Fisher and Military Rehabilitation and Compensation Commission

[2013] AATA 934

[2013] AATA 934  

Division	VETERANS' APPEALS DIVISION
File Number	2013/0534
Re	Wayne Fisher
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	23 December 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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Mr R G Kenny, Senior Member

CATCHWORDS

WORKERS' COMPENSATION – Service in the Australian Regular Army – Claim for chronic obstructive pulmonary disease due to cigarette smoking – No evidence to support relationship between smoking and service – Respondent not liable to pay compensation for incapacity or impairment – Decision under review affirmed

LEGISLATION

Defence Act 1903 (Cth) s 9A

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14

CASES

Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1

Smith v Comcare (2013) 212 FCR 335
Re Arnold and Military Rehabilitation and Compensation Commission (2010) 118 ALD 560

Re Bryant and Military Rehabilitation and Compensation Commission [2012] AATA 186

SECONDARY MATERIALS

Scollo MM and Winstanley MH, Tobacco in Australia: Facts and Issues (4^th ed, Melbourne: Cancer Council Victoria, 2012)

REASONS FOR DECISION

Mr R G Kenny, Senior Member

23 December 2013

BACKGROUND

1. Wayne Fisher (“the applicant”) served in the Australian Regular Army (“the army”) from 18 November 1981 until 22 May 1990. On 26 July 2011, he completed a claim, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), for rehabilitation and compensation in respect of “chronic obstructive pulmonary disease” (“COPD”).

   
   

   He alleged that the condition was related to his army service in that it was caused by a smoking habit which developed during and because of his army service.

   
   

   On 12 September 2011, a delegate of the Military Rehabilitation and Compensation Commission (“MRCC”) rejected his claim and that determination was affirmed in a reviewable decision by the MRCC on 28 November 2012.

   ISSUES AND LEGISLATION

2. The circumstances in which compensation is payable under the Act are provided in s 14 thereof which reads:

   14 Compensation for injuries

   (1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

   …

3. Relevant definitions in this matter are:

   4(1) ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

   disease has the meaning given by section 5B.

   injury has the meaning given by section 5A.

   …

   5A Definition of injury

   (1)    In this Act:

   injury means:

   (a) a disease suffered by an employee; or

   (b) …

   (c) ...

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.…

   5B Definition of disease

   (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.

   (2)    In this Act:

   significant degree means a degree that is substantially more than material.

4. It is not in dispute that the applicant suffers from the claimed condition of COPD or that the definition relevant to that condition, if it is related to his employment, is “disease” in s 5B of the Act.[1] Accordingly, the issue for determination is whether the claimed condition was contributed to in a significant degree by the applicant’s employment in the army.

   EVIDENCE

   [1] This term is used subject to the determination that the “disease” was contributed to in a material degree by

   The applicant

5. The applicant completed statements on 26 July 2011,[2] 24 June 2013[3] and 5 December 2013.[4] After enlisting in the Army, he completed three months training at Kapooka and then three months at the School of Artillery before being posted to Holsworthy as a gun number. After four years, he moved to Puckapunyal to do a catering course. He then served in Sydney at General Headquarters and later at the Catering Division in Mosman. On leaving the Army, the applicant took up truck driving until 2011.

   [2] Exhibit 1, p. 27.

   [3] Exhibit 2.

   [4] Exhibit 3.

6. In his first statement, the applicant wrote that, in training, there were frequent breaks which were called “smoko” and it was usual for his fellow soldiers to smoke at those times. He was offered and he accepted cigarettes from them and also from the three members he shared a room with, all of whom smoked. He did this to “fit in” with the others. He started purchasing his own cigarettes after a couple of weeks. After the three months at Kapooka and while at the artillery school, he was smoking about 25 cigarettes per day on a regular basis. At Holsworthy, he was smoking 25 to 30 cigarettes per day and this continued at that level throughout his service. When he was driving trucks, his smoking varied in amount sometimes up to 60 cigarettes per day. In March 2011,

   
   

   the applicant developed a cough and he consulted his treating doctor,

   
   

   Dr Nicol. Tests revealed that he had chronic lung disease.

7. In his second statement, the applicant added that he tried smoking a few cigarettes, perhaps four in total, “as a kid”. He also wrote that smoking was usual in the mess halls and was so common that he felt “peer pressure” to engage in smoking as well.

