Cockram and Repatriation Commission (Veterans' entitlements)
[2017] AATA 2378
•24 November 2017
Cockram and Repatriation Commission (Veterans' entitlements) [2017] AATA 2378 (24 November 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/6459
Re:Evelyn Cockram
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:24 November 2017
Place:Melbourne
The decision under review is affirmed.
............................[sgd]............................................
Senior MemberVETERANS’ AFFAIRS – war widow’s pension – whether veteran’s death was war-caused – Statement of Principles No. 37 of 2013 concerning Malignant Neoplasm of the Colorectum – factor 6(c), drinking at least 250 kilograms of alcohol before clinical onset – whether reasonable hypothesis connecting death of veteran with service – reasonable hypothesis not raised – decision affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth); ss 5E, 6A, 8, 9, 11, 13, 14, 20, 120, 120A, 196A & 196BCases
Bull v Repatriation Commission [2001] FCA 1832; (2001) 188 ALR 756
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Forrester and Repatriation Commission [2013] FCA 898
Meehan v Repatriation Commission [2001] FCA 597; (2001) 64 ALD 366
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD 877
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581
Repatriation Commission v Owens (1996) 70 ALJR 904
Secondary Materials
David Dexter, ‘Volume VI – The New Guinea Offensives’ in Australia in the War of 1939-1045: Series One – Army (Australian War Memorial, 1961)
Major F.J. Collins RFD (Rtd), Keepers of the gate: personal stories by NGVR soldiers: New Guinea Volunteer Rifles 1939-43 (NGVR and PNGVR Ex-Members Association Inc., 2016)
Statement of Principles Concerning Malignant Neoplasm of the Colorectum, No.37 of 2013, dated 21 June 2013.
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
24 November 2017
INTRODUCTION
Mrs Evelyn Cockram, the Applicant in these proceedings, has asked the Tribunal to review a decision made by the Veterans’ Review Board (VRB) on 31 October 2016.[1] The VRB had affirmed an earlier decision by a delegate of the Repatriation Commission (the Commission), that the death of Mrs Cockram’s husband was not related to his war service and consequently a war widow’s pension was not payable.[2]
[1] T-documents lodged 20 December 2016, hereafter referred to as Exhibit R1, pp. 2a-2k.
[2] Exhibit R1, pp.16-19.
The hearing was conducted on 1 November 2017. Mrs Cockram was represented by Mr Andrew Yuile of counsel, instructed by Williams Winter Solicitors. The Commission was represented by Mr Ken Rudge, an advocate of the Department of Veterans’ Affairs.
For the reasons that follow, the decision under review is affirmed.
BACKGROUND
Mrs Cockram is the widow of the late Mr George Cockram, a veteran of the Second World War, who died on 6 August 2015 from Metastatic Colorectal Carcinoma.[3] She first met her husband in 1946 after his discharge from the Army. They married on 11 May 1948 and remained together for over 67 years.
[3] Exhibit R1, p.13.
Mr Cockram first left Australia for New Guinea in February 1940 to work with the Bulolo Gold Dredging Company. He was attracted to New Guinea by the prospect of higher wages and adventure. In Australia he received around £5 each week as a crane driver, whereas in New Guinea he could earn £7 and his keep. Mr Cockram was 24 years of age and within a year had enlisted in the New Guinea Volunteer Rifles (NGVR), a militia unit of white settlers and expatriates. His experiences in New Guinea are included in the book ‘Keepers of the Gate: personal stories by NGVR soldiers.’[4] When the NGVR was mobilised in January 1942, Mr Cockram commenced full-time duty with the Australian Army and served from 27 January 1942 until his discharge on 1 June 1946.
[4] Major F.J. Collins RFD (Rtd), Keepers of the gate: personal stories by NGVR soldiers: New Guinea Volunteer Rifles 1939-43 (NGVR and PNGVR Ex-Members Association Inc., 2016).
