Hawkins and Comcare
[2000] AATA 1142
•22 December 2000
CATCHWORDS – COMPENSATION – applicant's husband died of coronary atherosclerosis – whether his smoking arose out of or in the course of his employment as Signals Operator in RAAF – smoked before 1971 therefore whether compensation payable under Compensation (Commonwealth Government Employees') Act 1930 – whether passive smoking contribution to atherosclerosis – whether atherosclerosis arose by accident- whether atherosclerosis was due to nature of his employment – decision affirmed.
Commonwealth Workmen's Compensation Act 1912
Compensation (Commonwealth Government Employees') Act 1971 – ss 124(1A)
Compensation (Commonwealth Government Employees') Act 1930 - ss 4, 9, 10, 14
Safety, Rehabilitation and Compensation Act 1988 – ss 124
Veterans' Entitlements Act 1986
Workmen's Compensation Ordinance 1949 (NT) – s 9
Behan v Australian Telecommunications Corporation (1990) 22 ALD 545; (1990) 99 ACR 79; (1990) 26 FCR 337; (1990) 12 AAR 466
Comcare v Mather (1995) 37 ALD 463; (1995) 21 AAR 297; (1995) 56 FCR 456
Commonwealth v Bourne (1960) 104 CLR 32; (1960) 34 ALJR 51; [1960] ALR 496
Commonwealth v Thompson (1960) 104 CLR 48; (1960) 34 ALJR 57; [1960] ALR 506
Connair Pty Ltd v Frederiksen (1979) 142 CLR 485; (1979) 53 ALJR 505; (1979) 25 ALR 155
Haltzimanolis v ANI Corporation Ltd (1992) 106 ALR 611; (1992) 173 CLR 473; (1992) 66 ALJR 365
Kavanagh v The Commonwealth (1959-1960) 103 CLR 547; (1960) 34 ALJR 36; [1960] ALR 470
Re Busby and Commonwealth of Australia (1987) 12 ALD 559
DECISION AND REASONS FOR DECISION [2000] AATA 1142
ADMINISTRATIVE APPEALS TRIBUNAL )
) D1999/4
GENERAL ADMINISTRATIVE DIVISION )
Re: LAUREL ALMA HAWKINS
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 22December, 2000
Place: Brisbane
Reasons:The Tribunal affirms the decision of the respondent dated 7 December, 1998.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 8 February, 1999, the applicant, Mrs Laurel Alma Hawkins, applied for review of a decision of a delegate of the respondent, Comcare, dated 7 December, 1998. That decision affirmed an earlier determination dated 23 April 1998 denying liability to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act") in respect of the death of Mrs Hawkins' late husband, Mr Robin Hawkins, from coronary atherosclerosis on 7 June, 1997.
At the hearing, Mrs Hawkins was represented by her solicitor, Mr Bill Piper. Comcare was represented by Miss Ford of Counsel. Other than T14 (pages 35-36), the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with Dr West's report dated 27 April, 2000 (including various annexures), the letter from Comcare's solicitors requesting that report and various articles and extracts from texts collated by Mr Piper. Oral evidence was given by Mrs Hawkins in support of her case together with Mr Trevor Nelson, Mr Richard Zarnke and Mr Malcolm West. No oral evidence was led by Comcare.
THE ISSUE
The issue in this case is whether Mrs Hawkins is entitled to compensation with respect to the death of her late husband. Comcare conceded that smoking causes atherosclerosis, the coronary disease from which Mr Hawkins died. Therefore the question for this Tribunal is whether Mr Hawkins' smoking was due to the nature of his employment with the Royal Australian Air Force and whether he would have been entitled to compensation under the Compensation (Commonwealth Government Employees') Act 1930 ("the 1930 Act") and so whether he is entitled to compensation under the 1988 Act.
BACKGROUND
With regard to many of the facts underpinning this matter, there was no dispute between the parties. In light of that and on the basis of the evidence, I have made several findings of fact that I will set out in the following paragraphs.
Mr Hawkins was born on 7 April, 1936. When he was 21 years of age, he enlisted in the Royal Australian Air Force ("RAAF"). He remained a member of the RAAF from the date of his enlistment on 29 January, 1958 until his discharge on 28 January, 1975 at the conclusion of his period of enlistment. His first posting on 30 January, 1958 was to 1 Recruit Training Unit in Rathmines where he trained as a specialist signals operator. He remained there until 10 May, 1958 when he was transferred to the RAAF School of Radio in Ballarat. On 12 September, 1958, he was posted to 3 Telecommunications Unit at Pearce in Western Australia ("Pearce") and remained there until 5 August, 1960. During his career, he had three further postings to 3 Telecommunications Unit at Pearce: from 15 March, 1963 to 19 June, 1964; 19 December, 1966 to 3 January, 1971; and 15 January, 1973 to 21 January, 1975. Mr Hawkins was also posted to the Base Squadron Butterworth Det A at Hong Kong ("Hong Kong") on two occasions. They were from 6 August, 1960 to 14 March, 1963 and from 20 June, 1964 to 18 December, 1966. Apart from relatively brief secondments to other units and squadrons, postings at Darwin between 4 January, 1971 and 14 January, 1973 and at Amberley between 22 January, 1975 and 28 January, 1975 completed Mr Hawkins' career.
Mrs Hawkins met her husband just after he had returned from his first posting to Hong Kong. They were married a few months later on 2 August, 1963. Mrs Hawkins accompanied her husband to each of his postings after their marriage.
Mr Hawkins died on 7 June, 1997 from coronary atherosclerosis when he was 61 years of age. His smoking, old myocardial infarction and chronic lung abscesses were also contributing factors. Comcare conceded that smoking is a cause of coronary atherosclerosis.
THE EVIDENCE
Mr Hawkin's life prior to his enlistment in the RAAF
Mrs Roslyn Hawkins
Mrs Roslyn Hawkins was Mr Hawkins' sister-in-law. She provided a letter in support of Mrs Hawkins' original claim for compensation:
"I have known Bob Hawkins since I married his older brother in 1953 when Bob was nearly 17 years old. He worked at the Post Office and lived at home. Except for a couple of relief jobs at Alpha and Jericho Post Offices, Bob was never away from home until he joined the Air Force in 1958 when he was 21 years old. Up until then he did not smoke.
I do not think he smoked on the couple of occasions he came home on leave before being posted to Hong Kong in 1960. I am sure though that when he returned from Hong Kong he was a fairly heavy smoker. He brought an English chap home with him. They had been stationed together in Hong Kong and both young men were heavy smokers.
