Body v Mount Isa Mines Ltd & Ors [2014] QCA 214

SUPREME COURT OF QUEENSLAND

CITATION: Body v Mount Isa Mines Ltd & Ors [2014] QCA 214

PARTIES: SIDNEY BODY by his litigation guardian SHARLENE BODY (appellant) v MOUNT ISA MINES LIMITED ACN 009 661 447 XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 REG NO 4345939) XSTRATA QUEENSLAND LIMITED ACN 009 814 019 (respondents)

FILE NOS: Appeal No 7895 of 2013 SC No 1247 of 2011

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 29 August 2014

DELIVERED AT: Brisbane

HEARING DATE: 29 April 2014

JUDGE: Margaret McMurdo P and Holmes JA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: The appeal is allowed to the extent of / (a)the fifth further amended statement of claim filed on 31 May 2013be struck out; / **(b)**the plaintiff pay the defendants’ costs of and incidental to the amended application filed 7 June 2013; / (c)the plaintiff pay the defendants’ costs of and incidental tothe application filed 3 July 2012; / **(d)**the plaintiff pay the defendants’ costs of and incidental to the application filed 22 December 2011 in so far as they relate to the strike-out of the plaintiff's reply; / **2.**dismissing the application for orders contained in paragraph 1 of the application filed 3 July 2012 and amended 7 June 2013; / **3.**ordering that: / **(a)**the plaintiff pay the defendant’s costs of the application filed 3 July 2012 up to its amendment on 7 June 2013; / (b)the plaintiff pay the defendants’ costs thrown away by reason ofthe adjourned hearings on 9****July 2012 and 16 October 2012; / **(c)**the defendants pay the costs of the appeal; / **(d)**the defendant pay the plaintiff’s costs of the application filed 3 July 2012 after its amendment on 7 June 2013; / 4.reserving the costs of and incidental tothe application filed 22 December 2011 in so far as they relate to the strike-out of the plaintiff's reply, including the costs of the adjournment on 8 February 2012.

CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the appellant plaintiff brought an action for personal injuries alleging that he was injured by the absorption of lead from emissions from the respondent defendants’ mining operations and that the defendants had breached a duty to warn of the risk of lead absorption and measures by which it could be reduced – where the pleadings alluded to other sources of lead emission – where, at first instance, the defendants argued that the plaintiff had failed to plead that it was ingestion of lead from their emissions, as opposed to lead from any other source, which had caused his injury – where the primary judge accepted the defendants’ argument and struck out the pleading – where the plaintiff appeals against that order – where the defendants contend that other grounds for strike-out ought also to have been upheld – where the defendants contend that their statutory obligation to operate the lease under the Mount Isa Mines Limited Agreement Act 1985 (Qld) excluded any other duty – where the defendants further contend that where it was pleaded that there were emissions from a number of sources, there could be no duty on their part to warn of the associated risk – whether the pleadings were adequate – whether the additional grounds for the strike-out should have been upheld / COSTS – INTERLOCUTORY PROCEEDINGS – ADJOURNMENT AND AMENDMENT – where the appellant plaintiff brought an action for personal injuries – where the defendant has made applications to strike out different iterations of the pleadings – where those applications were amended and adjourned – where the plaintiff appeals against orders that he pay the defendants’ costs of all applications, as well as costs thrown away by the adjournments and amendments to the pleadings – where the plaintiff contends that the primary judge did not properly consider the merits of the applications and adjournments and failed to give separate reasons in respect of each costs order – where some of the defendants' amendments resulted from changes to the pleadings – where some of the applications in respect of which costs were awarded have not been determined – whether the primary judge’s costs orders should stand – whether the plaintiff should have his costs of the appeal / Mount Isa Mines Limited Agreement Act 1985 (Qld), s 3A / Uniform Civil Procedure Rules 1999 (Qld), r 386 / Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1, applied / General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, applied / Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, applied

COUNSEL: B W Walker SC, with G R Mullins, for the appellant W Sofronoff QC, with A Stumer, for the respondent

SOLICITORS: Slater & Gordon for the appellant DLA Piper Australia for the respondent

1. MARGARET McMURDO P: I agree with Holmes JA’s reasons for allowing this appeal and with the orders her Honour proposes.

2. HOLMES JA: The appellant plaintiff appeals against an order striking out his fifth further amended statement of claim and orders that he pay the respondent defendants’ costs of that and earlier applications, as well as costs thrown away by adjournments and amendments to the pleadings. The case he sought to make out on the contentious statement of claim was, in essence, that he, a child living in Mount Isa, had absorbed lead from emissions from the defendants’ mining operations, which had caused him injury, and that the defendants, knowing of the risks associated with their lead emissions, had breached a duty to warn him and his mother of that risk and measures by which it could be reduced, in consequence of which failure he was injured. The defendants mounted three arguments at first instance as to why the pleading did not make out a cause of action; they succeeded on one, and now argue on a Notice of Contention that the remaining grounds for strike-out ought also to have been upheld.

The fifth further amended statement of claim

3. The plaintiff pleaded in paragraph 5 of the relevant statement of claim that the defendants occupied and controlled a property at Mount Isa referred to as “the Lease”. The following were the salient parts of the pleading concerning the defendants’ emission of lead and the risk the emissions posed:

“7.At all material times during the period 1 January 1990 until the present day:

7.1The Defendants conducted mining and smelting operations from the Lease, including the mining of lead and other metals;

7.2During the process of its mining and smelting operations, the Defendants caused emissions containing lead to be released from the Lease into the atmosphere (“the Emissions”).

…

7.3The lead in the Emissions was capable of ingestion, absorption and inhalation (“Absorption”) by persons who were living within the Town of Mount Isa (including, in and after 2004, the Plaintiff).

…

8.At all material times in and after 2004 the Emissions were a significant source of lead which was capable of Absorption by persons living within the Town of Mount Isa (including the Plaintiff).