Brewer v Preston Motors Pty Ltd - [2024] VSC 595

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
DUST DISEASES LIST

S ECI 2024 03342

BETWEEN:

GARRY BREWER	Appellant
v
PRESTON MOTORS PROPRIETARY LIMITED and FMP GROUP (AUSTRALIA) PTY LIMITED (FORMERLY KNOWN AS BENDIX MINTEX PROPRIETARY LIMITED)	Respondents

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JUDGE:	The Honourable Justice Forbes
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2024
DATE OF RULING:	25 September 2024
CASE MAY BE CITED AS:	Brewer v Preston Motors Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 595

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PRACTICE AND PROCEDURE — Appeal from decision of an Associate Judge – Appeal to Judge of Trial Division — Whether error in dismissing summons seeking leave pursuant to s 135BB of the Accident Compensation Act 1985 (Vic) — Appeal granted.

ACCIDENT COMPENSATION — Construction — Section 135BB of the Accident Compensation Act 1985 (Vic) — Asbestos-related condition — When ‘imminent risk of death’ relevant — Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure (2017) 55 VR 367.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	P Over	Maurice Blackburn Lawyers
For the Respondents	—	—

HER HONOUR:

A Introduction

Mr Garry Brewer (Brewer, the appellant) has been diagnosed with mesothelioma. On 28 June 2024, he filed a generally endorsed writ seeking damages for personal injury sustained as a consequence of exposure to asbestos dust and fibres. The named defendants are his former employer, Preston Motors Proprietary Limited (Preston Motors, the first defendant) and the manufacturer of asbestos products to which he says he was exposed, FMP Group (Australia) Proprietary Ltd (FMP Group, the second defendant). The period of his employment with Preston Motors spans the years 1993 to 2013. Because the claim relates to injury alleged to have arisen in the course of his employment during this time, Brewer’s claim is subject to the provisions of the Accident Compensation Act 1985 (Vic) (the Act).
On 3 July 2024, the appellant filed a summons seeking leave pursuant to s 135BB, or in the alternative s 135BA, of the Act to proceed nunc pro tunc against the defendants (the application).[1] The application was made ex parte[2] and supported by an affidavit of the appellant’s solicitor, which exhibited a medical report of Dr Van Vugt.[3] That report addressed both diagnosis and prognosis of Brewer’s injury.[4] The application was determined on the papers by Irving AsJ who made an order dismissing the summons on 11 July 2024 (the order). Brewer now appeals.
[1]Appellant, Summons dated 3 July 2024 in Brewer vs Preston Motors Pty Ltd & Anor S ECI 2024 03342.
[2]As the writ filed 28 June 2024 had not yet been served on the defendants.
[3]Report of Dr Denise Van Vugt dated 21 June 2024, which forms part of exhibit bundle NL-1 in Appellant, ‘Affidavit of Nadia Lucas’ affirmed 3 July 2024 in Brewer vs Preston Motors Pty Ltd & Anor S ECI 2024 03342, exhibit page 1.
[4]Ibid.

B The decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSC 595
Decision Date: 25 September 2024

CaseChat Overview and Summary

In Brewer v Preston Motors Pty Ltd, the appellant, Brewer, sought an appeal against the dismissal of a summons filed under section 135BB of the Accident Compensation Act 1985 (Vic). The summons was dismissed by an Associate Judge, and Brewer appealed this decision to a Judge of the Trial Division. The central issue was whether there was an error in the dismissal of the summons, which pertained to Brewer's claim of an asbestos-related condition that allegedly posed an imminent risk of death.

The legal issue before the court was the interpretation and application of section 135BB of the Accident Compensation Act 1985 (Vic). Specifically, the court had to determine when an 'imminent risk of death' is relevant in the context of an asbestos-related condition, and whether such a risk warranted the grant of leave under the section in question. The case referred to the decision in Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure, where the court considered the criteria for determining an imminent risk of death.

The court found that there was indeed an error in the Associate Judge's decision to dismiss the summons. The court held that the Associate Judge had misinterpreted the criteria for determining an imminent risk of death in the context of an asbestos-related condition. The Trial Division Judge noted that the risk must be immediate and not speculative, and that the evidence presented by Brewer sufficiently demonstrated that his condition met this threshold. The appeal was therefore allowed, and the matter was remitted back to the Associate Judge for reconsideration in light of the correct legal principles.

The court made no further orders beyond allowing the appeal and remitting the matter for reconsideration. This outcome highlights the importance of correctly interpreting statutory provisions related to imminent risks in the context of asbestos-related claims.

Orders