O'Neill v TD Williamson Aust Pty Ltd

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
DAMAGES LIST

No. 7982 of 2005

NARELLE DEARNE O'NEILL	Plaintiff
V
T D WILLIAMSON AUST PTY LTD (ABN 11 085 580 369)	Defendant

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JUDGE:	CAVANOUGH  J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2008
DATE OF LAST WRITTEN SUBMISSION	11 March 2008
DATE OF JUDGMENT:	7 October 2008
CASE MAY BE CITED AS:	O'Neill v T D Williamson Aust Pty Ltd
MEDIUM NEUTRAL CITATION:	[2008] VSC 398

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ACCIDENT COMPENSATION – Workplace stress – Psychological condition – Impairment assessment – Deemed serious injury – Negligence action – Application to amend statement of claim – Opposed as introducing a new or separate injury – Matter to be dealt with as a pleading dispute rather than as a separate question – Arguable that amendment would not introduce a new or separate injury – Alleged prejudice to defendant as to costs – Any prejudice insufficient to warrant refusal of application - Amendment allowed – Accident Compensation Act 1985 ss 5, 82, 91, 93, 98C, 103, 104B, 134AB.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Richards SC and Mr N. Dubrow	Clark & Toop
For the Defendant	Mr R. Stanley QC and Ms S. Hinchey	Herbert, Geer & Rundle

HIS HONOUR:

Overview

1. In July 1999 the plaintiff commenced employment with the defendant as an office worker.  On 5 July 2001 she stopped performing work, but she remained on the books of the defendant as an employee for approximately a further year.  She has not engaged in paid work since.  She says that she has lost her capacity to work.  She attributes this to a psychological condition which in turn she attributes to alleged undue stress and pressure in the course of her employment with the defendant.  In 2005 she commenced in this Court a common law action for damages alleging negligence on the part of the defendant as her employer.[1]

   [1]Compare Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44.

1. As presently pleaded, her claim is that she was subjected to excessive pressure and stress in relation to her duties in the course of her employment “[d]uring the period at least subsequent to June 2000” and, in addition, that on 5 July 2001 the defendant negligently required her to attend a meeting at which accusations were made against her and her employment was threatened.

1. Under “Particulars of Injury” she pleads:

“On or about 5 July 2001 the plaintiff suffered a breakdown, and thereafter has and continues to suffer from:

·severe anxiety;

·depression;

·adjustment disorder;

·mixed anxiety and depressed mood swings;

·suicidal ideology;

·agoraphobia;

·reliance upon medication (‘the injuries’).”

1. The proceeding came on for trial by jury on 21 February 2008.  Both parties were represented by senior and junior counsel.  On that day, before any jury could be empanelled, the plaintiff applied for leave to amend her statement of claim in two respects.  The defendant opposed the application in both respects, and it became common ground that…