Webb, Gloria v Repatriation Commission

[1997] FCA 1130

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW-Veterans’ affairs  - whether veteran’s hystiocytosis was war-caused -whether Administrative Appeals Tribunal failed to take into account relevant considerations or took into account irrelevant considerations - mistakes about the state of the evidence - whether and in what circumstances it is proper for the Tribunal to “evaluate” the hypothesis connecting war service with injury or death.

Veterans’ Entitlements Act 1986 (Cth) ss 13(1), 120

Bushell v Repatriation Commission (1992) 175 CLR 408 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 applied
R v Southampton Justices; Ex parte Green [1976] QB 11 applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 applied
Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 applied

GLORIA WEBB V REPATRIATION COMMISSION
VG761 OF 1996

FINKELSTEIN J
MELBOURNE
24 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

On appeal from a decision of the Administrative Appeals Tribunal

VG 761 of 1996

BETWEEN:	GLORIA WEBB         Applicant
AND:	REPATRIATION COMMISSION        Respondent
JUDGE:		FINKELSTEIN J
DATE OF ORDER:		24 OCTOBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal constituted by a different member to be heard and determined according to law.

4. The respondent pay the applicant’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

On appeal from a decision of the Administrative Appeals Tribunal

VG 761 of 1996

BETWEEN:	GLORIA WEBB         Applicant
AND:	REPATRIATION COMMISSION         Respondent

JUDGE:	FINKELSTEIN J
DATE:	24 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

HIS HONOUR: Andrew Rupert Webb was only seventeen when he enlisted in the 2nd Australian Imperial Forces during World War II.  He was sent to Bonegilla Army Camp for basic training.  When he completed his training Mr Webb volunteered for active service.  Between October 1944 and June 1945 he served with the 19th Australian Line Signals as part of the Australian contingent that fought against the Japanese Army in New Guinea.  Shortly after the war Mr Webb married Gloria Jean Hull whom he had met before he went on active service.  Upon his demobilisation in November 1946 Mr Webb and his wife went to live in country Victoria where they raised three children.

In late 1984 and early 1985 Mr Webb noticed that he was losing considerable weight and that he had become quite lethargic as well.  He was also suffering from “night sweats” and high temperatures.  In February 1985 Mr Webb went to see his friend and doctor, Peter W Graham, of the Cohuna Medical Clinic, Cohuna and told him of his symptoms.  Dr Graham could not discover their cause and was sufficiently concerned to refer Mr Webb to the Fairfield Hospital in Melbourne for further examination.  On 9 February 1985 Mr Webb was admitted as an inpatient at the Fairfield Hospital.  He was diagnosed as having “pyrexia of unknown origin” and a “bacterial infection also of unknown origin and of unknown site of sepsis”.  He was discharged from the hospital after a two week stay on the basis that he would attend at the Cohuna Medical Clinic for further investigation and antibiotic therapy.

The symptoms of lethargy and fever did not abate and so on 6 April 1985 Dr Graham referred Mr Webb to a physician, Dr Kenneth Fairley, at The Royal Melbourne Hospital.  Dr Fairley arranged for Mr Webb to be admitted as an inpatient at The Royal Melbourne Hospital where yet further investigations into the cause of his symptoms were carried out.  Those investigations were also inconclusive.  On 1 May 1985 Dr Fairley reported to Dr Graham that “Malcolm McDonald of [the] microbiology department is arguing strongly against an infective cause so I guess that one is most suspicious of an occult malignancy”.  He informed Dr Graham that even more tests were required.  At the same time slides of biopsies taken from Mr Webb’s spleen, liver and lymph nodes as well as certain electron micrographs were sent by The Royal Melbourne Hospital to two internationally renowned pathology departments, one at Stanford University Hospital and the other at the University of Southhamptom, for their consideration.

