Until 2005, smoking-related claims for compensation were denied on the basis that smoking (and associated disease or illness) was not reasonably incidental to a claimant's service in the ADF. Until the change, it was policy that the decision to smoke or not to smoke was ultimately a matter of personal choice for the member.
However, a change to the existing policy regarding smoking and its effects was necessary in view of the majority decision of the Full Federal Court in the matter of the Military Rehabilitation and Compensation Commission v Wall [2]([2005] FCAFC 127 (8 July 2005).
A further policy review, conducted in 2017, has led to a policy change in the ways in which smoking-related claims are assessed.
In order to consider liability for smoking related claims it is necessary to consider three important factors:
1. Was the applicant's smoking habit related to service?
Any smoking history of the member prior to and subsequent to commencing military service is an important consideration, as is the frequency of smoking.
The fact that a member smoked prior to service does not in itself preclude a potential liability for a smoking-related condition e.g. a condition or aggravation of a condition resaulting from a service-related increase in smoking.
To assist in assessing a claim, delegates may refer to CLIK 26.7.2 Investigating and determining claims [4].
2. What was the degree to which the applicant's military service impacted on their smoking habit?
In circumstances where the member was a regular smoker prior to commencing military service, close scrutiny should be given to the question of whether the member's military service had a significant effect on the member's smoking, such that the smoking habit can be said to have been caused or contributed to by that service.
Generally, the member's military service must have had a significant effect on the habituation of the member's smoking so that the member continued to smoke during and after service or for a sufficient number of years (irresepective of whether this smoking continued after service) for it to be considered that the service-related smoking habit had the required connection to the claimed injury or disease.
3. If the applicant's smoking habit was related to their service, did that service-related smoking habit cause or contribute to the disease or injury that is the subject of the claim?
There must be medical evidence which establishes the requisite connection between smoking and the disease or injury that is the subject of the claim, having regard to the required standard of proof and contribution under the DRCA or preceding legislation.
In assessing this connection, consideration may be given to the intensity and duration of smoking and, where smoking had ceased, the proximity of the smoking habit to the onset of the disease or injury.
In those cases where smoking is identified as a causal factor by the claimant when submitting their claim, or if medical evidence suggests that a history of smoking contributed to the development of the claimed condition, Delegates should request that claimants complete the “Cigarette Smoking Questionnaire” found at CLIK 26.7.5 [6] which has been approved for use specifically in the assessment of DRCA claims. The questionnaire is used to assist in determining the circumstances during which the claimant commenced smoking and whether the habitual nature of the smoking occurred during a period of ADF employment. It will also indicate whether the claimant ceased smoking upon completion of their service.
The questionnaire is slightly different to the one currently used to determine claims under the VEA, insofar as we are not seeking to obtain information about the number of cigarettes or quantity of other tobacco products regularly or previously smoked by the claimant.
Generally, the date of injury for disease claims is as per the provisions of subsection 7(4) of the DRCA. In the case of smoking related claims this will generally be the date when the disease manifested itself.
In addition, the DRCA requires military employment to have contributed in a material degree (where the date of injury is prior to 13 April 2007) or to a significant degree (where the date of injury is on or after 13 April 2007) to the disease.
Considerations where a smoking-related condition manifests during previous Acts
The superseded Acts are:
The Compensation (Commonwealth Government Employees) Act 1971 (i.e. the '1971 Act') which operated from 1 September 1971 to the commencement of the SRCA on 1 December 1988.
The Commonwealth Employees Compensation Act 1930 (i.e. the '1930 Act') which only applied to ADF employees after an amendment commencing 3 January 1949 and it ceased 1 September 1971.
Commonwealth Employees Compensation Act 1930 (the '1930 Act')
In cases where a disease manifested itself during the currency of the 1930 Act (that is prior to 1 September 1971) Section 10 of the 1930 Act required that a disease be “due to the nature of the employee’s employment” before there could be liability to pay compensation for that disease (see CLIK Ch 21.3.4 [7]). In effect, this meant that the disease had to be an occupational hazard of service in the ADF. Diseases due to the effects of smoking would not necessarily qualify as an “occupational disease” for ADF members.