I particularly remember because my small sons loved to dig in an ashtray for dumpers that were still alight & I was always putting them out of the childrens' (sic) reach." (T documents, page 34)
Working conditions at Pearce
Mrs Hawkins
Mrs Hawkins said that she had first met her husband in 1963 when she worked at a hotel close to Pearce. In 1963, Mrs Hawkins recalled, all of her husband's colleagues had been smokers. He was one of her customers in the bar and had just returned from his first period of service in Hong Kong. They were married in the following August.
He was a smoker when she met him and she "supposed" that he was a "reasonable smoker". It was her understanding that he had started smoking during his first posting in Hong Kong (T documents, page 11). She only saw him smoking socially but imagined that he smoked at work but could not tell "for sure". Mrs Hawkins said that she came to know his colleagues. Due to the nature of their work, the operators always stayed in a group and did not mix with the other sections. She had noticed that before she met her husband and had the impression that members of other sections resented the way they stayed apart. Until Mr Hawkins was posted to Darwin, they had only socialised with members of the section and their families. In Darwin, they started to socialise with civilians.
Her husband never spoke to her about his work and that was so even after he had retired. In a letter dated 25 August, 1997, Mrs Hawkins wrote:
"He never ever discussed with me his work during the years in service. Its (sic) only since his death that I've been told by his fellow workmates of what they did & the shocking conditions they worked in." (T documents, page 31)
Mr Trevor Nelson
Mr Trevor Nelson enlisted in the RAAF on 19 November, 1959. Initially, he was trained as a telegraphist but then became a signals operator. Mr Nelson said that he was posted to Pearce from late 1960 until May, 1963 and again from May 1965 until July, 1967. From May, 1963 until May, 1965, he was posted to Hong Kong and again from about May or June, 1968 until late 1970 or early 1971. From July, 1967 until approximately February, 1968, he was posted in Thailand. He was discharged from the RAAF on 18 November, 1971.
Mr Nelson said that he had worked at Pearce at the same location as had Mr Hawkins. They had not worked together as they had been on different shifts. He described the building as a masonry building that was slightly sunk into the ground. The building did not have any windows and there was only one door, which was kept locked at all times. There was a fire escape measuring 2½ feet square. That was bolted from the inside as it was a secure building. The building was divided into two parts with the front being used for manually operated signals and the back being used for machine generated signals. The front section measured approximately 12 to 14 metres in length and measured about 3 or 4 metres in width. The back section was of a similar length to the front section. Mr Nelson described the building as being a "bit like a big sunken concrete pipe". There was limited air conditioning in the machine section of the building. It was there to provide ventilation for the machines but did not clear the air in the building, Mr Nelson said.
Mr Nelson said that the conditions in the building were fairly cramped. In his letter of 17 August, 1997, he said that 12 or 14 operators were employed in the building together with some NCOs and support staff. It was operational at all times during the year. Each shift was 8 hours in length and could extend up to 16 hours. The nature of the operators' work concerned the national security and was confidential. They were under an obligation not to talk about it and only shared information on a "need to know" basis. The nature of the work meant that the operators, and particularly the operators on each shift, became very close knit. They shared a great deal of camaraderie. This extended to their social lives outside work. Part of the reason for that was that the shift work meant that their leisure hours were out of synchronisation with those of other people.
Operators were allowed to smoke in the building and most did. Only a very few did not. Nine out of 10 smoked, he said. Most smoked cigarettes and the "… air was constantly blue with smoke …" (T documents, page 32). In his oral evidence, he described the air's being constantly full of smoke. There was a smoke cloud that hung perpetually in the building. It was more apparent in the front of the building where there was no air conditioning at all. Operators brought their own cigarettes to work and shared them freely with their co-workers. At the time, they were not a high cost item. Cigarettes were also available from a box in the building.
Mr Nelson said that the operations moved to a new building in May, 1965. It was a building that was entirely above the ground and was built for the purpose of communications. There was a window but it could not be opened. People who did not work in it could not approach the building let alone enter it. The conditions were improved but cigarette smoking still continued to be very much in evidence. Smoking continued to be allowed in the building and 9 out of 10 operators continued to smoke.
Mr Zarnke
Mr Richard Zarnke enlisted in the RAAF in 1959. He was first a telegraphist and later a signals operator with the RAAF. After his training, he was based in Pearce from May 1963 until 1965. After a period of service in Hong Kong, he returned to Pearce for another 21/2 year posting. Mr Zarnke served again in Hong Kong in 1970. Mr Zarnke was discharged from the RAAF in 1979.
Mr Zarnke said that he had not been a smoker before he enlisted in the RAAF. He supposed he had a cigarette when others were smoking. It "seemed to be the in thing". He commenced smoking at radio school in Ballarat where people smoked during the lessons. It was not frowned upon there – it was "part and parcel of the unit". If one needed to buy more cigarettes, they were sold at the canteen across the road.
Mr Zarnke described the building at Pearce as a cement bunker that did not have any windows. It had air conditioning that worked when it wanted to. It was more designed for the machinery, which was fairly delicate, than for any other purpose. There may have been an exhaust fan but he could not recall one. The conditions were very crowded as there were some 30 people working there. Mr Zarnke said that he was a smoker at the time and about 90% of his colleagues were smokers. The operators were allowed to smoke on their shifts that lasted 8 hours. Cigarettes could be obtained from an honour box. It was very difficult to remember anyone who had not smoked but he could recall that there were perhaps two who had not. The atmosphere was laden with smoke. He recalled several occasions when they sat around in their underpants as the airconditioning had broken down.
Mr Zarnke said that he and Mr Hawkins lived fairly close to each other when they both worked at Pearce. They were very good friends and would share a car to work with three or four other operators. He said that the group of employees became a "very close knit group" as they were not to tell anyone (not even immediate family) about their work. It was clandestine work. If they were socialising together, all of them smoked. Mr Zarnke said that to describe the job as causing anxiety was an understatement. It was high pressure and it could not be discussed with his family. It was very difficult to cope with that degree of secrecy and it took a lot of self control.
In a letter, Mr Zarnke wrote to Mrs Hawkins:
"Because of the nature, and high security regulations covering our particular mustering, it resulted in us being unable to divulge any information, even to our immediate families, our day to day operations.
