Bradley and Comcare (Compensation)
[2016] AATA 312
•16 May 2016
Bradley and Comcare (Compensation) [2016] AATA 312 (16 May 2016)
Division
GENERAL DIVISION
File Number
2013/0195
Re
The late Mr Peter Nicolas Bradley
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 16 May 2016 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
COMPENSATION – air traffic controller – death due to myocardial infarction – dependent wife – where deceased was a smoker – whether nature and location of work led to continuation of smoking – effect of stress - whether death employment related – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 17.
REASONS FOR DECISION
Regina Perton, Member
16 May 2016
The late Peter Bradley was an air traffic controller. He died on 13 May 2011 at the age of 60 as the result of an anterolateral myocardial infarction. He suffered the initial acute symptoms while preparing to go to work. Peter Bradley had worked for Airservices Australia (ASA) since 1973 when he commenced as a trainee air traffic controller. ASA’s role was undertaken by other agencies in the past.
On 10 May 2012 Craig Bradley, Peter Bradley’s son, lodged a claim for compensation for a work-related death. He claimed that smoking and stress, which he claimed were work related, were factors leading to the fatal heart attack suffered by his father. The claim was rejected by Comcare on 10 July 2012. On 30 September 2012 Craig Bradley requested a reconsideration of the initial decision.
On 14 November 2012 a Comcare review officer affirmed the primary determination on the same basis as the original decision maker, namely that Peter Bradley’s anterolateral myocardial infarction had not arisen out of, or in the course of, his employment. The review officer also rejected the claim that Peter Bradley had suffered a disease to which his employment had contributed to, to a significant degree.
On 12 January 2013 Craig Bradley lodged an application for review with the Tribunal.
RELEVANT LEGISLATION
The Safety, Rehabilitation and Compensation Act 1986 (Cth) (the Act) sets out the circumstances in which compensation is payable.
5A Definition of injury
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
…
5B Definition of disease
(1)In this Act:
disease means
(a)an ailment suffered by an employee;
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment:
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment:
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Further definitions are found in s 4 of the Act:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 17 of the Act provides for compensation for a dependent or partly dependent partner where an injury to an employee results in death.
PETER BRADLEY’S HEALTH, SMOKING, WORK HISTORY AND CAUSE OF DEATH
In a Medical Certificate of Cause of Death dated 13 May 2011, Dr Mark Nolan of the Emergency Department of Launceston General Hospital stated that Peter Bradley had died of an anterolateral myocardial infarction with approximately three hours between onset and death. He stated that an antecedent cause was smoking.
In a letter dated 25 June 2011 addressed to To Whom It May Concern, Dr Mark Nolan, describing his position as Advanced Trainee in Cardiology at Launceston General Hospital, wrote:
I was involved in Mr. Peter Bradley’s care when he presented to the Launceston General Hospital on 13th May 2011. I met Peter for the first time on that morning, after he had brought in by ambulance. He complained of severe crushing central chest pain of several hours duration. His electrocardiogram showed clear evidence of an anterior myocardial infarction. Urgent arrangements were made to transfer him to the cardiac catheterization laboratory for percutaneous angioplasty to open the occluded coronary artery. Unfortunately Peter went into cardiac arrest in the Emergency Department, and despite prolonged and aggressive cardiopulmonary resuscitation, he could not be revived.
I have been asked by Peter’s son, Craig Bradley, to document what cardiovascular risk factors contributed to his heart attack. Because I had never met Peter before 13th May, I used collateral history from his family and look through his old medical chart.
Peter Bradley’s risk factors included age, male gender and smoking. His age and gender are unmodifiable risk factors.
Peter’s smoking history increased his risk for cardiovascular events. Men who smoke over twenty cigarettes per day have a threefold increased risk of heart attack compared to men who don’t smoke. Peter’s family stated that smoking was endemic in Peter’s workplace. This could have made it difficult for him to quit smoking, or caused relapses after abstaining for a period. In fact, the family report that Peter had successfully quit smoking for over 12 months, but relapsed shortly after working training in traffic controllers in Mauritius, where workplace smoking was commonplace. Passive smoking has also been associated with increased risk of cardiovascular events, although the degree of contribution of workplace smoking to people who are already smoking is unknown.
I hope this letter has been helpful.
After receiving the claim, Comcare sought information from Craig Bradley as to the identity of his father’s regular doctor. On 4 June 2012 Craig Bradley responded:
I can confirm for you that Dad (Peter Bradley) did not have a regular GP. He was rarely sick and as he had regular medicals through Air Services he did not require a regular GP.
I can also confirm that Peter had not received any surgery in recent times, in fact it is hard to recall any surgery for the past 20 years.
Leading up to 13th May Dad had not complained of feeling unwell so had no reason to seek medical attention.
…
Comcare also sought additional information from Launceston General Hospital and ASA. ASA’s response dated 13 June 2012 to various questions posed by Comcare was provided by its then Acting Manager People Services:
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Prior to commencing with Airservices Mr Bradley was employed by the Department of Defence.
Mr Bradley commenced employment with Department of Civil Aviation as a Trainee ATC 19/2/1973. Following his training period Mr Bradley was appointed to the role of Air Traffic Controller for the majority of his career.
Mr Bradley undertook Air Traffic Control training activities/duties between 2000 and 2006. He undertook training activities again in 2008.
Mr Bradley participated in an international project, undertaking training duties of counterparts in Mauritius for a period of approximately three months in 2002.
Mr Bradley relocated to Launceston as an Air Traffic Controller on 2 November 2008.
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Airservices does not have a pre-employment medical on file from when Mr Bradley commenced in 1973.
Mr Bradley was required to undertake regular extensive medical reviews with Designated Aviation Medical Examiners to hold and maintain an essential qualification required to undertake his role as Air Traffic Controller. The Civil Aviation Safety Authority (CASA) holds all the documentation relating to these medicals. This information was used by CASA for the issuing of the qualification called a Class 3 Medical.
3. Did the late Mr Bradley raise any issues or concerns he was experiencing to management leading up to 13 May 2011? If yes please provide specific details.
No concerns were issues or concerns were raised by Mr Bradley.
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Mr Bradley did not complain of any health concerns to management leading up to 13 May 2011
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All Commonwealth employers have been smoke free since 1988; this includes Airservices and its predecessors.
Airservices has a number of organisational policies and procedures …that document the organisational expectations of employees regarding smoking and the workplace.
Airservices does not encourage its employees to smoke. Airservices considers decision to use tobacco, alcohol and other drugs an individual choice. Airservices expects its employees will adhere to organisational policies, procedures and understand that all employees have a duty of care to themselves and others whilst undertaking duties for the organisation.