Unfortunately, Mr Webb died on 17 May 1985.  The doctors at The Royal Melbourne Hospital never did establish the cause of his death.  The post mortem examination showed “histiocytic proliferative disorder of uncertain aetiology”.  The report from Stanford University Hospital which was received shortly after his death stated that the University was “unable to provide ... a definitive diagnosis” for the cause of the symptoms but its “tentative diagnosis [was] of reactive histiocytosis.”  The report also stated that “while [the University] also considered malignant histiocytosis, the nuclear morphology is not sufficiently atypical for [the University] to strongly suggest this diagnosis.”  On 20 May 1985 a report was received from Professor Wright of the University of Southampton.  The Professor wrote that “the nearest condition that I have seen to these appearances [a reference to what was shown on the slides and micrographs forwarded to the University] is a sinus histiocytosis with massive lymphadenopathy”.  He felt that “malignancy can also be excluded on the basis of the morphology of these cells”.  (In order to make sense of these reports I should point out that histiocytes are cell types that form part of a person’s immune system.  These cells can be affected by a variety of disorders including malignancy.  If affected by malignancy that would constitute a type of lymphoma.)

On 4 June 1985 Dr Fairley forwarded his final assessment of Mr Webb to Dr Graham.  At the time he had not seen the reports from the Stanford University Hospital or from the University of Southampton.  In his assessment Dr Fairley noted that “[a] visiting American to whom Andy’s case was presented thought that malignancy was the most likely diagnosis as do I, despite the pathologist’s insistence that the gross histiocytic reaction they thought to be benign.”  It is not known whether Dr Fairley changed his opinion after seeing the two overseas reports.

Thus, the uncertainty among the medical profession about the cause of Mr Webb’s death continued after his death.  Dr Fairley and the unnamed American doctor suspected he had a cancer.  The Stanford University Hospital pathologist would not “strongly support” that view but could not discount it either.  Professor Wright thought cancer was unlikely as did the pathologist who performed the post mortem examination.  Not one of the doctors or pathologists was able to suggest another cause for the histiocytosis.

Mrs Webb believed that her husband’s condition resulted from the malaria he had contracted whilst on active duty in New Guinea.  Presumably she was of this view because many of the symptoms were the same.  Accordingly, on 23 May 1985 Mrs Webb made a claim with the Repatriation Commission for a pension under the Repatriation Act (1920-1985) (Cth).  Pursuant to that Act pensions and other benefits were payable to veterans and their dependants.  The claim was refused by a delegate of the Repatriation Commission for the reason that the histiocytosis suffered by Mr Webb had not been caused by malaria.  A review of the decision by the Veterans’ Review Board was unsuccessful.

By 1992 Mrs Webb had come believe that the histiocytosis that brought about her husband’s death may have been caused by the smoking habit he had developed while he was on active service in New Guinea during World War II. She made another claim for a pension with the Repatriation Commission. This time the claim was made under s 14 of the Veterans’ Entitlements Act 1986 (Cth).  That enactment had repealed and replaced the Repatriation Act on 22 May 1986. The criterion for eligibility for the pension Mrs Webb was seeking is found in s 13(1) of the Veterans’ Entitlements Act which provides: 

Where:

(a)the death of a veteran was war-caused;  or

(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;

the Commonwealth is,subject to this Act, liable to pay:

(c)in the case of the death of the veteran-pensions to the dependants of the veteran;  or

(d)in the case of the incapacity of the veteran-pension to the veteran;

in accordance with this Act.

For Mrs Webb to succeed in her claim it was necessary for it to be to established that (a) Mr Webb was a veteran and (b) his death was “war caused”.  There was no doubt that Mr Webb was a veteran as defined.  What was in doubt was whether his death was “war caused”.  That expression is defined in s 8(1) to include the case where “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.  By a combination of the definitions of “eligible war service” in s 7(1)(a) and “operational service” in s 6(1)(a), Mr Webb’s tour of duty in New Guinea constituted “eligible war service”.  Thus, the question was whether Mr Webb’s death arose out of or was attributable to that war service.  The case Mrs Webb put forward was that Mr Webb’s war service had led to his habit of smoking cigarettes, that this habit had continued throughout his civilian life and that the histiocytosis both caused his death and was attributable to his smoking habit.