Mr Cockram returned to New Guinea after the War to resume work in the gold industry. Mrs Cockram joined him there for about eight years and also for a period in South America, where Mr Cockram worked as a Dredge Master. He eventually returned to Australia and worked in a number of roles. In later years he was supported by the Corps of Commissionaires, an ex-service welfare and philanthropic organisation. His health gradually deteriorated and he was diagnosed with Metastatic Colorectal Carcinoma approximately six months before his death.
RELEVANT LEGISLATION AND AUTHORITIES
Operational Service. The expression ‘operational service’ is defined at sections 6 - 6F of the Veterans’ Entitlements Act 1986 (Cth) (the Act). Consistent with section 6A of the Act and a Determination made by the Minister of State for Veterans’ Affairs on 18 December 1987[5], Mr Cockram’s service with the NGVR and with the Australian Army both constitute eligible service under the Act.
[5] Exhibit R2.
Section 8 of the Act provides for circumstances when the death of a veteran is taken to be war-caused. Relevantly in this matter, section 8(1)(b) of the Act applies where ‘the death of the veteran arose out of, or was attributable to, any eligible war service...’
Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension ‘by way of compensation to the dependants of the veteran.’
Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1) provides that the term ‘dependant’ is defined to include ‘the partner’ or ‘the widow’ of the veteran, ‘other than a widow who re-marries or enters into a de facto relationship.’
Section 5E of the Act defines the term ‘widow’ to include a woman ‘who was the partner of a person immediately before the person died.’
War-Caused Injuries or Diseases. Section 9 of the Act provides, amongst other things, that:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
Date of Effect. Section 20 of the Act provides for the dates that may be specified in respect of grant of claim of pension. It is not contested in this matter that the earliest date of effect applicable to any decision to grant a widows’ pension is 14 October 2015.
Standard of Proof. As the Applicant’s claim relates to the operational service of a veteran, the applicable standard of proof is defined in section 120(1) and section 120(3) of the Act:
(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 injury was a war-caused injury, 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.
Note:This subsection is affected by section 120A.
(2)...
(3)In applying subsection (1) or (2) 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)…;
(b)…; 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…death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
Section 120(6) of the Act provides, in effect, that neither party has any onus of proving any matter relevant to the determination of the claim.
Section 120A of the Act is enlivened because Mrs Cockram’s claim was lodged after 1 June 1994. I am required to assess the reasonableness of the hypothesis connecting Mr Cockram’s death with his service, against the relevant Statement of Principles (SoP). Section 120A(3) of the Act provides:
(3)For the purposes of subsection 120(3), a hypothesis connecting…the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
...
that upholds the hypothesis.
If I find that a hypothesis is raised connecting Mr Cockram’s death to his service, its reasonability and validity must be determined in accordance with the stages established by the Federal Court in Repatriation Commission v Deledio[6], where the Court held at 97-98:
‘…we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.’
[6] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.
The plain meaning of ‘hypothesis’ was considered in East v Repatriation Commission[7] at 532:
‘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.’
[7] East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517.
In Repatriation Commission v Bey[8], the Court concluded at 372:
‘While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.’
[8] Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364.
In Bushell v Repatriation Commission[9], Mason CJ, Deane and McHugh JJ held at 414, citing East and Repatriation Commission[10], that a hypothesis is not reasonable if it is:
‘…obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.’
It was further stated at 414:
‘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 facts are true.’
[9] Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408.
[10] East and Repatriation Commission [1987] FCA 383; (1987) 16 FCR 517.
The High Court held in Byrnes v Repatriation Commission[11] at 571:
[11] Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564.
‘The position may be summarised as follows:
(1)First, sub-s.(3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.’
Section 196A of the Act establishes a Repatriation Medical Authority (RMA), which is an independent statutory authority that determines Statements of Principles (SoPs) for any disease, injury or death that could be related to military service. SoPs are based on sound medical-scientific evidence and state factors relating to service that must exist in order to cause a particular kind of disease, injury or death. A SoP is binding on decision-makers at all levels, including this Tribunal.
