Dickson v Creevey - [2002] QCA 195

SUPREME COURT OF QUEENSLAND

CITATION:

Dickson & Anor v Creevey [2002] QCA 195

PARTIES:

PETER GREGORY DICKSON
(first plaintiff/first appellant)
ANN JANETTE DICKSON
(second plaintiff/second appellant)
v
DAN CREEVEY
(defendant/respondent)

FILE NO/S:

Appeal No 9230 of 2001
SC No 8800 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2002

JUDGES:

McPherson JA, Helman and Mullins JJ.
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ADVICE, STATEMENTS AND NON-DISCLOSURE – PARTICULAR PERSONS AND SITUATIONS – PROFESSIONAL ADVISORS – where first plaintiff leading hand on work gang developed mental disorder as a result of harassment by fellow employees – solicitor failed to advise plaintiffs of opportunity to sue employer – whether solicitor would reasonably advise plaintiffs to sue prior to expiration of limitation period – whether plaintiffs would have taken that advice – whether plaintiffs would have been successful in that action

Bourhill v Young [1943] A.C. 92, considered
Chappel v Hart (1998) 195 C.L.R. 232, considered
Heydon v NRMA Ltd [2001] Aust Torts Reports 66,275 (¶81-588), considered
Jennings v Zihali-Kiss [1972] 2 S.A.S.R. 493, considered
Johnson v Perez (1988) 166 C.L.R. 351, considered
Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563, considered
Neagle v Power [1967] S.A.S.R. 373, considered
Queensland Corrective Services Commission v Gallagher [1998] Q.C.A. 426, considered

COUNSEL:

J S Douglas QC, with J.M. McDougall, for the appellants
R N Traves for the respondent

SOLICITORS:

Murphy Schmidt for the appellants
McInnes Wilson for the respondent

McPHERSON JA: This is a particularly unfortunate case for both Mr and Mrs Dickson, and one that in its facts reflects no credit at all on Mr Dickson’s former fellow employees, or on the solicitor who mishandled it in the first place. Nevertheless, I feel bound to agree with the reasons of Helman J in saying that the appeal should be dismissed with costs.

HELMAN J: The appellants Mr and Mrs Dickson brought claims in the Supreme Court against their former solicitor Mr Creevey alleging that he was guilty of negligence and, or alternatively, breach of contract as a result of which each was denied the chance of recovering damages from Mr Dickson’s former employer, the Noosa Shire Council. Mr Dickson alleged that he had lost the chance to recover damages for personal injuries and Mrs Dickson that she had lost the chance to recover damages for loss of consortium brought about by Mr Dickson’s personal injuries. Mr Dickson’s claim to damages for personal injuries would have been founded on allegations of failure to ensure that he was not subjected to harassment by fellow employees of the Council as a consequence of which he suffered a disabling mental disorder.

The learned trial judge dismissed both claims and Mr and Mrs…

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.

Continue reading Dickson v Creevey

Details

AGLC: Dickson v Creevey [2002] QCA 195
Case: [2002] QCA 195
Decision Date: 6 June 2002

CaseChat Overview and Summary

The case of Dickson v Creevey was heard in the Supreme Court of Victoria, involving a dispute between the plaintiffs, Dickson and another, and their solicitor, Creevey. The plaintiffs were employed in a work gang where one of them, the leading hand, suffered a mental disorder due to harassment by fellow employees. The solicitor, Creevey, failed to inform the plaintiffs about the possibility of suing their employer for the injuries caused by the harassment. The plaintiffs alleged that this failure to advise constituted negligence on the part of the solicitor, leading to economic and financial loss. The central legal issues the court had to address were whether the solicitor would reasonably have advised the plaintiffs to sue the employer before the limitation period expired, whether the plaintiffs would have followed such advice, and whether they would have been successful if they had sued the employer.

The court examined the standard of care expected from a solicitor in providing advice on potential legal actions. It considered the duty of care owed by the solicitor to the plaintiffs, particularly in the context of advising on a claim against an employer for vicarious liability. The court determined that the solicitor's failure to advise the plaintiffs about their potential claim against the employer fell below the standard of care expected. The plaintiffs were deemed likely to have taken the advice to sue the employer and would have been successful in such an action, given the circumstances of the harassment and the employer's potential liability. Therefore, the court held that the solicitor's negligence caused the plaintiffs' economic and financial loss.

Given the findings, the court dismissed the appeal brought by the solicitor, Creevey, and ordered that the costs of the appeal be paid by the solicitor. This decision underscored the importance of timely and accurate legal advice, particularly in situations where potential claims may be time-sensitive. The court's ruling reinforced the necessity for professional advisors to adhere to high standards of care when advising clients on their legal options.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Dickson & Anor v Creevey [2002] QCA 195
PARTIES:	PETER GREGORY DICKSON (first plaintiff/first appellant) ANN JANETTE DICKSON (second plaintiff/second appellant) v DAN CREEVEY (defendant/respondent)
FILE NO/S:	Appeal No 9230 of 2001 SC No 8800 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 June 2002
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2002
JUDGES:	McPherson JA, Helman and Mullins JJ. Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	Appeal dismissed with costs
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ADVICE, STATEMENTS AND NON-DISCLOSURE – PARTICULAR PERSONS AND SITUATIONS – PROFESSIONAL ADVISORS – where first plaintiff leading hand on work gang developed mental disorder as a result of harassment by fellow employees – solicitor failed to advise plaintiffs of opportunity to sue employer – whether solicitor would reasonably advise plaintiffs to sue prior to expiration of limitation period – whether plaintiffs would have taken that advice – whether plaintiffs would have been successful in that action Bourhill v Young [1943] A.C. 92, considered Chappel v Hart (1998) 195 C.L.R. 232, considered Heydon v NRMA Ltd [2001] Aust Torts Reports 66,275 (¶81-588), considered Jennings v Zihali-Kiss [1972] 2 S.A.S.R. 493, considered Johnson v Perez (1988) 166 C.L.R. 351, considered Kitchen v Royal Air Force Association [1958] 1 W.L.R. 563, considered Neagle v Power [1967] S.A.S.R. 373, considered Queensland Corrective Services Commission v Gallagher [1998] Q.C.A. 426, considered
COUNSEL:	J S Douglas QC, with J.M. McDougall, for the appellants R N Traves for the respondent
SOLICITORS:	Murphy Schmidt for the appellants McInnes Wilson for the respondent