Re Charles Ernest Gilbert v Repatriation Commission [1989] FCA 31 (27 February 1989)

FEDERAL COURT OF AUSTRALIA

Re: CHARLES ERNEST GILBERT
And: REPATRIATION COMMISSION
No. NSW G1245 of 1988
FED No. 94
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal in relation to an application under Veterans' Entitlements Act 1986 - whether material "raised reasonable hypothesis" within the meaning of s.120(3) Veterans' Entitlements Act - relationship of s.120(1) to s.120(3) - whether sufficient process of reasoning given by the tribunal - whether tribunal's decision involved any error of law.

Administative Appeals Tribunal Act 1975 (Cth) s.44(1)

Repatriation Act 1920 (Cth) (since repealed)

Veterans' Entitlements Act 1986 (Cth) ss.9, 119, 120

HEARING

SYDNEY
27:2:1989

Solicitor for the Applicant: C. Colborne instructed by

Legal Aid Commission of New South Wales

Counsel and Solicitor for P. Fleming Q.C. and the Respondent

J. Steele instructed by

Australian Government Solicitor

ORDER

The appeal be dismissed.

The applicant pay the costs of the respondent.

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

DECISION

The applicant, Mr. Gilbert, appeals, pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal constituted by Mr. McMahon, Senior Member, dismissing the applicant's appeal from a decision of the Veterans' Review Board dated 29 May 1986.

2. The applicant suffers from carcinoma of the colon and made a claim in respect of this incapacity under the then Repatriation Act 1920 (Cth). The applicant claimed that his incapacity was related to his service in the Australian Army which for relevant purposes was in respect of the period from 3 September 1939 to 14 February 1946. Upon the applicant's claim and appeal under s.28 of the Repatriation Act to the Repatriation Commission being rejected he then appealed to the Veterans' Review Board which on 29 May 1986 affirmed the Commission's decision to refuse the applicant's claim. The applicant then appealed to the Administrative Appeals Tribunal against the decision of that Board.

3. The Veterans' Entitlements Act 1986 (Cth) ("the Act") was assented to on 19 May 1986. That Act repealed the Repatriation Act and by force of s.17 of the Veterans' Entitlements (Transitional Provisions & Consequential Amendments) Act the applicant's claim, having been made before the commencement of the Veterans' Entitlements Act 1986 falls to be dealt with as if made under the Veterans' Entitlements Act.

4. The applicant claimed that his carcinoma was a "war-caused disease" within the meaning of that expression in s.9(1)(b) of the Act which provides that "a disease contracted by a veteran shall be taken to be a war-caused disease, if ...

"(b) the... disease contracted, by the veteran
arose out of, or was attributable to, any
eligible war service rendered by the veteran;"

5. Relevant to the issues before me are ss.119 and 120 of the Act which provide relevantly:

"119. (1) In considering, hearing or determining,
and in making a decision in relation to -

(a) a claim or application; ...

the Commission -
(f) is not bound to act in a formal manner and is
not bound by any rules of evidence, but may
inform itself on any matter in such manner as
it thinks just;
(g) shall act according to substantial justice and
the substantial merits of the case, without
regard to legal form and technicalities; and
(h) without limiting the generality of the
foregoing, shall take into account any
difficulties that, for any reason, lie in the
way of ascertaining the existence of any fact,
matter, cause or circumstance, including any
reason attributable to -
(i) the effects of the passage of time,
including the effect of the passage of
time on the availability of witnesses;
and
(ii) the absence of, or a deficiency in,
relevant official records, including an
absence or deficiency resulting from the
fact that an occurrence that happened
during the service of a veteran, or of
a member of the Defence Force or of a
Peacekeeping Force, as defined by
sub-section 68(1), was not reported to
the appropriate authorities.
...
120. (1) Where a claim under Part II for a pension
in respect of the incapacity from injury or disease
of a veteran, or of the death of a veteran, relates
to the operational service rendered by the veteran,
the Commission shall determine that the injury was
a war-caused injury, that the disease was a
war-caused disease or that the death of the veteran
was war-caused, as the case may be, unless it is
satisfied, beyond reasonable doubt, that there is
no sufficient ground for making that determination.
...
(3) In applying sub-section (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 rendered by the person, the
Commission shall be satisfied, beyond reasonable
doubt, that there is no sufficient ground for
determining -
(a) that the injury was a war-caused injury
or a defence-caused injury;
(b) that the disease was a war-caused disease
or a defence-caused disease; or
(c) that the death was war-caused or
defence-caused,
as the case may be, if the Commission, after
consideration of the whole of the material before
it, is of the opinion that the material before it
does not raise a reasonable hypothesis connecting
the injury, disease or death with the circumstances
of the particular service rendered by the person.
...
(5) Nothing in the provisions of this
section, or in any other provision of this Act,
shall entitle the Commission to presume that -
...
(b) a disease contracted by a person is a
war-caused disease or a defence-caused
disease; ...
(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."

