Hare v. Mount Isa Mines Limited & Ors
[2008] QDC 242
•3 October 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Hare v Mount Isa Mines Limited & Ors [2008] QDC 242
PARTIES:
STELLA YVONNE HARE by her next friend DAPHNE YVONNE HARE
Applicant
V
MOUNT ISA MINES LIMITED
First Respondent
AND
XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 WITH REGISTRIES NUMBER 4345939)
Second Respondent
AND
XSTRATA QUEENSLAND LIMITED
Third Respondent
FILE NO/S:
BD1722/08
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
3 October 2008
DELIVERED AT:
Brisbane
HEARING DATE:
18 August 2008
JUDGE:
Tutt DCJ
ORDER:
The Part 1 Notice of Claim of 24 April 2008, served by the Applicant on the Respondents on 24 April 2008 pursuant to s 9 of the Personal Injuries Proceeding Act 2002 (Qld) is a complying Part 1 Notice of Claim under PIPA.1.
The applicant’s costs of and incidental to the application be her costs in the cause.2.
CATCHWORDS:
PERSONAL INJURIES – whether applicant’s Part 1 Notice of Claim under s 9 of Personal Injuries Proceedings Act 2002 (Qld) a complying notice – whether sufficient information contained in Notice served – whether “Description of Incident” and its cause adequately provided – whether details of pre-existing disabilities provided – whether perceived deficiencies remedied in any event – whether claim should advance – whether applicant has subjected respondents to “onerous” disclosure obligations
Motor Accident Insurance Act 1994 (Qld)
Personal Injuries Proceedings Act 2002 (Qld) ss 4, 9, 22
Personal Injuries Proceedings Regulation 2002 (Qld) s 3
WorkCover Queensland Act 1996 (Qld)
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
COUNSEL:
G R Mullins for the applicant
L F Kelly SC, with B F Charrington, for the respondents
SOLICITORS:
Slater & Gordon Lawyers for the applicant
Allens Arthur Robinson for the respondents
Introduction:
Stella Yvonne Hare by her litigation guardian Daphne Yvonne Hare (“the applicant”) seeks declarations in the alternative against Mount Isa Mines Limited and others (“the respondents”) in respect of a Notice of Claim (“the notice”) served by the applicant on the respondents on 24 April 2008 pursuant to s 9 of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”).
The original application seeking relief was filed on 26 June 2008 but at the hearing, after argument, the applicant was granted leave to file an amended application now before the court.
For present purposes the chronology of events between the respective parties is as follows:
24 April 2008: Part 1 Notice of Claim under PIPA served by applicant on respondents.[1]
[1]DJS-8 to affidavit of DJ Scattini filed 14 August 2008; Exhibit RLM-1 to affidavit of RL Morrison filed 14 August 2008.
7 May 2008: Respondents replied to the notice advising among other things that “the notice of claim is nonconforming” in a number of respects.[2]
[2]DJS-14 to affidavit of DJ Scattini above; Exhibit RLM-1 to affidavit of RL Morrison above.
14 May 2008: Applicant responds to that correspondence addressing the respondents’ concerns in part.[3]
[3]DJS-15 to affidavit of DJ Scattini above.
23 May 2008: Respondents then set out in detail to the applicant the perceived deficiencies in the applicant’s notice which make it a “non-complying” notice under PIPA.[4]
[4]DJS-19 to affidavit of DJ Scattini above; Exhibit RLM-1 to affidavit of RL Morrison above.
16 June 2008: Applicant replies to the respondents’ correspondence taking issue with the respondents’ assertions therein and seeking the respondents’ acknowledgement that the notice is now a “complying” notice.[5]
[5]DJS-20 to affidavit of DJ Scattini above; Exhibit RLM-1 to affidavit of RL Morrison above.
23 June 2008: Respondents reply in the negative and seek further material of a medical nature.[6]
[6]DJS-21 to affidavit of DJ Scattini above; Exhibit RLM-1 to affidavit of RL Morrison above.