Section 196B(2) of the Act provides that:
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
…
The Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.
The reference in section 196B(2) of the Act to a particular kind of injury, disease or death being related to service, is elaborated upon at section 196B(14) of the Act:
(14)A factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)…
THE ISSUES
The issue for determination is whether the material before me gives rise to a reasonable hypothesis connecting Mr Cockram’s death with his war service.
EVIDENCE OF MRS COCKRAM
Mrs Cockram’s statement dated 22 November 2016 was taken into evidence.[12] She also gave evidence at the hearing and was cross-examined. Mrs Cockram recalls her husband frequently discussing his war experiences, including his escape after encountering a Japanese patrol, participating in the Battle of Shaggy Ridge, and how he sometimes ‘lived off what he could scavenge.’ She said her husband was very happy to be home after the War, but soon returned to New Guinea after accepting an offer from his former employer. Mrs Cockram accompanied her husband to New Guinea in 1947 and also for a period to South America, where he operated dredges in the gold mining sector. She says they enjoyed their eight years in New Guinea very much, and contextualised Mr Cockram’s alcohol consumption as convivial social interaction in places where there ‘was nothing much to do.’ She submits that Mr Cockram regularly purchased a 26 ounce (750 ml) bottle of spirits each week, describing him as a social person who enjoyed frequent parties with other expatriates to alleviate boredom and isolation.
[12] Exhibit A1.
Mrs Cockram understood that, prior to his departure for New Guinea in 1940, her husband only consumed alcohol on weekends. She said his mother was a staunch Salvationist and alcohol was not permitted in the family home. Mrs Cockram states she never joined her husband at hotels and did not personally witness how much he drank or who he drank with, but that he returned home inebriated ‘on occasions.’[13] When asked if the quantum of his drinking in New Guinea was more or less than earlier years, she replied: ‘much the same – he didn’t drink to excess.’ When asked if Mr Cockram talked more about New Guinea as he got older, Mrs Cockram replied: ‘Yes – he liked New Guinea more than the other places we lived in.’ Mrs Cockram stated that her husband’s references to war service did not change when he drank alcohol, but she considered it ‘possible’ that he drank to alleviate memories from those experiences.
[13] Exhibit A1, p.2.
Mrs Cockram explained that the dredges her husband helped operate in both New Guinea and South America worked 24 hours a day, broken up into day, afternoon and night shifts. Dredge operators rotated weekly through each shift type and Mrs Cockram stated her husband would only consume alcohol during day shift weeks and occasionally after completing an afternoon shift, but not during night shift weeks. When asked if Mr Cockram’s pattern of drinking changed as he got older, Mrs Cockram replied: ‘No – he stuck to the same pattern.’ She stated that he occasionally drank too much, but it never affected his work because he had a very responsible attitude to his job. When asked whether she had formed a view as to why her husband drank alcohol, Mrs Cockram again stated his drinking occurred predominantly in the context of social interaction, where expatriates would visit each other’s homes to enjoy supper, play music, dance, and engage in card games or Mahjong. She said her husband was a very social person who played the banjo and maracas, got on well with others, and enjoyed a successful working life before retiring at 65.
In her statement, Mrs Cockram submits that her husband ‘often woke at night and would smoke his pipe when he did so’ – possibly because of his war memories. But when afforded an opportunity during the hearing to elaborate on this, Mrs Cockram stated his wakefulness was more associated with medical issues - particularly problems with his oesophagus, eventually requiring elevation of his bed head on medical advice. She confirmed her evidence to the VRB that Mr Cockram did not have nightmares, nor did she detect any stress attributed to his war memories.
Evidence of Mr Charles Cockram
Mr Charles Cockram is the half-brother of Mr George Cockram. His statement dated 7 February 2017 was taken into evidence.[14] He gave oral evidence at the hearing and was cross-examined.
