FEDERAL COURT OF AUSTRALIA

Military Rehabilitation & Compensation Commission v Wall [2005] FCAFC 127

EMPLOYEES’ COMPENSATION – Compensation claim by former member of the Defence Force in relation to smoking-induced disabilities – Respondent commenced to smoke when undergoing national service military training – Finding by Administrative Appeals Tribunal that respondent’s smoking habit arose out of his ‘employment’ – Whether Tribunal failed to determine whether the respondent’s habit arose out of the performance of his duties as a member of the Defence Force.

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 5, 124

Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 7, 29

MILITARY REHABILITATION AND COMPENSATION COMMISSION v BARRY WALL

NSD 69 of 2005

WILCOX, GYLES and DOWNES JJ

8 JULY 2005

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant, Military Rehabilitation and Compensation Commission, pay the costs of the respondent, Barry Wall.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

WILCOX AND DOWNES JJ:

1                     This is an appeal against a decision of a judge of the Court (Hely J) dismissing an application by way of appeal against a decision of the Administrative Appeals Tribunal (‘the Tribunal’), constituted by Senior Member Allen.  The Tribunal had upheld a claim made by Barry Wall, the present respondent, for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’ or ‘the SRC Act’) in respect of the conditions of cerebrovascular accident (‘CVA’) and ischaemic heart disease (‘IHD’).  The appellant before us is the Military Rehabilitation and Compensation Commission (‘the Commission’).

The Tribunal’s decision

2                     The Tribunal noted agreement between the parties’ medical experts that the respondent’s smoking habit was a contributing factor to both his CVA and IHD.  The Tribunal also noted that all that is required, both under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (‘the 1971 Act’) and the 1988 Act, is that the contribution be real and not de minimus.  There is no issue before us regarding the degree to which smoking contributed to the respondent’s medical conditions.

3                     The 1971 Act and the 1988 Act were both relevant to the claim before the Tribunal.  The respondent suffered his CVA after the commencement of the 1988 Act but his IDH first manifested itself in 1987, when the 1971 Act was still in force.

4                     The Tribunal stated the issue before it in this way:

‘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.’

5                     The Tribunal accepted that it was unlikely that the smoking undertaken by the respondent during his 1954 service ‘had any real effect given that he had continued to smoke from 1954 until 1987’.  However, the Tribunal said, ‘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’.

6                     The Tribunal said:

‘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 ).’

7                     After detailing the respondent’s evidence about taking up smoking during the period of his national service, the Tribunal found it was:

‘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.’

8                     The Tribunal then considered what connection was necessary between a person’s military service and the commencement of a smoking habit.  The Tribunal said:

‘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.

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.

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.”’

9                     After referring to the link between smoking and veterans’ entitlements legislation and some decisions under that legislation, the Tribunal said:

‘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.

…

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.’

The decision of Hely J

10                  In his reasons for judgment, Hely J explained the relevant statutory provisions.  At [7] – [8] he said:

‘Section 124(1) of the SRC Act provides that the SRC applies to an injury, loss or damage suffered by an employee whether before or after the commencing day (ie, 1 December 1988).  Pursuant to s 124(1A), a person is entitled to compensation under the SRC Act in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was, or would have been payable to the person under the relevant legislation in force at the time of the injury.  However, s 124(2) of the SRC Act provides that a person is not entitled to compensation under the SRC Act in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was not payable in respect of that injury, loss or damage under the relevant legislation in force at that time …

Section 29(1) of the 1971 Act provides (it is convenient to use the present tense notwithstanding the Act’s repeal) that where an employee contracts a disease to which any employment of the employee by the Commonwealth is a contributing factor, and incapacity for work results from that disease, then the contraction of the disease is deemed to be a personal injury to the employee arising out of the employee’s employment by the Commonwealth.  In consequence, the Commonwealth is liable to pay compensation in respect of that deemed personal injury in accordance with s 27 of the 1971 Act, which provides for compensation if personal injury “arising out of or in the course of the employment” of an employee by the Commonwealth is caused to the employee.

