White, Lenney Vant v Repatriation Commission
[1997] FCA 298
•28 APRIL 1997
CATCHWORDS
Veterans’ Entitlements - Judicial Review - whether it was open to the Administrative Appeals Tribunal to form the opinion that the material before it did not raise a reasonable hypothesis connecting the death of a veteran with his war service - whether there is evidence supporting a link between cancer and personality
Veterans’ Entitlements Act 1986 s 120
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Owens (1996) 70 ALJR 904)
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Jenkins unreported, 26 March 1997 (FCA Full Court)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259
Jenkins v Repatriation Commission (1996) 137 ALR 729
LENNEY VANT WHITE v REPATRIATION COMMISSION
No. NG 338 of 1996
CORAM: Lehane J
PLACE: Sydney
DATE: 28 April 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 338 of 1996
GENERAL DIVISION )
BETWEEN: LENNEY VANT WHITE
Applicant
AND: REPATRIATION COMMISSION
Respondent
CORAM: Lehane J
PLACE: Sydney
DATE: 28 April 1997
MINUTE OF ORDERS
THE COURT ORDERS THAT:
Appeal dismissed with costs.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 338 of 1996
GENERAL DIVISION )
BETWEEN: LENNEY VANT WHITE
Applicant
AND: REPATRIATION COMMISSION
Respondent
CORAM: Lehane J
PLACE: Sydney
DATE: 28 April 1997
REASONS FOR JUDGMENT
Lehane J:
This appeal from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal raises, once again, the question whether it was open to the Tribunal, on the material before it, to form the opinion (as it did) that that material did not raise a reasonable hypothesis connecting the death of a veteran with the circumstances of the particular service rendered by him. The question arises under s 120 of the Veterans’ Entitlements Act 1986 (the Act) as it continues to apply to claims made before 1 June 1994.
Facts and proceedings to date
John Oswald White was born on 23 November 1913. He married the applicant (Mrs White) on 26 December 1939. He enlisted in the Australian Army on 22 April 1941 and served in the Middle East. That service was “operational service” as defined in s 6 of the Act and accordingly Mr White was a “veteran” for the purposes of the Act. In 1942 he was discharged as medically unfit; he was diagnosed as suffering from “neurasthenia”, a condition which apparently would now be described as a post‑traumatic stress disorder. In 1967 he was granted a disability pension on the footing that he had a condition described as “inadequate personality” which was war‑caused. In 1978 he was diagnosed with prostate cancer; in 1989 he died; his death certificate recorded the direct cause of death as metastatic cancer and that the primary cancer was unknown. It is accepted, however, that the metastatic cancer (particularly liver metastases) resulted from an aggressive development of the prostate cancer.
None of those matters are controversial. Neither is it in controversy that Mr White exhibited characteristics, after discharge, not evident before he enlisted. He was aggressive and, frequently, violent. He drank heavily. There is evidence of one possible attempt suicide attempt.
Mrs White applied in 1989 for a widow’s pension. That application was rejected by the Repatriation Commission and by the Veterans’ Review Board. In January 1993 she applied again. Again, the application was rejected and the Veterans’ Review Board upheld the rejection, on the ground that it was:
... faced with a complete lack of evidence pointing to any causal connection between the carcinoma which caused the veteran’s death and his war service.
Mrs White appealed to the Administrative Appeals Tribunal. The Tribunal had the benefit of expert evidence: Dr Antony Kidman, head of the Neurobiology Research Unit at the University of Technology, Sydney and a practising clinical psychologist, gave evidence for Mrs White; the Tribunal also had before it evidence, on which the Commission relied, in the form of a written report of Professor Gabriel Kune and two reports, supplemented by oral evidence, of Dr John Levi, head of the Department of Clinical Oncology at Royal North Shore Hospital in Sydney. I shall have to return to the expert evidence. For present purposes it is enough to say that Dr Kidman propounded an hypothesis linking the cancer which caused Mr White’s death with the personality disorder and alcoholism which resulted from his war service. The report of Professor Kune, however, was to the effect that “an association between prostate cancer and war service in the case of Mr White cannot be made” and Dr Levi gave more detailed evidence to similar effect. The Tribunal considered the expert evidence and concluded:
Now, in this case as stated, the hypothesis contended for by the applicant gives rise to issues for debate. That is to say, to use Dr Levi’s words, it is an area that is worthy of research but on the material before us we are not satisfied that a reasonable hypothesis has been raised ... . The decision under review will therefore be affirmed.
