Cooper and Military Rehabilitation and Compensation Commission (Compensation)
[2017] AATA 429
•6 April 2017
Cooper and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 429 (6 April 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/5723
Re:Bronwyn Cooper
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Date:6 April 2017
Place:Brisbane
The decision under review is set aside and the matter is remitted to the Respondent with the direction that the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988.
............................[Sgd]............................................
Senior Member J Sosso
CATCHWORDS
COMPENSATION – claim for compensation of an injury – cancer condition a result of smoking while enlisted in the RAN – applicant did not smoke prior to enlisting in RAN – applicant was 15 years old when enlisted and served for 23 years – gave up smoking when retired from RAN - decision set aside and remitted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Loder and Comcare [2004] AATA 1021
Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711
Military Rehabilitation and Compensation Commission v Wall [2005] FCFA 127
Keenan and Comcare [2009] AATA 884
Havnen and Comcare [2010] AATA 535
Read and Military Rehabilitation and Compensation Commission [2015] AATA 930
Samarasekera and Military Rehabilitation and Compensation Commission [2007] AATA 1726
Fisher and Military Rehabilitation and Compensation Commission [2013] AATA 934
Rohov and Military Rehabilitation and Compensation Commission [2011] AATA 908
REASONS FOR DECISION
Senior Member J Sosso
6 April 2017
INTRODUCTION
On 10 December 2014, Mr Christopher John Cooper (the Deceased), a former member of the Australian Defence Force (ADF), lodged a claim for compensation in relation to four conditions.
The first condition was described as: “Chronic Obstructive Pulmonary Disease, Carcinoma-Tongue, Scc Floor of Mouth T1NO” – Exhibit 1 T8 p. 22. In response to the question: “How do you believe your service caused contributed to or aggravated this injury or disease”, the Deceased said:
“All of the cancer conditions have arisen as a result of my exposure to a high degree of smoking and passive smoking within the ship environment to which I served 23 years in the Navy. I was encouraged to smoke because of the ‘stand easy’ and mess activities on board when the bar was open. Taking a break meant having a smoke. I was 15 at the time I enlisted and wanted to be one of the ‘men’.”
The Deceased also claimed in relation to “Progressive Metastatic Disease with FDG Avid Skeletal And Hepatic Metastases” - Exhibit 1 T8 p. 25.
The Deceased stated that this condition arose “from chemotherapy treatment response resulting in avid skeletal and hepatic metastases. Treatment for floor of mouth SCC which resulted in 23 years of smoking as a consequence of a culture to encourage smoking and to provide cheap cigarettes and the workplace environs in which to smoke freely.”
On 26 February 2015 the delegate of the Military Rehabilitation and Compensation Commission (the Respondent) disallowed the claim. The delegate stated that in order for a claim to be successful evidence had to show that it is probable, and not merely possible, that military service contributed to a material degree to the causation, aggravation, acceleration or recurrence of the claimed disease. The delegate found that she was unable to consider the Deceased’s smoking habit to be service related. In so finding, reliance was placed on the fact that the Deceased commenced smoking after the end of 1973 – Exhibit 1 T9 pp. 32-33.
On 19 March 2015 the same delegate determined that the Deceased’s claim be disallowed in relation to the secondary condition “progressive metastatic disease with FDG avid skeletal and hepatic metastases” – Exhibit 1 T 10 p.34. This flowed from the delegate’s determination to deny liability for the primary condition.
Both of these determinations were reconsidered and affirmed by another delegate on 8 October 2015. The delegate was unable to find any evidence that smoking was condoned or encouraged during the Deceased’s military service, and the delegate was not satisfied that smoking was ancillary or incidental to the performance of his duties. Whilst it was conceded that the Deceased commenced smoking while enlisted, the delegate was of the opinion that this was a temporal rather than a causal relationship to his military service – Exhibit 1 T 12 p. 43.
On 25 February 2015 the Deceased passed away. Subsequently the application is brought by Mrs Bronwyn Cooper (the Applicant) on behalf of her late husband.
Subsection 55(2) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that a claim is not affected by the death of the claimant after the claim is served. Claims for non-economic loss are excluded from the survival provisions contained in section 55(4); see Re Loder and Comcare [2004] AATA 1021.
