Scanes and Comcare (Compensation)

Scanes and Comcare (Compensation) [2019] AATA 5542 (23 December 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6932
Re:Warren Scanes
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:23 December 2019
Place:Canberra

The decision under review is affirmed.
........................................................................
Mr S. Webb, Member
WORKERS’ COMPENSATION – compensation claimed in respect of injury – emphysema – ailment of gradual onset – ‘disease’ – applicable causal test - onset of ailment not established by evidence – construction of transitional provisions – present legislation applies – evaluation of contributory causes – smoking – issues of credit and reliability – employment contribution to smoking habit not established – plausible theory not sufficient – decision affirmed
Acts Interpretation Act 1901 s 7
Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 14, 67
Safety, Rehabilitation and Other Legislation Amendment Act 2007
Esber v Commonwealth [1992] HCA 20
Fox v Percy [2003] HCA 22
Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560
Mathieson v Burton [1971] HCA 4
Maxwell v Murphy [1957] HCA 7
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Military Rehabilitation and Compensation Commission v Wall [2005] FCAFC 127
Smith v Comcare [2013] FCAFC 65
Wright v Hale (1860) 6 H & N 227; [1860] EngR 1191
REASONS FOR DECISION
Mr S. Webb, Member
23 December 2019

For many years, Warren Scanes was employed as a police officer. He smoked cigarettes. He suffered a myocardial infarction, stopped smoking and retired from police work. Some years later, he was diagnosed with emphysema and claimed compensation. Comcare determined to reject the claim by primary determination and on reconsideration. Mr Scanes applied to the Tribunal for review.
FACTS
The following facts include uncontroversial matters set out in Mr Scanes’ statements which appear in Tribunal Documents filed by Comcare at T5 and Exhibit 1.
Mr Scanes was born in January 1949.
In 1964, after leaving the Belmore Boys High School at the age of 16, Mr Scanes worked for the National Bank of Australasia (the National Bank).
At school, Mr Scanes undertook athletics and he played rugby league and cricket. He represented his school at State level in athletics and played rugby league at the district level, coached by Warren Ryan. He continued to play rugby league and cricket during his employment by the National Bank.
In 1970, he left the National Bank and applied for a position with the ACT Police. While awaiting the outcome of that application, he worked in a hotel in Sydney as a cellarman.
On 10 May 1971, Mr Scanes commenced employment with the ACT Police. He underwent a 20-week recruitment training program at the Woden Police Station. On completion of this program, he was seconded to the City Police Station for on the job training. On graduating, he remained at this Police Station. Subsequently, when the Australian Federal Police (AFP) assumed responsibility for ACT policing, Mr Scanes became an employee of the AFP.
In December 1984, Mr Scanes experienced chest pain and breathlessness while sitting at his desk.[1]
[1] Exhibit 5.
On 14 July 1985, Mr Scanes experienced further chest pain and breathless while driving.[2] He was admitted to the Woden Valley Hospital. A registered nurse, M Smith, recorded in a Woden Valley Hospital admission note that Mr Scanes experienced dyspnoea (difficulty breathing) when walking up stairs and smokers cough –
RESPIRATORY FUNCTIONS (describe smoking habits, use of O2 or modi-halers, shortness of breath):
40-50 cigarettes/day (has smoked since age 13)
…[3]
[2] Ibid.
[3] Exhibit 4.
In a letter of referral to Dr French at the Cardiac Diagnostic Centre on 19 July 1985, Dr Craigie, Mr Scanes’ treating general practitioner at that time, reported that he was not willing to label Mr Scanes’ ‘chest pain and breathlessness’ in 1984 and 1985 as ‘Tietze syndrome or whatever.’[4]
[4] Exhibit 5.
On 22 July 1985, Dr Wilson, an endocrinologist, reported a history of ‘retrosternal chest pain which was associated with shortness of breath’ and high blood pressure. The doctor found no evidence of myocardial damage and noted that Mr Scanes was ‘over-weight and that he smokes 40 cigarettes a day’.[5]
[5] Exhibit 6.
On 4 March 1993, Mr Scanes was admitted to the Woden Valley Hospital complaining of symptoms including chest pain and shortness of breath.[6]
[6] Exhibit 8.
On 20 April 1993, Dr Coles reported –
[Mr Scanes] had an acute inferior infarct and subsequent coronary arteriography showed a total occlusion of his right coronary artery. He claims that this was due to stress…
In discussing this, it seems as though the stress may be working through his cigarette smoking. He says that when he is at work he smokes up to 60 cigarettes a day, but when he is at home he smokes only about 15 cigarettes in a day.
…
In summary, this man’s chest pain presented at work where he claims he is under stress. He supports this claim by giving evidence of his cigarette consumption when at work compared to at home.[7]
[7] Section 37 Tribunal Document (T) 5, folio 20.
On 4 May 1993, Comcare made a reconsideration decision to set aside its 29 April 1993 determination disallowing Mr Scanes’ 6 March 1993 claim for heart attack, work related stress.[8] In so doing, Comcare accepted liability for ‘aggravation of a disease namely coronary artery disease and resultant myocardial infarction’[9]. It appears that this decision was based, at least in part, on a report by Dr Coles that is not presently in evidence, in which the doctor is reported to have said –
Stress by itself has not been shown to definitely cause coronary artery disease. However, I was trying to suggest that in Mr Scanes’ case his reaction to the stress of work was to smoke. As his coronary artery disease seemed to be due to his smoking this seemed to form a link with the conditions of his employment.
[8] Exhibit 13.
[9] Ibid, page 26.
On 5 May 1993 Dr Craigie reported –
At this stage [in December 1984] he was overweight, smoked 40 cigarettes a day, I believe a manifestation of his stress at work, and his blood pressure was noted 210/110 of mercury… He continued to smoke and drink due to the pressures of work, and treatment for his hypertension.
…
It would be reasonable to assume that he had developed a Myocardial Infarction in the course of his duties. There had been a history dating back to 1984 of stress related illness which he hoped to manage with his cigarette and alcohol intake but on this occasion he went all the way and developed the Myocardial Infarction.[10]
