Pickering v McArthur[2005] QDC 81

DISTRICT COURT OF QUEENSLAND

1. [1]
   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.

2. [2]
   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 for present purposes to go into the reasons then given for striking out the further amended statement of claim.

3. [3]
   On 21 May 2004 a “further amended statement of claim” was filed pursuant to my order.  The defendant has now filed a further application to have this document struck out pursuant to r 171 on the basis that it discloses no reasonable cause of action, has a tendency to prejudice or delay the fair trial of the proceeding, is unnecessary or scandalous, is frivolous or vexatious, or is otherwise an abuse of process of the court.  The application went on to seek in the alternative that paragraphs 3 to 9 of the further amended statement of claim be struck out pursuant to r 171, but that adds nothing as those paragraphs are the whole substance of the further amended statement of claim.  The application came on for hearing before me on 11 June 2004.

The pleading

4. [4]
   The pleading the subject of the present application alleged that at all material times the defendant carried on business as a massage therapist from particular premises, and that from late 1996 until 1999 the plaintiff attended at regular intervals upon the defendant for massage therapy. Paragraphs 3 and 4 continued:

“3. After the plaintiff commenced to attend upon the defendant as aforesaid the defendant without request from the plaintiff commenced to counsel the plaintiff about his personal life and concerning his psychological health and development.

4. In particular the defendant repeatedly and frequently during that three year period made comments to the plaintiff and proffered advice to the plaintiff about his relationship with his de facto partner … and counselled the plaintiff to terminate that relationship.”

Particulars were given of paragraph 4 but it is unnecessary to quote them.

5. [5]
   Paragraph 5 alleged that “the plaintiff was at all material times as the defendant knew or ought reasonably to have known a person who was susceptible to psychiatric injury.”  Particulars were given including that both parties had participated in activities at a particular centre dedicated to meditation and personal development, and that the plaintiff had told the defendant that the plaintiff had in the past suffered from depressive illness.  That would be capable of supporting the allegation;  most of the other particulars do not on their face suggest that the plaintiff was susceptible to psychiatric injury, although it may be that they could be shown to do so by expert evidence.

6. [6]
   Paragraph 6 alleged that “at all material times the defendant represented to him by word and deed that he was qualified, in fact, by training and experience to carry on work as a counsellor and to adequately and properly counsel him about his personal life and his psychological health and development.”  Particulars of the allegation were set out, which in my opinion do not obviously support the allegation.  It is unnecessary however to dwell on that, since any deficiency of that nature was not particularly relied on on behalf of the defendant.

7. [7]
   The pleading went on to allege that the defendant owed the plaintiff a duty, in the following terms:

“7. In the premises the defendant owed the plaintiff a duty of care not to do or say anything in the course of providing the counselling referred to in paragraph 3 hereof which might result in the plaintiff suffering psychiatric harm.

8. Further, it was the duty of the defendant, in all the circumstances, to only counsel the plaintiff in accordance with the standard of care and responsibility of a trained and competent psychologist or, in the alternative, a trained and competent relationship counsellor.”

8. [8]
   It was then alleged in paragraph 9 that “in breach of those duties the defendant counselled and advised the plaintiff negligently in consequence of which the plaintiff has suffered psychiatric injury loss and damage.”  There are then given what are said to be particulars of negligence, most of which are expressed in very general and quite unhelpful terms,^[2] followed by particulars of psychiatric injury identifying the injury alleged as generalised anxiety disorder, with or without depressive disorder, or an aggravation or recurrence of what was described as “an underlying but asymptomatic condition of generalised anxiety disorder or depressive disorder and generalised anxiety disorder.”  There was then a heading purporting to give particulars of damage for the purposes of r 155, which claimed general damages of $50,000 and costs for future psychotherapy for two years.  Lurking inappropriately in these particulars was the allegation of material facts, that as a result of the “advice and counselling” of the defendant the plaintiff brought his relationship with his de facto partner to an end.  The plaintiff’s case is evidently that his psychiatric injury occurred as a consequence of the termination of that relationship.