The Applicant consequently seeks a review of the decision of 8 October 2015 which denied the Deceased’s compensation claim.
The matter was heard on 6 February 2017. The Applicant was represented by Mr Terry Meehan, Compensation and Pensions Advocate of the Returned Services League of Australia. The Respondent was represented by Mr Charles Clark of Counsel who was briefed by Sparke Helmore Lawyers.
No witnesses were called to give oral evidence.
BACKGROUND
The Deceased was born on 8 May 1961 and enlisted in the RAN on 5 January 1977 when he was 15 years of age. He was discharged from the RAN on 9 March 2000 having served 23 years in the Navy. During his service he was employed in close quarters on RAN ships and rose to the rank of Chief Petty Officer – Exhibit 1 T8 p. 20.
It is not contested that when the Deceased first enlisted he was a young male who did not smoke. This was confirmed in a letter signed by his mother, Mrs Eleanor Cooper dated 9 July 2016 – Exhibit 3.
He was required to relocate from Melbourne to Perth for recruit training.
The Deceased commenced smoking in February 1977 at a rate of five cigarettes each day. He claimed that he started smoking due to “peer pressure”, “way of navy life” and “most people smoked and he joined in” – Respondent’s Statement of Issues, Facts and Contentions (RSIFC) para 4.3, Exhibit 2 ST9 p.16, and Exhibit 2 ST11 p.28.
The Deceased informed the Veteran’s Review Board in 2007 that he did not recall knowing about the dangers of smoking when he started and that smoking went along with drinking alcohol which he was allowed to do in the mess during training – Exhibit 2 ST11 p.29.
The Deceased’s rate of smoking increased steadily with time – Exhibit 2 ST11 p. 30.
At the age of 17 he was assigned to HMAS Kuttabul, and by then was smoking a packet of cigarettes each day – Exhibit 1 T2 p.7, Exhibit 2 ST11 p.29.
By 1979 the Deceased was posted to HMAS Stalwart, which was his first sea-going ship. By this time he was smoking 25-35 cigarettes a day as a result of “first posting to seagoing vessel, pressure of extra responsibility” – Exhibit 1 T4 p.15.
Further, cigarettes could be purchased duty free at sea, and at that time only cost 30 to 40 cents a packet – Exhibit 2 ST11 p.29.
The Deceased ceased smoking in April 2005 – Exhibit 1 T4 p.15.
When the Deceased was medically examined on 5 September 1988 and 3 August 1994, it was noted by the medical officers that he was smoking 20 cigarettes each day – Exhibit 2 ST8 p.15 and Exhibit 1 T13 p.56. Similarly when the Deceased was examined on 21 May 1997 and 18 February 1999, it was noted that he was still smoking between 10 and 20 cigarettes each day – Exhibit 2 ST7 p.14 and Exhibit 1 T13 p.55.
The medical examination records presented to the Tribunal from 1979 (Exhibit 2 ST2 p.4), 1983 (Exhibit 2 ST 3 p.5) and 1984 (Exhibit 2 ST4 p.6) contain no information about the Deceased’s smoking history, but indicate that at those times he presented in an ostensibly healthy state as an average man of his age and in apparently good health.
On 14 July 2006 the Deceased lodged a claim for a pension under the Veteran’s Entitlements Act 1986 for a condition described as chronic bronchitis and emphysema which was said to be related to his defence service, The conditions were said to be caused by smoking during his service – Exhibit 2 ST10 pp.18-24.
At both first instance, and then on review, the Deceased’s claim was rejected. For present purposes the following extract from the reasoning of the Veteran’s Review Board is of particular relevance (Exhibit 2 ST11 at pp.31-32):
“26 The Board found the applicant to be a credible witness in describing the commencement, continuation and cessation of his smoking habit. The Board acknowledges that the applicant was young when he left home to start service in the Navy. The Board also acknowledges that the applicant would have smoked in excess of the requisite amount of 10-pack years between 1997 and 2001 when he first consulted Dr Potter for his respiratory condition, which the Board takes to be the clinical onset of chronic bronchitis.
