Brewer v Preston Motors Pty Ltd

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 of the Associate Judge

The reasons for the dismissal of the application are contained in the ‘Other Matters’ section of the order, which relevantly provides:
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F.In relation to the plaintiff’s prognosis, Dr Van Vugt opined:
…mesothelioma is an aggressive malignancy which is incurable. The aim of chemotherapy is for increased quality of life, with the hope of extra time stretching into months rather than years.
In general, the 5-year survival for malignant mesothelioma is 5%, with a median survival of 22 months. For the epithelioid subtype which Mr. Brewer has, those numbers are slightly better at 12% and 55 months respectively.
G.Section 135BB of the ACA provides a mechanism to expedite certain cases. It applies if a plaintiff believes that a work-related injury is an asbestos-related condition arising out of, or in the course of, or due to the nature of employment. If a worker commences proceedings under s 134AB or 135A on the basis that s 135BB applies, the worker must, within 30 days of commencing the proceeding, apply to an Associate Judge of the Supreme Court for an order allowing leave for the worker to proceed nunc pro tunc and for an order allowing an expedited trial if the asbestos related condition gives rise to an imminent risk of death.
H.Under s 135BB(4), the Associate Judge of the Supreme Court must not grant the orders unless the Associate Judge is satisfied on the balance of probabilities that the injury arising out of, or in the course of, or due to the nature of, employment is an asbestos-related condition.
I.***
J.The central issue on this application is whether, on the balance of probabilities, the Court is persuaded that the plaintiff’s risk of death is imminent. In Brew v Neptar Jam Pty Ltd &Anor [2015] VSC 762, [27], Zammit J considered the meaning of ‘imminent risk of death’ in s 135BA of the ACA:
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.
K.Here the evidence of life expectancy is limited to Dr Van Vugt’s report. Dr Van Vugt provides her opinion of the plaintiff’s life expectancy based on medium life survival rates. According to Dr Van Vugt, a person with the plaintiff’s condition has a median life expectancy of 55 months (or slightly more than four and a half years). Dr Van Vugt opines that someone with the plaintiff’s condition has only a 12% chance of surviving five years.
L.There is no evidence before the Court about the time a claim such as the plaintiff’s takes under the regular processes, ie if not expedited. Based on my experience of these types of matters, I have assumed that time to be in the order of two to three years. On the basis of the evidence before the Court I cannot be satisfied, on the balance of probabilities, that the plaintiff’s injury gives rise to an imminent risk of death. Accordingly, the plaintiff’s summons will be dismissed.
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C The appeal

The appellant appeals on the following three grounds:
i.The primary judge erred by not hearing and determining the appellant’s application for an order under s 135BB(3)(a) of the Act.
ii.The primary judge erred as he misconstrued s 135BB of the Act as requiring that a precondition to the making of an order for leave under s 135BB(3)(a) of the Act was that the appellant show that he was at imminent risk of death.
iii.The primary judge erred by dismissing the appellant’s application for an order under s 135BB(3)(a) of the Act in circumstances where:
(a)the appellant had an asbestos-related condition being mesothelioma; and
(b)the appellant had brought a proceeding seeking to recover damages in accordance with s 134AB and s 135A of the Act in respect of the asbestos-related condition.[5]
[5]Appellant, Notice of Appeal from Associate Judge dated 24 July 2024 in Brewer vs Preston Motors Pty Ltd & Anor S ECI 2024 03342.
The appeal is confined to the dismissal of the summons in relation to s 135BB only. The appellant makes no complaint regarding the dismissal of the application under s 135BA. The error identified is one with respect to the proper construction of s 135BB.

D Principles

Under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’), an appeal from an order of an Associate Judge comes before a Judge of the Court in the Trial Division. It is a rehearing where error must be demonstrated on the part of the Associate Judge.[6] On hearing an appeal referred to in r 77.06, a Judge has all the powers of the Associate Judge in the first instance. Namely, at r 77.06.9 of the Rules:
(2)       The Judge of the Court shall have power to—
a)   receive further evidence upon questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner;
b)   draw inferences of fact;
c)   give any judgment and make any order which ought to have been given or made; and
d)     make any further or other order as the case may require.[7]
[6]Oswal v Carson [2013] VSC 355, [11].
[7]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06.9(2).
The principles of statutory construction are well established and direct attention to the text, context and purpose.[8]
[8]AB v Independent Broad-Based Anti-Corruption Commission [2022] VSCA 283, 33–4 [123] and the cases cited therein.

