Military Compensation and Rehabilitation Commission v Wall

The legislative framework 7 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. The relevant legislation in force when the IHD manifested itself was the Compensation (Commonwealth Government Employees' Act) 1971 (Cth) ('the 1971 Act'). 8 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. 9 Section 7 of the 1971 Act relevantly provides as follows: '7(1) Subject to this section, this Act applies to and in relation to a person who is employed by the Commonwealth … whether he is so employed under a law of the Commonwealth … or under a contract of service … … (2) Without limiting … the generality of the last preceding sub-section - (a) … (b) a member of the Defence Force (c) … 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 …' (emphasis added) 10 The SRC Act (s 4) contains a definition of 'disease', and of 'injury'. 'Disease' is defined so as to mean, relevantly: '(a) any ailment suffered by an employee; or (b) … being an ailment … that was contributed to in a material degree by the employee's employment by the Commonwealth …' 'Injury' is in turn defined so as to mean, relevantly: '(a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) …' In the SRC Act 'disease' is by definition an 'injury', and not, as in the 1971 Act, a deemed injury (see s 29(2)(f)). 11 Section 5 of the SRC Act relevantly provides: '(1) In this Act, unless the contrary intention appears: … employee means: (a) a person who is employed by the Commonwealth …, whether the person is so employed under a law of the Commonwealth or under a contract of service … or (b) … (1A) … (2) Without limiting the generality of subsection (1): (a) … (b) A member of the Defence Force; or (c) … shall, for the purposes of this Act, be taken to be employed by the Commonwealth, and the person's employment shall, for those purposes, be taken to be constituted by … the person's performance of duties as such a member of the Defence Force …' (emphasis added) 12 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. 13 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. 14 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).

The evidence before the Tribunal 15 Mr Wall said he started smoking after enlistment. He had never smoked before that time. He said he was placed in an environment where smoking was the norm. Mr Wall said that, at the time of his medical examination for enlistment (20 October 1953), he reported a history of a broken right arm. Mr Wall said that, had he been properly examined, he would not have been passed as Class A1 medically fit. His right arm condition caused him stress in the performance of guard duties which he found difficult, and he commenced to smoke. He also referred to other conscripts smoking; to smoking being an aspect of social life during his National Service; and to the Army being an environment that encouraged smoking (AB 89). He said that service life contains many potential links to smoking, such as stress, peer pressure, availability and boredom. At the end of his 90 day camp, he was smoking about 20-30 cigarettes a day. 16 Mr Wall's claim was disallowed by Comcare on the basis that while the Army may have tolerated smoking, that was reflective of the general population's attitude towards cigarette consumption at the time. Comcare also said that smoking was not required in the performance of duties by the Australian Defence Force, but was rather a matter of personal choice. 17 Dr Michael Burns is a consultant physician who produced a report that was part of the evidence before the Tribunal. In his report, Dr Burns expressed the opinion that heavy cigarette smoking was a significant factor contributing to Mr Wall's IHD, the onset of which was in 1987, and noted that Mr Wall took up smoking during his period of National Service in the Army. Dr Burns also expressed the opinion, apparently based on Mr Wall's claimed history of pain in the right elbow caused by rifle drills in the Army, that the stress of doing those drills caused Mr Wall to commence and become addicted to cigarette smoking. 18 According to another doctor, Dr O'Rourke, Mr Wall's first symptoms of cardiac disease were on 20 July 1987, when he first sought medical treatment from his local practitioner and Belmont Hospital; and Mr Wall's first CVA occurred in May 1989. 19 Dr O'Rourke attributed Mr Wall's IHD and cerebrovascular accident to a number of factors, including his smoking habit. He did not agree with Dr Burns' opinion that military service conditions contributed significantly to the taking up and continuation of Mr Wall's smoking habit.

