Sanders v Mount Isa Mines Limited - [2023] QSC 188

SUPREME COURT OF QUEENSLAND

CITATION: Sanders v Mount Isa Mines Limited & Ors [2023] QSC 188

PARTIES:
BETHANY SANDERS BY HER LITIGATION GUARDIAN JIM SEETO

(plaintiff)
v
MOUNT ISA MINES LIMITED

(ACN 009 661 447), XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 REG NUMBER 4345939) AND XSTRATA QUEENSLAND LIMITED (ACN 009 814 019) (MOUNT ISA MINES LIMITED) (XSTRATA PLC)

(defendants)

FILENO/S: BS No 7608 of 2011

DIVISION: Trial Division

PROCEEDING: Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVEREDON: 25 August 2023

DELIVEREDAT: Brisbane

HEARING DATES: 9 May 2022 to 2 June 2022, 6 June 2022 and 13 July 2022

JUDGE: Williams J

ORDERS:
THE COURT DIRECTS THAT the parties provide to the Associate to Williams J by 4pm on 8 September 2023:

1. submissions of no more than five pages identifying any further findings required and the basis for the proposed findings; and

2. an agreed draft order finalising the proceedings.

CATCHWORDS:
TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY –

GENERALLY – where the plaintiff claims damages for personal injuries alleging she suffers brain damage and neurological injury as a result of lead poisoning caused by the defendants’ negligence – where the defendants have undertaken mining activities in Mount Isa since 1924, with the plaintiff’s claim putting in issue the operation of the mine from 1990 to 2008 – where the plaintiff resided within three kilometres of the mining and smelting operations carried out by the defendants in 2007 – where the defendants submit that the lead emissions caused by the mining and smelting

operations were within prescribed limits and lawful, and the

amount of lead capable of inhalation and ingestion was negligible – whether the defendants owed the plaintiff and other members of the community in Mount Isa a duty to exercise reasonable care to avoid a risk of injury that was reasonably foreseeable and not insignificant
TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – GENERALLY
–    where the plaintiff claims damages for personal injuries alleging she suffers brain damage and neurological injury as a result of lead poisoning caused by the defendants’ negligence
–   where the plaintiff submits that the defendants duty of care involved an obligation by the defendants to warn parents of the risk of injury to their children and steps that could be taken to avoid the risk – where the first defendant supported initiatives in Mount Isa in the 1990s related to blood lead levels of people in Mount Isa and participated in Queensland Health’s “Get Bled for Lead” campaign in 2006 to 2008 – where the plaintiff submits that this did not discharge the defendants duty of care
–   whether, if a duty of care arose, the scope of duty involved an obligation by the defendants to warn parents of the risk of injury to their children and steps that could be taken to avoid the risk – whether the defendants breached any such duty
TORTS – NEGLIGENCE – DAMAGE AND CAUSATION –
where the plaintiff claims damages for personal injuries alleging she suffers brain damage and neurological injury as a result of lead poisoning caused by the defendants’ negligence
– where the plaintiff had severe Iron Deficiency Anaemia which was unrelated to her exposure to lead and independently caused, in part, the plaintiff’s impaired IQ – where the plaintiff contends that the Court should determine that it is more probable than not that her elevated blood lead levels were caused by consuming lead, a portion of which was emitted from the first defendant’s mining operations – where the plaintiff contends this is an exceptional case attracting the operation of s 11(2) of the Civil Liability Act 2003 (Qld) – whether the plaintiff’s elevated blood lead levels were caused by consuming lead, a portion of which came from the emissions from the first defendant’s mining operations – whether it is otherwise appropriate to impose liability on the defendants
Civil Proceedings Act 2011 (Qld), s 58
Mount Isa Mines Limited Agreement Act 1985 (Qld)
Civil Liability Act 2003 (Qld) s 9, s 11, s 12, s 13, s 15, s 54, s
55, s 59, s 61, s 62
Clean Air Act 1963 (Qld) Contaminated Land Act 1991 (Qld) Evidence Act 1977 (Qld) s 83, s 84, s 92
Personal Injuries Proceedings Act 2002 (Qld)

Civil Liability Regulation 2014 (Qld) Schedule 3 s 2, s 3, s 4,
s 7, s 9, s 10; Schedule 4; Schedule 7
Uniform Civil Procedure Rules 1999 (Qld) Chapter 11 Part 5; r 429G, r 429H