Mrs White appealed to the Court. By the time the appeal came to be heard, on 5 September 1995, she had died. By consent, Moore J ordered, under O 6 r 15, that her solicitor be appointed to represent her estate for the purposes of the proceedings (I made a similar order at the commencement of the hearing of the present appeal). Moore J set aside the decision of the Tribunal; his Honour held that the Tribunal had failed to address the hypothesis advanced by Mrs White in the manner required by subs 120(3) of the Act. The Tribunal had not applied the subsection in accordance with the construction placed on it by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408, and Byrnes v Repatriation Commission (1993) 177 CLR 564:
What the Tribunal has done in the present case, in my opinion, is not to consider the hypothesis arising from the opinion of Dr Kidman and ascertain whether it is a reasonable one having regard to the evidence of Dr Levi but rather to prefer the opinion of Dr Levi and, as a consequence, reject in its entirety the opinion of Dr Kidman. The rejection of the opinion is not by reference to any deficiency in his reasoning or identified quantitative or qualitative inadequacy in the material upon which his opinion was based. There is nothing in the decision of the Tribunal that explains why Dr Kidman’s opinion should be rejected.
Accordingly, his Honour remitted the matter to the Tribunal for redetermination.
The Tribunal, differently constituted, reheard the matter on 5 February 1996. By agreement between the parties, the evidence before the Tribunal consisted of the appeal both which was before Moore J: in substance, the material which was before the earlier Tribunal. On 27 March 1996 the Tribunal delivered careful reasons for its conclusion that a reasonable hypothesis, linking Mr White’s death with his war service, had not been raised; accordingly, it affirmed the decision of the Veterans’ Review Board to refuse the application for a pension. Mrs White now appeals, once again, to the Court. Eleven grounds of appeal are pursued, each ground alleging an error of law by the Tribunal. The essence of the complaint, however, is that, in the way in which it considered and dealt with the expert evidence, the Tribunal misapplied, or acted on an incorrect construction of, subs 120(3) of the Act.
The expert evidence
Dr Kidman is a graduate in science. He obtained successively bachelor’s and master’s degrees and a doctorate. He is, as I have said, head of the Neurobiology Research Unit at the University of Technology, Sydney. He has undertaken training in clinical psychology. He has since the 1980’s been interested in what he describes as psycho‑oncology, the study of the effects of the central nervous system on cancer occurrence, recurrence and progression. He had undertaken, with Dr David Bell, a senior staff specialist oncologist at the Royal North Shore Hospital, a clinical trial concerning the effects of cognitive behaviour therapy on women with metastatic breast cancer. One of the aims of the research is to ascertain whether such therapy has an effect on the progress of the disease. Dr Kidman has a number of publications to his credit and he has worked with others involved in similar research and studies elsewhere.
The essence of Dr Kidman’s evidence appears in the following two paragraphs of his written report:
My own research is on the effects of emotional states such as anxiety and depression on the neuro‑endocrine system and cancer recurrence and occurrence. It would appear that Mr White suffered from anxiety and depression and violent anger outbursts following his return from the war together with his heavy smoking and drinking which he took up probably to alleviate these negative emotional states. Negative emotional states affect hormone levels in the blood such as corticosteroids which can regulate neoplastic cell growth or alter concentrations and activities of other hormones that affect cancer cells. There is also the effect of anxiety or stress on the body’s immune system through hormones that suppress immune function in chronically stressful situations or they may directly influence immune function via the nervous system. This whole area has been reviewed by Professor Sandra Levy of the University of Pittsburg’s School of Medicine in her book ‘Behaviour and Cancer’. There is additional evidence from the work of Dr David Speigel of Stanford and Professor Hans Eysenk of London. Dr Shekelle from the United States, also supports the hypothesis that there is a relation between depression and an increased risk of cancer in a twenty year follow up study he carried out of men at the Western Electric Company. Certain studies in animals have supported this hypothesis but in humans there are many more experimental and methodological difficulties.
The role of stress in cancer occurrence has been contentious for a long time, there are many researchers who do not support a causal role, the fact that from time to time cancers spontaneously regress, that a fighting spirit as opposed to stoic indifference increases survival time as shown by Dr Greer in the UK, support the hypothesis that emotional states such as anxiety, depression and anger are factors in cancer occurrence and recurrence. These negative emotions together with the alcoholism and drinking may well have produced the hormonal and immune system changes that led to Mr White’s cancer and as such it is reasonable to propose a causal relationship between his war service and the occurrence and his subsequent death from cancer.
