Pickering v McArthur [2005] QCA 294

SUPREME COURT OF QUEENSLAND

CITATION: Pickering v McArthur [2005] QCA 294

PARTIES: CARLYLE JUSTIN PICKERING (plaintiff/respondent) v JOHN McARTHUR (defendant/applicant)

FILE NO/S: Appeal No 4013 of 2005 / DC No 1533 of 2001

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 16 August 2005

DELIVERED AT: Brisbane

HEARING DATE: 8 August 2005

JUDGES: McMurdo P, Keane JA and Dutney J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal dismissed with costs

CATCHWORDS: PROCEDURE - INFERIOR COURTS - QUEENSLAND - DISTRICT COURTS - CIVIL JURISDICTION - APPEAL AND NEW TRIAL - APPEAL TO SUPREME COURT - FROM WHAT DECISIONS AND ON WHAT GROUNDS - where applicant sought leave to appeal from decision of a District Court judge not to strike out the respondent's statement of claim - where leave to appeal was necessary pursuant to s 118(3) District Court of Queensland Act 1967 (Qld) - whether a matter of pleading or procedure will usually constitute a substantial injustice requiring the grant of leave to appeal / TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE NERVOUS SHOCK OR MENTAL DISORDER - where the applicant operated a business as a massage therapist - where the respondent was a former client of the applicant - where the respondent had commenced an action for negligence against the applicant alleging that the applicant had held himself out as qualified to give relationship advice to those who came to him for massage therapy - where it was also alleged that as a result of receiving such advice the respondent had ended a de facto relationship and suffered psychological injury - where the respondent alleged that the advice which had caused him to end his de facto relationship had been given in breach of the applicant's duty to take reasonable care in the provision of relationship advice - where the applicant applied to a District Court judge to strike out the respondent's statement of claim on the grounds that it did not disclose a cause of action known to law - where District Court judge refused to grant this application - whether, if the facts alleged were proved, it was arguable that the applicant owed the respondent a duty to take reasonable care when giving relationship advice / District Court of Queensland Act 1967 (Qld), s 118(3) / Rigney v Littlehales & Ors [2005] QCA 252; Appeal No 11267 of 2004, 22 July 2005, cited / San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340, applied / Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317, considered

COUNSEL: A P J Collins for applicant / M Grant-Taylor SC, with C Heyworth-Smith, for respondent

SOLICITORS: Woodgate Hughes Solicitors for applicant / Maurice Blackburn Cashman for respondent

McMURDO P: This is an application for leave to appeal from an interlocutory order of a judge under s 118(3) District Court of Queensland Act 1967 (Qld). For the reasons given by Keane JA the applicant has failed to demonstrate any error on the part of the primary judge. The respondent's case is not without its difficulties but whether the applicant owes the respondent a duty of care in this case can only be determined after the relevant facts have been found at trial: see Rigney v Littlehales & Ors.¹ The application for leave to appeal should be dismissed with costs.

KEANE JA: The applicant seeks leave to appeal from the decision of the learned primary judge whereby his Honour refused to strike out the respondent's statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR").²

Leave to appeal is necessary by reason of s 118(3) of the District Court of Queensland Act 1967 (Qld). Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant,³ and there is a reasonable argument that there is an error to be corrected.⁴ Where there is a challenge to the exercise of a discretion in respect of a matter of pleading or procedure, it will usually be difficult to satisfy the first of these criteria, especially where the discretion in question was exercised so as to permit the continuation of proceedings towards a hearing on the merits. Further, in my view, in the present case the applicant cannot show that the learned primary judge erred in failing to conclude that the respondent's case is doomed to fail at a trial. Indeed, in my respectful opinion, the applicant's argument that the respondent's claim has no prospect of success is misconceived.

The applicant's argument

The respondent is the plaintiff in an action against the applicant for personal injuries suffered by the respondent in consequence of the negligent advice given to him by the applicant in relation to the conduct of the respondent's relationship with his de facto wife.

The applicant is not alleged to carry on business as a marriage counsellor. It appears that the applicant carries on business as a "massage therapist". The applicant's contention seems to be that, because the applicant was not a marriage counsellor or psychologist, he could owe no duty of care to the respondent to take reasonable care when giving relationship advice.

The fundamental problem with the applicant's argument is that it fails to acknowledge that the respondent's pleaded case does not depend upon the implication of an obligation to take reasonable care from the contractual relationship between the applicant and the respondent. The respondent relies upon additional facts to establish a duty of care in the applicant in respect of advice to the respondent about relationship management.

The respondent's pleaded case

In this regard, the respondent alleges that the applicant, over a three year period while the respondent attended upon him for massage therapy, took it upon himself to counsel the respondent about his relationship with his de facto wife. The respondent also alleges that:

the applicant knew or ought to have known that the respondent was "a person who was susceptible to psychiatric injury";

the applicant represented to the respondent that he was qualified to counsel the respondent "about his personal life and his psychological health and development".

These allegations, if proved, would serve to establish that the applicant assumed a responsibility to take reasonable care not to harm the respondent in giving him advice. It is well established that "if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill, a duty of care arises".⁵ Where a person takes it upon himself or herself to invite another to rely upon his or her advice, with an assurance that the adviser is qualified to give the advice, the fact that the adviser is not truly qualified to give the advice does not prevent the existence of a duty to exercise reasonable care to a standard that might be expected of a person actually qualified to give the advice.⁶ As the joint judgment of the majority in San Sebastian Pty Ltd v The Minister⁷ makes clear, a duty of care may arise in a case where a person volunteers advice to another on a subject about which the advisor professes "to possess skill and competence".