9. [9]
   There is much which is unsatisfactory about this pleading as a pleading, but the defendant’s challenge was at the more fundamental level, that the plaintiff’s case was necessarily so clearly hopeless that it ought to be struck out summarily at this stage. Counsel for the plaintiff, whose name I should emphasise did not appear on the pleading in question, did not assert that this pleading represented the best case that could be put on behalf of the plaintiff, but strongly opposed any order striking out, particularly any which did not allow liberty to replead.

Applications to strike out

10. [10]
    The application casts the net under r 171 widely, but the application was argued only on the basis that the pleading should be struck out because it discloses no reasonable cause of action.  The test for whether that should occur is a rigorous one, that the plaintiff’s claim as pleaded is so clearly untenable that it cannot possibly succeed.^[3]  That does not mean that argument is unnecessary in order to show that the plaintiff’s claim is futile, but that, with the benefit of argument, it is possible for a court to conclude that that test has been met.  If the deficiency is merely one as to the pleading of the plaintiff’s case, the pleading will be struck out with leave to replead.  However, if the deficiency is more fundamental, and will not be able to be met simply by amending the pleading, the consequence of striking out the pleading would ordinarily be that the action as a whole is also struck out.  In that situation it is necessary for the test to be applied with care, and for the court to show appropriate caution, particularly when dealing with an area of law where the boundaries are not well defined.  That is the case with the law governing liability in negligence for psychiatric injury.

Liability for psychiatric injury

11. [11]
    There was a comprehensive reassessment of the law in this area by the High Court in two matters heard together by the court, Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317.  The decision is particularly significant for concluding that what had otherwise been thought to be restrictions on the scope of liability for psychiatric injury were no longer to be applicable.  In the case of psychiatric injury as a result of harm caused to another, it was held that it was not necessary for the injury to involve a sudden shock, or direct perception of the harm to that other person.  In the case of directly caused psychiatric injury, it was not a separate precondition to liability that, in the absence of knowledge of a particular susceptibility, a person of “normal fortitude” might have suffered psychiatric injury. 

12. [12]
    The latter situation arose in the case of Tame, where the plaintiff allegedly suffered psychiatric injury as a result of a police officer mistakenly showing in a traffic incident report that she (rather than the other driver) had had at the time of the accident a significant blood alcohol level.  In that case there was no reason for the officer to have had any knowledge of particular susceptibility on the part of the plaintiff, and it was held that psychiatric injury in the circumstances was not reasonably foreseeable^[4].  Some members of the court added that the nature of the relationship between the police officer and the plaintiff was inconsistent with the existence of such a duty^[5].  On that basis, presumably even if he had been aware of some susceptibility to psychiatric injury there would have been no duty owed to her in the particular circumstances of that case.  That decision therefore is not of assistance in assessing a case based on the proposition that the defendant had actual knowledge of prior psychiatric illness and therefore knew or ought to have known of a susceptibility to further psychiatric injury.

13. [13]
    The other matter, Annetts, arose out of a case where, because of a breach of duty by an employer, an employee died in circumstances where his death was not discovered for some time.  His parents were alleged to have suffered psychiatric injury when the fact of his death, and the circumstances surrounding it, came to their attention.^[6]  It was part of the plaintiffs’ case in that matter that the plaintiffs had, before the employment commenced, made enquiries of the employer about the arrangements for the care of their son and had been given assurances as to his care by the employer.  It was held that in that context there was a reasonable foreseeability of harm in the form of psychiatric injury, and a relationship between the plaintiffs and the employer, arising out of the enquiries and the assurances, which together gave rise to a duty of care, requiring the employer to have in contemplation the kind of injury to the plaintiffs that they had alleged.^[7] 

14. [14]
    Counsel for the plaintiff in the present case sought to draw an analogy from this, on the basis that the pleading alleged a prior relationship between the plaintiff and the defendant, arising out of their respective involvements in the meditation and personal development centre, in the course of which the defendant had a leadership role as a “spiritual healer,” and had acted in that capacity on at least two occasions towards the plaintiff. But it may not be necessary to go that far to establish a relevant relationship. The significance of the relationship is that it provides some basis over and above the mere reasonable foreseeability of psychiatric injury as a requirement for the existence of the duty.

