Roberts v ISS Facility Services Pty Ltd
[2022] VSC 738
•1 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2022 03627
BETWEEN:
| HERBERT ROBERTS | Plaintiff |
| v | |
| ISS FACILITY SERVICES PTY LTD | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 October 2022 |
DATE OF RULING: | 1 December 2022 |
CASE MAY BE CITED AS: | Roberts v ISS Facility Services Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 738 |
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PERSONAL INJURY CLAIM — Application for leave to proceed nunc pro tunc — Application for an expedited hearing — Meaning of imminent risk of death of a worker — Serious injury application — Actions by terminally ill workers — Legionella pneumonia — Application disallowed — Proceeding to be struck out — Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 357(4)(a) — Brew v Neptar Jam [2015] VSC 762 — Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure (2017) 55 VR 367 — Acir v Frosster Pty Ltd [2009] VSC 173 — Accident Compensation Act 1985 (Vic).
STATUTORY INTERPRETATION — Context and purpose — Interpretation of Legislation Act 1984 (Vic), s 36(2A) — SAS Trustee Corp v Miles (2018) 265 CLR 137 —Jolin Nominees Pty Ltd v Daniel Investments (Aust) Pty Ltd [2022] VSCA 209 — Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Over of counsel | Maurice Blackburn |
| For the Defendant | Mr J Cavanagh, solicitor | Lander & Rogers |
TABLE OF CONTENTS
Application.......................................................................................................................................... 1
Mr Roberts’ claim against ISS......................................................................................................... 1
Medical evidence............................................................................................................................... 2
Section 357 of the WIRC Act............................................................................................................ 3
Mr Roberts’ submissions.................................................................................................................. 4
ISS’s submissions.............................................................................................................................. 4
How should ‘imminent risk of death’ be construed?................................................................. 5
Application........................................................................................................................................ 13
HER HONOUR:
Is the plaintiff at ‘imminent risk of death’ per s 357(4)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’)? If so, the Court may give leave nunc pro tunc so that the plaintiff may proceed directly to trial of his damages claim. If not, the plaintiff must follow the usual statutory process and make a serious injury application. The parties say that in the current circumstances, that process would take approximately ten months.
I find the plaintiff’s injury or condition does not give rise to an imminent risk of death. I disallow his application.
Application
The plaintiff, Herbert Roberts, initiated this proceeding by writ filed on 14 September 2022. By summons filed on 21 September 2022, he seeks leave, pursuant to s 357 of the WIRC Act, to proceed nunc pro tunc against the defendant, ISS Facility Services Pty Ltd (‘ISS’). He seeks orders for a speedy trial.
Mr Roberts made his application within the time prescribed in s 357(3) of the WIRC Act, namely within 30 days of the commencement of proceedings.
Mr Roberts’ claim against ISS
Mr Roberts makes the following allegations.
Mr Roberts has been diagnosed with legionella pneumonia. He was exposed to legionella bacteria in the course of his employment as an herbicide operator for ISS.[1]
[1]Statement of Claim filed by Mr Roberts on 21 September 2022, [3], [7].
ISS employed Mr Roberts as a herbicide operator between 2015 and May 2020. His work involved spraying plants and vegetation on the side of roads using a tank filled with water and herbicide.[2]
[2]Ibid, [2].
Between about 27 April 2020 and 8 May 2020, Mr Roberts performed spraying duties at various locations throughout the Mornington Peninsula. He refilled the tank with water from fire hydrants that allegedly contained legionella bacteria.[3]
[3]Ibid, [3], [3(A)].
When filling a tank with water from a fire hydrant, Mr Roberts would use a hose to connect it to the fire hydrant. The hose contained multiple pinhole leaks. He was exposed to contaminated water when filling the tanks from the hydrants using the hose.[4]
[4]Ibid, [2(E)],[3(B)].
Exposure to legionella bacteria in the course of his employment with ISS caused Mr Roberts to suffer pneumonia. As a result of this injury, he continues to suffer from symptoms and disabilities including chronic left pleural effusion with associated pleural thickening, pulmonary embolism, loss of lung function, pain, shock and anxiety.[5]
[5]Ibid, [7].
