Wall and Comcare (Department of Defence)
[2004] AATA 229
•5 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 229
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/714
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY WALL Applicant
And
COMCARE (DEPARTMENT OF DEFENCE)
Respondent
DECISION
Tribunal Senior Member M D Allen Date5 March 2004
PlaceNewcastle
Decision The decision under review is set aside and this matter remitted to the Respondent with the direction that the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 for the conditions of cerebrovascular accident and Ischaemic heart disease.
The Respondent is to pay the Applicant's costs.
(Sgd) SM Allen
..............................................Senior Member
CATCHWORDS
WORKERS’ COMPENSATION - Ischaemic heart disease and cerebrovascular accident - Conditions caused by the Applicant's smoking habit - Whether smoking habit caused during the course of three months full-time national service - If smoking habit adopted, was it a risk of employment as a national service trainee - Decision set aside.
Safety, Rehabilitation and Compensation Act 1988 - s4, s14, s124
Compensation (Commonwealth Government Employees) Act 1971 - s5, s29
Australian Postal Corporation v Burch (1998) 26 AAR 312
Repatriation Commission v Law (1981) 147 CLR 635
Hawkins v Comcare (2001) 115 FCR 127
Connair Pty Ltd v Frederiksen (1979) 142 CLR 485
Federal Broom Co Pty Ltd v Semlitch (1964)110 CLR 626
Millwood v Comcare [2004] AATA 116 (not followed)
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Repatriation Commission v Tuite (1993) 39 FCR 540
Hawkins v Repatriation Commission (1993) 30 ALD 59
REASONS FOR DECISION
5 March 2004 Senior Member M D Allen 1. Pursuant to a claim made the 29th of November 2001, the Applicant sought compensation for the conditions of left cerebrovascular accident longer than 24 hours and Ischaemic heart disease. These claims were rejected by a determination made 7 March 2002 and a reviewable decision made 22 April 2002 affirmed the rejection.
2. The claims relate to the said condition of Ischaemic heart disease which manifested itself on 21 July 1987 as a myocardial infarction and a cerebrovascular accident which occurred on 15 May 1989.
3. Section 124 of the Safety, Rehabilitation and Compensation Act 1988 (“the 1988 Act”) provides, inter alia, that whereas compensation is payable under that Act for injuries suffered before the commencing day of the said Act (namely 1 December 1988), liability only exists if the said injury was compensable at the time it was incurred under the relevant Act pertaining to compensation for employees of the Commonwealth in force at that time.
4. The Applicant’s cerebrovascular accident was an injury as that term is defined in s 4 of the 1988 Act: see Australian Postal Corporation v Burch (1998) 26 AAR 312. The Applicant’s Ischaemic heart disease is a disease pursuant to the definition of “disease” in s 4 of the 1988 Act and s 5 of the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”), which was the relevant Act in force at the time the said condition manifested itself.
5. Section 29 of the 1971 Act provides, inter alia, that where the employee contracts a disease or suffers an aggravation or an acceleration of the disease and employment by the Commonwealth was a contributing factor to the contraction of the said disease or its aggravation or acceleration, then that disease is deemed to be a personal injury and compensable.
6. As a preliminary point, the Respondent argued that the Applicant’s claim should be rejected due to its late lodgement. Section 53 of the 1971 Act and s 53 of the 1988 Act both provide that the provisions of the Act do not apply to an employee unless notice in writing of the injury is given as soon as practicable after the employee became aware of the injury. In both cases however, there is an ameliorating provision which provides that the appropriate notice shall be taken to have been given if the employing authority would not by reason of the failure to give notice as soon as practicable not be prejudiced or the failure to give the said notice resulted from ignorance, from a mistake or other reasonable cause.
7. After taking evidence and hearing submissions, I decided as a preliminary point that whereas I was satisfied that the Respondent would be prejudiced by the late claim due to the effluction of time, I was not satisfied that the Applicant was not ignorant as he alleged of his right to make a claim against the Commonwealth until he attended an RSL sub-branch meeting in 2001. Thereafter, he contacted the Military Compensation and Review Section and promptly made a claim.
8. In particular, although the Applicant was not an impressive witness and in my opinion sought to tailor his evidence so as to advance his case, he gave sworn evidence as to his ignorance regarding any ability to make a claim against the Commonwealth which evidence was not shaken in cross-examination or rebutted by any other material. I do accept that unlike his civilian place of employment where the relevant industrial award was posted up for all employees to see, whilst undergoing national service, no instruction was given to him or his fellow servicemen as to any entitlements as to workers’ compensation or how to make a claim.