6. Before the Tribunal the applicant advanced three hypotheses which it was claimed were reasonable hypotheses for the purposes of s.120(3) of the Act. These hypotheses as summarised by Mr. McMahon at paragraph 23 of his Reasons for Decision were as follows:

"The first was that through a combination of diet,
stress and dehydration suffered by the applicant
during the course of his operational service, he
became chronically constipated and that this
constipation directly caused the colon cancern.
The second hypothesis was that the condition of
constipation masked the existence of polyps, thus
delaying diagnosis and treatment of the cancer.
The third hypothesis was that the applicant endured
an inferior low fibre diet during operational
service and that this diet caused the cancer."

7. Each of the hypotheses was said, before the Tribunal, to be based upon reports given by a Dr. Payne who gave evidence before the Tribunal.

8. The Tribunal in rejecting the application was of the opinion that none of the three hypotheses were "reasonable" within the meaning of s.120(3). No challenge is made in respect of the Tribunal's findings so far as those findings relate to the first and third hypotheses.

9. In the course of his reasons, Mr. McMahon referred to what had been said by Beaumont J. at first instance in Repatriation Commission v. Webb (1987) 76 ALR 131 at p 135:

"The point sought to be achieved by the
introduction into s.120 of the notion of a
'reasonable' hypothesis is the distinction between
a theory that is rationally based, on the one hand,
and an opinion or view that is irrational, absurd
or ridiculous, on the other. It is possible,
especially as here, where the aetiology of the
disease is unknown, to have more than one
reasonable hypothesis advanced which suggest
different causes of the disease. The exercise is
not one of balancing or weighing the respective
merits of a range of professional opinions.
Rather, it is a case of determining whether the
particular theory has a rational foundation. It is
not a question of considering the probabilities or
even the possibilities."

10. There is no disagreement between the parties as to the correctness of this statement of principle. However, Mr. McMahon then continued in paragraph 35 of his reasons:

"His Honour's decision was overturned on appeal but
not on the grounds that he had misconceived the
correct legal principles to be applied.
Nevertheless, there remains a requirement that an
hypothesis must have not only the negative
qualities of not being irrational, absurd or
ridiculous; it must also have the positive quality
of being 'reasonable'. If there is no evidence to
support it, it can hardly be said to be based upon
reason or, in other words, to be reasonable."

11. The applicant challenges the last sentence of this passage as being an incorrect statement of law and submits that Mr. McMahon fell into error in applying that sentence to the second hypothesis.

12. McMahon deals with the matter at paragraphs 36 to 38 of his Reasons, which read as follows:

36. The same observations can be made in relation
to the second hypothesis put forward by the
applicant, namely the delay caused by the
existence of constipation which in turn
delayed diagnosis and treatment.
37. This hypothesis was based on what might be
described as a 'throw away' observation by Dr.
Payne in these words -
'There was an obvious delay in diagnosis
because the cancer was not seen on the
barium enema x-ray. It could be presumed
the medical practitioners index of
suspicion was reduced by the patient's
'normal' but irregular bowel habit. The
symptoms irregular bowel habit,
constipation, diarrhoea and change in
bowel habit are all associated with bowel
cancer. This bowel habit must also have
caused the patient delay in his
recognition that something new was
happening. It is well known that
carcinomas take many months, or years to
enlarge sufficiently to cause complete
bowel obstruction.'
38. No further evidence was tendered in support of
this hypothesis. It is clearly speculation.
There is no evidence that delay occurred.
There is no evidence that the symptoms of a
polyp existed. In the absence of evidence,
any such hypothesis based upon such
speculation can not be regarded as reasonable."