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Agar v Hyde (2000) 201 CLR 552
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Allwood v Wilson & Anor [2011] QSC 180 Amaca Pty Ltd v Hannell [2007] WASCA 158 Bale v Seltsam Pty Ltd [1996] QCA 288
Bsisou v Bsisou t/a Quick Chip Tree Lopping [2019] NSWDC 335
Body v Mount Isa Mines [2014] QCA 214 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Brockhurst v Rawlings [2021] QSC 217
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185
Budden v BP Oil Limited (United Kingdom Court of Appeal, Unreported, 2 May 1980).
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649
Castro v Hillery [2001] QSC 510
Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032
Cooke v Federal Commissioner of Taxation (2002) 51 ATR 223
Council of the City of Greater Taree v Wells (2010) LGERA 208; [2010] NSWCA 147
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
CSR Ltd v Young (1998) 16 NSWCCR 56; (1998) Aust Torts Reports ¶81–468
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Duyvelshaff v Cathcart & Ritchie Limited (1973) 1 ALR 125 Fallas v Mourlas (2006) 65 NSWLR 418 (Judge to decide) Fishlock v Plummer [1950] SASR 176
Goode v Thompson [2002] 2 Qd R 572
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Griffiths v Kerkemeyer (1977) 139 CLR 161
Grincelis v House (1998) 84 FCR 190
Jolley v Sutton London Borough Council [2000] 1 WLR 1082
Jones v Dunkel (1959) 101 CLR 298
King v Western Sydney Local Health Network [2011] NSWSC 1025
Kriz v King [2007] 1 Qd R 327
Land v Dhaliwal & Anor [2012] QSC 360

Leonardi v Payne & Anor [2009] QSC 382
Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48
Lisle v Brice [2002] Qd R 168
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
McKenna v Hunter & New England Local Health District
[2013] NSWCA 476
McQuitty v Midgley [2016] QSC 36
Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd
[2013] 1 Qd R 319
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Minister for Environment v Sharma (2022) 291 FCR 311 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 Neindorf v Junkovic (2005) 80 ALJR 341
New South Wales v Fahy (2007) 232 CLR 486 Nucifora & Anor v AAI Ltd [2013] QSC 338 Payne v Parker [1976] 1 NSWLR 191
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1 Powney v Kerang and District Health (2014) 43 VR 506 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Rosenberg v Percival (2001) 205 CLR 436
RPS v The Queen (2000) 199 CLR 620
Rylands v Fletcher (1866) LR 1 Exch 265 Seltsam Pty Ltd v McNeill [2006] NSWCA 158 Shaw v Menzies & Anor [2011] QCA 197 Singh v Lynch (2020) NSWLR 568
State of Queensland v Kelly [2015] 1 Qd R 577
Strong v Woolworths Limited (2012) 246 CLR 182
Sullivan v Moody (2001) 207 CLR 562
Sutton v Hunter (2021) 97 MVR 451; [2021] QSC 249
Suvaal v Cessnock City Council (2003) 200 ALR 1
Sydney Water Corporation v Abramovic [2007] NSWCA 248
Sydney Water Corporation v Turano (2009) 239 CLR 51
Tame v New South Wales (2002) 211 CLR 317
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited (2022) 273 CLR 454
Thompson v Dr Hassbroek [2010] NSWSC 111
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 Vairy v Wyong Shire Council (2005) 223 CLR 422
Van Gervan v Fenton (1992) 175 CLR 327
Voulis v Kozary (1975) 180 CLR 177
Wallace v Kam (2013) 250 CLR 375
Walters v Roche & Anor [2020] QSC 319
Westfield Shoppingtown Liverpool v Jevtich [2008] NSWCA 139
Woolworths Limited v Lawlor [2004] NSWCA 209

Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260
Wyong Shire Council v Shirt (1980) 146 CLR 40
Yamaguchi v Phipps & Anor [2016] QSC 151

COUNSEL: G R Mullins, C Campbell and M Karaman for the plaintiff D G Clothier KC and S J Webster for the defendants