9. There is no dispute between the relevant medical experts that the Applicant’s smoking habit was a contributing factor to his Ischaemic heart disease and cerebrovascular accident. For example, Professor O’Rourke in his report of 14 October 2003 states, inter alia:
“I believe that Mr Wall’s smoking habit was a contributing factor to the development of his ischaemic heart disease…” and
“Mr Wall’s smoking habit probably did contribute to his cerebral vascular accident on the 15th May 1989, at least to a degree. …”
Dr Michael Burns in his report of 29 January 2004 states:
“I believe that it is likely that smoking made a material contribution to the development of premature coronary artery disease in his case and contributed to a lesser extent to his cerebral vascular events.”
10. As to the degree the Applicant’s smoking habit contributed to his illnesses, all that is required in order to obtain compensation both under the 1971 and 1988 Acts are that the contribution be real and not de minimus: see Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
11. The real dispute in this matter is whether the Applicant’s commencing to smoke during his three months full-time national service in 1954 results in his diseases of Ischaemic heart disease and cerebrovascular accident being compensable under Commonwealth workers’ compensation legislation.
12. Professor O’Rourke doubted that the smoking the Applicant undertook whilst on military service had any real effect given that he had continued to smoke from 1954 until 1987. I agree, but what has to be asked is whether the Applicant’s military service, in particular his full-time service, was responsible for creating the smoking habit.
13. The real question in this matter is whether the Applicant’s smoking habit can be said to have arisen out of or in the course of his employment (s 4 of the 1988 Act) or whether his employment was a contributing factor (s 29 of the 1971 Act ).
14. At the time the Applicant made his initial claim, he said:
“I started smoking after inlistment (sic) and I was placed in an environment where smoking was the norm and followed this trend to my detriment.”
The Applicant also said:
“At the time of my medical examination on the 20-10-53, I informed the medical practitioner of a broken right arm (elbow).. If he had checked for any restrictions of the use of the arm at the time he should not have passed me as class A1 medically fit.
As a result of my right arm handicap I was under stress to perform duties. That I found difficult and therefore smoked more.”
15. In evidence, the Applicant expanded upon this saying that he had broken his right arm as a child and that he had been operated upon and the arm put in a splint and later he had physiotherapy for his arm. Whilst in national service, he found weapons drill painful and particularly whilst on a guard duty. At one time after coming off guard duty in pain, a fellow National Serviceman offered him a cigarette and he found that this helped. He then bought his own cigarettes from the service canteen and the cigarettes were sold to servicemen at a cheaper price than to civilians. In a statement dated 20 May 2002, the Applicant had said:
“I began smoking within weeks of joining the Army. It was an environment in which most of my colleagues smoked or learned to smoke, in which cheap cigarettes were readily available and in which people offered one another cigarettes. I took up the habit and found that it helped me deal with the pain in my arm.”
16. The Applicant implicated pain in his arm as a cause of his taking up smoking in the army. There is evidence that the Applicant did break his arm as a child and that the healing process was lengthy. He was however passed fit for national service (much to his chagrin) and had also managed to successfully complete an apprenticeship in carpentry and joining (although he did no heavy building construction).
17. In a report dated 19 January 2004, after viewing x-rays, Dr Harvey, Orthopaedic Surgeon said:
“…the patient now has a normal x-ray and there is no objective evidence of any longstanding injury to the right upper extremity.”
18. Exhibit R14 also reveals that the Applicant during his period of full-time national service was rated “good” in both drill and weapons training. This grading is not consistent with ongoing pain and discomfort. Likewise, there are no reports of the Applicant reporting to any service medical installation regarding arm pain if only to obtain analgesia. The Applicant did report for other ailments and I accept that Professor O’Rourke correctly noted the Applicant’s remarks to him that during his national service, he was “dodging everything if I could”.
19. I believe the correct answer to this issue is to be found in the report of Dr Burns. In his report of 21 July 2003, he refers to his own experience with rifle drill as a national serviceman in 1954. At that time, the Australian army was still using the ·303 Lee Enfield rifle which had been in service since World War I. It weighed 8.8 lbs unloaded. The “slope arms” position resulted in the rifle butt being held in the left hand arm extended with the lower part of the barrel resting against the left shoulder. It was transferred to this position from the “at ease” or “attention” positions by throwing it up to the right side and then transferring it across to the left shoulder, left arm extended position. Many recruits who had not done physical activity would have found their initial handling of this weapon tiring and for someone like the Applicant with a previously broken arm, there would no doubt have been some muscular aches and pains, but I believe he has sought to exaggerate the effect of these.
20. I am satisfied that the Applicant did take up smoking during his period of full‑time national service due to many but familiar reasons, namely peer pressure, being away from home, for something to do plus the availability of cheap cigarettes and an environment where smoking was the norm rather than the exception. No doubt if he had aches and pains, a cigarette made him feel better but cigarettes are not anti-inflammatories.