[14] Exhibit A2.
In his statement Mr Cockram describes his brother George as a ‘light social drinker’ prior to moving to New Guinea, with his alcohol consumption ‘confined to weekends’ due to their mother not being ‘keen on alcohol.’ He recalls that George preferred beer prior to the war and rum after it, but had never known him to be intoxicated. Mr Cockram remembers his brother recounting ‘a number of life-threatening events’, including an encounter with a Japanese patrol. He submits that he visited his brother in Brisbane for about a week after the War and knew he drank at the hotel bar, which Mr Charles Cockram was too young to frequent. He therefore did not observe how much alcohol his brother consumed or who he consumed it with, but stated that he had never seen him consume alcohol excessively. When asked about the effect of the war on his brother, Mr Cockram replied: ‘He seemed to cope very well.’
SUBMISSIONS
Mr Yuile submits that Mr Cockram’s war service made a contribution to his post-war consumption of alcohol, and it therefore follows that his death should be accepted as war-caused. He contends that Mr Cockram’s alcohol consumption prior to the War was mainly on weekends, whereas after the War it was several times a week, albeit ‘not to excess.’ He said this increased consumption resulted from the stressful and life-threatening experiences Mr Cockram was exposed to in New Guinea. Mr Yuile agreed there was very little evidence in this matter due to Mr Cockram’s advanced years, but highlighted the beneficial intent of the Act. He invited me to consider inferences raised by the evidence, consistent with Mortimer J’s judgement in Forrester[15] at [30], where Her Honour held that:
‘Whether material “points to” or “supports” a hypothesis is, of its nature, a matter which can be determined by inference or assumption: Elliott v Repatriation Commission (2002) 73 ALD 377; [2002] FCA 26 at [5]. In Stares (a pre-Deledio case), the Full Court held that assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach. Referring to the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes 177 CLR 564 at 569, the Full Court stated (66 FCR 594 at 601):
By there saying that “the material must point to some fact or facts” their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion.
[15] Forrester and Repatriation Commission [2013] FCA 898.
Mr Yuile accepted that in order to ‘raise’ a reasonable hypothesis, and for the material to ‘point to’ or support the hypothesis, more was needed than simply leaving it open as a possibility. He submitted that because Mr Cockram’s frequent reflections about the war persisted into old age, it could be inferred that aspects of his service were at least ‘a cause’ of his alcohol consumption – or part of his coping mechanism.
Mr Rudge submitted it was open for the Tribunal to conclude that the whole of the material did not point to a reasonable hypothesis, highlighting the evidence that Mr Cockram began drinking alcohol before the war and, from that time, was a regular but not excessive drinker. Mr Rudge contends that while a hypothesis may have been left open by the material, it is not pointed to by the material. Mr Rudge elaborated upon the requirement of a reasonable hypothesis, drawing upon the Full Court’s decision in Hill[16]:
‘…As a mere hypothesis, this fitted one of the templates in the PTSD SoP: cf stage 3 of the Deledio approach set out at [50] above.
As already noted, the primary judge stated, at [31] of his reasons, that it was sufficient to satisfy ss 120(3) and 120A(3) of the Act that the hypothesis relied on by Mr Hill fitted the SoP in this way. As the authorities show, however, in order to satisfy ss 120(3) and 120A(3) of the Act, there must be more than a hypothesis of connection that is consistent with the relevant SoP. In order to satisfy these provisions, the material must “raise” or “point to” such a hypothesis and this hypothesis, as raised or pointed to by the material, must fit the relevant SoP. Although the terms of [31] of his Honour’s reasons may signify error, we doubt that his Honour in truth failed to appreciate this latter requirement. Rather, as we see it, his Honour was focusing on another aspect of the matter (as to which, see below).
