SUPREME COURT OF QUEENSLAND CITATION: Uzsoki v McArthur [2007] QCA 401 PARTIES: KATHY UZSOKI (plaintiff/respondent) v JOHN McARTHUR (defendant/applicant) FILE NO/S: Appeal No 5896 of 2007 DC No 1699 of 2001 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Application for Leave s 118 DCA (Civil) District Court at Brisbane DELIVERED ON: 16 November 2007 DELIVERED AT: Brisbane HEARING DATE: 24 October 2007 JUDGES: ORDER: McMurdo P, Jerrard JA and Holmes JA Joint reasons for judgment of McMurdo P and Holmes JA; separate reasons of Jerrard JA dissenting 1. Application for leave to appeal refused 2. The applicant to pay the respondent s costs CATCHWORDS: PROCEDURE SUPREME COURT PROCEDURE QUEENSLAND PROCEDURE UNDER RULES OF COURT PLEADING STATEMENT OF CLAIM where the applicant made an application to strike out the respondent s further further amended statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) where the District Court refused the application whether a cause of action in negligence was sufficiently made out in the statement of claim whether the statement of claim should be struck out COUNSEL: Uniform Civil Procedure Rules 1999 (Qld), r 171 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, considered Pickering v McArthur [2005] QCA 294; CA No 4013 of 2005, 16 August 2005, distinguished A P J Collins for the applicant M Grant-Taylor SC, with C Heyworth-Smith, for the respondent
2 SOLICITORS: Woodgate Hughes for the applicant Maurice Blackburn Cashman for the respondent [1] McMURDO P AND HOLMES JA: The applicant defendant seeks leave to appeal against the decision of a District Court judge refusing, except in respect of a single allegation, to strike out the plaintiff respondent s further further amended statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld). (For simplicity s sake, we will refer to the parties as plaintiff and defendant.) The plaintiff s action against the defendant was for damages for personal injuries resulting from his negligent provision of counselling to her. [2] The further further amended statement of claim pleads that the defendant carried on business as a massage therapist; that he held himself out as a counsellor; that in the course of giving the plaintiff massages he counselled her as to various matters including her relationships and in that context advised her that she needed a relationship with a man; that he engaged in inappropriate sexual behaviour during those massages; that he knew or ought to have known that the plaintiff would rely on his exercise of due care and skill in providing the counselling; that the plaintiff s reliance on him in that regard was reasonable in the circumstances; that the plaintiff reasonably expected him to exercise due care in the provision of the counselling; that the defendant could reasonably foresee that a failure to exercise due care and skill in providing the counselling would result in injury to the plaintiff; and that he owed a duty to the plaintiff to take reasonable care to counsel her in accordance with the standard of care and responsibility of a trained and competent counsellor. It is further pleaded that in consequence of accepting the counselling, the plaintiff experienced shame, guilt, discomfort and distress, and that as a result of the counselling and the sexual behaviour, she suffered chronic dysthymic disorder and an adjustment reaction with depression. [3] The negligence alleged against the defendant is particularised, and we paraphrase to some extent for the sake of brevity, as: failure to give appropriate consideration to the plaintiff s psychological and emotional state and her relationship with her former partner; providing counselling without the qualifications to do so; engaging in the inappropriate sexual behaviour which would have the effect of rendering the plaintiff less able to resist the influence of the defendant so as to expose her to the risk of later psychological injury; failing to consider whether the counselling was in the plaintiff s interests; and failing to inform or warn the plaintiff of those various matters. Damages were claimed as a consequence of the negligence and sexual battery of the defendant. At first instance the reference to sexual battery was struck out on the basis that the pleading disclosed no reasonable course of action in that respect. [4] In Pickering v McArthur, 1 this defendant made a similar application for leave to appeal against a decision refusing to strike out a different plaintiff s statement of claim. That case also involved allegations of the defendant s assumption of a counselling role, causing harm. There, his argument was that the pleadings did not support the existence of a duty of care to take reasonable care in giving relationship advice. The application was dismissed, the Court concluding that the allegations that the defendant knew of the plaintiff s susceptibility to psychiatric injury and that 1 [2005] QCA 294.