25 June 2008: Applicant responds enclosing further documents.[7]
[7]DJS-22 to affidavit of DJ Scattini above; Exhibit RLM-1 to affidavit of RL Morrison above.
26 June 2008: Applicant files originating application seeking relief.
Since that time there have been further exchanges of correspondence between the parties and at the hearing leave was granted to both parties to read and file further and/or supplementary affidavits.[8]
Respondents’ submissions:
[8]Hearing Transcript of 18 August 2008 at pgs 10, 15, 17.
The respondents identify three (3) bases in their submission that the notice as served “is non-compliant” namely:
· The “Description of the Incident” in Item 9 of the notice is deficient in two respects in that it is:
(a) “vague and meaningless” as to “what the incident or incidents were or why the respondents are said to have caused them” and “is liable to prejudice the respondents in investigating the claim and responding sensibly to it”;[9] and
(b) does not identify the “other toxic elements” to which the applicant has been exposed and has “absorbed into her body”.[10]
· Thirdly, in respect of the “false” answer to Item 24 of the notice which requires the applicant to disclose any “personal injuries, illnesses or disabilities” she has suffered “either before or since the incident in relation to this or any other incident that may affect…” the claim (emphasis added).[11]
[9]Respondents’ written submissions at paragraph 11.
[10]Ibid at paragraph 14.
[11]Item 9 of Notice of Claim
In expanding on these three objections the respondents’ counsel submitted that the “incident” description does not enable the respondents to respond in a constructive way to the claim because of its lack of detail and therefore it frustrates the “Main purpose” of the PIPA legislation to enable the parties to resolve claims “at an early stage wherever possible”.[12]
[12]PIPA s 4(2)(b).
The respondents further submit that the notice is seriously deficient in the answer to the question 24 in that the applicant’s denial of there being anything in her medical history which may impact upon the claim wrongly ignores the “undeniable historical fact” that the applicant had a “very premature birth which may be the cause of her current alleged disabilities or at least have had a substantial effect upon her current problems”.[13]
[13]Respondents’ written submissions at paragraph 53.
The respondents have filed affidavits from specialist medical practitioners containing their respective opinions on a number of issues and their sequelae relevant to the applicant’s medical history and her alleged exposure to substances described in Item 9 of the notice.[14]
[14]Affidavits of Drs MJ McDowell and R Drew filed by leave on 18 August 2008.
Ultimately the respondents submit that to allow the claim to proceed on the notice in its present form would be to impose upon them “oppressive, onerous and very expensive disclosure obligations” which would severely prejudice the respondents in their response to the claim.[15]
Applicant’s submissions:
[15]Respondents’ written submissions at paragraph 74.
The applicant essentially submits that:
· The “Description of the Incident” in Item 9 of the notice is adequate to satisfy the provisions of s 9 of PIPA;
· It is the applicant’s belief that the infant’s “premature birth” and difficulties associated therewith have not impacted upon the injuries sustained the subject of the claim and therefore her denial in Item 24 is a reasonable response to the question posed;
· The query raised by the respondents in respect of “(the toxins)” referred to in the incident description has been answered in correspondence[16] so that the respondents are now apprised of sufficient information to enable them to respond to the claim pursuant to PIPA;
[16]DJS-15 to affidavit of DJ Scattini above.
· That although there will be substantial disclosure in a claim of this nature that issue is not a “compliance” one but will be addressed and debated if necessary pursuant to s 22 and following of PIPA;
· Finally, the notice in its present form, together with the supplementary information makes it a complying notice pursuant to PIPA and the relief sought in the application should be granted.
Notice of Claim to other entities:
The notice was also served on other entities which have acknowledged that they are respectively “a proper respondent” to the claim and that “a complying Part 1 Notice of Claim” has been delivered after certain queries raised by each of them respectively were addressed and remedied.[17]
The law:
[17]Notices served on the State of Queensland and Mount Isa City Council.
PIPA revolutionised the procedures to be followed in respect of common law claims for damages for personal injuries, in the same way as did earlier amendments to the Motor Accident Insurance Act 1994 (Qld) and WorkCover Queensland Act 1996 (Qld) the precursor to the Workers’ Compensation and Rehabilitation Act 2003 (Qld), in respect of claims involving motor vehicles and work-related injuries respectively.