As already noted, the authorities have made the position with regard to ss 120(3) and 120A(3) of the Act clear enough. In Repatriation Commission v Bey (1997) 79 FCR 364; 47 ALD 481; 149 ALR 721 (which did not involve s 120A(3)), the Full Court reiterated earlier observations in East (at FCR 531-2; ALD 532-3; ALR 402-3) and in Bushell (at CLR 414; ALD 8; ALR 34) when it said (at FCR 372-3; ALD 490; ALR 730):
‘A ‘reasonable hypothesis’ involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.’
[16] Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581 at [52]-[54]; 595-596.
Mr Rudge also highlighted the Federal Court’s decision in Codd[17], where Gordon J, referring to Owens[18], held at 622 that:
‘As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533; 74 ALR 518 at 533-5; 12 ALD 389 at 402-4. See also Bey at FCR 366-7, 372-3; ALR 723-5, 729-31; ALD 484-5, 489-491; Bull v Repatriation Commission (2001) 188 ALR 756; 66 ALD 271; [2001] FCA 1832 at [18] and [41].’
[17] Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD 877.
[18] Repatriation Commission v Owens (1996) 70 ALJR 904.
Mr Rudge drew my attention to Bull v Repatriation Commission[19] (Bull) at 767, where, in a case relating to widow’s pension and alcohol consumption by a veteran, the Full Court held that:
‘If the consumption had been of a pattern which bespoke a change in behaviour referable to service or to coping with the experience of service, it might point to a connection with war service.’
Mr Rudge contended that the evidence did not enable the Tribunal to discern increased consumption of alcohol after the War that was causally-linked to Mr Cockram’s service. Mr Rudge said the evidence showed Mr Cockram was a social drinker before and after the War, who enjoyed a successful family and working life.
TRIBUNAL’S DELIBERATIONS
[19] Bull v Repatriation Commission [2001] FCA 1832; (2001) 188 ALR 756.
Stage 1: Hypothesis Connecting Mr Cockram’s Service With His Alcohol Consumption?
As held in Bull, it is impermissible at this stage of the process to enter into fact-finding. In Meehan v Repatriation Commission[20], Wilcox J, held at 377 that:
‘… the practical question arising in step one of the Deledio formulation will be whether the material before the Tribunal points to a hypothesis connecting the particular agreed disease or injury with the person’s war-service. If so, the Tribunal will take the next step of ascertaining whether there is a relevant SoP.’
The hypothesis relied upon in this matter is that Mr Cockram’s war service caused him to consume increased quantities of alcohol, which eventually contributed to the condition causing his death. I find it is possible from the evidence to construct that hypothesis as a starting point for further investigation.
[20] Meehan v Repatriation Commission [2001] FCA 597; (2001) 64 ALD 366.
Stage 2: Statement of Principles in Force?
The hypothesis requires consideration against an SoP in force. Mr Cockram’s cause of death is recorded as ‘Metastatic Colorectal Carcinoma.’[21] I find that there is an SoP relevant to this matter, namely SoP No. 37 of 2013, titled Malignant Neoplasm of the Colorectum.[22] Clause 5 of the SoP requires that ‘at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.’ Relevantly, Clause 6(c) refers to:
‘drinking at least 250 kilograms of alcohol before the clinical onset of malignant neoplasm of the colorectum.’
[21] Exhibit R1, p.13.
[22] accessed on 30 October 2017.
I find that Mr Cockram satisfies the alcohol quantity requirement of the SoP. It therefore follows that Stage 2 of the Deledio process is satisfied. But apart from the quantum of Mr Cockram’s alcohol consumption, the SoP requires that the factor must also be related to the veteran’s service. A key question to consider, therefore, is the reasonableness of the hypothesis advanced by the Applicant.
Stage 3: Reasonableness of Hypothesis?
The third requirement of the Deledio process is consideration of whether the hypothesis raised is reasonable for the purposes of section 120(3) of the Act. It is not necessary at this stage to determine the factual correctness of the hypothesis. I must first determine whether there is material before me pointing to Mr Cockram’s cause of death being connected to his operational service, which therefore requires determination under section 120(1) of the Act.