Medical evidence
Mr Roberts relies primarily on the first medical report from respiratory physician, Dr Ryan Hoy, dated 6 May 2021 (the ‘first report of Dr Hoy’).[6] In this report, Dr Hoy confirms the diagnosis of severe pneumonia caused by legionella pneumophila. Dr Hoy opines that Mr Roberts has reduced lung capacity due to complications from his episode of severe pneumonia. This reduction would increase the risk of respiratory failure if he were to experience a further bout of pneumonia.[7] Dr Hoy states that ‘[t]his would increase the risk of death if that episode of pneumonia were moderate to severe’.[8]
[6]Report of Dr Ryan Hoy dated 6 May 2021 contained in Exhibit JIG-1 to the affidavit of Jane Eleanor Garnett affirmed on 20 September 2022, 2 (‘the first report of Dr Hoy’).
[7]Ibid, 5.
[8]Ibid.
Mr Roberts also relies on the supplementary medical report from Dr Hoy, dated 5 October 2022.[9] In that report, Dr Hoy opines that Mr Roberts ‘is not specifically at risk of acquiring pneumonia due to his lung condition’, and estimates a 10% likelihood of this occurring over the next two years.[10] However, Dr Hoy maintains his opinion that if Mr Roberts were to develop pneumonia or another serious respiratory infection, he would be at risk of a more severe outcome due to his reduced lung capacity. Mr Roberts’ risk of this outcome is higher than the background normal population with lung capacity within the normal range.[11]
[9]Report of Dr Ryan Hoy dated 5 October 2022 contained in Exhibit JIG1 to the supplementary affidavit of Jane Eleanor Garnett affirmed on 14 October 2022 (‘the supplementary report of Dr Hoy’).
[10]Ibid, 2.
[11]Ibid, 1.
ISS relies on newer medical material, postdating the first report of Dr Hoy, which it says does not suggest that Mr Roberts is at imminent risk of death.[12] The material includes two independent medical examination reports, two supplementary reports, and one Medical Panel Certificate of Opinion dated 18 August 2022 together with Reasons for Opinion.[13] The Certificate of Opinion concludes Mr Roberts has a 70% whole person impairment due to the legionella disease. His condition has stabilised and has not significantly changed in the last six months.[14]
[12]Affidavit of John William Cavanagh sworn on 29 September 2022, [6] (‘the Cavanagh affidavit’).
[13]Exhibit JWC1 to the Cavanagh affidavit (n 12).
[14]Certificate of Opinion of the Medical Panel dated 18 August 2022 contained in Exhibit JWC1 to the Cavanagh affidavit (n 12), 23, 25; Report of Dr Nicholas Wilsmore dated 8 December 2021 contained in Exhibit JWC1 to the Cavanagh affidavit (n 12), 6.
Section 357 of the WIRC Act
Section 357 of the WIRC Act follows.
Actions by terminally ill workers or workers with asbestos related conditions
(1)This section applies if a worker who may have an entitlement to recover damages in accordance with Division 2—
(a)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; …
…
(3)If a worker commences proceedings under Division 2 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 injury gives rise to an imminent risk of death of the worker.
Note: An order allowing leave to proceed nunc pro tunc deems proceedings to have commenced before the order was made.
(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—
(a)if subsection (1)(a) applies, 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;[15]
… (bold added)
[15]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 357 (‘WIRC Act’).
Mr Roberts’ submissions
The question is, what is the nature of the risk? Is it imminent? Section 357 refers to an ‘imminent risk of death’ rather than ‘imminent death’. ‘Imminent’ applies to the risk, not death. It means that there is an imminent risk of something occurring. ‘Imminent’ applies to the period over which risk runs. The imminent risk does not need to be a certainty or likelihood. Everyone is at risk of death. However, the risk here has two characteristics — it is related to the injury within the meaning of s 357, and the risk is material.
Mr Roberts has an ‘imminent risk of death’. His medical evidence shows that he could contract pneumonia at any time. There is a 10% risk of that occurring over two years. Mr Roberts is exposed to continuous risk.
ISS’s submissions
The only controversy is what ‘imminent risk of death’ means in a particular case. There are aspects to this matter which differentiate it from the vast majority of other applications brought pursuant to s 357.
The question of whether there is an imminent risk of death must be assessed against the background that it would take approximately 9–10 months if Mr Roberts followed the usual serious injury application process. The Medical Panel has already deemed there to be a serious injury finding. There is no reason that the proceedings could not have been brought far earlier.