[10] Ibid, page 24.
On 24 May 1994, Professor O’Rourke, a cardiologist, reported –
Mr Scanes suggested that a “stress factor” was responsible for his hypertension. The stress factor entailed stress at work and working long hours…
Mr Scanes had been a heavy smoker. He started smoking at the age of 16 and increased subsequently. He related smoking to peer pressure and drinking, “the more you drink, the more you smoke”. He smoked while drinking after work with his friends and while working. Smoking progressively increased up to 100 cigarettes per day in 1984 at the time he first took ill. At home he said smoking was kept to a minimum and he “never drank at home”, except on social occasions.
…
Mr Scanes was at considerable pains to relate his work to stress and cigarette smoking, and his heart attack with admission to Woden Valley Hospital to the stresses of work…
…
… Mr Scanes pressed the relationship between stress and cigarette smoking throughout his career as a Police officer. This may have been the case, but it appears that smoking was also related to peer pressure and to drinking with friends after work and before returning home…
…
…In this instance I understand that Mr Scanes wishes to link stress with smoking. Many people handle stress without smoking. Some wish to smoke while under stress and some wish to smoke while relaxing. I did question Mr Scanes specifically about this matter. He referred to a “craving” for cigarettes. He associated smoking with drinking and peer pressure. He smoked at work as well as when drinking. At home he was able to keep smoking to a minimum, he also stated that he never drank at home, except under social circumstances.[11]
[11] Exhibit 9, pages 1, 2, 4 and 5.
On 6 June 1995, Dr Stevenson, a consultant physician, reported –
Mr Scanes said his work in general duties was emotionally highly stressful. He said he would work on occasions up to sixteen hours a day and he tended to smoke a lot when he was on duty, often in excess of sixty cigarettes a day. He said he would also have a drink, usually in the company of other policeman [sic] off duty and he was a binge drinker rather than a chronic drinker and would drink on occasions up to 15 middies in a day. He said at weekends and on holidays when he wasn’t working and he felt under stress he smoked little and drank little.
…
He gives a history of very high cigarette consumption, especially on occasions of stress predominantly related to his work.
It has been accepted that his coronary artery disease was aggravated by cigarette smoking which itself was predominantly due to work-related stress. In consequence it has been concluded, I would reasonably agree, that through this indirect mechanism his work did contribute significantly to his myocardial infarction.[12]
[12] Exhibit 13, pages 2 and 5.
On 30 June 1995, Mr Scanes’ AFP employment came to an end.
In a clinical note on 15 July 2011, Dr Shehovych, a general practitioner, refers to ‘chest tightness for one week lasting a couple of hours’.[13] On 28 July 2011, the doctor noted –
CXR – Past 100 per day smoker for 35 years
occasional SOB
Any lung pathology?[14]
And, on 10 August 2011, noted CXR clear.[15]
[13] Exhibit 10.
[14] Ibid.
[15] Ibid.
On 11 August 2017, Dr Cranney, a radiologist, reported on a CT scan of Mr Scanes’ chest taken that day –
The lungs are hyperinflated. There are cystic spaces in both lungs consistent with emphysema. There is minor scarring in both lower lobes. No lung mass or pleural effusion is seen. The central airways appear normal.[16]
[16] T5, folio 22.
On 24 October 2017, Mr Scanes was diagnosed with emphysema by Dr Buczynski, his treating general practitioner at the time, who reported –
I believe that Mr Scanes heavy smoking was related to significant stress at work while he was working for the AFP. As he states in his claim, 71327/5, cigarette smoking was recognised as a contributing factor to his myocardial infarction, I believe that his cigarette smoking is a major factor causing his chronic airways limitation and emphysema.[17]
[17] Ibid, folio 26.
On 23 January 2018, the diagnosis was confirmed by Dr Voon, a respiratory physician, who reported ‘predominantly upper lobe emphysematous changes’.[18] On 28 February 2018, Dr Voon reported –
I understand that his claim has been rejected because “there is no satisfactory medical evidence supporting that Warren’s cigarette smoking during his time in the Australian Police is the case [sic] of his emphysema”.
I strongly disagree with this statement. Mr Scane [sic] has moderately severe chronic obstructive pulmonary disease with an approximately 80-pack year history of smoking. This is the cause of his emphysema. The most common cause of emphysema in Australia is cigarette smoking.
I agree with Dr Coles’ report from 1993 which also concluded that the amount of cigarette smoke is the sole contributing factor to his emphysema as well as his myocardial infarction.[19]
[18] Exhibit 12, page 1.
[19] T5, folio 28.
On 20 June 2018, Mr Scanes claimed compensation for emphysema.[20]
[20] T4.
On 17 August 2018, Comcare determined to reject the claim.[21]
[21] T8.
On 5 October 2018, Comcare reconsidered and affirmed the rejection decision.[22]
[22] T2.
Mr Scanes applied for review of this reconsideration decision.[23]
[23] T1.
AGREED FACTS
At hearing, I was informed by counsel for each party that the following matters are not in dispute –
(a)Mr Scanes suffers from emphysema.
(b)The emphysema was caused by ingestion of cigarette smoke.
(c)Cigarette smoke contains nicotine, which is highly addictive.
(d)Smoking cigarettes is an efficient means of ingesting nicotine.
(e)In general terms, stress may be causally linked to smoking.
While these propositions are not presently controversial, and it can readily be accepted that Mr Scanes was diagnosed with smoking-related emphysema in 2017, there is very scant material before the Tribunal dealing with the precise causal relationship between emphysema and cigarette smoking. This is not to suggest there is any controversy about such a causal relationship, rather it is to note the absence of detailed evidence of the precise disease processes and physiological changes involved in the onset and progress of emphysema, and the role or effects of cigarette smoke (or nicotine) in those processes and changes. The parties were given opportunity to adduce evidence of this kind, but declined to do so.
Furthermore, there is no detailed or epidemiological evidence before the Tribunal of the causal link between stress and smoking cigarettes. The parties are in agreement that this is a matter of general knowledge in the public domain and declined the opportunity to put on evidence addressing this point.
