Cooper and Military Rehabilitation and Compensation Commission (Compensation)

This matter concerned an appeal by the applicant, Cooper, against a decision of the Military Rehabilitation and Compensation Commission regarding a claim for compensation for cancer conditions allegedly resulting from smoking while serving in the Royal Australian Navy (RAN). The deceased, who enlisted at age 15 and served for 23 years, did not smoke prior to enlistment but commenced smoking during his service, with his smoking rate increasing over time. He ceased smoking after his discharge from the RAN. The claim was for chronic bronchitis, emphysema, and ultimately, tongue cancer, which was the primary cause of death.

The primary legal issues before the court were whether the deceased's tongue cancer was caused by service-related cigarette smoking, and whether his employment with the RAN contributed to his smoking habit to a significant degree. The court was required to consider the application of the Safety, Rehabilitation and Compensation Act 1988, particularly the "significant contribution" test introduced by the 2007 amendments, given that the diagnosable onset of the tongue cancer occurred in May 2013. The court also had to determine if the deceased had smoked the requisite amount of cigarettes (at least five pack years) and if the cancer occurred within ten years of cessation of smoking, as per established criteria for such claims.

The court reasoned that the deceased's service in the RAN, which involved close quarters on ships and the availability of duty-free cigarettes, likely contributed to his smoking habit. The court noted that the deceased commenced smoking shortly after enlisting and that his smoking rate increased significantly during his service, attributing this to factors such as peer pressure, the "way of navy life," and increased responsibilities. The court found that the deceased had smoked the requisite amount of cigarettes to meet the criteria for a service-related smoking condition. Consequently, the Tribunal was satisfied that the deceased's employment with the RAN contributed to a significant degree to his smoking, and therefore, his claimed conditions were significantly contributed to by that employment.

The decision under review was set aside, and the matter was remitted to the Respondent with a direction that the applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988.