Cockburn and Military Rehabilitation and Compensation Commission (Compensation)

Cockburn and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 1433 (8 September 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/6438
Re:Warren Cockburn
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Member Dr G Maynard

Date:8 September 2017
Place:Brisbane

We affirm the decision under review.
............................[sgd]..................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – Applicant completed national service full-time in 1956 and part-time from 1956 to 1958 – Applicant commenced smoking during national service – Applicant continued to smoke cigarettes – Applicant developed prostate cancer in 2010 – Whether the applicant commenced smoking and established a habit of smoking due to national service – Whether applicant’s smoking contributed to the development of prostate cancer to a “substantial degree” – Applicant’s cancer cannot be connected to a substantial degree to smoking – Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation & Compensation Act 1988 (Cth)
CASES
Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
8 September 2017
BACKGROUND

The applicant made an application to the Department of Veteran’s Affairs (“DVA”) on 27 January 2015 under the Safety, Rehabilitation & Compensation Act 1988 (“the Act”) for rehabilitation and compensation for prostate cancer on the premise that the applicant suffered prostate cancer as the result of a service related activity, namely his initiation of smoking tobacco.
On 16 September 2015, the respondent issued a Determination denying liability for the applicant’s claimed prostate cancer condition.
On 16 October 2015, the applicant requested a review of the Determination issued by the respondent. The respondent affirmed the determination of 16 September 2015 denying liability to pay compensation on 9 November 2015 (the “reviewable decision”).
The applicant then lodged his application for review of the reviewable decision with the Administrative Appeals Tribunal on 9 December 2015.
SERVICE OF APPLICANT
The applicant performed national service with the Australian Army, completing three months full time national service from 17 August 1956 through to 23 November 1956.
The applicant also participated in part-time national service from 23 November 1956 through to 10 March 1958.
EVIDENCE
The applicant has made a number of statements about how and why he commenced smoking. In his original application to the DVA, he states he was a non-smoker when he commenced training in August 1956 at Wacol, Brisbane.
The applicant made submissions in his original application[1]:
“After a few days in the camp I realised that being a smoker had its advantages because at each break in the days work smokers got to sit down while the non-smoker was given extra duties during the break.
My smoking started off about 10 or 12 a day… I left the training camp in November… smoking four ounces of roll your own plus 2 ounces of pipe tobacco a habit I found impossible to break.
I smoked until March 2013…”
[1] T-documents, T4 at p. 30
The applicant made further submissions in support of his application for review, received by this Tribunal on 9 December 2015, stating[2]:
“When these infrequent rest periods were permitted we were told to “sit down and have a smoke”. It was then that if a task, of short duration, needed to be completed the non-smoker was generally chosen for this task…
Toward the end of the day the little rest periods were highly appreciated and needed. If you had a cigarette in your hand generally the reward was that you got the break. If you did not smoke then there was a very good chance that you would be chosen to perform any menial task deemed necessary by the Staff at that time.
[2] T-documents, T2 at p. 10
The applicant outlined the schedule of training and the fact there were little or no rest periods. He submits that day training commencing at 5:30am continuing through to “lights out” at 9:00pm, together with the physically demanding lessons, guard and piquet duty at night once per week, with normal training continuing on the day following a night shift of guard duty. On this basis, the applicant states[3]:
“Fatigue, especially within the first month or so was a constant companion. To have our small rest periods interrupted with further tasks simply added to the fatigue…
“smokers” were afforded the luxury of the short breaks while us “non-smokers” were generally awarded the reward of extra tasks quickly led one to believe that smokers got the better deal”.
[3] Ibid at p. 11
There are letters from family members in support of the applicant’s claim that he commenced smoking due to service in the army. Mrs Judith Daniels, the applicant’s sister, outlines in an undated letter filed with the Tribunal on 2 March 2016 that she “never saw [her] brother…smoke…until he returned from National Service”.
There are numerous documents in evidence including biopsy results and referrals from the applicant’s doctors which indicate the applicant was diagnosed with prostate cancer in October 2010.[4]
[4] T-documents, see T11, T12 and T23 pp. 56-57
The applicant’s treating Medical Oncologist, Dr Natasha Woodward, provided answers to a questionnaire dated 15 April 2015[5] for the purposes of the initial claim, outlining that the applicant’s smoking had contributed to the development of his prostate cancer.
[5] T-documents, T56 at p. 112
Dr Woodward indicated that his smoking contributed between 21% and 50% to the development of the cancer, and she described this contribution as “moderate”. In answer to the question “Was his cigarette smoking the direct cause of his cancers?”, Dr Woodward circled yes and noted “Increased risk for prostate cancer Huncharek et al, April 2010 Am J. Public Health 100(4) p 693” (the “Huncharek Paper”).
The respondent commissioned the services of Professor Richard Fox, Consultant Oncologist who provided an initial report dated 15 September 2015 attaching a questionnaire dated 16 September 2015[6]. In this first report, he explicitly referred to Dr Woodward’s notes and assessment, which he examined as a part of the applicant’s documentation. Professor Fox based his assessment on the evidence that the applicant had a smoking history of 10 cigarettes per day.[7]
[6] T-documents, T57 at pp. 116-122
[7] T-documents, T57 at pp. 116-117