11                  Hely J noted that, in s 7 of the 1971 Act a member of the Defence Force ‘shall, for the purposes of this Act, be deemed to be employed by the Commonwealth, and his employment shall, for these purposes, be deemed to be constituted by his performance of his duties as such a member of … the Defence Force …’  (Hely J’s emphasis)

12                  The same formula appears in s 5 of the SRC Act, with the substitution of ‘the person’s performance’ for ‘his performance’ and the substitution of ‘taken’ for ‘deemed’.

13                  It is common ground that, whilst in national service, the respondent was a ‘member of the Defence Force’ within the meaning of those provisions.

14                  Hely J said at [12]-[14]:

‘It follows that Mr Wall would be entitled to compensation under the SRC Act in respect of his IHD and CVA if:

(a)        the ‘disease’ constituted by his IHD was contributed to in a material way by his employment by the Commonwealth; and

(b)               the ‘injury’ constituted by his CVA was an injury arising out of or in the course of his employment by the Commonwealth.

There is an issue between the parties, to which I shall later return, as to whether the words which I have emphasised above in s 7(2) of the 1971 Act, and s 5(2) of the SRC Act lead to the further refinement that entitlement to compensation only arises if:

(a)       the ‘disease’ constituted by his IHD was contributed to in a material way by the performance of his duties as a member of the Defence Force; and

(b)       the ‘injury’ constituted by his CVA was an injury arising out of or in the course of Mr Wall’s performance of duties as a member of the Defence Force.

Clearly enough, the CVA was not an injury suffered ‘in the course of’ Mr Wall’s employment by the Commonwealth, as this ‘injury’ occurred about 30 years after the termination of that employment.  The words ‘out of’ import causation: Kavanagh v Commonwealth (1960) 103 CLR 547 at 558 (Fullagar J).’

15                  Subsequently, Hely J held that the issue to which he referred should be resolved by concluding it was necessary to relate the disease or injury to the performance of Mr Wall’s duties as a member of the Defence Force.  His Honour’s conclusion about that matter is not the subject of dispute before us.

16                  After summarising both the case made to the Tribunal by the respondent and the Tribunal’s conclusions, Hely J noted the Commission’s grounds of appeal.  Only grounds (a) and (c) are now relevant.  They were:

‘(a)      The Tribunal erred in law by failing to consider whether:

(i)        Mr Wall’s injury of CVA arose out of his performance of duties as a member of the Defence Force; and

(ii)               Mr Wall’s disease of IHD was contributed to by his performance of duties as a member of the Defence Force.

…

(c)        The evidence before the Tribunal was incapable of supporting a finding that Mr Wall’s performance of duties as a member of the Defence Force caused Mr Wall’s injury of CVA and contributed to Mr Wall’s disease of IHD.’

17                  Hely J accepted that the issue for the Tribunal was whether the respondent’s claimed disease (IHD) was contributed to in a material way by, and whether his claimed injury (CVA) arose out of, the performance of his duties as a member of the Defence Force.  Hely J said:

‘The Tribunal did not make any express findings as to what was involved in the performance by Mr Wall of his duties as a member of the Defence Force, or as to what those duties were, except that the Tribunal appears not to have accepted Mr Wall’s claim that pain in his arm in consequence of weapons drill was a cause of his smoking habit, although it does not state in express terms that it rejected that claim.

Mr Hanks [senior counsel for the Commission] submits as a consequence that the Tribunal made no finding that any of the factors on which it relied as establishing the requisite causal relationship constituted part of the performance of Mr Wall’s duties as a member of the Defence Force, and in the absence of such a finding, it cannot be said that the Tribunal asked itself the question it was required to answer in order to determine Mr Wall’s entitlement to compensation.

But this submission overstates the position.  The applicable test is more accurately expressed as being whether the IHD was contributed to by, and the CAV arose out of, Mr Wall’s performance of his duties as a member of the Defence Force.  Whilst the Tribunal did not address that question in terms, it did consider whether there is a causal connection between what it described as Mr Wall’s ‘military service’ and the development of his smoking habit, which in turn led to his disabling conditions.

