Laurel Alma Hawkins v Comcare

REASONS FOR JUDGMENT 1 This is an appeal brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) from the decision of the Administrative Appeals Tribunal (the Tribunal) given on 22 December 2000. An appeal under s 44 lies to this Court only on a question of law. 2 By its decision the Tribunal affirmed a decision of a delegate of the respondent, Comcare, denying liability to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) in respect of the death of the applicant's late husband, Robin Albert Charles Hawkins (Mr Hawkins) who died aged 61 years on 7 June 1997. 3 The following summary of the background facts which gave rise to the applicant's claim for compensation is taken from findings of fact made by the Tribunal. The facts found were either common ground, or were based on undisputed evidence. 4 Mr Hawkins was born on 7 April 1936. He served as a member of the RAAF from 29 January 1958 to 28 January 1975. His service was as a specialist signals operator. In that capacity he was engaged in work that was of a secret kind. During his service he held the following postings: · 30 January 1958 - 10 May 1958: Recruit Training Unit in Rathmines undergoing training as a signals operator. · 10 May 1958 - 12 September 1958: RAAF School of Radio in Ballarat. · 12 September 1958 - 5 August 1960: 3 Telecommunications Unit at Pearce in Western Australia (Pearce). · 6 August 1960 - 14 March 1963: Base Squadron Butterworth Det A at Hong Kong (Hong Kong). · 15 March 1963 - 19 June 1964: Pearce. · 20 June 1964 - 18 December 1966: Hong Kong. · 19 December 1966 - 3 January 1971: Pearce. · 4 January 1971 - 14 January 1973: Darwin. · 15 January 1973 - 21 January 1975: Pearce. · 22 January 1975 - 28 January 1975: Amberley. 5 The applicant and Mr Hawkins were married in 1963, having met shortly after Mr Hawkins returned from his first Hong Kong posting. 6 Mr Hawkins died from coronary atherosclerosis. The opinion of the pathologist who conducted a post mortem report for the coroner, which the Tribunal accepted, was that coronary atherosclerosis was the condition leading directly to death but that other significant conditions contributing to death were smoking, an old myocardial infarction, and chronic lung abscesses. 7 Mr Hawkins did not smoke before enlisting or before his first posting to Hong Kong in 1960. He was a fairly heavy smoker when he returned from that posting. Mr Hawkins smoked forty cigarettes a day from the time that he commenced to smoke. He continued to smoke at that rate throughout his service with the RAAF and after his service until about 1985 when he suffered a heart attack. His rate of smoking reduced to about twenty-five cigarettes per day thereafter. 8 During his first posting at Pearce Mr Hawkins worked in an old communications building (the old building) which was described in the evidence as sub-standard and primitive. It comprised a sunken concrete building divided into two sections each about twelve to fourteen metres long by three to four metres wide. The building had no windows and only one door which was kept locked at all times. Ventilation was poor. The building contained twelve to fourteen operators during each shift. The shifts were eight hours in length but could be longer. The Tribunal held that approximately nine out of ten of the signal operators smoked and that they did so during the course of their working day. One witness, Mr Nelson, who worked in the old building at Pearce said that the "air was constantly blue with smoke". He said operators brought their own cigarettes to work and shared them freely with co-workers. Cigarettes were also available from an honour box in the building. 9 The Tribunal found that a pool of blue/grey smoke hung from the ceiling during all shifts except during the midnight to 8 a.m. shift, when there were fewer signal operators working. 10 The Tribunal held that signal operators found their work at Pearce stressful and caused them anxiety. Because of the nature of their work, which they were not free to discuss, they socialised together, and when they did the signal operators all smoked. 11 In Hong Kong, Mr Hawkins and the other signal operators stationed there, worked alone in small cabins located in paddy fields. The cabins measured some six feet by six feet. The work was held to be stressful and caused signal operators anxiety, like the work at Pearce. 12 Evidence led at trial disclosed that in about 1965 the old building at Pearce was replaced by a new building that was better ventilated and more spacious. However, no specific findings were made by the Tribunal as to the date when operations transferred from the old building to the new, or as to the effectiveness of the ventilation in the new building in removing smoke. It is clear from the findings of the Tribunal that signal operators, including Mr Hawkins, continued to smoke in the new building whilst they were on duty. 13 The applicant's statement of facts issues and contentions filed with the Tribunal alleged that Mr Hawkins' death was due to a disease or diseases that were materially contributed to by "his passive smoking" and/or alternatively his smoking. Evidence was given at trial by a cardiologist, Professor A J West. On his evidence the Tribunal found that Mr Hawkins' exposure to passive cigarette smoke whilst he was working in the old building at Pearce was the equivalent of smoking one or two cigarettes each day. 14 Other medical evidence established that Mr Hawkins had suffered from pneumonia in 1969. At that time it was discovered that the lower lobe of his lung was severely compressed, and following surgical intervention the lower lobe expanded to normal size in appearance. He also suffered ventricular fibrillation in July 1989 at which time a bronchoscopy revealed signs consistent with long standing tuberculosis. The pathologist's findings when the autopsy was carried out disclosed severe calcifying atheroma, chronic obstructive airways disease, but negatived the earlier diagnosis of tuberculosis. 15 It is clear from the reasons of the Tribunal that the Tribunal accepted Professor West's evidence about Mr Hawkins' smoking and exposure to smoke. The Tribunal summarised its findings on that evidence as follows: "In cross-examination, Dr West said that he could not find any articles considering the effects of passive smoking upon a smoker. The studies usually concentrated upon smokers and non-smokers. The effects of passive smoking in a non-smoker were, at the most, one to two cigarettes a day. As Mr Hawkins was smoking 40 cigarettes each day, the additional effects of his passive smoking were likely to be very small. No one knows if there is an upper threshold above which cigarettes will cease to have further adverse effects. It is very hard to determine the dose of nicotine from passive smoking. He could not measure the dose that Mr Hawkins would have received from passive smoking in his working environment even though he was told that 90% smoked. Dr West acknowledged that passive smoking could have played a role in Mr Hawkins' condition. The role, though, would have been small and it was not a probable role. The greater the exposure to smoking, the more likely it is that a person will die from smoking related illnesses. He also agreed that the greater the exposure to smoke, the more accelerated a disease will be. The causes of death from smoking related diseases were principally due to vascular disease and cancer. The most common is coronary artery disease."