…
Peter Bradley’s leave records were provided showing he was on recreation leave for three days from 23 to 25 April 2011 which included his 60th birthday.
ASA provided Comcare with copies of various policy and procedural documents including:
·a copy of ASA’s Enterprise Bargaining Agreement;
·a copy of ASA’s Drug and Alcohol Management Procedure;
·ASA’s Work Health and Safety Management Plan;
·ASA’s Code of Conduct Procedure;
·Mr Bradley’s recent rosters; and
·Mr Bradley’s position description.
Most of the documents do not contain information about smoking tobacco. However, ASA’s Safety Induction for contractors mentions that there is strictly no smoking on Airservices premises except in designated smoking areas.
ASA has indicated that its workplace has been smoke-free since 1988. They also stated that it is their understanding that legislation in Mauritius regarding Occupational Health and Safety and smoking in the workplace were similar to those that were in Australia when Peter Bradley participated in the international project in 2002.
On 28 June 2012 Craig Bradley provided Comcare with a response to the submission and documentation sent by ASA. He queried the accuracy of some of ASA’s comments:
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In Point 3 of the Letter from Airservices they state that no concerns were raised by Peter Bradley leading up to 13th May. This is incorrect.
In my initial claim it was stated that;
“Leading up to the Heart Attack, Peter was under additional stress from the pressure put on him from higher management to assist in the upcoming training at Melbourne College. Peter was more than willing to assist with this, as he had done on many other occasions. This time though, there had been an issue raised about the way in which travel expenses were going to be re-imbursed which was different to what had been done in the past. In the Past Peter was able to claim these expenses back to a certain amount allowing him to find alternate accommodation and travel so he could bring along his wife and pay the difference. This process was rejected and Peter had to make a decision not to provide support for the Melbourne College on this instance, something that he had never done before and this concerned him greatly as he felt he had let the students and the company down. The day of the heart attack was the day which Peter was supposed to be travelling to Melbourne to assist, but as he was no longer going it was a routine shift at the Launceston Tower.”
There were a number of work colleagues and friends who were aware of this issue, one of which was Peter’s Direct Manager, Scott Stephens at Launceston Airport. Most of the communication about this issue was verbal, and over the phone with the department in charge of travel expenses.
…
In the letter from Air Services they make reference that the Medical Certificate for Case [sic] of Death States that Peter was a smoker for 20 years. This is an error, and I am unable to ascertain why this would be stated that way.
From discussions with Peter’s Wife, Karen, Peter started smoking at an early age, could have been as young as 14, although as most teenagers, this was only casual smoking, and nothing of any substantial habit. It wasn’t until a few years after commencing employment with Airservices that Peter would have been considered a true smoker. Karen pointed out two major points:
a) That Peter’s smoking was at its highest in his life in the period of the late 1970’s and early 1980’s;
b) Whilst Peter was working at Hobart Tower (late 1970’s) she remembered being reluctant to visit him in the tower as the environment was filled with smoke and it made her feel claustrophobic.
Point a is particularly important as Airservices have only stated that their workplace was smoke free form [sic] 1988, this does not hold much relevance as Peter, and his colleagues, were smoking in the workplace for up to 15 years prior to this.
Craig Bradley then went on to query the assertion by ASA that Mauritius bans on smoking in the workplace similar to those in Australia in 2002. His research had yielded that it may not have been until 2004 or 2005 that Mauritius ramped up its laws.
Craig Bradley also queried the length and changes of rosters that his father worked, suggesting that in the week preceding his death he may have worked longer than designated shifts provided for in the relevant employment agreement. He suggested that the longer afternoon shifts, followed by a change to morning shifts may have affected his body’s circadian rhythms increasing the level of hypertension and increasing the risk of heart attack.
On 10 July 2012 Comcare refused the application for compensation, determining that:
…
I consider that there is no medical evidence which links the late Mr Bradley’s employment with his fatal heart attack. Although smoking has been identified as a causative factor, it has not attributed as the actual cause of the heart attack. There is also no evidence to support that workplace stress played any role in the late Mr Bradley’s heart attack.
Though it is unsupported by medical evidence, if your claim that smoking was the cause of the injury is correct, I consider that the late Mr Bradley’s employment did not encourage or direct him to smoke…
…
A Comcare review officer affirmed the decision on 14 November 2012.
Craig Bradley provided a significant number of documents to the Tribunal on 17 April 2014. These included witness statements, material concerning smoking related issues in Mauritius, assorted medical reports and studies on the impact of shift work on health. He also provided a comprehensive Statement of Facts and Contentions setting out various factors that the family believed resulted in the late Mr Bradley’s heart attack being linked to his employment including hypertension, stress of the job and the employer not taking account of his being 60 years of age. In particular, Craig Bradley highlighted his father’s resumption of smoking when posted to Mauritius in 2002.
Karen Bradley, the late Mr Bradley’s widow, provided a statement dated 16 April 2014 and gave oral evidence. Mrs Bradley stated that she had been married to Peter Bradley for 39 years. She stated that she was solely dependent on her husband and was his only dependent when he died.
Mrs Bradley stated that when she first met Peter Bradley he smoked but only occasionally, the same as other teenagers did. Mrs Bradley stated that her husband’s smoking was at its peak in the late 1970s and early 1980s. She recalled an occasion in the late 1970s when she did not want to visit him at work as the tower was always smoke-filled.
Mrs Bradley stated that in 2001, Peter Bradley quit smoking. In 2002 Peter Bradley went to Mauritius for four months when Air Services was training local air traffic controllers. She accompanied him. Mrs Bradley stated that when they were in Mauritius, her husband was exposed to smoking in the workplace and after work at dinners and meetings. Peter Bradley resumed smoking in Mauritius and continued to smoke until his death.
Mrs Bradley stated that smoking was so common that I can recall on the way home that Peter was invited into the cockpit of the plane to smoke with the Pilots.
In relation to her husband being under pressure just prior to his death, Mrs Bradley stated:
11. I can also confirm that just prior to Peter’s death, I noticed that he was under a lot of pressure at work.
12. Peter was asked to go to Melbourne to conduct some training at the Melbourne College, which he had done a number of times before. This time though, he was having an issue with a lady about how he was going to get his money back for travel expenses, unfortunately I do not know her name but believe she may have worked in the Canberra office, possibly in HR. This made him very angry, I had never seen Peter so wild about something at work. So much so that in the end he made a decision to cancel the trip. I recall Peter telling me that the lady had said to him that “if he didn’t do the course he could lose his job”. This upset him a lot as he had been an air traffic controller for 38 years, he had always supported them before and now he felt he had let Air Services down.