Operating conditions were far from satisfactory (ie) crowded, with poor (if any) ventilation and most of our members were smokers or took up smoking, to relieve the stress created by our duties, and inability to be able to talk about it, to anyone." (T documents, page 33)
Mr Zarnke said that he thought that there might have been a new building in the course of construction when he returned from his first period of service in Hong Kong but was not sure. The conditions in the new building were a lot better than in the old. It was not as crowded as the old and there was room to move. There were no windows. The operators were allowed to smoke in the new building as in the old. Again, some 90% smoked.
Working conditions at Hong Kong
Mrs Hawkins
Mrs Hawkins accompanied her husband on his second posting to Hong Kong. She was not aware of his precise working conditions as she saw his place of work only from a distance. As for their living quarters, they were in a block of flats and they were grouped with other RAAF operators. They socialised with people in her husband's section and with their families. Mrs Hawkins said that they were restricted to the flat and to those of their neighbours in the block. She could not recall any of his colleagues not being smokers.
The most that her husband had ever discussed with her about his work was about the snakes that he met on the cat walk he walked along on his way to work. The "concrete boxes" in which he worked, were a 20 minute drive from where they lived.
Mr Zarnke
Mr Zarnke was posted to Hong Kong when Mr Hawkins was the NCO in charge of the RAAF contingent. They lived in two storey flats with an area for a barbecue and gardens. The complex was located in the middle of a market garden area. Six operators were posted to Hong Kong. They socialised with each other by playing cards and having a few beers. In the main, they entertained each other at home. The nature of their work meant that they had to be fairly circumspect and this extended to limiting the places they could visit. They were forbidden from taking their uniforms home from work and, to all intents and purposes, they were civilians and not servicemen. He described the work as "pretty stressful".
Mr Zarnke could not recall any operator who had not smoked in Hong Kong. He described their work environment as "primitive". They worked in what were like little cabins in the middle of a paddy field. Each cabin measured approximately 6 feet by 6 feet. A third cabin had two rooms; one for the operator and one for a computer. Only one operator worked in each cabin at any one time. The shift lasted for 8 hours and there was no relief during a shift. Operators reached the cabins by walking along a "cat walk" through paddy fields. The cat walk was only a foot wide. In the wet season, it was covered with water and they had to feel their way along it while avoiding the snakes, cobras and other vermin. One person worked in each room in eight hour shifts. The workers would do two evening shifts, then two day shifts with no relief. They were "stuck in the cabin" for eight hours.
Mr Hawkins' health
Mrs Hawkins
Mrs Hawkins said that Mr Hawkins was hospitalised with pneumonia ten days after they were married. Generally, his health was normal but he was always inclined to chest infections.
Before he was operated upon in 1969, Mr Hawkins suffered chest infections and a lot of chest pain. As a result of the operation, it was discovered that the lower part of Mr Hawkins' lung had collapsed and that scar tissue had grown over it. The lung was allowed to re-inflate. Mr Hawkins' chest problems seemed to be alleviated after the operation. He was not as bad as he had been. Mr Hawkins smoked both before and after the operation. He smoked 30 Craven A unfiltered cigarettes each day.
After the operation, his health continued to be "pretty normal" but he would probably get more than the average number of chest infections. In Darwin, his health seemed to improve but he was perhaps suffering from more colds. She saw his work place from a distance. It was made of corrugated iron and was the size of a garage. Mr Hawkins had described it as the "Hilton of his work places".
After his discharge, Mr and Mrs Hawkins returned to Darwin. There Mr Hawkins worked with Hastings Deering (Australia) Ltd. After his discharge from the RAAF, he seemed to smoke less than he had and seemed to be a lot more relaxed. He never stopped smoking but, as far as she knew and apart from his morning and afternoon tea breaks, he did not smoke at work while working with Hastings Deering. She knew that because she had also worked for that firm for a number of years and knew that it was frowned upon. He was a very conscientious worker, she said.
In 1985 or 1986, Mr Hawkins started to suffer from dizzy spells, pins and needles and cramps. The doctor could not find anything wrong with him but then, in 1985, Mr Hawkins was found lying on the grass at Hastings Deering. He had stopped breathing and had to be resuscitated and put on a ventilator for several days. After the heart attack, Mr Hawkins continued to smoke. On many occasions, he tried to stop but was not successful.
His health after the heart attack until 1997 was "average", Mrs Hawkins said. Gradually, he lost weight even though he ate well. He was painfully thin when he died. Apart from suffering from colds and influenza, he did not have any problems although he did take a lot of heart medication. He suffered from minor arrhythmia attacks. On several occasions, he was admitted to hospital after such attacks in order to adjust the medication. The medication would be changed every couple of years.
Dr Nicholls
After Mr Hawkins suffered from pneumonia in 1969, he was referred to Dr Nicholls who carried out an exploratory thoracotomy on 16 September, 1969. He found that:
"The whole lung was completely enclosed in fibrous tissue. The upper lobe was normally expanded. The lower lobe was severely compressed to about 1/5th of its normal size, and the upper part of the lobe was folded on itself, I suspect producing the radiological shadow noted pre-operatively.
I performed an extensive decortication on both lobes and was pleased to find the lower lobe expanded to normal size and appearance." (T documents, page 43)
Dr Howard
In July, 1989, Mr Hawkins suffered an episode of ventricular fibrillation without further ischaemia. He was successfully resuscitated. Mr Hawkins suffered from a further episode of syncope and was in mild cardiac failure. There was no evidence of further ischaemia. In his report dated 11 January, 1990, Dr Howard had noted bilateral apical thickening consistent with his previously suffering from tuberculosis (T documents, page 51). Other symptoms led Dr Howard to suspect other causes and he referred him for a bronchoscopy. The results of the bronchoscopy showed nodules at the apex of Mr Hawkins' right lung. They were consistent with granulomatous infection. Slight scarring in the apical part of the right upper lobe were consistent with long standing tuberculosis. (T documents, page 52)
An autopsy report completed on 28 July, 1997 concluded that the condition which lead directly to Mr Hawkins' death was coronary atherosclerosis. Other significant conditions contributing to death, but not related to the condition causing death were smoking, old myocardial infarction and chronic lung abscesses. (T documents, page 25) Dr Terence Sinton, the forensic pathologist who completed the autopsy report, made the following observations:
"The lungs (left 735 grams, right 840 grams) were of unremarkable configuration. The pleural surface of the left lung showed with extensive adhesion between the visceral and parietal pleura. On section of both left and right lungs, the parenchyma showed extensive pulmonary oedema and congestion. The upper lobe of the right lung showed a 10mm spherical firm pale lesion with some central calcification. The lung tissue around this showed some tethering. A further similar area was present in the lower lobe of the right lung.