13. It was submitted for the applicant that the Tribunal had erred in failing to provide a satisfactory process of reasoning for its finding that the second hypothesis was not reasonable. It was said alternatively, or perhaps additionally, that in reaching its conclusion that the second hypothesis was not reasonable, the Tribunal misdirected itself as to the construction to be given to ss.120(1) and (3) of the Act and in particular in requiring the existence of evidence of the hypothesised facts as a necessary prerequisite of an hypothesis being reasonable.

14. It was submitted that it was irrelevant to the issue before Mr. McMahon both whether there was evidence that delay had occurred or whether there was evidence that the symptoms of a polyp existed. No challenge, indeed, was made to either of these findings of fact.

15. It was submitted that, in a case such as the present, taking, for example, the factual matter of the existence of the symptoms of a polyp, the correct approach was to ask, not whether there was evidence of some sort before the Tribunal that the applicant did in fact have a polyp, but, rather, whether the hypothesis as a whole, including the issue of whether the applicant had a polyp was fanciful or unreal so as to make the hypothesis not a reasonable one within the meaning of s.120(3), cf. East v. Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518 at p 533.

16. The meaning of s.120, and particularly the relationship between s.120(1) and s.120(3) is not without difficulty, nor for that matter is the relationship between those two sections, on the one hand, and s.119 on the other.

17. The explanation of the somewhat peculiar wording of s.120(3) and its juxtaposition with s.120(1) is to be found in the history of the provisions which is discussed in detail by this Court in East v. Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518. Suffice it to say that the situation prior to 1985, as determined by the High Court in O'Brien v. Repatriation Commission [1985] HCA 10; (1985) 155 CLR 422 under the then Repatriation Act, was that the Commission was obliged to grant a claim unless it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. No onus of proof of a claim was placed on a claimant but where, in a particular case, the material before the Commission or Tribunal, did not provide any "positive inference in favour of the requisite connexion between death or incapacity and war service, then the Commission or Review Tribunal must be satisfied beyond reasonable doubt that there are insufficient grounds to grant the claim." Per Gibbs C.J., Wilson and Dawson JJ. at pp 433-4.

18. The 1985 amendment to the Repatriation Act and the subsequent Veterans' Entitlement Act of 1986 drew on what had been said by Brennan J. dissenting in O'Brien at p 438 where his Honour had said:

"Section 47 thus operates in a context where an
investigation has been carried out with reasonable
diligence and where all the relevant facts
ascertained in the investigation and furnished by
the claimant are before the decision-maker. If the
facts thus ascertained support a reasonable
hypothesis that the claimant is entitled to a
benefit under the elibigility provisions of the
Act, the Board or the Commission must determine to
grant the claim. If a reasonable hypothesis of
entitlement arises on some of those facts, the
Board or Commission must determine to grant the
claim unless other facts dispel the hypothesis
beyond reasonable doubt. If the Board or
Commission is satisfied that no reasonable
hypothesis of entitlement is supported by the facts
or that any such reasonable hypothesis is dispelled
beyond reasonable doubt, the Board or Commission
should reject the claim. Where, on the whole of
the material no reasonable hypothesis of
entitlement arises, there are 'insufficient grounds
for granting the claim'." (emphasis added)

19. As this Court pointed out in East, both the 1985 amendments to the Repatriation Act and the enactment of the current legislation evinced a continuing intention to overrule the law as enunciated by the High Court in O'Brien.

20. In East's case a number of hypotheses were advanced suggesting a connection between Mr. East's war service and his death. By way of example, one of the hypotheses concerned diet and it was said that there was during the war service a lack of vitamins A and C and that the diet was high in nitrates. There was, however, no evidence from which the Tribunal could reach a conclusion as to whether or not there were deficiencies in Mr. East's war time diet. The Tribunal thus found that there was no evidence sufficient to ground a hypothesis of causal connection with war service in the case of diet.

21. Before the Full Court in East it was said that the Tribunal had misconstrued s.120 and in particular what was meant by the requirement for a reasonable hypothesis connecting the death with war service. It was argued that s.120 in effect retained the O'Brien position, that is to say, that provided there was a real possibility of a causal relationship between war service and incapacity or death, and in the absence of proof beyond reasonable doubt of facts negativing that relationship, the claim must succeed. This argument was rejected having regard both to the history of the legislation and the meaning of the phrase "reasonable hypothesis".

