Gjorgovska v AFM Cleaning Services Pty Ltd - [2006] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3728 of 2005

SUZANA GJORGOVSKA

Appellant

AFM CLEANING SERVICES PTY LTD

AND ANOR

Respondents

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JUDGES:	CHERNOV, REDLICH, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 April 2006
DATE OF JUDGMENT:	10 May 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 104

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Accident compensation – Work related injury – Leave to bring common law proceedings – Serious injury – Permanent mental or behavioural disorder or disturbance – Credibility of applicant – Appellant unreliable historian – Preponderance of expert medical evidence not preferred by trial judge – Accident Compensation Act 1985, s.134AB(37).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B.W. Collis, QC with Mr A.D.B. Ingram	Ellis Palmos & Co.
For the Respondents	Mr J.H.L. Forrest, QC with Mr J.P. Gorton	Lander & Rogers

CHERNOV, J.A.:

The appellant, Suzana Gjorgovska, appeals against the decision of a County Court judge of 8 April 2005 dismissing her application for leave to bring common law proceedings for recovery of damages for pain and suffering and pecuniary loss arising out of injuries that she claims to have sustained in the course of her employment with the first respondent on 23 April 2001. The application was made pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) and, at the outset, was based on the claim that the injuries fell within the definition of “serious injury” in s.134AB(37)(a) and/or (c) of the Act. As will be explained more fully later, during the hearing of the application, the appellant confined her claim to one that was based on the definition of “serious injury” in paragraph (c) of s.134AB(37) of the Act. Thus, her ultimate case was that, as a result of an incident at the workplace, she suffered permanent, severe, mental or behavioural disorder or disturbance essentially constituted by post traumatic stress disorder, pain, panic disorder with agoraphobia, chronic adjustment disorder with depressed mood and anxiety and depression.

The circumstances giving rise to the appellant’s claim, as found by her Honour, were these. She was employed by the first respondent as a cleaner at La Trobe University each week day between the hours of 4.00am and 6.00am. On 21 April 2001, while working during those hours with a fellow employee, Sam Emini (“Sam”), the appellant attempted to enter a room on the third floor of the building with a view to cleaning it but she could only open the door slightly because it was blocked from the other side. As she commenced to open the door, she heard a male voice coming from the room that spoke in a language other than English. The appellant became frightened, closed the door and fled, apparently to find Sam who was on a lower floor. As she ran, she tripped and fell on the stairs onto her left side. She nevertheless continued until she found Sam and, together, they went to the room in question and found a man, apparently of Chinese origin, standing near its door.…

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: [2006] VSCA 104
Decision Date: 10 May 2006

CaseChat Overview and Summary

The appeal involved Gjorgovska, the appellant, against AFM Cleaning Services Pty Ltd, the respondent, with the Court of Appeal hearing the matter. Gjorgovska sought compensation for a work-related injury that allegedly resulted in a serious injury, defined under the Accident Compensation Act 1985 as a permanent mental or behavioural disorder or disturbance. The primary judge had denied her claim, finding her to be an unreliable historian and preferring the preponderance of expert medical evidence that did not support her claims.

The legal issues before the court encompassed the criteria for determining whether Gjorgovska's injuries qualified as a serious injury under the Act, the weight to be given to her credibility and evidence, and the appropriate interpretation of expert medical evidence. The court had to consider whether the trial judge's assessment of Gjorgovska's credibility and the reliance on expert medical evidence was correct, and whether the decision to deny her claim was just and equitable.

The Court of Appeal examined the evidence and found that the trial judge had not erred in assessing Gjorgovska's credibility. The appellate court noted that while the trial judge had given considerable weight to the expert medical evidence, the judge's findings on Gjorgovska's reliability were well-supported by the evidence presented. The Court of Appeal concluded that the trial judge's decision to deny the claim was consistent with the statutory requirements and the evidence before the court. The appeal was dismissed, and the original decision was upheld.

Orders