13. Peter was also doing extra hours at work. This had something to do with a change in shifts, and he had to stay an extra hour later. Throughout this time he was also training other staff Members while controlling the tower at the same time. I could not understand why Peter was asked to do this, and not his boss Scott Stephenson. This was making Peter very anxious, and I could tell he was not handling the pressure very well. This was affecting his sleep. He was talking in his sleep which was something he didn’t normally do and also sweating a lot during the night.
Mrs Bradley provided a later statement in November 2014 in which she challenged some of the comments made by former colleagues and experts engaged by Comcare.
In her oral evidence, Mrs Bradley stated that she and Peter Bradley met when he was 19 and she was 17 years old. Peter Bradley was working for his father in a milk bar that sold cigarettes. They married in 1972 after dating for a few months. Mrs Bradley said that she was not a smoker and did not like others smoking near her because of the residual smell in her hair. Peter Bradley smoked when they were married. She said that her husband had told her that he had started smoking when he was about 14 years old. She said that the information he had given to a doctor in December 2008 that he smoked 5 cigarettes a day at that time was accurate.
Mrs Bradley said that she believed smoking was permitted in the workplace in Mauritius in 2002. She said that because it was so hot in the house they were staying with no air conditioning, they often went out for dinner with other Australians who were training the local air traffic controllers. She recalled that on their return journey to Australia, the pilots were smoking in the cockpit and said her memory of it differed from Doug Blowes (see his comments below).
Asked about her suggestion that her late husband had been under a lot of pressure prior to his death, Mrs Bradley said that he had been training a former teacher who had no background in air traffic control. She said that he had also been working some 10 hour shifts. Mrs Bradley said that her husband was not sleeping properly or eating correctly because of the pressure. She commented that her husband was a gentleman and would not have been inclined to complain to his supervisor, who was usually in his lower level office rather than in the upper control tower. However, her husband would say things to her.
Christine Meyer, a neighbour and friend of the Bradley family in Tasmania, provided a written statement dated 15 November 2014 and gave oral evidence. She stated that she had cared for their pets and home while they were away on a number of occasions, including in April 2011. Ms Meyer went on to state:
…
3. Karen Bradley had told me that Peter was under a lot of stress and as a surprise she wanted to take him away for his birthday….
4. I can confirm that to the best of my knowledge, Peter was unaware that Karen had planned the weekend away.
5. Further to this, in my opinion I could see that Peter was feeling stressed. He was worried about a request he had to go to Melbourne for work. He mentioned to me a couple of times that he was not happy going and I could see that that was playing on him.
Craig Bradley provided a copy of a Medical Examination Report, for an examination his father had undergone on 19 July 2007 in relation to an application for a private pilot licence. The report stated amongst other things that:
·Peter Bradley did not have a regular general practitioner or dentist.
·He had not attended a hospital emergency department, had never undergone a surgical procedure and had not been diagnosed with a medical condition.
·He did not take medications or suffered any chest pain, shortness of breath, palpitations or other heart complaint.
·His blood pressure was 140/80 and his ECG test showed no abnormality.
On 28 December 2007, Peter Bradley experienced an adverse health incident for which he took the rest of that day and the following day as sick leave while working in Mackay Tower. An ASA First Aid report states that:
0142 UTC [incident times]: – IC direct line from ATC advising that controller was feeling unwell
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0155 UTC - Conscious male casualty (Peter Bradley) 56 presents with distorted vision and altered level of consciousness History established then placed on O2 therapy and vitals taken.
0200 UTC - QAS requested after high BP established and unresponsive pupils
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0221 UTC – QAS request transport to hospital for observation…
Also provided was a Patient Health Summary from a clinic in Longford, which showed Peter Bradley had influenza inoculations in June 2009 and May 2010. There is also a clinical note stating that on 15 December 2008, Peter Bradley as a new patient attended with a “cold” and “snuffly nose”, seeking a medical certificate. The doctor records that he gave smoking cessation advice and that Mr Bradley stated that he was a smoker who smoked five cigarettes daily, having started smoking in 1968.
Craig Bradley provided a print out from the Tasmanian Ambulance Service showing the readings taken by the paramedics at and after pickup of Peter Bradley from his home on the day of his death.
Also provided was an email from the TT-Line Company Pty Ltd dated 3 May 2011 refunding a fare of a booking on the Spirit of Tasmania for Peter Bradley and a vehicle made on 11 April 2011 with a departure from Melbourne on 10 May 2011 and a departure from Devonport on 26 May 2011. The Tribunal notes that the departure points may well have been reversed in the email and/or booking given the proposed timing of the cancelled Melbourne training.
Craig Bradley provided a number of documents concerning smoking:
·a printout dated 16 April 2014 of an online document from an Australian government website that provided a timeline on the impact of quitting smoking over various periods of time, last updated on 30 May 2012. (
·a printout dated 16 April 2014 article on Tobacco Control Laws in Mauritius last updated on 5 January 2013 and printed on 16 April 2014 which stated that Mauritius became a party to the WHO (World Health Organisation) Convention on Tobacco Control on 17 May 2004, concerning Smoke Free places including work and public spaces, cigarette packaging etc: (
·a printed extract from an online article by an Alfa King published online on 27 August 2007 concerning the evolution of health and safety legislation in Mauritius.
·a printout dated 16 April 2014 of a web page item published on 12 January 2012 entitled Smoking in Mauritius on the website of holiday accommodation on Mauritius ( which stated:
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With more than a third of the country’s population hooked on tobacco, smoking is difficult to escape for the non-smoker. Although the Government of Mauritius has made it illegal to smoke in public places, restaurants included – the law is unfortunately more preach than practice.
…
·a copy of a publication entitled A Global Brief on Hypertension issued by the WHO to coincide with World Health Day 2013, which covers causes of hypertension including tobacco use as a risk factor.
·a copy of journal article by Henrik Beggild and Anders Knutsson entitled Shift work, risk factors and cardiovascular disease in the Scandinavian Journal of Work Environment & Health [1999] vol 25 no 2 which reviews the literature and reports studies undertaken into the relationship between shift work and cardiovascular disease.
·A printout dated 16 April 2014 of an online medical news article dated 1 October 2004 by Becky Ham entitled Air traffic controllers’ stress management and hypertension risk, reporting on a study undertaken in 1974 -1978 on how air traffic controllers’ responses to stress may be a long-term predictor of chronic high blood pressure 20 years later.
(
Doug Blowes, Instructor with ASA at their Learning Academy in Melbourne, provided a statement dated 16 June 2014. He stated that he had known Peter Bradley since about 1982.
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3. Although I cannot now recall the exact dates, I went to Mauritius as part of my role with Air Services Australia in the early 2000s. I was in Mauritius for 11 weeks, although I am aware that the entire project ran for about 18 months.