3 he had represented that he was qualified to give the counselling, were sufficient to establish the necessary duty. [5] In the striking out application brought in these proceedings, there was no challenge to the existence of the necessary duty of care. The argument instead was that no cause of action was made out, because there was no pleading that the plaintiff had acted on the counselling. The pleading that the plaintiff had accepted the counselling and as a result experienced shame, guilt, discomfort and distress was insufficient for that purpose. In addition, there was no allegation that any reliance on the advice was reasonable. The learned judge at first instance, it was said, had erred in failing to appreciate that the argument was a different one from that in Pickering. He had focussed on the duty of care, as to the existence of which the defendant made no challenge. [6] There is some force in that contention. The learned judge, applying the test in General Steel Industries Inc v Commissioner for Railways (NSW), 2 concluded that the plaintiff s claim as pleaded was not so clearly untenable that it could not possibly succeed. He described the applicant s point as being that, although it was alleged that the defendant held himself out as a counsellor and had, during the massages, counselled the plaintiff, he had not, during that process, represented that he was exercising the care and skill of a counsellor, as opposed to that of a masseur. But whether a duty of care arose depended on whether, in the circumstances, the defendant when giving advice was holding himself out as exercising the care and skill ordinarily to be expected of a counsellor. The pleading was sufficient to support such a case. It was similar to that in Pickering, in which it was said that the essential case was that the defendant had stepped outside the role of massage therapist and purported to act as a relationship counsellor. 3 [7] His Honour went on to quote this passage from the leading judgment, of Keane JA, in Pickering: 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. 4 The pleading, his Honour said, was not distinguishable from that in Pickering, and those comments applied to the case before him. [8] We think, however, that as the defendant says, there is a difference between the pleading in Pickering and the present case. This was a more straightforward negligence case. It did not involve a plaintiff s acting to his or her detriment in reliance on the defendant s advice. The case made on the pleading was that the defendant, with knowledge of the plaintiff s vulnerability and of her reliance on him as a counsellor, said something in the course of the counselling relationship which breached his duty to counsel as a competent counsellor would. Those words 2 3 4 (1964) 112 CLR 125 [2005] QCA 294 at [12]. [2005] QCA 294 at [13].
4 directly harmed the plaintiff. It was unnecessary to plead acts done in reliance on them. Whether, of course, that case is made out on the evidence is another question; but it seems to us, as pleaded, to contain the necessary element of causation. [9] Thus, notwithstanding that our analysis differs from that of the learned judge at first instance, the result is the same. We would refuse leave to appeal and order that the applicant pay the respondent s costs. [10] JERRARD JA: In this appeal I have read the reasons for judgment prepared by McMurdo P and Holmes JA, and the orders proposed by their Honours. In my respectful opinion, their Honours summary of the plaintiff s pleading, in the penultimate paragraph of their judgment, is a skilful summary of a case the plaintiff could have pleaded, but did not plead. As described by their Honours, it was unnecessary for the plaintiff to plead that the plaintiff acted in reliance on the defendant s counsel, and the plaintiff did not plead that. Nor did the plaintiff plead that the defendant s advice to her was inaccurate, or not the advice that an appropriately qualified and responsible counsellor would have given. The pleading does not clearly assert, one way or the other, whether the plaintiff alleges she suffered injury because of the contents of the counselling she received. [11] The plaintiff would need to plead injury caused to her by the contents of the counselling, to establish a cause of action of the sort contemplated in Pickering v McArthur [2005] QCA 294. The essence of the cause of action described in this Court s judgment in that case was psychiatric harm as a result of acting upon Mr McArthur s advice. The pleading in this one, as described by their Honours, was of harm caused to the plaintiff by Mr McArthur s misconduct in the course of a counselling relationship with the plaintiff. That pleaded misconduct appears predominantly to be his having engaged in inappropriately sexual and intimate behaviour, when giving the plaintiff massage therapy and when acting as a counsellor to her. Because as there is no pleading that the plaintiff acted on any counselling or advice given by the defendant, the contents of the counselling given would seem irrelevant to the plaintiff s claim. Despite that, the plaintiff pleads that on numerous occasions Mr McArthur advised her that she needed a relationship with a man, and that in paragraph 9 of the pleading The Plaintiff accepted the counselling and as a result experienced shame, guilt, discomfort and distress. [12] That pleading of her having accepted the counselling is not a pleading that she acted on it in any particular way; it appears to be no more than a pleading that she continued to receive the counselling over a prolonged period. I respectfully disagree with the learned trial judge that the plaintiff s pleading is not relevantly distinguishable from the pleading in Pickering v McArthur, in which that pleading was upheld as a claim for damages for negligence where psychiatric harm resulted from acting on Mr McArthur s advice. [13] The plaintiff would be entitled to plead her case in the alternative, but she has not done that. Her pleading does not quite demonstrate a Pickering v McArthur cause of action, nor does it show quite the pleaded cause of action described in the judgment of their Honours. I would allow the applicant leave to appeal, set aside the order made on 15 June 2007 dismissing the application filed on 28 July 2006, and order instead that the further further amended statement of claim filed on 18 May 2005 be struck out for failure to disclose a reasonable cause of action. I would further order that the respondent plaintiff pay the appellant s costs of and
5 incidental to the appeal assessed on the standard basis, and the defendant s costs of the application below, assessed on the standard basis.