The reference to smoking requires brief comment. Mrs White in her own statement and oral evidence did not suggest that her husband smoked. The evidence of Professor Kune and Dr Levi proceeded on the basis that he did not smoke. During the hearing before the first Tribunal, when the question arose during Dr Kidman’s oral evidence, Mrs White’s representative informed the Tribunal that smoking was “not an issue”.
I have mentioned the effect of Professor Kune’s evidence: he did not give oral evidence and, except for pointing out that his report as well as Dr Levi’s evidence categorically deny a known association between heavy alcohol consumption and prostate cancer, the Tribunal did not refer to his report. On the other hand, the Tribunal took considerable account of what Dr Levi said, both in his two written reports and in oral evidence.
Dr Levi had specialised in the field of medical oncology for 24 years. His experience covered a wide variety of malignancies including cancer of the prostate. He had also been involved in clinical and laboratory cancer research and had over 200 publications to his credit. His first report concentrated on the likely primary site which led to the metastases causing Mr White’s death. He also considered the question whether Mr White’s heavy consumption of alcohol might have caused or contributed to the development of his prostate cancer. He did not particularly, in his first report, consider a possible connection between psychological factors and the development of cancer. His conclusion, however, was that:
There is nothing in his war service that I consider to be either causal or contributory to the development or progression of his malignancy.
Dr Levi’s second report dealt specifically with the question whether there was a potential relationship between Mr White’s mental state and the development of the cancer from which he died. The substance of that report may, I think, be fairly summarised as follows. There have been a number of studies concerning possible links between various psychological conditions and personality types, on the one hand, and the development of cancer on the other; most of those studies have demonstrated no correlation; those few which have suggested a correlation have related to “personality types” different from Mr White’s or a “psychological depression” not (at least apart from the one apparent suicide attempt) a characteristic of Mr White’s behaviour, as reported, since the war. There have been no studies particularly concerned with the development of prostate cancer, but one study (to which Dr Kidman gave some weight), which appeared to show some relationship between depression and various forms of cancer in men, did not show such a correlation (indeed, indicated the reverse) in relation to prostate cancer; and two United States studies particularly concerned with veterans had not demonstrated any association between neuroticism and cancer mortality.
Dr Levi’s conclusion was expressed as follows:
Taking all these various studies into consideration, in relation to Mr White’s personality disorder, it is reasonable to conclude that this did not cause or contribute to the development or recurrence of his malignancy and therefore does not, in my opinion, represent an association between his cancer and war service.
In oral evidence Dr Levi added that:
Cancer of the prostate can occur essentially in any age group but classically it tends to be a cancer occurring in older men and the sort of peak incidents [sic] of cancer of the prostate is from the ages of 60 through to 75.
Mr White’s cancer was first diagnosed when he was about 66. In cross‑examination, Dr Levi maintained his evidence that Mr White’s personality, as reported, was quite different from the depressive or repressed personalities with which certain of the studies were concerned. He agreed, however, that the hypothesis that there might be a connection between psychological factors and the development of cancer was not contrary to scientific fact or contrary to the known phenomena. The last two questions and answers in his cross‑examination were as follows:
Or to the known phenomena or impossible ...? - No, it’s not impossible because that’s the whole point of medicine, is not it? There’s no such thing as never or impossible so that what I am saying is that the overwhelming body of evidence that is available, albeit it [sic] limited and not necessarily the best methodology in all aspects, does not support it. What evidence there is available is very, very limited, specifically related to one personality type only that I have just discussed and I think, in fact, if one wanted to look at terms of quality of the research of that verses [sic] the other research which is negative, the negative findings - sorry, the research with negative findings is better quality work than the positive ones and it far outweighs the negative [sic] stuff in terms of quality, quantity, timing and so on.
Just one last question - you are probably expecting this question as well: can you be absolutely sure that there is no contribution by stress or causation by stress with prostate cancer? - No, I cannot because, as I have said, there’s no such thing as never or impossible.
Dr Levi agreed that further research would be appropriate.
The Law
Section 120 of the Act has been quoted and considered in a great number of decisions, to some of which it will be necessary to refer. First, however, it is desirable to recall what the section says:
120.(1) Where a claim under Part II for a pension in respect of ... the death of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine ... that the death of the veteran was war‑caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3)In applying subsection (1) ... in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
...
(c) that the death was war‑caused ...;
... 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 ... death with the circumstances of the particular service rendered by the person.