E Consideration

Before setting out the text of the provision in question, it is helpful to situate it within the Act. Sections 135BA and 135BB are found within Part IV of the Act, which deals with payment of compensation. Part IV deals both with entitlements to various statutory benefits as well as the conduct of common law proceedings. While it is not necessary, thankfully, to set out in detail all the procedural steps regarding common law proceedings contained in Part IV, some aspects are relevant and should be mentioned. Actions for damages are governed by s 135A of the Act where injuries relate to employment before 12 November 1997. Section 134AB governs actions involving injuries which relate to employment on or after 20 October 1999 but before 1 July 2014.
Both ss 135A(1) and 134AB(1) conditionally extinguish the common law rights of injured workers, subject to a worker satisfying the requirements of these provisions.[9] Each of ss 135A and 134AB set up a similar regime of preliminary steps that must be taken before a damages proceeding can be commenced. Once commenced, the provisions also regulate the award of damages that may be made and the types of damages that can be recovered. The steps to be taken prior to commencement of proceedings at common law require an injured worker to demonstrate that they have a ‘serious injury’ as defined. A serious injury may be established in one of three ways, but all require an application for a certificate of serious injury to be made to the Victorian WorkCover Authority (the VWA). What must accompany an application is prescribed and the VWA has 120 days to respond. First, a worker can apply having concluded the process of assessment of whole person impairment. Where that assessment is 30% or greater, a worker is deemed to have a serious injury. If the assessment in less than 30%, the VWA can grant a certificate of serious injury, notwithstanding a lower whole person impairment assessment. If the VWA does not grant a serious injury certificate, a worker may make an application to a court, usually the County Court, for leave to bring a claim for damages. There is also an avenue to make an application for serious injury without commencing an impairment claim.[10]
[9]See Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure (2017) 55 VR 367, 389 [93] (Osborn and Kaye JJA) there citing Wilson v Nattrass (1995) 21 MVR 41 (Brooking J), 54 (Ashley J), 59 (Hedigan J); Swannell v Farmer [1999] 1 VR 299, 307 [22] (Batt and Buchanan JJA); Victoria v Robertson (2000) 1 VR 465, 466 [1] (Callaway JA), 474 [26] (Hansen AJA).
[10]Accident Compensation Act 1985 (Vic) ss 135A(2DE) and 134AB(12).
The impairment process can be extensive, requiring stabilisation of injury and involving dispute processes which may include conciliation, medical panel opinions and, ultimately, court proceedings to resolve disputes. Similarly, where an application for serious injury is refused and leave is sought from a court, the time from issue to hearing and obtaining judgment and reasons can also itself be lengthy.
Establishing a serious injury by one of these three methods does not immediately permit an injured worker to commence their damages proceeding. Sections 135A and 134AB of the Act each require a conference to be conducted with the VWA or self-insurer acting for the employer. Following that conference, a process of statutory offer by employer and statutory counteroffer by worker must occur. That process is also subject to set timeframes, namely a conference within 21 days of the VWA’s response, a further 60 days for a statutory offer and, following provision of the offer, a further 21 days for a statutory counteroffer.[11]
[11]Ibid.
As can be seen from the above, the time needed to comply with the legislative requirements before being in a position to issue a valid damages proceeding can be lengthy. On occasion it may exceed one or even two years.
It is in this context that ss 135BA and 135BB of the Act have relevance. Section 135BA is found in Division 9A – Actions by terminally ill workers. Section 135BB is found in Division 9B – Actions by workers with asbestos-related conditions.
Section 135BB provides:
Actions by workers with asbestos-related conditions
1.This section applies to a worker who may have an entitlement to recover damages in accordance with section 134AB or 135A in respect of an injury that is an asbestos-related condition arising out of, or in the course of, or due to the nature of, employment.
2.If this section applies, the worker may, subject to compliance with the requirements of this section, bring proceedings in accordance with—
a.section 134AB without complying with the requirements of subsections (1) to (21) and subsections (27), (28), and (38) of that section; or
b.section 135A without complying with subsections (1) to (6) and subsections (13), (13A), (18A) and (18B) of that section.
3.If a worker commences proceedings under section 134AB or 135A on the basis that this section applies, the worker must within 30 days of the commencement of the proceedings apply to an Associate Judge of the Supreme Court—
a.for an order allowing leave for the worker to proceed nunc pro tunc; and
b.for an order allowing an expedited hearing of the proceedings if the asbestos-related condition gives rise to an imminent risk of death.
4.The Associate Judge of the Supreme Court must not grant the orders referred to in subsection (3) unless the Associate Judge of the Supreme Court is satisfied on the balance of probabilities that the injury arising out of, or in the course of, or due to the nature of, employment is an asbestos-related condition.
