You are excluding it.

MR EMMETT:  No, no. No, we are not. The hypothesis assumes

that there is such a -

GAUDRON J: Yes. Well, that is part of the hypothesis.

MR EMMETT: Well, no, but that is not sufficient. That is

really the point. That is not sufficient to get

the applicant through subsection (3). And this is

what 414 says in Bushell: it is not sufficient

that you have the hypothesis and an assumption that

there are facts which, if true, would support it.

There must be a finding of material which points to the facts which, if true, would support the hypothesis. Otherwise, subsection (3) is simply

circular and Your Honours have quite clearly

pointed out in Bushell that it is not. There are
those two steps. There must be some material that

supports the factual findings, plus the hypothesis.

McHUGH J: In this case, if you establish or prove beyond

reasonable doubt that he did not have a fall in

Townsville at all or he did not injure his

neck - - -

MR EMMETT: That would be a different matter.

McHUGH J:  - - - the hypothesis would collapse. As

Justice Gaudron put to you and as I put to you

earlier, you are moving from the hypothesis into

opinion. You require, in effect, for the plaintiff

to establish causation; not an hypothesis but

causation.

MR EMMETT:  No, material that points to the facts which, if

they are true, would support the hypothesis. There

must be causation.

McHUGH J:  It is common ground in this case that if it had

been established that there had been a severe neck

injury - well, I imagine it is common ground.

Byrnes(2) 29 9/8/93

Certainly Dr Rowden and I assume Dr Whitty would

both say, "This man's spondylosis was caused by the

severe neck injury."

MR EMMETT:  But we accept you do not have to make that

finding of fact that there was a severe injury but

one must have material that points to a severe

injury; not simply material that points to an

injury but material that points to a severe injury

and the Tribunal said there was not any evidence

that pointed to a severe injury.

In our submission, what one is doing is making

different findings or findings different from those

made by the Tribunal, which it is simply not

permissible to do. That is the issue, may it

please Your Honours.

MASON CJ: Yes, thank you, Mr Emmett. Mr Mcinnes, do you

want to say anything in reply?

MR McINNES: There was only the one thing I wanted to say,

Your Honour. At page 422, about point 3, of

Bushell's case:

developed in the

If the Tribunal had accepted the opinion of hypertension of the appellant

absence of anxiety, the factual basis of the

hypothesis of Dr Schiller and Dr Miller would
collapse.

My learned friend put that to you as supporting the collapse of the hypothesis. But in this case

Dr Whitty did not say, "Well, it couldn't possibly

happen. There's no basis at all for Dr Rowden's hypothesis." He says it is an "outside chance".

So that is quite different from what is being

suggested, in my submission, by the Court in that

sentence. If the Court pleases, that is all I

wanted to say.

MASON CJ:  Yes. The Court will consider its decision in

this matter.

MR EMMETT: If the Court pleases.

MR McINNES: If it please Your Honours.

AT 4.08 PM THE MATTER WAS ADJOURNED SINE DIE

Byrnes(2) 30 9/8/93