Clearly, the logic of the provision requires that subs (3) be applied first: if the Commission forms the opinion which subs (3) refers, that dictates the result which must follow when subs (1) is applied (see Byrnes (1993) at 571). In forming its opinion, the Commission is to consider the whole of the material before it (“[the issue] is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal”: Repatriation Commission v Owens (1996) 70 ALJR 904). The question, however, is whether the material before the Commission “does not raise a reasonable hypothesis” connecting the death with the circumstances of service; at this stage of the inquiry, therefore, “proof of facts is not in issue” (Byrnes at 571) so that, particularly, findings as to contentious questions of facts are not made:
The material will raise a reasonable hypothesis within the meaning of s 120.(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
(Bushell at 414). In this case, of course, there could not be much doubt about what was relevant, for this purpose, in the material, though no doubt the “raised facts” could be stated with varying degrees of particularity. As a result of his war service, Mr White became a heavy consumer of alcohol and suffered a change of personality as a result of which, for the rest of his life, he was violent and aggressive and possibly, on one occasion, exhibited depression; he developed prostatic cancer which led in turn to metastases, the effects of which caused his death. The hypothesis “raised” by the material is that the conditions resulting from Mr White’s war service gave rise, in turn, to his prostatic cancer.
What, then, is the nature of the judgment that that Commission has to make when forming the opinion that an hypothesis raised by the material before it is not a reasonable one? Clearly an hypothesis is not reasonable if it is contrary to known fact, but the question is only whether a given hypothesis is reasonable, not whether its correctness is in any particular degree probable: in East v Repatriation Commission (1987) 16 FCR 517 at 532, 533, the Full Court approved the formulation that:
... to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.
The Full Court added:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
That formulation has been approved and applied on many occasions, including by the High Court in Bushell (at 414) and Byrnes (at 570). Consequently, there is no question, at this stage of the inquiry, of weighing competing hypothesis propounded by experts or opinions for and against a particular hypothesis; an hypothesis may be reasonable “although it is unproved and opposed to the weight of informed opinion” (Bushell at 415); and, consequently (Bushell at 414, 415):
... the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable”.
As the majority judgment proceeded to point out, however, it does not follow that the Commission is not required to have regard to the whole of the material (including that opposing a claim) in forming the opinion required by subs (3).
The approach required of the Commission is also the approach required of the Tribunal on appeal. The Court’s role, on appeal from a decision of the Tribunal, is different, because that appeal is only on questions of law. In the formation of an opinion, applying a correct construction of subs (3), the Tribunal decides a question of fact, a decision not open to further appeal: Owens at 904. For that reason, and because the true construction of the provision is well established by binding authority, in a case such as the present little is to be gained, in my view, by a close consideration of decisions of the Court concerning other decisions of the Tribunal on other facts. One of the unfortunate aspects of the provisions has proved to be that their true construction is, in many cases, easier to state than to apply and borderline cases occur frequently: Repatriation Commission v Jenkins unreported, 26 March 1997 (FCA Full Court) at 21.
The Tribunal’s reasons
The Tribunal discussed the evidence of Dr Kidman and Dr Levi and the competing submissions. It considered the decision of Moore J on appeal from the earlier Tribunal decision in a way which, in my view, shows a clear understanding of the basis on which the previous appeal had been successful. There follows a discussion of the leading authorities on the construction of s 120; the Tribunal then records its findings and conclusion. The Tribunal recognised (para 49) that Dr Kidman had not merely proposed an hypothesis consistent with the known facts but had given evidence as to biological mechanisms by which alcoholism or personality changes of the kind exhibited by Mr White might have physical consequences which could, in turn, produce circumstances favourable to the development of cancer (compare, for example, Jenkins at 22). The Tribunal recognised that the material before it raised facts which supported the hypothesis. Its reasons then proceed to examine the medical evidence; they refer to the results of the studies to which Dr Kidman and Dr Levi referred and the lack of support in them for an hypothesis associating personality characteristics of the kind shown by Mr White with the development of any cancer, particularly cancer of the kind from which Mr White suffered. They point out (para 56) that it was not surprising or unusual that Mr White should have contracted cancer of the prostate at the time when he did. While recognising Dr Kidman’s evidence as a researcher, they record (para 58) that he had done little work on the causation of cancer (as opposed to its progression), any in relation to cancer of the prostate or much in relation to male cancer patients. They distinguish Bushell (para 59) on the basis that the theory there propounded had “strong minority support” in scientific literature. The conclusion reached by the Tribunal and the essence of its reasoning are stated in the last three paragraphs of its reasons:
60.The applicant’s hypothesis is only a possibility consistent with the known facts. It is not “pointed to” or supported strongly enough by the facts, as the passage from East, supra requires. The hypothesis is too tenuous and remote to be reasonable.