15. [15]
    The law has consistently rejected the proposition that a duty of care to avoid psychiatric injury will be owed to any person just because it is reasonably foreseeable that that person may suffer that kind of injury if reasonable care is not taken^[8].  But there has been no consistent attitude adopted as to the extent of the additional requirements before a duty will arise.  As it was put in a joint judgment in Tame of Gummow and Kirby JJ (p. 375):  “The pattern that emerged from the English cases decided before the last decade was the repeated adoption and disallowal of progressively less stringent limitations on liability.”  There have been various reasons identified for this, but one of them was a risk of indeterminate liability, and a greatly increased class of persons who might recover.^[9]  The requirement of a relationship between the parties as an additional control mechanism was essentially to counter the risk of indeterminate liability and a large number of potential plaintiffs.  As Gaudron J pointed out at p. 341, the significance of the relationship in that case was that the defendant should have had the plaintiffs in contemplation as persons closely and directly affected by its acts and omissions in relation to their son.

16. [16]
    In the present case issues of indeterminate liability and a potential wide range of plaintiffs do not arise. On the plaintiff’s case, the advice, the giving of which was alleged to have been negligent, was given directly and specifically to the plaintiff. In such circumstances there is no need for a control mechanism to avoid indeterminate liability. The relevant relationship in my opinion was really that the plaintiff was (on the facts alleged) the particular person to whom the advice was given.

17. [17]
    There is some analogy with negligent advice giving rise to economic loss. The law has also been concerned about the risk of indeterminate liability in circumstances where advice by a defendant might come to the attention of persons other than the specific person to whom it was provided, but that has never been a reason for excluding liability in the case of the person to whom such advice was directly provided. In circumstances such as these, the question of whether the plaintiff was a person who should have been in the contemplation of the defendant as someone closely and directly affected by what was said to him (to paraphrase Gaudron J at p.340) really answers itself.

18. [18]
    Even if this were not the case, as her Honour also pointed out at p.341: “The law has not yet developed to the point where it is possible to identify precisely the relationships that serve to identify persons who should be in another’s contemplation as persons closely and directly affected by his or her acts or the features of those relationships.” In these circumstances, it is very difficult to say that in the particular circumstances alleged the absence of such relationship is sufficiently clear for the purpose of the General Steel test.  In my opinion, in the light of the analysis in Tame, it cannot be concluded that the facts alleged in the pleading necessarily did not give rise to a duty to take reasonable care to avoid causing psychiatric harm to the plaintiff.

19. [19]
    There is the further consideration that it is alleged in this case that the defendant was aware of the plaintiff’s special vulnerability to psychiatric injury. The authorities on psychiatric injury, when speaking of the content of the duty of care, frequently speak in terms of the content in the absence of knowledge of any special vulnerability, and there is much less discussion in the cases as to the content of the duty where there is such knowledge. In addition, the requirements for the existence of a duty include the reasonable foreseeability of psychiatric injury in the particular circumstances, and knowledge of a predisposition in a particular person to psychiatric injury would obviously be relevant to the question of whether a duty existed to that person. In the present case, where that knowledge is alleged, that also makes it more difficult to say that the facts alleged do not give rise to a good cause of action.

