Kingshott and Trident LNG Shipping Services (Compensation) - [2020] AATA 4848

Kingshott and Trident LNG Shipping Services (Compensation) [2020] AATA 4848 (1 December 2020)
Division:GENERAL DIVISION
File Number(s): 2017/7010
Re:Philip Kingshott
APPLICANT

AndTrident LNG Shipping Services
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:1 December 2020
Place:Perth

The decision made on 6 October 2017 which affirmed a deemed determination which disallowed the Applicant’s claim for compensation lodged on 10 March 2017 under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) is affirmed.
...............................[SGD]................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – workers compensation – chronic obstructive pulmonary disease (COPD) – emphysema – environmental tobacco smoke – material contribution to or aggravation of ailment – inconsistent active smoking histories – decision affirmed
LEGISLATION
Seafarers Rehabilitation and Compensation Act 1992 (Cth) – ss 3, 26(1), 28, 31, 73(2)(a), 73(6)
CASES
Comcare v Canute [2005] FCAFC 262
Comcare v Sahu-Khan [2007] FCA 15
Ryan and Swire Pacific Ship Management (Australia) Pty Ltd [2020] AATA 2049
REASONS FOR DECISION
Deputy President Boyle
1 December 2020
THE APPLICATION

The Applicant seeks review of a decision made on 6 October 2017 which affirmed a deemed determination which disallowed the Applicant’s claim for compensation lodged on
10 March 2017 under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (SRC Act).
BACKGROUND
The Applicant was a seafarer who was employed by the Respondent between
28 January 2008 and 3 February 2017 as a catering assistant. He is 81 years of age.
The Applicant says that he was exposed to secondary cigarette smoke throughout the entire period of his employment by the Respondent. He says that his “symptoms became worse in the middle of 2016 and he left the ship for the last time on the 3^rd August 2016”.[1]
[1] Paragraph 6 of Applicant’s SFIC.
On 10 March 2017 the Applicant lodged a claim for workers’ compensation under the SRC Act for “COPD [chronic obstructive pulmonary disease]/chronic cough” which the Applicant claimed to be attributable to exposure to passive cigarette smoking while working on board the NW Sanderling.[2] The claim was for “lost wages resulting from an incapacity for work”, “medical and related expenses” and “travel expenses to attending medical examination/rehabilitation”.
[2] R2, T8.
A workers’ compensation first medical certificate completed by Dr Iain Russell dated
[3] R2, T7.
8 March 2017 identified the clinical diagnosis as, “moderate emphysema/COPD” with clinical findings of “[n]ow excessive mucous production, cough, exertional dyspnoea”.[3]
On 5 July 2017 the Applicant, through his representatives, provided further medical certificates dated 10 April 2017 and 29 June 2017. The Tribunal notes that the claim form submitted by the Applicant on 10 March 2017 was in the form approved by the Seafarers Safety, Rehabilitation and Compensation Authority. That form at part 15 provides as follows:
15. For what are you claiming (tick all that apply)
Note: This question does limit your entitlement to make further claims in relation to the injury or illness. You do not need to complete another claim form if you wish to make a claim for below benefits in the future.
☐Lost wages resulting from an incapacity to work
☐Medical and related expenses
☐Travel expenses attending medical examination/rehabilitation (only round trips of 50 km or more are reimbursable.
☐ …
The Applicant had ticked the first three boxes.
The Respondent did not make any determination in relation to the claim(s) made by the Applicant and, by operation of ss 73(2)(a) and 73(6) of the SRC Act, the claims were taken to be disallowed 12 days after they were made.
On 10 August 2017 the Applicant, through his representatives, requested a reconsideration of the determination(s) taken to have been made.[4]
[4] R2, T13.
On 6 October 2017 the Respondent’s insurer, Allianz, issued a notice of reconsideration which affirmed the deemed determination, which that notice identified as being a determination to refuse liability to pay compensation under the SRC Act “in relation to ‘COPD/chronic cough’ whilst employed by Trident LNG Shipping”. The notice provided reasons for the decision made on the reconsideration.[5]
[5] R2, T18.
On 27 November 2017 the Applicant lodged the application in the Tribunal seeking review of the reconsideration.[6]
[6] R2, T2.
THE ISSUES
The Respondent’s Statement of Facts, Issues and Contentions (SFIC) identifies the issues for determination as follows:[7]
2.1 Whether liability exists to pay compensation for the claimed ‘COPD/chronic cough’ condition under s 26 of the Seafarers Rehabilitation and Compensation Act 1992 (SRC Act).
This requires consideration of:
2.2 Whether the applicant has suffered a medical condition as claimed by the claim for compensation dated 10 March 2017.
2.3 If the applicant has suffered a medical condition as claimed by the claim for compensation dated 10 March 2017, whether that condition has:
(a) been materially contributed to by the applicant’s employment and in particular the claimed exposure to passive cigarette smoke while working on board the NW Sanderling whilst employed with the respondent; and
(b) given rise to incapacity for work or impairment.
[7] Respondent’s SFIC para. 2.
The Respondent’s closing submissions identify the issues for determination as follows:[8]
a.whether the claimed COPD condition is an aggravation of an ailment that was contributed to in a material degree by the Applicant’s employment;
b.if so, whether liability exists to pay compensation under the SRC Act in relation to the claimed condition.
[8] Para.18.
The Applicant’s SFIC and closing submissions do not separately identify the issues for determination, however, the Applicant’s SFIC and closing submissions in effect cover the issues identified by the Respondent as being the issues for determination.
The Tribunal agrees that the issues identified by the Respondent are the issues for resolution in these proceedings.
THE HEARING
The application was heard on 29 and 30 September 2020. The Applicant was represented by industrial advocate, Mr P Mullally of Workclaims Australia, and the Respondent was represented by Mr A Harding instructed by Sparke Helmore Lawyers. Written closing submissions and response were provided as follows:
(i)Applicant’s closing submissions – 14 October 2020;
(ii)Respondent’s closing submissions – 28 October 2020; and
(iii)Applicant’s submissions in response – 4 November 2020.
The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)Professor A W Musk AM, respiratory physician;
(c)Dr S J Claxton, respiratory and sleep disorders physician;
(d)Dr I A Russell, general practitioner;
(e)Mr R Ward, occupational hygienist;
(f)Professor I H Young, respiratory physician;
(g)Mr N Griffiths, employee of the Respondent; and
(h)Mr K W Hoffman, employee of Shell Tankers Australia Pty Ltd.
The following documents were admitted into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions with 2 attachments (Exhibit A1);
·Timeline summary of main events from 14/07/2012-03/018/2016
·Timeline of incidents following use of new smoke room
(b)Witness statement, dated 9 May 2019 with a Booklet dated 8 May 2019 - Volumes 1 of 6 (Exhibit A2);
(c)Statement in reply to the Respondent's SOFIC, dated 6 June 2019 (dated 24 June 2019) (Exhibit A3);
(d)Further statement, dated 9 March 2020 (Exhibit A4);
(e)
Response to the Respondent's SOFIC filed pursuant to Directions made on

21 March 2019 (Exhibit A5);
(f)Medical report from Dr Musk (Respiratory Physician), dated 7 March 2018 (Exhibit A6);
(g)Letter from Dr Musk (Respiratory Physician), dated 5 May 2017 (Exhibit A7);
(h)Letter from Dr Claxton (Sleep & Respiratory Physician), dated 5 July 2018 (Exhibit A8);
(i)Medical Report from Dr Claxton (Sleep & Respiratory Physician), dated 18 April 2018 (Exhibit A9);
(j)Medical Report from Dr Russel (MBBS Dip Obst RCOG), dated 15 February 2018 (Exhibit A10);
(k)Amended Statement of Facts, Issues and Contentions, dated 1 September 2020 (Exhibit R1);
(l)Section 37 Documents, received by the Tribunal on 22 December 2017, ST1-ST19 (Exhibit R2);
(m)Section 37 Documents, received by the Tribunal on 29 October 2018, ST1-ST28 (Exhibit R3);
(n)Section 37 Documents, received by the Tribunal on 25 September 2020, ST29-ST47 (Exhibit R4);
(o)Section 37 Documents, received by the Tribunal on 28 September 2020, ST1-ST4 (Exhibit R5);
(p)
Letter from Dr Claxton (Sleep & Respiratory Physician) to Dr Du Plessis dated