22. The Court approved an explanation of the meaning of the phrase "reasonable hypothesis" emanating from a decision of a Veterans' Review Board in Stacey (Nos. V83/0396, V84/0821 and V28/072) in the following terms:

"'A hypothesis may be conveniently defined as:
'proposition made as basis for reasoning, without
assumption of its truth; supposition made as
starting point for further investigation from known
facts; groundless assumption': 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 acceptabiltiy or credibility - it
must not be obviously fanciful, impossible,
incredible or not tenable or too remote or too
tenuous. For a reasonable hypothesis to be
'raised' by material before the Board, we think it
must find some support in that material - that is,
the material must point to, and not merely leave
open, a hypothesis as a reasonable hypothesis. At
the same time, however, a hypothesis may be
reasonable without having been proved (either on
the balance of probability or beyond reasonable
doubt) to be correct as a matter of fact...'"
(emphasis added)

23. The judgment of the Court continued at p 534:

"We agree with this analysis. A reasonable
hypothesis requires more than a possibility, not
fanciful or unreal, consistent with the known
facts. It is an hypothesis pointed to by the
facts, even though not proved upon the balance of
probabilities." (emphasis added)

24. It seems to me relatively clear, both from the wording of s.120(3) and, indeed, from what was said in East's case, that an hypothesis advanced in abstract which is not grounded in facts which are before the Tribunal could not be a reasonable hypothesis. The hypothesis must expressly be one which is raised by the material which is before the Tribunal. An hypothesis which exists in abstract can not easily be said to have been raised at all by the material before the Tribunal. Even if it be a possible interpretation of s.120(3) that an abstract hypothesis is raised merely by the assertion of that hypothesis, such an hypothesis could not be said to be a reasonable hypothesis of the relationship between the injury, disease or death, on the one hand, and the war service, on the other.

25. Thus s.120 is not concerned with abstract theories or hypotheses but is concerned with hypotheses which are grounded in fact. In other words, there will be a need for some evidence before the Tribunal to convert an hypothesis from being abstract to one having relevance to the facts of the particular case. In the absence of such facts which are a condition precedent to the hypothesis, the hypothesis even if it may be said to have been raised at all will certainly not show any relevant connection between the injury, disease or death and the war services and for that reason would not be a reasonable hypothesis.

26. Reference was made during the course of argument to the decision of the Full Court of this Court in Webb v. Repatriation Commission (1988) 78 ALR 696. It was put by counsel for the Commission that there was an inconsistency between East's case, on the one hand, and Webb, on the other, and that I should follow East in preference to Webb. It was also submitted that so far as relevant to the present case the issues were not fully argued in Webb and, in any event, the comments made in that case were obiter.

27. The claimant in Webb claimed that the cancer from which he suffered had been caused by a blow to his arm occasioned during war service. The Commission appealed from a decision of the Administrative Appeal Tribunal determining that the claimant was entitled to a pension. The question of law discussed in the appeal was the construction of s.120(3) of the Act and its relationship with s.120(1).

28. In the course of his judgment, Davies J. referred in some detail to the decision of the Court in East and continued at pp 699-700:

"Section 120(3) thus requires there to be material
which postulates a reasonable theory or hypothesis
positively connecting the claimant's incapacity or
death with his war service. But that is not to say
that s.120(1) is otiose or has no work to do.
Indeed, the legislative terms which were considered
in Law's case and O'Brien's case were re-enacted in
s.120(1) after both those decisions had been given.
Section 120(1) establishes the primary standard
with respect to matters of fact, that is to say
that if there be doubt as to the existence of a
crucial fact, the claimant has the benefit of that
doubt unless the non-existence of that fact is
established beyond reasonable doubt. The
requirement in s.120(3) of a reasonable hypothesis
is not a requirement that facts must be established
positively in the claimant's favour. Section
120(3) operates in the light of the standard
established by s.120(1), notwithstanding that it
requires that on the whole of the material there
must be a reasonable theory or hypothesis
connecting the incapacity or death to the war
service.
Necessarily, a theory or hypothesis which is
otherwise reasonable may be dispelled or brought to
nought if there be proof beyond reasonable doubt
that one of the facts, which, according to the
theory or hypothesis is essential to the connection
postulated, does not exist." (emphasis added)