The pleading – 2

20. [20]
    One of the remaining difficulties in the pleading is that paragraph 7 does not allege a duty to take reasonable care to avoid psychiatric harm.  If a duty arises it is not one “not to do or say anything … which might result in the plaintiff suffering psychiatric harm.”  The existence of the duty does not mean the duty was breached, and does not necessarily mean that it required any particular action or inaction on the part of the defendant.  That depends on whether a reasonable person, in the position of the defendant, would have deliberately refrained from saying such things to the plaintiff.

21. [21]
    There is also an issue about the standard of care, and whether some particular standard is required, either because the plaintiff had some particular expertise, or because the plaintiff held himself out as having some particular expertise. If these were not made out, would that simply mean that the standard of care would be the standard of the ordinary reasonable person? Or would it mean there was no obligation to take care at all?

22. [22]
    Because of the way in which the particulars of breach are framed it is not clear whether the plaintiff’s case is that the advice was negligent because of its content or because of the manner in which it was delivered. It does seem however from the comments in the joint judgment of Gummow and Kirby JJ at p. 395 of Tame that there would not be a cause of action arising because of psychiatric harm caused by the manner in which the advice was conveyed, at least in the absence of a malign intention, which is not alleged.

Negligent advice

23. [23]
    If it is alleged that the advice was wrong in terms of its content, as presumably is the case, there does seem to be some authority that, at least in some circumstances, a failure to take reasonable care 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 incorrectly, and it was alleged negligently, by a Commonwealth Government department that her husband had been admitted to a mental hospital^[10].  This decision was mentioned with apparent approval in the joint judgment of Gummow and Kirby JJ in Tame at p.395.

24. [24]
    In Barnes, however, each of the two judgments delivered made reference to the fact that the communication was sent by a person doing an official act.  Stephen J said that one of the requirements for the existence of a duty was something close or special in the relationship between the plaintiff and the defendant which rendered it reasonable to place responsibility on the defendant, which in that case was satisfied because of the official position of the relevant officer of the defendant.  These passages suggest that the court would not necessarily have found the existence of a duty on the part of anybody who happened to communicate the same incorrect information to the plaintiff.

25. [25]
    The recognition 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 financial position of the customer, so that it was reasonable for the recipient to rely on that reference.  The duty was at one time confined to a situation of a person whose business or profession it was to provide information or advice of a kind calling for special 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 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 known to possess, or profess to possess, skill and competence in the area which is the subject of the communication.”^[13] 

26. [26]
    In the same case Brennan J said at p. 372 that the representor would come under a duty of care if three conditions were satisfied: “First … if the representor realises or ought to realise that the representee will trust in his especial competence to give that information or advice; second … if it would be reasonable for the representee to accept and rely on that information or advice; and third … if it is reasonably foreseeable that the representee is likely to suffer loss should the information turn out to be incorrect 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 necessarily undertake to be careful in the information he gives or the advice he offers.  The occasion for the advice or information may be of a purely social nature inconsistent with the assumption of any responsibility.”  It is difficult to see why that does not apply in the present case.

27. [27]
    In the same case, which was concerned with an action for negligence against an auditor which ultimately failed in the High Court, Toohey and Gaudron JJ said at p. 265: “The decided cases do not identify precisely what it is that results in liability for economic loss suffered in consequence of the voluntary provision of information or advice. However, commonsense requires the conclusion that a special relationship of proximity marked either by reliance or by the assumption of responsibility does not arise unless the person providing the information or advice has some special expertise or knowledge, or some special means of acquiring information which is not available to the recipient. Moreover, ordinary principles require that the relationship does not arise unless it is reasonable for the recipient to act on that information or advice without further enquiry. Similarly, ordinary principles require that it be reasonable for the recipient to act upon it for the purpose for which it is used. That is not to say that a special relationship of proximity exists if these conditions are satisfied. Rather, it is to say that the relationship does not arise unless they are.”

