Bott and Repatriation Commission

[2008] AATA 376

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 376

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1762

VETERANS' APPEALS DIVISION		)
Re		MARJORY WINIFRED BOTT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date9 May 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS’ APPEALS – veterans’ entitlements – war widow’s pension – no causal connection between veteran’s alcohol habit and his operational service – veteran’s death not war-caused – decision affirmed

Veteran’s Entitlements Act 1986 (Cth) ss 13(1), 120(1), 120(3), 196B(14)(b)(f)

Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408

East v Repatriation Commission (1987) 16 FCR 517

Statement of Principles Instrument No 1 of 2004

REASONS FOR DECISION

9 May 2008   Mr J G Short (Member)

1.      Mrs Marjory Bott applied for a widow’s pension on 27 June 2006.  She relied on a contention that the death of her late husband Mr Colin Bott, on 29 December 2003, was war-caused.  On 9 November 2006 Mrs Bott’s claim was rejected by the Repatriation Commission (the Commission) and on 18 April 2007 the Veterans’ Review Board (the VRB) affirmed that decision.

2.      It is convenient to set out those matters which are not in dispute:

·Mr Bott served in the Australian Army from 27 February 1942 until 27 November 1945.

·Mr Bott was born on 19 December 1923 and died on 29 December 2003, at the age of eighty.  The cause of death was certified to be metastatic bowel cancer (years).

·Mr Bott rendered operational service, which included service in Darwin and Morotai.

·During his operational service, Mr Bott experienced events which might cause some people to form a drinking habit which involved a greater volume of alcohol than would otherwise have been the case.

·The relevant Statement of Principles (SoP) is Instrument No 1 of 2004.

·Mr Bott’s alcohol consumption satisfied the quantitative element of factor 5(c) of Instrument No 1 of 2004, that is “drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum;”.

3.      The issue for the Tribunal to determine is whether there is material pointing to a causal connection between the late veteran’s alcohol habit and the circumstances of his operational service.

legislative background

4.      Section 13(1) of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act) provides that where the death of a veteran is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the dependents of the veteran.

5.      As Mr Bott performed operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. This involves determining the “kind of death” and then applying the four-step process identified by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.

6.      The death certificate records Mr Bott’s cause of death as metastatic bowel cancer (years).  The condition was first diagnosed in November 2000 when Mr Bott was 77 years of age.  No contrary contention was put to the Tribunal and on the evidence the Tribunal is satisfied that Mr Bott died from malignant neoplasm of the colorectum.

consideration

7.      The first step in Deledio requires the Tribunal to consider all of the material that is before it and to determine whether that material points to a hypothesis connecting Mr Bott’s death with the circumstances of his service.  The hypothesis advanced in this case is suggested to arise out of circumstances including the fact that the veteran turned 21 years of age during his service (19 December 1944) and consequently prior to service was unable to lawfully drink.  It is suggested that on his return to reside in the Township of Murray Bridge his service meant that he was eligible to attend the Returned and Services League (the RSL) Club, which was open to members on some occasions when hotels were closed.  The applicant referred particularly to Wednesday and Friday nights.  This evidence, together with the suggestion that a climate of significant alcohol consumption existed at the RSL and that the late veteran sought out the company of other servicemen, was contended by the applicant’s counsel as a reason for the veteran’s pathological drinking habit.  It was also contended by a witness, Mr Robert Channon, that a lack of alcohol before turning 21 and during service caused returning service men to drink more during their post-service life than would otherwise have been the case.  It was also left open to the Tribunal to consider whether stressors, likely to have been experienced by Mr Bott during his service in Darwin, and later in Morotai, caused him to drink more than would otherwise have been the case, during his post-service life. 

evidence of mr channon

8.      Mr Channon told the Tribunal that he knew Mr Bott prior to their service in the Second World War.  He said that he did not meet up with Mr Bott during service, but on return to Murray Bridge after service he and Mr Bott, together with two other veterans, would meet at the RSL on Wednesday and Friday nights.  He said that they would probably have two long-neck bottles of beer.  He said that returning soldiers had a certain affinity and that they enjoyed the social life at the RSL.  He and Mr Bott also enjoyed each other’s company at their respective homes.  Mr Channon said that they mainly talked about the good times.  He could not recall Mr Bott indicating at any stage that his drinking pattern had been materially changed as a result of the circumstances of his service.

