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Pickering v McArthur

Pickering v McArthur

Case [2005] QDC 81 20 April 2005

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DISTRICT COURT OF QUEENSLAND

CITATION:

Pickering v McArthur [2005] QDC 081

PARTIES:

CARLYLE JUSTIN PICKERING

Plaintiff

v

JOHN McARTHUR

Defendant

FILE NO/S:

D1533/2001

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

20 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2004

JUDGE:

McGill DCJ

ORDER:

Order that the words “a trained and competent psychologist or, in the alternative,” be struck out of paragraph 8 of the further amended statement of claim. Give the plaintiff leave to make further amendments to the statement of claim as he may be advised, subject to rule 69(2) of the UCPR. Defendant’s application otherwise dismissed with costs.

CATCHWORDS:

NEGLIGENCE – Duty of Care – mis-statement – psychiatric injury – whether duty arises on pleaded facts – pleading not struck out.

PRACTICE – Statement of Claim – Striking out – whether cause of action shown – negligent words causing psychiatric injury – not sufficiently clear to strike out.

UCPR s 171.

Barnes v The Commonwealth (1937) 37 SR (NSW) 511 – considered.

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 – considered.

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 – applied.

Illuzzi v Edwards [1997] QCA 204 – distinguished.

Sharp v Avery [1938] 4 All ER 85 – considered.

Tame v New South Wales (2002) 211 CLR 317 – applied.

COUNSEL:

C Heyworth-Smith for the plaintiff
A P J Collins for the defendant

SOLICITORS:

Maurice Blackburn Cashman solicitors for the plaintiff
Woodgate Hughes solicitors for the defendant.

This action was commenced by a claim filed in this court on 30 March 2001. A notice of intention to defend was filed on 8 May 2001, together with a defence, and a reply was filed on 28 May 2001. An amended claim and what was described as a further amended statement of claim were filed on 17 December 2003. The amended claim among other things added a claim for breach of fiduciary duty, and a claim for a declaration that the defendant acted in breach of his statutory duty towards the plaintiff. On 16 January 2004 another judge ordered that the plaintiff’s action be stayed until the plaintiff had attended upon a particular psychiatrist and fully and completely participated in an examination for the purpose of the provision of an expert medical opinion to the solicitors for the defendant; presumably that has since been done.

On 18 April 2004 the defendant filed an application to have the further amended statement of claim struck out under r 171. On 11 May 2004 I ordered that the further amended statement of claim be struck out pursuant to r 171, on the basis that it disclosed no reasonable cause of action. I also ordered that the claims for breach of fiduciary duty and for a declaration be struck out of the amended claim.[1] I also ordered that unless a further amended statement of claim was filed within 14 days the action be struck out with costs. It is unnecessary…

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 Pickering v McArthur

Details

AGLC: Pickering v McArthur [2005] QDC 81
Case: [2005] QDC 81
Decision Date: 20 April 2005

CaseChat Overview and Summary

In Pickering v McArthur, the dispute involved a claim for damages due to alleged negligence, specifically concerning a mis-statement that resulted in psychiatric injury. The matter was before the court, which was required to determine whether the defendant owed a duty of care to the plaintiff under the facts pleaded. The plaintiff, Pickering, alleged that the defendant, McArthur, made a mis-statement that caused him psychiatric injury, and sought to establish a duty of care in this context. The court examined the pleadings to decide if the claim was sufficiently clear to proceed and whether the cause of action was established.

The central legal issue before the court was whether the facts pleaded in the statement of claim were sufficient to establish a duty of care on the part of the defendant towards the plaintiff. The court needed to consider if the pleaded facts were adequate to show that the defendant owed a duty of care to the plaintiff in relation to the mis-statement, which allegedly led to psychiatric injury. Additionally, the court assessed whether the plaintiff's statement of claim was clear enough to withstand a motion to strike it out and whether the pleadings adequately outlined a cause of action for negligence.

The court held that while the pleadings were not ideal, they were not so unclear as to warrant striking out the claim. The court acknowledged that the defendant's application was not entirely without merit, particularly regarding the reference to a "trained and competent psychologist." However, the court concluded that the claim was sufficiently clear for the plaintiff to be granted leave to amend the statement of claim as advised, subject to the relevant procedural rules. Consequently, the court ordered the specific words be struck out but denied the application to dismiss the claim with costs. The court's decision allowed the plaintiff to further amend the pleadings to clarify the duty of care issue and proceed with the action.

Orders

Orders of the court

Order that the words “a trained and competent psychologist or, in the alternative,” be struck out of paragraph 8 of the further amended statement of claim. Give the plaintiff leave to make further amendments to the statement of claim as he may be advised, subject to rule 69(2) of the UCPR. Defendant’s application otherwise 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

Full text does not contain this section.