The standard of proof required to establish a claim for a pension under s 13(1) is dealt with in s 120. So far as is presently relevant s 120 provides:

(1)      Where a claim under Part 11 for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...

(3)      In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service by that person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)that the injury was a war-caused injury or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
...

(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act;  or

(b)the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application”

The effect of s 120 has been explained by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. These cases establish that what is involved in the application of s 120 to the facts of a particular case is a two step process. First s 120(3) is applied and there the question is whether the facts give rise to a reasonable hypothesis connecting death or injury to war service. The second step, the application of s 120(1), occurs once a reasonable hypothesis connecting death or injury to war service is made out and it requires the claim to succeed unless the hypothesis is disproved beyond reasonable doubt: see especially the summary of the effect of s 120 in Byrnes at 571. In undertaking the first step conflicts of evidence must be ignored the only question being is there “some material which raises the relevant causal hypothesis”: see Bushell at 413. Another way of stating the issue is: does the material point to some fact or facts which support the hypothesis and upon which the hypothesis can be regarded as reasonable assuming for this stage that the facts are true: see Bushell at 414. Importantly, the High Court has pointed out that an hypothesis might be reasonable even though that hypothesis has little support in the medical profession or among scientists. One reason for this is that it is not necessary to prove the hypothesis: see s 120(6). Indeed, if the hypothesis is proved it would no longer be an hypothesis. On the other hand, if the supposed hypothesis is “fanciful, impossible, incredible, not tenable or too remote or too tenuous” it would not be a reasonable hypothesis: Bushell at 422. But, as Brennan J pointed out in Bushell at 430:

“(i)t would be an exceptional case in which it would be right for the AAT, forming its own view of competing medical theories, to hold an hypothesis of connection favouring entitlement to be unreasonable, when the hypothesis is supported by “a responsible medical practitioner, speaking within the ambit of his expertise”.

Mrs Webb’s claim for a pension was considered by a delegate of the Repatriation Commission who refused the claim. Pursuant to s 135 of the Veterans’ Entitlements Act the Veterans’ Review Board was requested to review that decision. On 19 October 1994 the Veterans’ Review Board affirmed the decision under review. Mrs Webb then applied under s 175 of the Veterans’ Entitlements Act to the Administrative Appeals Tribunal for a review of the decision of the Veterans’ Review Board.

The question that the Tribunal was required to consider was whether there was a reasonable hypothesis connecting the death of Mr Webb to the circumstance of the operational service rendered by him.  The issue was whether the circumstance of operational service (i.e. smoking) was connected to Mr Webb’s death.  The hypothesis that was put forward to support that connection was an hypothesis that had two components, viz. (a) that it was reasonable to contend that Mr Webb’s death was caused by a non-Hodgkins lymphoma and (b) that it was reasonable to contend that the non-Hodgkins lymphoma was caused by smoking.

There was evidence given before the Tribunal to support the hypothesis.  Mrs Webb gave evidence to the effect that her husband had developed his smoking habit whilst on active service.  Dr J. D. Parkin, the Director of Laboratory Medicine at the Austin & Repatriation Medical Centre, a practitioner with 20 years experience dealing with blood related cancers, provided two reports concerning Mr Webb and gave oral evidence.  He said in his evidence that “there’s a strong probability or a strong possibility that this [histiocytosis] was a cancer [of] the reticulated endothelia system or a cancer that we might call non-Hodgkins lymphoma”.  Dr Parkin conceded that there was no “scientific proof” for this proposition but his point was that it constituted a “reasonable hypothesis”.  Dr Parkin also said that there was a “real likelihood” that there was a connection between smoking and an increased risk of non-Hodgkins lymphoma.  He referred to certain medical papers which he said supported that proposition.  Those papers were tendered in evidence.  He said that there was “direct evidence [linking] smoking and non-Hodgkins lymphoma in humans [and] there is also a certain amount of indirect evidence, particularly some fairly compelling animal evidence that associate very strongly in mice smoke and non-Hodgkins lymphoma”.  During cross-examination Dr Parkin did concede that he could not derive much support from the medical papers for the proposition that there was a connection between smoking and non-Hodgkins lymphoma.