Compensation (Commonwealth Government Employees) Act 1971 (the '1971 Act')
The 1971 Act requires military employment to have contributed to the disease (see CLIK Ch 21.3.3 [8])
Section 36 of the MRCA precludes the admission of liability under that Act for smoking-related diseases, in relation to periods of service on and after 1 July 2004. This does not preclude smoking-related conditions being accepted under the DRCA with a date of injury on or after 1 July 2004.
If the disease caused by the smoking has been contributed to in a material degree by employment occurring on or after 1 July 04 or before and on or after that date, SRCA does not apply and the MRCA exclusion will apply.
From September 2017, smoking policy has been updated. The changes are as follows:
Previous Policy | Revised Policy |
The member must have commenced smoking as a result of and during the time of their military service. | Any smoking history of the member both prior to and subsequent to commencing military service is an important consideration, as is the frequency of smoking. In circumstances where the member was a regular smoker prior to commencing military service, scrutiny should be given to the question of why it is claimed that the member’s service had any impact on their smoking. The fact a member smoked prior to service does not in itself preclude a potential liability for a smoking related condition eg. a condition or aggravation of a condition resulting from a service related increase in smoking. |
The member must have become so habituated to smoking during their service that the member continued to smoke during and after service | The member’s military service must have had a significant effect on the habituation of the member’s smoking so that the member continued to smoke during and after service or for a sufficient number of years (irrespective of whether this smoking continued after service) for it to be considered that the service related smoking habit had the required connection to the claimed injury or disease. |
The smoking was the direct cause of the illness that has been claimed. | There must be medical evidence which establishes the requisite connection between the claimed condition and smoking. |
Any claims where the member commenced smoking after 1973 should be denied. | Not included. A member’s commencement of smoking after 1973 ought not be a basis for rejecting liability. |
Liability for DRCA smoking-related diseases can only be considered where:
the applicant’s smoking habit can be related to service (caused by or contributed to by service); and
that service-related smoking caused or contributed to the disease or injury that is the subject of the claim; and
a disease manifested itself after 1 September 1971; and
the relevant period of service is between 3 January 1949 and 30 June 2004; and
the member did not continue to serve (and smoke while serving) on and after 1 July 2004.
Cigarette Smoking Questionnaire - SRCA
This form is in connection with your claim for pension and medical treatment and the information you supply will assist in deciding eligibility for benefits under the Safety, Rehabilitation and Compensation Act 1988 (SRCA). In the event of an appeal against a decision, this information may be provided to the Administrative Appeals Tribunal or to the Federal Court.
Claimant's Details
Surname |
Given Name(s) |
SRCA File Number |
||||||
Report Details
1.Have you ever smoked cigarettes on a regular basis?
?No - Please sign the form and return it to the Department
?Yes
2.When did you first start smoking cigarettes on a regular basis? (You may not know exactly when you started to smoke cigarettes regularly, but please be as precise as possible. Please state the day, month and year if known).
/ / |
3.Why did you start to smoke cigarettes on a regular basis?
4.Have you ever stopped smoking permanently?
?No
?Yes - When did you stop smoking permanently?
/ / |
You are reminded that:
The Declaration you signed on the claim form also covers the information you supply on this form.
f "Symbol" \s 7 \h — There are penalties for knowingly making false or misleading statements.
/ / |
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20411%23comment-form
[2] http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2005/2005fcafc0127
[3] https://clik.dva.gov.au/user/login?destination=node/20246%23comment-form
[4] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-26-serious-and-wilful-misconduct/267-smoking/2672-investigating-and-determining-claims
[5] https://clik.dva.gov.au/user/login?destination=node/20107%23comment-form
[6] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-26-serious-and-wilful-misconduct/267-smoking/2675-smoking-questionnaire
[7] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-21-diseases-nexus-work/213-criteria-acceptance-liability-diseases/2134-1930-act
[8] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-21-diseases-nexus-work/213-criteria-acceptance-liability-diseases/2133-1971-act
[9] https://clik.dva.gov.au/user/login?destination=node/20264%23comment-form
[10] https://clik.dva.gov.au/user/login?destination=node/20185%23comment-form
[11] https://clik.dva.gov.au/user/login?destination=node/20164%23comment-form