SOLICITORS: Slater & Gordon Lawyers for the plaintiff Allens for the defendants

TABLE OF CONTENTS

1.General Background........................................................................................ 7
2.Issues arising at trial...................................................................................... 13
2.1Pleading issue – amendment of Annexure A................................................... 13
2.2Evidence rulings – plaintiff’s reports and outstanding issues.......................... 13
3.General issues concerning lay witness evidence.......................................... 14
3.1General credit and reliability issues................................................................. 14
3.2Jones v Dunkel submissions relating to lay evidence...................................... 15
4.History and key factual findings................................................................... 19
4.11990 – 1999...................................................................................................... 24
4.1.1Mining activities and statutory framework including compliance with lead emissions requirements..................................................................................................... 26
4.1.2Contamination and remediation work in the 1990s......................................... 33
4.1.3Blood lead testing in the 1990s........................................................................ 37
4.1.4The formation, activities, and cessation of the CEHC..................................... 41
4.1.5Relevant knowledge of defendants.................................................................. 60
4.22000 – 2005...................................................................................................... 74
4.2.1Mining activities and statutory framework including compliance with lead emissions requirements..................................................................................................... 74
4.2.2Ongoing blood testing...................................................................................... 78
4.32006 – 2007...................................................................................................... 83
4.3.1Mining activities and statutory framework including compliance with lead emissions requirements, and corporate structure of first, second and third defendants... 83
4.3.2Lead awareness activities................................................................................. 86
4.3.3Relevant knowledge of the defendants.......................................................... 120
4.4Facts specific to the plaintiff.......................................................................... 127
4.4.1The plaintiff’s life pre-April 2007................................................................. 127
4.4.2The plaintiff’s time in Mount Isa (April 2007 – early January 2008) including knowledge of lead risks and testing and involvement of Queensland Health129
4.4.3The plaintiff’s anaemia diagnosis and treatment........................................... 154
4.4.4The plaintiff’s subsequent development and schooling................................. 155
4.4.5The plaintiff’s current circumstances and future prospects including expert evidence about capacity to live independently and to work................................................... 156
5.Resolution of key issues raised by competing expert evidence................ 159
5.1Credit and reliability of relevant experts, any Jones v Dunkel submissions and any outstanding objections....................................................................................................... 159
5.2Contribution of ISA Caused Emissions to environmental lead in Mount Isa by 2007 176
5.3Contribution of ISA Caused Emissions to the plaintiff’s blood lead levels including consideration of “rebound”............................................................................ 183
6.Duty of care................................................................................................... 188
6.1Applicable legal principles............................................................................. 188
6.2Identification of alleged duty......................................................................... 195
6.3Reasonable foreseeability............................................................................... 195
6.4Salient features analysis................................................................................. 201
6.5Was relevant risk an “obvious risk” – ss 13 and 15 of the Civil Liability Act
....................................................................................................................... 215
6.6Imposition of any duty of second and third defendants................................. 218
7.Breach of duty.............................................................................................. 220
7.1Applicable legal principles............................................................................. 220
7.2Identification of alleged standard of care....................................................... 221
7.3Was relevant risk insignificant?..................................................................... 224
7.4Did the activities of the first defendant meet or fall short of any applicable standard of care in the circumstances?.......................................................................................... 225
8.Causation...................................................................................................... 238
8.1Applicable legal principles............................................................................. 238
8.2Factual causation and application of “but for” test........................................ 242
8.3Legal causation............................................................................................... 249
9.Damages........................................................................................................ 258
9.1General damages............................................................................................ 258
9.2Economic Loss............................................................................................... 262
9.3Domestic allowance....................................................................................... 267
9.4Special damages............................................................................................. 281
9.5Funds management fees (deferred)................................................................ 281

The plaintiff’s action, by her litigation guardian, is a claim for personal injuries alleged to have been suffered when she was a resident as an infant in Mount Isa.

The key issues in this proceeding are:
(a)did the defendants owe the plaintiff a duty of care as alleged in the plaintiff’s statement of claim?
(b)if so, did the defendants breach that duty of care as alleged in the plaintiff’s statement of claim?
(c)if so, did the defendants breach cause the claimed injury to the plaintiff?

If each of these issues is answered “yes”, then the defendants would be liable to the plaintiff for damages.

If any one of these issues is answered “no”, then the defendants would not be liable and the plaintiff’s claim for damages fails.

Each of these issues was in dispute between the parties at the trial. The parties lead evidence relevant to these issues, including expert evidence. Findings of fact have been made relevant to the determination of these issues. These findings of fact are set out in full in the detailed reasons that follow.

Based on the findings of fact, for the reasons that follow each of these issues is to be answered “no”. Accordingly, the plaintiff’s claim fails.

In these circumstances, the Court directs that the parties provide to the Associate to Williams J by 4pm on 8 September 2023:
(a)submissions of no more than five pages identifying any further factual findings required and the basis for the proposed findings; and
(b)an agreed draft order finalising the proceedings.

Subsequently to any further findings and the final orders being made, I will hear from the parties in respect of costs.

1. General Background

The pleadings raise a number of issues which need to be dealt with in these reasons and relevant findings made. A list of topics was agreed between the parties, which provided the structure for closing submissions. The list of topics also forms the general structure of these reasons, with some headings added or combined as appropriate. Accordingly, the list of topics in issue is reflected in the table of contents and is not separately repeated.