The lack of support for it in the supporting material makes it a “mere theoretical possibility”, in accordance with Davies J’s judgments in Hamling, supra and Owens. We note that Einfeld and Drummond JJ decided differently to Davies J in Owens, but they did not criticise this aspect of his reasoning. Following the logic in that case (see paragraph 45, above), a hypothesis will be more than a mere possibility if it is corroborated by other research or closely fits the veteran’s medical history. The lack of persuasive supporting material for the hypothesis has already been noted. Nor is there much to connect it to Mr White’s history when the supporting material makes little reference to cancer of the prostate.
61.If it is enough that war service and death “might” or “may” be connected, as the applicant suggested (paragraph 27, above), it is difficult to see how a hypothesis could ever not be reasonable. In this case, there is a hypothesis with virtually no scientific support, countered by a medical expert in cancer, which does not fit the applicant’s profile. If we were to argue that a hypothesis as remote as this was “reasonable”, s 120(3) would effectively have no meaning at all.
DECISION
62.The Tribunal does not find the reasonable hypothesis required by s 120(3) of the Act: Under Bushell, supra, there is no need to consider s 120(1) because the Tribunal is satisfied beyond reasonable doubt that the veteran’s death was not war‑caused. Although the Tribunal was finally persuaded by the evidence of Dr Levi, it was not a case of simply preferring one expert over another, or not considering Dr Kidman’s evidence. The original decision of the Veterans’ Review Board to refuse Mrs White’s application for a War Widow Pension is therefore affirmed.
Applicant’s contentions
I have mentioned that in her notice of appeal the applicant alleged eleven separate errors of law as grounds of the appeal. The first was that the Tribunal erred “by considering whether a reasonable hypothesis had been raised” on the material instead of whether a reasonable hypothesis had not been raised. That ground, I think, prompts a reference to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259 at 272 and the obvious comment that the reasons of the Tribunal should be read fairly, as a whole. The opening sentences of para 60 of the reasons (which I have quoted) indicate, in my view clearly, that in substance the Tribunal asked and answered the right question.
The substance of the other grounds, and of the argument for the applicant at the hearing, was that the Tribunal had misapplied the test posed by subs 120(3), as expounded particularly in Bushell and Byrne: particularly, it had fallen into the error of weighing the respective qualifications and evidence of two experts and of reaching its conclusion on the basis of a preference of the evidence of one over that of the other; the Tribunal, it was said, had not questioned the validity of Dr Kidman’s reasoning. This was a case in which an expert in a relevant discipline had proposed an hypothesis which had some support in the literature and had suggested a scientific basis for the proposed association between Mr White’s heavy drinking and personality changes and the disease which caused his death. There was, accordingly, no proper basis on which the Tribunal could have formed the opinion that Dr Kidman’s hypothesis was not a reasonable one. The Tribunal, it was said, had wrongly found that the raised facts were insufficient to support the hypothesis or that the hypothesis was not pointed to by the raised facts. Further, though the Tribunal disclaimed any finding that the hypothesis was contrary to prove scientific facts or the known phenomena of nature, the approach which it actually took amounted in substance to such a finding, which was expressly contrary even to Dr Levi’s evidence.
Discussion of Applicant’s submissions; conclusion
It is easiest, I think, to start with the submission to which I have last referred. I cannot see why the Tribunal should not in this respect be taken at its word: it expressly disclaimed any finding that the hypothesis was contrary to proved scientific facts or the known phenomena of nature and, instead, expressly held that the hypothesis was too tenuous and remote to be reasonable. The substantial question, I think, is whether it was open to the Tribunal, on the material before it, to reach that conclusion. I put the question in that way, because I do not think it is open, on a fair reading of the Tribunal’s reasons, to conclude that it wrongly construed subs 120(3) or misunderstood the authorities to which it referred.
Understandably, the applicant placed stress on the comment in the majority judgment in Bushell at 414, 415, that:
the case must be rare where it can be said that the hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge.
