Brew v Neptar Jam Pty Ltd

[2015] VSC 762

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 06171

TIMOTHY BREW

Plaintiff

v

NEPTAR JAM PTY LTD (ACN 001 427 569)
and
TELSTRA CORPORATION LTD (ACN 051 775 556)

First Defendant

Second Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2015
DATE OF JUDGMENT:	22 December 2015
CASE MAY BE CITED AS:	Brew v Neptar Jam Pty Ltd & anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 762 amended [34]

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APPLICATION PURSUANT TO SECTION 135BA OF THE ACCIDENT COMPENSATION ACT 1985 – Leave to proceed nunc pro tunc and for an expedited hearing – Imminent risk of death of worker – Application allowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Ajzensztat	Maurice Blackburn
For the First Defendant	Lander & Rogers
For the Second Defendant	Mr M.J. Hooper	Herbert Smith Freehills

HER HONOUR:

1. The plaintiff applies under s 135BA(3) of the Accident Compensation Act 1985 (‘the ACA’) for orders for leave to proceed nunc pro tunc and for an expedited hearing.

1. The second defendant opposes the orders being made.

1. Section 135BA of the ACA provides a mechanism for expediting certain proceedings. The provision applies if the plaintiff believes that a work-related injury or an unrelated medical condition or injury gives rise to an imminent risk of death (s 135BA(1)).

1. Where this provision applies, the plaintiff may commence common law proceedings and then (within 30 days of the commencement) seek orders from the Supreme Court to proceed with the proceeding without satisfying a ‘serious injury’ gateway and for an expedited hearing.

1. Under s 135BA(4), the Court may only make orders if:

satisfied on the balance of probabilities that the injury arising out of or in the course of, or due to the nature of employment for an unrelated medical condition or injury gives rise to an imminent risk of death of the worker.

1. The plaintiff relies on the affidavit of John Salanitri sworn 16 December 2015.  The plaintiff filed a generally endorsed writ on 3 December 2015.  In summary, the plaintiff alleges that in the course of his employment with the first defendant, he was required to perform work in close proximity to four antennae affixed to the roof of a building at the first defendant’s premises.  The antennae were owned, maintained and installed by the second defendant.

1. The plaintiff alleges that as a result of working long periods of time in close proximity to the antennae, the plaintiff was exposed to high levels of electromagnetic energy.  He alleges that as a result of the exposure, he has suffered injury, loss and damage, including the development of a right parietal glioblastoma multiforme (GBM), requiring surgery, chemotherapy and radiotherapy.

1. Mr Salanitri deposes, inter alia, that:

(a)he was instructed by the plaintiff on or about 21 July 2015 that the plaintiff had developed a brain tumour that had arisen out of or in the course of his employment with the first defendant;

(b)the diagnosis of a brain tumour was made in or about November 2011;

(c)the plaintiff underwent treatment for the brain tumour in the form of:

(i)right parietal craniotomy and removal of right parietal glioblastoma multiforme, performed by Mr Patrick Chan, neurosurgeon, on 7 November 2011; and

(ii)adjuvant chemo radiotherapy under the care of Dr Laurence Cher, neuro-oncologist and Dr Mori Wadda, radiation oncologist.

1. Mr Salanitri exhibits reports from Mr Patrick Chan dated 29 September 2015; Dr Dwyer, the plaintiff’s treating general practitioner, dated 9 October 2015; and Dr Laurence Cher dated 24 November 2015.

1. Dr Chan first reviewed the plaintiff on 6 November 2011 at the Epworth Hospital.  On 7 November 2011, Mr Chan performed a brain lab frameless stereotactic right parietal craniotomy on 7 November 2011.  The pathology result was reported to be GBM.  The plaintiff recovered well from surgery and underwent chemotherapy and radiotherapy with Dr Mori Wadda, radiation oncologist, and Dr Laurence Cher, neuro - oncologist.

1. Dr Chan is of the opinion that:

(a)whether the tumour could be related to the exposure to electromagnetic fields related to omnidirectional mobile telephone towers on the top of the roof of the hotels where he spent many hours working, remains controversial.  Dr Chan suggested that this be inquired of Dr Laurence Cher;

(b)the overall prognosis remains poor in patients with GBM and the plaintiff’s future medical treatment may potentially include further surgery or other chemotherapeutic regime;

(c)GBM remains a disease that carries a poor prognosis.  It is hard to put an estimate on the plaintiff’s life expectancy.  The medium life survival of someone with GBM with radical surgery and appropriate adjuvant chemo radiotherapy is about 14 months.  The plaintiff has so far fared better as the tumour was diagnosed in 2011 and it is now four years since the diagnosis.

1. Dr Dwyer is of the opinion that the plaintiff’s precise prognosis is uncertain, but that a very substantially reduced life expectancy would be expected.