28. [28]
    Their Honours of course were talking about liability for economic loss as a result of the voluntary provision of advice. It has been suggested that these constraints will not arise in circumstances where what is relevant is liability for physical injury.^[14]  Nevertheless, in Tame in the joint judgment of Gummow and Kirby JJ at pp.379-380 there was some analogy drawn between liability for negligence causing psychiatric illness not consequent upon physical harm and liability for economic loss resulting from negligent misstatement, in that both involved control mechanisms on the recognition of the existence of a duty, reflecting a need to keep liability within practical bounds^[15].  Accordingly it does not seem to me that the limitations identified in Esanda Finance would not apply in a case alleging negligent advice giving rise to psychiatric injury.

29. [29]
    Fleming at p. 192 said that a duty may devolve upon someone who takes it upon himself to give an assurance of safety without pretending to any professional skill and that all that is needed is an air of assurance inviting justifiable reliance. A number of examples are given, which certainly carry the matter beyond professions such as doctor or lawyer, but almost all of them are cases where there is some particular reason to regard the person making the statement or giving the advice as having either particular skill in a relevant field, or at the least some special access to relevant knowledge. Thus one would expect a harbourmaster to have a special knowledge about the safety of a lock^[16], or a lake authority special knowledge about the depth of the lake^[17].   The liability of a laboratory supplier for the mislabelling of chemicals^[18] or of a chart-maker for an incorrect chart^[19] are examples of, or readily conceded by analogy with, negligence in the field of product liability.  Even a truck driver giving a “ready to be overtaken” signal to a following vehicle has some special advantage in having a superior opportunity to observe the road ahead.

30. [30]
    The one decision cited by Fleming which at first sight is not consistent with the approach adopted in Esanda Finance is Sharp v Avery [1938] 4 All ER 85.  In that case the defendant was one of a number of motorcyclists who while out together led the others by mistake off the road and braked as a result of which the following cyclist collided with him and his pillion rider was thrown off and injured.  But that case did not turn solely on any issue of negligent advice.  To some extent the existence of a duty turned on the knowledge he had that another cyclist would be closely following him, perhaps with a pillion passenger.  Some members of the court also referred to his having offered to lead the party and held himself out as being familiar with the route, and having the skill properly to choose the road.^[20]  So this is really another example of a person professing some particular skill or knowledge.  In my opinion it provides no real authority for the proposition that an officious adviser, who has no real skill or knowledge upon which it was reasonable for the plaintiff to rely, is liable for personal injury.

31. [31]
    As Fleming himself points out at p. 189, one of the relevant considerations in relation to liability for negligent advice is that the victim’s own decision to act upon the advice is interposed between the giving of the advice and any adverse consequences. Fleming attributes this to causation, but in my opinion it is relevant to the duty because it directly concerns the question of whether, as a matter of policy, the law should impose an obligation to take reasonable care in such circumstances. That, in my opinion, ought only to be done in circumstances where it is objectively reasonable for the plaintiff to have acted on such advice without further enquiry. This was the point made in the joint judgment in Esanda Finance at p. 265, referred to earlier.  Ordinarily it would not be reasonable for the recipient of advice to act upon that advice without further enquiry unless the person providing it has some special expertise or some special knowledge or means of acquiring information which is not available to the recipient, or at least holds himself out as having it, although, in a particular case, that might not be enough to establish that it was reasonable to act on the advice without further enquiry.  In my opinion, therefore, there is good reason for that restriction to apply in the case of alleged negligent advice giving rise to psychiatric injury, as well as a case of alleged negligent advice giving rise to economic loss.