The question is the risk of death. The medical reports do not suggest imminent risk of death. Rather, there is a contemplation of surgery occurring to improve the Mr Roberts’ quality of life. His condition is not said to give rise to any risk of death. The risk depends on the prospect of an event occurring. That prospect is less than 10%. Therefore the risk is not impending or soon to happen. It is not imminent.
The medical reports do not suggest that Mr Roberts is particularly at risk of acquiring pneumonia because of a lung condition. It is suggested there is a 10% chance over the next two years. The significance of two years is unexplained. However, if the risk is 10% over two years, it is presumably less if the period is shorter.
How should ‘imminent risk of death’ be construed?
The central issue here is whether Mr Roberts is at an ‘imminent risk of death’ within the meaning of s 357(4)(a) of the WIRC Act. How should that phrase be construed?
The ‘starting point for ascertainment of the meaning of a statutory provision is … the text of the provision considered in light of its context and purpose’.[16] ‘Context includes the legislative context’, as ‘the meaning of a provision must be determined by reference to the entire Act’.[17] The ‘duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’.[18]
[16]SAS Trustee Corp v Miles (2018) 265 CLR 137, 149 [20]; Jolin Nominees Pty Ltd v Daniel Investments (Aust) Pty Ltd [2022] VSCA 209, [44].
[17]Jolin Nominees Pty Ltd v Daniel Investments (Aust) Pty Ltd [2022] VSCA 209, [44] citing SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20], 157 [41], 162–3 [64]. See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47].
[18]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78].
Section 357 of the WIRC Act is beneficial legislation, as the Court of Appeal held in respect of the predecessor section in Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure (‘Perakis’).[19]
[19](2017) 55 VR 367 (‘Perakis’).
The context of s 357(1)(a) points towards an interpretation consistent with its use by terminally ill workers to obtain an expedited process.
The heading of s 357 refers to ‘Actions by terminally ill workers or workers with asbestos-related conditions’. Section 357(1)(b), which is not relied upon here, relates to ‘an injury that is an asbestos-related condition arising out of, or in the course of, or due to the nature of, employment’. Accordingly that part of the heading which refers to actions by ‘terminally ill workers’ must relate to s 357(1)(a). Section 36(2A) of the Interpretation of Legislation Act 1984 (Vic) provides that headings to sections within an Act form part of the Act.[20]
[20]Interpretation of Legislation Act 1984 (Vic), s 36(2A).
Section 357 is contained in Division 3 of Part 7 of the WIRC Act.
Part 7 concerns claims for damages or recovery of contribution. Division 2 sets out the detailed process for making such claims.[21] It also contains limitations on making such claims.
[21]Although it establishes processes, Division 2 is substantive law, and not procedural, according to s 370. So too Division 3.
Division 3 is titled ‘Actions by Terminally Ill Workers or Workers with Asbestos-related Conditions’. It contains ss 357–359. Section 357 provides for an expedited process. Section 357(2) allows the worker to bring proceedings without complying with the usual requirements in ss 326–328 of Division 2, namely establishing they have a serious injury. Section 357(3) requires a worker relying on s 357 to make an application within 30 days of commencing their proceeding. That application is for (a) orders to proceed nunc pro tunc and (b) an order allowing an expedited hearing of the proceedings if the injury or an unrelated medical condition or injury gives rise to an imminent risk of death of the worker. Section 357(4)(a) requires the Court to be 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’.
Section 357(5) addresses the serious consequences if the orders referred to in subsection (3) are not granted. It requires the Court to strike out the proceeding on the ground that s 357 does not apply and that proceedings have not been brought in accordance with Division 2. Section 357(6) provides that if the application is successful, the worker can only recover damages in accordance with Division 2 if they establish that they have a serious injury within the meaning of s 325(2).
Section 358 addresses the consequence of a worker dying after serving proceedings issued in reliance on s 357, where the death was not caused or materially contributed to by the injury to which the proceedings relate, and where the worker has dependants. In such circumstances, the legal personal representative may continue the proceedings, but they are limited and may be subject to an assessment of serious injury.
Section 359 is a beneficial provision. It provides that an application may be made to the County Court for a trustee to administer funds of compensation and that the Court may make such orders if it considers that would be in the best interests of the proposed beneficiary.
The legislative history of s 357 shows an interpretation consistent with providing an expedited process for workers having a terminal illness or an asbestos-related condition.
