Audrey Gover and Repatriation Commission
[2014] AATA 909
•8 December 2014
[2014] AATA 909
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0510
Re
Audrey Gover
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 8 December 2014 Place Brisbane The Tribunal affirms the decision under review.
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Dr M Denovan, Member
CATCHWORDS
VETERAN’S AFFAIRS – Pensions and benefits – Widow’s pension – Veteran’s death was not war-caused – No causal connection between veteran’s service and alcohol consumption – No evidence of stressful service – No evidence of events said to have caused stress during service happening – Reasonable hypothesis test not satisfied – Decision affirmed.
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth)
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning cirrhosis of the liver No. 107 of 2007
Statement of Principles concerning cirrhosis of the liver No. 81 of 2011
REASONS FOR DECISION
Dr M Denovan, Member
8 December 2014
INTRODUCTION
Mrs Audrey Gover, the applicant in these proceedings, is the widow of
Mr Alfred Claude Gover, who served in the Regular Army from 5 November 1941 to
12 November 1943, and the Royal Australian Air Force (“RAAF”) from
12 November 1943 to 30 May 1946 during World War II. He died of hepato-renal syndrome and micro-nodular cirrhosis on 22 December 1986. The applicant contends the veteran’s death was linked to his service in the RAAF. She applied for the widow’s pension under the Veterans’ Entitlement Act 1986 (Cth) on that basis.The applicant lodged her claim for payment of war widow’s pension on 3 January 2013. The Repatriation Commission’s decision of 23 January 2013 refused the applicant’s claim on the basis that the death of the veteran was not war-caused. The Veterans’ Review Board affirmed that decision on 12 December 2013. The applicant applied to this Tribunal for review of that decision on 29 January 2014.
The parties agreed at the outset of the hearing that the kind of death suffered by the veteran was cirrhosis of the liver. I must decide whether there is a causal connection between that condition and his operational service.
Mrs Gover was unable to attend the hearing. I was advised that she is unwell, and permanently hospitalised, and not in a state to give evidence, even by telephone. The contention advanced on her behalf is that as a result of stress he experienced during his RAAF service, the veteran commenced drinking and continued to drink. He drank heavily, sufficient to satisfy the quantitative requirements in the relevant
Statement of Principles (“SoP”), within a ten-year period before the clinical onset of cirrhosis of the liver, which according to the death certificate, was in 1984.The relevant SoP for cirrhosis of the liver is SoP No. 107 of 2007 as amended by
SoP No. 81 of 2011. The factor relied upon in SoP No. 107 of 2007 is cl 6(a) which reads as follows:6…
(a) For males, consuming at least 110 kilograms of alcohol within any then year period before the clinical onset of cirrhosis of the liver
Pursuant to cl 9 in SoP No. 107 of 2007:
“alcohol” is measured by the alcohol consumption calculations using the Australian Standard of 10 grams of alcohol per standard alcohol drink”.
Both parties agree that approximately 20 standard drinks a week, every week in a ten year period would satisfy the quantitate requirements of the SoP factor. Mr Williams, for the respondent, was prepared to concede that there was evidence which points to
Mr Gover having consumed that amount of alcohol in a ten year period commencing 1964.The veteran served in Hollandia (Dutch New Guinea) from 27 June 1945[1] until
1 March 1946.[2] There is evidence that points to him being a non-drinker when he enlisted in the RAAF. It is recorded on his RAAF enlistment record that he was a non-drinker and non-smoker.[1] Exhibit 4, page 3.
[2] Exhibit 4, page 4.
Mr Williams pointed out that there is no evidence which points to the veteran commencing drinking during his military service, or to him having consumed alcohol prior to 1964, Mrs Gover did not meet the veteran until 1977. She applied, unsuccessfully, for a war widow’s pension in 1987. As part of her earlier claim, she completed an alcohol questionnaire,[3] in which stated that her husband had been a heavy drinker from the time she meet him. She quoted her mother in law as stating the veteran “must have commenced drinking during his RAAF service”.
[3] Exhibit 1, page 7.
She did not claim to have direct knowledge of the veteran’s drinking habits in the period between the war and the time they met. She stated that she believed her husband commenced drinking during his service, however she did not give any evidence that connected the veteran’s continued alcohol consumption with his service. She did not refer to the veteran ever telling her of his experiencing stressful experiences during his service.