27 The Difficulty for the Board relates to the requirement that for a condition to be defence-caused, it must be something about the particular circumstances of the applicant’s service which caused him to commence and/or continue smoking. Although there is a temporal connection with the applicant’s commencement and continuation of smoking, the Board could find nothing about the applicant’s defence service which positively supports a causal connection with his service. The applicant describes a smoking habit which increased gradually over the years because of peer pressure, the inexpensive cigarettes available at sea, and the ‘partying’ aspects of some of his service. He said smoking and drinking alcohol went hand in hand. There did not appear to the Board, to be any particular event or occurrence in service which led to an increase in the applicant’s smoking habit and he did not have the stresses associated with operational service. As well, smoking was prevalent in the general community at the time the applicant commenced and continued to smoke. For these reasons the Board is not reasonably satisfied that the applicant’s smoking was defence-caused.”
On 2 October 2013 the Deceased lodged a claim under the Veterans’ Entitlements Act 1986 for malignant neoplasm of the mouth/throat. The Repatriation Commission was satisfied that the appropriate medical diagnosis was malignant neoplasm of the oropharynx – Exhibit 2 ST13 p.40. The Deceased contended that the malignant neoplasm was caused by service related smoking. In rejecting his claim, the Repatriation Commission said (Exhibit 2 ST13 p.41):
“For malignant neoplasm of the oropharynx to be caused by service-related cigarette smoking in balance of probability cases, there must be a history of having smoked at least 5 pack years (equivalent to 38,500 cigarettes) which is related to eligible service and the smoking must have commenced at least ten years before the clinical onset of this condition. If the person stopped smoking, the clinical onset of malignant neoplasm of the oropharynx must occur within 10 years of the cessation of this smoking.
Although Mr Cooper may have smoked the requisite number of cigarettes, I have considered the claimant report on smoking and the reasons for decision dated 9 October 2007 by the Veteran’s Review Board and am unable to causally relate the veteran’s smoking habit to his eligible service.”
This decision was affirmed by the Veterans’ Board of Review on 11 September 2014 – Exhibit 2 ST14 p.45.
ISSUES
The key issue to be determined is whether the Respondent is liable to pay compensation under sections 14 and 17 of the Act.
In reaching a decision the Tribunal has to consider a number of matters.
The first and threshold issue is whether the Deceased suffered from the claimed conditions.
Second, whether the Deceased’s smoking contributed to a significant degree to the onset, aggravation, exacerbation or acceleration of the claimed conditions.
Finally, if each of the previous questions is answered in the affirmative was there a causal connection between the performance of the Deceased’s duties as a member of the ADF his smoking habit and hence the onset etc of his claimed conditions.
LEGISLATION
Section 14 of the Act provides that compensation is payable in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
It is not contested that the Deceased was an “employee” for the purposes of the Act.
The common law position of members of the ADF together with legislative changes since 1948 designed to extend general workers compensation laws to defence force personnel are set out helpfully by Hely J in Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711 at [24] – [28]. Pursuant to section 5(2) of the Act an “employee” includes a member of the Defence Force and for the purposes of the Act such member is taken to employed by the Commonwealth, and the person’s employment is taken to be constituted by the person’s performance of duties as a member of the Australian Defence Force.
As the Deceased’s defence service terminated in 2000 these proceedings are subject to the provisions of the Act and not the new Military Rehabilitation and Compensation Scheme for Defence Force Members – section 4AA.
Section 17 deals with compensation for injuries that result in death. In the context of the present matter, the section provides that compensation is payable where a deceased has left dependants who were either wholly or partially dependent on the employee at the date of the employee’s death.
“Injury” is defined by section 5A to mean:
“(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.”
In this matter, then, it is contended that the injury suffered by the Deceased was a disease.
The term “disease” is defined by subsection 5B(1) as follows:
“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.”
It will be noted that the test to be applied is whether the ailment etc was contributed to a “significant” degree by the employment. Prior to the passage of the Safety, Rehabilitation, Compensation and Other Legislation Act 2007, the test was a “material degree”. Subsection 5B(3) provides that a significant degree means “a degree that is substantially more than material.”
Previous Tribunal determinations have highlighted that the policy behind this legislative change was to strengthen the connection between employment and a disease. It was designed to ensure that there was an effective test of work-relatedness – Keenan and Comcare [2009] AATA 884. This requires an evaluation of the role played by employment and non-employment factors, with employment factors contributing to a critical and not just an ordinary or trivial degree – Havnen and Comcare [2010] AATA 535.
