Abuse of alcohol or tobacco products is not contributed to by ADF employment
MCRI 28 states the following policy in relation to claims that diseases arising from the abuse of tobacco products or alcohol are contributed to by ADF employment:
2.2 — MCRS claimants frequently contend that there is liability to pay them compensation for ill effects due to smoking and drinking alcohol because of several factors including:
- the “peer pressure” encountered by many ADF personnel during service to conform with the smoking and drinking habits of others;
- a claimed propensity to smoke and drink due to some members' being bored and allegedly having little else to do at certain times during their service;
- the ready availability of tobacco and alcohol products to members of the ADF.
In this regard, it is frequently argued that the ability of ADF personnel to purchase tobacco and alcohol products free of Government Duty while at sea or on overseas trips or postings makes such products more affordable and therefore more available; and - the “culture” of service in the ADF - in National Office we recall in particular one case some years ago where a senior RAN officer was presented by the Navy with a cigarette case at the time of his graduation from Officers' training college.
4.9 — The most that can reasonably be said of members' smoking tobacco products and drinking alcoholic beverages is that the ADF has traditionally tolerated smoking and drinking by its members. However, those activities cannot be said to have been “required, expected or authorized to do in order to carry out ... duties” by the ADF and cannot therefore be said to be encompassed within the scope of members' “employment”. Nor does the fact that members may at times during their service in the ADF have been able to purchase tobacco and alcohol products free of Government Excise Duty constitute “encouragement” or “support” by the ADF to use or consume such products since the same concession applied to any Australian citizen who travelled outside Australia.
4.10 — The High Court's decision in the case of Humphrey Earl v Speechley and the AAT and Federal Court's more recent decisions in the cases of Williams and Hawkins support the view that smoking tobacco products and drinking alcohol are ultimately matters of personal choice unconnected with the employee's employment. The same principle applies to illicit drugs, although the situation there can be seen to be somewhat different in that it would seem difficult, if not impossible, for a claimant to argue that there was any employment impress at all in his/her using illicit drugs, regardless of the basis for that decision, desire or compulsion. Clearly, no responsible employer would support, condone, or even tolerate use of illicit drugs, whatever the motivation. It would therefore be irresponsible to determine liability to pay compensation on such a basis.
5.Policy
5.1 — The conclusion is that any injury or disease suffered by a member or former member of the ADF as a result of the member's smoking tobacco products, drinking alcohol or using illicit drugs should correctly be considered to be a result of a personal choice by the member. It follows that those activities cannot be considered to have been reasonably required, expected or authorised by the ADF in order for the member to carry out his or her duties. Consequently, such claims should not be accepted for compensation purposes.
Self-medication using tobacco products, alcohol or illicit drugs
MCRI 28 states the following policy in relation to “self-medication” using tobacco products, alcohol or illicit drugs:
2.3... an increasing number of claims are being received in the MCRS on the basis of members' “self medicating” by having smoked or used alcohol (and, in a small number of cases, illicit drugs) to treat psychiatric conditions such as post traumatic stress disorder and anxiety/depressive conditions. Such claims are not uncommon among members who were on board HMAS Voyager or HMAS Melbourne at the time of the collision between those two ships in February 1964, or on board HMAS Melbourne at the time of its later collision with the (US Navy's) USS Frank E Evans in June 1969. Claims for the (delayed) psychological effects of those incidents are more frequently being received in the MCRS and it is frequently claimed that self-medication (as described) was used by the member as a means of dealing with the psychological effects of such incidents. The MCRS can expect to see more such claims in the future, arising not only from the incidents mentioned, but also from other traumatic incidents such as the Black Hawk accident in 1996 and the fire on board HMAS Westralia in 1998.
2.4 — It needs to be clearly stated that the MCRS does not accept the notion that it is reasonable that a member chooses to deal with the effects of injury or disease by self-medicating with tobacco products, alcohol or illicit drugs. It is significant that while the member may see such action as reasonable in the circumstances, the MCRS does not accept that it is reasonable to expect the Commonwealth to pay compensation for the effects of such self-medication when conventional forms of medical treatment would have been readily available to the member, significantly at no cost to the member while he or she was serving in the ADF.