4. Peter was in Mauritius at the same time as me. We were both performing the same role of instructing Local Mauritian air traffic controllers in procedural approach control, as they had just purchased similar equipment to that used in Australia.
5. There was a small community of ASA staff in Mauritius during this time. Peter and I had both taken our wives with us to Mauritius, and were living in adjoining houses. We socialised together and would often have dinner together.
6. While we were in Mauritius, Peter and I worked in the same building. Initially we were working in the same area, but then I began providing training upstairs in the control centre while Peter was training downstairs. We shared an office during this time.
7. Although I cannot recall any specific directions about smoking in the workplace, the environment was similar to that of Australia. That is, there was no smoking in the workplace. I cannot recall anyone smoking inside the building at Mauritius where we were working, and as a non-smoker myself, it would have stood out if they were smoking inside. Local staff and ASA employees who smoked did so in a covered courtyard area outside the building, much as people did in Australia.
8. Having known Peter for many years, I was aware he was a smoker, and that he had tried to give up at least two or three times. I recall Peter telling me he had given up smoking, but I do recall seeing him smoking in social settings while he was there.
9. Peter and I and our wives travelled back to Australia together. While we had been in Mauritius we had gotten to know a few of the Air Mauritius pilots outside of work. On the flight back to Australia, the captain invited Peter and I to go into the cockpit. We did not go together. Peter went first. I recall I was in the cockpit when we landed in Perth. To the best of my recollection the pilots were not smoking in the cockpit. I would have thought that was very unusual if they had done so.
10. After we returned to Australia Peter and I worked in the same office in Melbourne, but in different sections. He then moved to Launceston and I had not seen him for a couple of years before he died.
In oral evidence, Mr Blowes confirmed that smoking was not permitted in the building in which they worked in Mauritius. He said that there was a courtyard area outside the building where the Australians and locals smoked. Mr Blowes said he was not a smoker. He said he had been to Mauritius on two occasions, the second in around 2010. He did not recall the pilots smoking in the cockpit on any of the flights.
Under cross examination, Mr Blowes confirmed that the Australians who were in Mauritius would probably eat out together three or four times a week. Asked if there were no smoking signs in the building, Mr Blowes could not recall seeing any. Mr Blowes said that he recalled Peter Bradley smoking roll your own cigarettes. He recalled Mr Bradley giving up smoking more than once. He remembered that Peter Bradley and Lance Dale, who was also a smoker, would leave the control tower together to have a cigarette.
Mr Blowes said that when he first started as an air traffic controller, around the same time as Peter Bradley, many of the others smoked. He said that the situation has changed over the years and that there are not many smokers now. He agreed that ashtrays were built into consoles in the early days of his career
The Tribunal was presented with an email from an Andrew Meldrum to Doug Blowes and Peter Bradley dated 22 April 2003, forwarding an email from Mr Lance Dale dated 18 April 2003 which extolled the roles played by Mr Blowes and Peter Bradley in Mauritius.
Lance Dale was Air Traffic Control Line Manager, Perth Regional Services at ASA when he provided a statement dated 17 June 2014. He, too, was in Mauritius as part of the ASA training program and stated the following;
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2. In 2002-2003 [sic] was the project manager for the ASA training program in Mauritius. The Mauritius Department of Civil Aviation had purchased a new air traffic control system, and Australia was the only country using that system at the time. A project team was sent to Mauritius to assist in their transition to the new system and to train current and new staff in using the system.
3. The project ran for about 19 or 20 months and I was there for the whole time. Specialist ASA employees came to Mauritius for anything from a few weeks to a number of months to perform a specific role in relation to the transition or training. Over the course of the project, about 15 ASA staff worked in Mauritius.
4. A new double story [sic] building had been constructed by the Mauritius Department of Civil Aviation as part of the introduction of the new system. The top level was for operations, housing the control centre, a lunch room and managers offices. The ground floor had the training rooms and ASA offices.
5. At any time there were 7 or 8 ASA employees at the Department of Civil Aviation building, together with local staff of about 4 managers, 12 controllers and 20-25 students.
6. Smoking was not permitted inside the Department of Civil Aviation building. The same rules about smoking applied as in Australia for the building, and to my understanding all government workplaces in Mauritius. A number of staff, particularly the locals, did smoke, but if they did so they went outside to a garden area, very similar to arrangements in Australia.
7. While smoking was not supposed to be permitted in restaurants, this was not always policed.
8. I was responsible for arranging accommodation for ASA staff. I leased a number of houses in a fairly small expat suburb close to the airport. The houses were within 150-200 metres of each other. As many of the staff brought their families, I arranged the housing so they would be close together and would be able to socialise together while the ASA staff were working. Social occasions for the project group were organised on a weekly basis.
9. Peter Bradley (Peter) was in Mauritius for about four months. His role was an instructor for training the Mauritius staff. I saw Peter frequently during the day at work. I would also dine with Peter and his wife approximately once or twice a week while he was there.
10. I do not recall seeing Peter smoking while we were in Mauritius, although he could have done so.
11. All ASA staff travelled to and from Mauritius on Air Mauritius flights. This was a commercial airline. We flew business class, sitting at the front of the plane.
12. It was not a requirement of Peter’s job that he spend time in the cockpit during these flights. Any visit to the cockpit would have been by personal arrangement with the pilot.
13. The rules against smoking on Air Mauritius flights were the same as for Australian airlines.
In oral evidence, Mr Dale, who had been employed by ASA for more than 30 years, confirmed that smoking was not allowed in the building in which they worked in Mauritius. He said that people had to go outside to smoke. He said that he and Peter Bradley would smoke in the courtyard outside when in Mauritius. He could not recall smoking being common inside restaurants, but said that there was often an outside area where smoking was permitted.
Scott Stephens, an air traffic controller with ASA based at the Gold Coast Airport, provided a statement dated 6 June 2014.
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2. I have been an air traffic controller for approximately 25 years. After a period working overseas I returned to Air Services Australia in 2006. From 2010 until 2014 I was based at the Launceston airport where I was the Unit Tower Supervisor. There were normally 5 air traffic controllers as well as a Unit Tower Supervisor based at Launceston, with a minimum of 2 staff rostered each day.
3. As the Unit Tower supervisor, I was responsible for the day to day running of the control tower, including supervision of staff, ensuring compliance with procedures and operational requirements, training and liaising with other agencies and organisations. I was also responsible for publishing the roster and developing/training staff.
4. I had known Peter Bradley (Peter) for 2 years, and he had in fact trained me. I was Peter’s direct supervisor at the Launceston control tower.