The pleural cavities – the left pleural cavity showed extensive adhesions between the visceral and parietal pleura involving virtually the entire outer surface of the lung. The right pleural cavity showed an area of adhesion at the apex of the right lung. There was no air, blood or other fluid present.
…
The heart (390 grams) showed an overall floppy tone and showed a slight increase in size. The great vessels of the heart were of unremarkable configuration.
…
The heart valves appeared intact and showed no evidence of stenosis, calcification or vegetations. The valve cusps were not thickened in excess of expected ageing changes.
…
The ventricles – the left ventricle showed marked dilatation. There was also some dilatation of the right ventricle. The endocardial surfaces showed scattered areas of plaque-like thickening.The myocardium of the left ventricle was 15mm maximally in thickness at the back of the heart. The anterior wall of the left ventricle was thinned down to approximately 5mm. However in this thin area no evidence of fibrous scarring was seen. The right ventricle had a maximum of 5mm. There was hypertrophy of the interventricular septum to a maximum thickness of 15mm.
The coronary arteries including the main trunks and major branches showed extensive patchy atheroma. The origin of the left coronary artery showed marked calcifying atherosclerosis with occlusion estimated at approximately 70% in this area. Further dissection of this artery into the anterior descending branch showed the presence of a small calibre vessel with focal areas of atheroma present. Maximal occlusion in these areas was approximately 50%. There was focal calcifying atheroma present in the right coronary artery, approximately 10mm from the origin. There were focal areas of calcifying atheroma also present in the circumflex branch of the left coronary artery.
The aorta showed scattered atheromatous plaques only. There was no significant occlusion of the origin of any of the major branches. There was no evidence of aneurysm." (T documents, pages 20-21)
"The only significant pathology was found in:
Coronary arteries: severe calcifying atheroma producing occlusion estimated at 80% in the worst affected vessel.
Myocardium: scattered areas of fibrous scarring.
Lungs:two separate chronic abscesses each, showing organised fibrous tissue margins, nectrotic centres with scattered elements consistent with fungi, and a surrounding collar of plasma cells. No giant cells, asteroid cells or granulomas are seen. Z-N staining for mycobacteria is negative.
Grocott and mucicarmine staining for fungal elements is negative.
(b)Toxicology
Reported blood alcohol level: Nil.
COMMENTS
1.Microscopic examination of coronary arteries confirms the macroscopic findings of extensive disease, producing severe blockage of vessels.
2.Microscopic examination of heart muscle confirm shows (sic) fibrous scarring, consistent with a history of previous myocardial infarction.
3.The pathological findings described above are entirely consistent with a history of sudden collapse and death.
4.Microscopic examination of the lungs indicate the presence of chronic obstructive airways disease (COAD) consistent with the history of smoking, which is likely to have been a contributing factor to the cause of death.
5.Microscopic examination of the two lesions found in the right lung shows the presence of old abscesses caused by fungal infection. The appearances are not those of pulmonary tuberculosis, and specific staining for tuberculosis organisms is negative." (T documents, page 24)
Medical Opinion
Dr Malcolm West is a cardiologist. He was requested to provide a written report regarding the factors which contributed to Mr Hawkins' death and to his coronary atherosclerosis and whether the disease causing his death was due to the nature of the employment in which he was engaged by the Commonwealth. He was given a copy of the T documents, Mr Hawkins' service medical records and the parties' statements of facts, issues and contentions. After summarising Mr Hawkins' service and medical histories, Dr West stated:
"(iii) Factors which are likely to have contributed to the condition of atherosclerosis in Mr Hawkins
A number of risk factors for the development of coronary heart disease have been identified in large population studies. The most potent of these and the factors which have been repeatedly identified in different populations are male gender, age, cigarette smoking, hypertension, elevated blood cholesterol and diabetes mellitus. There is no data suggesting Mr Hawkins had hypertension or diabetes. The level of his blood cholesterol is not known. He had a long history of heavy cigarette smoking for almost 40 years. The history alone is sufficient to explain the development of coronary heart disease in Mr Hawkins. Other adverse factors such as elevated cholesterol may have been present and would be additional risks.
(iv)Is it likely that the disease which caused Mr Hawkins' death was due to his employment?
The development of coronary heart disease occurs in all sectors of the population and the main risk factors have been identified. It has a high incidence in the later stages of life. It is not regarded as being a hazard of specific occupations.
Mr Hawkins was a heavy smoker of many years duration. Cigarette smoking is an activity which is carried out by a broad cross section of the community. It is not confined to members of the services.
While emotional or other forms of stress are often claimed as contributing factors in the causation of coronary heart disease, the relation between stress and coronary heart disease has been difficult to demonstrate. This is partly due to the difficulty in segregating the effects of confounding factors and the difficulties in defining and measuring stress. In the present case it is postulated that stress during the early sixties might have contributed to the expression of heart disease in the 1980s and 1990s. It is difficult to see how such a period of stress as is said to have occurred in the 1960s in Hong Kong could be isolated from all the other stressful events in Mr Hawkins life and be related to his coronary heart disease. I am not aware of any studies which have been able to make such a link.
The question of passive smoking as a contributing factor in the causation or development of Mr Hawkins' heart disease is raised. Passive environmental inhalation of tobacco smoke (ETS) is being increasingly investigated as a factor in the development of lung cancer or coronary heart disease in subjects who have never smoked or subjects who have given up cigarette smoking in the past. Data has been difficult to accumulate and there are still no clear cut relationships that have emerged. Study results (see list of references) are suggestive of a relationship but statistical significance is either non exostent (sic) or marginal. However the effect is weak. The risk would seem to be equivalent to only 1 or 2 cigarettes per day. Studies usually try to relate additional risk to the non smoker in the household (who is usually the spouse) or workplace. In the case of subjects who are already heavy smokers the additional risks of ETS are unknown. In my view the additional risk is likely to be not measurable as it is already so high. In the case of Mr Hawkins, the extent of ETS during the 5 years service in Hong Kong has not been provided other than in recollections as stated above. The average number of cigarette smokers during usual duty hours and the ventilation conditions are not given. The additional work exposure of Mr Hawkins to ETS (ie in addition to exposure occasioned by his own cigarette smoke) presumably occurred only for a limited time each day (up to 8 hours/day for 5 or 6 days per week). It is not known whether Mr Hawkins' wife was also a smoker or whether others in the household also smoked.In summary it is my opinion that
(a) Mr Hawkins died as a result of a cardiac arrhythmia precipitated by his underlying coronary heart disease. Cigarette smoking and chronic obstructive lung disease were contributing factors to the death.