   
   

   He accepted that he was not forced to smoke but he was constantly offered cigarettes and encouraged to smoke. He wrote that he attempted to cease smoking at times in the 1990s without success.

8. In his third statement, the applicant added that, while at Kapooka, he and the other recruits were confined to the base for most of the time so that he was required to live constantly with his fellow soldiers. He added that smoking was permitted everywhere except on the parade ground and around ammunition or flammable items and he could not recall any instructions against smoking. He also wrote that cigarettes were available for purchase at the base canteen where cigarettes were cheaper than off base.

   
   

   He described his fellow soldiers in training as his “family” and wrote that, because he would interact with them for 24 hours per day, it was important for him to “fit in” with them.

9. In his entry medical questionnaire, dated 21 October 1981, the applicant answered “No” to the question: “Do you smoke tobacco?” In his evidence, he confirmed that he had described himself as a tobacco smoker and a consumer of alcohol in his medical discharge documents. However, in each case, he regarded himself as a “social” smoker and drinker by which he meant that he smoked only on social occasions. He added that, while in the army, he only ever smoked in the company of others and did not smoke on his own. He agreed that this changed in his post service work as a truck driver where he smoked on his own and at an increased rate.

10. In his evidence, the applicant denied telling thoracic physician, Dr Robert Edwards, that he had smoked before enlistment apart from a few cigarettes as a child. He agreed that he had advised Dr Edwards that he had increased his smoking level rapidly after enlisting. He confirmed that he felt pressured into smoking because the others did and constantly offered him cigarettes during smokos. He also agreed that he had suffered a back injury in 2003 for which he was treated by Dr Terry Cook, physician, and that he subsequently suffered from anxiety and depression. The applicant agreed that he had increased his level of smoking after leaving the army particularly when he was driving trucks. He said that this work gave him the opportunity to smoke whenever he chose to. He agreed that he had told Dr Cook that he was smoking “very heavily, over 60 cigarettes per day”.[5]

    
    

    He confirmed that he had attempted to cease smoking in the 1990s and had been advised to stop smoking by his treating doctors.

    [5] Exhibit 13.

    Medical evidence

11. Dr Edwards completed reports on 24 May 2013[6] and 3 July 2013.[7] He noted that the applicant “started smoking before he entered the Army” and that “this increased rapidly to 30-40 per day during his first year of being in the Army”. Dr Edwards noted that the applicant continued to smoke heavily for 28 years. He referred to the applicant’s employment as an interstate truck driver until 2011 when he underwent a chest operation in April 2012, before returning to short distance driving. Dr Edwards diagnosed emphysema and, in the absence of a family history of the condition, his opinion was that the contributing factor was the long history of cigarette smoking.

    [6] Exhibit 4.

    [7] Exhibit 5.

12. Dr Cook completed a report,[8] dated 2 August 2005, after seeing the applicant on a matter unrelated to his lung condition. He noted that the applicant was a heavy smoker at over 60 cigarettes per day. Dr Cook expressed the hope that the applicant would reduce his smoking intake.

    [8] Exhibit 13.

13. Clinical notes from the applicant’s previous treating doctor, Dr Ali Al-Hadi, were in evidence. Dr Al-Hadi, on 2 November 2007, noted that the applicant was a heavy smoker.[9]  Dr Barnes, another of the applicant’s previous treating doctors, made a notation on 23 December 2003 that the applicant is to be enrolled in the “Zyban SMOKE FREE Clean Start Program”.[10]

    [9] Exhibit 12.

    [10] Exhibit 11.

14. Dr Dennis Nicol, the applicant’s current treating doctor, entered, on 28 February 2011,

    
    

    a diagnosis of the applicant’s condition as COPD.[11] That same diagnosis was made by

    
    

    Dr Dan Chambers, Thoracic physician, in his report dated 5 July 2011.[12]

    [11] Exhibit 1, p. 42.

    [12] Ibid at p. 45.

    Cancer Council publication

15. In evidence were extracts from a Cancer Council publication entitled “Tobacco in Australia”.[13] In particular, these comprised the Introduction, Chapter 5 “Factors influencing the uptake and prevention of smoking” and Chapter 6 “Addiction”.