5. As we worked a 3 days on/3 days off roster, I would see Peter one or two days a week and possibly more depending on the rosters. In addition, every six months I was required to spend a full shift observing each staff member. On the days I was rostered on, as long as I was not at other meetings, I would spend time in the control tower talking to staff and ensuring I had a good understanding of what was going on in the tower. I also provided leave relief when staff were away.
6. In early 2011, a directive was received, I believe from the Minister’s office, requiring coverage by the control tower for all scheduled flights. At that time, the last shift finished at 10.00pm, however some flights were scheduled to arrive after then. The long term plan was for staff at the Melbourne centre to manage the air space for Launceston after 10.00pm, but this would not commence until June 2011.
7. As an interim measure, to comply with the requirement to provide coverage until 11.00pm, the air traffic controllers’ afternoon shift was to be adjusted so that it would start and finish an hour later. That is, instead to a 12.15pm – 10.15pm shift, the air traffic controllers would work 1.00pm – 11pm. It was a requirement that shifts not exceed 10 hours, so the length of the shift did not change, only the start time. The morning shift did not change, but there was less overlap of the two shifts in the middle of the day.
8. Prior to implementing these interim measures, the air traffic controllers were consulted and a number of options were presented about how coverage could best be provided until 11.00pm. The staff unanimously decided the change in shift start times was the preferred option.
9. ….the new arrangements were to start from 11 April 2011 and continue until 3 June 2011.
10. At no time either before the change was implemented or after did Peter raise any concerns with me about the change to the shift times.
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12. …I am aware that Peter had planned to go to Melbourne in May 2011 to provide some training, but that this was cancelled. It was Peter’s choice to cancel the trip. I cannot recall his exact words, but he indicated that the reason he cancelled the trip was that the travel arrangements were not suitable for him.
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15. I did not observe Peter to be anxious or under pressure after the shift change and he did not raised any concerns with me. If Peter had come to me and expressed that he was feeling stressed, fatigued or under pressure, or if anyone had indicated to me that they had observed any problems or had any concerns about Peter, or indeed any of my staff, I would have acted on this straight away.
16. Mrs Bradley refers to a dinner held in the weeks before Peter died…
17. While Mrs Bradley attended the dinner with Peter, I do not recall having the conversation with her as set out in her statement.
18. I do recollect that I covered Peter’s shift over his birthday weekend in late April 2011, and that he said he was going away. I do not recall how the leave was arranged…
19 Mrs Bradley did not raise any concerns with me about Peter’s health at the dinner or any other occasion…
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22. The Launceston control tower was a very nice place to work, and was not particularly stressful. Peter had a positive disposition and enjoyed his work. At no time did he express to me that he was feeling stressed, under pressure or experiencing any other problems with his job. He was very cheerful, and there was nothing in Peter’s behaviour that gave me any concern about his mental state.
In oral evidence, Mr Stephens said that he had been an air traffic controller at Launceston from 2010 to 2014. He was the supervisor for those working in the tower including Peter Bradley. He confirmed the information in his statement describing the directive to extend the hours of coverage. This resulted in a shorter overlap of controllers in the middle of the day. There had been a two and a half hour overlap which went down to an hour. The maximum shift worked was still 10 hours. Asked if there were any objections or concerns with the change, Mr Stephens said that all of the air traffic controllers were consulted and they were all prepared to move starting times by an hour.
In relation to Peter Bradley’s cancellation of the trip to Melbourne to provide training, Mr Stephens said that there were rules in place for travel. Peter Bradley wanted to go across on the ferry to Melbourne with his own car. However, it appeared he was no longer able to claim reimbursement if he travelled that way. Mr Stephens said that he was told by someone in the central office that the rules did not allow him to do so. Mr Stephens thought this was not a big issue.
Mr Stephens could recall Peter Bradley training a former teacher, but he believed the training had finished in November 2010. He said that this person had been an air traffic controller for several years, but had to have some retraining when she was posted to Launceston.
Mr Stephens could not remember a discussion with Mrs Bradley about her husband needing a break and wanting to take him on a surprise weekend away for his 60th birthday. Asked if Peter Bradley had ever complained to him about being tired or stressed, he said that he had not done so. Peter Bradley had told Mr Stephens that he was happy in Tasmania. Mr Stephens described Peter Bradley as easy going.
Under cross examination, Mr Stephens said that if there is an injury in the workplace, the expectation was that a report would be made. As to the paperwork involved, Mr Stephens said that it would depend on when it occurred. Mr Stephens was asked about rostering practices and whether he took into account how busy it was. Mr Stephens said that there were rostering principles and that there were always breaks programmed into the shifts. He said that the finalised roster to extend the coverage by an hour was unanimously accepted. Mr Stephens pointed out that it was not his decision to lengthen the coverage time at Launceston airport but he had to make some changes to enable it to happen.
Asked if the role of air traffic controller was stressful, Mr Stephens said he enjoyed it. He agreed that the role can be stressful. In response to the question as to whether Launceston was a busy airport, he said it was not if compared in relative terms to a number of other airports. Mr Stephens agreed that 72 hours per fortnight was the agreed on-duty time and was questioned as to whether it would be exceeded. He said that it could happen if someone was called in to cover for someone who was ill. He was unaware that in early March 2016, Peter Bradley had worked an additional 10 hours. Mr Stephens said that there was extra payment where that happened.
Mr Stephens said that a request for someone to be available to train persons in Melbourne, it would come to him first. He said Peter Bradley, with his background, would normally be his choice. Peter Bradley had indicated his willingness to provide the training in May 2011 and Mr Stephens would then change the roster to accommodate this. The travel was approved by with the Melbourne or Canberra travel cell. Mr Stephens said that he did not have the budget for the travel and it would have come out of a different entity. He only became aware of the issue with the refusal of the preferred arrangements after it had all happened.
Asked about the dinner where Mrs Bradley said she had expressed her concerns about her husband and asked about him taking a weekend off, Mr Stephens could remember having a conversation but not its content or location. He said that he did not have alcohol at the dinner as he does not drink. When asked about his statement that he recalled Peter Bradley having his birthday weekend off, Mr Stephens said that he had Peter Bradley’s leave arrangements in his diary. Mr Stephens said that he had worked the afternoon shift on that weekend and he assumes that he worked to cover Peter Bradley’s absence.
Asked about the person Peter Bradley was training in Launceston, Mr Stephens said she was working in air traffic control in Melbourne, but that it is a different type of air traffic control in Launceston.