Citations

AGLC Citation

Pickering v McArthur [2005] QDC 81

Most Recent Citation

Baker v Wood [2005] QDC 119

Cases citing this decision · 5 of 5 shown

Kaspar v Craig
[2021] QCATA 131 Para 1

…a reasonable argument that there was an error to be corrected.[6] [5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i). [6] Pickering v McArthur (2005) QCA 294.…
Tyrrell v McNab Constructions Pty Ltd
[2013] QDC 165

…[74] The defendants submit that this court should apply the decision of Pickering v McArthur [2005] QDC 81 where McGill SC DCJ held at [10] that if there is a fundamental deficiency in the plaintiff’s case then the whole of the action should be struck out.…
Pickering v McArthur (No 2)
[2010] QDC 90 Para 1

…out part of one paragraph of the statement of claim and gave leave to make further amendments but otherwise dismissed the defendant’s application: [2005] QDC 81. The pleading was tidied up by a further amended statement of claim filed on 18 May 2005. An application by the defendant for leave to appeal from my o…
Uzsoki v. McArthur
[2007] QDC 110 Para 1

…e v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317. I adhere to what I said about that decision in Pickering v McArthur [2005] QDC 81. I concluded at [18] by quoting a passage from the judgment of Gaudron J in Tame at p 341: “The law has not yet developed to the point where it is po…
Baker v Wood
[2005] QDC 119 Para 1

…was her being informed of the death of those persons who had died in the fire. [5]I will not repeat what I said about this in Pickering v McArthur [2005] QDC 81.…

View all 5 citing cases →

Cases cited in this decision · 18 of 18 shown

Barnes v Commonwealth of Australia
[2021] NTSC 30 Para 1

…e in the communication of information, and therefore presumably in the communication of advice, may give rise to liability for psychiatric injury. In Barnes v The Commonwealth (1937) 37 SR (NSW) 511 the Full Court overruled a demurrer to a declaration by a plaintiff that she had suffered nervous shock as a result of being told inc…
Woolcock Street Investments Pty Ltd v CDG Pty Ltd
[2004] HCA 16 Para 1

…although not exercising special skill had particular access to the relevant information. [13]In Woolcock Street Investments Pty Ltd v CDE Pty Ltd (2004) 78 ALJR 628 the joint judgment of the majority at [24] said that this case and Evatt can be seen as cases in which the contention that the defendant knew that the pl…
Gifford v Strang Patrick Stevedoring Pty Ltd
[2003] HCA 33 Para 1

…ion as persons closely and directly affected by its acts and omissions in relation to their son. [8] Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [9] per Gleeson CJ [9] Tame at p.381 per Gummow and Kirby JJ; see also p.399 per Hayne J.…
Tame v New South Wales
[2002] HCA 35

…R 125 – applied. Illuzzi v Edwards [1997] QCA 204 – distinguished. Sharp v Avery [1938] 4 All ER 85 – considered. Tame v New South Wales (2002) 211 CLR 317 – applied. COUNSEL: C Heyworth-Smith for the plaintiff A P J Collins for the defendant SOLICITORS: Maurice Blackburn Cashman solicitors for the plaintiff Woodgate Hughes sol…
Illuzzi v Edwards, Westpac Banking Corporation and Christian Outreach
[1997] QCA 204 Para 1

…Counsel for the plaintiff also relied on the decision of the Court of Appeal in Illuzzi v Edwards [1997] QCA 204. That was a case where it was alleged that a relationship of trust and confidence had developed between the plaintiff, who was a vulnerable lady, and a salvation counsellor at a Christian Outreach Cent…
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords
[1997] HCA 8 Para 1

…rect or the advice turn out to be unsound.” That passage was cited by Dawson J in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, where his Honour also said, at p.257: “A person who gives information or advice to another intending to induce the other to a course of action does not necess…
San Sebastian Pty Ltd v The Minister
[1986] HCA 68 Para 1

…l (1981) 150 CLR 225, but still in a context where the defendant had special access to information.[12] Later in San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340, in the joint judgment of the majority at p.357, reference was made to a situation where a person “though volunteering information or advice, may be…
Shaddock & Associates Pty Ltd v Parramatta City Council [No 1]
[1981] HCA 59 Para 1

…nce Co Ltd v Evatt [1971] AC 793 [11] . Subsequently the High Court adopted a broader approach in Shaddock & Assoc. Pty Ltd v Parramatta City Council (1981) 150 CLR 225, but still in a context where the defendant had special access to information.[12] Later in San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340,…
Mutual Life & Citizens' Assurance Co Ltd v Evatt
[1970] UKPCHCA 2 Para 1