Following is a summary of some of the key defined terms used in these reasons. Further terms may be defined in the text of the reasons.

Glossary

Connor Discussion Paper – The document authored by Mr Connor entitled “Discussion paper – MIM and Community Lead Exposure” dated 11 June 1996 at MIM.116.003.0223

CEHC – Community Environment Health Committee

CEPA – Commonwealth Environment Protection Authority

CHEMUnit – Queensland Government’s Chemical Hazards and Emergency Management Unit

DCS – defendants’ closing submissions

theEmissions – the emissions which the plaintiff pleads in [5.2] of the 4FASOC were caused by the Defendants to be released from the Lease into the atmosphere during the process of its mining and smelting operations

EPA – Queensland Environmental Protection Agency

LeadAlert pamphlet – the pamphlet on lead prepared by the Commonwealth Environment Protection Authority (CEPA) at pages 1 to 2 of MIM.028.001.0552

LeadSafe Factsheet – the factsheet prepared by Queensland Health at MIM.115.007.0062

LeadStakeholder Group – the Tropical Population Health Network Lead Stakeholders group

ML8058– Mining Lease number 8058 which the first defendant was granted in 1985

PCS – plaintiff’s closing submissions

ppm – parts per million

ISA Caused Emissions – the emissions released from the Mining Lease into the atmosphere at all material times during the period 1 January 1990 to January 2008 during the process of the first defendant’s mining and smelting operations as pleaded at [5(a)] of the Further Amended Defence

ISAEA – the environmental authority the first defendant received in February 1996 at MIM.025.001.7046

JER – Joint Expert Report

Memorandum to Damien Farrington – the memorandum to Damien Farrington, Senior ‘EHO’ from Rosemaree Strong, environment health officer concerning “Mount Isa – Lead” dated 19 July 2005 at HEA.001.007.0049

MonaStreet Residence – 4/21 Mona Street, Pioneer QLD 4825 where the plaintiff and her family lived from April 2007 until July 2007

Moresby Street Residence – 3 Moresby Street, Soldiers Hill QLD 4825 where the plaintiff and her family lived from July 2007 until the plaintiff, her mother and her brother left Mount Isa in early 2008

Neville Report – the memorandum prepared by Dr Gerard Neville, senior medical officer (toxicology) at Queensland Health, on 21 December 1994 which summarised blood lead level results that were available to Queensland Health at that time at HEA.001.019.0061

PiispanenMemorandum – the memorandum from John Piispanen to Damien Farrington, Senior ‘EHO’ at HEA.001.007.0052

PrickettMemorandum – the memorandum written by Edward (Ted) Prickett dated 22 November 1995 (also referred to at times as the Prickett Report) at HEA.001.018.0090

2010 Applied Geochemistry journal article – the journal article published in Applied Geochemistry in 2010 of which Professor Mark Taylor was the lead author at SAN.001.001.1963

Pleadings

On 14 April 2022 the plaintiff filed an amended claim which increased the sum sought for damages for negligence from $1,000,000 to $5,000,000 and included interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) (Amended Claim). The amendments to the claim were not opposed.

The plaintiff’s fourth further amended statement of claim dated 21 April 2022 is the version of the statement of claim upon which the trial proceeded (4FASOC).¹
The plaintiff also provided further and better particulars of the amended statement of claim on 8 August 2016, further and better particulars of the reply dated 19 January 2018 and a letter setting out further and better particulars of the second further amended statement of claim dated 31 August 2018. All of these particulars remained relevant at the trial.

Further, the plaintiff filed an updated statement of loss and damages dated 24 March 2022.

At the time the trial commenced, the relevant defence was the amended defence of the defendants to the third further amended statement of claim dated 6 August 2021 (Amended Defence). An issue arose during the course of the trial as to the particulars set out in Annexure A to the Amended Defence. Consequently, a further amended defence of the defendants to the fourth further amended statement of claim was filed on 20 May 2022 (Further Amended Defence).

The 4FASOC dated 21 April 2022 is court document 109. On 16 June 2022, pursuant to the order of Williams J of 5 May 2022, a further version of the 4FASOC was filed which changed the litigation guardian from Sharnelle Seeto to James Seeto. The further version of the 4FASOC is court document 145.

The plaintiff also filed a reply to the Amended Defence dated 2 September 2021 (Reply).

Factual overview

The plaintiff, Bethany Sanders, claims damages for personal injuries as a result of the alleged negligence of the defendants which caused lead poisoning during 2007 and 2008, allegedly leading to brain damage and neurological injury.

The plaintiff was born in January 2006, being the second child of Michael Sanders and Sharnelle Seeto.