The Tribunal reasoned that ‘military service’ placed Mr Wall in the environment described in [28] of the Tribunal’s reasons, hence the requisite causal nexus was established.  It is clear from the Tribunal’s reasons as a whole that the Tribunal was alive to the distinction between an operative cause of the smoking habit, and the mere provision of a setting in which a person may choose to smoke: cf Repatriation Commission v Tuite (1993) 39 FCR 540 at 541.  Causation is essentially a factual question for the Tribunal to determine, and the fact that members of the Defence Force have never been required to smoke in the performance of their duties was not necessarily fatal to Mr Wall’s claim.

The question thus becomes whether the proceedings before the Tribunal miscarried, because it examined the question whether there was a causal connection between Mr Wall’s ‘military service’ and his smoking habit, rather than whether there was a causal connection between the performance of his duties as a member of the Defence Force and his smoking habit.’

18                  Hely J referred to the well-known High Court comment, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 286-287 (‘Wu Shan Liang’), about courts exercising restraint in dealing with tribunal decisions; in particular not being concerned with looseness in, or unhappy phrasing of, a tribunal’s reasons for decision.  He went on:

‘The application of those principles leads me to conclude that when the Tribunal used the expression ‘the applicant’s military service’ in [29] of its reasons, it was intending to convey that the characteristics or features of Mr Wall’s employment described in [28] of its reasons, and thus the performance of his duties as a member of the Defence Force, contributed to his decision to smoke.  The phrase ‘military service’ is an apt expression to describe the performance of a person’s duties as a member of the Defence Force, which duties extend to ancillary duties or matters incidental to the serviceman’s employment: Commonwealth v Carter (1965) 7 FLR 223 at 227 (Smithers J); Maunder v Commonwealth (1983) 76 FLR 341 at 344 (Sheppard, Morling and Neaves JJ); Commonwealth of Australia v Fernie (1999) 23 SR(WA) 12 at 16 (L A Jackson DCJ).  Mr Hanks QC submitted that on no view of the matter could performance of Mr Wall’s duties as a member of the Defence Force include, for example, living in close proximity to other members of his platoon.  I do not agree.  If he was required by his superiors to live in that way, then the performance of that requirement is a performance of one of his duties as a member of the Defence Force.’

19                  Hely J therefore concluded ‘it has not been established that the Tribunal failed to address the question which the SRC Act required it to determine’.

20                  In relation to ground (c), Hely J said at [47] – [48]:

‘The Commission submits that the evidence which was accepted by the Tribunal was incapable of supporting a finding that Mr Wall’s performance of duties as a member of the Defence Force caused him to commence and continue smoking so as to provide contribution to his injury of CVA and his disease of IHD.  In particular, it is submitted that some, if not all, of the matters attended to by the Tribunal might be described as incidents of life in the military, but they could not be characterised as part of the performance of duties as a member of the Defence Force.

For the reasons earlier given, this submission fails.  It erroneously assumes that there is a necessary distinction between Mr Wall’s military service, and the performance of duties as a member of the Defence Force.  In Commonwealth v Carter (supra) Smithers J said in the context of the 1930 Act (at 227):

‘In this business the Air Force is specifically concerned with the training and general development of its personnel in mind and body and its orders to airmen reach into their lives in many respects not touched by an ordinary employer whose business is to produce goods or services for profit.  This it does by way of authority.  It is the service which determines and supplies what he is to wear, how he will cut his hair, where he may go when on duty or stand-down, what he is to eat or drink, whether he will walk or run, whether he will fetch or carry or indulge in recreation, and in what kind of recreation and when such recreation shall be taken.’

The performance of duties as a member of the Defence Force includes obedience to orders in relation to a wide range of matters.’

The appellant’s submissions

21                  In its notice of appeal against Hely J’s decision, the Commission stated four grounds.  However, in the appellant’s written outline of submissions, these grounds were compressed into three propositions:

‘(i)       the Tribunal could not conclude that Mr Wall’s ischaemic heart disease and cerebrovascular accident qualified as “injuries” for the purposes of the SRC Act without first finding what was involved in the performance of Mr Wall’s duties as a member of the Defence Force;

(ii)       the Tribunal failed to make any findings on that central issue; and

(iii)      the primary Judge erred in failing to find that the Tribunal had omitted to make those essential findings.’