28 February 2018 (Exhibit R6);
(q)Letter of instruction from A's representative to Dr Musk, dated 3 July 2018 (Exhibit R7);
(r)Report of Dr Young, dated 10 December 2018 (Exhibit R8);
(s)Letters of instruction from A's representative to Dr Claxton, dated 23 February 2018 and 3 July 2018 (Exhibit R9);
(t)Briefing letter from A's representative to Dr Russell, dated 12 February 2018 (Exhibit R10);
(u)Report of R Ward, dated 20 November 2019 (Exhibit R11);
(v)Report of R Ward, dated 14 May 2020 (Exhibit R12);
(w)Letter from Professor Young to A's representative, dated 9 June 2020 (Exhibit R13);
(x)Statement of Neil Griffiths, dated and signed 26 October 2020 (Exhibit R14); and
(y)Statement of Keith Hoffman, unsigned, dated 12 May 2020 (Exhibit R15)
LEGISLATIVE FRAMEWORK
Subsection 26(1) of the SRC Act provides:
(1)If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
Section 28 of the SRC Act relevantly provides:
(1)If an employee:
(a) suffers an injury; and
(b) obtains medical treatment for the injury, being treatment that it was reasonable for the employee to obtain in the circumstances;
compensation is payable for the cost of the medical treatment, of such amount as is appropriate, having regard to the nature of the treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
Section 31 of the SRC Act relevantly provides:
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 33, 34, 35, 36 or 37 applies.
(2)Subject to subsection (3) and this Part (other than this section), compensation for the injury is payable to the employee, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount worked out using the formula:
…
Section 3 of the SRC Act defines terms as follows:
"aggravation" includes acceleration or recurrence.
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
"disease" means:
(a)any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment.
"injury" means:
(a)a disease; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
THE PARTIES’ CONTENTIONS
The Applicant
At paragraph 12 of his SFIC, the Applicant summarises his claim as follows:
12.1He is now suffering from the effects of an aggravation of his pre-existing respiratory disease;
12.2That the aggravation has rendered him incapacitated for work;
12.3That the aggravation of his pre-existing disease is an ailment within the meaning of the [SRC Act];
12.4That the employment contributed to a material degree to the ailment.
The Applicant contends that all of the medical evidence supports the contention that the Applicant is suffering from a respiratory disease.
The Applicant contends that at the heart of this case is the issue of whether the Applicant’s employment by the Respondent contributed to an aggravation of the disease, to a material degree. He contends that:[9]
Professor Musk and Dr Claxton and also the treating GP Dr Russell are of the opinion that the years of exposure to secondary cigarette smoke on board ship have made a material contribution to the aggravation. Professor Young on the other hand who examined the applicant on behalf of the respondent’s insurers disagrees.
[9] Applicant’s SFIC para. 16.
The Applicant’s closing submissions contended that:
5. The Respondent allowed smoking on board the vessel NW Sanderling on which the Applicant worked. At the start smoking in cabins was permitted, then it was confined to several areas and banned in cabins. At all times, however, the secondary smoke entered the air-conditioning system and was recycled through the ship.
6. The Applicant’s symptoms deteriorated starting in 2014 and he left the ship for the last time on 3 August 2016.
7. Later that month he failed to complete a physical safety test which meant that he could no longer go to sea under Australian Maritime Safety Authority (AMSA) rules.
Did the employment contribute to a material degree to the aggravation?
16. It is not the case that the Applicant claims that the exposure to secondary cigarette smoke caused his respiratory disease, namely COPD with emphysema, but rather that his exposure to secondary cigarette smoke on board the vessel aggravated the condition to a material degree and resulted in his incapacity for work.
17. Dr Musk and Dr Claxton, and also the treating GP Dr Russell, are of the opinion that the years of exposure to secondary cigarette smoke on board ship have made a material contribution to the aggravation.
20. It is clear that Dr Musk and Dr Claxton accepted the history that the Applicant had stopped smoking in 1989 and that he had smoked a pack (20 cigarettes) a week for about 14 years.
22. Professor Young expressed the opinion that if that smoking history is accepted, he would agree with Dr Musk and Dr Claxton that the Applicant’s exposure to the environmental tobacco smoke over a 730 day period on the NW Sanderling could have significantly permanently exacerbated his COPD condition.
24. Professor Young testified that there was no safe level of exposure to environmental cigarette smoke for the Applicant. This of course was based on the acceptance of smoking history b (20 cigarettes a week for 14 years).
28. Professor Young also testified that he agreed that an eight year exposure to secondary cigarette smoke would have been sufficient time for the aggravation to occur. He went on to say that an eight year exposure would have exacerbated his disease. He said that it would have exacerbated anyway… “but in his opinion his exposure to significant ETS [environmental tobacco smoke] over eight years would have been a significant factor further exacerbating his disease”.
29. Finally Professor Young was of the opinion that the Applicant’s advanced age (Mr Kingshott was born in 1939) would account for more significant symptoms due to age related lung function decline which was complicated by the fact that he has lost a lot of lung function from his smoking history.
Was the Applicant exposed to ETS on board in his workplace?
32. The Applicant has testified at length as to the exposure to environmental tobacco smoke during his working life on board the NW Sanderling. In his first witness statement signed on 9 May 2019, the Applicant gave details of the smoking issues on board which was both his home and workplace.
33. He said that he was regularly exposed to smoke in the workplace. He said that smoke issues on board were discussed with an MUA delegate, Percy Brice, and that smoke flowed into the passageways in his workplace.
34. He said that a PIN (Permanent Improvement Notice) had eventually been issued by the first engineer on board which set out in detail the problems being experienced by those on board and their exposure to second-hand smoke.
36. On 18 May 2012 Inspector Andre Winkler issued Improvement Notice 0460 against the NW Sanderling on the basis of a contravention of the Occupational Health and Safety (Maritime Industry) Act 1993 as a safe work place was not being provided due to the burning of a respiratory irritating substance (tobacco smoke) in the accommodation areas and that the dedicated smoke room was inadequate.
37. There is abundant documentary evidence provided by the Respondent in Exhibit R3 to establish that the ETS on board the NW Sanderling was far from trivial and on the basis of Professor’s Young’s evidence that there was otherwise no safe level of exposure to ETS, then the Applicant has established the necessary exposure at least until the middle of 2014.
39. The volume of documentary evidence together with the Applicant’s unchallenged testimony establishes that he was exposed to ETS for the entire period of his employment.
Is the Applicant’s smoking history b truthful?
41. The Applicant testified under oath and was cross-examined extensively about his smoking history. His early life as a teenager, his time in the Navy and his family life was subject to detailed scrutiny. He was extensively cross-examined about contrary evidence as to his smoking history given to Dr Russell and the Dr Claxton.
41(sic). It is clear on the evidence that the first time the Applicant saw a contrary history written in a report was that of Dr Claxton of the 10th November 2016 presumably in February 2018 as Dr Claxton issued a correction in a further letter to Dr Du Plessis dated the 28th February 2018 where he identifies the Applicant’s return to make the corrections.
42. The Applicant consistently reported to Dr Musk and Professor Young smoking history b and there was nothing in his evidence to suggest he was untruthful.
The Respondent
The Respondent’s SFIC summarises its case as follows:[10]
[10] References omitted.
4.3. The Applicant’s respiratory condition, or an aggravation of same, has not been contributed to, to a material degree, by the Applicant’s employment with the Respondent.
4.4. The Respondent notes Associate Professor’s Young’s opinion that:
(a) He did “not believe that Mr Kingshott’s severe COPD with predominant emphysema was caused by his exposure to environmental cigarette smoke on the ships while employed”.
(b) The emphysema process would have commenced when he started smoking in 1974.
(c) The COPD “certainly began to develop at the time he started smoking in 1974”.
(d) Passive cigarette smoke exposure may have acted as a mild acute irritant during the times he was exposed because of his underlying COPD but would not have acted to accelerate or permanently aggravate his underlying COPD/emphysema, relying on the published scientific medical literature.
(e) There is no evidence that passive cigarette smoke exposure can cause or materially permanently aggravate underlying COPD or emphysema.
4.5. Associate Professor Young’s supplementary report, dated 10 December 2018, confirmed that smoking history (a) [20 cigarettes per day for 40 years], would adequately explain the Applicant’s “severe COPD and that his exposure to the environmental tobacco smoke (ETS) on the NW Sanderling could not be considered a significant permanent aggravation to his COPD condition as it would be a trivial contribution”. Further, the Applicant “did not suffer exacerbations requiring hospital attendance or admission during his ETS exposure”.
4.6. The Respondent further contends that the Applicant’s respiratory condition has not resulted in an incapacity for work or impairment.
4.8. If the Tribunal finds that liability to pay compensation does exist for the claimed respiratory condition the Respondent contends that the Applicant has ceased to suffer the work-related effects of the respiratory condition and relies on the following:
(a) Associate Professor Young’s report dated 20 September 2017, which reported that exposure to passive smoking is not a material contributing factor for the Applicant’s COPD and emphysema and, at most, the passive cigarette smoke exposure may have acted as a “mild acute irritant” during the times he was exposed because of his underlying COPD but would not have acted to accelerate or permanently aggravate his underlying COPD/emphysema.
(b) Dr Musk’s report dated 7 March 2018 that the Applicant’s “symptoms have been better since he stopped working two years ago”