The material before me points to Mr Cockram consuming alcohol prior to his operational service – both in Australia and then in New Guinea. His drinking in Australia was usually restricted to weekends and social occasions, constrained by his mother’s strict Salvationist views. In relation to his alcohol consumption in New Guinea from 1940 and while a member of the NGVR, the evidence points to Mr Cockram enjoying social interactions at which he consumed alcohol. For example, Mr Cockram’s own recollections of arriving in New Guinea by ship were:
‘We landed in Salamaua late in the afternoon and had a big party on board, which resulted in our being threatened with either quietening the party down or being put off the ship immediately, needless to say we quietened down.’[23]
[23] Major F.J. Collins RFD (Rtd), Keepers of the gate: personal stories by NGVR soldiers: New Guinea Volunteer Rifles 1939-43 (NGVR and PNGVR Ex-Members Association Inc., 2016), p. 182.
The recollections of Mr Cockram’s wife and half-brother, coupled with his medical records since 1 November 1979, support a finding that he remained a ‘social drinker’[24] after the War. As his wife of over 67 years, Mrs Cockram is best placed to comment about how war service may have affected her husband. Although she believes it did affect him, her oral evidence and that of Mr Charles Cockram points to a man who got on with his life after the War, freely discussed his experiences of the War, enjoyed regular social consumption of alcohol with friends while working in remote parts of the World, rarely if ever overindulged in alcohol, and would often not consume alcohol for extended periods when the circumstances of his employment did not permit. Mrs Cockram’s evidence is that she could not discern any change in her husband’s pattern of drinking as he got older, nor did she detect any stress or nightmares relating to his war service.
[24] Exhibit R4.
Stressors During Operational Service
In relation to stressors, there is no doubt Mr Cockram was exposed to highly stressful situations during the War where his life was at risk. This is reflected in the historical accounts,[25] particularly Bob Collins’ book ‘Keepers of the Gate,’ which contains Mr Cockram’s own recollections of his work and war service in New Guinea. The evidence points to Mr Cockram suffering considerable privations during his war service, encompassing not only life-threatening incidents, but repetitive bouts of malaria, amoebic dysentery, and the physically-demanding nature of operations in a jungle environment. Despite these experiences and his deteriorating health, particularly during the last 30 years of his life, all of the evidence points to Mr Cockram being a stoic, hard-working, resilient and modest man, who enjoyed a happy and fulfilling life. His family can be justifiably proud of his service to our nation.
[25] See, for example: David Dexter, ‘Volume VI – The New Guinea Offensives’ in Australia in the War of 1939-1045: Series One – Army (Australian War Memorial, 1961).
But the evidence does not point to Mr Cockram’s war service as an operative cause of any increased post-war drinking. For the reasons adduced earlier, it points to social drinking with other expatriates to escape the boredom and isolation of working in places like New Guinea and Colombia.
After considering the whole of the material before me, I am satisfied beyond reasonable doubt that it does not give rise to a reasonable hypothesis connecting Mr Cockram’s death with the circumstances of his service.
Stage 4: Whether the factual evidence satisfies the standard of proof?
As no reasonable hypothesis has been raised, it is not necessary to consider the fourth Deledio stage.
CONCLUSION
The material before me does not raise a reasonable hypothesis connecting Mr Cockram’s death with the circumstances of his war service. I am therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Cockram’s death was war caused.
DECISION
It therefore follows that the decision under review is affirmed.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Nikolic AM CSC
...........................[sgd].............................................
Associate
Dated: 24 November 2017
Date(s) of hearing: 1 November 2017 Counsel for the Applicant: Mr. Andrew Yuile Solicitors for the Applicant: Williams Winter Advocate for the Respondent: Mr. Ken Rudge
Department of Veterans’ Affairs
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