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Section 135BA provides:
Actions by terminally ill workers
1.This section applies to a worker who may have an entitlement to recover damages in accordance with section 134AB or 135A in respect of an injury arising out of, or in the course of, or due to the nature of, employment believes that that injury or an unrelated medical condition or injury gives rise to an imminent risk of death.
2.If this section applies, the worker may subject to compliance with the requirements of this section bring proceedings in accordance with –
a.section 134AB without complying with the requirements of subsections (1) to (21) and subsections (27), (28), and (38) of that section; or
b.section 135A without complying with subsections (1) to (6) and subsections (13), (13A), (18A) and (18B) of that section.
3.If a worker commences proceedings under section 134AB or 135A on the basis that this section applies, the worker must within 30 days of the commencement of the proceedings apply to an Associate Judge of the Supreme Court—
a.for an order allowing leave for the worker to proceed nunc pro tunc; and
b.for an order allowing an expedited hearing of the proceedings.
4.The Associate Judge of the Supreme Court must not grant the orders referred to in subsection (3) unless the Associate Judge of the Supreme Court is satisfied on the balance of probabilities that the injury arising out of, or in the course of, or due to the nature of, employment or an unrelated medical condition or injury gives rise to an imminent risk of death of the worker.
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Both provisions provide an exception to the constraint on workers commencing actions for damages from injuries arising out of, or in the course of, or due to the nature of, their employment. Importantly, these provisions permit claimants to bypass potentially lengthy procedures otherwise required prior to the issue of proceedings, as well as the power to expedite a proceeding once commenced and regularised.
Section 135BB of the Act was considered by the Court of Appeal in Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure,[12] where Warren CJ said:
Section 135BB was inserted in 2008 by the Asbestos Diseases Compensation Act 2008 (Vic). This provision is specifically directed at workers who are suffering from asbestos-related conditions. It provides that such workers who might otherwise apply for damages under s 135A may instead bring proceedings under s 135BB without satisfying certain requirements imposed by s 135A. Essentially s 135BB provides a less onerous and expedited procedure to claim damages than is provided in s 135A.
However, s 135BB(2) stipulates that in order to bring a proceeding under the section there must be compliance with its own requirements. These requirements are those set out in s 135BB(3). The subsection provides that a worker must apply for an order from an associate judge of the Supreme Court within 30 days of commencing the proceeding allowing the worker leave to proceed nunc pro tunc.[13]
[12](2017) 55 VR 367.
[13]Ibid 369–70 [10]–[11]; see also 393–4 [112] (Osborn and Kaye JJA) where the Court notes that s 135BB also applies to those workers who might otherwise apply for damages under s 134AB, but as Mr Perakis’s employment only related to employment before 12 November 1997 only s 135A was discussed.
Her Honour continued:
Upon its enactment and insertion into the Act, the second reading speech relating to s 135BB recorded the legislature’s intent that the provision be a ‘beneficial amendment’ to the Act. The Minister for Finance, WorkCover and the Transport Accident Commission, said that the amendments were designed ‘to provide expedient processes and procedures for workers with asbestos-related conditions’.[14]
[14]Ibid 370–1 [13] (citations omitted).
Section 135BB(1) of the Act sets out when the section applies. First, the injury is one arising out of employment in Victoria during the relevant time periods, either before November 1997 and/or on or after 20 October 1999. Mr Brewer’s employment spans both periods. Second, the injury is an ‘asbestos-related condition’. Section 135BB(8) provides the definition of an asbestos-related condition. It is as defined in the Asbestos Diseases Compensation Act 2008 (Vic) meaning asbestosis, asbestos induced carcinoma, asbestos-related pleural diseases or mesothelioma.[15] Brewer has an asbestos-related condition.
[15]Asbestos Diseases Compensation Act 2008 (Vic) s 3(1)(a)–(d).
By contrast, s 135BA applies where a worker may have an entitlement to damages for injury arising from employment in Victoria during the relevant time periods and believes that that work-related injury, or another medical condition, gives rise to an imminent risk of death. The distinction is important in construing s 135BB. I accept the appellant’s submission that for s 135BA to apply, the worker must show an imminent risk of death. However, this is not necessary for s 135BB unless the worker is also applying for an expedited trial under sub-s (3)(b) of that provision. In such cases, the imminent risk of death is an applicable to consideration of an order for an expedited hearing under sub-s 3(b). It is not relevant to an order under sub-s 3(a) of s 135BB. That is, an application for expedition of the trial under s 135BB(3)(b) can also be made within 30 days of commencement of the proceeding, but only where the asbestos condition itself gives rise to an imminent risk of death at the time the application under sub-s (3)(b) is made.