    
    

    The Introduction gives a history of steps in the changing patterns of cigarette use in Australia from the time in 1945 when more than three out of every four men were regular smokers, to a gradual decline in the level and then major increases with the advent of television and cigarette advertising. Reference was made to the growing concerns of medical authorities throughout the 1970s about continued smoking and their influence which caused governmental intervention in the restriction of the promotion of smoking products. The authors noted the introduction in 1973 of a gold-lettered warning on cigarette packets about smoking being a “health hazard” and the banning of direct advertising on television of cigarettes in the mid-1970s. The authors noted that these steps barely disturbed the cultural dominance of tobacco use as advertisements shifted to the print media. The authors continued:

    It wasn’t until the early 1980s, however, that governments and cancer councils seriously began to challenge the power of  the tobacco companies through the mass media and in popular culture. Quit campaigns established in each state from 1983 used social marketing to ‘sell’ the message that smoking was harmful...

    [13] Scollo MM and Winstanley MH, Tobacco in Australia: Facts and Issues (4^th ed, Melbourne: Cancer Council Victoria, 2012); (exhibit 6).

16. The authors noted that Quit campaigns led to progressive restriction of smoking in more and more workplaces, in hospitality venues and in public places. The authors noted a stalling of the decline in the prevalence in smoking which reflected reduced expenditure in anti-smoking campaigns in the mid-1990s until an injection of funds through the National Tobacco Campaign in 1997 ‘kick-started’ the decline in smoking. In Chapter 5, the authors identify factors influencing the uptake of smoking by young people. Included amongst these are “peer affiliations and friendships”, “a sense of alienation”, “home smoking policies” and the “opportunity to smoke”. As to the first of those, the authors noted that “research has consistently identified peer group influences as a significant factor in uptake of smoking”.[14] In Chapter 6, reference is made to now common understanding that cigarettes are a highly efficient nicotine delivery system that both causes and sustains the addiction to tobacco products.

    [14] Scotto Scollo MM, and Winstanley, MH, “Tobacco in Australia: Facts and Issues”. (4th edn., Melbourne: Cancer Council Victoria, 2012. ), 41; The research references are footnoted in the document.

    Defence Instructions

17. In evidence was a Defence Instruction entitled “Smoking in the Workplace”,[15] dated 14 October 1988, along with amendments, dated 21 November 1989 and 30 June 1995.[16]

    [15] PERS 39-1 issued pursuant to s 9A of the Defence Act 1903 (Cth).

    [16] See exhibit 7.

18. The first of these refers to a general trend throughout the community towards smoke-free working environments though it recognises that conditions in the ADF differ from other employments. It states that the aim of the Instruction is “to state ADF policy on smoking in the workplace” and its long term policy is to achieve a smoke-free working environment with the following measures to be adopted:

    a.   educate personnel as to the hazards of smoking,

    b.   counteract the passive effects of smoking on those personnel who suffer discomfort or are inconvenienced by smokers, and

    c.   encourage smokers to participate in cessation programs.

19. It identifies areas which will have smoking restrictions, including food preparation areas, dining areas, lecture rooms and libraries. Smoking is to be discouraged in other areas including training and interview rooms, change rooms and reception areas.

20. The 1989 Instruction repeats the above but also notes that “while smoking remains so prevalent in the community, service personnel who have acquired the habit will continue to use cigarettes”. It more strongly emphasises educative and other measures to reduce smoking levels including general discouragement of smoking, the display of ‘no smoking’ signs, encouragement of smokers to seek advice about cessation and the discontinuation of advertising tobacco products in service newspapers.

21. The 1995 instruction is expressed in even stronger terms with limitations extending to outdoor environments. It also required commanders and managers to discourage smoking during routine rest breaks and “to cease the use of the term ‘SMOKO’”.