Section 357 commenced on 1 July 2014, when the majority of provisions of the WIRC Act commenced.[22] The WIRC Act re-enacted provisions of the Accident Compensation Act 1985 (Vic) (‘ACA 1985’), aiming to ‘recast [that act] and the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) into a single act that is simpler and easier to use’.[23] The explanatory memorandum for cl 357 of the Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic) states that the clause:
Allows a worker with a terminal illness or an asbestos-related condition to commence a common law damages action without first having to comply with the serious injury application process or the statutory conference process. Within 30 days of commencing litigation, the worker must apply to the Associate Judge of the Supreme Court for an order of nunc pro tunc which validates the commencement of litigation under this clause; and for an order to allow the action to be expedited if the injury gives rise to an imminent risk of death. The judge is only permitted to grant these orders if they find that the worker does have a terminal illness or an asbestos related condition. If the judge finds that this is not the case, they must strike out the proceedings. These provisions ensure that a worker is not delayed in commencing or proceeding in their common law damages action; as any delays could potentially jeopardise their entitlement to compensation, if they were to die before damages are awarded.
This clause operates the same as sections 135BA and 135BB of the Accident Compensation Act 1985 (Vic), which will continue to apply in relation to injuries which occur before 1 July 2014.[24]
[22]WIRC Act (n 15), s 2(1); In accordance with the Treasury Legislation and Other Acts Amendment Act 2014 (Vic), s 14, a small amendment was made to s 357 which was taken to have been made on 12 November 2013 when the Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic) received Royal Assent. See also ss 24(14) and (15).
[23]Victoria, Parliamentary Debates, Legislative Assembly, 19 September 2013, 3228; Victoria, Parliamentary Debates, Legislative Council, 17 October 2013, 3231.
[24]Explanatory memorandum, Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic) (Amended print), 172–173, cl 357.
The provision appears to have been the basis of limited discussion in parliamentary debate.[25]
[25]See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 17 October 2013, 3493 (‘There are also provisions which the government describes as streamlining … Asbestos and terminal illness provisions that allow for fast-tracking of serious injury applications have been grouped together in the bill’).
There are no reported cases that deal with the definition of ‘imminent risk of death’ in s 357 of the WIRC Act.
Construction is aided by reference to predecessor legislation, namely ss 135BA and 135BB of the ACA 1985.
Save for a change substituting ‘Associate Judge’ for ‘Master of the Supreme Court’, s 135BA currently reflects the language as originally enacted in 2004.[26]
[26]Courts Legislation Amendment (Associate Judges) Act 2008 (Vic), s 74.
In 2008, the Asbestos Diseases Compensation Act 2008 (Vic) inserted division 9B into the ACA 1985, including s 135BB, which was the subject of discussion in Perakis.
Section 135BA falls within Division 9A, ‘Actions by terminally ill workers’. That division was inserted in 2004, by the Accident Compensation Legislation (Amendment) Act 2004 (Vic) (‘the Amending Act’).[27] An express purpose of the Amending Act was to ‘streamline processes enabling seriously injured and terminally ill workers access to common law to ensure they receive their current level of compensation without unnecessary delays’.[28] This was expanded upon in the second reading speech:
[27]Accident Compensation Legislation (Amendment) Act 2004 (Vic), s 12.
[28]Ibid, s 1(a)(i).
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.
This 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 the 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.[29]
[29]Victoria, Parliamentary Debates, Legislative Assembly, 18 November 2004, 1730.
The Explanatory Memorandum for the Accident Compensation Legislation (Amendment) Bill 2004 (Vic) states that the amending clause:
Inserts a new Division 9A into the Accident Compensation Act 1985 (Vic), section 135BA which deals with applications made by terminally ill workers under sections 134AB or 135A. This Division allows workers with terminal illnesses to bring claims outside the requisite pre-litigation processes established by sections 134AB or 135A so as to allow them to issue a writ for damages. If these workers are delayed and pre-decease the issuing of a writ, it will jeopardise entitlements and is at odds with the Administration and Probate Act 1958 (Vic).
Sub-section (1) of this section provides that section 135BA applies if a worker who is entitled to make an application under sections 134AB or 135A in relation to a workplace injury believes that they are at imminent risk of death, whether that risk is due to the workplace injury or an unrelated injury.