Professor Fox stated[8]:
I note that the Medical Oncologist, Natasha Woodward from the Mater Cancer Centre in Brisbane in filling out the questionnaire stated that his cigarette smoking was the direct cause of his cancer basing this on the increased risk of prostate cancer described in the Huncharek Paper…
This study demonstrated a 20% increase in prostate cancer deaths in smokers compared to non-smokers. That is for instance, this indicates of five smoking individuals with prostate cancer, of one of those five the prostate cancer could be attributed to their smoking habit. It does not indicate an overall risk of 20% to each individual.
[8] Ibid at p. 117
Professor Fox concluded:
Therefore on the balance of probabilities smoking was not the cause of Mr Warren Cockburn’s cancer. Prostate cancer is extraordinarily common in men in their 70s and 80s in Australia with no particular known causes.
Professor Fox’s supplementary report dated 29 March 2016 responded to documentation of the applicant which indicates the applicant smoked 168 cigarettes per week, which equates to 24.5 cigarettes per day.[9] Professor Fox states that this is in contradiction to the medical records, but that it does not alter the views he expressed in his report of 15 September 2015.
⁹ Supplementary Report of Professor Richard Fox dated 29 March 2016
Professor Fox explains that he has not changed his view due to a study published in 2014 (the “Islami study”).[10] This study reviews the Huncharek Paper and supports Professor Fox’s conclusion, even with the applicant’s evidence that he smoked 24.5 cigarettes per day, because “even accepting a 30% increase in risk, this would suggest that in 3 or 4 smokers with prostate cancer, one of who may have had their cancer caused by cigarette smoking” so that “on the balance of probabilities, [the applicant’s] smoking would not have been a cause of his lung [sic] cancer”.
[10] Islami F, Moreira DM, Boffetta P, Freedland SJ. (2014). A systematic review and meta-analysis of tobacco use and prostate cancer mortality and incidence in prospective cohort studies. European Eurology, Dec 66(6), pp. 1054-64
LEGISLATIVE FRAMEWORK
Section 14 of the Act establishes the liability of the Commonwealth to pay compensation in regards to an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
Section 5 of the Act defines an employee as follows:
(1) In this Act, unless the contrary intention appears:
employee means:
(a) a person who is employed by the Commonwealth or by a Commonwealth authority…
(2) Without limiting the generality of subsection (1):
…
(b) a member of the Defence Force;
…
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person’s employment shall, for those purposes be taken to be constituted by the person’s performance of duties… as such a member of the Defence Force…
Section 5A of the Act defines the term injury as:
(1) In this Act:
injury means:
(a) a disease suffered by an employee…
Section 5B of the Act defines the terms ‘disease’ and ‘significant degree’:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(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.
CONSIDERATION
The respondent has accepted that the applicant has prostate cancer and the Tribunal accepts on the weight of the medical evidence that the Applicant has prostate cancer that was first diagnosed in October 2010.
The applicant has made a claim under section 14 the Act. According to section 5(1)(b) of the Act he performed national service which renders him an employee for the purposes of the Act. The applicant suffers from prostate cancer, which comes within the meaning of injury and disease according to section 5A and 5B of the Act.
The applicant’s claim is based on the contention that his development of prostate cancer has been contributed to by a significant degree by his employment with the Commonwealth.
The Tribunal considers that there are three linked issues for consideration by the Tribunal. First, whether the Applicant commenced smoking as a result of and during his military service. If yes, whether the Applicant’s smoking was so habituated during his military service that he continued to smoke during and after military service; and if yes, whether the Applicant’s service-related smoking is the significant contributing factor in his prostate cancer condition.
The Tribunal will consider the following questions:
(a)Did the applicant commence smoking due to his national service?
(b)Did the applicant establish a habit of smoking so much so that he continued to smoke during and after his service?
(c)Did the applicant’s smoking contribute to a significant degree, that is, to a degree that is substantially more than material, to his development of prostate cancer?
Whether the Applicant commenced smoking as a result of national service
The applicant submitted evidence that he commenced smoking in August 1956 when he began his training at Wacol in Brisbane. He stated that the reasons he began smoking were to have a rest and avoid doing work that non-smokers would have to do. There is also evidence that he was told to “sit down and have a smoke”.
The applicant’s sister Mrs Daniels stated that the applicant did not smoke prior to his national service.
The Tribunal accepts that the applicant commenced smoking at the time of his national service. There is no reason to doubt the veracity of the applicant’s and his sister’s submissions.
However, as the respondent highlights, the applicant’s reasons for commencing cigarette smoking indicate that he did so in order to have a welcome rest and to not get selected to perform any menial task deemed necessary; and that the applicant’s initial service period was for a relatively short period of three months. The applicant indicated that the rest times were important due to the very long days and weeks of training with barely any rest.
While the respondent relies on the reasons of the applicant being to rest, rather than any compelling requirement to smoke cigarettes, the applicant stated the men were told to “sit down and have a smoke”. The applicant highlighted the fact that rest periods were infrequent and welcome when those performing national service had little time to rest during a day otherwise. He also indicated that the men who chose not to smoke were given menial tasks. In the context of compulsory national service, the fact that menial tasks were assigned to non-smokers and smokers were given rest breaks indicates that there was an element of encouragement by their superiors to smoke. We accept that this element of encouragement cannot be ignored in the context of the service environment.
