Cummings v Amaca Pty Ltd

[2014] VSC 362

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

S CI 2014 3177

NORMA CUMMINGS	Plaintiff
v
AMACA PTY LTD	First Defendant
NARDIS INVESTMENTS LIMITED	Second Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2014
DATE OF JUDGMENT:	1 August 2014
CASE MAY BE CITED AS:	Cummings v AMACA Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 362

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NEGLIGENCE – Asbestos-related illness – Non-pecuniary loss claim – Part VBA Wrongs Act 1958 – Determination of ‘significant injury’ pursuant to s 28LZN of the Act.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Dimsey of Counsel	Maurice Blackburn
For the First Defendant	Mr K. O’Brien	DLA Piper Australia
For the Second Defendant	Ms E. Archer	Minter Ellison

HIS HONOUR:

1. This matter was before the Practice Court on 9 July 2014. I determined that the proposed plaintiff had suffered a significant injury for the purposes of Part VBA of the Wrongs Act 1958 (Vic). This determination was made under s 28LZN of the Act. It follows that I was satisfied that the claim should be dealt with urgently because of the imminent death of Mrs Cummings and that the injury, if assessed under Division 3 of the Act, would be a significant injury. I stated then that I would deliver short reasons in due course. These are those reasons.

1. Norma Cummings was suffering from mesothelioma.  At the time of this application her death was imminent. This was undisputed.  She wished to bring proceedings against the two defendants for general damages.  She alleged that she was exposed to asbestos products manufactured by the proposed first defendant while her house was renovated many years ago and also when employed by the proposed second defendant.

1. Mrs Cummings’ solicitors applied to this Court under s 28LZN of the Wrongs Act 1958 (‘the Act’) for a determination of significant injury. It is necessary to say something about the scheme of Part VBA of the Act.

1. In 2003, a legislative framework was inserted into the Act which sought to regulate the recovery of damages for personal injury involving claims for non-economic loss. Part VBA does not apply to various types of claim identified in s 28LC – relevantly to the second defendant’s position Part VBA does not apply to a claim to which Part IV of the Accident Compensation Act 1985 (Vic) applies.[1]

   [1]The Wrongs Act 1958 (Vic), s 28LC(2)(c).

1. Part VBA of the Act does apply to the plaintiff’s proposed action against the first defendant. Section 28LE of the Act provides that a person cannot recover damages for non-economic loss “unless the person has suffered significant injury”. Section 28LF sets out what constitutes a significant injury. Relevantly, a person is deemed to be seriously injured if “the court makes a determination in respect of that person under section 28LZN.”[2]

   [2]Ibid, s 28LF(3)(b).

1. Under normal circumstances a claimant seeking a significant injury determination would be required to submit him or herself to the various procedural requirements of Division 2 of Part VBA.  An approved medical practitioner must assess the plaintiff’s degree of impairment in accordance with (inter alia) the AMA guides;[3] in time a certificate of assessment will be issued by the approved medical practitioner, which will state whether or not the plaintiff’s impairment satisfies the threshold level which in the case of injury (other than psychiatric injury) is “impairment of more than 5 per cent.”[4]  The copy of the certificate of assessment must be served on the proposed defendant and must be accompanied by certain prescribed information.[5]  The proposed defendant/respondent must respond within 60 days.[6]  It may request further information and the claimant is obliged to respond to this request.[7]  The respondent may dispute responsibility by maintaining it is not a proper respondent to the claim.[8]  Alternatively, it may accept that it is a proper respondent but dispute the impairment assessment and refer a medical question to a Medical Panel for determination.[9]  The Medical Panel may require the attendance of a registered health practitioner who has examined the plaintiff[10] “and after making its assessment the Panel must state whether the degree of impairment satisfies the threshold level.”[11]  The Medical Panel’s determination on this issue must be accepted by a court in any proceeding on the claim[12] and there is no appeal on the merits available.[13]

   [3]Ibid, s 28LH.

   [4]Ibid, s 28 LB.

   [5]Ibid, s 28LT.

   [6]Ibid, s 28 LW(4).

   [7]Ibid, s 28 LWA(1).

   [8]Ibid, s 28 LW(2)(d).

   [9]Ibid, s 28LW(3)(B); s 28LWE.

   [10]Ibid, s 28LZE.

   [11]Ibid, s 28LZG (4).

   [12]Ibid, s 28LZH(1) and (2).

   [13]Ibid, s 28LZI.

1. I have set out the above in order to demonstrate that under normal circumstances, a plaintiff is required to undertake a time-consuming, cumbersome and expensive process in order to bring a claim for non-economic loss.

1. Section 28LZN sets out a clear and efficient alternative process for a determination of serious injury:

The court may make a determination of significant injury in respect of a claimant if the court is satisfied that –

(a)the claim should be dealt with urgently because of the imminent death of the claimant; and

(b)the injury, if assessed under Division 3, would be a significant injury.

Imminent death of the claimant

1. I was satisfied that the death of the proposed plaintiff was imminent.  The treating oncologist, Mr Zimet, confirmed, shortly before the hearing, the diagnosis of mesothelioma and that Mrs Cummings was likely to die within weeks.  She had been transferred to palliative care and was being treated for pain relief only.[14]  As I have said there was no dispute that Mrs Cummings’ death was imminent.

   [14]These observations were provided in a hearsay form in an affidavit sworn by Victoria Keays, sworn 9 July 2014.  No objection was taken to the evidence being provide in this form.

If the injury were sustained under Division 3 would it be a significant injury

1. The short answer to this question was yes.  The AMA Guides to Evaluation of Permanent Impairment (4^th edition) provide:

(a)that all persons with lung cancers are considered to be severely impaired at the time of diagnosis;[15] and

(b)a severe impairment of the whole person involves a 51-100% impairment.[16]

[15]AMA Guides to the Evaluation of Permanent Impairment 4^th Edition, Chapter 4, Table 10.

[16]Ibid, Table 8.

1. Neither defendant sought to argue that, if assessed under Division 3, Mrs Cummings’ injury would not be a significant injury.

1. Counsel for the first named defendant invited me to consider various observations made recently by Williams J in Multari v Amaca Pty Ltd & Anor.[17]  I propose to reject this invitation. The impugned observations do not arise for consideration in this case. 

   [17] [2014] VSC 277.