Associate Professor Renee Bittoun, the Director, Smoking Research Unit, at the University of Sydney provided reports and gave oral evidence. On 2 July 2014 she provided a report based on an interview with Craig Bradley and Mrs Bradley on 23 June 2014 and citing relevant reports and studies. Her overall conclusion was:
·The deceased had a significant addiction to nicotine prior to his commencing employment at the department of Civil Aviation in 1973.
·The deceased was highly likely to relapse to smoking regardless of his employment environment.
Associate Professor Bittoun referred to articles and statistics in coming up with further conclusions stated that the conclusions on which she based the above final conclusions were:
According to the family, the deceased started regular tobacco smoking at a very young age …which is a significant risk for life-long smoking…
He would regularly smoke within an hour of waking up. This is called Time To First Cigarette (TTFC) and is an indicator of severity of dependence. Within 5 minutes signifies severe dependence, hence within an hour is significant…
Despite family claims that he smoked “few” cigarettes (less than 5-10/day) recently, the manner or topography in which these were smoked can achieve similar levels of nicotine as in “heavier” smokers, thus negating the belief that fewer cigarettes smoked are less harmful or indicate less addiction…
He had multiple short-lived abstenences from smoking with frequent relapses, a significant indicator of dependence…
He was described as when feeling “stressed” he would smoke more but continued daily smoke in situations less stressful. For example, when he formally retired in 1992 from the Civil Aviation Department to a less stressful environment he continued to smoke. On returning to teaching again he continued to smoke despite the circumstances being described as less stressful and the environment being strongly anti-smoking.
He was described as having symptoms of withdrawal when attempting to abstain, being moody and irritable and having cravings or urges to smoke, which are significant symptoms of dependence. Persistent smoking in the face of social, medical and financial detriment are also significant behavioural indicators of tobacco dependence…
On questioning the wife for details, she described the deceased’s mood when first arriving in Mauritius as depressed. He had abstained from smoking for the first two weeks after arrival. Depression is a significant symptom of withdrawal and would have been a provocative motive to relapse…
He is described as always being a daily drinker of alcohol but with no history of alcohol dependence. According to his wife he was strongly pressured into drinking more heavily in their time in Mauritius. Concomitant smoking and drinking is common in nicotine dependence.
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On 19 August 2014 Associate Professor Bittoun provided an additional report at Comcare’s request. Comcare asked her to provide her opinion as to:
…whether, in light of the deceased’s smoking history as described to you, the deceased would have resumed smoking in or around 2002 regardless of whether or not he had been posted to Mauritius.
Associate Professor Bittoun cited a 2013 study on how quitting history affects future cessation outcomes as part of the basis for her opinion:
Having made all the medical enquiries that I believe are desirable and appropriate and having concluded that no matters of significance I regarded as relevant have, to my knowledge been withheld I have concluded that:
. The deceased was highly likely to relapse to smoking and resume smoking in or about 2002 regardless of whether he was posted to Mauritius as typically nicotine dependent smokers have a long history of multiple quit attempts and relapse.
...
In her oral evidence, Associate Professor Bittoun said that she had been working in the field of tobacco treatment and related issues since 1975. Associate Professor Bittoun was asked what information she had for her to determine that Peter Bradley had been addicted to tobacco. Associate Professor Bittoun said that Peter Bradley’s situation was not unusual. He started smoking at a young age and had absences from smoking. He had attempted to quit several times. The longest period was 12 months before he went to Mauritius and he then relapsed. There were two other episodes of quitting of six and eight months respectively before Mauritius.
Associate Professor Bittoun said that the family knew he rolled his own cigarettes but it was hard to remember the exact dates and number of cigarettes going back to early years. She commented that the general practitioner noted Peter Bradley’s number of cigarettes and commencement of smoking in his notes dated 15 December 2008.
Associate Professor Bittoun said that the date of first ever cigarette smoked is pertinent in relation to developing an addiction. She said that young teenagers generally do not smoke regularly. There is a response in the brain even if a person only smokes one cigarette a week. She stressed that a person does not need to smoke many cigarettes to become dependent. Associate Professor Bittoun said that Peter Bradley had a high risk of relapsing because of the state of his brain. She said that any alcohol intake increases the risk of relapse.
In response to a question that the Bradley family contended that Peter Bradley had abstained from smoking for 12 months prior to going to Mauritius and that if he had not gone there, he might not have resumed smoking, Associate Professor Bittoun said that this was probably not correct. Associate Professor Bittoun said that even if he had even longer breaks from smoking, any slight stimulus could cause resumption.
Associate Professor Bittoun said that the fact that people say that they have abstained does not mean they actually have. It is not uncommon for tobacco users to underestimate their consumption and/or to tell people, including cardiologists, they have given up when they have not done so.
It was pointed out that Mrs Bradley had rejected the comment in Associate Professor Bittoun’s report that Peter Bradley was depressed on arrival in Mauritius. Associate Professor Bittoun said that would not change her opinion. She said she had asked the family in her interview with them about moodiness, depression etc. She said that when people are moody or irritable, they self-medicate and then feel better.
Craig Bradley challenged some of the assumptions made by Associate Professor Bittoun. Associate Professor Bittoun cited studies which showed that there is a strong predictor of smoking at a young age and difficulties in quitting. Associate Professor Bittoun said that how a person smokes a cigarette is also an important factor.
Associate Professor Bittoun said that relapse becomes less likely the longer one has abstained. She said that two years of abstinence is usually the minimum period after which a relapse is less likely. The method that is used to quit does not affect the rate of relapse.
Professor Michael O’Rourke, Professor of Medicine at the University of New South Wales and a cardiologist since 1970 at St. Vincent’s Clinic in Sydney has served on international boards, undertaken extensive research, written 350 articles, personally especially on ischaemic heart disease, edited international and Australasian journals and conducted trials of various innovative techniques for patients. Professor O’Rourke provided two reports dated 8 October 2013 and 4 July 2014 respectively. His summary as to the cause of death in his first report was:
I believe that Mr Bradley’s death was caused by acute myocardial infarction, with; onset at home, with the only attributable risk factor being cigarette smoking and with death not caused by or related to employment.
Professor O’Rourke’s response to specific questions earlier in his 8 October 2013 report included:
1. Having considered the materials provided to you, what is your diagnosis of the Applicant’s condition at the time of his death. Please provide reasons for your opinion.
Answer: Mr Bradley did from extensive acute antero-lateral myocardial infarction, caused by coronary occlusion by thrombosis in association an atherosclerotic plaque and complicated by acute heart failure (cardiogenic shock) on 13 May 2011
…His symptoms and signs were classic and were confirmed by electrocardiogram and blood tests.
2. Please provide your opinion as to the Applicant’s cause of death. In answering this question, please provide your opinion as to which of the two following options best describes the Applicant’s cause of death:
a.A sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state; or
b.A physical or mental ailment, disorder, defect or morbid condition?