In the circumstances, we accept that the applicant commenced smoking as a result of his national service.
Whether the Applicant’s smoking became so habituated as a result of military service
The respondent submits that there is a lack of evidence to indicate any factors that influenced the applicant’s smoking habit from 1958 until the diagnosis of his prostate cancer in 2010. The respondent has submitted there is also inconsistent evidence regarding the applicant’s levels of smoking, so the lack of evidence throughout the period from 1958 to 2010 cannot be ignored.
The respondent relies on Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1 (“Wall”) at [35] where the majority (Wilcox and Downes JJ) concluded:
“It will be a question of fact whether there is a causal relationship between the person’s smoking during the period of military service and the onset of the accident or illness. In a case where it is concluded that the accident or illness was caused by smoking after the period of military service, it will be necessary for the person to show that he or she became so habituated to smoking, during his or her period of military service, that this habit was the effective cause of the later smoking which resulted in the disease.”
While it is not yet established that the applicant’s cancer is caused by the smoking, it is relevant at this point to consider whether the applicant became so habituated to smoking, during the period of service, that this habit was the effective cause of the later smoking.
The applicant is consistent in his evidence that he has continued smoking since commencing during his national service in 1956. However, there is differing evidence about the applicant’s levels of smoking and his attempts to quit smoking. There is no specific detail about his smoking in the period of his part-time national service from 1956 through to 1958 in the evidence before me.
There is an early medical record of Dr Peter Wynn on 7 December 2005[11] that the applicant is an ex-smoker and quit on 7 June 2005.
[11] T-documents, T58 at p. 151
The applicant’s medical record on 11 March 2013 indicates that he is a smoker of 10 cigarettes daily and in relation to his last quit attempt it is recorded: “Never/Unknown”. This record is no doubt based on a self-report by the applicant to the Doctor, Dr Michael McKeough, who states that the applicant is a new patient.[12]
[12] T-documents, T58 at p. 134
In the applicant’s original application to DVA dated 27 January 2015 he states he started smoking 10 or 12 cigarettes a day in 1956, that this then increased to four ounces of roll your own and two ounces of pipe tobacco. He stated he stopped smoking in March 2013.
The applicant reports in a smoking questionnaire dated 20 February 2015 that he started smoking regularly in August 1956 and stopped smoking permanently when he first stayed in hospital in March 2012.
The applicant’s statement of facts issues and contentions filed on 5 February 2016 states that the applicant smoked 24.5 cigarettes per day.
The Tribunal accepts that three months is enough time for a ‘habit’ to be established based on the applicant’s evidence that he commenced smoking 10-12 cigarettes a day and then this increased substantially throughout the three month period. After an assessment of all the evidence, the applicant is consistent in his evidence that he commenced smoking at least 10 cigarettes a day and continued smoking daily from 1956 until at least 2005.
On that basis, we accept that the applicant established a habit of smoking in that early period of service, and continued to smoke at least 10 cigarettes daily throughout his part-time service until 1958, and in doing so became so habituated to smoking that this was the cause of his later smoking.
Whether the applicant’s smoking contributed to the development of prostate cancer
It must be established that there is a causal relationship between “the person’s smoking during the period of military service and the onset of the accident or illness”: Wall at [35]. The threshold for this causal link is established in the definitions contained within section 5B of the Act where it states that a disease means an ailment suffered by an employee that was contributed to, to a significant degree, by the employee’s employment and significant degree means a degree that is substantially more than material: see sections 5B(1) and (3).
In order to establish whether the applicant’s smoking contributed to a degree that is substantially more than material to the development of his prostate cancer it is necessary to examine the expert medical evidence provided by each party.
The applicant’s medical expert is his treating Medical Oncologist, Dr Woodward. Dr Woodward outlines that the applicant’s smoking contributed in a moderate way to the development of his prostate cancer, stating that there was the range of “21-50%” causation. She reaches this view on the basis of the Huncharek Paper which she impliedly believes supports her conclusion as to causation.
The respondent’s medical expert, Professor Fox, reached the conclusion that the applicant’s smoking could not be linked to his prostate cancer on the balance of probabilities. Professor Fox in his initial report explains that according to the literature, and taking into account the applicant’s level of smoking, one in five smokers that develop prostate cancer could attribute their cancer to smoking. Professor Fox states in his supplementary report, when taking into account the increased number of cigarettes purported to be smoked by the applicant, that the more recent literature suggests that even a 30% increase of risk can only be linked to the development of prostate cancer in 1 in 3 or 4 smokers. On that basis, Professor Fox’s opinion remains unchanged that the applicant’s cancer is not related to his smoking habit.
The applicant questioned the conclusions reached by Professor Fox on the basis that Professor Fox did not examine the applicant in person and provides an opinion based on statistical evidence. The applicant submits that the evidence of Dr Woodward, being the treating doctor, and an oncology specialist, should be preferred.