1. Dr Cher is of the opinion that:

Assessing the longevity in Glioblastoma Multiforme can be difficult.  What we know about Tim’s tumour is that it appeared to start off in a low grade tumour and it is a tumour that is IDH1 mutated.  The data would suggest that high grade tumours that are IDH1 mutated have a medium survival of somewhere between four to six years.  It is clear that this tumour will significantly shorten his life expectancy. …[1]

[1]Exhibit JS4.

1. The plaintiff attends Dr Cher for review every three months.[2]

   [2]Salanitri affidavit at [5].

1. The only evidence before the Court that the injury is employment-related is at paragraph 2 of the Salanitri affidavit in which Mr Salanitri deposes that the plaintiff instructed him that he developed a brain tumour that had arisen out of or during the course of his employment with the first defendant.

1. Section 135BA(1) states that a worker may have an entitlement to recover damages in accordance with s 134AB if the worker ‘believes’ the injury arose out of or in the course of or due to the nature of employment or an unrelated medical injury gave rise to an imminent risk of death. The only evidence before the Court is the plaintiff’s belief. While the Court is unable to determine that the injury is employment-related or similarly, that the injury is an unrelated injury, the relevant question becomes whether there is ‘an imminent risk of death’. The question of whether the injury is work related is a matter for trial.

1. By reason of s 135BA(4), the Court must be persuaded on the balance of probabilities that the risk of death is imminent.

1. The second defendant submits that ‘imminent’ takes its ordinary meaning in s 135BA(4). To be imminent, it must be something that is happening very soon, or is about to take place. Accordingly, the risk of death must be a risk that something is going to happen very soon, or is about to take place.

1. Expressions like ‘imminent’ and ‘very soon’ require context in order to be understood.  What is ‘very soon’ in one context may not be ‘very soon’ in another.  Here, the context is the time it would take to prosecute under regular processes a claim for compensation in respect of an injury arising out of or in the course of, or due to the nature of employment.  ‘Imminent’ or ‘very soon’ must be understood in that context.

1. In this case, the plaintiff is terminally ill.  He was diagnosed with a brain tumour in about November 2011.  The plaintiff’s treating neurologist/neuro oncologist, Dr Laurence Cher, states that people with the plaintiff’s condition have a medium survival of four to six years.  Over four years have elapsed since his diagnosis.  Dr Cher also states that the plaintiff’s condition will significantly shorten his life expectancy.  The plaintiff’s claim is a complex one and can be expected to take several years to prosecute if he is required to comply with the regular processes.

1. The Court was not taken to any authorities on the meaning of ‘imminent risk of death’ in s 135BA. Orders were made under s 135BA(3) in the case of Acir v Frosster Pty Ltd, where the plaintiff had end stage cirrhosis of the liver, and it was estimated that, absent a liver transplant, he had a life expectancy of one or two years.[3]

   [3][2009] VSC 173, [3]-[4] and [14]; [2009] VSC 454, [1]-[2].

1. The meaning of ‘imminent risk’ has been considered in the context of other legislation.  In Chief Executive, Office of Environment and Heritage v Rummery,[4] Pepper J considered the meaning of ‘imminent risk’ in the phrase, ‘imminent risk of serious personal injury or damage to property’.  Her Honour held that ‘imminent risk’ involved a temporal nexus insofar as the risk must be assessed against the likelihood of a personal injury occurring relatively soon and not at some inchoate point in time.[5]  Based on this interpretation, which was consistent with the dictionary definition of ‘imminent’, ‘imminent risk’ meant ‘a situation involving exposure to a danger that is impending, in that it may eventuate at any moment’.[6]  The Court of Criminal Appeal affirmed the construction Pepper J gave to ‘imminent risk’.[7]

   [4](2012) NSWLEC 271 (‘Rummery’).

   [5]Rummery [57].

   [6]Ibid [58].

   [7]Ibid [57].

1. In Civil Aviation Safety Authority v Alligator Airways Pty Ltd,[8] Murphy J considered the meaning of ‘imminent’ in the phrase ‘serious and imminent risk to safety’.  His Honour referred to the Oxford dictionary and said that ‘imminent’ referred to something which is impending or soon to happen.[9]  Justice Murphy said that ‘serious and imminent risk to air safety’ meant a ‘significant…prospect that a risk of considerable harm or damage would actually materialise’.[10]

   [8](2012) FCA 601.

   [9]Ibid [40].

   [10]Ibid [44].

1. I repeat the warning of Pepper J in Rummery, namely that caution must be exercised in applying these authorities to the construction task at hand, given their different statutory language and context.[11]

   [11]Rummery [57].

1. Returning now to the construction task in this matter. Section 135BA was inserted into the ACA by s 12 of the Accident Compensation Legislation (Amendment) Act 2004.  In the Second Reading Speech for the amending legislation, the Minister for WorkCover relevantly said:

The provisions in this Bill will:

streamline processes to improve access to common law for seriously injured and terminally ill workers, so that they receive the compensation they are entitled to without unnecessary delays;

…

Streamlining the common law process

When the government restored access to common law damages for workers injured on or after 20 October 1999, one of the processes included requiring every injured worker seeking access to common law to undergo an impairment assessment.  Experience to date is that the vast majority of injured workers who seek access to common law do so via the narrative test, and not the impairment assessment process.  Some workers are therefore required to undergo an impairment assessment, causing time delays, at a cost to the worker and to the scheme.

