Elaine Cribb and Repatriation Commission

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 84

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4481

VETERANS' APPEALS  DIVISION		)
Re		Elaine Cribb

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date5 February 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Senior Member

6.      Mrs Cribb says it is possible that her husband was exposed to secondary radiation from Hiroshima when he was in Japan for 12 months from April 1946 but she concedes that none of the factors in the Statement of Principles for non-Hodgkin’s lymphoma is made out.  She also concedes that her husband’s hypertension was not related to his service.

7.      Mrs Cribb contends that the amended death certificate and other medical evidence support the conclusion that ischaemic heart disease was related to his service and caused, or contributed to, her husband’s death. 

8.      By s 13 of the Act, Mrs Cribb will be entitled to a widow’s pension if her husband’s death was “war-caused”.  It will be “war-caused” if it satisfies any of the criteria in s 8(1) of the Act, in particular if it “arose out of, or was attributable to” his service.

The issue

9.      I have to decide:

(i)what was Mr Cribb’s cause of death (ss 120A(2) and (4) of the Act refer to ‘kind of death’)

(ii)if ischaemic heart disease caused, or contributed to, Mr Cribb’s death, whether there was a connection between that kind of death and his war service.

10.     The cause of death is a preliminary question of fact to be determined on the balance of probabilities based on the medical diagnosis and other evidence: Repatriation Commission v Hancock [2003] FCA 711; Collinsv Repatriation Commission [2009] FCAFC 90; Repatriation Commission v Cooke (1998) 90 FCR 307.

The family’s evidence

11.     Mr and Mrs Cribb married in 1957 after he had been discharged from service.  Mrs Cribb understands from his family that he did not smoke before he enlisted at the age of 18.  He worked as a shop assistant and was poorly paid, and his family were strict Methodists and smoking and drinking were prohibited.

12.     Mrs Cribb says that service was a stressful, uncertain time for her husband who had a nervous disposition.  During their marriage he smoked about five cigarettes each day and smoked a pipe until he retired in 1985 when he gave up both. Mrs crib says he told her he smoked to help him relax and to cope with wartime and service conditions.

13.     Mrs Cribb’s son, Stephen Cribb, and her daughter, Patricia Bentley, have provided written statements supporting her claims.  They recall their mother complaining about their father’s smoking and they learned only quite recently that he spent about 12 months after he returned from overseas in an institution where he had electroconvulsive therapy.  They believe he was traumatised by his service and that his health was badly affected.

14.     The Commission does not dispute these claims and I have…