22                  In its outline of submissions, the Commission conceded:

‘that Mr Wall would be entitled to compensation under the SRC Act in respect of his IHD and CVA, if:

the “injury” constituted by his IHD was contributed to in a material degree by Mr Wall’s performance of duties as a member of the Defence Force (for the purposes of the SRC Act) and if Mr Wall’s performance of those duties was a contributing factor to the contraction of the IHD (for the purposes of the 1971 Act); and

the “injury” constituted by his CVA was an injury arising out of or in the course of Mr Wall’s performance of duties as a member of the Defence Force.’  (Original emphasis)

That statement of principle is not disputed by the respondent.

23                  The written submissions noted that Hely J described the phrase ‘military service’ as ‘an apt expression to describe the performance of a person’s duties as a member of the Defence Force, which duties extend to ancillary duties or matters incidental to the serviceman’s employment’.

24                  The appellant argued Hely J’s approach was erroneous; the phrase ‘military service’ ‘glossed over and did not engage with the critical question: how was it that performance of Mr Wall’s duties as a member of the Defence Force “involve[d] a particular liability to the contraction of a smoking habit”?’

25                  The appellant also complained that the Tribunal’s reference to ‘peer pressure, being away from home’ etc omitted any consideration of the question whether these factors were ‘part of or incidental to the performance of Mr Wall’s duties as a member of the Defence Force’.

26                  The submissions concluded:

‘The Tribunal failed to ask and answer the question that it was required to answer – namely, how were the matters identified by the Tribunal as contributing to Mr Wall’s smoking habit incidents of the performance of his duties as a member of the Defence Force?  The Tribunal’s reference to “military service [involving] a particular liability to the contraction of a smoking habit” glossed over that question.

The failure of the Tribunal to make the findings integral to the question whether the performance of Mr Wall’s duties as a member of the Defence Force played a causal role in his adoption of a smoking habit, and the primary Judge’s error in failing to identify that failure on the part of the Tribunal, are the subject of grounds 2.1, 2.2 and 2.4 in the Commission’s Notice of Appeal.

Essentially, the Tribunal found that some characteristics of Mr Wall’s military service and the setting in which that service was undertaken contributed to his starting and continuing to smoke (which in turn contributed to his IHD and CVA).  But the Tribunal failed to find that any of those characteristics or that setting were part of the performance of Mr Wall’s duties as a member of the Defence Force.

The primary Judge’s error in finding that the circumstances associated with Mr Wall’s military service … were indistinguishable from his performance of duties as a member of the Defence Force for the purposes of s 5(2) of the SRC Act is the subject of ground 2.3 in the Commission’s Notice of Appeal.’

27                  In oral submissions, counsel for the appellant (Mr S Gageler SC) took the Court through the history of the legislation and discussed the three authorities noted by Hely J: see para 18 above.

The respondent’s submissions

28                  Counsel for the respondent, Mr M Vincent, supported the reasoning of Hely J.  He disputed the appellant’s claim that the Tribunal ‘glossed over the critical question’.  He said the critical question was not how performance of the respondent’s duties as a member of the Defence Force caused him to develop the smoking habit but whether it had done so.  Counsel submitted that, although the Tribunal did not use the phrase ‘performance of his duties’, its reference to his ‘military service’ amounted to the same thing.

Consideration

29                  We have reached the conclusion that the appeal should be dismissed.  In essence, we agree with the reasons expressed by Hely J.  It is true that the Tribunal did not use the words ‘performance of his duties’, but we agree with Mr Vincent that, in the present context, the term ‘military service’ should be understood as referring to the same thing.

30                  It is important to emphasise that it is not open to this Court to review the Tribunal’s findings of fact unless those findings are vitiated by error of law.  The appeal to this Court is confined to an appeal ‘on a question of law’ (s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)).

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’.

32                  We emphasise the Tribunal’s words ‘In this case’.  Unlike a civilian employee, the respondent did not have the option of coming and going from his place of employment or the option of living away from the job.  The form of national service training which the respondent was required to undertake involved him becoming, for three months, a full-time member of the Defence Force.  During that time, the respondent was required to live in Army barracks in the company of other trainees.  No doubt an important object of the training program was to accustom young men to the experience of living and working together, including under stressful circumstances. 

