Williams and Comcare - [2001] AATA 61

DECISION AND REASONS FOR DECISION [2001] AATA 61

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/173

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ROBERT DOUGLAS WILLIAMS
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member Assoc. Professor J. Maynard, Member

Date2 February 2001
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

...….(Sgd) B. H. Pascoe............
Senior Member
CATCHWORDS
COMPENSATION – atherosclerosis and claudication – whether caused by smoking – whether smoking arose out of or in the course of employment – whether due to the nature of employment – army apprentice – peer pressure – provision of chits to enable purchase of tobacco and cigarettes
Compensation (Commonwealth Government Employees) Act 1930
Commonwealth v Bourne (1960) 104 CLR 32
Re Wright and Commonwealth of Australia (1988) 14 ALD 567
Hawkins and Comcare [2000] AATA 1142

REASONS FOR DECISION

2 February 2001 Mr B. H. Pascoe, Senior Member
Assoc. Professor J. Maynard, Member

This is an application to review a decision of the respondent dated 5 January 1999 which affirmed a determination dated 2 June 1998 denying liability for compensation for the claimed condition of "blocked blood vessels and breathing problems affecting chest, throat and legs". The applicant claimed that the condition resulted from service with the Australian Army between 23 January 1952 and 22 January 1961 and smoking during that service.
At the hearing the applicant was represented by Mr M. O'Brien of counsel and the respondent by Mr J. Lenczner of counsel. Evidence was given by the applicant, Mr Williams. No medical or other witnesses were called by either party although medical reports were tendered. These reports were from Professor K. Myers, a vascular surgeon (Exhibit A1); Dr M. Pain, director of thoracic medicine at Royal Melbourne Hospital (Exhibit A2), Dr E. Cole, a psychiatrist (Exhibit A4); Dr P. Blombery, a consultant physician in vascular disease (Exhibit R1) and Dr N. Strauss, a psychiatrist (Exhibit R2). Statements from two former Army personnel, Mr J. Sidwell (Exhibit A3) and Mr D. Gammon (Exhibit R3) were tendered.
Mr Williams was born in 1936. He left school at age 15 and joined the Army as an apprentice carpenter and joiner in January 1952. Initial training was at Balcombe camp with a mixture of trade, academic and military training. Mr Williams said that, at that time, cigarettes and tobacco were rationed and it was not possible to buy Australian cigarettes in the shops. All personnel were issued with chits with their pay to enable the purchase of cigarettes and tobacco at the canteen. He had not smoked prior to joining the Army but, at the time of his first pay, used the chits to buy the entitlement of one packet of cigarettes and two ounces of tobacco. Mr Williams said that the majority of apprentices and instructors smoked. He believed that the non-smokers were generally "picked on" by the instructors to do the more menial tasks during the regular "smoko" breaks. He accepted that non-smokers could sell their issue of chits. He believed that there was pressure to smoke so as to be part of the majority. By the end of his three year apprenticeship cigarettes were freely available and his smoking had increased culminating in a consumption of approximately 30 cigarettes per day by the time of his discharge in January 1961.
Mr Williams said that he developed bronchitis and a heavy cough while at Balcombe camp with the cough becoming more significant in the latter period of Army service. By the late 1960s he experienced severe cramping in the lower legs. Ultimately he suffered regularly from bronchitis, chronic cough, leg cramps and a tingling sensation in his arms and fingers. He was a self-employed builder and renovator until 1974 and then drove taxis until ceasing all work in 1989. He now has difficulty walking any distance without frequent rests, has difficulty sleeping, is anxious and has difficulty driving a car.
Mr Sidwell gave evidence that he joined the Army at the same time and at the same age as Mr Williams. He started smoking within six months of joining and believed that peer pressure to conform with the majority and the issue of chits to enable purchase of cigarettes and tobacco were responsible for the development of a smoking habit.
Professor Myers provided a report stating that there was "…evidence of moderately severe disease affecting the right common femoral artery and the left internal carotid artery. …principally due to longstanding smoking habits." He stated that Mr Williams "…has severe extensive athersclerosis [sic] principally induced by smoking and causing clinical disease affecting the right lower extremity and pre-clinical disease affecting the left carotid circulation". Dr Pain's report stated that "Mr Williams' history of intermittent wheeze on exertion and the demonstration of mild bronchial hyperactivity strongly suggests that he has a mild degree of bronchial asthma together with chronic bronchitis … attributable to his chronic cigarette smoking". Dr Cole was of the opinion that Mr Williams is suffering from a chronic anxiety state and reactive depression of moderate degree attributable to his chronic ill health.
Dr Blombery examined Mr Williams on behalf of the respondent. His diagnosis was "femoral atherosclerosis causing intermittent claudication". He was of the opinion that the condition may have been contributed to by smoking which is a very important risk factor which has accelerated the development of the condition.
Dr Strauss also examined Mr Williams on behalf of the respondent. He was of the opinion that Mr Williams' various physical injuries had undermined his confidence and caused him frustration and upset, but these emotional reactions were within normal limits and he had not developed a psychiatric illness. Dr Strauss did not believe that the smoking habit had developed as a result of stress and pressure during Army service but as a result of a culture of cigarette smoking at that time and of finding himself as a teenager with a number of people who were smoking.
It was submitted for the applicant that his atherosclerosis was caused by smoking and that his smoking habit had been caused by the nature of his employment with the Army. It was said that pressure from peers and supervisors resulted in a vulnerable 15 year old believing that he had to smoke in order to fit in. The provision of chits, particularly to a person who was under age, was said to be a clear incitement to smoke. Mr O'Brien argued that breaks during training were called "smoko" breaks and apprentices believed that they were not fitting into the group unless they smoked.
For the respondent, it was submitted that the smoking by Mr Williams was not an incident of his employment with the Army nor in the nature of that employment. It was argued that he commenced smoking as a matter of personal choice and, although it may have resulted from peer pressure, it was not part of the duty of employment or incidental to that employment. Mr Lenczner submitted that the evidence solely showed that the majority of men smoked at that time but not that there was any pressure or punishment for smoking or non-smoking with it remaining a matter of personal choice. The provision of chits was said to be solely a matter of making cigarettes available in a similar way to making food and clothing available for employees. Finally, it was submitted that, while smoking was a risk factor in atherosclerosis, it was not necessarily the direct cause of the condition and, further, that current incapacity was the result of conditions other than claudication.
As the period of employment of Mr Williams in the Army was from January 1952 to January 1961, any entitlement to compensation is covered by the Compensation (Commonwealth Government Employees) Act 1930 ("the Act"). Section 9(1) of the Act provides:
"If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule."