That being so, noting the matters to which the parties have agreed, I will proceed on the materials and evidence placed before the Tribunal.
ISSUES
Both parties ran their respective cases, expressly, on the basis that Mr Scanes’ emphysema is to be dealt with under the disease provisions of the Safety, Rehabilitation and Compensation Act 1988 (the Act) as a disease of gradual onset. Nevertheless, in a case such as this, the Tribunal is bound by the principles and the proper approach to such matters set out by the plurality in Military Rehabilitation and Compensation Commission v May,[24] albeit that the High Court was dealing with the Act as it stood prior to amendments which came into effect on 13 April 2007.
[24] [2016] HCA 19 at [44]-[53].
It is on the back of those amendments that an issue arose concerning the correct causal test for a ‘disease’ that is to be applied in the circumstances of this case.
Thus, in order to decide if Mr Scanes is entitled to compensation in respect of emphysema, the following questions arise –
(a)Is Mr Scanes’ emphysema an ‘ailment’ for the purposes of the Act?
(b)With regard to the amending provisions of the Act that came into force on 13 April 2007, what is the applicable causal test for a ‘disease’ in the particular circumstances of this case?
(c)Is the ailment a ‘disease’ causally contributed to, to the requisite degree by Mr Scanes’ Australian Federal Police (AFP) (and previously the ACT Police) employment?
(d)Is the emphysema an ‘injury’ resulting in impairment or incapacity for work for which Comcare is liable to pay compensation?
There is also an issue relating to Mr Scanes’ credibility as a witness and the reliability of his evidence on key points. In particular, there is a controversy about Mr Scanes’ smoking history, including when he commenced smoking and the causal role of his employment. I will deal with this issue first.
CREDIT AND SMOKING HISTORY
Mr Scanes gave evidence that he had two puffs of a cigarette at the age of 13, but this made him cough and he did not take up smoking then or at any time before commencing employment with the ACT Police in 1971. He explained that he was an avid sportsman at school and the sports master, Ryan Warren, would ban smokers from participating – he referred to smoking as ‘sportsman’s peril’.[25]
[25] Exhibit 1, at [7].
Mr Scanes gave evidence that the National Bank did not permit employees to smoke in public areas, but people smoked in the lunch room and other areas that were out of public view. He referred to full ashtrays but maintained that he did not smoke in that employment. He also maintained that he did not smoke in employment as a cellarman at a Sydney hotel.
Mr Scanes gave sworn evidence that he started smoking in or about 1972 and, initially, he smoked 2 or 3 cigarettes per shift. He attributes this to extreme stress.[26] Thereafter, he asserted that his smoking increased to more than 80 cigarettes per day within 4 years, by 1975 or 1976. He stated that ‘even as my addiction escalated on my days off away from the stress of my employment, I was able to limit my cigarette intake to approximately eight-ten a day’.[27]
[26] Ibid, at [15].
[27] Ibid.
Under cross-examination, Mr Scanes accepted that the record of him smoking 40 to 50 cigarettes per day in 14 July 1985 was probably correct, although on some days he would smoke 100 per day and he may have under-reported the extent of his smoking for reasons of embarrassment. When asked about the 1985 report of Dr Wilson that he smoked 40 cigarettes per day, Mr Scanes said he could not comment as he did not recall telling the doctor this. He explained that he smoked between 3 and 100 cigarettes per day and he could not recall how many cigarettes he smoked on a particular day. Mr Scanes cavilled with the 1993 Woden Valley Hospital admission record of a smoking history of 40 to 50 cigarettes from the age of 13, but he thought it possible he might have smoked 40 to 50 cigarettes per day at that time, prior to admission. With regard to Professor O’Rourke’s 1994 report of his smoking history, Mr Scanes rejected the proposition he started smoking at the age of 16 but in his evidence agreed that he would have smoked more than 100 cigarettes per day on some days at work in 1984. When asked about the 28 July 2011 clinical note of Dr Shehovych of him smoking 100 cigarettes per day for 35 years, Mr Scanes explained that his memory was that he smoked 100 cigarettes per day, but he did not recall telling the doctor this.
Mr Scanes attributes his smoking to stress arising from his duties and asserts that smoking at work, in cars, in interview rooms and cells, in work areas, meeting rooms and lunch rooms, was commonplace and prevalent – it was used as a means of managing stress, and it was condoned, even encouraged, by superior officers. Mr Scanes’ evidence is that it was for these reasons he smoked heavily at work. He explained that he did not smoke as much outside work as his wife did not allow him to smoke in the house and he did not need to do so once removed from the stresses of his work.
Mr Scanes says he understood that smoking was bad for his health and he tried to stop smoking on four or five occasions, but he was unable to do so for more than 2 weeks. He explained that he smoked until 1993, when he suffered a myocardial infarction and experienced a significant fear of dying. He maintains that he has not smoked since that occurrence, although he was exposed to cigarette smoke of others in the course of his employment until retirement on 30 June 1995.
Comcare asserts that Mr Scanes started smoking cigarettes and formed a smoking habit well before he commenced employment with the ACT Police. In support of this contention, Comcare relies on the contemporaneous medical records that suggest Mr Scanes started smoking before he commenced employment with ACT Police.
In order to resolve this issue, it is necessary to weigh Mr Scanes’ evidence with the documentary materials.
The 14 July 1985 Woden Valley Hospital admission record of Mr Scanes smoking 40-50 cigarettes/day is consistent with the 5 May 1993 report of Dr Craigie that Mr Scanes smoked 40 cigarettes a day as of December 1984.[28]
[28] Exhibit 13, page 24.
The Hospital admission record also records that Mr Scanes ‘has smoked since age 13’. [29]This information can only have come from Mr Scanes. In response to this evidence, Mr Scanes asserts that he may have referred to having his first cigarette at the age of 13, in 1962.
[29] Exhibit 4.