…advice, may be known to possess, or profess to possess, skill and competence in the area which is the subject of the communication.”[13] [11]Also (1970) 122 CLR 628. [12]See Gibbs CJ at p.233; Stephen J at p.240; Murphy J at p.256. That was a case where the defendant, although not exercising special skill had particu…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 1

…is the case with the law governing liability in negligence for psychiatric injury. [3] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.…
Wyong Shire Council v Shirt
[1980] HCA 112 Para 1

…rior opportunity to observe the road ahead. [16] The Apollo [1891] AC 499. This and the following cases are those cited by Fleming at p.192. [17] Wyong Shire Council v Shirt (1980) 146 CLR 40. [18] Kubach v Hollands [1937] 3 AllER 907. [19] Brocklesby v US 753 F 2d 794 (1985)…
Wyong Shire Council v Shirt
[1980] HCA 12 Para 1

…the road ahead. [16] The Apollo [1891] AC 499. This and the following cases are those cited by Fleming at p.192. [17] Wyong Shire Council v Shirt (1980) 146 CLR 40. [18] Kubach v Hollands [1937] 3 AllER 907. [19] Brocklesby v US 753 F 2d 794 (1985)…
Pickering v McArthur
[2005] QDC 081

…CITATION: Pickering v McArthur [2005] QDC 081 PARTIES: CARLYLE JUSTIN PICKERING Plaintiff v JOHN McARTHUR Defendant FILE NO/S: D1533/2001 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 20 April 2005 DELIVERED AT: Brisbane HEARING DATE: 11 June 2004 JUDGE: McGill DCJ OR…
[1971] AC 793
[1971] AC 793 Para 1

…al skill or competence, or who had held himself out as possessing such special skill or competence: Mutual Life and Citizens Assurance Co Ltd v Evatt [1971] AC 793 [11] . Subsequently the High Court adopted a broader approach in Shaddock & Assoc. Pty Ltd v Parramatta City Council (1981) 150 CLR 225, but still in…
General Steel Industries Inc v Commissioner for Railways
1 QB 349 Para 1

…a of law where the boundaries are not well defined. That is the case with the law governing liability in negligence for psychiatric injury. [3] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.…
[1964] AC 463
[1964] AC 463 Para 1

…gnition of a duty to take reasonable care in relation to the giving of advice occurred in the decision of the House of Lords in Hedley Byrne v Heller [1964] AC 463, in a case where a bank gave a reference in relation to a customer. Obviously the bank has in such circumstances special knowledge about the financia…
[1891] AC 499
[1891] AC 499 Para 1

…e overtaken” signal to a following vehicle has some special advantage in having a superior opportunity to observe the road ahead. [16] The Apollo [1891] AC 499. This and the following cases are those cited by Fleming at p.192. [17] Wyong Shire Council v Shirt (1980) 146 CLR 40. [18] Kubach v Hollands [1937] 3 Al…
Wyong Shire Council v Shirt
753 F 2d 794 Para 1

…se cited by Fleming at p.192. [17] Wyong Shire Council v Shirt (1980) 146 CLR 40. [18] Kubach v Hollands [1937] 3 AllER 907. [19] Brocklesby v US 753 F 2d 794 (1985)…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	Pickering v McArthur [2005] QDC 081
PARTIES:	CARLYLE JUSTIN PICKERING Plaintiff v JOHN McARTHUR Defendant
FILE NO/S:	D1533/2001
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	20 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	11 June 2004
JUDGE:	McGill DCJ
ORDER:	Order that the words “a trained and competent psychologist or, in the alternative,” be struck out of paragraph 8 of the further amended statement of claim. Give the plaintiff leave to make further amendments to the statement of claim as he may be advised, subject to rule 69(2) of the UCPR. Defendant’s application otherwise dismissed with costs.
CATCHWORDS:	NEGLIGENCE – Duty of Care – mis-statement – psychiatric injury – whether duty arises on pleaded facts – pleading not struck out. PRACTICE – Statement of Claim – Striking out – whether cause of action shown – negligent words causing psychiatric injury – not sufficiently clear to strike out. UCPR s 171. Barnes v The Commonwealth (1937) 37 SR (NSW) 511 – considered. Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 – considered. General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 – applied. Illuzzi v Edwards [1997] QCA 204 – distinguished. Sharp v Avery [1938] 4 All ER 85 – considered. Tame v New South Wales (2002) 211 CLR 317 – applied.
COUNSEL:	C Heyworth-Smith for the plaintiff A P J Collins for the defendant
SOLICITORS:	Maurice Blackburn Cashman solicitors for the plaintiff Woodgate Hughes solicitors for the defendant.