Subsection 5B(2) provides that in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment 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.
CONSIDERATION
It is not contested that the Deceased suffered from, and ultimately died from, the claimed conditions. The Tribunal has before it a Cause of Death Certificate which states that the primary cause of death was tongue cancer, the duration of which is stated to be 12 months. The mode of death involved a terminal febrile neutropenia ( 5 days) – Exhibit 2 ST17 p.54.
In addition there is also a medical report of Dr Vikram Jain dated 17 February 2015, and prepared only a month before the Deceased’s death, which states unequivocally that he was suffering from, inter alia, metastatic head and neck cancer, and specifically with floor of mouth, base of tongue cancer – Exhibit 2 ST16 p.53.
According to a Minute – DVA Victoria of the Department of Veterans’ Affairs dated 1 April 2015, the diagnosable onset of the tongue cancer was May 2013, at which time the condition was already metastatic – Exhibit 2 ST18 p.55. This analysis comports with the other medical evidence before the Tribunal, namely that the Deceased was treated with surgery and bilateral neck dissection in May 2013 for floor of the mouth and tongue cancer, followed by radiotherapy – Exhibit 2 ST15 p.51.
Subsection 7(4) of the Act provides that an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease when the employee first sought medical treatment for the disease, or aggravation or the disease or aggravation resulted in the death of the employee or first resulted in incapacity for work or impairment of the employee.
If the date the employee first sought medical treatment for a disease or aggravation of a disease for the purposes of section 7(4)(a) of the Act was after 1 December 1988, the Act applies. In this instance the relevant date is or around May 2013 and, as such the Act applies as does the significant contribution test in section 5B introduced by the 2007 amendments.
The next issue is whether the Deceased’s tongue cancer can be said to be caused by service-related cigarette smoking.
In the Repatriation Commission decision of 2 January 2014 quoted above (Exhibit 2 ST13 p.41), it is stated that for malignant neoplasm of the oropharynx to be caused by service-related cigarette smoking in balance of probability cases, there must be a history of the claimant having smoked at least five pack years, and for the malignant neoplasm of the oropharynx to occur within ten years of cessation of smoking.
The evidence discloses that the Deceased started smoking in February 1977 and continued this habit throughout his 23 years of navy service. The Deceased, as the Commission found, had smoked the requisite amount of cigarettes.
The Respondent did not contest this point, and it is abundantly clear that the Deceased was a very heavy smoker for almost three decades, and certainly for more than the two decades he enlisted in the RAN. The clear inference to be drawn from this, and from all the material before the Tribunal, is that the heavy and prolonged smoking of the Deceased caused the onset of the cancer which ultimately resulted in his death.
However, the fundamental question to be determined is whether the claimed conditions were contributed to, to a significant degree, by the performance of the Deceased’s duties as a member of the RAN.
As Hely J noted in Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711 at [34]: “Causation is essentially a factual question for the Tribunal to determine, and the fact that members of the Defence Force have never been required to smoke in the performance of their duties was not necessarily fatal to Mr Wall’s claim.”
Hely J then provided the following guidance to the Tribunal at [37]:
“The phrase ‘military service’ is an apt expression to describe the performance of a person’s duties as a member of the Defence Force, which duties extend to ancillary duties or matters incidental to the serviceman’s employment….Mr Hanks QC submitted that on no view of the matter could performance of Mr Wall’s duties as a member of the Defence Force include, for example, living in close proximity to other members of his platoon. I do not agree. If he was required by his superiors to live in that way, then the performance of that requirement is a performance of one of his duties as a member of the Defence Force.”
Wilcox and Downes JJ agreed with the reasons expressed by Hely J, including the passages quoted above – Military Rehabilitation and Compensation Commission v Wall [2005] FCFA 127; 88 ALD 1 at [29].
The Respondent contends (RSFIC paras 5.3-5.4) that the claimed conditions were not contributed to, to a significant degree, by the Deceased’s employment. Further, it is contended that the Deceased’s smoking did not arise as a result of his duties as a member of the Defence Forces and therefore does not fall within the meaning of “employment” under the Act.
The Respondent relies on the Full Federal Court decision of Wall.