33                  The passage in the Tribunal’s reasons which is criticised is: ‘I consider that the Applicant’s military service did involve a particular liability to the contraction of a smoking habit’.  Two criticisms are made.  First, it is said that the phrase ‘military service’ does not describe what was involved in Mr Wall’s duties as a member of the Defence Force.  Secondly, it is said that the Tribunal did not make findings on this topic anywhere else in the reasons.

34                  These arguments ignore the two occasions when the Tribunal did address the requirement for the disease or injury to be related to the employment.  The Tribunal was constituted by an experienced lawyer.  We would not conclude that any failure to refer to the required nexus in the passage containing the phrase ‘military service’ represented a failure to adhere to the requirement for the nexus to exist.  We bear in mind the High Court’s stricture in Wu Shan Liang,mentioned by Hely J.  We agree with Hely J that the phrase ‘military service’, in its total context, refers to the performance of Mr Wall’s duties.

35                  It should not be assumed, from the result of this case, that compensation will be available to every former member of the Defence Force who can establish that he or she took up smoking during the military service and subsequently suffered a smoking-related accident or illness.  In any particular case, it will be a question of fact whether there is a causal relationship between the person’s smoking during the period of military service and the onset of the accident or illness.  In a case where it is concluded that the accident or illness was caused by smoking after the period of military service, it will be necessary for the person to show that he or she became so habituated to smoking, during his or her period of military service, that this habit was the effective cause of the later smoking which resulted in the disease.  That is likely always to be a difficult case for an applicant to make good.  However, it is implicit in the Tribunal’s finding that the respondent succeeded in persuading it that this was the situation in the present case.

36                  The facts were for the Tribunal to evaluate.  The only legitimate concern of the Court is whether the Tribunal erred in law.  Hely J did not think so.  Nor do we.  No doubt it would have been possible for Senior Member Allen further to refine his reasons but we do not think he misunderstood or misapplied the relevant legal principles.

Disposition

37                  The appeal should be dismissed with costs.

Associate:

Dated:              8 July 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

GYLES J:

38                  I need not repeat the background to this appeal as it is set out in the judgment of Wilcox and Downes JJ which I have had the advantage of reading in advance.  I regret that I do not agree that the appeal should be dismissed.

39                  It is conceded for the purposes of this appeal that, if there is the relevant causal connection between the respondent’s employment and smoking, then there is the relevant link between employment and the complaints in question which exhibited themselves 33 and 35 years respectively after the respondent’s military service ceased.  Whilst that concession removes a large area of potential controversy, it does not mean that smoking is to be regarded as an injury or a disease in any sense in itself.  Ischaemic heart disease (‘IHD’) and the cerebrovascular accident (‘CVA’) constitute the compensable conditions.  Neither occurred ‘in the course of employment’, no matter what view is taken of the content of that phrase.  It is necessary to establish that the IHD was contributed to by the respondent’s employment and that the CVA arose out of the respondent’s employment.  Thus, an actual causal connection is required between that employment and smoking.

40                  Those are questions of fact.  If the Tribunal considered the questions in accordance with law the Tribunal’s decision could not be challenged, at least unless it could be said to have been so unreasonable that no rational person could have come to it.  That ground is not argued.

41                  The Tribunal identified the real dispute as being whether the respondent’s commencing to smoke during his three months’ full-time national service resulted in the diseases being compensable.  It was said that what had to be asked was whether the respondent’s military service, in particular his full-time service, was responsible for creating the smoking habit.

42                  The critical findings by the Tribunal were as follows:

‘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.

…

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.

…

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.’

43                  The argument for the appellant is, on one view, narrow.  By statute, the respondent’s employment is taken to be constituted by his ‘performance of duties’ as a member of the Defence Force.  The Tribunal did not identify the duties to be performed by the respondent whilst in full-time national service and so never considered the link between the performance of those duties on the one hand and his commencing to smoke on the other.  It was put that the Tribunal had fallen into error by effectively equating the performance of duties to all that happened during full-time service and, in particular, all that happened whilst in camp.  It was submitted that the primary judge was in error in regarding the failure of the Tribunal to address the statutory provisions as being a failure in form rather than substance.  The respondent submits that there was no error in the primary judgment and supports its reasoning.