The Respondent’s closing submissions contended that:
8. The Tribunal should find, relying on Professor Young’s primary opinion, that the Applicant’s exposure to ETS on the NW Sanderling would have made a “trivial contribution” to his COPD condition and did not result in an acceleration or a permanent aggravation of the condition for the purposes of the SRC Act.
9. Professor Young’s opinion to this effect is premised on the Applicant’s cigarette smoking history being that of a heavy active smoker for a significant period of his life. There is a high degree of likelihood that this is the case and that the Tribunal should so find.
20. The Applicant’s work history before his employment with the Respondent may be summarised as follows:
a. He left school at the age of 15 to start a four-year apprenticeship working in a machine shop;
b. In early 1958, at the age of 19, the Applicant joined the Royal Navy.
He served in the Royal Navy for nine years. In that period of time he worked as a NCO Engineering on various warships and stations in various locations around the world;
c. On 10 February 1967, he was discharged from the Royal Navy at the age of 27 (about to turn 28);
d. After his discharge the Applicant worked as a machinist for about 10 months;
e. For 12 years from December 1967 the Applicant worked in Swaziland in the wood pulp industry. He was involved in training the local people in this industry using large pine forests that had been planted years before. His work was largely supervisory;
f. In June 1976 the Applicant moved to Bangladesh where he was similarly employed. Following this, he moved to Syria, again supervising wood pulp and paper production and was again mainly in an office environment;
g. The Applicant then took a one-year holiday in Ireland before immigrating to Australia in September 1983 at age 44;
h. For 12 years from September 1983 the Applicant worked in a landscaping business in Perth;
i. He then ran a coffee lounge for six years in Freemantle before becoming a fulltime carer for his wife for 18 months; and
j. For 4 years from December 2004 the Applicant worked as a catering attendant on ships travelling between the coast of Western Australia and the gas fields. For some of this time he worked on the NW Sanderling.
21. On 28 January 2008, at age 69 the Applicant commenced employment as a catering assistant with Shell/Trident. His last day at work was 3 August 2016. During this period of approximately 8 ½ years he worked on the NW Sanderling.
23. What constitutes "contributed to in a material degree by an employee’s employment" was considered in Treloar v Australian Telecommunications Commission [1990] FCA 511 in which the Full Federal Court stated at 323:
"the use of the word "material"... It has served only to emphasise that the section is not brought into play unless it is established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."
24. In Ryan and Swire Pacific Ship Management (Australia) Pty Ltd [2020] AATA 2049, Member East reviewed the relevant authorities concerning the word "material" including Comcare v Canute [2005] FCAFC 262 and Comcare v Sahu-Khan [2007] FCA 15 and distilled the following principles:
“Having reviewed many authorities on this phrase, the Tribunal is satisfied that it needs to determine if there has been a positive contribution to the development of the Applicant’s disease by some aspect of his employment which is more than trivial or minimal. In line with the Federal Court authorities in Canute and Sahu-Khan, there is a higher threshold than just a ‘mere contribution’ and an evaluation of that threshold is required.”
27. The evidentiary material reveals that the Applicant has given varying conflicting versions of his active smoking history. The Respondent identifies reports stating different histories, noting that the Applicant’s reporting of number of cigarettes he smoked changed from 20 a day to 20 a week after he lodged his unfair dismissal and compensation applications.
28. The Applicant’s claim to having been a light smoker should not be accepted because:
a. Firstly, the Applicant gave four separate accounts to medical practitioners in which he reported a history of significantly heavier cigarette smoking. In two of those accounts he commenced smoking cigarettes much earlier than 1974. Of these accounts, it is submitted that the Tribunal would place the greatest individual weight on the version given to Dr Claxton, respiratory physician, as recorded in his report dated 10.11.2016 (which is materially similar to the version given by the Applicant to the Spirometry scientist, Liana Gathercole, about a month later).
b. The history recorded by Dr Claxton is likely to be accurate because of the following matters:
i. the method by which Dr Claxton recorded this history and prepared this report: Dr Claxton’s evidence was that he recorded this history and prepared this report directly from what the Applicant said to him as part of his history taking;
ii. the subject matter was significant: Dr Claxton’s evidence was that he took this record because smoking is a significant risk factor for COPD so it is important to record an accurate smoking history;
c. Secondly, the first three recorded versions of the Applicant’s active smoking history were of the Applicant’s having had a heavy and lengthy active smoking history. The Applicant changed his version to reporting a lighter (initially 10-15 per day then later 3-4 per day) and shorter smoking history at around the time he made his claim for unfair dismissal and workers’ compensation claim.
It was clear from the Applicant’s evidence and the contemporaneous medical records (GP record of Dr Russell dated 8.03.2017 and letter of Dr Claxton dated 28.02.2018) that he was fully aware by that time that his claims depended upon his exposure to ETS. It is submitted that by that time it would have been apparent to the Applicant that his prospects of the claim being accepted would be improved if his history of active smoking prior to the commencement of his employment with the Respondent was downplayed.
g. Thirdly, there are number of matters which make it more likely that the Applicant commenced cigarette smoking much earlier than in 1974 at age 35. The Respondent identifies the Applicant’s history, that fact that his parents were both smokers, his joining the Royal Navy in 1958 and his being married to a smoker from 1962.
h. Fourthly, the Applicant did not identify any compelling reason explaining why he would have commenced smoking in 1974 at the age of 35.
i. Lastly, and very importantly, Professor Young says that the most common cause of emphysema is active cigarette smoking and that “I would normally expect a heavier active cigarette smoking history than Mr Kingshott supplied to cause the degree of emphysema demonstrated on his radiology and spirometry”.
29. The Tribunal should make a finding that the Applicant’s cigarette smoking history was that of a heavy smoker for a lengthy period of his life.
In relation to the Applicant’s exposure to ETS, the Respondent’s closing submissions were to the effect that:
31. From 28 January 2008 to 3 August 2016 the Applicant was rostered:
a. 1412 days on board the NW Sanderling;
b. 50 days “on board refit” the NW Sanderling; and
c. 1797 days on leave, training, or another category.
32. The evidence supports findings that:
a. From at least 6 June 2006 smoking was permitted in cabins on the NW Sanderling;
b. Until June 2012, there was a smoke room on A deck – it was the original shop which converted into a smoking room on June 2006;
c. On 18 May 2012, the AMSA issued an improvement notice concerning exposure to ETS on board the NW Sanderling;
d. On 30 April 2012, the AMSA issued a provisional improvement notice concerning exposure to ETS on board the NW Sanderling.
e. From 6 June 2012, the use of cabins for smoking was no longer permitted on the NW Sanderling;
f. From June 2012 to June 2014:
i. smoking was permitted in the Crew’s lounge on C deck;
ii. smoking was permitted in the “shore workers cabin” on A deck.
g. From June 2014, smoking was only permitted in the “shore workers cabin”. Modifications to this room had been completed by then such that this room had a separate extraction system not connected or returned to the ship’s air-conditioning system. The smoking room was also fitted with non-return valves to avoid any back flow from smoking areas.
34. The Applicant was on board the NW Sanderling for:
a. 730 days prior to implementation of the new smoking policy on 6 June 2012 whereby smoking was not permitted in cabins and smoking was confined to the Crew’s lounge; and
b. 1025 days (approximately) prior to the “shore workers cabin” being fitted with a separate extraction system.
36. In his report, expert witness Mr Ward, concluded that “The probability of ETS (environmental tobacco smoke) being transported from the areas of concern to the catering Rating B cabin has been determined as very unlikely to occur”.
40. Whilst smoking was permitted in cabins on the NW Sanderling from 6 June 2006 to 6 June 2012 this is unlikely to have been a source of the Applicant being exposed to ETS.
43. Smoking by the crew of ship in the shore worker’s cabin over the period from June 2012 to June 2014 may have been a source of ETS exposure on the ship but there is no evidence from which the Tribunal could make findings as to what the level of ETS exposure was.
44. From June 2006 until June 2012 smoking by the crew of ship in the smoke room on A deck may have been a source of ETS exposure on the ship, however, there is no evidence from which the Tribunal could make a finding as to what the level of ETS exposure was.
45-50. Although the Applicant disputes that the ventilation system on the ship at the time that Mr Ward undertook his examination and testing was the same as when the Applicant worked on the ship, the evidence of Mr Hoffman rebuts that with the result that there is no persuasive evidence that that Applicant is likely to have been exposed to significant ETS whilst on board the NW Sanderling.
In relation to the medical evidence, the Respondent’s closing submissions are:
53. In evaluating the expert evidence “the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts”; citing Anderson J in Pollock v Wellington (1996) 15 WAR 1, at 3.
55-56. In Professor Young’s first report he opined that the Applicant’s severe COPD with predominant emphysema was not caused by his exposure to environmental tobacco smoke on the ships while employed by the Respondent and that the Applicant’s severe COPD with predominant emphysema would already have been present prior to his employment with the Respondent.
57. Professor Young further opined that the Applicant’s exposure to passive smoking on the ships was not a material contributing factor for the Applicant’s COPD and emphysema stating that it may have acted as a “mild acute irritant” during exposure but “would not have acted to accelerate or permanently aggravate his underlying COPD/emphysema”.
58. In Professor Young’s supplementary report dated 10 December 2018 he opined that determining whether any environmental cigarette smoke exposure permanently aggravated the Applicant’s COPD and emphysema depended on which of the two active smoking histories, (a) or (b), outlined in this report was accepted.
59. Professor Young distinguished the Applicant’s two versions of his active smoking history, observing that:
“
…acceptance of active smoking history (a) would adequately explain

Mr Kingshott’s severe COPD and that his exposure to the environmental tobacco smoke (ETS) on the NW Sanderling could not be considered a significant permanent aggravation to his COPD condition as it would be a trivial contribution. It appears that he did not suffer exacerbations requiring hospital attendance or admission during his ETS exposure.
Acceptance of active smoking history (b) would indicate an extraordinary sensitivity for Mr Kingshott to the effects of active smoking and, in that case, I would agree with Professor Musk and Dr Claxton that Mr Kingshott’s exposure to the environmental tobacco smoke over a 730 day period on the NW Sanderling could have significantly permanently exacerbated his COPD condition.”
In relation to the medical evidence upon which the Applicant relies, the Respondent’s closing submissions were:
61. Professor Musk’s report of 8 March 2018 reported an active smoking history of two to three cigarettes a day from age 36 to 50 years stopping in 1989 and eight years exposure to ETS on the ship. His report identified “Cigarette smoke is the only identifiable cause of his disease…”
In his second report (5 July 2018; A7) Professor Musk repeats the smoking history referred to in the first report, and observes that the history “suggests that he was more sensitive to the effects of tobacco smoke than an average person” so that the environmental tobacco smoke “in his cabin from the air conditioning and over the eight years that he was on board could also be more damaging than is the usual experience”
Dr Claxton’s report dated 18 April 2018 reported a smoking history of two to three cigarettes a day for 14 years from age 36 to 50 and observed “a history of “occupational and second hand smoke exposure” which “could well have accelerated the development of his COPD and emphysema”. The report stated that “a work environment that includes secondary smoke and other fumes and airway irritants would lead to an increased risk of progression of his disease and also exacerbations causing acute respiratory illnesses”
Dr Claxton’s report dated 5 July 2018 stated that “exposure to secondary cigarette smoke on board the ship over eight years would have contributed to progression and aggravation of his COPD to a material degree”.
Importantly, both Professor Musk and Dr Claxton explicitly relied, as the premise or basis of their opinions, on the accuracy of the Applicant’s smoking history given to them. In cross examination each of Professor Musk and Dr Claxton agreed that:
i. A 30 – 40 pack year active smoking history would be sufficient to cause the development of the Applicant’s COPD and would readily explain the Applicant’s current COPD condition;
ii. A 30 – 40 pack year active smoking history is the simplest and most obvious explanation for the Applicant’s COPD;
iii. What Professor Young opined in his first report at page 8 was correct;
“Mr Kingshott's severe COPD with predominant emphysema would have been present prior to his employment with Shell Australia in 2004. COPD and emphysema take decades to develop and tend to be progressive, despite cessation of smoking, and become more symptomatic with time due to the lung function that has been lost while the person has been actively smoking.”
iv. The active smoking history more recently given by the Applicant –“only two to three cigarettes a day (one packet a week) from the age of 36 to 50 years” which quantifies as 2 pack years - does not readily explain how he comes to suffer from COPD.
v. If the Applicant’s more recent smoking history of two to three cigarettes a day is correct, then his development of COPD to the extent to which the Applicant has it could only be explained by his having an unusual sensitivity to the effects of tobacco smoke, particularly once antripsyn deficiency was ruled out.
62. The Tribunal could not be reasonably satisfied that the Applicant’s current COPD is explained by the Applicant being “unusually sensitive”.
63. Professor Musk’s and Dr Claxton’s opinions also rely on eight years of exposure to ETS while working on the ship. The evidence does not sustain that claim.
There was no evidence of acceleration of the Applicant’s COPD. Professor Musk’s report referred to the Applicant giving him a history of no problems until 2014, however, 2014 was when the modifications were made to the ship which could not have had any significant exposure to ETS on ship.
Similarly, Dr Claxton did not point to any feature of the Applicant’s history whilst serving on the NW Sanderling which demonstrated an acceleration of aggravation.
64. In any event, the appropriate finding by the Tribunal is that the Applicant’s cigarette smoking history was that of a heavy smoker for a lengthy period of his life and that the Applicant’s exposure to ETS on the NW Sanderling made a “trivial contribution” to his COPD condition and did not result in an acceleration or a permanent aggravation of the condition.
The Applicant’s submissions in reply were:
7-8. Notwithstanding extensive cross-examination, the Applicant did not resile from his position that he smoked a packet of cigarettes a week.
11. There is “clearly documentary evidence of inconsistent recording of the applicant’s smoking history”.
13. The notation of “severe” smoking on the 26th September 2007 is a highly subjective notation and the medical officer who may have made the note did not testify. It ought to be disregarded.
14. The next record is that of Dr Claxton who was called by the Applicant.
The notation made in a report dated the 10th November 2016 was identified later by the Applicant has being incorrect and he attended upon Dr Claxton to make a change in his records on the 28th February 2018. Dr Claxton made the change.
The change is consistent with what the Applicant told all of the other specialists in the case.
15. The smoking history in the two spirometry reports are consistent with what
Dr Claxton had reported in 2016 in the first report and then consistent with what the Applicant had reported to the specialists and what he had testified to on oath in this Tribunal hearing in the second document dated the 4th December 2017. The second document came into existence before Dr Claxton made his change on the 28th February 2018.
16. The 8th March 2017 notes from Dr Russell which describe in shorthand form: Gave up smoking 25 years ago, 10-15 per day, could well have been wrongly noted as being a reference to 10-15 per week.
19-20. As at 8th March 2017 the Applicant had not lodged a claim for seafarer’s compensation. He obtained a First medical certificate on that day and lodged the claim 2 days later. It is unhelpful to link the applicant’s smoking history reporting in some way to his unfair dismissal claim. There is no established link or relevance.
21. The allegations of inconsistent previous reporting, whilst casting some doubt on the issue, does not dislodge the applicant’s strong and consistent evidence as to the period being from 1974 to 1989 and being a pack of cigarettes a week.
23. To suggest that because his parents both smoked, that there was no environmental influence against the Applicant smoking from a young age, is quite baseless.
25-26. The Respondent’s submissions that the Applicant was exposed to and even encouraged to smoke in the Royal Navy has no evidential basis.
27. the fact that the Applicant’s first wife smoked ought not be taken into account by the Tribunal in determining the Applicant’s smoking history.
28. The Respondent’s submissions that most people take up smoking at an earlier age than the Applicant says he started smoking and suggestions that the Applicant faced stressors in the Royal Navy are speculation.
31. The foundation of the OHMS (Mr Ward) report is destroyed by Mr Hoffman’s evidence as to the changes made in the ducting system.
32. The contemporary evidence (AMSA issue of an Improvement Notice, reports by the Applicant) establishes that the ETS exposure was more than trivial.
35. The level or intensity of that exposure is irrelevant provided that it is more than trivial.
CONSIDERATION
There is no dispute that the Applicant was an employee of the Respondent for the purposes of the SRC Act. There is also no dispute that the Applicant worked for the Respondent on the NW Sanderling from around January 2008 to February 2017 with his last day on the vessel being in August 2016. The Tribunal so finds in any event.