In this way, the burden of compliance with steps prior to commencing proceedings is avoided, whether by the provision applicable to terminally ill persons who face an imminent risk of death or by the provision applicable to those with asbestos-related conditions, regardless of their life expectancy. The expedition of the proceeding once regularised is, under either provision, appropriately addressed by the assessment of urgency arising from the relevant medical information.
The error in not granting an order under s 135BB(3)(a), as identified by the appellant is largely captured in the order at paragraph [J] of Other Matters. The error rests in the Associate Judge’s assessment of whether it was appropriate to make an order giving the appellant leave to proceed nunc pro tunc by reference to whether there was a risk of imminent death present arising from the asbestos related condition. This did not fall for consideration under sub-s (3)(a) of s 135BB and no application for expedition was made under sub-s 3(b).
The reasoning of the Associate Judge made no error in refusing leave under s 135BA, because the imminent risk of death facing a worker was a consideration applicable to orders under both sub-s (3)(a) and (b) of that provision. While life expectancy is relevant considering the entirety of the statutory process, both prior to and upon issue of a proceeding of an application under s 135BA, the comments of Zammit J regarding ss 135BA in Brew v Neptar Jam Pty Ltd[16] are inapposite to an application under s 135BB(3)(a). The contrast is exposed by a comparison of the matters of which a court is to be satisfied to grant orders. In s 134BA(4) the Court must be satisfied of both a work-related injury and a condition giving rise to an imminent risk of death. In s 135BB(4) a court must be satisfied only that a worker may have entitlements for a work-related injury that is an asbestos-related condition.
[16][2015] VSC 762.
The plaintiff relied on further evidence in the appeal in accordance with r 77.06.9(2) of the Rules. A further affidavit of the appellant’s solicitor affirmed on 16 September 2024 exhibited a medico-legal report of Dr Johnathon Burdon, a consultant respiratory physician. On the medical records provided to him, Dr Burdon opined that the diagnosis of malignant pleural mesothelioma of the epitheloid sub-type was confirmed histologically and was, on the occupational history provided to him, related to employment with Preston Motors. He formed a view that Brewer has a present life expectancy of ‘9–12 months, 15 months at most’.[17]
[17]Report of Dr Jonathan Burdon dated 31 August 2024, which forms part of exhibit bundle NL-1 in Appellant, ‘Affidavit of Nadia Lucas’ affirmed 16 September 2024 in Brewer vs Preston Motors Pty Ltd & Anor S ECI 2024 03342, exhibit pages 1–4.
Although the report of Dr Burdon changes the state of the evidence going to an ‘imminent risk of death’, it does not bear on the erroneous basis for the dismissal order. Lest there be questions as to why, in light of the further medical evidence as to prognosis given by Dr Burdon, no application of expedition has presently been made, the appellant’s submissions made clear that the proceeding has not yet been served because a claim for statutory benefits under the Act is pending. The issue of the proceeding is protective of the appellant’s potential rights pursuant to s 29(2A) of the Administration and Probate Act 1958 (Vic).
For these reasons, I allowed the appeal and made orders at the conclusion of the hearing setting aside the order of Irving AsJ made on 11 July 2024 and granting leave to the appellant to proceed nunc pro tunc pursuant to s 135BB(3)(a) of the Act. As the orders were sought without notice to the defendants, it was appropriate that I simply reserve any question of costs of the appeal.
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[2024] VSC 595

25 September 2024