32. [32]
    There are perhaps two aspects to this. One is the circumstances under which the advice was being given, and the capacity in which the defendant was purporting to act at the time. In my opinion, it is for this reason that advice from a hairdresser or bus conductor, two people mentioned in argument, on matters other than, respectively, hairdressing or the operation of a bus service, would not be actionable. My initial reaction to the pleading was that, in circumstances where the plaintiff was consulting the defendant simply for the purpose of massage, any advice as to personal matters fell into the same category and was not actionable. But this pleading attempts to meet that difficulty by relying on the prior association between the parties, with the defendant in a leadership role, through the meditation and personal development centre, and by the allegation that the defendant held himself out as qualified by training and experience to work as a counsellor and to counsel the plaintiff about his personal life and his psychological health and development. Indeed, the duty alleged in paragraph 8 was to exercise the care and responsibility of a trained and competent psychologist or, in the alternative, a trained and competent relationship counsellor. That involves an allegation that the defendant had, or held himself out as holding, some special expertise or knowledge, which if established would in my opinion satisfy at least that part of the test in Esanda Finance.

33. [33]
    Another aspect is the basis of the advice which has been given. What is not entirely clear from the pleading, and perhaps necessarily would not be clear at this stage, is whether the defendant in giving this advice was purporting to exercise the special skill or knowledge which, it was alleged, he held himself out as possessing. If the defendant was holding himself out as having particular expertise in the assessment of personal relationships and in purported exercise of that expertise had advised the plaintiff that this specific relationship was not beneficial for him, that is the sort of advice which could potentially be actionable, subject to the satisfaction of the other requirements for actionable negligent advice causing psychiatric injury. But if, say, he had been advising the plaintiff to give up the relationship because, as a sexual relationship outside wedlock, it was contrary to religious principles and therefore sinful and wrong, that, in my opinion, would plainly not be actionable. That would not be giving advice in the purported exercise of some special skill or knowledge, but simply expressing a personal opinion in relation to a moral issue. Making up one’s own mind on the subject of religious doctrine is, these days, not just the right but the responsibility of the individual.^[21]  There is nothing in the Statement of Claim to indicate that this is an issue which arises in the present action, however, and I mention this simply by way of illustration.  It seems to me that such a situation illustrates why a duty, as a basis for actionable negligent advice, could only arise in circumstances where there was some special expertise or knowledge, or the purported possession of special skill or knowledge, which the adviser was purporting to exercise. 

34. [34]
    There is, however, nothing in this analysis which renders the plaintiff’s claim necessarily bad. As well, for an application to strike out without leave to re-plead, this is an area of the law where there is so little authoritative guidance that it is difficult to conclude of almost any case that it is not even arguable. The unsuitability of a strike-out application for deciding these issues was referred to by the High Court in Esanda Finance, for example, although ultimately in that case the decision to strike out the pleading was upheld.  That, however, involved the area of negligent mis-statement causing economic loss, an area where there is now a good deal of authority available.  Negligent mis-statement leading to physical injury is less frequently the subject of action, and those actions that occur are usually actions against professional advisers in relation to the construction of something, where the rules are reasonably well-developed.  There are very few authorities dealing with negligent advice giving rise to psychiatric injury.  Barnes v The Commonwealth is not featured extensively in the citators.  In these circumstances it is very difficult to know just what the current limits are to the actionability of negligent advice in such circumstances, and therefore to say that the Statement of Claim currently pleaded necessarily lies outside of them. 

35. [35]
    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 Centre, as a result of which the plaintiff had entered into certain financial transactions which led to her suffering economic loss.  The claim was initially brought in the District Court only against the counsellor and a bank, but on 16 October 1995 Morley DCJ gave the plaintiff leave to amend the plaint to add the corporation operating the church as a second defendant in the action.  At that stage consideration was given to possible liability of the proposed additional defendant either on the basis of a fiduciary relationship between it and the plaintiff, or on the basis of vicarious liability in respect of the breach of fiduciary duty by the spiritual counsellor.  At that stage, of course, it was unnecessary to consider whether there was any, and what, basis for liability on the part of the counsellor.