The Repatriation Commission called Professor Richard Fox, the Director of the Department of Clinical Haematology and Medical Oncology at The Royal Melbourne Hospital.  Professor Fox had prepared a report concerning Mr Webb in which he noted that little was known of the aetiology of histiocytosis but “they probably represent a variant of non-Hodgkins lymphoma”.  His report referred to various published medical papers dealing with the cause of non-Hodgkins lymphoma.  After a review of those papers Professor Fox concluded that “any suggestion that smoking is related to [non-Hodgkins lymphoma] is extremely tenuous”.  In his oral evidence Professor Fox said that in his view there was no basis for assuming that Mr Webb had non-Hodgkins lymphoma.  Although this was at variance with his written report his opinion was based substantially on the post mortem examination results and the two overseas reports which he had not seen when he had prepared his report.  So far as the relationship between smoking and non-Hodgkins lymphoma was concerned Professor Fox said that “in general, the vast majority of reports say there is no relationship, although in the last year, which is since I wrote [my] report, I have seen I think two reports that suggest a relationship. That is not terribly significant but I have seen further reports which suggest no relationship”. Thus, Professor Fox said that there was no reasonable hypothesis connecting smoking with non-Hodgins lymphoma.

On 22 November 1996 the Tribunal affirmed the decision of the Veterans’ Review Board.  The following passages taken from its reasons explain how it arrived at that result:

“The assumption that Mr Webb had a non-Hodgkins lymphoma is part of the hypothesis in this matter.  It has not been proved or disproved.  The fact that the expert pathologists thought the diagnosis unlikely to be one of malignancy is not sufficient to disprove the hypothesis; or, on its own, to render it not reasonable.  It does however make it more tenuous than it would be if the diagnosis of the disease was known.

However the hypothesis relied on by Mr Webb also hypothesises a connection between non-Hodgkins lymphoma and smoking.  Dr Parkin advanced such a hypothesis although he conceded that there was no conclusive scientific evidence of that connection.  Whether or not the hypothesis is reasonable therefore depends on some evaluation of the basis for the hypothesis in the papers referred to in evidence.

...

It seems to me that some weighing of the evidence by the Tribunal must be required.  We cannot simply hand over our function to the medical witnesses and then accept unexplained assertions as founding a reasonable hypothesis.  The High Court said in Bushell that the Commission, and therefore the Tribunal, must have regard to the material for the purpose of ‘examining the validity of the reasoning which supports the claim that there is a connection between the ... death and the service of the veteran.’ (emphasis in original)

Although Dr Parkin is an eminent haematologist he did not claim to be an expert epidemiologist.  When he was asked to analyse the studies in order to explain the foundation for his hyupothesis that there is a connection between smoking and non-Hodgkins lymphoma, he first claimed a lack of expertise to do so and then abandoned the hypothesis which was based on a connection between smoking and non-Hodgkins lymphoma.  I am satisfied that the hypothesis connecting smoking with non-Hodgkins lymphoma is not reasonable as it lacks support in the medical studies comprising the material before the Tribunal.

The evidence does not point to a diagnosis of non-Hodgkins lymphoma although it leaves it open.  Similarly while there is a possibility that smoking may be associated with non-Hodgkins lymphoma, I find on the medical evidence before me that there is no material pointing to that possibility, rather than leaving it open.  There was no medical or scientific material before me which, on close analysis, supported the hypothesis of such an association which was advanced by Dr Parkin and relied on by (Mrs Webb).  Thus I find that the hypothesis of death due to non-Hodgkins lymphoma which was associated with service related smoking is not reasonable.  It is not pointed to on either issue by the whole o the material before the Tribunal and I consider the hypothesis to be “too remote or too tenuous” to be reasonable.”