29. After referring to what Brennan J. had said in O'Brien's case his Honour continued:

"Take, for example, a case where there was a
reasonable theory or hypothesis connecting the
development of a cancer, the subject of a claim,
with an injury which was alleged to have occurred
during war service. It if were proved beyond
reasonable doubt that that injury had in fact
occurred, not during war service, but shortly after
war service ended, that proof would bring the
otherwise reasonable hypothesis to nought."
(emphasis added)

30. In the same case Foster J. said at p 705:

"The combined effect of the two sub-sections is, in
my view, that the basic factual material, the data,
upon which the reasonable hypothesis referred to in
s.120(3) may or may not be raised, must, at the end
of the day, be found by the Commission to exist,
unless its existence is negatived beyond reasonable
doubt; the hypothesis or theory of connection
between the veteran's service and his injury,
disease or death, postulated upon this data is not
required to be established to any degree of proof
commonly referred to in the law. It is merely
required that the hypothesis be reasonable, not
fanciful or unreal, and that it be 'pointed to by
the facts, even though not proved on the balance of
probabitities': East v. Repatriation Commission
[1987] FCA 242; (1987) 74 ALR 518 at p 534. It is thus clear
that it is quite incorrect to speak of any
legislative requirement that a veteran's claim
should succeed unless a hypothesis so raised be
'dispelled beyond reasonable doubt.'
In any given case, s.120 requires, in my view, that
the Commission survey the whole of the relevant
material before it and determine whether there is
established a basic foundation of fact upon which
the required hypothesis of connection can be
raised. In determining whether this foundation
exists, it applies the prescribed 'heavy burden of
disproof' (per Toohey J., Law v. Repatriation
Commission (1980) 29 ALR 64 at 74). The
Commission then must determine whether, upon the
foundation so established, the reasonable
hypothesis of connection is raised. This
determination may involve simply a process of bare
reasoning from this foundation of fact (cf Adelaide
Stevedoring Co. Ltd. v. Forst [1940] HCA 45; (1940) 64 CLR 538
at 563-4) or may require the consideration of
competing propositions as to the connection or lack
of it advanced by way of expert medical testimony;
or both. It is quite clear that into this area of
deliberation there must not intrude any question of
onus of proof in the accepted sense of either the
veteran or the Commission bearing an overall burden
or proof in the case; nor of any particular
standard of proof, let alone one of disproof to the
criminal standard of a postulated connecting
hypothesis."

31. In my view there is no inconsistency at all between what is said in East's case and what is said in Webb.

32. Where, as will usually be the case, the material before the Commission does not itself show a clear connection between the death or incapacity or injury and the member's war service, it will be the duty of the Commission to examine the material before it to see whether that material raises an hypothesis which connects the injury, disease or death with the claimant's war service. The Tribunal must consider whether any hypothesis so raised is reasonable. If the material before the Commission discloses no evidence at all grounding the hypothesis so that the hypothesis is merely abstract, then it may be said either that the hypothesis is not raised on that material at all, or that such hypothesis is not, having regard to that material, a reasonable one. In other words, there must be some evidence to be found in the material before the Tribunal, or, as was said in East, the hypothesis must "find support in that material, that is, the material must point to and not merely leave open, a hypothesis as a reasonable hypothesis."

33. Taking by way of example the facts in Webb, the material before the Commission must raise the hypothesis and the hypothesis must be reasonable; that is to say, there must be some evidence in that material as to a blow to the arm occuring to the veteran while on war service.

34. Once the Commission has formed the opinion that the material before it does raise a reasonable hypothesis then s.120(1) will fall to be considered. It may then come about that, having regard to the material before the Tribunal, the hypothesis is dispelled beyond reasonable doubt. This, with respect, in my opinion, is what was meant by Davies J. in the passage I have cited from Webb when his Honour dealt with the case where it was proved beyond reasonable doubt that, although the cancer might be hypothesised to have originated in an injury, that injury did not occur during war service. His Honour, in the passage cited, had assumed that there was first found a reasonable hypothesis, that is to say, one which in the East sense was grounded in fact. His Honour then considered the application of s.120(1).