9.      Mr Channon said that he and Mr Bott would also drink after work at the Murray Bridge Hotel.  It was there that they would enter a school of four and consequently consume approximately four schooners of beer.  Mr Channon said that he and Mr Bott contributed to the building of a lawn bowling club and that they drank at the bowling club on Saturday nights and sometimes after night bowls.  Mr Channon said that only returned servicemen were able to drink at the RSL.  He said that he drank at the football club with other younger friends who had not served.  Mr Channon suggested that veterans were probably deprived of alcohol before and during the war and consequently made up for it on their return.

consideration

10.     After considering the whole of the material, I am satisfied that it does point to a hypothesis connecting Mr Bott’s death with the circumstances of his service and accordingly the first step of Deledio is satisfied.  Step 2 is also satisfied as there exists a SoP dealing with the cause of death.

11.     Step 3 involves considering all of the material before me, but without making any findings of fact at this stage of the process.  Under clause 4 of the malignant neoplasm of the colorectum SoP, at least one of the factors set out in clause 5 must be related to the relevant service, in this case operational service.

12.     Clause 5 then relevantly provides:

“5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting … death from malignant neoplasm of the colorectum with the circumstances of a person’s relevant service is:

…

(c) drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum;”

13.     Mr Bott was first diagnosed with bowel cancer in November 2000 and evidence provided to the VRB by the applicant was to the effect that Mr Bott reduced his alcohol consumption subsequent to retiring in 1979.  In these circumstances, the period of 25 years within the 40 years prior to the clinical onset of bowel cancer would commence in or about January 1960 and extend until about 1985.  As mentioned, it was conceded that Mr Bott’s drinking habit did meet the quantitative element of factor 5(c). 

14.     The difficulty in this case is that, in my view, there is no evidence that the late veteran’s operational service, either through experiencing stressors during service, or through an increased availability of alcohol post-service, particularly on Wednesday and Friday nights at the RSL or through any culture of drinking at the RSL, materially contributed to establishing his pathological drinking habit during a relevant period specified in the SoP. 

15.     While I can accept that Mr Bott’s service provided a basis for membership of the RSL and that the RSL Club in Murray Bridge was open two nights each week beyond 6.00 pm, the time at which hotels were required to close, I am not satisfied that the material points to these circumstances, nor any of the other circumstances referred to by the applicant’s counsel, materially contributing to Mr Bott’s drinking habit.  In this regard I have noted that the veteran drank at places other than the RSL, including the Murray Bridge Hotel, at his home and at the home of at least one other person.  Similarly, although it was conceded that the late veteran is likely to have experienced stressful events during his service, there is no evidence to the effect that any such experience materially contributed to his drinking pattern, nor is there any evidence to the effect that the veteran was deprived of alcohol after turning 21 years of age and prior to his discharge from the Army or that any such deprivation, possibly lasting approximately 12 months, caused him to drink significantly more during his post-service life than would otherwise be the case.  What is missing, in my view, is material connecting the circumstances of Mr Bott’s operational service with his latter pattern of consumption of alcohol. 

16.     As mentioned, at this stage I am only concerned to decide whether the hypothesis is reasonable.  As Mason CJ, Deene and McHugh JJ said in Bushell v Repatriation Commission (1992) 175 CLR 408:

“A hypothesis cannot be reasonable if it is contrary to proved scientific facts or to the known phenomena of nature.  Nor can it be reasonable if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.”

The Full Court of the Federal Court also stated in East v Repatriation Commission (1987) 16 FCR 517:

“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 on the balance of probability.”

17.     In my view, the contentions suggested by the applicant of a relevant nexus between Mr Bott’s death and his service are unsupported by any evidence.  The applicant’s counsel contended that there existed a temporal link in that Mr Bott drank more on his return from service than he had done prior to service.  Even if this is so, the establishment of a reasonable hypothesis connecting, in the requisite sense, the later development of excessive alcohol consumption with Mr Bott’s operational service requires more than a temporal link.

18.     In the light of the above mentioned circumstances I am unable to find step 3 of Deledio satisfied and I consequently affirm the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short

Signed:         .....................................................................................
  Associate

Date of Hearing  28 March 2008
Date of Decision  9 May 2008

Solicitor for the Applicant          Mr C Swan

Swan Lawyers

Advocatel for the Respondent  Mr A Crowe

DVA