Answer: Mr Bradley did from acute heart failure, caused by damage to the heart’s muscle which resulted from occlusion of the major coronary artery which normally supplies blood to the antero-lateral part of the heart. The damaged area of myocardium spread as a consequence of fall in blood pressure which was necessary for perfusion of the other segments of the heart that are normally perfused by other arteries. Development of cardiogenic shock impaired perfusion of all the left ventricular muscle, causing further hypotension and creating a lethal vicious circle….
I believe that the option that best denotes the Applicant’s cause of death is (a) A sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, rather than (b).
On 4 July 2014, Professor O’Rourke provided a further report after he had been provided with further evidence, namely the report relating to the episode in late December 2007 where Peter Bradley had vision problems whilst at work (see paragraph 29). Professor O’Rourke, in his comprehensive report stated that he had now altered his opinion expressed in his earlier report to (b) rather than (a):
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Comments and Opinion
The additional information sent me suggests that Mr Bradley did have arteriosclerotic disease present prior to his death from myocardial infarction caused by coronary occlusion in 2011. The symptoms of transient blindness were reported to the airport emergency services, to QEA officers, to Dr Bastable and to Dr Kirkwood on the same day, and in the same way, and blood pressure was elevated at all times it was recorded. The MRI examination was not completely normal, but suggestive of small arterial vessel disease, which is present in many apparently normal 56 year old men, particularly when they smoke, have elevated blood pressure or family history. Dr Kirkwood (ophthalmic physician and surgeon) did consider transient cerebral ischemic attack (TIA) as “likely” and treated Mr Bradley to prevent a further vascular episode with low dose aspirin.
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1. In your opinion is there any relationship, cause or otherwise, between the 2007 incident and the deceased death on 13 May 2011.
Yes. I believe that Mr Bradley did have arterial degenerative disease as cause of his coronary occlusion, and myocardial infarction in 2011. His presentation, history, electrocardiographic features and blood chemistry (elevated troponin levels) and progression to cardiac shock and death from myocardial infarction were classic. Myocardial infarction of such extent and severity is almost always caused by long standing coronary arteriosclerotic disease with fracture or erosion of an atherosclerotic plaque causing thrombosis and occlusion of a large coronary artery…Atherosclerotic disease is usually widespread in the body and often affects arteries in the neck supplying the brain or arteries in the brain itself. Such arterial damage is usually clinically silent until a clinical event occurs…
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3A…
I believe that Mr Bradley did as a consequence of myocardial infarction, caused by coronary arterial occlusion, caused by rupture of an atherosclerotic plaque, with total obstruction caused by thrombus. The underlying disease was longstanding, progressively developing coronary artery atherosclerosis and narrowing over decades past.
I believe that the deceased’s disease was not contributed to by employment. He had onset of disease symptoms at home in bed before rising for the day. The process or coronary obstruction from coronary thrombosis must have occurred in the period (probably hours) while he was asleep, before waking on 13 May 2011. There is no reason to believe that such a process should have any association with the previous day’s work or the work of the coming day. The principal risk factor for coronary occlusion and myocardial infarction in this case was smoking and this was not permitted at Mr Bradley’s place of work.
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I believe that there was no association between work and Mr Bradley’s death, either to a significant degree or to a material degree.
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E. Any other factors: I am not aware of any other such matters. In most persons who suffer myocardial infarction, symptoms come out of the blue and without warning. It is only natural that persons try to associate the onset of coronary disease with issues in their daily life. There can be such issues but they are highly unusual and, in the vast majority of persons, no particular event can be identified as the cause of myocardial infarction.
In oral evidence, Professor O’Rourke explained in layperson’s language the reason why he changed his mind about the nature of Peter Bradley’s condition. He repeated his view that the death and medical condition was not related to employment. There was a discussion about the relationship between stress and blood pressure and the changes there can be depending on time taken, whether sitting, standing or smoking. Professor O’Rourke said that there are ordinarily blood pressure changes up and down, and that it is only if it is consistently high that hypertension would be the diagnosis. He said that the readings recorded in the documents before him and the Tribunal were not particularly concerning.
WAS PETER BRADLEY’S DEATH, CONTRIBUTED TO, TO A SIGNIFICANT DEGREE, BY HIS EMPLOYMENT?
The medical evidence is clear that Peter Bradley died of an anterolateral myocardial infarction which in common language is a heart attack. However, pinning down the reason why that occurred has been harder. There was no post mortem and the advanced trainee in cardiology at Launceston Hospital, Dr Mark Nolan, had only met Peter Bradley just hours prior to his death. Peter Bradley did not have a regular general practitioner and there was contradictory evidence about his health in the weeks preceding his death. Added to the mix is the evidence before the Tribunal that cardiovascular disease is often silent and not identified in potential heart attack victims.
Dr Nolan, in the death certificate, stated that an antecedent cause for the heart attack was smoking. In a letter written at the request of the deceased’s son, Craig Bradley, Dr Nolan stated that Peter Bradley’s risk factors were age, male gender and smoking.
Smoking as a factor leading to cardiovascular disease was confirmed by all relevant witnesses. It is also something that is widely recognised within the general community. Professor O’Rourke, an internationally renowned cardiologist and researcher, attributed the main risk factor for Peter Bradley to be his smoking. He was initially of the opinion that the applicant’s cause of death was a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, on being provided with evidence of an incident in December 2007, he changed his mind and thought it likely that Peter Bradley was suffering from long standing coronary arteriosclerotic disease. He pointed out that the damage done by such disease is usually widespread in the body, but that it is usually clinically silent until a clinical event occurs. The Tribunal accepts Professor O’Rourke’s reasoning and finds that Peter Bradley was suffering from a disease prior to the fatal attack.
Craig Bradley is adamant that his father’s disease which was a factor leading to his heart attack was contributed to, to a significant degree, by his employment. He pointed to smoking being common in the workplace when Peter Bradley started working as an air traffic controller. He submitted that ash trays were part of the fit out of the control tower in his father’s early career. Craig Bradley also submitted that his father’s employment in Mauritius in 2002, where smoking levels were heavy, resulted in his resumption of smoking after having given up about a year earlier.
Craig Bradley also submitted that his father suffered from hypertension which was aggravated by the stresses of his work. He noted Professor O’Rourke’s comments that 50 to 60 per cent of people over 60 years of age suffered from hypertension. He suggested that the employer should have taken account of the stress caused by changing shift patterns and shortening the cross over period between shifts in the period just before Peter Bradley died. Craig Bradley also argued that the hassles over not being able to travel to Melbourne in the way he wanted to, by taking his car on the ferry, had also contributed to his stresses as he had travelled that way on previous trips to Melbourne to be an instructor. There were other issues in relation to his father’s work that were raised.