Section 4(1) defines "injury" as:

"…any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury".

Section 10 of the Act provides, so far as is relevant:

"10(1) Where:
(a)an employee is suffering a disease and is thereby incapacitated for work; or
(b)the death of an employee is caused by a disease, and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment.

…"

The questions to be considered in this case are whether Mr Williams' atherosclerosis was caused by smoking and whether that smoking arose out of or in the course of his employment or was due to the nature of that employment with the Army. On the weight of the medical evidence we find that, on the balance of probabilities, the atherosclerosis and the consequent claudication were the result of smoking. Although Dr Blombery considered smoking as a significant risk factor only, the majority of medical evidence leads to this conclusion.
The more significant question is whether the causation of smoking can be said to have arisen out of or in the course of employment or, if a disease, was due to the nature of that employment. In Commonwealth v Bourne (1960) 104 CLR 32 at page 38, Dixon CJ said:
"In the third place, I do not think the expression in s.10(1) 'due to the nature of the employment in which the employee is engages' covers an employment which has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate it and no incident, adjunct or quality of which involves those employed therein in any particular liability to the contraction of the disease or to the aggravation or acceleration of its course."

In Re Wright and Commonwealth of Australia (1988) 14 ALD 567, Senior Member (as he then was) McMahon of this Tribunal noted the difference between this Act and later compensation legislation and said (at page 569):

"There is no room for partial attribution of cause. The notion of contribution is absent from the definition of disease and from s.10. The disease must be totally due to the nature of the employment. A mere contribution is not sufficient for this purpose".

In this case, the circumstances of the majority of instructors and trainees being smokers and the availability of cigarettes and tobacco may have contributed to Mr Williams commencing smoking and the subsequent atherosclerosis but none of the evidence demonstrates that this was solely due to the nature of the employment. Clearly, many other employees chose not to smoke and there was nothing in the nature of the employment which can be said to have caused Mr Williams to smoke. During the 1950s many other forms of employment would have been seen as involving many, if not the majority of young male employees smoking. At that time the dangers of developing the habit were not readily known.

For similar reasons we find that smoking and subsequent atherosclerosis did not arise out of or in the course of employment. It was a matter of personal choice by Mr Williams, albeit encouraged by peer pressure and the availability of cigarettes and tobacco. We are not satisfied that the evidence showed any specific discrimination against non-smokers by those in charge other than accepting that they may well have been in the minority. There was no requirement to smoke as an incident of the employment itself, none of the duties of employment involved smoking or the need to smoke and there was nothing particular to the form of employment which could be said to necessarily result in smoking. Mr Sidwell said that he started smoking within six months of joining the Army, not after his first pay as Mr Williams stated was his own date of commencement. Many of their peers did not commence smoking at all. While the provision of chits to purchase cigarettes and tobacco to 15 year olds may well be seen in the current environment as reprehensible, it did no more than make the items available for purchase if the recipient so chose or to sell or transfer the chit to a smoker. It cannot be said that the consumption of the cigarettes or tobacco arose out of or in the course of employment. In a recent decision of this Tribunal, Hawkins and Comcare [2000] AATA 1142, the Tribunal made similar findings in relation to an Air Force employee where smoking was said to have resulted in coronary atherosclerosis.
Given our findings on causation, it is unnecessary to consider the question of whether and to what extent any incapacity is currently attributable to the atherosclerosis.
It follows that the decision under review should be affirmed.
I certify that the sixteen (16) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Assoc. Professor J. Maynard, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  19 October 2000
Date of Decision  2 February 2001
Counsel for the Applicant        Mr M. O'Brien
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Mr J. Lenczner
Solicitor for the Respondent    Tress Cocks & Maddox