The 4 March 1993 Woden Valley Hospital admission note records him having a 30 year smoking history – 40/day x 30 years. If this record is correct, Mr Scanes would have commenced smoking in 1963 at the age of 14. Once again, this evidence can only have come from Mr Scanes.
The record of Mr Scanes smoking 40 cigarettes per day is not consistent with subsequent reports of Dr Coles and Professor O’Rourke.
On Dr Coles’ 20 April 1993 report, Mr Scanes gave a history that ‘when he is at work he smokes up to 60 cigarettes a day, but when he is at home he smokes only about 15 cigarettes in a day.’[30]
[30] T5, folio 20.
On Professor O’Rourke’s 15 March 1994 report, Mr Scanes’ smoking commenced at the age of 16 and progressively increased to 100 cigarettes per day in 1984. Professor O’Rourke was not called to give evidence, so it is not possible to known if this information was given by Mr Scanes, but that is strongly inferred.
As can be seen, the information Mr Scanes gave Dr Coles and Professor O’Rourke about the extent of his smoking is very much greater than the information he provided on admission to hospital and to Dr Wilson. It is also not consistent with the report of Dr Craigie that Mr Scanes smoked 40 cigarettes per day in 1984. Dr Craigie had been Mr Scanes treating general practitioner for approximately 20 years at the time. I cannot determine with certainty which of these various accounts of Mr Scanes smoking history is correct. I note however, that the information recorded by Dr Coles and Professor O’Rourke was in the context of Mr Scanes’ compensation claim in respect of his myocardial infarction. Mr Scanes pressed this claim on the basis that his myocardial infarction was caused by work-related stress and stress-related smoking. Whether the possibility of secondary gain in this context may have coloured the content of Mr Scanes account I cannot say, but no such possibility arises in the context of the information he gave the Woden Valley Hospital in 1985 and 1993, on admission, and his treating doctors at the time. Mr Scanes’ evidence that he feared for his life at those times and he may have said anything, or what he said may have been misrecorded, is not persuasive.
On balance, the evidence of Mr Scanes’ smoking history contained in the Woden Valley Hospital admission notes, the report of Dr Wilson and the report of Dr Craigie carry more weight than the smoking history reported by Dr Coles and Professor O’Rourke.
I note, furthermore, if the history reported by Professor O’Rourke is correct, Mr Scanes would have commenced smoking in 1965, six years prior to him commencing employment with the ACT Police. This report and the Woden Valley Hospital admission notes do not support Mr Scanes’ uncorroborated evidence that he did not commence smoking until 1972, after he commenced employment with the ACT Police.
I note the clinical note of Dr Shehovych on 28 July 2011 – Past 100 per day smoker for 35 years - is ambiguous. On the one hand it might refer to a 35 year smoking history before 2011 (which would mean he commenced smoking in 1976). The difficulty with this is that Mr Scanes stopped smoking in 1993 and the 35 year smoking history would include 18 years when Mr Scanes did not smoke. On the other hand, it may be construed to mean Mr Scanes had a 35 year history of smoking prior to 1993, which would mean he commenced smoking in 1958, when he was 9 years old. Mr Scanes gave evidence that he did not recall what he told Dr Shehovych about his smoking history. To my mind, this note, as with so many clinical notes must be approached with some caution – it is a note produced for a different purpose than legal proceedings. Nevertheless, construed broadly, it lends some support, weakly and without precision, to the Woden Valley Hospital evidence of Mr Scanes smoking from a young age.
On 28 January 2018, Dr Voon, a respiratory physician, reported Mr Scanes ‘has an approximately 80-pack year smoking history’.[31] How the doctor arrived at this history is not clear – he was not called to give evidence. It may be inferred that Dr Voon’s assessment was made on the basis of information provided by Mr Scanes. Even if this is not correct, the quantification of smoking history using pack years is commonly applied and readily understood - the standard measure of one pack year is smoking one pack of 20 cigarettes per day for one year. The precise measure Dr Voon used is not known. If the standard measure is applied on the basis of Mr Scanes’ assertion that he commenced smoking in or about 1972 and ceased in 1993, an 80 pack year history would equate to him smoking approximately 80 cigarettes per day over this period; whereas if the standard measure is applied on the basis that Mr Scanes started smoking in 1963 (at the age of 14), it would equate to him smoking approximately 54 cigarettes per day. While this may be argued to lend support to aspects of Mr Scanes’ oral evidence, it is likely that Dr Voon relied on information provided to him by Mr Scanes about his smoking history. Whether or not this is correct, Dr Voon’s report of an 80 pack year smoking history is not consistent with the level of cigarette consumption recorded by the Woden Valley Hospital, Dr Wilson and Dr Craigie to which I have referred.
[31] Exhibit 12, page 1.
When questioned about the inconsistency between his evidence of not smoking before commencing employment with the ACT Police in 1971 or 1972 and the contemporaneous evidence of the Woden Valley Hospital, Dr Wilson and Dr Craigie, Mr Scanes questioned the accuracy of these notes and reports. He theorised that he might have been asked when he first smoked or when he had his first cigarette, or that he may have said he had his first cigarette at the age of 13, which had then been misconstrued to mean he commenced smoking, habitually, at that time. Mr Scanes admitted he cannot remember what questions were put to him in the circumstances relating to these contemporaneous records.
Considering all this, there are clear inconsistencies in Mr Scanes account of his smoking history over time. These cannot be explained away in the manner he attempted when giving evidence. Even though, as Counsel for Mr Scanes, Leo Grey, argued, clinical notes must be treated with some caution on controversial points of historical detail, and accepting that notes such as those were produced for purposes other than legal inquiry years later. Nevertheless, the notes form part of a medical assessment in which accuracy is important, especially in the context of hospital admission involving potentially serious cardiac or respiratory symptoms. In that context, the content of such notes should not be too readily discounted.
Mr Scanes asserted that in March 1993 he thought he might die and his mind was not focused on his smoking history and, for this reason what is noted should be discounted as inaccurate. There is another way of looking at this: with his mind distracted by existential fears relating to a cardiac event, one might expect his responses to be truthful and accurate in order to facilitate appropriate treatment, without ulterior motive. Furthermore, when one considers the compensation context in which the reports of Dr Coles and Professor O’Rourke were made and the basis on which Mr Scanes claim was made, there was a clear emphasis on work-related stress and allegedly related high levels of cigarette consumption. In that context, the prospect of obtaining compensation might tempt a vulnerable person to attempt to bolster their claim by embellishing or exaggerating historical details. There is no evidence that Mr Scanes did so, and I make no such finding. Nevertheless, as I have said, there are questions about the reliability of the cigarette consumption reported by Dr Coles and Professor O’Rourke.
Having observed Mr Scanes give his evidence, I think it is appropriate to make three observations. Firstly, while Mr Scanes asserted crystal clear recollection of certain events in support of his claim, such as when he first smoked a cigarette, he had difficulty recalling the precise details of controversial events that occurred many years ago that are referred to in contemporaneous records. This is entirely understandable given the passage of time and the fallibility of memory. Nonetheless, it raises questions about the reliability of Mr Scanes’ evidence drawn from memory.
Secondly, it appears to me that his evidence was coloured by narrative, albeit perhaps informed by belief. On this point, it is apposite to recall what Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor[32] at [22] –
This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
[32] [2013] EWHC 3560.
Thirdly, in parts, the manner of his evidence was self-serving and circumspect: cavilling with some questions put to him, theorising and speculating in responding to others, and appearing less than frank or forthright in some of his answers. In my view, his evidence was tainted by inconsistency, over the extent and timing of his smoking history for example. Of course, these are simply impressions formed by observation that carry little weight when all of the evidence is considered – I note the remarks of the majority regarding principles relevant to such considerations in Fox v Percy[33] and encouraging judges to ‘limit reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events’.[34]
[33] [2003] HCA 22.
[34] [2003] HCA 22, per Gleeson CJ, Gummow and Kirby JJ, at [30]-[31].
While it may be that Mr Scanes honestly believes the evidence he gave, and that the answers he gave when cross-examined in particular are true (despite the apparent inconsistencies), as an ex-police officer, he surely knows the significance of giving sworn evidence. Nevertheless, importantly, considering his evidence against the documentary record, his attempts to explain away or question the accuracy of inconvenient contemporaneous records are less than compelling. While it might be accepted that one nurse or doctor might make an error in recording the smoking history he gave, particularly the period over which he smoked, it is difficult to accept that three such people would make the same error in separate circumstances, albeit with some variation. This tests credulity and credit.