In that matter an ex-serviceman made a claim for compensation pursuant to the Act in respect of the conditions of cerebrovascular accident and ischaemic heart disease. It was accepted that the ex-serviceman’s smoking was a contributing factor to both conditions and that he had commenced smoking during his three month full-time national service in 1954. He continued to smoke until 1987.
At first instance, the Tribunal said that the real question was whether the ex-serviceman’s smoking habit could be said to have risen out of or in the course of his employment or whether his employment was a contributing factor.
Both the Tribunal, and on appeal, Hely J, found in favour of the ex-serviceman. A majority of the Full Court (Wilcox and Downes JJ) also found in favour of the ex-serviceman and said:
“31 The Tribunal correctly described its legal function when it said that [t]he ‘real question...is whether the Applicant’s smoking habit can be said to have arisen out of or in the course of his employment…or whether his employment was a contributing factor’. The Tribunal also said: ‘it must be proved that the disease was caused by the employment and not merely contracted during the said employment’. It concluded that: ‘In this case…to adopt a smoking habit is a risk of that employment’.
32 We emphasise the Tribunal’s words ‘In this case’. Unlike a civilian employee, the respondent did not have the option of coming and going from his place of employment or the option of living away from the job. The form of national service training which the respondent was required to undertake involved him becoming, for three months, a full-time member of the Defence Force. During that time, the respondent was required to live in Army barracks in the company of other trainees. No doubt an important object of the training program was to accustom young men to the experience of living and working together, including under stressful circumstances…
35 It should not be assumed, from the result of this case, that compensation will be available to every former member of the Defence Force who can establish that he or she took up smoking during the military service and subsequently suffered a smoking-related accident or illness. In any particular case, 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. That is likely always to be a difficult case for an applicant to make good. However, it is implicit in the Tribunal’s finding that the respondent succeeded in persuading it that this was the situation in the present case.”
The Respondent contends that this matter can be distinguished from Wall on the following bases (RSIFC para 5.6):
(a)the Deceased served between 5 January 1977 and 5 January 2000;
(b)this service was after 1973 when the Australian Defence Force ceased the availability of cheap cigarettes;
(c)at the time of the Deceased’s enlistment the health effects of smoking were well known and public education and anti-smoking campaigns were in practice;
(d)during the period of the Deceased’s service, the Australian Defence Force expressly discouraged smoking.
The Respondent further contends (RSIFC para 5.7) that on the available evidence, the Deceased’s experience in commencing and continuing smoking was not any different to that that which would be experienced in any usual social or occupational setting. Consequently it is contended that the Deceased’s military service provided only the setting in which he chose to smoke. His smoking was a matter of personal choice (RSFIC para 5.8).
The evidence before the Tribunal does not support the Respondent’s contentions that the Deceased’s smoking habit would have occurred irrespective of whether he enlisted in the RAN and was purely a matter of personal choice.
The Deceased was a boy of only 15 years when he enlisted. Presumably like most boys of that age and of that time, he would have been impressionable. In any event, he was moved from his home in Melbourne and sent to Perth; a continent away. At a critical stage in his life and development he was deprived of the daily love, support and guidance of his family; and moved into an alien environment with different mores, different expectations and different standards of behaviour, both personal and social. An environment of strict standards, hierarchy and almost entirely of men, particularly adult men in authority. A boy of that age who was living and working in a closed and strange environment would necessarily have been more susceptible to peer pressure and more likely to adopt the habits and culture of those he was living with to “fit in” and to make life bearable.
The undisputed evidence is that he did not smoke before he enlisted but commenced to smoke only a month later.
