Plaintiff v Defendants

(a) the affidavit of Leah O'Keefe, solicitor for the plaintiff, affirmed 3 July 2025;

(b) the supplementary affidavit of Leah O'Keefe, affirmed 7 August 2025;

(c) written submissions sent to the Court on 8 August 2025.

(a) the affidavit of Diane Sahely sworn 5 August 2025;

(b) written submissions filed 5 August 2025.

1. Ms O'Keefe deposed that the plaintiff has been diagnosed with severe chronic obstructive airways disease (COPD) and that the plaintiff alleges that his work with the first and second defendants caused and/or contributed to the development of his COPD. The plaintiff commenced this proceeding by writ filed 27 June 2025.
2. Ms O'Keefe's affidavit exhibited medical reports from Dr Piers Canty, Respiratory Physician, dated 3 October 2024; Dr Hari Hara Sudhan, Respiratory Physician, dated 13 January 2025; and Dr Ryan Hoy, Consultant Physician at the Alfred Hospital, dated 24 April 2025.
3. Dr Canty assessed the plaintiff on 3 September 2024 and provided a medical report dated 3 October 2024. The opinion expressed by Dr Canty is based on the history provided by the plaintiff, an examination of the plaintiff's medical records and Dr Canty's clinical examination of the plaintiff. Dr Canty described the plaintiff's current condition as:

Mr Kavanagh has restricted exertional capacity, quantifying his ability to walk only approximately 200 m on flat ground. He is limited to one flight of stairs and is also troubled by any physical activity (such as digging in the garden) due to breathlessness. He has an element of chronic (non-infective) bronchitis. In Mr Kavanagh's favour, he has not required prior hospitalisation due to pulmonary disease. He has received only a single course of antibiotics in the last 12 months.

1. Dr Canty provided a diagnosis of the plaintiff in the following terms:

Mr Kavanagh has chronic lung disease, namely severe COPD with associated radiological emphysema (on the basis of provided CT report: Lumus 21 April 2024). He has a significant history of cigarette exposure (no current intake), as well as inhalation exposure to mineral dust, mixed fumes and welding.

1. Dr Canty was asked to provide his opinion of the plaintiff's prognosis, including the details of any likely future treatment. In response Dr Canty said:

Mr Kavanagh has objective evidence of severe pulmonary disease, both from a functional viewpoint (symptoms), as well as objective impairment on lung function (very severe airflow obstruction). He has severe parenchymal lung disease consisting of emphysema on recently performed CT scan. Mr Kavanagh's severe underlying lung disease will result in a reduction in life expectancy, whilst his reduced respiratory reserve increases his risk (morbidity/mortality) should he develop a superimposed pneumonia. In Mr Kavanagh's favour is that he is on appropriate inhaler therapy (Breztri) and has a background of infrequent infections.

1. During the course of the hearing the plaintiff sought to rely on a further report of Dr Hoy dated 30 September 2024. The defendant did not oppose this course. For the purpose of preparing this report Dr Hoy examined the plaintiff on 30 September 2024. Dr Hoy opined on the plaintiff's prognosis as follows:

Unfortunately, Mr Kavanagh has very severely impaired lung function at this point in time. He has a poor prognosis taking into account the severity of his airflow obstruction. If he was to experience a significant exacerbation such as from a respiratory tract infection, he would be at a risk of a severe adverse outcome including respiratory failure or death. Based on the trajectory of his symptoms and the recent level of lung function impairment, I estimate that he has a life expectancy of between three to five years.

1. Dr Hari Hara Sudhan undertook an independent medical examination of the plaintiff on 9 January 2025. Dr Hari Hara Sudhan described that the plaintiff was experiencing severe breathlessness on minimal exertion, that he has to stop for breath after walking less than 100 metres, gets breathless on bending forward to tie his shoelaces, and gets breathless with a burning sensation in his chest on walking up stairs. The doctor diagnosed the plaintiff with very severe COPD and noted there had been a significant reduction in lung function, particularly over the previous eight years. Dr Hari Hara Sudhan was not asked and did not provide a prognosis. In terms of future treatment the doctor noted that the plaintiff was taking medication via inhalers and orally and would require periodic review with a respiratory specialist for monitoring and further management of his lung condition.
2. Dr Ryan Hoy assessed the plaintiff again at the Alfred Occupational Respiratory Clinic on 24 April 2025. Dr Hoy notes that the plaintiff reported a significant decline in his exercise capacity, with shortness of breath on exertion. The plaintiff told Dr Hoy he is limited to walking 100m to 150m. The instructions provided to Dr Hoy were not apparent on the evidence. However, Dr Hoy said the following, relevant to the plaintiff's prognosis:

Mr Kavanagh [i]s at increased risk of severe complications from chest infections if he does develop such an infection due to his COPD. He recently was admitted to hospital with pneumonia. This is certainly an indicator of the severity of his lung disease.