On balance, I do not propose to discount Mr Scanes’ evidence generally. On controversial points, however, where his evidence lacks corroboration, I have given greater weight to more contemporaneous documentary records.
With regard to evidence of when Mr Scanes commenced smoking cigarettes, there is little to go on. On the one hand there is Mr Scanes sworn evidence that he did not commence smoking before his ACT Police employment, and on the other hand there are the documentary records to which I have referred - the Woden Hospital admission notes from 1985 and 1993; the history reported by Professor O’Rourke of Mr Scanes smoking from the age of 16; Dr Shehovych’s ambiguous 2011 clinical note of a 35 year smoking history; and Dr Voon’s report of an 80 pack year smoking history. These materials point to Mr Scanes smoking from a young age, between 13 and 16 years of age, prior to the commencement of his employment with ACT Police in 1971. This is not consistent with Mr Scanes’ uncorroborated but sworn evidence. It is possible that he tried a single cigarette when he was 13 years old and then did not smoke at all for several years. It is possible that information he provided was misconstrued or misrecorded. It was open for Mr Scanes to adduce evidence or to call witnesses to corroborate his account.
In support of his evidence of that he did not smoke before his AFP employment, Mr Scanes relied heavily on his athletic and sporting history, and rules allegedly imposed against smoking by his school sports master and the National Bank, but adduced no corroborating evidence to bolster his account on this point. It may be that his school sports coach adopted a hard-line attitude to smoking, but this does not prove that Mr Scanes did not smoke at the time - he may have smoked outside the sports context or in circumstances outside the purview of his coach. Similarly, the existence of rules precluding smoking in public areas at the National Bank does not prove that Mr Scanes did not smoke in that employment. Either way, these are no more than unsubstantiated possibilities.
On balance, the documentary records are compelling.
On Mr Scanes’ uncorroborated evidence I am not persuaded or able to be reasonably satisfied, on the balance of probabilities, that he commenced smoking after his employment by the ACT Police began in 1971. The weight of the documentary evidence is that he probably started smoking between 1962 and 1965 and it is likely that is what occurred.
AILMENT
Under s 4(1) of the Act, the word ‘ailment’ means –
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
There is no dispute that Mr Scanes was diagnosed with emphysema by Dr Buczynski, Mr Scanes’ treating general practitioner, on 24 October 2017,[35] following a CT scan of his chest on 11 August 2017.[36] The diagnosis was confirmed by Dr Voon who reported ‘predominantly upper lobe emphysematous changes’ on 23 January 2018.[37]
[35] T5, folio 26.
[36] Ibid, folio 22.
[37] Exhibit 12, page 1.
Mr Scanes’ emphysema is within the meaning of ‘ailment’ for the purposes of the Act.
THE APPLICABLE CAUSAL TEST
Even though Mr Scanes’ case was run primarily on the causal test in respect of a ‘disease’ in force after 13 April 2007, issues relating to the applicability of the causal test applying before that date were ventilated and agitated. The argument runs on transitional provisions in the amending legislation that preserve the previous definition of ‘disease’ in cases where an ‘ailment’ is suffered before the amending legislation came into effect, such that ‘disease’ means an ailment that was contributed to in a material degree by the employee’s employment by the Commonwealth. This, so the argument goes, applies to Mr Scanes as he suffered from emphysema and related impairment (shortness of breath), albeit undiagnosed and not productive of proven incapacity for work, prior to the amending legislation came into effect on 13 April 2007.
Counsel for Comcare, Charles Clark, disagreed, arguing that the present evidence does not establish that Mr Scanes suffered from emphysema before the Act was amended in 2007, rather the ailment was diagnosed well after that occurrence. On this reasoning, Mr Clark argued that the present definition of ‘disease’ applies, such that it must be established that Mr Scanes’ emphysema ailment was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.
The applicable definition, and the related causal test in respect of employment, is to be determined under item 41 in Schedule 1 to the Safety, Rehabilitation and Other Legislation Amendment Act 2007 (the Amendment Act) –
(1) The definition of disease in the Safety, Rehabilitation and Compensation Act 1988, as amended by this Schedule, applies in relation to:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that the employee suffers on or after the day after this Act receives the Royal Assent.
(2) For the purposes of subitem (1), an employee suffers an ailment or aggravation on the day determined under subsection 7(4) of the Safety, Rehabilitation and Compensation Act 1988.
The clear purpose of this provision is to preserve the rights accruing to employee’s who claim employment-related ailments suffered before the amendments came into effect, and to ensure that compensation claims made in respect of employment-related ailments suffered thereafter are assessed under the new definition of ‘disease’.
As can be seen, for the purposes of the Amendment Act, the day on which a claimant employee suffers an ailment is pivotal. This is to be determined under s 7(4) of the Act, which was not affected by the amendments in 2007. It is in the following terms –
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
Considering this, two difficulties are immediately apparent. Firstly, s 7(4) is a deeming provision under which the date of an ‘injury’ in the form of a ‘disease’ is to be determined. It does not expressly refer to an ailment, although the existence of an ailment is an essential precondition to the existence of a ‘disease’, subject only to the requisite causal contribution by employment being established.
Secondly, the way in which this section is to be applied was conclusively dealt with by the Full Federal Court in Smith v Comcare[38] (Smith) in which Buchanan J, with whom Greenwood J agreed, found error in the manner in which the Tribunal applied s 7(4), namely –
5. The error of law made by the AAT was that it stated conclusions, unnecessarily and ultimately contrary to its own findings on liability, about the issue of when a “disease” within the meaning of s 4 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (as it stood at the time relevant to this litigation: see Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), sch 1, s 5) (“SRC Act”) should be taken to have been sustained within the meaning of s 7(4) of the SRC Act, for the purpose of the present case.
…
35. … The error was making a finding about a matter which arose under s 7(4) of the Act without any foundation upon which to do so, whether by way of prior finding for the purpose of s 14 or by way of assumption.
[38] [2013] FCAFC 65.
Clearly enough, the drafters of the Amendment Act did not have the benefit of the majority’s judgements in Smith, some 6 years later. Nonetheless, it is quite clear that the Full Court did not consider the proper construction of item 41 in Schedule 1 of the Amendment Act, which expressly applies s 7(4) for the purposes of item 41(1).
This poses something of a tortuously circular conundrum – following Smith, it is necessary to make findings about the existence of an ailment suffered by an employee in order to determine if the employee has an ‘injury’ in the form of a ‘disease’, whereupon the date on which the injury is deemed to have occurred is to be determined under s 7(4), yet for the purposes of item 41, s 7(4) is to be applied to determine the date on which the employee suffered the ailment.
Quite clearly, the terms of item 41 must be properly construed in a manner that best serves the purposes of the legislation.
To my mind, the circular difficulty may be ironed out in the manner foreshadowed by Buchanan J, in respect of an assumption or a ‘conditional answer’,[39] such that one proceeds to apply s 7(4) for the purposes of item 41 by assuming the existence of liability in respect of an injury or, alternatively, by applying the section conditionally, if an injury were to be found and liability established under s 14 of the Act. This would avoid the difficulty that may otherwise arise in some cases should a finding of liability be required before determining when an ailment under claim was suffered. A construction of that kind does not resolve the problem of circularity. Furthermore, it raises a question about the correct causal test to apply and it could have the effect of giving the new definition of ‘disease’ a retrospective effect, contrary to the clear purpose of the transitional provision to preserve the rights of employees to have claims relating to employment-related ailments assessed under legislation in force when the ailment was suffered. Construing the provision in this way could give rise to difficulties in consideration of accrued rights, changes in procedure and retrospectivity, and the rule Wilde B succinctly expressed Wright v Hale[40] in respect of statutes which interfere with vested rights and those that merely affect procedure –
The rule applicable to cases of this sort is that, when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act. [41]
[39] [2013] FCAFC 65 at [34].
[40] (1860) 6 H & N 227; [1860] EngR 1191.
[41] Ibid, at 232.