The Bill addresses the delay and cost factors through the following changes:

Faster access to common law for those proceeding under the narrative test, by removing the requirement to undergo an impairment assessment first;

Fast tracking common-law process for workers with a terminal illness (for example, mesothelioma), by allowing an application to the courts for a speedier resolution of their claim;

Improvements in the impairment benefit process to speed up compensation claims, by ensuring the level of impairment and the determination of liability are determined at the same time, rather than the existing two-stage process; and

Suspension of the six year limitation of actions period, to ensure that workers do not miss out on entitlements if the common-law process takes more than six years.

Additional powers under ministerial directions will enable the issuing of directions as to the class of cases or types of cases which may go direct to the narrative test.  It is not envisaged that these powers will need to be exercised.  However, the VWA will monitor access under the new arrangements and powers will be available, if on advice from the VWA, ministerial directions need to be issued.[12]

[12]Victoria, Parliamentary Debates, Legislative Assembly, 18 November 2004, 1730-1732 (Robb Hulls, Minister for WorkCover).

1. The Second Reading Speech does not use the expression ‘imminent risk of death’. Rather, it uses the phrase ‘terminal illness’. It says the amendment provides a speedier resolution of claims by people with ‘terminal illness’. The expression ‘terminal illness’ is also seen in the title of s 135BA. The scheme of s 135BA is to provide people with a terminal illness with an expedited or speedier claims process. The section contemplates the regular claims process may take too long for a terminally ill plaintiff, and provide such plaintiffs with an expedited process so they may be awarded damages in their lifetime.

1. The language in the context of s 135BA supports a construction of ‘imminent risk of death’ that is relative to the time taken to complete the claim in accordance with regular processes. In other words, if it is to be expected that a claim prosecuted under the regular processes would take four years, a terminally ill plaintiff with a prognosis of three to four years would likely have an imminent risk of death for the purposes of s 135BA. If, however, it is to be expected that the claim would take one year if prosecuted under the regular processes, the same plaintiff may not have an imminent risk of death for the purposes of s 135BA.

1. The evidence as to the risk of death faced by the plaintiff is somewhat equivocal.

1. Mr Chan and Dr Cher are of the opinion that assessing the longevity in GBM is difficult and, accordingly, it is difficult to put an estimate on the plaintiff’s life expectancy.

1. The second defendant tendered into evidence three letters from Dr Cher to the plaintiff’s general practitioner, Dr Dwyer, dated 2 December 2014, 7 April 2015 and 25 August 2015.  The letters provide an update of the plaintiff’s treatment and four monthly reviews.  There is nothing in the correspondence to suggest the plaintiff’s condition has deteriorated.

1. The difficulty, of course, is that the medical opinions of Dr Cher and Mr Chan suggest that the plaintiff’s life expectancy will be reduced by virtue of the GBM and they are only able to provide estimates of life expectancy based on medium life survival.  The two opinions demonstrate the difficulty in assessing life expectancy in a person who is diagnosed with GBM.  One expert opines that the medium survival is somewhere between four to six years, while the other expert opines that the medium survival is something in the vicinity of 14 months.  The plaintiff has fortunately exceeded the 14 month life expectancy as predicted by Dr Chan on the basis of medium life survival.

1. Dr Cher appears only to be able to give an open-ended estimate that the plaintiff’s life expectancy will be shortened.  It is not clear from Dr Cher’s opinion whether the plaintiff, having been diagnosed in November 2011, has, on average, a further two years life expectancy or it is something greater than that.  Importantly, both experts describe the plaintiff’s prognosis as poor and agree that there is a real potential that the plaintiff, given his medical condition and the treatment he has received, is in the category of people who may have their life expectancy reduced to something as little as 14 months or as long as four to six years from the date of diagnosis, surgery and treatment.

1. On the basis of the evidence, even though the predictions of life expectancy are given as medium survival rates, I consider that those rates apply to this plaintiff and that therefore there is sufficient evidence to satisfy me that on the balance of probabilities that the plaintiff is at risk of imminent death. 

1. In my view, given the plaintiff’s prognosis and the time I expect his claim to take under the regular processes, I am satisfied that pursuant to s 135BA(4), on the balance of probabilities, the plaintiff’s injury gives rise to an imminent risk of death. Accordingly, I will make the orders sought in the plaintiff’s summons that the plaintiff have leave pursuant to s 135BA of the ACA to proceed nunc pro tunc and that an order be made allowing an expedited hearing of the proceeding.

1. I will hear the parties as to an appropriate interlocutory timetable for this matter.