The primary and fundamental change was the introduction of “Pre‑court procedures” to be adopted for proposed common law claims which set out a myriad of steps to be followed before any court proceeding could be commenced and/or prosecuted.
In s 4 of PIPA the “Main purpose” is described as follows:
“(1)The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.
(2) The main purpose is to be achieved generally by—
(a)providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and
(b)promoting settlement of claims at an early stage wherever possible; and
(c)ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and
(d)putting reasonable limits on awards of damages based on claims; and
(e)minimising the costs of claims; and
(f)regulating inappropriate advertising and touting.”
The integral part of PIPA is the requirement set out in s 9 for a claimant to “give written notice of claim in the approved form to the person[18] against whom the proceeding is proposed to be started”.[19]
[18]Referred to as a “respondent”.
[19]PIPA s 9(1).
The “approved form” is contained in the Regulation[20] and is in two parts. For present purposes we are concerned with only “Part 1”. This part requires a claimant to provide information under various headings and/or answer a series of questions seeking further information in respect of the proposed claim as required under the regulation.
[20]Personal Injuries Proceedings Regulation 2002 (Qld) s 3.
Section 12 of PIPA requires a respondent to advise a claimant of a number of matters including “whether the respondent is satisfied that Part 1 of the notice is a complying Part 1 notice of claim”[21] which if so, enables the claim to proceed to the next step in the chain of procedures designed to resolve the claim “at an early stage”.
[21]PIPA s 12(a).
If a respondent is “not satisfied” that the notice is a “complying” one then the respondent “must” taken certain steps to require the claimant to remedy the perceived areas of non-compliance.
Present position of claim:
The parties to this application have reached this stage of the claim, that is, the respondents say the notice is still “non-compliant” and the claim cannot proceed until that non-compliance is remedied but the applicant disagrees and seeks relief to proceed further with the claim which has otherwise reached a “stalemate”.
Findings:
On the material filed and the submissions made I make the following findings:
(i) The applicant’s Part 1 Notice of Claim served on the respondents on 24 April 2008 is a complying notice pursuant to the provisions of PIPA and the Regulations thereunder as I am satisfied that the information contained therein is sufficient to comply with the requirements of s 3 of the Regulation in that although the Regulation requires a claimant to provide detailed information of a claim as set out therein (which the notice served does), the fundamental purpose of the notice is to provide sufficient information to a respondent about a proposed claim to enable the respondent to identify:
· the nature of the incident giving rise to the claim;
· when it happened;
· where it happened;
· why the respondent is alleged to be responsible; and
· the nature of the alleged injury caused.
I find therefore that the notice as served fulfils this fundamental purpose, in respect of what might be described as a unique claim to enable the claim to progress through the various pre-court procedures to follow.
(ii) That if the notice was deficient as originally served (and I have found to the contrary) causing it to be “non-compliant”, any perceived deficiency has since been remedied by the applicant, so that it is now in any event, a complying notice of claim.
(iii) The deficiencies alleged by the respondents in the notice are not “compliance” issues but are issues which, though properly and relevantly raised by the respondents for argument and debate, deal with the questions of “liability and quantum in relation to a claim”. These issues will no doubt require detailed analysis and investigation and will be subject to comprehensive disclosure by all parties in the course of the various pre‑court procedures to be completed under PIPA but do not impact upon the efficacy of the Part 1 Notice as served on the respondents.
Costs:
In the exercise of the court’s discretion I find that the applicant’s costs of and incidental to the application should be her costs in the cause.
Orders:
The orders in this application will therefore be as follows:
(i) The Part 1 Notice of Claim of 24 April 2008, served by the Applicant on the Respondents on 24 April 2008 pursuant to s 9 of the Personal Injuries Proceeding Act 2002 (Qld) is a complying Part 1 Notice of Claim under PIPA.
(ii) The applicant’s costs of and incidental to the application be her costs in the cause.
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