Mrs Webb appeals to the Court from this decision of the Tribunal. The appeal is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 and is confined to “a question of law”.  Ordinarily the decision of the Tribunal that an hypothesis is not reasonable is a finding of fact in respect of which an appeal will not lie: Gilbert v Repatriation Commission (1989) 86 ALR 713 at 729; Bell v Repatriation Commission (1992) 26 ALD 545 at 546; Repatriation Commission v Owens (1996) 70 ALJR 904. This is because even if the finding is wrong “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. However, in this case the Tribunal did err in law in arriving at its decision. I will now explain my reasons for this conclusion.

In reaching its decision the Tribunal made two serious mistakes about the state of the evidence  First, it said that Dr Parkin had abandoned his claim that there was a possible connection between smoking and non-Hodgkins lymphoma in favour of a more general hypothesis to the effect that an ex-serviceman is more susceptible to non-Hodgkins lymphoma than the rest of the community.  It is true that this more general hypothesis was advanced by Dr. Parkin.  But it was wrong for the Tribunal to say that Dr Parkin abandoned the proposition that there was a connection between smoking and non-Hodgkins lymphoma.  In fact the last two questions asked of him and the answers that he gave to those questions show a continued reliance on this component of the hypothesis.  I should set them out to demonstrate the point:

Q.Doctor, can you exclude beyond reasonable doubt that this veteran did not have non-Hodgkins lymphoma?    

A.No

Q.       And can we exclude beyond reasonable doubt that smoking was not          associated with his cancer if he did, in fact have non-Hodgkins   lymphoma?   
A.       I don’t believe so

Plainly if Dr. Parkin had abandoned the possibility of a connection between smoking and non-Hodgkins lymphoma, as the Tribunal stated, it would have been very difficult to maintain the reasonableness of the hypothesis.  It is for this reason that I say that the mistake was a serious one.  My reading of the reasons as well as of the transcript of the proceeding before the Tribunal leaves me in no doubt that the Tribunal’s erroneous view of Dr Parkin’s evidence was a crucial factor in the rejection of the hypothesis as reasonable.

The second mistake made by the Tribunal also concerns the state of the evidence.  The Tribunal said that the hypothesis connecting smoking with non-Hodgkins lymphoma “lacks support in the medical studies”.  This is only partially true.  The medical studies that were in evidence did not, except to a very limited extent in respect of one of them, support such a connection.  I might add that they did not necessarily deny the existence of a connection but that is not presently relevant.  In making the statement that the medical studies did not support a connection between smoking and non-Hodgkins lymphoma the Tribunal was only referring to the medical studies that were in evidence.  The Tribunal obviously did not have regard to the evidence of Professor Fox (that is both his report and his oral testimony) to the effect that there were studies that did show an association between smoking and non-Hodgkins lymphoma.  The studies referred to in his report may not be significant because Professor Fox said that the association they demonstrated was “non-significant”.  But in his oral evidence Professor Fox did speak about two studies published since his written report which posited a relationship between smoking and non-Hodgkins lymphoma.  It is true that he also described those reports as “not terribly significant” for the reason that other reports had come to a different conclusion.  That may or may not be the case.  Here the issue is not the correctness of Professor Fox’s views but whether the Tribunal was wrong when it said that there were no medical studies to support a connection between smoking and non-Hodgkins lymphoma.  And it was wrong in that regard.

Identifying these mistakes is not to undertake the impermissible task of discovering and correcting errors of fact made by the Tribunal.  The statement that a witness had abandoned a point is not a finding of fact.  Indeed it is not a finding in any sense of that word.  When the Tribunal said that any connection between smoking and non-Hodgkins lymphoma lacked support in the medical studies that may have been a finding of fact in the sense that the Tribunal was stating in a shorthand way the content of the studies that had been tendered in evidence.  But the Tribunal overlooked other studies that were to the opposite effect.

