Sejranovic v Berkeley Challenge Pty Ltd

Case [2009] VSCA 108


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3757 of 2007

MIRSADA SEJRANOVIC

Appellant

v

BERKELEY CHALLENGE PTY LTD

Respondent

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JUDGES:

WARREN CJ, NEAVE JA, HARGRAVE AJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

24 October 2008

DATE OF JUDGMENT:

22 May 2009

MEDIUM NEUTRAL CITATION:

[2009] VSCA 108

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ACCIDENT COMPENSATION – Serious injury application under s 134AB(16)(b) of Accident Compensation Act 1985 – Application dismissed by County Court – Appeal to Court of Appeal under s 134AC of the Act – Whether permanent severe mental or behavioural disturbance or disorder consequent on physical injury in course of employment – Appeal allowed and leave granted to commence common law proceeding.

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APPEARANCES: Counsel Solicitors
Appellant Mr J Kennan SC with
Mr A Ingram
Holding Redlich
Respondent Mr R Gorton QC with
Mr J Gorton
Wisewoulds


WARREN CJ

HARGRAVE AJA:

Parties and introduction

  1. The appellant Mirsada Sejranovic was born in Bosnia in 1957.  She migrated to Australia in 1993.  In May 1994, the appellant was injured in a motor vehicle collision (‘the 1994 collision’).  The appellant claimed at the time that her injuries caused her to suffer pain in her neck, shoulders, arms and hands, and that she suffered consequent psychological symptoms.  She made a claim for compensation under the Transport Accident Act 1986 (Vic) in respect of her injuries (the ‘TAC claim’).

  1. In early 1995, while her TAC claim was being considered, the appellant commenced employment with the respondent, cleaning office buildings in the city of Melbourne.  In October 1996, the appellant’s TAC claim was settled.  She was paid about $12,000 together with a contribution towards her legal costs.  Shortly prior to the settlement, the appellant was examined in June 1996 by a neurosurgeon at the request of her solicitors.  She told the neurosurgeon that she suffered continuing pain in her neck, shoulders, arms and legs.  The resulting report prepared by the neurosurgeon was obviously relied upon by the appellant’s solicitors in negotiating a settlement of her TAC claim. 

  1. The appellant also told medical practitioners who examined her in connection with the TAC claim that she was suffering from some mental responses to her physical injuries, including nightmares, anxiety and depression.  These were noted in various medical and psychiatric reports at the time, and these reports must also have been taken into account in arriving at the settlement figure for the TAC claim. 

  1. The appellant now contends that her symptoms arising from the 1994 collision were limited to some pain in her neck and that, well prior to her being injured in the course of employment with the respondent, her neck pain had resolved completely.  Further, she does not recall any of her mental problems arising from the injury suffered by her in the 1994 collision, and denies that any problems which she did experience at that time were persisting at the time she was injured in the course of her employment with the respondent. 

  1. The appellant contends that she first noticed pain arising from her work duties some…

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Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
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[2009] VSCA 108
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CaseChat Overview and Summary

The County Court was called upon to decide an appeal from an earlier determination in the Sejranovic v Berkeley Challenge Pty Ltd case. The primary dispute centred on the eligibility of Mr Sejranovic for compensation under section 134AB(16)(b) of the Accident Compensation Act 1985. The applicant argued that his physical injury sustained during employment resulted in a permanent severe mental or behavioural disturbance or disorder. The County Court had dismissed his application, finding that his mental condition was not a consequence of the physical injury. Dissatisfied with this outcome, Mr Sejranovic appealed to the Court of Appeal, seeking to overturn the County Court's decision and gain permission to pursue a common law claim.

The Court of Appeal had to consider whether the County Court erred in its interpretation of the statutory provisions and the evidence presented. Specifically, the appeal focused on whether Mr Sejranovic's mental condition was indeed a consequence of his physical injury, as required by the statute. The Court needed to determine whether the County Court's findings were reasonable and supported by the evidence. Additionally, the Court of Appeal had to decide if the applicant should be granted leave to initiate common law proceedings.

In its judgment, the Court of Appeal found that the County Court's decision was incorrect. The appellate court concluded that the evidence did support a causal link between the physical injury and the mental condition. The Court of Appeal held that the County Court had not adequately considered the medical evidence and the statutory requirements. As a result, the appeal was allowed, and Mr Sejranovic was granted leave to commence common law proceedings against Berkeley Challenge Pty Ltd. The Court of Appeal emphasised that the evidence did establish a causal connection between the physical injury and the mental condition, which was sufficient to warrant a new hearing of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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