Mrs Gover’s grandchild, Ms Katrina Cosgrove, first meet the veteran when she was
13 years old. Ms Cosgrove prepared two statements, and gave evidence in person at the hearing. She said that she considered herself close to the late veteran. She said that she regularly spent time with her grandmother and the late veteran each Saturday afternoon and on Saturday evenings the three of them would regularly attend dances at various RSL clubs. Mrs Cosgrove told the Tribunal that she recalled her grandfather telling her that he “drank to forget the memories”. She said these conversations occurred whilst at the RSL, between dances. Although he enjoyed dancing, she said at these times her grandfather became visibly upset. He often told her the same thing when they were sitting around the dining table. On questioning, she said that he did not say what memories he was trying to forget. Mrs Cosgrove said that whilst her grandfather did not specifically say that he drank to forget war memories, she could not imagine what other memories he would be trying to forget.Ms Cosgrove said that she was aware late veteran was a radio operator during the war. He continued operating radios as a hobby after the war. Ms Cosgrove said her grandfather mentioned to her he had been bombed on several occasions, that he had seen friends who were flight crew running out of crashed planes that were on fire, and that on another occasion he saw another friend shot down. Ms Cosgrove could not recall her grandfather describing any of these events. Nor did she recall her grandfather talking about anything else to do with his service. Mrs Cosgrove did not know what country her grandfather s served in, or what rank he held. She said he did not discuss any details about his service, she did not know anything about his service, other than the mention of these traumatic experiences having occurred.
Whilst the evidence of Ms Cosgrove points to the late veteran’s drinking being causally related to his RAAF service, the trouble with the hypothesis advanced is that there is no evidence which points to any of the stressors Ms Cosgrove mentioned as having ever occurred. Further, the service rendered by the veteran was most unlikely to have exposed him to any of the many stressors Ms Cosgrove said he referred to .
Most Japanese aircraft present in New Guinea were wiped out by air raids performed by the Americans in Hollandia in late March 1945. The Japanese surrendered the remaining aircraft that were not destroyed in those air raids. After March 1945, the only remaining aircraft in the vicinity of New Guinea were on the island of Biak, in the West Indies, and were used in the unsuccessful attempts to defend that island, when . the Americans landed in May 1945. By the time the veteran arrived in New Guinea, in late June 1945, there were no longer any operational Japanese aircraft in New Guinea, either naval or army Had there been any bombing during Mr Gover’s time in Hollandia,
There are no records which point to any bombing in Hollandia during the period the late veteran was stationed there, and whilst it may be the case that some official records have been lost, had even one bombing occurred under the circumstances, it would have been so exceptional that there would be a record. To suggest that more than one bombing occurred during the period the late veteran was stationed there is fanciful.
In the historical report prepared by Dr Palazzo, dated 6 July 2014, it is said that the documents relating to the time Mr Gover was stationed in Hollandia are not extensive. This is because very little of note happened during the period. Dr Palazzo said that during the time the veteran was in Hollandia it was a base area that provided a link in the allied line of communications, and the focus in the existing records is of aircraft movements, unit administration and arrival and departure of officers.
Although there may be a period of time during Mr Gover’s service for which no records exist, given the circumstances at the time, had there been an incident of the nature of those reported by Ms Cosgrove, I consider there would be some record. It is incredulous, that the late veteran was exposed to so many traumatic events and yet there is absolutely no evidence that points to even one of the stressors described occurred.
Dr Palazzo said there was a record of two RAAF aeroplanes colliding whilst landing, but no one was hurt. Dr Palazzo opined that there may have been other accidents; however he was unable to get access to records of the US aircraft that were transiting Hollandia. As the stressors said to have been experienced by the late veteran involved Australian soldiers, I am satisfied beyond a reasonable doubt that the records of US aircraft would advance the applicant’s case.
There is no corroboration of Ms Cosgrove’s evidence in the evidence of either the applicant or the late veteran’s son.[4] Mr Williams contends the evidence of Ms Cosgrove is unreliable as she was only a child at the time she had conversations with her step grandfather, and the passage of time may have distorted her memory, and/or perhaps the veteran was describing events that occurred to others, and not referring to his own experiences.
[4] Exhibit 2.
Whilst there is evidence from Ms Cosgrove points to the veteran having experienced stress during the course of his service, and points to him drinking heavily to forget his memories, her evidence is inconsistent with the historical evidence and is not corroborated by any other source.
I am satisfied beyond reasonable doubt that one or more of the stressors Ms Cosgrove reports the veteran having mentioned, did not occur during his service in the RAAF. In those circumstances, I am satisfied beyond reasonable doubt that the late veteran’s consumption of alcohol was not causally connected to his military service. I am therefore satisfied beyond reasonable doubt that the hypothesis is not reasonable.
DECISION
The decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member. ...........................[Sgd].............................................
Associate
Dated 8 December 2014
Date of hearing 29 October 2014 Counsel for the Applicant Anthony Harding Solicitors for the Applicant Terence O'Connor, Terence O'Connor Solicitor Advocate for the Respondent Bruce Williams, Department of Veterans' Affairs
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