The risk of death related to an episode of pneumonia would depend on the severity of that episode of pneumonia; however, I would estimate that his risk of death from pneumonia was about 25%.

1. Diane Sahely is the defendants' solicitor. Ms Sahely's affidavit exhibited a medical report of Dr Jonathan Burdon dated 6 July 2025. Dr Burdon did not examine the plaintiff. His report was prepared having been provided with medical reports of Drs Hoy, Canty and Hari Hara Sudhan along with other medical records of the plaintiff.
2. Dr Burdon noted that the plaintiff:

..has a history of significant exposure to dusts and fumes during the course of his working life and as discussed in the body of my report above. He has been known to have reduced lung function since the 1990's and has been experiencing progressively increasing short[ness] of breath on exertion over the past four / five years, such that he is now breathless on minimal exertion for example when dressing and showering.

He was been shown to be suffering from severe chronic obstructive airways disease (COPD).

1. Dr Burdon was asked to provide an opinion on the plaintiff's prognosis and to comment on the plaintiff's risk of death from complications, exacerbation or infection given his lung disease. In response, Dr Burdon said:

In my opinion, Mr Kavanagh's prognosis is poor. In my view, his life expectancy is presently in the order of four to five years and that during that time he will experience regular lower respiratory tract infections, including exacerbations of his chronic bronchitis and pneumonia.

Mr Kavanagh is at increased risk of lower respiratory tract infections because of his airways disease and his likely terminal medical event will be a severe pneumonia.

1. Ms O'Keefe's supplementary affidavit deposed to the plaintiff having been admitted to hospital from 12 February 2025 to 19 February 2025 for treatment for bilateral pneumonia, and again from 19 March 2025 to 26 March 2025. Ms O'Keefe's affidavit exhibited relevant hospital discharge summaries.
2. The first discharge summary confirmed that the plaintiff had been admitted to Portland District Hospital on 12 February 2025 with bilateral pneumonia complicated by hypoxia on a background of 'immusuppression' for ulcerative colitis. The plaintiff was 'discharged home well on the 19th of February with a plan to complete a course of oral [antibiotics] and follow up with [his treating doctor] within one week' with a recommendation that he repeat a chest x-ray within four weeks to check that the plaintiff's pneumonia had resolved.
3. The second discharge summary notes that the plaintiff was admitted to Portland District Hospital again on 19 March 2025 with a principal diagnosis of 'Sepsis secondary to Bilateral pneumonia' from four weeks earlier. The plaintiff was discharged on 26 March 2025 to complete his course of medication and follow up with his treating doctor within seven days.

The evidence of timeframes for the regular legislative processes

1. Ms O'Keefe opined that if the plaintiff had to comply with the pre-commencement procedures under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), she estimates, on the basis of the assumptions she articulates that:

(a) it would take him about 10 months to do so if the Victorian Workcover Authority (VWA) were to accept his serious injury application; and

(b) it would take at least 15 to 23 months if the VWA did not accept his serious injury application.

1. Ms O'Keefe set out the basis for her opinion on these timeframes, including the following:

(a) a worker must lodge a serious injury application;

(b) the VWA has 120 days (four months) to determine the application;

(c) if the VWA determines not to grant a serious injury certificate, the worker must issue proceedings in the County Court within 30 days of the date VWA rejects the application;

(d) it may take some time for the County Court to list and hear the application;

(e) if VWA grants a serious injury certificate or the County Court makes orders that a worker has a serious injury, the following process must take place from the date of the grant of the certificate or the making of the order by the County Court:

(i) the parties must hold a conference within 49 days;

(ii) if the matter cannot be resolved at the conference, the VWA has 88 days from the date the serious injury certificate is granted, to serve a statutory offer;

(iii) the worker then has 21 days to accept or make a counter offer;

(iv) the VWA then has 21 days to accept the counter offer;

(v) if the VWA does not accept the counter offer, the worker may issue a writ within 30 days of the VWA's non-acceptance.

1. The defendant broadly accepted the plaintiff's evidence on the relevant timeframes but noted the timeframes represented a 'worst case' and that it was possible the plaintiff would be granted a serious injury certificate which would significantly truncate the time involved. I note the number of days from lodgement of a serious injury application to the filing of a writ identified by Ms O'Keefe adds up to 359 days, although this does not include the time for any application to be listed, heard and determined in the County Court.