Sub-section (2) provides that a worker to whom this section applies may bring proceedings under—
• section 134AB without complying with sub-sections (1)–(21), (27)(28) and (38) of that section;
• section 135A without complying with subsections (1)–(6), (13), (13A), (18A) and (18B) of that section.
Sub-section (3) provides that if a worker commences proceedings under section 134AB or 135A on the basis that section 135BA applies to them, the worker must within 30 days of the issuing of proceedings, apply to the Master of the Supreme Court for orders—
• allowing leave for the worker to proceed nunc pro tunc; and
• allowing an expedited hearing of the proceedings.
Sub-section (4) provides that the Master of the Supreme Court can not grant the orders referred to in sub-clause (3) unless he or she is satisfied on the balance of probabilities that a work-related injury or an unrelated medical condition or injury gives rise to an imminent risk of death to the worker.[30]
[30]Accident Compensation Legislation (Amendment) Bill 2004 (Vic), 11–12.
In Acir v Frosster Pty Ltd,[31] J Forrest J observed as follows concerning s 135BA:
In 2004, Division 9A was introduced to accelerate the process by which actions by terminally ill workers may bring proceedings for injuries or disease arising out of their employment.
…
The intent of Parliament as reflected by s 135BA(2) appears to have been to dispense with the cumbersome and time-consuming procedural requirements stipulated under s 134AB prior to the issue of the serious injury application (eg s 134AB(4)–(10)) as well as the additional time-consuming procedures and processes required to be undertaken prior to the common law proceeding being issued (eg s 134AB(12)–(14)).[32]
[31][2009] VSC 173.
[32]Ibid, [6]–[8].
At issue in that case was whether a trial should proceed by way of jury or judge alone. In setting out the background to the ruling, J Forrest J noted that Mahony J had made orders for an expedited trial, in circumstances where the plaintiff had, absent a liver transplant, a life expectancy of about one year.
Brew v Neptar Jam (‘Brew’) was an application under s 135BA(3) for leave to proceed nunc pro tunc and for an expedited hearing. [33] The applicant had been diagnosed with glioblastoma multiforme (GBM) which had been treated with surgery, radiotherapy and chemotherapy. Medical evidence identified, amongst other things, that:
[33][2015] VSC 762 (‘Brew’). The parties made reference to this authority.
(a) the overall prognosis remained poor in patients with GBM and the plaintiff’s future medical treatment may potentially include further surgery or other chemotherapeutic regime;
(b) GBM remained a disease that carried a poor prognosis. It was 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 was about 14 months. The plaintiff had so far fared better as the tumour was diagnosed in 2011 and it was then four years since the diagnosis;
(c) the plaintiff’s precise prognosis was uncertain, but that a very substantially reduced life expectancy would be expected;
(d) the plaintiff’s tumour appeared to start off in a low grade tumour and it was a tumour that was IDH1 mutated. The data suggested that high grade tumours that were IDH1 mutated had a medium survival of somewhere between four to six years. It was clear that the plaintiff’s tumour would significantly shorten his life expectancy.[34]
[34]Ibid, [11]–[13].
The second defendant, who opposed the application, argued that ‘imminent’ took its ordinary meaning. That is, ‘happening very soon’ or ‘about to take place’.[35]
[35]Ibid, [18].
In Brew, Zammit J (as her Honour was then), held that ‘imminent’ and ‘very soon’ require context to be understood.[36] After considering the legislative history of s 135BA, interpretations of ‘imminent risk’ in differing statutory contexts,[37] and the text of the ACA 1985, her Honour concluded:
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.
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.[38]
[36]Ibid, [19].
[37]Chief Executive, Office of Environment and Heritage v Rummery (2012) NSWLEC 271; Civil Aviation Safety Authority v Alligator Airways Pty Ltd (2012) FCA 601.
[38]Brew (n 33), [26]–[27].
In Brew, it was held that the plaintiff was at risk of imminent death.[39] The evidence of the plaintiff's risk of death was ‘somewhat equivocal’.[40] However, there was common ground between the two experts, in that the plaintiff’s prognosis was poor, and there was real potential, given his medical condition and the treatment that he had received, that he was 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’.[41] Further, the plaintiff’s claim was complex and could be expected to take several years to prosecute if he was required to comply with the regular processes.[42]
[39]Ibid, [33].