44                  I appreciate the force of the opinion of the primary judge.  I need no persuasion that tribunals ought to be given much leeway in matters of expression.  However, it seems to me that, if the Tribunal had asked itself the correct question according to the statute, the answer might well have been different from that arrived at.  It may be accepted that the performance of duties includes whatever is incidental to the performance of the duties, namely all that the employee is reasonably required, expected or authorised to do with a view to carrying out his actual duties (per Dixon CJ, The Commonwealth v Wright (1956) 96 CLR 536 at 546) or ‘the service which the soldier is bound as such to render and all that is incidental to it’ (per Kitto J in Wright at 559).  An identification of the duties of national servicemen would, in all likelihood, have brought home to the Tribunal the difficulty of establishing a causal link between the performance of those duties and that which was ancillary or incidental to them on the one hand and the commencement of smoking on the other.  The fact that national service provided the occasion for the respondent to commence smoking does not establish a relevant casual connection between the two.  It needs to be borne in mind that smoking was an entirely voluntary and legal activity.  There is no suggestion in the evidence that there was any duty to smoke or that there were any orders to smoke.  It is difficult to see smoking as ancillary or incidental to any actual duty no matter how widely that term is understood.  Smoking is different in kind from playing cricket for the regiment or attending a mess function. 

45                  It is notorious that in the 1950s smoking was widespread in adult society.  It can safely be assumed for the purposes of argument that many persons between the ages of 16 and 20 took up smoking in many situations.  The factory or the mine, the building site or the office during a break in work were some.  Morning and afternoon breaks were, and are, commonly known as ‘smokos’.  Others would have taken up smoking on a variety of social occasions. It can also be assumed that at the same time, butter, cheese, cream, salt, fried foods, sugar, coffee and alcohol were available at many work canteens and social functions.  Some teenagers with strict or diet conscious parents might well have broken out and formed new habits when exposed in that way to those substances.  Habits so formed might 30 or 40 years later be said to have contributed to heart disease, diabetes, stroke and many more.  It would be somewhat far-fetched to suggest that the church social club serving Devonshire teas with thick clotted cream leading to a lifetime of indulgence in that delicacy would be responsible for a heart attack occasioned by high cholesterol, or that the work canteen which introduced a 19 year old to salt could be responsible for the development of high blood pressure 40 years later.  It is interesting to observe in this connection that the present file included the following note by the respondent:

‘Only use this if they bring up cholesterol

The ‘Army’ further contributed to my Atherosclerosis and coronary heart disease by supplying me with meals for my consumption which were high in saturated fats these included Meats, eggs, Bacon and some vegetables which were cooked large quantities of animal fats and when served they were still dripping in fats which could contribute to any high blood cholesterol levels (B.C.L).

While cholesterol (B.C.L) plays a role in Atherosclerosis and Coronary heart disease, it cannot be called the sole cause or initiator.  Rather, it may be just one of several causes and Stress being one of these and also smoking.’

46                  The underlying question is whether the performance of duties of a national serviceman exposed the respondent to ‘some risk … which was additional to or different from those which in normal circumstances he might be expected to encounter …’ (O’Brien v The Commonwealth (1967) 117 CLR 66 at 77; Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529).  It is clear enough from the passages from the reasons of the Tribunal quoted above that it was implicitly acting upon the view that ‘military service’ encompassed all that occurred during national service and certainly all that occurred whilst in camp.  That may be so for some purposes, but, in my opinion, not for present purposes.  The Tribunal erred in not identifying the duties of a national serviceman and then asking whether smoking had the necessary causal connection with the performance of those duties and whatever was incidental and ancillary to the performance of those duties. 

47                  It follows that the appellant has succeeded in establishing that the primary judge was in error in not so finding.  Whilst I find it difficult to see how the relevant causal connection could be established as a matter of fact, the relief sought is remittal of the matter to the Tribunal.  The appeal should be upheld; the order of the Tribunal set aside and the matter be remitted to the Tribunal for decision according to law.  The appellant does not seek costs of

the proceedings before the primary judge or of this appeal. 

Associate:

Dated:              8 July 2005