Cockram and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2378

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 Member
VETERANS’ 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 & 196B
Cases
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 2378
Decision Date: 24 November 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Cockram, the widow of the late Mr George Cockram, a Second World War veteran, against a decision of the Repatriation Commission. Mr Cockram died in 2015 from Metastatic Colorectal Carcinoma. Mrs Cockram sought a pension on the basis that her husband's death was war-caused, arguing that his service with the New Guinea Volunteer Rifles and the Australian Army constituted eligible war service under the *Veterans' Entitlements Act 1986* (Cth).

The primary legal issue before the Administrative Appeals Tribunal was whether the material before it raised a reasonable hypothesis connecting Mr Cockram's death from Metastatic Colorectal Carcinoma with his eligible war service. This required the Tribunal to consider the provisions of the Act relating to operational service, war-caused deaths, and the applicable standard of proof, which mandates that a death is to be taken as war-caused unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for that determination.

The Tribunal considered evidence from Mrs Cockram regarding her husband's war experiences, including his service in New Guinea and his subsequent work in the gold mining industry. While acknowledging Mr Cockram's service qualified as eligible war service, the Tribunal found that the evidence did not establish a sufficient connection between his cancer and his military service. The Tribunal noted that Mrs Cockram's evidence suggested her husband's alcohol consumption, which she described as social and not excessive, occurred primarily in post-war New Guinea and South America, and did not demonstrably alleviate war-related memories.

Ultimately, the Tribunal concluded that the material before it did not raise a reasonable hypothesis connecting Mr Cockram's death with the circumstances of his war service. Consequently, the Tribunal was satisfied beyond reasonable doubt that there was no sufficient ground for determining his death was war-caused, and therefore affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.’

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.