35. The same idea, it can be said, is caught up by Foster J. when his Honour refers to the basic factual material upon which the reasonable hypotheses is raised being found "at the end of the day" to exist. The application of s.120(1) in a case such as the present, in my view, will normally arise only after the reasonable hypothesis has been raised on the material before the Tribunal, that is to say, only after there is some ground of fact which both raises the hypothesis and allows it to be described as reasonable. An interpretation of the relation between s.120(1) and s.120(3) of the Act which suggests that in determining whether an hypothesis is reasonable any fact upon the existence of which the hypothesis is dependent is to be assumed unless dispelled by the evidence beyond reasonable doubt, would be contrary to the clear legistative intention to replace the O'Brien test with that expressed in dissent by Brennan J. It is not to be assumed that the Court in Webb overlooked what had been said in East.

36. Ultimately, in the present case, the applicant did not seek to rely upon there being any conflict between the two cases. Indeed, it was submitted that East's case dealt with s.120(3), that is the effect of the requirement to raise the reasonable hypothesis and that Webb's case dealt with the interrelationship of s.120(3) and s.120(1) so that there could be no inconsistency. While, this is of course so, if there were any conflict between what was said in each case, I do not think that that conflict could be so readily resolved.

37. The applicant sought to make a distinction between the concept of an hyopthesis and the concept of a fact. It was said, for example, concentrating on the existence of polyps, that the existence of polyps was not really a fact upon which evidence had to exist but was itself an hypothesis. Reference was made to evidence before the Tribunal from Dr. Payne which suggested that cancer may be preceded in a certain percentage of cases by polyps. Let it be accepted that this is so, and let it further be accepted that the applicant's constipation contributed to a failure of early diagnosis because it masked the symptoms which the polyps may have caused, so that both the existence of polyps and the existence of delay could be described as part of the hypothesis. If the argument is, however, put this way the hypothesis becomes a simple one, namely, that constipation will always lead to cancer for the simple reason that cancer comes from polyps; constipation causes delay which masks the effects of polyps; therefore constipation causes cancer. However, this hypothesis is precisely hypothesis one, which the Tribunal rejected as not being a reasonable hypothesis having regard to the evidence before it.

38. Whether or not a particular hypothesis is, on the evidence, reasonable or unreasonable is a question of fact and not a question of law. As this Court said in Hooke v. Repatriation Commission (unreported 11 February 1988): "It was a matter for the Tribunal whether it regarded the hypothesis by which each of the applicant's claims was supported as reasonable." The Court continued:

"This court has recently emphasised in Apthorpe v.
Repatriation Commission (Davies, Lockhart and
Gummow JJ. unreported 25 November 1987) that, where
Parliament has committed to the tribunal a decision
which requires an exercise of judgment, it is
necessary for an appellant to show an error of law
in that exercise of judgment before the tribunal's
decision can be disturbed on appeal. Reference was
made to what Lord Brightman said in Puhlhofer v.
Hillingdon London Borough Council [1986] UKHL 1; (1986) 1 AC 484
at 518:
'Where the existence or non-existence of a
fact is left to the judgment and discretion of
a public body and that fact involves a broad
spectrum ranging from the obvious to the
debatable to the just conceivable, it is the
duty of the Court to leave the decision of
that fact to the pubic body to whom Parliament
has entrusted the decision-making power save
in a case where it is obvious that the public
body consciously or unconsciously, are acting
perversely.'
A decision under s.120(3), that the tribunal is of
the opinion that the material before it does not
raise a reasonable hypothesis connecting a disease
with the circumstances of the particular service
rendered by the applicant, is just such a decision
as falls within Lord Brightman's dictum."

39. It follows, in my view, that the Tribunal did not err in law in the test stated by Mr. McMahon in paragraph 35. It further follows that it would be my view that the Tribunal did provide a satisfactory process of reasoning for its finding that the second hypothesis was not reasonable, that basis being that there was no evidence before the Tribunal which grounded the hypothesis in the first place. It should perhaps be said that the reasons of the Tribunal, while abbreviated, seem to reflect the significance that was placed upon the argument before the Tribunal. Be that as it may, in my view the Tribunal did not err in law and there being no attack by the applicant in the present case on the finding that there was no evidence at all before the Tribunal either in relation to delay or in relation to the existence of polyps the appeal, in my view, must be dismissed.