Matters of this kind were considered by the High Court in Esber v Commonwealth,[42] Mathieson v Burton[43] and Maxwell v Murphy.[44] Clearly enough, as Logan J observed in Military Rehabilitation and Compensation Commission v Katterns,[45] deciding such matters ‘can sometimes be a question of some nicety’. Nevertheless, issues relating to accrued rights and the applicability of s 7 of the Acts Interpretation Act 1901 were not fully argued, so I will go no further on this point than to note that item 41 is not dealing simply with procedural matters in terms of the time limit on action it may be construed as imposing, rather the provision preserves or confers on an employee a right to have claims relating to employment-related ailments assessed under the definition of ‘disease’, applying the causal test contained therein, that was in force when the ailment was suffered.
[42] [1992] HCA 20.
[43] [1971] HCA 4.
[44] [1957] HCA 7.
[45] [2017] FCA 641 at [40].
In order to determine the correct causal test to be applied in the circumstances of Mr Scanes’ case, applying the construction I have outlined, it is necessary to apply s 7(4) on the assumption of liability, or on a conditional basis, such that the ‘disease’ to which the section refers includes the ailment under claim. That being so, assuming the emphysema ailment to be a disease for the purposes of item 41, Mr Scanes will be taken to have suffered the ailment on the day he first obtained medical treatment in relation to that ailment, or the ailment resulted in incapacity for work or impairment, whichever occurred first.
Mr Scanes’ evidence is that he suffered shortness of breath from 1984. Mr Grey argues that this amounts to an impairment resulting from emphysema, such that this ailment should be taken to have been suffered by Mr Scanes in 1984.
The evidence does not support any such conclusion.
The 14 July 1985 admission note of the Woden Valley Hospital records that Mr Scanes experienced dyspnoea (difficulty breathing) when walking up stairs and ‘smokers cough’ was noted.[46]
[46] Exhibit 4.
In a letter of referral to Dr French at the Cardiac Diagnostic Centre on 19 July 1985, Dr Craigie reported Mr Scanes experienced breathlessness in 1984 and 1985 that he was not willing to ‘label as Tietze syndrome or whatever’.[47]
[47] Exhibit 5.
On 22 July 1985, Dr Wilson reported a history of ‘retrosternal chest pain which was associated with shortness of breath’[48] and high blood pressure. The doctor found no evidence of myocardial damage and noted that Mr Scanes was ‘over-weight and that he smokes 40 cigarettes a day’.[49]
[48] Exhibit 6.
[49] Ibid.
On 4 March 1993, Mr Scanes was admitted to the Woden Valley Hospital complaining of symptoms including shortness of breath.[50]
[50] Exhibit 8.
On 20 April 1993, Dr Coles reported that Mr Scanes had an acute inferior infarct and subsequent coronary arteriography showed a total occlusion of his right coronary artery.[51]
[51] T5, folio 20.
A report of Dr Craigie on 5 May 1993 makes no reference to shortness of breath or respiratory issues.[52]
[52] Exhibit 13.
On 24 May 1994, Professor O’Rourke reported a history taken from Mr Scanes, which referred to shortness of breath only in relation to two previous hospital admissions in 1984 and March 1993. The professor reported that Mr Scanes’ chest was clear on physical examination.
On 6 June 1995, Dr Stevenson, a consultant physician, reported a history of Mr Scanes experiencing shortness of breath on four occasions in 1993 and 1994. On each occasion, the shortness of breath was associated with other symptoms, including a ‘peculiar feeling in his chest’, head ache, leg weakness, tightness in his chest and pins and needles in the arms.[53]
[53] Ibid.
A clinical note of Dr Shehovych dated 15 July 2011 refers to ‘chest tightness for one week lasting a couple of hours’.[54] On 28 July 2011, the doctor noted a query – ‘Any lung pathology?’ And, on 10 August 2011, noted ‘CXR clear’.[55]
[54] Exhibit 10.
[55] Ibid.
On 11 August 2017, a CT scan of Mr Scanes’ chest taken that day was reported to show –
The lungs are hyperinflated. There are cystic spaces in both lungs consistent with emphysema. There is minor scarring in both lower lobes. No lung mass or pleural effusion is seen. The central airways appear normal.[56]
[56] T5, folio 22.
Consequently, Dr Buczynski and Dr Voon confirmed a diagnosis of emphysema.
As can be seen, shortness of breath is certainly documented in contemporaneous records from 1984. This symptom, however, is associated with cardiac and other symptoms and risk factors, including obesity, in subsequent medical reports. There is nothing by way of reliable probative evidence that shortness of breath in 1984, or at any time prior to 13 April 2007, was an impairment resulting from emphysema, albeit undiagnosed at that time. Dr Shehovych’s clinical note of a clear chest X-ray on 10 August 2011 is clear evidence that Mr Scanes did not have emphysema at that time.
In all likelihood, Mr Scanes’ emphysema developed and became symptomatic at some point after August 2011 and before the CT scan of his chest on 11 August 2017.
There is simply no basis in the present evidence to find that Mr Scanes obtained medical treatment for emphysema, or that he experienced incapacity for work as a result of emphysema, prior to 13 April 2007. I am not persuaded that treatment Mr Scanes obtained in respect of shortness of breath can be properly construed as treatment in relation to emphysema. The same can be said in relation to incapacity for work that may be attributed to shortness of breath.
That being so, the correct causal test is set out in the definition of ‘disease’ that came into effect on 13 April 2007 in s 5B of the Act.
DISEASE
In Mr Scanes’ submission, his AFP employment significantly contributed to cause him to smoke cigarettes which, later, caused emphysema. The causal chain posited is one comprised of several links. Mr Scanes alleges that he commenced smoking in the course of AFP employment. He attributes this to stresses he experienced in the course of performing duties in employment, in which he was exposed to traumatic, gruesome, harrowing and disturbing events, as well as threats of violence. He argues, furthermore, that there was a culture of smoking in the AFP at the time, and that smoking was condoned, and even encouraged, as a means of managing stress and calming down after difficult events.
In support of this submission, Mr Scanes called Mr Griffiths, a former AFP police officer, to give evidence at hearing. Mr Griffiths gave evidence in respect of his own experience with smoking in AFP employment. All that can be made of his evidence is that Mr Griffiths described a widespread culture of smoking in AFP employment which is similar to that described by Mr Scanes. In this context, Mr Griffiths referred to police officers drinking alcohol and smoking after work as commonplace.
Much reliance was placed on Military Rehabilitation and Compensation Commission v Wall,[57] in which a causal nexus between the particular disease (in the ordinary sense) and Mr Wall’s duties, including the employment-related risk of adopting a smoking habit, were established. Mr Scanes argued that the causal test in this case is the same as that set out by the majority in Wall’s case –
31. The Tribunal correctly described its legal function when it said that [t]he ‘real question ... is whether the Applicant’s smoking habit can be said to have arisen out of or in the course of his employment ... or whether his employment was a contributing factor’. The Tribunal also said: ‘it must be proved that the disease was caused by the employment and not merely contracted during the said employment’. It concluded that: ‘In this case ... to adopt a smoking habit is a risk of that employment’.
[57] [2005] FCAFC 127.
It is Mr Scanes’ case that the stress he experienced in the course of his AFP duties was a dominant factor in his life at the time – more than anything else, it was this that caused him to smoke cigarettes: the employment-related stress therefore significantly contributed to cause him to smoke. The extent to which this was encouraged by his AFP supervisors, superiors and colleagues, so the argument goes, provided an incentive to smoke and this reinforced the causal nexus with his AFP employment.
Mr Scanes asserts that the medical evidence establishes smoking as the cause of his emphysema. As I have said, this is not controversial. For this reason, Mr Scanes maintains that his emphysema is am ‘injury’ in the form of a ‘disease’ in respect of which Comcare is liable to pay him compensation.
Comcare does not agree. In Comcare’s submission, Mr Scanes smoked cigarettes before he commenced AFP employment. Comcare argues that Mr Scanes smoked cigarettes for a number of reasons, including his previously established addiction to nicotine and social reasons that were associated with drinking alcohol.
Mr Scanes will have a ‘disease’ for the purposes of the Act if it is established that his employment contributed to his emphysema ailment to a significant degree, being a degree that is substantially more than material.
Mr Scanes’ case was run, primarily, on the basis that his AFP employment caused or significantly contributed to cause him to start smoking cigarettes. As I have said, this is not established by probative evidence, on the balance of probabilities. It is only Mr Scanes’ unsupported evidence that points to him starting to smoke after he commenced work in AFP employment. The documentary records point to him starting to smoke several years before his AFP employment began, when he was a child.
From this three conclusions flow. Firstly, it is not established that Mr Scanes started cigarette smoking in the course of his AFP employment. Weighing the present evidence, I am reasonably satisfied that he commenced smoking before his AFP employment began.
