Body v Mount Isa Mines Ltd - [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

setting aside the orders that:1.

(a)the fifth further amended statement of claim filed on 31 May 2013 be 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 to the 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 of the 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 to the 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…

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.

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Details

Case: [2014] QCA 214
Decision Date: 29 August 2014

CaseChat Overview and Summary

The appellant plaintiff, Body, brought an action against the respondent defendant, Mount Isa Mines Ltd, seeking damages for personal injuries he sustained from the absorption of lead from emissions from the defendant's mining operations. Body alleged that the defendant breached its duty to warn him of the risk of lead absorption and the measures by which it could be reduced. The defendant argued that the plaintiff's pleadings were inadequate as they did not specify that the lead absorption which caused his injury came from their emissions rather than other sources. The primary judge agreed with the defendant and struck out the pleadings. The plaintiff appealed against the order striking out the pleadings, and the defendant argued that the appeal should be dismissed on other grounds. The defendant also argued that its statutory obligation to operate the lease under the Mount Isa Mines Limited Agreement Act 1985 (Qld) excluded any other duty to warn of the associated risk. Additionally, the defendant argued that there could be no duty to warn of the associated risk where it was pleaded that there were emissions from a number of sources.

The court considered whether the pleadings were adequate and whether the additional grounds for the strike-out should have been upheld. The court held that the pleadings were adequate as they identified the source of the emissions and the defendant's breach of duty. The court also held that the additional grounds for the strike-out should not have been upheld as they were not relevant to the pleadings. The court also considered the plaintiff's appeal against the costs orders made by the primary judge. The plaintiff argued 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. The court held that the costs orders should be set aside as 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.

The appeal is allowed to the extent of setting aside the orders that the fifth further amended statement of claim filed on 31 May 2013 be struck out, the plaintiff pay the defendants’ costs of and incidental to the amended application filed 7 June 2013, the plaintiff pay the defendants’ costs of and incidental to the application filed 3 July 2012, 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, dismissing the application for orders contained in paragraph 1 of the application filed 3 July 2012 and amended 7 June 2013, ordering that the plaintiff pay the defendant’s costs of the application filed 3 July 2012 up to its amendment on 7 June 2013, the plaintiff pay the defendants’ costs thrown away by reason of the adjourned hearings on 9 July 2012 and 16 October 2012, the defendants pay the costs of the appeal, the defendant pay the plaintiff’s costs of the application filed 3 July 2012 after its amendment on 7 June 2013, and reserving the 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, including the costs of the adjournment on 8 February 2012.

Orders

Orders of the court

The appeal is allowed to the extent of

setting aside the orders that:1.

(a)the fifth further amended statement of claim filed on 31 May 2013 be 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 to the 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 of the 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 to the 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.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 setting aside the orders that:1. (a)the fifth further amended statement of claim filed on 31 May 2013 be 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 to the 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 of the 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 to the 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…