The present matter can be contrasted with Read and Military Rehabilitation and Compensation Commission [2015] AATA 930. In that matter, the Applicant was conscripted into the Army when he was 20 years of age. Senior Member Walsh noted (at [68]):
“On his own evidence, Mr Read had at this time been out of high school for five years and had been employed throughout that period. He had already left home and had travelled from Western Australia to Queensland, on his own for work. It can be inferred from this that Mr Read was an independent and mature 20 year old by the time he was conscripted into the Army. Therefore, as submitted by the MRCC, it is reasonable to infer from this that Mr Read would have been less impressionable, and susceptible to commence smoking as a result of peer pressure, than someone like Mr Wall…”
Another contrasting matter is Samarasekera and Military Rehabilitation and Compensation Commission [2007] AATA 1726. The Applicant in that matter smoked before joining the ADF and was 25 when he enlisted. Senior Member Carstairs made the following observations [26] and [29]:
“26 I was satisfied that the facts in Mr Samarasekera’s case were very different from those in Wall. Mr Wall was considerably younger than Mr Samarasekera at the time of joining up. Mr Wall was 19, whereas Mr Samarasekera was almost 26 years of age and Mr Wall was not a smoker, whereas Mr Samarasekera was. One would reasonably expect a 19 year old to be more impressionable. Mr Wall was placed in rather different circumstances in the 1950s as a young National Serviceman taken away from his normal life…
29 I was satisfied on the facts here that Mr Samarasekera’s Army service provided only the setting in which he increased his smoking levels. This was a matter of personal choice and there was no characteristic or feature of his employment in the Army or his duties (ancillary or otherwise) required of him, nor anything in the circumstances in which Mr Samarasekera was undertaking those duties that contributed to his smoking.”
The evidence also discloses that the Deceased stopped smoking five years after leaving the RAN, and, in contrast to both Read at [70] and Fisher and Military Rehabilitation and Compensation Commission [2013] AATA 934 at [30], his level of smoking did not increase once he left the military. His smoking habit was, to a very large degree, coterminous with his service in the RAN.
The Respondent contends that the Australian Defence Forces ceased providing cheap cigarettes to members of the ADF by December 1973. This was also stated by the delegate of the Respondent in the reviewable decision – Exhibit 1 T12 p.43. The delegate also stated that after December 1973 cigarettes were no longer included in ration packs.
If by “cheap” the Respondent is suggesting that from January 1974 members of the ADF could not access subsidised cigarettes, then this is contrary to evidence presented in previous Tribunal proceedings that subsidised cigarettes were still being sold at base canteens in the early 1980s to members of the ADF – Fisher at [8]. Moreover, from the 1930s until 31 December 2012 RAN crews had access to cheap tobacco products while at sea – Exhibit 6. Accordingly, the delegate’s suggestion that subsidised cigarette products were not available to members of the RAN after December 1973 is too broad.
Further, reliance has been made on the Defence Instructions issued between 1988 and 1995 which were said to expressly discourage smoking.
A few observations can be made regarding these Instructions.
The first is that the 1988 Instructions, which appears to be the first explicit general Instruction on the danger of active tobacco smoking, was issued 11 years after the Deceased enlisted. By the time that Instruction was made the Deceased had developed a compulsive smoking habit involving the consumption of a packet of cigarettes each day.
It is the case that from 1972 successive Commonwealth governments increasingly highlighted the dangers of tobacco use and ensured health warnings were placed on tobacco products and television advertising was stopped. However, when the Deceased enlisted in 1977 tobacco consumption was widespread, and it was another decade before Commonwealth and State governments began a concerted campaign to reduce smoking by excise increases, health warnings, banning all tobacco advertising, restricting places where smoking is permitted and concerted anti-smoking advertising campaigns – see the discussion in Fisher at [15] – [16].
Studies have highlighted that smoking was the norm amongst Australian males by the end of the Second World War. In 1945 72% of males smoked tobacco. The percentage of males smoking (as compared with females) steadily decreased thereafter, reaching 58% in 1964 and 45% in 1969. However, from that point onwards the actual percentage of Australians smoking started to increase until the mid 1980s, with the percentage of males smoking in 1974 remaining at 45% and only slightly dropping to 43% by 1986, but with the percentage of females smoking increasing from 28% in 1969 to 30% in 1974 and increasing further to 33% in 1986 – see Rohov and Military Rehabilitation and Compensation Commission [2011] AATA 908 at [23]. Consequently when the Deceased enlisted in 1977, smoking amongst Australian males was very prevalent and with no appreciable movement towards non-smoking evident from the statistics.
The next observation is that these Instructions did not ban tobacco smoking, they merely limited the areas where people could smoke and contained encouragement and education measures. Indeed the Instruction issued on 21 November 1989 stated in the Introduction: “Service personnel who have acquired the habit will continue to use cigarettes”. In short, the measures were aimed at minimising the intake of new smokers and the contact of existing smokers with non-smokers, rather than the eradication of smoking per se.