Secondly, I am unable to determine the amount of cigarettes Mr Scanes smoked per day immediately before he commenced AFP employment. Mr Scanes denied smoking any cigarettes after trying one at the age of 13 until after he commenced work in AFP employment. Dr Voon’s assessment of 80 pack years smoking history is not sufficiently clear to establish Mr Scanes probable smoking history prior to his AFP employment. The Woden Valley Hospital records suggest a smoking history of 40 cigarettes per day from the age of 14, whereas Professor O’Rourke reported Mr Scanes was a heavy smoker from the age of 16. It is not appropriate or helpful to engage in speculation about possibilities, whereupon one might be tempted to choose between guesses about the amount Mr Scanes smoked before he commenced AFP employment. The only conclusion to be drawn in the circumstances is that I am unable to determine, on the balance of probabilities, the amount of cigarettes Mr Scanes smoked prior to and on commencement of his AFP employment.
Thirdly, in consequence, I am unable to determine the extent to which the amount of cigarettes Mr Scanes smoked per day increased once he began work or during the course of his AFP employment. On Mr Scanes’ evidence, the extent of his smoking increased in the course of his AFP employment. It may well be that this is what occurred, but there is not sufficient reliable evidence on which to determine the extent of any such increase.
It can nevertheless be accepted, and it is not controversial, that Mr Scanes smoked cigarettes and was exposed to cigarette smoke in the course of his AFP employment. It can also be accepted that aspects of his work were stressful and he was exposed to traumatic, harrowing and difficult situations, as well as pressure to complete work in a timely manner, in the course of his duties. The evidence Mr Griffiths gave clearly establishes, that cigarette smoking was commonplace in the AFP in Canberra at the time, it was part of the work culture that was condoned and even encouraged by AFP managers for many years - officers smoked at their desks, in cars, in interview rooms, common areas and cells, and smoking was engaged in, with drinking alcohol, by many AFP employees as an aid to cope with work stresses. I note and take into account the AFP Smoking Policy document in Exhibit 7 and the Review of Health Services within the AFP document in Exhibit 13.
In these circumstances, I am satisfied that the circumstances of Mr Scanes AFP employment contributed to him smoking cigarettes and being exposed to cigarette smoke.
When determining if the employment contribution to Mr Scanes’ emphysema ailment is to a significant degree, account should be taken of the matters set out in s 5B(2) of the Act.
It is in this context that Mr Scanes’ smoking history must be taken into account.
Dr Voon reported Mr Scanes’ smoking history to equate to approximately 80 pack years.[58]
[58] Exhibit 12.
The extent to which Mr Scanes’ AFP employment contributed to his smoking history, however, is very difficult to ascertain when the amount he smoked and the extent to which he was habituated to nicotine before commencing AFP employment is unclear and the extent of his smoking (and exposure to cigarette smoke) in the course of that employment is clouded by inconsistency.
No consistent smoking history can be found in the Woden Valley Hospital notes and the medical reports that are in evidence. The weight of this evidence suggests that he smoked 40 to 50 cigarettes for many years, but when he began smoking to this extent cannot reliably be determined.
Mr Scanes gave evidence that he attempted to stop smoking on a number of occasions, but he failed and resumed smoking within a couple of weeks. If this is correct, one might expect some reduction in his consumption of cigarettes from time to time. The difficulty is that Mr Scanes gave evidence that his smoking increased following commencement of his AFP employment to the point where he was smoking 80 cigarettes per day by 1984, and on some days he would smoke more than 100 cigarettes. The evidence of Dr Craigie and the Woden Valley Hospital on 14 July 1985 is that he smoked 40 to 50 cigarettes per day for many years. Dr Craigie and Dr Stevenson reported that Mr Scanes smoked more at work than at home. Dr Stevenson reported that Mr Scanes said ‘he tended to smoke a lot when he was on duty, often in excess of sixty cigarettes a day’.[59] Dr Coles reported that Mr Scanes smoked 60 cigarettes per day when working and 15 cigarettes per day when at home.
[59] Exhibit 13, page 2.
On this evidence, Mr Scanes may have smoked 45 more cigarettes per day on days when he worked rather than days when he was at home. The 45 extra cigarettes would include any cigarettes he smoked after work when drinking beer. It is not possible on the present evidence to ascertain how many cigarettes Mr Scanes may have smoked in such circumstances and, of those, what proportion might be causally attributable to work stress and related peer interactions. Determining the degree to which this consumption of cigarettes might be attributable to his smoking habit and addiction to nicotine, or associated with drinking alcohol, and how much might be attributable to work stresses or a work culture is very uncertain.
I note that Mr Scanes’ evidence about his alcohol consumption is not consistent with medical reports of him being a heavy drinker. He denied telling Professor O’Rourke that the more you drink, the more you smoke and asserted that drinking after work was how he dealt with work-stresses. It is possible that senior officers suggested having a beer and a smoke as a way of calming down after a stressful event, but it is not presently established that this amounted to an expectation, an instruction or an encouragement to drink alcohol or to smoke cigarettes. To my mind, weighing the present evidence, these were matters of individual choice that may have been condoned by senior officers.
Unlike military cases to which I was taken, Mr Scanes was not required to live on a base, he was a civilian who returned home to his wife and family and who made choices in the conduct of his lifestyle. In this context, factors other than work stress and other employment-related factors contributed to him smoking cigarettes in the course of his AFP employment. These include his probable habituation to nicotine as a result of smoking prior to the commencement of AFP employment and his reported association of smoking and drinking – ‘the more you drink, the more you smoke’.[60]
[60] Exhibit 9, page 1.
Furthermore, taking Dr Coles’ evidence at the highest, even if Mr Scanes smoked up to 45 cigarettes per day as a result of his work, and I make no such finding, the present medical evidence does not establish the extent to which this level of consumption might be causally significant in the subsequent emergence of emphysema in 2017 when it is assessed in the context of Mr Scanes’ complete smoking history (including exposure to cigarette smoke) from the age of 13, 14 or 16 until 1993, when his AFP employment ceased.
Doing the best with the available evidence, once smoking outside employment is discounted, even if Mr Scanes smoked an average of 30 to 45 cigarettes per day throughout his AFP employment from 1971 to 1993 (noting that he ceased smoking in 1992) as a result of stresses in his work. This might amount to approximately 30 to 45 pack years out of the 80 pack years Dr Voon reported, although Dr Voon’s calculation of 80 pack years is not transparent. The present medical evidence does not establish that employment-related smoking to this extent contributed to a significant degree to cause Mr Scanes’ emphysema 14 years later, rather it establishes that his emphysema is caused by his smoking history. Dr Buczynski reported –
I believe that Mr Scanes heavy smoking was related to significant stress at work while he was working for the AFP… I believe that his cigarette smoking is a major contributing factor causing his chronic airways limitation and emphysema.[61]
[61] T5, folio 26.
Dr Voon reported a similar assessment –
I agree with Dr Coles’ report from 1993 which also concluded that the amount of cigarette smoke is the sole contributing factor to his emphysema…[62]
[62] Ibid, folio 28.
Weighing the evidence, I am reasonably satisfied that Mr Scanes ACT Police and AFP employment made some contribution to him smoking cigarettes from 1971 to 1992. I accept that he was exposed to highly stressful situations in the course of his employment. I am also reasonably satisfied that Mr Scanes was exposed to the cigarette smoke of others in the course of performing his duties from 1971 to 1993. It is probable that employment-related smoking and exposure to cigarette smoke accounts for a part of Mr Scanes’ 80 pack year smoking history, as reported by Dr Voon. The proportion is not clearly established, but doing the best with the available evidence, it is likely to be between 30 and 44 pack years.
Even if this is correct, the available medical evidence is not sufficient to establish that this level of smoking contributed to a significant degree to Mr Scanes’ emphysema ailment 14 years later. Other causes of Mr Scanes’ smoking habit during the period of his ACT Police and AFP employment, including probable addiction to nicotine from a young age, smoking outside his employment, including at home, and the strong association between drinking alcohol and smoking cigarettes must all be weighed in the balance. Comcare’s previous acceptance that stress materially contributed to Mr Scanes’ myocardial infarction does not advance the matter. The present medical evidence does not set out any basis for discriminating between contributory causes of emphysema on the basis of quantitative proportion or any other basis. That being so, and common sense not being a sufficient causal test, I am unable to be reasonably satisfied that Mr Scanes’ ACT Police and AFP employment contributed to his emphysema to a significant degree.
From this it follows that the causal test in s 5B(1) of the Act is not satisfied and Mr Scanes’ emphysema ailment does not amount to a ‘disease’ for the purposes of s 5A of the Act.
INJURY

