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Tribunal: Deputy President S Boyle

The AAT affirmed the decision to disallow the applicant's claim for compensation.

The applicant's career at sea began in 1958 when he joined the Royal Navy as a non-commissioned officer engineer, serving for nine years. He worked on various warships and stations around the world.

After the navy, he spent 12 years in Swaziland, helping local people learn the wood and paper industry. In June 1976, the applicant moved to Bangladesh and then Syria also supervising wood and paper production.

He immigrated to Australia in 1983 at age 44 working in landscaping and running a coffee lounge and, for a time, as a fulltime carer for his wife.

At age 69, the applicant commenced employment as a catering assistant with Shell/Trident who operate the NW Sanderling. Over the next eight-and-a-half years, he worked on the NW Sanderling, a tanker travelling between the coast of Western Australia, the gas fields and abroad.

The applicant admitted to smoking between 1974 and 1989, but he had quit before joining the NW Sanderling crew.

Smoking was allowed on board the NW Sanderling. At the start, smoking was allowed in cabins; then it was confined to other areas and banned in cabins. At all times, however, the secondary smoke entered the air-conditioning system and was recycled through the ship. 

The applicant's health deteriorated in 2014, and he left the ship for the last time on 3 August 2016. Later that month he failed to complete a physical safety test, which meant that he could no longer go to sea under Australia Maritime Safety Authority rules.

The applicant claimed that his exposure to secondary cigarette smoke while onboard the NW Sanderling made his lung condition worse and resulted in his incapacity for work.

However, medical evidence gathered for the AAT review raised questions about the accuracy of the Applicant's report of only smoking 3-4 cigarettes per day over 15 years. The Applicant's doctor in 2007 referred to the Applicant's history of being a regular 20 per day smoker for more than 40 years, up until he started with Shell on board the NW Sanderling.

The AAT also sought expert advice from a respiratory physician who noted that chronic obstructive pulmonary disease and emphysema take decades to develop. The applicant's condition would have developed, whether or not he had been employed by Shell or exposed to second-hand smoke on board the NW Sanderling. The physician also noted that emphysema usually occurs in a heavy smoker, it can appear in people who smoke less if they are genetically susceptible, which tests showed the applicant was not.

Read the full decision