Counsel suggested that although, strictly speaking, Dr Kidman was not a “medical practitioner” he was highly and relevantly academically qualified and had both research and clinical experience which enabled him to speak with authority. That may, no doubt, be accepted. The Tribunal was not, however, thereby relieved of its obligation to consider the material as a whole in order to form its opinion. In doing so, it was in my view entirely open to the Tribunal to consider not only Dr Kidman’s qualifications but his own recognition of the “controversial” nature of the hypothesis that cancer (any cancer) may be caused by stress or other personality factors, the fact that Dr Kidman’s direct experience was not related to cancer in men or to prostate cancer in particular and the fact that the current literature, as explained in some detail by Dr Levi (in a manner not inconsistent with anything Dr Kidman had said), provided very little general assistance, and no particular assistance, to the suggested hypothesis. Of course the case was not one where the hypothesis was contrary to known fact, or scientifically impossible. Nor, as Dr Levi agreed, was it a case where further study was inappropriate. The authorities indicate, however, that the hypothesis might nevertheless not be reasonable, being either too “tenuous” or too “remote”. On the material before it, in my view it was open to the Tribunal to conclude that the particular hypothesis was too tenuous or too remote and thus to form the opinion that the material before it did not raise a reasonable hypothesis connecting Mr White’s death with the circumstances of his particular service. That being so, the opinion was based on a finding of fact which the Tribunal was entitled to make and which cannot, therefore, be disturbed on appeal.
Although I have commented that little help is to be gained by considering other decisions on other facts, the point may, perhaps, be helpfully illustrated by contrasting this case with the facts of Jenkins, a case which the Full Court described (at 21) as a “somewhat borderline one”. The case concerned a relatively rare condition (see the judgment of Heerey J at first instance - Jenkins v Repatriation Commission (1996) 137 ALR 729 at 732), intra‑cranial meningioma. The question was whether a reasonable hypothesis was raised linking the development of the meningioma to incidents occurring during the applicant’s war service, when he suffered trauma to his head but not directly to the site where the meningioma later developed. The hypothesis on which the applicant relied was supported by a practicing neurologist of 25 years’ experience who was well acquainted with the condition from both study of the literature and clinical experience. The hypothesis had some support in earlier medical literature (dating, for example, from 1969) but more recent studies suggested that the only trauma giving rise to the later development of a meningioma was trauma directly affecting the site, not more generalised head trauma. The neurologist was, however, able to offer a medical explanation of the mechanism by which more general head trauma might cause a meningioma to develop; and he expressed the positive opinion that the likely cause of the applicant’s meningioma was the trauma which he had sustained during the war. The reasonableness of the hypothesis was disputed vigorously by the director of the Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital. He relied on more recent studies for his opinion that the applicant’s hypothesis was not a reasonable one. The director (see Full Court judgment at 21) expressed the opinion that “it was not possible to speculate reasonably that the trauma was linked to the development of the meningioma at such a different site” and that, in the light of this, the hypothesis of a connection was “fanciful, impossible and not tenable” and that it was “not a rational hypothesis” and was “not scientifically based”. Apparently there was a greater degree of advocacy on the part of the experts in that case than there has been here.
The Full Court was clearly impressed (as the Tribunal had been) by the evidence contrary to the hypothesis and by the more recent studies supporting that evidence, but concluded that in that “somewhat borderline case” it was not open to form the opinion that the neurologist’s hypothesis was not a reasonable one: the neurologist had 25 years of directly relevant clinical experience; the hypothesis had support (albeit not very recent support) in the medical literature; and the neurologist was able to suggest a mechanism by which trauma of the kind suffered might give rise to the condition in question.
This case is concerned with what is undoubtedly a considerably more common condition: a condition from which a number of men suffer at about the age at which Mr White was diagnosed as having it. Nevertheless, no literature referred to in the evidence supported the hypothesis in relation to the particular condition; and the Tribunal was entitled to find that the support in the literature in relation to the initiation of cancer was slight indeed and even in relation to its progression at best equivocal. Equally, the Tribunal was entitled to find on the evidence before it that the expert who propounded the hypothesis had no direct clinical or research experience of the particular condition in question. It was also open to the Tribunal to find, as was clearly the case, that the expert who gave evidence in opposition to the hypothesis had not only considerable direct clinical experience but also considerable academic standing and a thorough acquaintance with the literature.
Those considerations, in my view, indicate that if Jenkins was on one side of the borderline, this case is on the other. That being so, it was open to the Tribunal to decide as it did.
Accordingly, the appeal should be dismissed with costs.
I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.
Associate:
Dated:28 April 1997
Heard: 7 April 1997
Place:Sydney
Decision:28 April 1997
Appearances: M G Vincent of counsel instructed by The Legal Aid Commission appeared for the applicant.
R M Henderson of counsel instructed by The Australian Government Solicitor appeared for the respondent.
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