The Respondent does not expressly concede that the Applicant suffers from COPD or any other respiratory ailment. However, at the hearing the Respondent’s counsel, Mr Harding, opened the Respondent’s case as follows:[11]
By way of opening, Deputy President, the applicant’s calling Professor Young,

in respect of the issue of causation and aggravation with respect to environmental tobacco smoke. And what Dr Young will say is incorporated in two reports, … a report dated 20 September 2017… two later reports, one dated 10 December 2018 and one dated 9 June 2020. In effect, Professor Young’s opinion is that the applicant’s exposure to environmental tobacco smoke on board the ship would have made a trivial contribution to his condition and did not result in acceleration or a permanent aggravation of the condition.
… the primary case of the applicant that even taking the contribution - or, taking the level of exposure that the applicant claims to have had on the ship at its highest - that the position that that exposure would have only made a trivial contribution to his condition.
…
…As I say, the primary case is that even taking the applicant’s exposure at its highest, that leads to a trivial contribution to his COPD and not, in any event, an acceleration or aggravation.
[11] Transcript at 70.
Professor Young’s report dated 20 September 2017[12] referred to by Mr Harding in opening and upon which the Respondent relies, under the heading Diagnosis on page 7 of the report, stated that:[13]
It is my opinion that Mr Kingshott has severe chronic obstructive pulmonary disease (COPD) with predominant emphysema…
[12] R2, T17.
[13] R2, T17/40.
Thereafter Professor Young’s report, and his subsequent reports, proceed on the basis that the Applicant has COPD. The Respondent’s case, as outlined by Mr Harding in opening (see [34] above), went to contribution to causation and/or acceleration or aggravation,

not to whether the Applicant suffers COPD. The Tribunal finds that the Applicant suffers, and suffered at the relevant times, COPD.[14]
[14] See also radiology report Dr Anuj Patel (R2, T4), first medical certificate Dr Russell (R2, T7).
Again, while it was not expressly conceded by the Respondent, the Tribunal finds that COPD is an ailment for the purposes of the SRC Act (s 3). The Tribunal does not understand the Respondent to contend otherwise. The issue for determination as identified and as argued by the Respondent, is whether the Applicant’s COPD was an ailment or an aggravation of an ailment that was contributed to a material degree by the Applicant’s employment. More specifically, as both parties argue their case, whether the COPD was aggravated to a material degree by exposure to ETS on board the NW Sanderling.
The secondary issue raised by the Respondent is, if it is found that the Applicant suffers from a disease, that is an injury, as those terms are defined in s 3 of the SRC Act (see [22] above), whether the injury has given rise to incapacity for work or impairment in order for liability under s 26 of the SRC Act (see [19] above) to arise.
The medical evidence
Professor Young
Professor Iven Young, BSc(Med), MB BS, PhD, FRACP, respiratory physician,
provided three reports and gave evidence at the hearing. In his first report, dated
20 September 2017, Professor Young advised that:
(a)He had examined the Applicant on 12 September 2017.
(a)The record from the Applicant’s local doctor, Dr Iain Russell, indicated that the Applicant had been treated for recurrent respiratory tract infections in September 2004 and that a Seretide inhaler (a recognised treatment for COPD) was prescribed in September 2007 and changed to a different type of inhaler in 2017.
(b)The Applicant reported that he was exposed to ETS through the air conditioning on the vessel for one hour during lunchtime and two to three hours at night for six months a year that he spent at sea. The exposure was heavier from 2014 until his employment was terminated in August 2016 after he was judged unable to cope with the firefighting drill because of breathlessness.
(c)The Applicant gave his smoking history as having started smoking in 1974 at around 35 years of age and as having stopped in 1989 at age 50. He described himself as a light smoker smoking three to four cigarettes per day.
(d)Professor Young noted, however, that the records of the Applicant’s treating doctor, Dr Russell, from 26 September 2007, referred to a “[h]istory of sever smoking” and that email correspondence from Neil Griffiths noted verbal reports of the Applicant being a regular/heavy smoker all of his life before starting with Shell, at which time he gave up smoking.
(e)The Applicant’s spirometry is consistent with, and it was Professor Young’s diagnosis that, the Applicant had severe chronic obstructive pulmonary disease with a significant component of emphysema.
(f)Professor Young did not believe that the Applicant’s severe COPD was caused by exposure to ETS on the ship while employed by the Respondent. “There is no evidence published in the scientific medical literature to support causation of COPD or emphysema from passive cigarette exposure” and “[t]he most common cause of emphysema is active cigarette smoking”.
(g)Professor Young stated that “I believe the emphysema process would have commenced when he started smoking in 1974 but it is possible that his exposure to wood dust from the age of 28 or 29 to the age of 36 in Swaziland, Bangladesh and Syria could have contributed”.
(h)The Applicant’s severe COPD with predominant emphysema would have been present prior to his employment with Shell. COPD and emphysema take decades to develop and tend to be progressive and become more symptomatic with time due to lung function that has been lost while the person has been actively smoking.
The Applicant’s condition would have developed whether or not he had been employed by Shell and his condition would have developed whether or not he had been exposed to ETS.
(i)Exposure to passive smoking was not a “material contributing factor for
Mr Kingshott’s COPD and emphysema”. The exposure to ETS may have acted as a mild acute irritant during the times that the Applicant was exposed to ETS because of his underlying COPD “…but it would not have acted to accelerate or permanently aggravate his underlying COPD/emphysema”.
(j)“…it is possible that some acute irritation of his underlying COPD when exposed to [ETS] but this would not have acted beyond the period of exposure. This may be the reason why Mr Kingshott has associated this exposure with his respiratory condition but there is no evidence that passive cigarette smoke exposure can cause or materially permanently aggravate underlying COPD or emphysema”
In his second report, dated 10 December 2018,[15] Professor Young opined as follows:[16]
[15] R8.
[16] Page 5.
My opinion on whether Mr Kingshott’s COPD has been accelerated or permanently aggravated by his exposure to ETS on the NW Sanderling has to be contingent on which of the active smoking histories for Mr Kingshott is accepted.
(a)
My original report notes Dr Iain Russell’s record from 26/09/2007 stating

“history of severe smoking” for Mr Kingshott. I also noted the email correspondence from Neil Griffiths that there were verbal reports of Mr Kingshott being a regular/heavy smoker all of his life before employment with Shell and that he had given up smoking when he joined Shell and remained a non-smoker in his employment period.
There is also the report from Dr Claxton, recently provided, from his initial consultation with Mr Kingshott (dated 10/11/2016) stating “He smoked about 20 cigarettes per day for 40 years and gave up smoking 25 years ago”.
Dr Claxton’s original history indicates a 40 pack-year history, which would be more than adequate to cause Mr Kingshott’s COPD in a susceptible person…Dr Russell’s entry and Mr Griffith’s email would support this history.
(b) Mr Kingshott informed Professor Musk in March 2018 that he only smoked about 20 cigarettes per week for a 14 year period up to the age of 50. Dr Claxton adjusted his smoking history for Mr Kingshott in his report dated 28/02/2018 to indicate the same history. Mr Kingshott also provided the same history of mild smoking when I interviewed him on 12/09/2017. This only represents a 1/7 pack per day for 14 years or a 2 pack-year smoking history. This is unlikely to cause COPD of Mr Kingshott’s severity, even in a genetically susceptible person, in the absence of alpha -1 antitrypsin deficiency.
Although there is no proof to support histories (a) or (b) in the documents provided, it is my opinion that acceptance of active smoking history (a) would adequately explain Mr Kingshott’s sever COPD and that his exposure to environmental tobacco smoke (ETS) on the NW Sanderling could not be considered a significant permanent aggravation to his COPD condition as it would be trivial contribution. It appears that he did not suffer exacerbations requiring hospital attendance or admission during his ETS exposure.
Acceptance of active smoking history (b) would indicate an extraordinary sensitivity for Mr Kingshott to the effects of active smoking and, in that case, I would agree with Professor Musk and Dr Claxton that Mr Kingshott’s exposure to the environmental tobacco smoke over a 730 day period on the NW Sanderling could have significantly permanently exacerbated his COPD condition.
…
On balance of probabilities, I find the active smoking history (a) for Mr Kingshott the more likely cause for his advanced COPD and I would therefore conclude that his mild environmental tobacco smoke exposure on board NW Sanderling would not have been a significant contributor to a permanent exacerbation or aggravation of his chronic obstructive pulmonary disease.
The Tribunal notes that Professor Young in the above passage twice uses the adjectival test of “significant” rather than that which the definition of disease in the SRC Act

calls for, namely, “material” (see [22] above). However, Professor Young’s report of

