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Similar to the policy on alcohol-related diseases, the Military Compensation Group (MCG) has previously resisted smoking-related claims for compensation on the basis that smoking (and associated disease or illness) is not reasonably incidental to a claimant's service in the ADF. Until recently, it has been the policy of the MCG that the decision to smoke or not to smoke is, or was, ultimately a matter of personal choice for the member.
However, a change to the existing policy regarding smoking and its effects is necessary in view of the 2:1 majority decision of the Full Federal Court in the matter of the Military Rehabilitation and Compensation Commission v Wall ( FCAFC 127 (8 July 2005). A transcript of the Federal Court's decision can be accessed via the following link:
Briefly, in the case of Wall, it was contended that the member's Ischaemic Heart Disease (which was first treated in 1987) and a cerebro-vascular accident (which occurred in 1989) were a result of Mr Wall having smoked for many years. It was also contended that one of the reasons why he commenced smoking during his period of National Service in 1954 was the pain that he suffered in his right elbow as a result of regular rifle drills. However, the Administrative Appeals Tribunal (AAT) in an earlier decision specifically rejected that ground for the claim.
The Federal Court supported the decision of the AAT which found that Mr Wall commenced smoking during his military service (National Service commencing in 1954) because of “many but familiar reasons mainly peer pressure, being away from home, for something to do, plus the availability of cheap cigarettes in an environment where smoking was the norm rather than the exception”. The Federal Court also found that the term “military service” referred to the performance of Mr Wall's duties; in other words, that the connection between Mr Wall having commenced smoking and his military service was part of the performance of his duties.
It should be noted that the Federal Court's decision contained an important reservation; that is, that compensation would only be payable to a former member of the ADF who took up smoking during military service and who subsequently suffered a smoking related injury or disease “where there was a causal relationship between the person smoking during the period of their military service and the onset of the injury” (or disease).
Before such a claim could be successful, the Federal Court observed that it would be necessary for the member to establish that he or she became so habituated to smoking during his or her period of military service that the smoking habit was the effective cause of the later smoking related injury or disease. It also observed that this was likely to be a difficult case for the member to substantiate and made the point that where the member smoked before commencing military service, there would be no liability to pay compensation.
The High Court refused special leave to appeal the decision because it did not raise a special question warranting the High Court's consideration. Accordingly the following policy advice has been written to specifically take account of the precedent set by the Wall decision in the Full Federal Court.