1. Section 357 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), falls within Division 3 of Part 7 of the Act. Part 7 deals with actions and proceedings for damages. Division 3 of Part 7 is titled, 'Actions by terminally ill workers or workers with asbestos-related conditions'.
2. Section 357(1) provides:

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; or

(b) 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.

1. Section 357(4) provides that an Associate Judge of the Supreme Court must not grant the order allowing for the worker to proceed nunc pro tunc and for an expedited trial unless 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; or

(b) if subsection (1)(b) applies, the injury arising out of, or in the course of, or due to the nature of, employment is an asbestos-related condition.

1. An application for an order allowing the worker to proceed nunc pro tunc and for an expedited trial must be made within 30 days of the commencement of the proceeding.[1]
2. If the Associate Judge does not grant the nunc pro tunc and expedited trial orders, the Associate Judge must make an order that the proceeding be struck out on the grounds that s 357 does not apply and that the proceeding has not been brought in accordance with Division 2 of the Act.[2]
3. In Brew v Neptar Jam Pty Ltd,[3] Zammit J considered the statutory meaning of the term 'imminent risk of death' in the context of s 135BA of the Accident Compensation Act 1985 (Vic):

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 process 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 process, the same plaintiff may not have an imminent risk of death for the purposes of s 135BA.

1. Both parties in the proceeding before this Court conceded that this provision was relevantly equivalent to s 357 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
2. In Roberts v ISS Facility Services Pty Ltd (Roberts),[4] Ierodiaconou AsJ clarified that:

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 the regular processes'. 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.

1. The plaintiff's counsel submitted that the Court should be satisfied that the plaintiff has sustained an injury arising out of or in the course of his employment or due to the nature of his employment with the defendants. I note that the defendants did not, for the purpose of the application before the Court, seek to challenge this.
2. There was no issue that the plaintiff's application had been brought within the statutory timeframe.
3. Counsel correctly identified the central issue for the Court as being whether the plaintiff has established, on the balance of probabilities, that he is at imminent risk of death and that this required the Court to assess the plaintiff's prognosis against the time it would ordinarily take the plaintiff to have his damages trial heard and determined using the regular process.
4. Counsel relied on the opinion of Dr Hoy that the plaintiff's prognosis, as at 30 September 2024 was three to five years. However, counsel submitted that Dr Hoy's opinion, and indeed Dr Burdon's prognosis of four to five years, have to be considered in light of Dr Hoy's opinion, expressed on 24 April 2025, that the plaintiff's risk of death related to an episode of pneumonia, depending on its severity, was about 25%. Counsel submitted that although a prognosis of four to five years is not typical in an application brought pursuant to s 357 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), that prognosis should be considered in light of the additional risk of the plaintiff's death from pneumonia. In this regard counsel said the evidence demonstrated that the plaintiff was at greater risk of contracting pneumonia because of his COPD, that Dr Burdon had identified severe pneumonia as the likely medical event that would cause the plaintiff's death, and that the plaintiff had been hospitalised twice already in 2025 for pneumonia and complications arising from pneumonia.
5. In Roberts, Ierodiaconou AsJ refused to make nunc pro tunc orders. The medical evidence in that case showed Mr Roberts was not specifically at risk of acquiring pneumonia due to his lung condition, but that if he did develop pneumonia or another serious respiratory infection, Mr Roberts would be at risk of a more severe outcome due to his reduced lung capacity. Mr Roberts' lung condition was permanent but not progressive. There was no medical evidence that offered a general prognosis for Mr Roberts. Rather the evidence established Mr Roberts' had a 10% risk of contracting pneumonia over the following two years, noting that he was at increased risk of respiratory failure because of his reduced lung capacity and that if the episode of pneumonia were moderate to severe, it would increase Mr Roberts' risk of death.
6. The plaintiff's counsel distinguished this case from that in Roberts on the basis that in Roberts there was no conclusive evidence that Mr Roberts had a limited life expectancy. The evidence in this case however established that Mr Kavanagh has a three to five year prognosis (as at 30 September 2024); has had two bouts of pneumonia in the past 25 weeks (not a small risk of pneumonia like Mr Roberts); will regularly experience lower respiratory tract infections such as pneumonia; and has a 25% risk of death if he gets pneumonia again.

1. The defendants' counsel submitted that the plaintiff's life expectancy informs the question of the imminence of his risk of death. In this case, counsel submitted, even on Dr Hoy's estimate of a three to five year prognosis, there is no basis upon which the Court could be satisfied, on the balance of probabilities, that the plaintiff is at imminent risk of death.
2. Counsel said Dr Hoy's opinion regarding the plaintiff's risk of death from pneumonia had to be carefully considered. Dr Hoy's opinion was that the plaintiff's risk of death related to an episode of pneumonia would, depending on the severity of that episode, be estimated to be about 25%. Counsel submitted this left the Court with the task of assessing the plaintiff's chances of suffering a pneumonia infection, then assessing the severity of that infection, and then considering that if that infection was severe, the plaintiff's risk of death was 25%.