12 September 2017, in which Professor Young refers to material contribution, and his evidence at the hearing in effect rendered the use of potentially the incorrect adjective in his report of 10 December 2018 of no consequence. His oral evidence was to the effect that ETS would simply not have played any part causing or aggravating the Applicant’s COPD.
In his third report, dated 9 June 2020,[17] having been provided with further information, including the report of Mr Ward[18] on transmission of ETS within the NW Sanderling and the Applicant’s witness statement of 9 March 2020[19] responding to that report, Professor Young said that nothing in the material provided to him caused him to change his previously expressed views. He confirmed that:
[17] R13.
[18] R11.
[19] A4.
…even if Mr Kingshott was exposed to significant environmental tobacco smoke aboard the NW Sanderling, it remains my opinion that this could not have caused the severe emphysema.
…
My report dated 10/12/2018 discusses two different active smoking histories for

Mr Kingshott and my analysis of these histories. My opinion remains the same concerning this analysis, regarding whether Mr Kingshott’s exposure to ETS on the NW Sanderling could have permanently exacerbated his COPD and emphysema.
…
The conclusion that any ETS exposure could have permanently exacerbated his emphysema and COPD would be based on which of the two active smoking histories ((a) and (b)) I outlined in my report dated 10/12/2018 is accepted. It remains my opinion that active smoking history (a) is the most likely and my arguments are presented on pages 5 and 6 of my Supplementary File Review report, dated 10/12/2018.
Dr Claxton
Dr Claxton, B Med, Sci (Hons), MBBS, FRACP, respiratory and sleep disorders physician, provided four reports. The first was dated 10 November 2016.[20] That report, prepared at the request of Dr Du Plessis of Wanneroo GP Super Clinic, reported as follows:
(a)The Applicant had been referred to Dr Claxton for assessment of lung disease.
(b)He recently had had to undergo recertification by AMSA and had trouble because of respiratory symptoms. He had trouble doing an evacuation drill and was unable to do the firefighting drill because of breathlessness.
(c)The Applicant smoked 20 cigarettes a day for 40 years and gave up smoking 25 years ago.
(d)His only lung imaging was a CT IVP from 2011 which showed his lung bases and suggested that there was some emphysema there. His spirometry today shows severe airflow limitation.
(e)Her certainly has severe COPD.
[20] R5, ST2.
A spirometry test was undertaken by Joondalup Sleep and Respiratory Centre on

7 December 2016[21] at the request of Dr Claxton. Relevantly the history taken by the scientist at the time of that test recorded, amongst other information, that the Applicant’s smoking history was one packet per day for 30 years with the Applicant stopping smoking 25 years ago. Dr Claxton concluded at the foot of that report that the Applicant had “Moderate COPD. The reduced gas transfer is in keeping with emphysema.”
[21] R5, ST3.
The next report by Dr Claxton was dated 28 February 2018.[22] That report stated:
(a)The Applicant had come to see him in relation to his “workers comp claim”. It had been rejected and appealed, however, the appeal had also been rejected so is “going to a final appeal”.
(b)“The clarification about his smoking history is that he says he smoked two or three cigarettes a day for 14 years from the age of 36 until stopping at the age of 50. This is different to what I had in the first letter where he was smoking for about 40 years at 20 a day”.
(c)He reported few symptoms until about 2014 when he developed shortness of breath and a cough.
(d)The Applicant certainly had significant emphysematous change and airflow limitation on his CT and lung function tests.
(e)“Given the smoking history is fairly minimal I do wonder if there is an underlying predisposing factor such as Alpha 1 antitrypsin deficiency and he will have some blood taken to check this.”
[22] R6.
The third report by Dr Claxton was that dated 18 April 2018.[23] In that report Dr Claxton reported as follows:
(a)Dr Claxton first saw the Applicant on 10 November 2016.
(b)His exercise tolerance has improved with treatment of his COPD. He now feels that he can do his activities without significant limitations.
(c)His smoking history is two to three cigarettes a day for 14 years up to the age of 50. He has been exposed to second-hand smoke. This could well have accelerated the development of his COPD and emphysema. The commonest assessable cause is alpha 1 antitrypsin deficiency and the Applicant’s level is normal.
(d)“In the context of his COPD and emphysema a work environment that includes secondary smoke and other fumes and airway irritants would lead to an increased risk of progression of his disease and also exacerbations causing acute respiratory illness.”
(e)“…I don’t find that Philip is totally incapacitated to do his work on board a ship. He reports to me that his work generally involves catering work. I think this is unlikely to be materially effected [sic] by his otherwise stable lung disease.”
[23] A8.
Dr Claxton’s fourth report, dated 5 July 2018,[24] was (in toto) as follows:
Thank you for your letter regarding Philip. With regard to clarification of paragraph four of my letter of 18^th of April, 2018 I do consider that Philip’s exposure to secondary cigarette smoke on board the ship over eight years would have contributed to the progression and aggravation of his COPD to a material degree.
Professor Musk
[24] A9.
Professor AW Musk AM, MB.BS (WA), MD (NSW), Msc (Harvard), FRACP, FAFOEM, FCCP, MFOM (RCP) respiratory physician, provided two reports. The first, dated
7 March 2018 reported that:[25]
[25] A6.
(a)
He had examined the Applicant on the day of his report. The Applicant said that he had no problems until about 2014 when he noticed a recurrent sore throat,

cough and increasing breathlessness on exertion.
(b)The Applicant was still active and was “OK” with everyday activities. His symptoms have been better since he stopped working two years ago.
(c)He said that he smoked two to three cigarettes a day from age 36 to 50 stopping in 1989.
(d)The Applicant reported that “…he was continuously exposed to environmental tobacco smoke in the accommodation block and his cabin due to the circulation of the smoking room air throughout the ship” and “[h]e recalled no other tobacco smoke exposure”
(e)In Professor Musk’s view “Mr Kingshott has emphysema with moderately severe irreversible airflow obstruction and impaired gas transfer which is usually attributable to cigarette smoking. Cigarette smoking is the only identifiable cause of his disease even though he only actively smoked from the age of 35 to 50 years and his environmental tobacco smoke exposure only took place for eight years.”
Professor Musk’s second report, dated 5 July 2018 was (in toto):
“In reply to your letter dated 3 July 2018 and further to my report of 7 March 2018,

I do consider that Mr Kingshott’s environmental tobacco smoke exposure (even after he had stopped smoking) would have aggravated his COPD. I understand that his active smoking was only two to three cigarettes a day (one pack a week) from age 36 to 50 years, so that, while this would have contributed more to the development of his COPD, than passive smoke exposure, it is a much lesser amount of exposure (728 (sic) pack/years) than would usually result in the development of COPD.

This suggests that he was more sensitive to the effects of tobacco smoke than an average person so that the environmental tobacco smoke (in his cabin from the conditioning and over the eight years that he was on board) could also be more damaging than is the usual experience.
No predisposition to emphysema was demonstrated, his alpha 1 antitrypsin level having been shown to be normal and no family history of emphysema recorded.
Dr Russell
A report provided by Dr Iain Russell, MBBS Dip Obst, RCOG, dated 15 February 2018,[26] advised as follows;
[26] A10.
(a)
Dr Russell first saw the Applicant in 1999 when he treated him for orchitis.

The Applicant’s first treatment for a chest problem was in December 2006.
(b)The Applicant reported that’s he had been a light smoker for 14 years smoking one packet a week.
(c)“There is a lot of evidence that exposure to second hand smoke can aggravate or indeed may cause COPD. Although smoking is the main cause of COPD. A study in America showed that up to a quarter of men with COPD had never smoked.
Mr Kingshott says that when he was exposed to cigarette smoke at work it would cause coughing and shortness of breath. These symptoms did improve when he was home on leave and since leaving work his symptoms have been stable.”
(d)While he is probably fit for normal catering duties, he would be unable to fulfil evacuation and fire drills so is incapacitated from working on a ship.
Dr Russell’s medical records were produced under summons.[27] The record of a consultation with the Applicant on 8 March 2017 included the following:[28]
Trying to get to Fair Work Commission, re exposure to tobacco smoke. Recently diagnosed with COPD by Claxton. Failed AMSA medical.
Worked from 2007-23016 [sic] as a catering assistant on LNG vessel Northwest Sanderling. Recently diagnosed with advanced emphysema and has been unable to complete the necessary safety certificate to board the vessel
Worked total of 1708 days on the vessel
Gave up smoking 25 years ago, 10-15 per day
He was exposed to passive tobacco smoke on the vessel airconditioning and he claims this is the cause of his emphysema.
[27] R5.
[28] R5, ST4/10.

What emerges from the above reports in assessing the cause of or contribution to,

or aggravation of, the Applicant’s COPD and emphysema, is the criticality of which of the smoking histories that the Applicant has provided is accepted. As Professor Young identifies in his report, the Applicant appears to have provided at least two very different smoking histories, one with the Applicant smoking twenty cigarettes a day for forty years and another with the Applicant smoking two to three cigarettes a day for 14 years. There is also potentially a third history of 10-15 cigarettes a day given to Dr Russell in the Applicant’s conferral with Dr Russell on 8 March 2017.
In his witness statement of 8 May 2019,[29] the Applicant says[30] that he smoked between 1974 and 1989 and smoked 20 cigarettes a week. The Applicant was cross-examined at on this issue:
[29] A2.
[30] Para. 44.
COUNSEL:Now, we see that you saw Dr Meyer on 4 January 2007 and you saw him also on 26 September 2007 at a time when you were complaining of having cough and phlegm?
APPLICANT: Yes.
…
COUNSEL:Okay. Now, he took a history that records a history of severe smoking on the 4th - sorry, I should say 26 September 2007, Mr Kingshott. Now, is it possible that you told Dr Meyer that you had been a severe smoker?
APPLICANT: I told the doctor that I was a heavy smoker and I gave up smoking in 1989.
…
COUNSEL:Did you tell Dr Russell that you were a heavy smoker?
APPLICANT: Yes, he knew I was a smoker, yes.
COUNSEL:No, did you tell him - you just said that you told a doctor that you were a heavy smoker, I’m trying to work out who you told that to?
…
COUNSEL:So, you told a South African doctor that you were a heavy smoker and that - - -
APPLICANT: Yes, I believe - I believe it was du Plessis but I’m not sure.
COUNSEL:Okay. So when Dr Meyer records a history of severe smoking,