In reaching a conclusion on whether there is a causal link between the performance of the Deceased’s duties as a member of the RAN and his smoking habit, and, in particular, whether the performance of those duties contributed to a significant degree to his smoking, I have taken into account the following factors:
(a)the Deceased was only 15 years of age when he first enlisted;
(b)he was separated from his parents and moved from Melbourne to Perth, which in 1977 would have meant he had minimal contact with them;
(c)he was placed in a “milieu totally different to that which had experienced before his” enlistment – see Repatriation Commission v Tuite (1993) 29 ALD 609 at 614;
(d)he was exposed to a high degree of smoking and passive smoking from the outset and throughout his years of service;
(e)he was subject to peer pressure as a young teenager and wanted to be “one of the men”;
(f)smoking was tolerated and even tacitly encouraged by the RAN during his years of service. It was only after 1 January 2013 that the favourable excise provisions for cigarette sales on board ocean going ships was changed; a policy that had been in force since the 1930s;
(g)the Deceased served in the Navy for approximately 23 years; his extended period of service had a marked impression on his character formation and smoking and drinking habits;
(h)he did not smoke before enlisting, but commenced smoking after only a month thereafter when he was only 15 years of age;
(i)there is no material before the Tribunal that any attempt was made to prevent or inhibit the Deceased from smoking before he reached 18 years of age; and
(j)his smoking habit did not increase after he left the RAN, on the contrary, he ceased smoking five years thereafter.
The Tribunal is mindful of the admonition in Wall that compensation is not available to every former member of the defence force who can establish that they commenced smoking whilst enlisted and thereafter suffered a smoking-related illness. There must be a causal relationship between the commencement of smoking and a person’s defence service. The fact that a person commences smoking after enlisting does not provide the causal nexus. That simply provides a temporal connection not a causal link. There must be something inherent in the nature of the defence service that resulted in the onset of nicotinic addiction of the particular claimant.
The evidence before the Tribunal strongly suggests that there is a direct link between the Deceased’s enlistment and service in the RAN and his smoking habit. Clearly the key factor in this matter is the very young age of the Applicant when he enlisted and the quick onset of his smoking habit thereafter.
This matter is clearly distinguishable from both Fisher and Read and provides an even stronger basis for a favourable determination than Wall.
In Read the applicant was 20 years old when conscripted and was a mature man with work experience and who may have already commenced smoking before he was conscripted. In Fisher the applicant only smoked socially whilst enlisted, but his smoking habit changed dramatically after he left the Army and became a truck driver when he started to smoke up to 60 cigarettes per day. Finally in Wall the applicant commenced smoking during his three months national service in 1954. In short, the applicant in that matter was a few years older than the Deceased and only served 3 months in uniform unlike the 23 years of service of the Deceased. Yet despite this the Tribunal, Hely J and a majority of the Full Federal Court found that there was a causal link between his national service and his smoking habit. Wilcox and Downes JJ said ([32]):
“Unlike a civilian employee, the respondent did not have the option of coming and going from his place of employment or the option of living away from the job. The form of national service training which the respondent was required to undertake involved him becoming, for 3 months, a full-time member of the defence force. During that time, the respondent was required to live in army barracks in the company of other trainees. No doubt an important object of the training program was to accustom young men to the experience of living and working together, including under stressful circumstances.”
All of what was said by Wilcox and Downes JJ applies here, only with much greater force. Here the Deceased was a boy of 15 who served much longer than 3 months. His youth, distance from his family, rapid onset of smoking, length of service and easy access to cigarettes are all key factors in determining whether the Deceased’s smoking habit was caused by his defence service.
The Tribunal is satisfied that the Deceased’s employment with the Royal Australian Navy did contribute to a significant degree to his smoking, and that, accordingly, his claimed conditions were significantly contributed to by that employment.
DECISION
The decision under review is set aside and the matter is remitted to the Respondent with the direction that the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso
........................[Sgd]................................................
Associate
Dated: 6 April 2017
Date of hearing: 6 February 2017 Advocate for the Applicant: Mr Terry Meehan
Hervey Bay RSL Sub-BranchCounsel for the Respondent: Mr Charles Clark Solicitors for the Respondent: Sparke Helmore
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