    Submissions

22. Mr Matt Black, for the applicant, submitted that the applicant’s COPD developed because of his cigarette smoking habit and also that there was authority for the view that peer pressure on a young man in the closed environment of an army training camp, where cigarettes are readily available, can have a significant causal contribution to the development of a cigarette smoking habit. He referred to Re Bryant and Military Rehabilitation and Compensation Commission,[17] and Military Rehabilitation and Compensation Commission v Wall[18] as cases where cigarette smoking was accepted as being causally related to service in the defence force. He noted the Cancer Council publication and its references to the frequency of smoking in Australia in the early 1980s and the commencement of anti-smoking campaigns in 1983. He submitted that the features of army life in Kapooka which caused the applicant to commence smoking and to develop a habit of smoking some 25 cigarettes per day were peer pressure, availability of cigarettes, the temporal opportunity to smoke and the spatial opportunities to smoke. He submitted that the applicant’s COPD is an ailment suffered by him that was contributed to, to a significant degree, by his employment by the Commonwealth, that it was a disease as defined in s 5B of the Act and therefore an injury as defined in s 5A of the Act which met the requirements of s 14 of the Act. Accordingly, he submitted, the decision under review ought be set aside.

    [17] [2012] AATA 186.

    [18] (2005) 88 ALD 1.

23. Mr Charles Clark, for the respondent, submitted that the applicant’s army service was not causally associated with the applicant’s smoking as it merely provided the setting in which the applicant chose to take up smoking. He submitted that no reliance should be placed on the outcome in Wall and Bryant because smoking commenced in those cases in the 1950s when there was not the level of awareness of the dangers of smoking that pertained when the applicant took up smoking in 1981; because Mr Wall had orthopaedic problems which were eased through smoking; and because the test of causation under
    s 5B of the Act was not applicable in those decisions. Mr Clark also submitted that the nature of the applicant’s smoking habit was materially different after he left the army in that he smoked much more heavily and without the social limitation he was under in the army. Mr Clark submitted that the decision under review ought be affirmed.

    Consideration

24. I have noted the authorities cited by Mr Black. In Bryant,[19] The claimed condition was chronic bronchitis and emphysema which the Tribunal found to be unrelated to his army service. Nonetheless, the Tribunal was satisfied of a relationship between smoking and national service in the Army in circumstances similar to those of the applicant.

    
    

    The Tribunal said:[20]

    31.In this context, in order for Mr Bryant to establish the necessary connection between his smoking and his service, it is necessary for him to show that his smoking habit arose out of or in the course of his service or that his service was a contributing factor to his smoking habit. Factors which have been found to be relevant in this context are the stresses of military life, living on base in close proximity to other service persons, military discipline, peer group pressure and the availability of cheap cigarettes.

    32.In his evidence, Mr Bryant stated that he did not smoke or drink prior to commencing his national service at 17 years old. He said that the practice at the time when he joined up was for the soldiers to have regular “smoko” breaks and when it was time for a break, he would be given cigarettes and encouraged to smoke them. I accept his evidence in this regard and also the evidence given in his statement that, as a result of being given cigarettes and encouraged to smoke them he “soon became addicted to smoking.”

    33.Further I am also satisfied that this evidence establishes a causal connection between the circumstances of Mr Bryant’s service and the establishment of his smoking habit sufficient to satisfy the applicable test, namely that his smoking habit arose out of or was contributed to by his service.

    [19] Op cit. See also Re Arnold and Military Rehabilitation and Compensation Commission (2010) 118 ALD 560.

    [20] Footnotes have been omitted.

25. As Mr Clark contended, significant differences between Mr Bryant’s situation and that of the applicant are the timing of the commencement of smoking in the 1950s rather than in 1981 and the test of causation to be applied by the Tribunal. Another is that Mr Bryant was a national serviceman when he commenced smoking.

26. In Wall,[21] the relevant employment was also national service in the army. Mr Wall’s claim for cerebrovascular accident and ischaemic heart disease were found by the Tribunal to be causally related to that employment on the basis of a service-related smoking habit. In the Full Federal Court, the majority[22] determined that no error of law arose in the Tribunal’s decision saying: 

    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.

    33 The passage in the Tribunal’s reasons which is criticised is: “I consider that the Applicant’s military service did involve a particular liability to the contraction of a smoking habit”. Two criticisms are made. First, it is said that the phrase “military service” does not describe what was involved in Mr Wall’s duties as a member of the Defence Force. Secondly, it is said that the Tribunal did not make findings on this topic anywhere else in the reasons.