I suggest to you that that’s what you told him when you saw him on 26 September 2007?
APPLICANT: I told him that I’d given up smoking in 1989 and I was a heavy smoker prior to that.
[The record on which the Applicant was being cross-examined was the medical practice record of a consultation by Dr J Meyer with the Applicant on 26 September 2007 recording the Applicant as having a “history of severe smoking”[31]].
[31] R2, T19/82.
COUNSEL:Okay. Now, there’s no reference to when you started or when you stopped at that point but your own description, you’d agree with me, of the level of your smoking was that you were a severe smoker?
APPLICANT: Yes, I told him that I smoked a pack a week.
COUNSEL:Well, we’ll come back to that. He doesn’t mention that in his record of a pack a week, Mr Kingshott.
…
COUNSEL:Now, just in that regard, Mr Kingshott, when you saw Dr Claxton was it to have your lung disease assessed, wasn’t it?
APPLICANT: That’s correct, I was having---
COUNSEL:Okay. And when you saw Dr Claxton, a specialist, on referral from your GP, you knew the importance of giving him accurate information?
APPLICANT: That’s correct, yes.
…
COUNSEL:Okay. Now, you told him that you smoked about 20 cigarettes a day for 40 years?
APPLICANT: That - that statement is not correct because I smoked 20 cigarettes a week.
COUNSEL:You smoked 20 cigarettes for a week, could you explain what you mean by that? I’ll come back to the statement?
APPLICANT: Yes, I didn’t smoke 20 cigarettes, a pack a day, I smoked a pack a week.
COUNSEL:Well, I’m suggesting to you that you told Dr Claxton that you’d smoked about 40 cigarettes a day for 40 years?
APPLICANT: No.
…
COUNSEL:I suggest to you that you told Dr Claxton that you smoked about 20 cigarettes a day for 40 years?
APPLICANT: When I - when I saw his report, and I had him correct that to 20 a week.
COUNSEL:Well, I’ve asked you a question. I didn’t ask you about what you did later, I asked you whether you told Dr Claxton that you’d smoked about 20 cigarettes a day for 40 years?
APPLICANT: I told him 20 cigarettes a week.
COUNSEL:Okay. I just want to be clear that your specific recollection today of telling Dr Claxton that information?
APPLICANT: When Dr - when Dr Claxton made his report, and I corrected that and said no, it wasn’t 20 cigarettes a day, it was 20 cigarettes a week.
…
COUNSEL:Now, what I’m referring to, Mr Kingshott, is an entry showing that you saw Dr Ian Russell on 8 March 2017 10 and you went to see him and gave him a history of ongoing bladder problems?
APPLICANT: Correct.
COUNSEL:Do you recall going to see him on that occasion?
APPLICANT: Yes
COUNSEL:Okay. And he has reported:
Trying to get to the Fair Work Commission re exposure to tobacco smoke
Do you recall telling him that you were going to the Fair Work Commission and you were advancing an argument that you’d be exposed to tobacco smoke at work?
APPLICANT: No, I don’t recall telling him that…I went to see Dr Russell specifically to - to represent me in - in my claim because he’d been - he’s been - I’d lost contact with him, he’d moved his practice, and I haven’t seen him for many years and I had no need to - - -
…
COUNSEL:Okay. Well, he has recorded that you had a history of 10 to 15 cigarettes per day. Now, that information is information you gave Dr Russell, isn’t it?
APPLICANT: At the - when I first saw him, yes, probably.
COUNSEL:Now, you wouldn’t have given Dr Russell a history of 10 to 15 cigarettes a day unless that’s accurate, would you, Mr Kingshott?
APPLICANT: That - that’s correct.
…
COUNSEL:Dr Claxton asked you how many cigarettes you smoked whilst you were smoking, didn’t he?
APPLICANT: Yes, I think so, yes. To be hones t I can’t recollect specifically what he said, yes. He asked me what my smoking habit was and I told him, a pack a week for 1974 till 1989.
COUNSEL:That’s what you told Dr Claxton on 28 February 2018?
APPLICANT: Yes
COUNSEL:We see that. But just to be clear I suggest to you that you told him on 10 November 2016 that you smoked 20 cigarettes a day for 40 years?
APPLICANT: No, I smoked a pack a - I told - I’ll tell you what I smoked - I smoked a pack a week for 14 years, from the age of about 36 to 50.
The Applicant’s active smoking history
The criticality of which of the active smoking histories is the correct one is highlighted by Professor Young’s evidence, particularly his second report (see [40] above), and the

cross-examination of the other expert witnesses. Professor Musk was cross-examined as follows:
COUNSEL:No, okay. And you provided a second report, 5 July 2018 which has been referred to and if I could take you to that, the second sentence which starts;
I understand that his active smoking issue was only two to three 25 cigarettes a day
Now, in both of those report, the first one, the one of 5 July, you’ve qualified 30 the smoking history by use of the qualifier “only” and I want to ask in that regard is that because it’s unusual for a person with that history to have developed chronic obstructive airways disease?
PROFESSOR MUSK: Yes.
…
COUNSEL:Now but I’m interested in the sentence and your reasoning that;
It is a much lesser amount of exposure two pack years than would 10 usually result in the development of COPD.
Could you explain that?
PROFESSOR MUSK: Well, most people would - who develop COPD have smoked at least a packet a day for 10 - 15 - 20 - 30 years and his two pack years is much less than that.
COUNSEL:And that makes it unusual for him to develop that?
PROFESSOR MUSK: Yes.
Counsel then took Professor Musk to Professor Young’s report of 20 September 2017.
COUNSEL:In that report of Dr Young he states that;
It is my opinion that Mr Kingshott’s severe COPD with predominant emphysema would have been present prior to his employment with Shell Australia in 2004.
He goes on to say;
COPD and emphysema take decades to develop and tend to be progressive despite cessation of smoking and become more symptomatic with time due to the lung function that has been lost while the person has been actively smoking.
COUNSEL:Now, I have read out to you Dr Young’s opinions - just those opinions that I have read out to you, do you agree with those opinions?
PROFESSOR MUSK: Yes, fundamentally, yes.
COUNSEL:Yes, okay. Now, a moment ago you said that it was unusual for Mr Kingshott to have developed COPD with emphysema, having a smoking history of two pack years. Now, I don’t know whether you are aware, but I want to suggest to you that there is an alternative substantive smoking history for Mr Kingshott. On that smoking history Mr Kingshott smoked approximately 30 to 40 pack years. Now, I want you to assume that is correct for the moment, so I don’t ask you to judge that at all, I just want you to assume that Mr Kingshott had a 30 to 40 year pack history of active cigarette smoking, and my question - my first question there is that that history of that extent - the 30 to 40 pack year history, that would readily explain the development of Mr Kingshott’s COPD and emphysema, wouldn’t it?
PROFESSOR MUSK: Sure.
COUNSEL:And so whereas the active history that you relied on, because you were told it, a two pack year history, is an unusual result for Mr Kingshott to have developed the COPD with emphysema that he has developed, on the alternative pack or smoking history, it’s not unusual at all, it’s what you would expect?
PROFESSOR MUSK: Well, not necessarily expect it because they don’t all get it, but it’s much more consistent with what we usually see.
COUNSEL:So a 30 to 40 pack year history would be sufficient to cause the development of Mr Kingshott’s COPD?
PROFESSOR MUSK: Yes.
COUNSEL:And emphysema?
PROFESSOR MUSK: Yes.
COUNSEL:Would you agree that a 30 to 40 pack year history is the simplest and most 30 obvious explanation for him developing COPD and emphysema?
PROFESSOR MUSK: Yes. COPD includes emphysema by definition.
Counsel then asked Professor Musk about his comments about the Applicant’s apparent sensitivity to tobacco smoke based on an assumption of a two pack year active smoking history.[32]
[32] Transcript at 35-41.
COUNSEL:And when you say this sensitivity to the effects of tobacco smoke, am I right in saying that a two pack year history doesn’t obviously explain the development of Mr Kingshott’s COPD?
PROFESSOR MUSK: That’s right.
COUNSEL:You might expect a conclusion of a person with that active smoking history developing COPD of the level that Mr Kingshott has if he was Alpha 1 antitrypsin deficient, wouldn’t you?
PROFESSOR MUSK: Yes. But his Alpha 1 antitrypsin level was normal.
…
COUNSEL:Now, Professor Young, he provided an opinion that, in effect, the most common cause of emphysema is active cigarette smoking. You’ve agreed with that already?
PROFESSOR MUSK: Yes.
COUNSEL:And you [sic] said in his opinion, “I would normally expect a heavier active smoking history than Mr Kingshott supplied to cause the degree of emphysema demonstrated on his radiology and spirometry?
PROFESSOR MUSK: Yes.
COUNSEL:Is that an opinion that you would accept as well?
PROFESSOR MUSK: Yes.
…
COUNSEL:That’s not much of a basis I would suggest to you, to determine that environmental tobacco smoke actually played a part in Mr Kingshott’s disease process, is it?
PROFESSOR MUSK: Well, I was just trying to fit in the history and the results of his breathing tests with the exposure that he’d had and, as I said, that was a - I didn’t identify any predisposition to emphysema because his Alpha 1 antitrypsin level was normal and he didn’t have a history to suggest asthma.
COUNSEL:So you needed to find an explanation for his severe emphysema?
PROFESSOR MUSK: I was looking for an explanation for it.
COUNSEL:Yes, and because he had given you an active history which was of a light smoker, two pack years, that couldn’t be the explanation. Is this the right reasoning? And therefore you needed to look for something else and the something else was that he had had some exposure to environmental tobacco smoke?
PROFESSOR MUSK: Yes.
COUNSEL:But again, if his active smoking was, in fact, that of 30 to 40 pack years, you wouldn’t need to look for that explanation with respect to environmental tobacco smoke, would you?
PROFESSOR MUSK: No.
Dr Claxton was cross-examined on this issue. He was taken to his report dated