36. [36]
    The action came on trial before Robin DCJ, who delivered judgment on 18 October 1996. The first defendant was held liable on the basis of undue influence. It is apparent from his Honour’s reasons that the case against the third defendant was concerned only with the question of whether the third defendant was vicariously liable for the actions of the first defendant counsellor. No issue of negligence appears to have arisen. From this decision the appeal was brought to the Court of Appeal, but only dealing with the liability of the third defendant, and only on the basis that it was vicariously liable for the misconduct of the first defendant. In the Court of Appeal the majority (Fitzgerald P and Lee J) did not discuss in detail the case which ultimately succeeded against the counsellor; Williams J in a separate concurring decision described this as a clear case of undue influence of unconscionable conduct, and it is clear from his Honour’s reasons that no case was advanced at the trial against the counsellor on the basis of negligence. In my opinion this decision has no relevance to the matters in issue in the present application.

37. [37]
    As I said earlier, I think that there are deficiencies in the pleading, as a pleading. The wording of paragraph 7 could be improved, and there is the difficulty with paragraph 8, that there is nothing in paragraph 6 to justify an allegation that the defendant was purporting to exercise the skill and experience which would be available to a trained and competent psychologist, or indeed to justify the allegation that the defendant was under a duty to possess and be able to exercise the standard of care of a trained and competent psychologist. There are inadequacies in the particularisation of the negligence, and in the proper pleading of the issue of causation; I understood that the plaintiff’s true case was that, acting on the advice of the defendant, he had terminated the de facto relationship, and that he suffered psychiatric injury as a consequence of the absence of that de facto relationship. The current pleading, however, rather treats the termination of the de facto relationship as a consequence of the development of the psychiatric injury. This appears to be a mistake in the pleading. But these may be matters of inexact terminology rather than fundamental defects in the pleading.

Conclusion

38. [38]
    For the reasons I have given, this is not a case for the pleading to be struck out without liberty to re-plead. I have been concerned about the question of whether the pleading as a whole should be struck out with liberty to re-plead, but ultimately have come to the conclusion that the only part of the pleading which is so defective as to justify striking out is that part of paragraph 8 which alleged that the applicable standard of care and responsibility was that of a trained and competent psychologist. Accordingly I will 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. I will, however, 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. The defendant’s application is otherwise dismissed.

39. [39]
    I emphasise that I am not to be taken as deciding that, if the facts pleaded are made out, the defendant did owe a duty, or any particular duty, to the plaintiff to take reasonable care to avoid causing psychiatric injury. All that I need to consider is whether it is so clear that the plaintiff has no cause of action for damages in respect of a psychiatric injury that it is appropriate to strike out the further amended statement of claim under rule 171. It is not appropriate for me to speculate about the likely outcome of a trial, where primary findings of fact can be made as to all the relevant circumstances, and a conclusion reached in relation to the issue of whether or not there was a duty, and the other relevant issues on the basis of those findings of primary fact. Although I have a suspicion that by allowing this action to continue it will, in the long run, appear that I have not done the plaintiff a favour, on my understanding of the state of the law in Australia at the present time, it is not possible for the defendant to satisfy the General Steel test, and therefore the application must be dismissed.

40. [40]
    With regard to the question of costs, although there are deficiencies in the pleading and the defendant’s application has not been entirely unsuccessful, on the whole the plaintiff has been much more successful than the defendant, so that on balance the event favours the plaintiff. The application is therefore dismissed with costs.

41. [41]
    At the time the application was heard, there were a number of other applications, in other actions brought by other plaintiffs against the same defendant, to strike out the plaintiffs’ pleadings in those actions. On the hearing of this application the plaintiff consented to orders that those pleadings be struck out, on the basis that the plaintiff have liberty to re-plead, but sought the postponement of that re-pleading until after the judgment in relation to this application was delivered. There was some material read in relation to the costs of those applications. I indicated in the course of the hearing that I would deal with the question of costs when I gave judgment in this matter, and do not apprehend that I have heard yet full argument in relation to the question of costs of those other applications. In the circumstances, on the delivery of these reasons I will invite any further submissions that the parties wish to make before dealing with the question of costs in relation to those other applications.