(b) the passive inhalation of cigarette smoke during Mr Hawkins' postings to Hong Kong is unlikely to have had any significant additional effect on causation or the development of his heart disease in view of his heavy smoking background.
(c) there is no literature which would support the proposal that the work stress experienced by Mr Hawkins during his postings to Hong Kong contributed to the development of his heart disease." (Exhibit 2, pages 2-3)
In giving oral evidence, Dr West confirmed that a 40 year smoking history would cause coronary heart disease. Although early features are present in young life, the presence of that disease usually only becomes apparent in middle life. In Mr Hawkins' case, he would have thought that evidence of abnormal coronary arteries would have been present for the last 20 years of his life if not longer. The post mortem revealed that they were 80% occluded at the date of his death. When asked whether Mr Hawkins would have suffered from the condition in the 1960s, Dr West replied that there is some variability but there was a suggestion that it had been present for a long time.
Dr West said that various reports found that nicotine is an addictive substance and there is addiction in the general community. Figures suggest that, in the 1960s, more than 28% of men were smokers. There is a suggestion that the percentage was lower in the mid 1970s. The factors that lead people to take up smoking are various. They include abuse, anxiety, psychological factors, social factors, economic factors and family factors. There is a higher prevalence, Dr West said, of smoking in children of people who have parents who smoke. Despite that, there is no definitive evidence that there are any genetic factors that are relevant.
It is commonly believed that smoking reduces or relieves stress, Dr West said. Recently, several studies have concluded that the reduction in stress experienced by people, is really a reduction in the adverse effects of abstinence. It is the lack of nicotine that makes people stressed. An extra dose of nicotine calms them down. In cross-examination, Dr West agreed with Mr Piper that smoking is still viewed as a relaxant by smokers. He also agreed with the proposition that if a person were surrounded by smokers and watched stress levels rise and fall, one could assume that smoking was a relaxant.
In cross-examination, Dr West said that he could not find any articles considering the effects of passive smoking upon a smoker. The studies usually concentrated upon smokers and non-smokers. The effects of passive smoking in a non-smoker were, at the most, one to two cigarettes a day. As Mr Hawkins was smoking 40 cigarettes each day, the additional effects of his passive smoking were likely to be very small. No one knows if there is an upper threshold above which cigarettes will cease to have further adverse effects. It is very hard to determine the dose of nicotine from passive smoking. He could not measure the dose that Mr Hawkins would have received from passive smoking in his working environment even though he was told that 90% smoked. Dr West acknowledged that passive smoking could have played a role in Mr Hawkins' condition. The role, though, would have been small and it was not a probable role. The greater the exposure to smoking, the more likely it is that a person will die from smoking related illnesses.
He also agreed that the greater the exposure to smoke, the more accelerated a disease will be. The causes of death from smoking related diseases were principally due to vascular disease and cancer. The most common is coronary artery disease.
Dr West agreed with Mr Piper that anxiety was presumably the reason why Mr Hawkins started smoking, however in the same environment, some start and some do not. The reason for starting ultimately comes from within the person. Dr West considered this to be so despite approximately only one or two people in the 30 employees not smoking. Whether circumstances are so adverse as to lead to a person's commencing smoking would require more convincing evidence, Dr West continued. Mr Piper asked whether anxiety and the company of other smokers were relevant social factors that could precipitate smoking. Dr West agreed they might be.
Mr Piper tendered several articles relating to the causes of heart disease. In the first, Modern Prevention: The New Medicine (1986, Linden Press/Simon & Schuster, New York), Dr Isadore Rosenfeld said that "In a word, smoking cigarettes is probably the best way to give yourself a heart attack, or, for that matter, to accelerate the arteriosclerosis process anywhere in your body." (page 199) Dr Rosenfeld continued that "No one knows what it is in the weed that does you in – the heat of the smoke, the products of combustion in the paper, tar, resins, carbon monoxide, nicotine, radioactive particles or any of the hundred other ingredients in tobacco smoke." (page 200)
The article entitled "Association between multiple cardiovascular risk factors and artherosclerosis in children and young adults" in The New England Journal of Medicine (4 June, 1998, Volume 338, Number 23 at 1650. Gerald S. Berenson et al) discusses a number of risk factors in the development of artherosclerosis. Among the authors' conclusions was that "… the extent of fatty-streak lesions in the coronary vessels of children and young adults was higher in cigarettes smokers than in non-smokers …" (page 1655).
The article entitled "Long-term Cigarette Smoking Impairs Endothelium-Dependent Coronary Arterial Vasodilator Function" in the publication Circulation (1 September, 1995, Vol 92 No 5, Zeiher et al) concluded that "Long-term cigarette smoking is associated with impaired endothelium-dependent coronary vasodilation regardless of the presence or absence of coronary atherosclerotic lesions." (page 1094) Although a passage refers to the effect of smoke on the endothelium-dependent dilation of porcine coronary arteries, it is apparent from a reading of the whole article that it is focused on those who smoke cigarettes rather than on those who are non-smokers but subject to the smoke from cigarette smokers. A statement adopted in 1997 by the Public Health Association of Australia recognised tobacco smoking as "… the largest single preventable cause of disease and death in Australia today, causing 1 in 3 deaths from cancer, and 1 in 7 of all deaths." It did not address passive smoking.
Smokers and non-smokers were the subject of the study reported upon in the article entitled "Effects of Cigarette Smoking on the Angiographic Evolution of Coronary Atherosclerosis A Canadian Coronary Atherosclerosis Intervention Trial (CCAIT) Substudy (Circulation, 15 August, 1996, Vol 94 No 4, Waters et al)("CCAIT"). It noted that "Active smoking and environmental exposure to tobacco smoke cause endothelial dysfunction and increase platelet aggregability." It studied the smokers and non or ex-smokers and concluded that smoking accelerates coronary progression. The effects of passive smoking, however, were not considered. A position statement issued in 1998 by the Australian Medical Association states that "Passive, sidestream or environmental tobacco smoke is deleterious to health.…" (paragraph 5.2.6)
A letter to the editor of an unnamed medical journal referred to a study by Willet et al entitled Relative and absolute excess risks of coronary heart disease among women who smoke cigarettes" (New England Journal of Medicine; 317: 13-3-1309). The authors had observed that "… the lightest smokers (1-4) cigarettes per day) had a significant elevated risk of coronary artery disease, relative risk equals 2.4."