[40]Ibid, [28].
[41]Ibid, [32].
[42]Ibid, [20].
In Perakis, the Court of Appeal discussed the legislative history and purpose of s 135BB of the ACA 1985, which applies to actions by workers with asbestos-related conditions,[43] but is similarly worded to s 135BA:
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.
…
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’.[44]
[43]In relation to injuries which occur before 1 July 2014.
[44]Perakis (n 19), 369, 370–371.
The phrase ‘imminent risk of death’ must be construed as a composite phrase.[45] ‘Imminent risk’ should not be construed in isolation. The dictionary definition of ‘imminent’ is ‘likely to occur at any moment; impending’.[46] The risk of death must be imminent. This imports a temporal requirement into the phrase. In accordance with s 357(4)(a) of the WIRC Act, the evidence must establish that there is an imminent risk of death on the balance of probabilities. This is not satisfied if the evidence merely shows a possible risk of death. This construction is consistent with the purpose of s 357, namely a mechanism for terminally ill workers, or those with an asbestos-related condition, to apply for an expedited process.
[45]In respect of composite phrases: see generally Keasey v Director of Housing (2022) 66 VR 45, [22]–[23]. Here, the Court of Appeal cited Sea Shepherd Australia Ltd v Commissioner of Taxation (2013) 212 FCR 252, [34].
[46]Macquarie Dictionary (8th ed, 2020) ‘imminent’ (def 1).
Application
On the balance of probabilities, I am not satisfied that Mr Roberts is at imminent risk of death. The medical evidence does not establish he has such a risk. I shall now address the medical evidence upon which Mr Roberts relies.
Dr Hoy opines that Mr Robert’s condition is permanent but not progressive. He opines that Mr Roberts has a reduced lung capacity. This reduction would increase his risk of respiratory failure if he were to experience a further episode of pneumonia. If that episode of pneumonia were moderate to severe, it would increase his risk of death.[47] Dr Hoy opines that Mr Roberts is not specifically at risk of acquiring pneumonia due to his lung condition.[48] However, Mr Roberts is at risk of ‘a more severe outcome’ if he develops pneumonia or another serious respiratory infection. It would increase his risk of developing hypoxia and respiratory failure.[49] This risk is higher than the normal population with lung capacity in the normal range. If Mr Roberts develops pneumonia, he will likely require intensive treatment. If those treatment measures did not adequately support his oxygenation he would be at risk of death due to the acute episode.[50]
[47]The first report of Dr Hoy (n 6), 5.
[48]The supplementary report of Dr Hoy (n 9), 1.
[49]Ibid.
[50]Ibid, 1–2.
Dr Hoy opines (in answer to a question), that it is difficult to determine the likelihood of Mr Roberts developing pneumonia over the next two years. He provides an estimate of Mr Roberts developing pneumonia or a significant viral infection (and then being at an increased risk of an adverse outcome) of 10% over two years, but notes that this is based on opinion rather than supported by specific medical literature that would provide such an estimation.[51] There is no opinion evidence from other experts before the Court regarding the likelihood of Mr Roberts developing pneumonia.
[51]Ibid, 2.
I accept Dr Hoy’s opinion for the purpose of the ruling. There is a possibility that Mr Roberts will develop pneumonia over the next two years and then be at risk of death. The chance of this occurring has been estimated at 10%. On the balance of probabilities, this does not place Mr Roberts at imminent risk of death.
In Brew, Zammit J (as her Honour was then) determined that 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’.[52] Here, the parties appear to have accepted that the relevant period is the additional time required for the usual statutory procedures, identified as ten months, before a claim for damages is commenced. However, consistent with Brew, the relevant period appears to be ten months, plus the time anticipated for any damages claim. That is, the imminence of the risk of death should be construed relative to the estimated period to complete the claim following the usual statutory process. Such an approach is consistent with s 357 being a mechanism for an expedited process, seeking to avoid situations where a plaintiff’s claim is jeopardised by their death. However, on either approach, Mr Roberts has not established that he is at ‘imminent risk of death’. He is not at imminent risk of death during the next ten months or so; nor is he at imminent risk of death if say, a two year period was considered for both the serious injury application process and the damages claim.
[52]Brew (n 33), [27].
I will make orders pursuant to s 357(5) of the WIRC Act striking out the proceeding.
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