Pattison v. Herald & Weekly Times Ltd

The applicant contracted emphysema as a result of exposure to second-hand cigarette smoke in her workplace. In an earlier decision, she was refused leave to bring proceedings for damages under the Accident Compensation Act because she was out of time. (See: Pattison v Herald & Weekly Times Limited [2012] VCC 2014 (19 December 2012)).

This was the hearing of the appeal against that decision. The applicant appealed on the grounds that the lower Court had failed to properly identify the compensable injury as emphysema rather than chronic obstructive airway disease, with the result that it erred in determining the date her injury was known.

The Court upheld the applicant's appeal, granting leave for her to bring proceedings for damages.

Note: the respondent unsuccessfully applied to the High Court for special leave to appeal. The transcript of the High Court's hearing and decision in that application is uploaded here under "Related Documents".

Pattison v. Herald & Weekly Times Ltd [2013] VSCA 121 (23 May 2013)

  • Australia
  • May 23, 2013
  • Supreme Court of Victoria, Court of Appeal

Parties

Plaintiff Lynette Pattison

Defendant Herald & Weekly Times Limited

Legislation Cited

Accident Compensation Act 1985 (Vic)

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"It follows, as we see it, that it was not until January 2008 that the applicant knew of facts sufficient from which objectively to discern that, in addition to chronic asthma or chronic bronchitis or both, she had also been caused to suffer a further and significantly different physiological change to her respiratory system, in the form of emphysema, which was productive of different and irreversible disabling consequences of profoundly greater order than might be caused by asthma or bronchitis. Hence, the applicant did not know until January 2008 of facts which, objectively discerned, disclosed that she had suffered the serious injury which was the subject of her claim. While she may well have decided not to initiate proceedings in respect of her chronic asthma because she was informed that her prognosis for recovery was ‘excellent’ by Dr Sasse, once she was informed of the more serious diagnosis of emphysema, she commenced these proceedings.
"Most importantly, however, to treat emphysema as if it were essentially the same injury as chronic asthma was to overlook the apparently critical difference in ætiology and symptomatology as between emphysema and chronic asthma or chronic bronchitis that, because emphysema alone is destructive of lung tissue, emphysema alone is productive of an irreversibly worsening reduction in lung gas transfer capacity."