Brew v Neptar Jam Pty Ltd

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…