Craig Bradley also suggested that Associate Professor Bittoun’s report should be given little weight as there was no basis for her conclusion that his father was already addicted to smoking prior to 1973.
Mr Seit, representing Comcare, posed the question as to whether the heart attack was a frank injury (section 5A of the Act) or a disease (section 5B of the Act). However, as indicated above, the Tribunal relies on the opinion of Professor O’Rourke to determine that Peter Bradley was, more likely than not, to be suffering from a coronary artery disease. Given that Peter Bradley did not have a regular doctor from whom to glean further information, that the nature of the disease was described as a silent one, and that there is no competing opinion to suggest it was a frank injury, the Tribunal is prepared to accept Professor O’Rourke’s expert opinion.
In taking a thorough look at the available evidence regarding blood pressure readings, Professor O’Rourke was of the view that Peter Bradley was not suffering from hypertension. There were some raised blood pressure readings which he said could not lead to the conclusion that Peter Bradley definitely suffered from hypertension. Peter Bradley was not diagnosed with hypertension and had no known treatment for the condition. In the absence of contrary medical evidence, the Tribunal accepts Professor O’Rourke’s opinion.
As indicated earlier, Craig and Karen Bradley were strongly of the view that being posted to Mauritius had caused Peter Bradley to resume smoking. They cited the general attitudes towards smoking by the local community at which they regularly had meals were such that people smoked there.
The evidence of former colleagues indicated that smoking was not allowed in the workplace interior in Mauritius although there was smoking allowed in a courtyard. They also commented that they did see people smoking in restaurants.
Associate Professor Bittoun, an expert on smoking and addiction to nicotine, is of a different view to the Bradleys. She believes that it is hard for persons who are addicted to nicotine to give up smoking. She stated that even if Peter Bradley was smoking lightly before he started as an air traffic controller, he would already be addicted to nicotine given his age when he first took up the habit. Her evidence, spelled out earlier in these reasons, considered many studies in relation to addiction to tobacco. Associate Professor Bittoun interviewed the Bradleys prior to writing her first report. She also considered a response, given by Peter Bradley to a doctor in Longford in 2008, that he had started smoking in 1968. Whilst Craig Bradley provided numerous articles he found on smoking on Mauritius and in general, the Tribunal accepts the opinion of Associate Professor Bittoun that Peter Bradley was highly likely to relapse to smoking regardless of his employment environment.
Even after he changed his view on the likely background prior to Peter Bradley’s fatal heart attack, he remained strongly of the view that there was no association between work and Mr Bradley’s death either to a significant degree or material degree.
In considering whether Peter Bradley’s death meets the definition in section 5B of the Act, the Tribunal accepts that Mr Bradley suffered from an ailment as defined in section 4 of the Act. Subsection 5B(2) suggests that there are a number of listed factors that the Tribunal may take into account in determining whether an ailment was contributed to a significant degree by the employee’s employment with the Commonwealth.
Considering the factors set out in section 5B(2) of the Act, the Tribunal notes that Peter Bradley worked for ASA and its predecessors in name for around 38 years. When he first started, smoking was allowed in the workplace. It was banned completely in 1988. Notwithstanding that ashtrays may well have been in the workplace console designs in Peter Bradley’s early years as an air traffic controller, that does not lead to the conclusion that the employer encouraged its employees to smoke. Rather it indicates an acceptance that some employees did so and allowed them to make the choice to smoke whilst continuing to work.
Craig Bradley submitted that the stress of working as an air traffic controller and the impact of shift work were matters that should be taken into account. The Tribunal accepts that such an occupation would be considered stressful by the general public given the responsibility of the position. However, whilst Karen Bradley and her neighbour mentioned Peter Bradley’s stress levels in the weeks prior to his death, part of his concern appeared to be over the rejection of his travel plans when asked to train staff in Melbourne. That appears to have been an angry reaction to changes in bureaucratic arrangements rather than the actual nature of the work he undertook. Scott Stephens described Peter Bradley as having a positive disposition and enjoying his work. He was described as cheerful. He had not told Mr Stephens, his supervisor, that he was feeling particularly stressed. He was interviewed by a local newspaper shortly before his death and expressed positive views about his job.
There is no evidence before the Tribunal that Peter Bradley had ever identified that he was feeling stressed except to his wife and possibly the neighbour. Part of that stress appears to have been due to his anger at the denial of his preferred travel arrangements. There is no evidence of him telling any health professional that he was stressed and finding work difficult. He did not discuss such feelings with his supervisor nor is there evidence from any colleagues that he was demonstrating signs of stress. Staying in his career for the length of time he did would also seem to indicate that Peter Bradley enjoyed his work.
It is not clear whether Peter Bradley’s long weekend some two weeks before his death was due to his stress levels. Karen Bradley said that she raised this with Mr Stephens. Mr Stephens could not recall the discussion. The Tribunal accepts that Karen Bradley wanted to arrange for her husband to take a long weekend as it included his 60th birthday. Going away for a weekend to celebrate a significant birthday is not particularly unusual thing for an apparently happy couple to do. The Tribunal notes that his records show that Peter Bradley took three days of recreation leave for that weekend.
The Tribunal does not accept that Peter Bradley found his job so stressful that it could be said that his employment contributed to a significant degree to his ailment, and subsequently his death.
The evidence indicates that Peter Bradley’s smoking predisposed him to his ailment. However, the Tribunal is not persuaded that Peter Bradley’s employer encouraged him to smoke. From 1988, smoking was completely banned in the workplace. Peter Bradley gave up smoking in 2001, but relapsed and continued to smoke until his death. The Tribunal has already determined that his appointment to a project in Mauritius in 2002 was not responsible for his lapse following 12 months of being abstinent.
It was Peter Bradley’s choice to start and continue smoking; although Associate Professor Bittoun pointed out that nicotine addiction might also have had a part to play in his inability to easily give up smoking. In the workplace, the employer may well have allowed him to smoke outside after 1988 or internally prior to that but that does not amount to encouraging Peter Bradley to smoke.
Taking into account all the evidence, the Tribunal is not satisfied that Peter Bradley’s ailment and subsequent death was contributed to, to a significant degree, by his employment with the Commonwealth. The decision under review is, therefore, affirmed.
91. I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member.
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Administrative Assistant
Dated 16 May 2016
Dates of Hearing 12 May 2015 – 13 May 2015 Advocate for the Applicant Mr Craig Bradley Counsel for the Respondent Mr Roy Seit Solicitor for the Respondent Mr Brenton Lochert
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Statutory Construction
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Appeal
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