10 November 2016:
COUNSEL:Each of those matters in that paragraph were sourced directly from what Mr Kingshott told you, wasn’t it?
DR CLAXTON:    It was directly from the patient giving a history, yes.
…
COUNSEL:The next sentence,
He smoked about 20 cigarettes a day for 40 years.
That’s what Mr Kingshott told you at the time?
DR CLAXTON:    That’s what he would have told me at the time.
COUNSEL:Okay. And in the setting of what you were doing, which was assessing lung disease, I take it you wouldn’t have recorded all those matters unless they were important matters?
DR CLAXTON:    I would have recorded them because certainly for lung disease, smoking is a significant risk factor.
COUNSEL:So that’s why it was important to take a smoking history?
DR CLAXTON:    Yes. Yes.
Dr Claxton was then taken to the Joondalup Sleep and respiratory Centre spirometry report dated 17 December 2016,[33] which he signed:
[33] R5, ST3.
COUNSEL:The information which is reported there, the height, the weight, the BMI, the age, the date and the date of birth, where’s that – where would that be sourced from? Is that what Liana Gathacol obtained at the time?
DR CLAXTON:    So Liana would take the height and weight at the time, so in the lung function lab room we have scales and a (indistinct) to measure height and weight. The – and then calculates the BMI. Name and date of birth would be taken from – confirmed by Liana when she brought the patient in, but the details would also be in the electronic health record that we use.
…
COUNSEL:Okay. Now, I want to ask you about the source of the information which is on that form below that top row?
DR CLAXTON:    Yes.
COUNSEL:It has ‘Tobacco product – cigarette’, it has, ‘Cough: Productive’, ‘Wheeze’ there’s no entry, ‘Years SMK: 30. PKS/day: 1. YRS quit: 25’?
DR CLAXTON:    Yes.
COUNSEL:What’s the source of that information?
DR CLAXTON:    That would have been, again, Liana getting it from the patient directly.
Dr Claxton was then taken to his letter of 28 February 2018 to Dr Du Plessis:[34]
[34] R6.
COUNSEL:My question is, the first sentence says,
He came back earlier today and I think this is related to his worker’s comp claim.
It seems to suggest that he wasn’t seeing you, Mr Kingshott, on that occasion as an ordinary follow-up for treatment, that there was another reason for him seeing you. Is that right?
DR CLAXTON:    So it looks like, yes, he came back because – yes, he wanted to clarify the things about his smoking history and also looking at whether, I guess, the aspect that – well, the impact that his respiratory symptoms were having on his fitness to work.
…
COUNSEL:He was appealing the reason for rejection. And did he recall – did he see that it was important that he tell you that his smoking history was actually different to what you recorded earlier?
DR CLAXTON:    Well, it seems to me that was the main concern he had, was that there was a difference in the recording – the smoking history that we’d recorded and the smoking history that he then was saying at the time.
COUNSEL:When you say ‘at the time’, he’d never given you a smoking history of smoking two to three cigarettes a day for 14 years from the age of 36 until stopping at the age of 50 until then, had he?
DR CLAXTON:    Well, yes, in my first letter we had the – was it 20 cigarettes a day for 30 years or giving up 25 years ago. And this was - - -Yes. This was now two to three cigarettes a day from the age of 14 to the age of 36 - yes, from 36 to 50.
COUNSEL:It might be self-evident, but you can assist the tribunal here. That’s a very different smoking history, isn’t it?
DR CLAXTON:    It is, yes. Yes.
COUNSEL:So the first smoking history that you recorded is a 40 pack year smoking history?
DR CLAXTON:    That would be – yes, 20 a day for 40 years. Yes. He’s now down to, we’re saying, you know, a couple - maybe a two or three pack year history.
COUNSEL:Which is nothing like the level - - -?
DR CLAXTON:    Substantially different.
…
COUNSEL:Okay. Now, I’ll come back to that factor in a moment, but is it fair to say that at this point your use of the phrase,
I do wonder if there is an underlying predisposing factor
in the context of you saying that his smoking history is fairly minimal, is that you were scratching your head at that time to work out how he came to have the level of emphysema and COPD he had, given the new history he’s given you of smoking?
DR CLAXTON:    Yes. Yes.
COUNSEL:Yes, okay. Now, the history that you took originally of around 40 pack years. I want you to assume that that’s accurate. Just make that assumption. I’m not asking you to judge - - -?
DR CLAXTON:    Sure. Yes.
COUNSEL:Just assume it’s accurate. That sort of history of that magnitude, that would readily explain the development of COPD, wouldn’t it?
DR CLAXTON:    Yes. I probably wouldn’t go looking for anything else in that situation.
COUNSEL:Okay. Well – because it would be sufficient to cause Mr Kingshott’s COPD and there would be no need for - - -?
DR CLAXTON:    I think so, yes.
…
COUNSEL:And would you agree that that kind of history is the simplest or most obvious explanation for the development of Mr Kingshott’s COPD condition?
DR CLAXTON:    If he had that smoking history, then yes.
Dr Claxton was then taken to Professor Young’s reports:[35]
[35] Transcript at 44-56.
COUNSEL:Well just in that regard, Professor Young – he stated an opinion which Professor Musk agreed with and I want to get your opinion, your view of it. Now, his opinion, I’ll read it out to you, in one regard was that,
It is my opinion that Mr Kingshott’s severe COPD with predominant emphysema would have been present prior to his employment with Shell in 2004. COPD and emphysema take decades to develop and tend to be progressive, despite cessation of smoking, and become symptomatic with time due to the lung function that has been lost while the person has been actively smoking.
Do you agree with that statement?
DR CLAXTON:    Yes. Generally, yes. COPD is something that progresses over – develops over decades, yes.
…
COUNSEL:Okay. What Professor Young says there is,
Most literature would suggest an average exposure of around 35 pack years to develop COPD.
COUNSEL:What about the proposition that most literature would suggest an average of exposure of around 35 pack years to develop this disease?
DR CLAXTON:    Well, that would be whether to develop COPD or if you develop COPD to this extent…Because most trials looking at COPD, either drug trials or similar, would usually have at least a ten pack year history of smoking.
I think to say to develop COPD 35 pack years is more than I would think. For this degree of COPD, yes, probably. But maybe some milder disease, perhaps less.
COUNSEL:…I want to explore with you. Professor Young says that with the extent of the COPD that the applicant has, you would expect an active smoking history of the sort of smoking history that he told you that he had on the first occasion, in (indistinct)?
DR CLAXTON:    The original – yes. Yes.
…
COUNSEL:…if we go back to the proposition that if he had an active smoking history of approximately 40 years and looking at the severity of his COPD, that would adequately explain his level of symptomatology in terms of breathlessness that he exhibited when you saw him on each occasion, wouldn’t it?
DR CLAXTON:    It would.
COUNSEL:Yes. So those temporary – those periods where he might have had an acute exposure, that wouldn’t cause any permanent aggravation of his COPD if you accept that active smoking history that I put to you?
DR CLAXTON:    That gets tricky because COPD does – again, this is a bit of an evidence-free zone. COPD does progress faster if the person continues to smoke than if the person stops smoking. But again, you know, quantifying any, like, second-hand smoke or air pollution or whatever and the effect that has is very difficult. So ...
COUNSEL:Very difficult?
DR CLAXTON:    It would be very hard to say – and is this depending on – you know, depending on the time frame et cetera, you know, could it have progressed his COPD faster than if he did not work in that environment, having then stopped smoking, I don’t know.

Dr Russell was cross-examined on the different active smoking histories for the Applicant that he had recorded. He was first taken to his report dated 15 February 2018[36] in which he recorded a smoking history for the Applicant as a light smoker for 14 years smoking one packet per week. He was then asked:
[36] A10.
COUNSEL:Now, you’d taken a different history before then from Mr Kingshott about his smoking history, hadn’t you?
DR RUSSELL:    May have done. Let me have a look. Was there a particular date you had in mind or – I’ve got - - -
COUNSEL:Well can I refer you to a date in your clinical notes of 8 March 2017? ---8 March 2017.
DR RUSSELL:    Yes. Yes.
COUSNEL:Now, on that day Mr Kingshott gave you some information, including giving you a smoking history, didn’t he?
DR RUSSELL:    Yes. Yes.
COUNSEL:And on that day he gave you a smoking history of ten to 15 cigarettes per day?
DR RUSSELL:    Ten to 15 per day, yes. Yes.
COUNSEL:Is there any reason why you didn’t mention that in your letter to Mr Mullally of 15 February 2018?
DR RUSSELL:    No, I don’t – it must have been a – I must have questioned him on that in 2015 about that history.
…
COUNSEL:So it’s quite a different history, isn’t it?
DR RUSSELL:    Yes. It is a bit.
COUNSEL:Well it’s not a bit, it’s a very different history, isn’t it?
DR RUSSELL:    I’m not certain – I’m trying to find the – I guess at the time he gave me a different history of his smoking.
COUNSEL:Well, it’s just that Mr Mullally asked you to prepare a report?
DR RUSSELL:    Yes.
COUNSEL:About Mr Kingshott and is it fair to say that you would have expected, in preparing your report, to review all of your notes before preparing the report?
DR RUSSELL:    Usually I do.
COUNSEL:It seems like you didn’t do it on this occasion, is that fair?
DR RUSSELL:    Yes. I can’t explain why there’s a difference there.
Two things are evident. The first is that the Applicant has provided significantly different smoking histories. The second is that it is critical which of those smoking histories is the correct one.
In its closing submissions the Respondent identifies the relevant evidence against a timeline as follows:[37]
[37] Footnotes omitted and emphasis in original.

Date of version Source of version

26.09.2007
Joondalup City Medical Centre, GP record:

“has a history of severe smoking”.

10.11.2016
Reported to Dr Claxton:

“He gave up smoking 25 years ago. He smoked about 20 cigarettes a day for 40 years.”

7.12.2016
Spirometry scientist Liana Gathercole:

“Tbco Prod: Cigarette. Yrs Smk: 30.0 Pks/Day: 1.0. Yrs Quit: 25.0.”

22.02.2017 The Applicant lodged his claim for unfair dismissal in the Fair Work Commission dated 22 February 2017.

8.03.2017
GP record (Dr Russell):

“Trying to get to Fair Work Commission, re exposure to tobacco smoke. Recently diagnosed with COPD by Claxton. Failed a AMSA medical. Worked from 2007-2016 as a catering assistant on LNG vessel Northwest Sanderling Recently diagnosed with advanced emphysema and has been unable to complete the necessary safety certificate to board the vessel Worked total of 1708 days on the vessel Gave up smoking 25 years ago, 10-15 per day. He was exposed to passive tobacco smoke on the vessel via air-conditioning and he claims this is the cause of his emphysema.”

27.03.2017 The Applicant lodged his claim for compensation under the SRC Act.

20.09.2017
Report of Professor Young:

“Mr Kingshott reports he started to smoke in 1974, around the age of 35, but then stopped altogether in 1989 at the age of 50. He described himself as a light smoker over this time, consuming three to four cigarettes per day.”

04.12.2017
Spirometry scientist Liana Gathercole:

“Tbco Prod: Cigarette. Yrs Smk: 14.0 Pks/Day: 0.3. Yrs Quit: 30.0.”

