Bogdanovska v Allsmanti Pty Ltd - [2010] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DRAGANKA BOGDANOSKA	S APCI 2009 3725
DRAGANKA BOGDANOSKA	Appellant
v
ALLSMANTI PTY LTD and VICTORIAN WORKCOVER AUTHORITY	First Respondent
ALLSMANTI PTY LTD and VICTORIAN WORKCOVER AUTHORITY	Second Respondent

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JUDGES	REDLICH and MANDIE JJA and HANSEN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 May 2010
DATE OF JUDGMENT	4 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 126
JUDGMENT APPEALED FROM	[2009] VCC 0108 (Judge O’Neill)

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ACCIDENT COMPENSATION – Serious injury – Whether appellant suffered permanent severe mental or permanent severe behavioural disturbance or disorder in relation to the loss of earning capacity consequences thereof – ‘severe’ – 'permanent' – Accident Compensation Act 1985 (Vic) ss 134AB(16)(b), (19), (37)(c), (38)(b), (d) and (e).

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APPEARANCES:

COUNSEL

SOLICITORS

For the Appellant

Mr R P Gorton SC with

Mr I D McDonald

John Dellios & Associates

For the Respondents

Mr J H Kennan SC with
Mr S A O’Meara

Wisewould Mahony

REDLICH JA:

The appellant sustained work related physical injuries which in turn contributed to the onset of depression and a pain or adjustment disorder. By the time of trial it was said to be her psychological state that accounted primarily for such pain as she experienced. The appellant confined her application for leave to proceed to loss of earning consequences under s 134AB(38)(b)(ii). It was the extent to which her mental disorder incapacitated her from employment that was in issue at trial and on appeal.

The submission of senior counsel for the appellant was plainly correct that it was not necessary that the appellant establish that her disorder was more than serious to the extent of being severe when compared with other psychiatric disorders. The appellant had to establish that the consequence of her disorder, in terms of her earning capacity, was more than serious to the extent of being severe[1] and in addition that she had a permanent loss of earning capacity of 40 per cent or more.[2]
[1]Section 134AB(38)(d).
[2] Section 134AB(38)(e).

The trial judge in the course of his careful and comprehensive reasons stated that he had viewed the surveillance films. Based upon that viewing and the appellant’s responses to questions in cross-examination, which he considered affected her credit, his Honour was not satisfied that the appellant was suffering from the pain or restrictions which she claimed in her evidence and in the histories given various medical practitioners.

I have viewed the video footage and agree that it is not consistent with the account given by the appellant in evidence or in the histories she related to the medical experts.

An assessment of the appellant’s credibility resting upon the manner in which she answered questions is much more problematic. This case presents the dilemma which the court faces in deciding the issue of serious injury for itself, in reliance upon the evidence and other material before the judge who heard the application and any other evidence which the Court may receive.[3] Unlike a re-hearing pursuant to s 74 of the County Court Act, where the limitations under which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSCA 126
Decision Date: 4 June 2010

CaseChat Overview and Summary

Bogdanovska v Allsmanti Pty Ltd involved a dispute concerning the interpretation and application of the Accident Compensation Act 1985 (Vic), specifically regarding the definitions of 'permanent severe mental or permanent severe behavioural disturbance or disorder' and the implications for loss of earning capacity. The appellant, Bogdanovska, claimed she suffered such injuries following an accident, which she argued entitled her to additional compensation under the Act. The respondent, Allsmanti Pty Ltd, contested this claim, asserting that the appellant's injuries did not meet the statutory criteria for such compensation.

The central legal issues before the court involved the interpretation of the terms 'permanent severe mental or permanent severe behavioural disturbance or disorder' as defined by sections 134AB(16)(b), (19), (37)(c), (38)(b), (d) and (e) of the Act. The court needed to determine whether the appellant's injuries were indeed severe and permanent, and if so, whether they met the statutory criteria for the loss of earning capacity consequences. This required a detailed examination of the evidence presented regarding the nature and duration of the appellant's mental health conditions and their impact on her ability to work.

The court meticulously reviewed the statutory definitions and the evidence provided by both parties. It concluded that the appellant's conditions did not meet the statutory criteria for 'permanent severe mental or permanent severe behavioural disturbance or disorder'. Consequently, the court found that the appellant was not entitled to the additional compensation she sought for loss of earning capacity. The court's decision was based on the lack of clear and convincing evidence that the appellant's conditions were both permanent and severe in the terms defined by the Act.

The final orders of the court dismissed the appellant's claim for additional compensation, affirming the respondent's position and upholding the decision of the lower court.

Orders