We cannot reach the conclusion that Professor Fox’s evidence should be given less weight because he did not examine the applicant directly; it is not necessary to examine a patient directly in order to reach a conclusion about the most current medical literature and the extent to which smoking can be linked to prostate cancer.
The applicant’s treating doctor, Dr Woodward, is certainly a qualified medical professional specialising in oncology. However, when comparing her expertise to Professor Fox, whose qualifications were included with his supplementary report dated 29 March 2016, it is clear that Professor Fox is a more senior medical expert in the field of oncology. In that sense, Professor Fox is in a better position to provide evidence on the causal relationship between smoking and prostate cancer, and analyse the literature in this area.
On this basis, we rely upon the evidence of Professor Fox and accept his conclusion on the balance of probabilities that even in the case where the applicant smoked 24.5 cigarettes per day the applicant’s prostate cancer cannot be attributed to smoking. Professor Fox’s assessment leads to the conclusion that there is a 0% chance, on the balance of probabilities, that the applicant developed prostate cancer due to his smoking habit. As there is a 0% chance that the applicant’s prostate cancer was caused by his smoking, we are unable to find that this level of chance is enough to be ‘substantially more than material’ according to the definition of significant degree in section 5B(3).
We conclude that the causal link between the applicant’s smoking and the development of his prostate cancer does not reach the threshold of “significant degree” required in order to satisfy the requirements set out in the Act and the causal relationship necessary as established in Wall.
CONCLUSION
The applicant’s claim for rehabilitation and compensation for his prostate cancer cannot be accepted as the applicant’s smoking habit did not cause the development of his prostate cancer.
DECISION
We affirm the decision under review.

I affirm that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott and Member Dr G Maynard

...........................[sgd]...................................
Associate
Dated: 8 September 2017

Date of hearing: On the papers

Date final submissions received: 10 January 2017

Advocate for the Applicant: Kingaroy RSL Sub Branch

Solicitors for the Respondent: Moray & Agnew Lawyers

[2017] AATA 1433

8 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Causation

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	On the papers
Date final submissions received:	10 January 2017
Advocate for the Applicant:	Kingaroy RSL Sub Branch
Solicitors for the Respondent:	Moray & Agnew Lawyers