28.02.2018
Reported to Dr Claxton:

“The clarification about his smoking history is that he says he smoked two or three cigarettes a day for 14 years from the age of 36 until stopping at the age of 50. This is different to what I had in the first letter where he was smoking for about 40 years at 20 a day”.

In this report Dr Claxton stated as background to the Applicant giving the above history to him:

“Philip came back earlier today and I think this is related to his workers claim. It has been rejected and he appealed so is going to a final appeal I think”.

The Respondent submits that the preferred smoking history is that given to Dr Claxton reproduced in his report dated 10 November 2016[38]
and given to the spirometry technician on 7 December 2016,[39] namely that the Applicant smoked 20 cigarettes per day for

40 years. The Tribunal agrees. Not only was that history given independently by the Applicant to both Dr Claxton and to the technician undertaking the spirometry test, but it was also given at a time when the Applicant did not have a clear interest in understating his smoking history. It is significant, in the Tribunal’s assessment, that there is a clear change in the smoking history given by the Applicant after he lodged his claim for unfair dismissal in the Fair Work Commission (22 February 2017) and a matter of weeks before he lodged his claim for compensation under the SRC Act (27 March 2017). As Dr Claxton noted in his report dated 28 February 2018,[40] it was specifically in the context of the rejection of the Applicant’s workers compensation claim that the Applicant made an appointment with

Dr Claxton to have him “clarify”, actually to change, the Applicant’s smoking history from a 40 pack year history to a two pack year history.
[38] R5, ST2.
[39] R5, ST3.
[40] R6.
While the Applicant maintained his lesser smoking history in his evidence, the Tribunal does not accept that evidence. The Tribunal prefers the contemporaneous records which the Tribunal accepts reflect what the Applicant told his treating medicos at a time when he did not have a vested interest in understating his cigarette consumption.
The 30-40 pack year active smoking history is also more consistent with the expert medical evidence in relation to the Applicant’s condition. Professor Young (see [40] above), Professor Musk (see [54] above) and Dr Claxton (see [55] above) all agreed that a 30-40 pack year smoking history explained the severity of the Applicant’s COPD and emphysema much more readily than an extreme sensitivity on the part of the Applicant to ETS exposure on the NW Sanderling.
Exposure to ETS
Assuming a 30-40 pack year smoking history, what, if any, role did any exposure to ETS while working on the NW Sanderling have in the aggravation of the Applicant’s COPD and emphysema? The first issue to consider in that regard is the level of exposure that the Applicant had to ETS.
The Applicant points to the complaints made by the Applicant, the diary entries made by the Applicant and the fact that an Improvement Notice was issued by AMSA.[41] The Tribunal is also mindful of the Applicant’s evidence at the hearing and his witness statement[42] relating to his exposure to ETS while working on the NW Sanderling. At paragraphs 64 to 66 of his statement, the Applicant refers to his breathing being “affected” in 2014. That may well have been the case, however, that does not equate to an aggravation of the Applicant’s COPD caused by exposure to ETS. Professor Young’s evidence (see [39(i)] and [(j)] above), with which Dr Claxton did not disagree (see [55] above), was that exposure to ETS “would not have acted to accelerate or permanently aggravate his underlying COPD/emphysema”. Dr Claxton’s evidence was that “It would be very hard to say – and is this depending on – you know, depending on the time frame et cetera, you know, could it have progressed his COPD faster than if he did not work in that environment, having then stopped smoking, I don’t know”.
[41] Applicant’s responsive submissions para. 32-33.
[42] A2.
Professor Young’s evidence in-chief at the hearing in relation to exposure to ETS being a material contributor to, or a material aggravator of, the Applicant’s COPD and emphysema was (citing an official statement of the American Thoracic Society, approved by the AGS Board of Directors):[43]
PROFESSOR YOUNG:   To my mind, what all that means – first of all, there’s no way that the degree of emphysema Mr Kingshott has is caused by environmental tobacco smoke. I am of the strong opinion that that’s the case, and it is my understanding that that is also the strong opinion of Professor Musk. Now so we both agree that his active smoking caused the emphysema. Now if you say that that was caused by a two pack year smoking history, that that is his emphysema and his COPD, then you have to say he had an extraordinary sensitivity to cigarette smoke, and therefore it is plausible that his environmental tobacco smoke exposure aboard the Sanderling could, if it were more than trivial, could have permanently exacerbated his COPD.
…
COUNSEL:The second sentence. The second sentence which starts, “Again, it is possible that he noted some acute irritation”?
PROFESSOR YOUNG:   That’s right, yes.
COUNSEL:Can you just explain why you put that as a possibility?
PROFESSOR YOUNG:   What I mean – what I mean by that is that I believe if he had quite advanced COPD at the time of his exposure on the Sanderling, then he may well have noticed that environmental tobacco smoke caused cough and chest discomfort, but it would not have lasted past the period of exposure. That’s what I mean by that.
[43] R2, T17/55.
Although the Applicant attacked the weight that could be placed on the reports prepared by Mr Ward and his evidence at the hearing, the methodology utilised in the preparation of

Mr Ward’s reports, as explained in the reports and further explained at the hearing and tested in cross-examination, was unremarkable and appropriate.
The only evidence before the Tribunal which could be said to quantify the level of ETS to which the Applicant may have been exposed are the reports prepared by Mr Ward.

Mr Ward’s report[44] concluded that the transportation of ETS from the areas of concern to areas which would expose the Applicant to ETS was “unlikely”.
[44] R11.
While there was evidence from the Applicant as to the periods for which he says that he was exposed to ETS, that evidence does not establish the level of the exposure. That is not a criticism of the Applicant’s evidence or the way that the Applicant’s case was put,

it is simply a statement of fact. Absent independent or other testing being done at the time it is difficult to see how the Applicant could provide evidence which would establish the level of ETS to which he was exposed. Whatever the level was, however, it was considered to be sufficient to warrant the issuing of an improvement notice and for not insignificant alterations to the vessel to be undertaken. That does not, however, establish that the level of ETS to which the Applicant may have been exposed would have been sufficient to aggravate the Applicant’s COPD and emphysema.
Having accepted that the Applicant in fact had a 30-40 pack year active smoking history, the consensus of the expert medical history is that the Applicant’s active smoking,

not exposure to ETS, was the most likely cause of the level of the Applicant’s COPD and emphysema (see [61] above). More specifically, in relation to whether the Applicant’s exposure to ETS materially aggravated the Applicant’s condition, the Tribunal accepts Professor Young’s comments quoted at [39(i)] and [39(j)] above that “acceptance of active smoking history (a) would adequately explain Mr Kingshott’s severe COPD and that his exposure to environmental tobacco smoke (ETS) on the NW Sanderling could not be considered a significant permanent aggravation to his COPD condition as it would be trivial contribution. It appears that he did not suffer exacerbations requiring hospital attendance or admission during his ETS exposure” (see [40] above).
The evidence of Professor Musk and Dr Claxton was not inconsistent with the conclusions drawn by Professor Young, if one were to accept an active smoking history of 30-40 pack years, which the Tribunal does accept.
The Tribunal, accordingly, cannot find that the Applicant’s COPD and emphysema were ailments contributed to, or aggravated, to a material degree by exposure to ETS while the Applicant was employed by the Respondent (Ryan and Swire Pacific Ship Management (Australia) Pty Ltd,[45] Comcare v Canute,[46] and Comcare v Sahu-Khan[47]). The Applicant’s claim must therefore fail.
[45] [2020] AATA 2049.
[46] [2005] FCAFC 262.
[47] [2007] FCA 15.
Having so determined it is not necessary for the Tribunal to determine whether the Applicant has suffered any incapacity for work or impairment.
DECISION
The decision made on 6 October 2017 which affirmed a deemed determination which disallowed the Applicant’s claim for compensation lodged on 10 March 2017 under the SRC Act is affirmed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy Presidenty Boyle

....................................[SGD].................................
Associate
Dated: 1 December 2020

Date(s) of hearing: 29-30 September 2020

Date final submissions received: 4 November 2020

Counsel for the Applicant: Mr P Mullally

Solicitors for the Applicant: Workclaims Australia

Counsel for the Respondent: Mr A Harding

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of version	Source of version
26.09.2007	Joondalup City Medical Centre, GP record: “has a history of severe smoking”.
10.11.2016	Reported to Dr Claxton: “He gave up smoking 25 years ago. He smoked about 20 cigarettes a day for 40 years.”
7.12.2016	Spirometry scientist Liana Gathercole: “Tbco Prod: Cigarette. Yrs Smk: 30.0 Pks/Day: 1.0. Yrs Quit: 25.0.”
22.02.2017	The Applicant lodged his claim for unfair dismissal in the Fair Work Commission dated 22 February 2017.
8.03.2017	GP record (Dr Russell): “Trying to get to Fair Work Commission, re exposure to tobacco smoke. Recently diagnosed with COPD by Claxton. Failed a AMSA medical. Worked from 2007-2016 as a catering assistant on LNG vessel Northwest Sanderling Recently diagnosed with advanced emphysema and has been unable to complete the necessary safety certificate to board the vessel Worked total of 1708 days on the vessel Gave up smoking 25 years ago, 10-15 per day. He was exposed to passive tobacco smoke on the vessel via air-conditioning and he claims this is the cause of his emphysema.”
27.03.2017	The Applicant lodged his claim for compensation under the SRC Act.
20.09.2017	Report of Professor Young: “Mr Kingshott reports he started to smoke in 1974, around the age of 35, but then stopped altogether in 1989 at the age of 50. He described himself as a light smoker over this time, consuming three to four cigarettes per day.”
04.12.2017	Spirometry scientist Liana Gathercole: “Tbco Prod: Cigarette. Yrs Smk: 14.0 Pks/Day: 0.3. Yrs Quit: 30.0.”
28.02.2018	Reported to Dr Claxton: “The clarification about his smoking history is that he says he smoked two or three cigarettes a day for 14 years from the age of 36 until stopping at the age of 50. This is different to what I had in the first letter where he was smoking for about 40 years at 20 a day”. In this report Dr Claxton stated as background to the Applicant giving the above history to him: “Philip came back earlier today and I think this is related to his workers claim. It has been rejected and he appealed so is going to a final appeal I think”.

Date(s) of hearing:	29-30 September 2020
Date final submissions received:	4 November 2020
Counsel for the Applicant:	Mr P Mullally
Solicitors for the Applicant:	Workclaims Australia
Counsel for the Respondent:	Mr A Harding
Solicitors for the Respondent:	Sparke Helmore Lawyers