The Tribunal's reasoning 20 The Tribunal noted that there is no dispute that Mr Wall's smoking habit was a contributing factor to his IHD and CVA, but further noted that the question to be asked was whether Mr Wall's military service, in particular his full time service, was responsible for creating the smoking habit. The Tribunal posed as the question for its determination (see Wall v Comcare [2004] AATA 229 at [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).' 21 The Tribunal found the following facts: (a) although Mr Wall implicated pain in his arm as a cause of his taking up smoking in the Army, Mr Wall had sought to exaggerate the effect of that pain (at [16], [19]); (b) Mr Wall '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' (at [20]); (c) 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 (at [23]); (d) The enactment of a specific exemption of the Commonwealth from liability for death, injury or disease of a veteran or member of the forces arising out of the use of tobacco products (by the Veterans' Affairs Legislation Amendment (Budget and Compensation Measures) Act 1997 (Cth)) was 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' (at [25]); (e) 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, makes it 'clear that to adopt a smoking habit is a risk of that employment' (at [28]); and (f) Mr Wall's military service did involve a particular liability to the contraction of a smoking habit (at [29]). 22 On the basis of the findings of fact set out in the preceding paragraph, the Tribunal concluded that Mr Wall's claim should be accepted.

Federal Court proceedings 23 The Commission relies upon three grounds of appeal, namely: (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. (b) The Tribunal erred in law in treating the enactment of s 8(6) and s 9(7) of the Veterans' Entitlements Act 1986 (Cth) as: (i) '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 …' (see [25] of the Tribunal's reasons, quoted at [21(d)] above); and (ii) relevant to the question whether Mr Wall's performance of duties as a member of the Defence Forces caused an injury suffered by Mr Wall or contributed to a disease contracted by Mr Wall. (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.

Ground (a) 24 Under the general law, the relationship between the Crown and a member of the defence forces was not that of master and servant. Whilst members of the Defence Forces were in the service of the Crown, they were not employed under an ordinary contract of employment: Commonwealth v Quince (1944) 68 CLR 227 at 238 (Latham CJ), 241 (Rich J), 245-246 (Starke J), 250 (McTiernan J); Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 at 441. In Quince (supra) Rich J said (at 241): '… but the Crown's relation to the [persons de facto engaged in the services of the Crown] is not that of master and servant, and they possess no rights against the Crown justiciable in Courts of Justice unless such rights have been conferred upon them by statute'. (citations omitted) 25 The Commonwealth Employees' Compensation Act 1930 (Cth) ('the 1930 Act') governed the payment of compensation to employees of the Commonwealth until its repeal by the 1971 Act. 'Employee' was defined in the 1930 Act so as not to include any member of the Naval, Military or Air Force of the Commonwealth 26 In 1948 the Federal Parliament decided to extend the benefits of employee's compensation to members of the Defence Forces. The way in which this was achieved was described by members of the High Court in Commonwealth v Wright (1956) 96 CLR 536: there was a direct stipulation that the 1930 Act applied to and in relation to a member of the Defence Force (s 4A(2)), and the definition of 'employee' in s 4(1) was extended so as to include a member of the Defence Force in relation to whom the Act applies. 27 However, as members of the High Court noted in Wright's case, the 1930 Act was extended to members of the Defence Force without making any specific provision to meet the peculiar circumstances of military service such as camp life: Wright at 546 (Dixon CJ), 550 (Webb J), 552 (Fullager J). There was a division of opinion between members of the Court in that case on whether a soldier who was killed whilst returning to camp on a Saturday night (he not being rostered for duty on the Sunday) was then 'travelling to his employment'. 28 Section 7(2) of the 1971 Act, and s 5(2) of the SRC Act can thus be seen as fulfilling a similar function of extending the benefit of employee's compensation to members of the Defence Force (and other Commonwealth officers whose 'employment' by the Commonwealth may be in doubt) as was achieved in relation to members of the Defence Force by the 1948 amendment to the 1930 Act referred to above. However, subsections 7(2) and 5(2) go further, inasmuch as they declare or describe the employment of a member of the Defence Force as being constituted by the person's performance of duties as a member of the Defence Force. 29 For that reason, I accept the submission of Mr Hanks QC, for the Commission, that the question for the Tribunal's determination was whether the claimed disease (IHD) was contributed to in a material way by, and whether the claimed injury (CVA) arose out of the performance of, Mr Wall's duties as a member of the Defence Force. 30 Whether the Tribunal failed to address this question, and thus adopted a legally erroneous approach depends upon an analysis of the language and structure of its reasons, read as a whole and considered fairly in accordance with the approach laid down by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and the well-known principles referred to in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119-120. 31 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. 32 Mr Hanks 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. 33 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. 34 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. 35 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. 36 In Wu Shan Liang, both Kirby J and the remaining members of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) referred with approval to the decision of the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 where their Honours said in a passage equally relevant to the present case (at 286-287): 'The limits within which the jurisdiction is conferred require that it be exercised with restraint. Only in exceptional circumstances should the decision of the Tribunal not be the final decision: Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (No 2) (1980) 47 FLR 131 at 145 (Fisher J); Commissioner of Taxation (Cth) v Cainero (1988) 19 ATR 1301 (Foster J). As the Full Court said in Repatriation Commission v Thompson (1988) 9 AAR 199 at 204: … the nature of the task of this Court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law. This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: Lennell v Repatriation Commission (1982) 4 ALN N54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement & Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 123 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J). 37 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. 38 I am reinforced in that conclusion by the fact that the Tribunal had before it another decision of the Tribunal (differently constituted) in Millwood v Comcare [2004] AATA 116 in which Senior Member Lindsay denied compensation to Mr Millwood because he was not satisfied that any characteristic or feature of Mr Millwood's service (which was of a routine nature), contributed to his decision to smoke; rather service was the setting for his decision to smoke. In the present case, the Tribunal came to a different conclusion on the evidence before it. That is, it came to a different conclusion on what is a factual question. 39 Accordingly, it has not been established that the Tribunal failed to address the question which the SRC Act required it to determine.