21. In Hawkins v Comcare (2001) 115 FCR 127, von Doussa J discussed s 29 of the 1971 Act in a case where smoking was implicated as the cause of the deceased’s cancer. At p 139 para 45, he said that for employment to be a contributing factor, the circumstances said to be the contributing factor must have a relationship to the nature of the employment similar to that which was required under s 10 of the Commonwealth Employees’ Compensation Act 1930. He also referred to the remarks of Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632, who in explaining the concept of employment as a contributing factor added the qualification that an incident or state of affairs to which a worker is exposed in the performance of his duties must be one to which he would not otherwise have been exposed.
22. As was pointed out by Gibbs J (as he then was) in Connair Pty Ltd v Frederiksen (1979) 142 CLR 485 at 494, that for s 10 of the 1930 Act, it must be proved that the disease was caused by the employment and not merely contracted during the said employment.
23. To my mind, that a serviceman or woman will, because of a variety of factors, take up smoking while on service is now a well accepted hazard of service in the military. In exhibit A5, the Repatriation Commission has issued the following “guidelines” to its delegates which guideline states, inter alia:
“(1) Smoking is strongly addictive;
(2) There is evidence that military populations smoke more than civilian populations. Service life contains many potential links to smoking. Stress, peer pressure, availability and boredom are among them.”
24. The guideline also states under the heading “Legislative Prescriptions Relating to Smoking Claims” as follows:
“(1) The VEA now provides that a claim relating to smoking that commenced or increased after 1 January 1998 cannot be found to be service related. In these cases, the level of smoking should be taken to be that which existed at 31 December 1997. This applies to all veterans and members of the ADF.”
25. The exemption of the Commonwealth for liability for the death, injury or disease of a veteran or member of the forces from a death or disease arising out of the use of tobacco products was inserted into the Veterans’ Entitlements Act 1986 by Part 3 of the Veterans’ Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997. One can only ask why it was thought necessary to draft such a legislative prescription if the Department of Veterans’ Affairs was satisfied that an individual’s smoking habit could not be regarded as caused or contributed to by the exigencies of their service. It is, in my opinion, a direct admission by the Department of Veterans’ Affairs that the adoption of a smoking habit is a real and perceived incident of service life and that members of the armed services have a particular liability to the contraction of the smoking habit.
26. Such a liability has of course been recognised in cases applying either the Repatriation Act 1920 (as amended) or the Veterans’ Entitlements Act 1986. Entitlements under those Acts refer to an entirely different legislative regime to Workers’ Compensation Acts and in particular contain their own specific onus of proof provisions in favour of veterans. However, the attitude of the courts to cases where it is claimed that service life led to the adoption of a smoking habit is instructive. For example, in Repatriation Commission v Tuite (1993) 39 FCR 540 at 544, the majority, after referring to the fact that the Tribunal noted it was not sufficient simply to find a temporal connection but what was required was something within the Applicant’s military service which had caused him to start smoking rejected the argument of the Appellant that the Tribunal was incorrect in finding that the availability of cheap cigarettes, that other people were smoking and a degree of apprehension as his regards his future in the military were insufficient to say that the veteran’s smoking habit was war-caused. As was pointed out by Davies J in his separate judgment, also dismissing the appeal at page 542, “If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life.”
27. For another case in which the addictive qualities of tobacco were noted and the circumstances of service held to give rise to a smoking habit: see the decision of Davies J at first instance in Hawkins v Repatriation Commission (1993) 30 ALD 59. In particular, at page 63, Davies J said, “Issues of causation must be approached in a factual way in the light of common sense and human experience: see Mason C J in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 515.”
28. In this case and with hindsight, to take a young man of 19 years away from his normal life and place him in an environment where smoking is common among his peers, is encouraged by the provision of cheap cigarettes together with the strains and tensions of army life, particularly in recruit training, then it is clear that to adopt a smoking habit is a risk of that employment.
29. I have been referred to the decision of Senior Member Lindsay in Re: Millwood v Comcare [2004] AATA 116. All I can say is that on the evidence before me, I have come to a different conclusion.
I consider that the Applicant’s military service did involve a particular liability to the contraction of a smoking habit and that therefore the Applicant’s claim should be accepted. The decision under review is set aside and this matter remitted to the Respondent with the direction that the Applicant is entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 for the conditions of cerebrovascular accident and Ischaemic heart disease.
30. The Respondent is to pay the Applicant's costs.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: (Sgd) K. Wong .......................................................................................
AssociateDate of Hearing 9 February 2004
Date of Decision 5 March 2004
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Bale Boshev & Associates
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Sparke Helmore Solicitors
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