The respondent alleges that the respondent, acting upon the advice of the applicant, brought to an end his relationship with his de facto wife. This is an allegation of reliance upon the applicant. Such an allegation is also apt to support a conclusion that the applicant owed a duty to be careful in advising him.⁸ Whether the respondent's reliance was reasonable in all the circumstances is a question which it is difficult, in this case, to determine before the facts of the case are established.⁹

Discussion

In my view, the allegations referred to in the two preceding paragraphs are apt, if proved, to suggest that the applicant owed the respondent a duty to take reasonable care to avoid causing psychiatric harm to him.¹⁰ If the case as pleaded were proved then there would be no difficulty for the respondent with the concepts of foreseeability of psychiatric harm to the respondent, or with the remoteness of such damage. The respondent's mental well-being was the very thing about which the applicant took it upon himself to counsel the respondent. The nature of the alleged relationship between the applicant and the respondent is such that the case for the recognition of a duty to exercise reasonable care to avoid inflicting psychiatric injury is at least as strong, if not stronger than the case of the successful plaintiffs in Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd.¹¹

The learned primary judge was somewhat critical of the terms in which the duty of care allegedly owed by the applicant to the respondent was formulated in the pleading, but his Honour was rightly not disposed to treat the awkwardness of this aspect of the respondent's pleading as a flaw fatal to the respondent's attempts to articulate a reasonable cause of action. The applicant does not make any complaint in this regard. Indeed, the respondent has delivered a fresh pleading since the determination which is the subject of this application. At the hearing of the application counsel for the applicant appeared to suggest that this Court should find that the applicant could not be found to owe any duty to the respondent, so far as the advice given about the respondent's relationship was concerned, however that duty might be pleaded. I am unable to accept that submission.

As I have said, the applicant's complaint appears to be that a massage therapist who offers relationship counselling cannot be held to owe a duty to exercise reasonable care to ensure that the customer is not harmed by that advice. It may be accepted that such a duty would not arise as an ordinary incident of the performance of the applicant's contractual duties as a massage therapist; but that does not mean that a massage therapist, or any other supplier of services for that matter, may with impunity exceed his professional competence and give harmful advice to a person who he has successfully encouraged to rely upon him in that regard. It would be an extraordinary state of affairs if the law were thus to favour "quacks" over duly qualified professionals. Moreover, because tortious liability would arise from something done in addition to the services contracted for it cannot be said that the existence of a duty of the kind contended for would cut across, or interfere with, any of the other legal relationships that might otherwise exist between the parties. It is not alleged that "massage therapists" owe a duty to give competent relationship advice. The real thrust of the respondent's case is that the applicant stepped outside the role of "massage therapist" and purported to act as a relationship counsellor. It was the assumption of this separate and different role that is said to ground the existence of a duty of care in relation to the advice that was given.

In my opinion, if it be the fact that the respondent was persuaded by the applicant's claims of competence in the field of relationship counselling to act in reliance upon his advice, and such reliance was reasonable, then, if that advice was given without the reasonable care that might be expected of a person holding themselves out as qualified to give that advice, the respondent may have a good claim for damages for negligence if he suffered psychiatric harm as a result of acting upon the applicant's advice.

The respondent's case may be said to involve a claim to remarkable gullibility and susceptibility on his part. It may also be said that the respondent's allegations of assumption of responsibility and reliance tend to strain credulity. But, of course, the law of negligence protects the gullible as well as those who are astute to conserve their own interest. And these are arguments about whether the respondent's allegations are true as a matter of fact.

Similarly, arguments about whether the alleged consequences of the respondent's acting upon the applicant's advice were truly caused by the applicant's advice rather than manifestations of problems which the respondent suffered from, or would have suffered from in any event, are arguments about proof of facts. They are not arguments which demonstrate that, as a matter of law, the respondent's claim cannot succeed.

In the circumstances of the relationship between the applicant and respondent alleged by the respondent, it would not matter to the respondent's entitlement to recover damages that the respondent was particularly susceptible to psychiatric injury. That is also apparent from the decision of the High Court in Tame v New South Wales; Annetts & Anor v Australian Stations Pty Ltd.¹²

Conclusions and orders

In my respectful opinion, the learned primary judge rightly refused the application to strike out the statement of claim. The application for leave to appeal should be dismissed with costs.

DUTNEY J: I agree with the orders proposed by Keane JA and with his reasons.

Footnotes

1. [2005] QCA 252; Appeal No 11267 of 2004, 22 July 2005. ↩

2. Pickering v McArthur [2005] QDC 081; DC No 1533 of 2001, 20 April 2005. ↩

3. See, eg, the comments of this Court in Hockley v Sowden [2000] QCA 9; Appeal No 10317 of 1999, 3 February 2000. ↩

4. See, eg, Labaj v Brown & Anor [2005] QCA 54; Appeal No 403 of 2004, 7 March 2005; Rigney v Littlehales & Ors [2005] QCA 252; Appeal No 11267 of 2004, 22 July 2005. ↩

5. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 502 - 503. ↩

6. The Apollo [1891] AC 499. Cf Banbury v Bank of Montreal [1918] AC 626. ↩

7. (1986) 162 CLR 340 at 356 - 357. See also D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12 at [99]; (2005) 214 ALR 92 at 115 - 116. ↩

8. Cf Smith v Eric S Bush (a firm) [1990] 1 AC 831. ↩

9. Suncorp General Insurance Ltd v Loweke [1998] QCA 356 at [7] per McMurdo P, [1] per McPherson JA; (1998) 28 MVR 111 at 112 - 113. ↩

10. Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 257, 265. ↩

11. [2002] HCA 35 esp at [37], [54], [140] - [146], [237] - [240], [304]; (2002) 211 CLR 317 esp at 337, 341, 365 - 368, 397 - 398, 419.