Ground (b) 40 Paragraphs 23, 24, 25 and 26 (in part) of the Tribunal's reasons are as follows: '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 …' 41 The Commission contends that the Tribunal erred by treating the addition, in 1997, of s 8(6) and 9(7) to the Veterans' Entitlements Act 1986 ('the VE Act') as relevant to the question that the SRC Act posed for the Tribunal's determination, and as (at [25]) '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 …'. 42 The Tribunal had before it as exhibit A5 a Repatriation Commission Guideline on smoking and alcohol related conditions and military service. The Guideline was issued for the 'benefit of decision-makers', presumably, persons making decisions under the VE Act. It may be accepted that the decisions required to be made under the VE Act are different from the decisions required to be made under the SRC Act, and s 120 of the VE Act contains provisions in relation to the standard of proof for which there is no equivalent in the SRC Act. 43 However, that does not mean that the Tribunal was not entitled to have regard, as it did, to pars (1) and (2) of the Guideline which are quoted in [23] of the Tribunal's reasons (see [40] above). Mr Hanks QC did not submit to the contrary. 44 I accept the submission that the addition, in 1997, of s 8(6) and s(7) to the VE Act is irrelevant to any question which the SRC Act posed for the Tribunal's determination. I also accept the submission that the amendment of the VE Act in 1997 to include those provisions is not a 'direct admission' by the Department of Veterans' Affairs of anything, let alone an admission which would bind any party to those proceedings. 45 But the Tribunal makes it clear in [26] of its reasons that it did not base its decision on the VE Act, as it referred to that Act as an 'entirely different legislative regime' to the SRC Act, and, in particular, a regime which included its own peculiar onus of proof provisions. Whilst the Tribunal does refer to a 'direct admission' by the Department of Veterans' Affairs, the 'admission' neither rises above nor goes beyond the paragraphs of the Guidelines referred to above, which the Tribunal accepts and which at least partially inform its decision. It is apparent from a reading of the Tribunal's reasons that the conclusion which it reached would have been the same irrespective of any supposed admission on the part of the Department of Veterans' Affairs. The Tribunal did not base its decision on any such admission, and as it recognised in [26] of its reasons, the position under the VE Act cannot be determinative of the entirely different legislative regime which the Tribunal was called upon to apply. 46 This ground of appeal is not made out.

Ground (c) 47 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. 48 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.

Conclusion 49 It was for the Tribunal to decide the facts, and to determine issues of causation. The Tribunal did so, and in a way which differs from the approach adopted by differently constituted Tribunals in Millwood (supra), and Barratt v Military Rehabilitation and Compensation Commission [2004] AATA 1141. But that does not mean that the Tribunal in the present case committed an error of law. Rather, it took a view of the facts which would not necessarily have been taken by all persons who may have been called upon to decide that question. 50 The appeal should be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.