It is not necessary to proceed any further under s 5A(1) of the Act.
Mr Scanes’ case was run on the basis that his emphysema is an ailment and expressly not on the basis that it might amount to an ‘injury (other than a disease)’ for the purposes of s 5A(1)(b).
On that point, I was informed by the parties that no evidence would be adduced and no submissions would be made in respect of ‘an injury (other than a disease)’ under s 5A(1)(b).
That may be so, but for completeness I should note that, in my assessment of the present evidence, emphysema is not established as an injury (other than a disease).
From this it follows that the reconsideration decision will be affirmed – Mr Scanes’ emphysema is not an ‘injury’ for which Comcare is liable to pay compensation under s 14 of the Act. That being so, there is no cause to consider orders for costs under s 67 of the Act.
DECISION
The decision under review is affirmed.

133. I certify that the preceding 132 (one hundred and thirty two) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.

........................................................................
Associate

Dated: 23 December 2019

Date(s) of hearing:
2 December 2019 – 3 December 2019

Solicitors for the Applicant

Counsel for the Applicant

Solicitors for Respondent:

Counsel for Respondent:

Mr Richard Faulks, Snedden Hall & Gallop Lawyers

Mr Leo Gray

Mr Luke Woolley, Sparke Helmore

Mr Charles Clark

[2019] AATA 5542

23 December 2019

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Remedies

Statutory Construction