CONSIDERATION
Mr Piper submitted that three factors are relevant in this case. The first is that Mr Hawkins was exposed to cigarette smoking and to smokers from the time he commenced training. He was also exposed socially and his social life was connected with his work. The second is that Mr Hawkins was exposed to peer pressure and that arose from the fact that he was working in a close knit group. The third is that he was likely to suffer a degree of anxiety and the smoking of cigarettes was thought to be a way of relieving anxiety. He referred to a number of cases that have been decided under the Veterans' Entitlements Act 1986 and that have, on the balance of probabilities, found that a veteran's smoking is related to his or her war service.
I must decide the matter on the basis of the 1988 Act. Pursuant to
s. 124(1) of that legislation, it applies to an injury, loss or damage suffered by an employee whether before or after 1 December, 1988. That date is the date that Part X of the 1988 Act commenced operation. A person is entitled to compensation under that legislation in respect of an injury, loss or damage suffered before 1 December, 1988 if compensation was, or would have been, payable to the person in respect of the injury, loss or damage under the Commonwealth Workmen's Compensation Act 1912 ("1912 Act"), the 1930 Act or the Compensation (Commonwealth Government Employees') Act 1971 ("1971 Act") (s. 124(1A)). The proposition is re-stated in effect in s. 124(2) of the 1988 Act.This is consistent with the approach adopted by Lockhart J in Behan v Australian Telecommunications Corporation (1990) 22 ALD 545.
The 1930 Act came into operation on 10 November, 1930 and the 1971 Act on 1 September, 1971. As the claim is based on those periods of Mr Hawkins' service at Pearce and Hong Kong, it is the 1930 Act to which I must have regard. That is so as Mr Hawkins completed his last period of service in those two locations in January, 1971 and so before the commencement of the 1971 Act.
Section 9(1) of the 1930 Act provided that:
"If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule."
The word "injury" was defined to mean:
"… any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury" (s. 4(1))
In the case of Mr Hawkins, the personal injury that is said to have happened is the coronary atherosclerosis from which he suffered. The question is whether it was "by accident arising out of or in the course of his employment by the Commonwealth". The words as they are used in s. 9 of the 1930 Act were considered in a number of cases including Kavanagh v The Commonwealth (1959-1960) 103 CLR 547, Dixon CJ, Fullagar and Menzies JJ, Taylor and Windeyer JJ dissenting). The majority in Kavanagh considered that the rupture of Mr Kavanagh's oesophagus while vomiting at his place of employment was an accident. As Dixon CJ said:
"In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection …" (page 553)
The issue confronting the court was whether it was an accident that arose in the course of employment. There was no known connection between his employment and his vomiting and his vomiting might well have occurred at any other place and in any other circumstances. Having traced the history of provisions such as that in s. 9 and noting that they had originally provided that the injury must both "arise out of" and "be in the course of" employment rather than being expressed in the alternative as in s. 9, Dixon CJ continued:
"Few, if any, expressions had received so much judicial consideration and in so many jurisdictions as had the words 'personal injury by accident arising out of and in the course of the employment'. Repeatedly the contrast had been made between the effect of the words 'out of' and the effect of the words 'in the course of'. Whatever language was chosen to institute the contrast the first expression was treated as requiring a causal connexion between the employment or its incidents and the second as requiring that the pursuit of the employment should be an accompanying condition. I have seen nothing to suggest that within the expression 'in the course of the employment' there had been discovered any element of causal relation with the employment and its incidents. To prescribe that element was considered to be the work of the words 'arising out of'. It was thus natural for this Court to say after the word 'or' had been substituted for 'and' in the Western Australian provision that the result of English authority was 'to show that the words "arising in the course of the employment" describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service'. That was said in Pearson v Fremantle Harbour Trust ((1929) 42 CLR 320 at pp. 329, 330)…" (page 556)
Applying these principles to this case, I have looked first to any passive smoking at Pearce. Passive smoking could be said to be an "accident" within the meaning of s. 9. I am satisfied on the basis of the evidence of Mr Nelson and Mr Zarnke, which directly supports Mrs Hawkins' understanding of her husband's working conditions, that Mr Hawkins was exposed to smoke from signals operators who worked in the same room as Mr Hawkins at Pearce. On the same basis, I am satisfied that approximately nine out of ten of the signals operators smoked and that they did so during the course of their working day. On the basis of the evidence of Dr West, and his is the only evidence, I am satisfied that Mr Hawkins' passive smoking was equivalent to his having smoked one or two cigarettes each day.
It follows that I am satisfied that Mr Hawkins' passively smoking one or two cigarettes each day arose out of or in connection with his employment. That is not an end of the matter for I must now find that Mr Hawkins' atherosclerosis from which he died was caused by his passively smoking one or two cigarettes each day. The articles to which Mr Piper referred me do not assist me. Certainly, CCAIT acknowledges that environmental exposure, as well as active smoking, causes endothelial dysfunction and increases platelet aggregability. The position statement of the Australian Medical Association states that passive smoking is deleterious to health but does not focus upon coronary related conditions. Dr West's evidence does not address the likely effect of passively smoking one or two cigarettes each day. He is unable to comment on any risk that passive smoking added over and above Mr Hawkins' smoking 40 cigarettes a day since approximately 1963. The evidence, therefore, as to the effects on the development and progress of atherosclerosis of passively smoking one to two cigarettes each day until 1963 and thereafter passively smoking that number in addition to smoking 40 each day, does not satisfy me that Mr Hawkins' passive smoking caused or aggravated the atherosclerosis from which he died.
That brings me to Mr Hawkins' own smoking habit. On the basis of Mrs Hawkins' evidence, I am satisfied that he smoked approximately 40 cigarettes each day. He had done so since at least the time that he met Mrs Hawkins in 1963. By that time, Mr Hawkins had undergone his training and been posted first to Pearce and then to Hong Kong. In light of Mrs Roslyn Hawkins' evidence, I am satisfied that Mr Hawkins did not smoke either before his enlistment in the RAAF or before he had been posted to Hong Kong. This means that there is a temporal connection between his commencing to smoke and his being employed as a signals operator in the RAAF.
Is there more than a temporal connection? On the evidence there is none. It would seem that he completed his training and his first posting at Pearce without succumbing to the influence of those working around him or to any other influences brought about by his employment. On the basis of Dr West's evidence, I am satisfied that a smoker becomes addicted to the nicotine in cigarettes and continues to smoke because of that addiction. Dr West, however, was unable to assist as to whether passive smoking could lead to an addiction. In the absence of any other evidence, I am not satisfied that Mr Hawkins' passive smoking from the time he joined the RAAF in 1958 until 1963 led to his being addicted to nicotine so that he started to smoke himself in 1963.