    34 These arguments ignore the two occasions when the Tribunal did address the requirement for the disease or injury to be related to the employment. The Tribunal was constituted by an experienced lawyer. We would not conclude that any failure to refer to the required nexus in the passage containing the phrase “military service” represented a failure to adhere to the requirement for the nexus to exist. We bear in mind the High Court’s stricture in Wu Shan Liang, mentioned by Hely J. We agree with Hely J that the phrase “military service”, in its total context, refers to the performance of Mr Wall’s duties.

    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.

    36 The facts were for the Tribunal to evaluate. The only legitimate concern of the Court is whether the Tribunal erred in law. Hely J did not think so. Nor do we. No doubt it would have been possible for Senior Member Allen further to refine his reasons but we do not think he misunderstood or misapplied the relevant legal principles

    [21] Op cit.

    [22] Per Wilcox and Downes JJ; Gyles J dissenting.

1. It is not disputed that the applicant was a non-smoker when he enlisted in the army in 1981 or that he was smoking at a level of 25 to 30 cigarettes per day at the time of his discharge in 1990. Aspects of his service, similarly, are not in dispute. He lived in barracks with three others who smoked cigarettes; he was confined to the precincts of Kapooka for the early part of his three months of training; cigarettes were available for purchase at army canteens at a price less than that applicable off base; rest periods were known as “smoko” during which time those accustomed to smoking would do so; smoking was permitted in a wide array of activities; and the applicant would frequently be offered cigarettes by his peers.

2. While some of those factors are identified in the Cancer Council publication, noted above, as being influential in the taking up of smoking, I am satisfied that they merely provided the environmental setting in which the applicant was required to carry out his duties. There is no evidence that any aspect of his army work necessarily required him to smoke. In that environmental setting, the applicant made a choice to take up smoking which, because of its addictive nature, continued throughout his employment with the Commonwealth. In that sense, there was a temporal connection between the applicant’s smoking and his employment but there was no causal connection between his act of smoking and the performance of his duties as a member of the defence force.[23]

   [23] See the dissenting judgement of Gyles J in Wall at [46].

3. Mr Wall and Mr Bryant were conscripted into national service but that was not the case with the applicant. He voluntarily chose to join the army and, accordingly, was serving in Kapooka by choice. Moreover, he enlisted in the army at a time when there was already a public consciousness of the harm associated with smoking. Certainly, the Defence Instructions, noted above, did not appear until 1988. However, the Cancer Council publication referred to growing concerns of medical authorities throughout the 1970s about smoking, the introduction in 1973 of a warning on cigarette packets about smoking being a “health hazard” and the banning of direct advertising on television of cigarettes in the mid-1970s. Those public actions were in place for some years before the applicant enlisted in the army. The applicant’s conscious choice to take up smoking was with knowledge of the harm in doing so.

4. One aspect of the applicant’s smoking pattern in the army was that he only smoked in the company of others in a social setting. That changed after he was discharged and took up employment as a truck driver when he would engage in smoking with no social context. Further, the nature of his habit changed in that he substantially increased his level of smoking to the level of up to 60 cigarettes per day. That changed pattern of smoking was unrelated to his employment with the Commonwealth and lasted some 20 years. On the evidence of Dr Edwards, this must have contributed to his lung problems in that

   
   

   Dr Edwards’ opinion was that the contributing factor to those problems was the applicant’s “long history” of cigarette smoking.

5. Under s 5B of the Act, an ailment must have been contributed to, to a significant degree, by the applicant’s employment with the Commonwealth. Where the ailment is caused by smoking, I am satisfied that the applicant’s smoking must also have been contributed to, to a significant degree, by his employment. To be a contribution of a significant degree, it must have been a degree that is substantially more than material. I am satisfied that the applicant’s employment in the army did not contribute to a significant degree to his smoking and that, accordingly, his COPD was not significantly contributed to by that employment. It follows that the respondent is not liable to pay compensation in accordance with s 14 of the Act in respect of the applicant’s COPD.

   DECISION

6. The decision under review is affirmed.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member

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Associate

Dated 23 December 2013

Date of hearing	9 December 2013
Counsel for the Applicant	Mr Matt Black
Solicitors for the Applicant	Maurice Blackburn Lawyers
Counsel for the Respondent	Mr Charles Clark
Solicitors for the Respondent	Sparke Helmore Lawyers

the applicant’s employment in the army: see Smith v Comcare (2013) 212 FCR 335.