1. There is no doubt that the plaintiff suffers from a very serious lung disease which will affect his life expectancy. I am not satisfied, however, that the plaintiff has established, to the requisite standard, that he is at imminent risk of death, within the meaning of that phrase in s 357 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). I have reached that view for the following reasons.
2. The evidence before the Court was that the regular statutory processes involved in obtaining a serious injury certificate or order from the County Court could take up to 23 months. He would then be eligible to file a writ to commence his proceeding in this Court. I estimate that the time likely to be required for the plaintiff to follow the statutory processes and to complete any claim filed in this Court to be in the order of two to two and a half years.
3. Dr Hoy assessed the plaintiff's prognosis as at 30 September 2024 at three to five years. Given the effluxion of time, this prognosis is now closer to two to four years. Dr Burdon estimated the plaintiff's prognosis as poor and between four to five years as at 6 July 2025. Dr Hoy is the plaintiff's treating doctor and has had the benefit of clinically examining the plaintiff numerous times. Dr Burdon based his opinion of the plaintiff's prognosis on a variety of reports provided to him, including the records of Portland District Health. The plaintiff's solicitor's request to Dr Burdon for a medical report was made on 27 June 2025. It is reasonable to infer that the records of Portland District Health provided to Dr Burdon included the hospital discharge summaries from February and March 2025. Weighing this evidence it appears to me that the plaintiff's prognosis is between just over two years to five years, being the lower limit of Dr Hoy's prognosis and the upper limit of Dr Burdon's prognosis.
4. When the prognosis of just over two years to five years is considered against the timeframe required to complete the statutory processes and claim of two to two and a half years, I am not satisfied that the plaintiff has demonstrated, on the balance of probabilities, that he is at imminent risk of death. While there is some overlap between the two timeframes, that overlap is limited to a relatively small number of months and occurs at the very upper end of the estimates for the legal process and the very lower end of the plaintiff's fairly wide prognosis.
5. I do not accept the plaintiff's submission that Dr Hoy's opinion of the 25% risk of the plaintiff's death if he develops a severe pneumonia is an additional risk over and above Dr Hoy's opinion of the plaintiff's prognosis of three to five years as at 30 September 2024. Dr Hoy, at the time he provided his prognosis on 30 September 2024, explicitly notes the plaintiff's risk of a severe adverse outcome including respiratory failure or death if the plaintiff were to experience a significant exacerbation of his condition such as from a respiratory tract infection. In my view it is reasonable to assume that Dr Hoy included within his prognosis the risk of the plaintiff's death from pneumonia infection.
6. Even if I accepted Dr Hoy's assessment of the plaintiff's risk of death from a severe pneumonia infection of 25%, I accept the defendants' submission that this would leave the Court in the position of having to assess the likelihood of the plaintiff suffering from an infection and the likelihood of that infection being severe. The current evidence before the Court provides no basis upon which the Court could undertake that assessment. The fact the plaintiff has been hospitalised twice in the last 25 weeks does not assist. It is apparent from the evidence that the plaintiff is at increased risk of lung infections. It is also apparent that while he was hospitalised in February and March 2025, he does not appear to have suffered a further infection, or required a further hospital admission since March 2025. There is simply no evidentiary basis from which the Court could safely extrapolate the plaintiff's risk of developing a severe pneumonia infection that would put him at 25% risk of death.
7. Finally, I do not accept the defendants' submission that because the plaintiff is working he is unlikely to be at imminent risk of death. The evidence about whether the plaintiff was currently working was unclear. In any event the defendants did not draw a cogent link between the plaintiff's ability to work and any assessment of his risk of death.

1. I am not satisfied that the plaintiff has demonstrated that, on the balance of probabilities, he is at imminent risk of death within the next two to two and a half years, being the estimate of the time required to complete the statutory processes and to complete a claim for damages.
2. I will make orders pursuant to s 357(5) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) striking out the proceeding.
3. My preliminary view, subject to any submissions a party may wish to make, is that the costs of the proceeding should follow the event, ie. the plaintiff should pay the defendant's costs of the proceeding on a standard basis. I request that the parties confer on the question of the costs of the proceeding. If the parties are unable to reach agreement on costs within seven days of the date of this judgment, the proceeding will be relisted for oral submissions.

[1] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 357(3).

[2] Ibid s 357(5).

[3] [2015] VSC 762, [27] (Zammit J).

[4] [2022] VSC 738, [53] (Ierodiaconou AsJ).