No compo for ex-soldier who smoked to 'fit in with fellow troops'

No compo for ex-soldier who smoked to 'fit in with fellow troops'

A former Australian soldier who claimed he developed lung disease after taking up smoking in the Army to ''fit in'' with fellow troops has lost a bid for workers' compensation.

Wayne Fisher served in the Australian Regular Army in the 1980s, completing three months basic training at Kapooka, before undergoing more advanced instruction in artillery.

Mr Fisher was posted to Holsworthy barracks, and later trained as a caterer, serving in the Sydney general headquarters, and then at the catering division at Mosman.

During basic training, Mr Fisher said there were frequent ''smoko'' breaks.

He said his fellow trainees would often smoke, and his roommates at his barracks began to offer him cigarettes.


The soldier said he felt ''peer pressure'' to smoke, saying it was common in mess halls and other areas of the training camps, and that he was regularly offered cigarettes and encouraged to use them.

He soon began buying his own smokes, and he was smoking about 25 to 30 cigarettes per day by the time he was posted to Holsworthy.

That level of smoking continued throughout his army career, and varied during his subsequent time as a civilian truck driver, when he sometimes had up to 60 cigarettes a day.

Eventually, Mr Fisher developed chronic obstructive pulmonary disease, and he claimed compensation and rehabilitation from the army in mid-2011.

He argued that his training at Kapooka caused him to smoke, because of peer pressure, the availability of cigarettes, and the availability of the time and space to smoke at the base.

Mr Fisher said his employment with the Commonwealth, therefore, had contributed significantly to him smoking and subsequently developing the lung disease.

The claim was rejected by the Military Rehabilitation and Compensation Commission later that year.

He then took the case to the Veterans' Appeals Division of the Administrative Appeals Tribunal, which delivered its judgment last week.

The Military Rehabilitation and Compensation Commission fought the proceedings in the tribunal, saying Mr Fisher's service in the army was not causally linked with his smoking.

The commission said the army had merely provided a setting in which Mr Fisher chose to begin using cigarettes.

The tribunal agreed, finding his employment had not caused him to begin smoking.

''There is no evidence that any aspect of his army work necessarily required him to smoke,'' the tribunal found.

''In that environmental setting, the applicant made a choice to take up smoking which, because of its addictive nature, continued throughout his employment with the Commonwealth.''

Mr Fisher pointed to two previous cases involving a conscripted soldiers who won compensation after taking up smoking while in the Army in the 1950s.

But the tribunal found the circumstances in Mr Fisher's case were much different.

''He voluntarily chose to join the army and, accordingly, was serving in Kapooka by choice,'' it found''

''Moreover, he enlisted in the army at a time when there was already a public consciousness of the harm associated with smoking.''

The tribunal affirmed the decision of the Military Rehabilitation and Compensation Commission not to award Mr Fisher compensation.

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