It is well accepted that when an inferior tribunal arrives at a decision without having taken into account relevant considerations or after having taken into account irrelevant or extraneous considerations its decision will be vitiated for error of law: see generally Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; R v Southampton Justices; Ex parte Green [1976] QB 11; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24. Normally it would have to be shown that the irrelevant matter considered or the relevant matter that had not been considered was of some importance: Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 at 693; Peko-Wallsend, supra, at 40. By failing to have regard to the medical studies that supported or tended to support a connection between smoking and non-Hodgkins lymphoma the Tribunal erred in law. By proceeding on the mistaken assumption that Dr Parkin had abandoned an important part of the hypothesis the Tribunal also erred in law. This last mentioned error is of the same kind as taking into account an irrelevant consideration. Each error was an important one. It follows that the decision of the Tribunal must be set aside.

However, that is not an end to the matter.  There are other errors of law evident from the reasons of the Tribunal that I must deal with.  In its reasons the Tribunal said that in deciding whether the hypothesis linking smoking with non-Hodgkins lymphoma was reasonable it understood its task to be to “evaluate” or “weigh” the evidence of Dr Parkin against what appeared in the medical studies.  Indeed, the Tribunal undertook that “evaluation” process.  This was an impermissible task unless its object was to determine whether Dr Parkin’s proposition was fanciful, unreasonable, untenable or the like. However, this was not and could not have been the object of the Tribunal.  By themselves the medical studies could not establish that Dr Parkin’s views were fanciful, unreasonable, untenable and so on.  All that those studies were capable of establishing was that there was no scientific evidence to support Dr Parkin’s thesis.  But as the High Court has pointed out, that fact would not negate the reasonableness of an hypothesis: see Bushell at 430. Moreover, what the Tribunal appears to have embarked upon is an attempt to determine whether the hypothesis could be established. That this is not its function is made plain by s 120 (6).

Even assuming that it was proper for the Tribunal to evaluate the evidence of Dr Parkin in the manner that it did, there is a further error in its reasoning.  The hypothesis advanced by Dr Parkin was not to be “evaluated” for its reasonableness by reference to the medical studies alone.  Any process of evaluation should have taken all the relevant evidence into account.  For example, there was evidence from both Dr Fairley and Professor Fox which supported the view that the cause of Mr Webb’s death was a non-Hodgkins lymphoma.  The Tribunal appears to have ignored this evidence and in so doing fell into legal error.

The reasons disclose one other error of law.  It also arises in the Tribunal’s consideration of that part of the hypothesis that asserts that Mr Webb suffered from a non-Hodgkins lymphoma.  The Tribunal said that the fact that some pathologists thought this diagnosis unlikely made the hypothesis “more tenuous than it would be if the diagnosis of the disease was known”.  In Bushell at 415 the High Court was at pains to make clear that any conflict with medical opinion was not a sufficient reason to conclude that an hypothesis was unreasonable. Nor does such evidence necessarily make an hypothesis “more tenuous”. It all depends on the content of the opposing view. Of course opposing material must be looked at to examine the validity of the reasoning which supports the alleged connection between death or injury and war service: see Bushell at 415. In undertaking that examination the Tribunal should not start with the predisposition that an hypothesis is weak or lacking in substance merely because there is opposition to it as the Tribunal seems to have done in this case. Approaching an hypothesis with such a predisposition was all the more dangerous when the true position was that not all of the pathologists and doctors thought the diagnosis of non-Hodgkins lymphoma untenable or unlikely.

The result is that the decision of the Tribunal must be set aside and the matter remitted to be heard and determined again by the Tribunal constituted by a different member.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice FINKELSTEIN

Associate:
Date:  24 October 1997
Counsel for the Applicant:  Mr D. De Marchi
Solictor for the Applicant:  De Marchi & Associates
Counsel for the Respondent:                Mr P Hanks
Solicitor for the Respondent:                Australian Government Solicitor
Date of Hearing:  4 August 1997

Date of Judgment:  24 October 1997