In Hong Kong, the evidence is, Mr Hawkins was working alone in a small cabin in the middle of a paddy field. I accept that the work was stressful but it had also been stressful at Pearce. Mr Hawkins had not started to smoke at Pearce even though he was surrounded by people who smoked. He worked alone in Hong Kong. Without more, I am unable to find that the conditions at Hong Kong were different from those at Pearce where he had worked previously and had not started to smoke. The only difference was that he now worked alone but that meant that he was out of the smoking environment of Pearce and away from any peer pressure he might have felt from fellow employees in Pearce. Whether anxiety arising from his employment or peer pressure in a social environment not relating to his employment or whether some other reason led to his smoking remains a matter of conjecture. Consequently, I am unable to find a chain of causation between his employment and his smoking so that the latter can be said to have arisen out of the former.
Based on the pattern of his subsequent posting to Hong Kong with his wife, I accept that he and the other signals operators tended to socialise together or with their families to the exclusion of others. The evidence was that this occurred because the nature of their work encouraged them to limit themselves in that way. As a consequence, their social life and activities were limited. I will return to the nature of the work later in these reasons but, for the moment, I am limiting my consideration to whether his smoking can be said to have arisen out of or in the course of his employment. Smoking on what might otherwise seem to have been social occasions, may be said to have arisen out of or in the "course of employment" in certain circumstances. Such circumstances were considered by the High Court in Hatzimanolis v ANI Corporation Ltd (1992) 106 ALR 611 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ). After reviewing a number of authorities, the majority (Mason CJ, Deane, Dawson and McHugh JJ) said:
"Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment 'and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.' Danvers (1969) 122 CLR, at 537" (pages 617-618)
Their Honours' statement of principle must be read subject to the particular provisions of the legislation under consideration. In the case of the 1988 Act, for example, compensation is payable even in the case of an injury that is not caused by the serious and wilful misconduct of an employee (although not deliberately inflicted) if that injury results in death or serious and permanent impairment (s. 14(3) and see also Comcare v Mather (1995) 37 ALD 463 (Kiefel J)).
Certainly, Mr Hawkins lived in Hong Kong because he was required to do so by the RAAF. That, however, does not mean that all of his activities can be considered to be in the course of his employment. There is no evidence to suggest that the occasions on which the signal operators socialised were occasions that were merely intervals or interludes within an overall period or episode of work. There were distinct shifts on which the signals operators worked and there is no evidence that the RAAF directed them to socialise only with each other. That was certainly their preference in view of the circumstances in which they found themselves but there is no evidence that they were encouraged to do so by the RAAF.
It follows that I am not satisfied that Mr Hawkins' smoking, and so his coronary atherosclerosis was a personal injury to him by accident arising out of or in the course of his employment by the Commonwealth.
That brings me to s. 10 of the 1930 Act. Miss Ford submitted that the issues should be determined according to it. It provides, in so far as it is relevant, that:
"(1) Where –
(a)an employee is suffering from a disease and is thereby incapacitated for work; or
(b)the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.
…"
In support of her submission, Miss Ford referred to the cases of The Commonwealth v Bourne (1960) 104 CLR 32 (Dixon C.J., Fullagar, Taylor, Menzies and Windeyer JJ.) and Connair Pty Ltd v Frederiksen (1979) 142 CLR 485 (Barwick C.J., Gibbs, Stephen, Mason and Murphy JJ.). Mason J, who with Gibbs and Murphy JJ constituted the majority in the Connair case, considered the operation of s. 9(1) of the Workmen's Compensation Ordinance 1949 (NT) which reflects the provisions of s. 10 of the 1930 Act. His Honour said:
"In Commonwealth v Bourne the Court held in a unanimous decision that the words 'due to the nature of the employment in which the employee was engaged' in s.10(1) of the Commonwealth Employees' Compensation Act 1930-1956 referred to results which are incidental to the class of employment by virtue of its tendencies, incidents or characteristics, and that it was not concerned directly with something arising out of the particular service of the particular employee. Dixon C.J. (1960) 104 C.L.R. at pp. 38-39) said that he did not think that the expression 'due to the nature of the employment'
'covers an employment which has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate it and no incident, adjunct or quality of which involves those employed therein in any particular liability to the contraction of the disease or to the aggravation or acceleration of its course. The phrase "nature of the employment" is, of course, no novelty in this context in the law of employers' liability: cf. s. 43(1) of the Workmen's Compensation Act 1925 (U.K.). In the provisions to which the use of the expression is to be traced the purpose of using the words "due to the nature of the employment" and not "due to the employment" was to provide for ready recourse by the employee to the latest employer who employed him in work to the nature of which his complaint was due independently of the question whether working for that particular employer contributed at all to his condition or aggravated it or accelerated its development; that employer could then claim over against a previous employer employing the claimant in work of a like nature and so on down the line. It was accordingly necessary to make the nature of the work the test and not the actual work done or the employment as it actually affected the man. … In Blatchford v Staddon & Founds [1927] AC 461 Lord Sumner said of the phrase: "In construing the Act effect must be given to the words 'to the nature of'. Their meaning cannot be the same as if the section had simply said 'is due to' any employment. I think they are inserted because this part of the section is not concerned directly with something arising out of the particular service of the particular employer sued, but with results which are incidental to the class of employment, in which the workman has served several employers".'" (pages 499-500)
Mason J went on to illustrate the operation of s. 10 by reference to the case of Commonwealth v Thompson (1960) 104 CLR 48 (Dixon C.J., Fullagar, Taylor, Menzies and Windeyer JJ.) where s. 10 was under consideration and where the same interpretation was adopted. The Court:
"… held that the heart disease from which an officer of the Department died was not due to the nature of his employment on the footing that it was not shown that the nature of his employment in the Department tended to cause or contribute to the attraction, aggravation or acceleration of coronary disease or of any of its consequences." (page 500)
Gibbs J also addressed the need to establish that the employment in fact caused or aggravated the employee's condition:
"There is no decision of this Court that evidence that the employment in fact caused or aggravated the workman's disease is irrelevant to the issue whether the disease was due to the nature of the employment. The Commonwealth v. Bourne (1960) 104 C.L.R. 32 and The Commonwealth v. Thompson (1960) 104 C.L.R. 48 arose out of very similar facts; in each, an officer of the Taxation Department had died as a result of coronary disease, which was claimed to have been caused by the worry attendant upon the performance of his duties. It was held that the disease was not due to the nature of the officer's employment. However, in both cases the evidence failed to establish that the work in fact aggravated or accelerated the disease from which the employee was suffering: see, in The Commonwealth v. Bourne, per Dixon C.J. (1960) 104 C.L.R., at p. 38, per Taylor J. (1960) 104 C.L.R., at p. 42, and per Windeyer J. (1960) 104 C.L.R., at p. 47 and, in The Commonwealth v. Thompson, per Dixon C.J. (1960) 104 C.L.R., at p. 53 and per Taylor J. (1960) 104 C.L.R., at p. 55. In the third decision, The Commonwealth v. Rutledge (1964) 111 C.L.R. 1, a clerical assistant in the Postmaster-General's Department was required to act as a spy to investigate suspected dishonesty on the part of her fellow employees. She suffered from latent paranoia, and the strain of her special duties resulted in a severe psychotic disorder. It was held that she was suffering from a disease due to the nature of her employment and was entitled to compensation." (page 495)
Gibbs J in the Connair case referred to the nature of the risk that had to be proved. Referring to the judgement of Fullagar J in Bourne's case, his Honour said:
"… Fullagar J … suggested that the workman must show that a characteristic or distinctive feature of the employment was a tendency to cause, aggravate or accelerate the disease, and added that the section only applies to cases where there is a special risk of contracting a particular disease or of suffering an aggravation or acceleration of a particular disease. He did not, however, suggest that the risk should be high, or that it was necessary that the employment should frequently or commonly cause the disease." (page 496)
Davies J considered similar issues in Re Busby and Commonwealth of Australia (1987) 12 ALD 559 at 560:
"In the present case, it was not the general nature of the employment, but specific and unusual events which occurred in the course of the employment which, if anything, gave rise to a special risk of the development, aggravation or acceleration of teratoma trophoblastic. The unusual events were the exposure to radiation at Maralinga and subsequently by contact with contaminated aircraft. These special events did not arise from the general nature of Wing Commander Busby's employment but from the unusual circumstance that the United Kingdom held atomic tests in Australia at which civilians and service members assisted.
When one is examining whether an unusual occurrence such as this caused or contributed to a disease, it is not sufficient that it be shown that there is a possibility, however small, that it may have done so. The Commissioner for Employees' Compensation and the Administrative Appeals Tribunal must be satisfied that the events which occurred in the course of employment did, in fact, have that effect."
The only evidence of the nature of the work in this case is from Mr Nelson and Mr Zardre. On the basis of their evidence, I accept that the work caused the signals operators anxiety. That anxiety arose from the covert nature of their work and the requirements that they not talk about what they did with anyone except on a strict "need to know" basis. In Hong Kong, each signals operator worked alone while, at Pearce, they had the companionship of their fellow signals operators.
The first question for this Tribunal is what was the general nature of the class or classification of Mr Hawkins' employment? Mr Hawkins was employed as a signals operator in the RAAF. The Tribunal heard evidence from Mr Nelson and Mr Zarnke about the conditions under which they worked as signals operators in the RAAF in Pearce and in Hong Kong. The evidence points to a conclusion that the physical nature of the employment as a signals operator in the RAAF in both of these locales was at its best, uncomfortable, and at its worst "substandard" and "primitive". I accept that those people engaged as signals operators worked in sunken concrete buildings with no windows, one door that was permanently sealed and with very poor, if any, ventilation. I also accept that signals operators found their work stressful.
I am satisfied that the majority of people who worked as signals operators in the RAAF were people who also smoked. The evidence was that only two out of 30 employees at Pearce smoked. Each smoked continuously during their shift, and if they ran out of their own cigarettes, they borrowed from each other, or purchased, through an honour system, cigarettes from the sick bay. I accept the evidence of Mr Nelson and Mr Zarnke that a pall of blue/grey smoke hung from the ceiling during all shifts except during the midnight to 8.00am shift, when there were fewer signals operators working.
The RAAF signals operators also socialised together. I accept the evidence of Mrs Hawkins, Mr Nelson and Mr Zarnke that signals operators did not socialise with other units. It was common for those who worked a shift together to then socialise together. I find, on the basis of Mr Zarnke's and Mrs Hawkins' evidence that, if they were socialising together, the signals operators all smoked.
Apart from the social arrangements, these are all matters that relate to the nature of Mr Hawkins' employment. For the reasons I have given above, the periods away from their shifts were not part of their employment (see paragraph 61 above). For Mrs Hawkins' application to be successful, Mr Hawkins' atherosclerosis must have been due to the nature of his employment. In the context of this case, that means, for example, that it must have been due to his being exposed to passive smoking or his smoking was due to his being engaged in employment causing anxiety to those working as signals operators or to his being subject to the smoking of others. Taking the test of the majority in the Connair case, I am not satisfied that, on the balance of probabilities, the nature of Mr Hawkin's employment in the RAAF tended to cause or contribute to the attraction, aggravation or acceleration of coronary atherosclerosis. That is so because I am not satisfied that the nature of his employment tended to cause or contribute to his smoking, which in turn led to his coronary atherosclerosis, or that the passive smoking, to which the nature of his employment did expose him, tended to do so. I am not satisfied that the stressful nature of signals operators' employment led to their commencing to smoke. I accept that smoking could be regarded as a reliever of stress but I am not satisfied in this case that signals operators saw it in that way. The nature of their employment did, on the other hand, expose them to passive smoking in that smoking was permitted and the RAAF assisted smokers by making cigarettes readily available. On the evidence, however, I am not satisfied that the smoking of the majority of signals operators or the availability of cigarettes caused or contributed to their becoming addicted to nicotine and so commencing to smoke. I am also not satisfied that passive smoking to which signals operators were exposed during their shifts is such that it contributed to his coronary atherosclerosis. Dr West's evidence is that passive smoking may equate with smoking one to two cigarettes a day but, apart from the reference in a letter to a study in 1987, there is no evidence of its likely effect where the nature of the employment is that the vast majority of employees smoke considerably more than one to two each day.
For the reasons I have given, I affirm the decision of the respondent dated 7 December, 1998.
I certify that the seventy four preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ........................................
M Martinez AssociateDates of Hearing 30, 31 May, 2000
Date of Decision 22 December, 2000
Solicitor for the Applicant Mr B Piper
Counsel for the Respondent Miss E Ford
Solicitor for the Respondent Australian Government Solicitor
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