The plaintiff has an older brother, Rhys Sanders, who was born in June 2003 and a younger sister, Grace, born in April 2008.

In about the middle of 2006 the family moved to Mount Isa from Brisbane. Following difficulties with appropriate accommodation, Ms Seeto and the two children moved back to Brisbane, ultimately returning to Mount Isa in April 2007.

At the time of arriving back in Mount Isa in April 2007, the family moved into a residence at 4/21 Mona Street, Pioneer (Mona Street Residence). In July 2007, the family moved to 3 Moresby Street, Soldiers Hill (Moresby Street Residence).

Both the Mona Street Residence and the Moresby Street Residence were within three kilometres of the mining and smelting operations carried out by the defendants.

The plaintiff’s case is framed on the basis that when Mr Sanders and Ms Seeto arrived in Mount Isa, they had no knowledge of any risk that might be posed to the plaintiff and Rhys by absorbing lead. It is contended that during the first six months of their time in Mount Isa they were unaware of any risk to children associated with lead exposure.

Further, it is contended that between April and September 2007, Ms Seeto did not take any particular steps in order to avoid the plaintiff’s absorption of lead. In particular, Ms Seeto was aware that the plaintiff regularly ate dirt and she took no particular steps to stop the plaintiff from doing so.

The plaintiff’s case proceeds on the basis that the first time Ms Seeto became aware of any risk associated with lead was being shown an advertisement in a local newspaper in about September 2007 by Mr Sanders. It is contended that Ms Seeto had never seen any posters or signs about the risk of lead to children. Further, it is contended that she had not received any letters and was not invited to any local meetings about the dangers of lead absorption for children. Additionally, she did not see any pop-up booths at supermarkets or similar places providing information about the risk of lead to children.

Ultimately, after Mr Sanders drew Ms Seeto’s attention to an advertisement in a local newspaper in September 2007, Ms Seeto took the plaintiff to a testing centre and the plaintiff’s blood lead level was tested.

On 27 September 2007, the plaintiff’s blood test revealed a blood lead level of

15.3 μg/dL. Staff from Queensland Health informed Ms Seeto that this blood lead

level was high. Further, it is contended that Ms Seeto was told that the plaintiff was at serious risk of physical injury unless the amount of lead in her blood was reduced.

It is contended that Queensland Health advised Ms Seeto that she needed to take steps to decrease or mitigate the plaintiff’s exposure to lead. The plaintiff’s case is that the steps that Ms Seeto was advised to take to limit the plaintiff’s exposure to lead are set out at [24.2] of the 4FASOC.

Further, the plaintiff’s case is that Ms Seeto responded immediately and took multiple steps including:
(a)limiting the plaintiff’s access to outdoor play areas, including not going to the park;
(b)the plaintiff was kept inside the house as much as possible;
(c)stopping the plaintiff eating dirt;
(d)when the children played outside, the ground that they played on was covered; and
(e)the children washed their hands and scrubbed under their nails before eating.

On 27 December 2007 the plaintiff was again tested and the plaintiff’s blood lead level was 27.4 μg/dL.

It is the plaintiff’s case that following receipt of this second result, Ms Seeto decided to leave Mount Isa with her two children to escape the environment and to give the plaintiff a better chance of recovery.

Ms Seeto, Rhys and the plaintiff returned to Brisbane and the plaintiff’s blood lead levels were monitored. It is contended that the plaintiff’s blood lead levels reduced over time.

The 4FASOC puts in issue the operation of the Mount Isa Mine by the defendants in the period between January 1990 to January 2008. The plaintiff’s case is that this includes historical circumstances that may have impacted upon the lead in the environment in 2007 when the plaintiff was in Mount Isa.

Central to the issues in dispute is the definition of “Emissions” in the 4FASOC of claim and the “ISA Caused Emissions” in the Further Amended Defence. These definitions will be considered in more detail below.

The plaintiff’s claim proceeds on the basis that the defendants owed the plaintiff and other members of the community in the town of Mount Isa a duty to exercise reasonable care to avoid a risk of injury that was reasonably foreseeable and not insignificant.

The plaintiff’s primary contention is that the duty is analogous to established categories of duty of care. Alternatively, the plaintiff contends that even on an application of the “salient features” test, the Court should conclude that there is a duty of care.

Further, it is contended that:
(a)the class of persons to whom the duty is owed is identifiable as being the residents of the town of Mount Isa; and
(b)the relevant risk of injury is the absorption of lead from emissions (as identified) and the risk of injury was not only foreseeable but foreseen.

Ultimately, the plaintiff contends that a reasonable person in the position of the defendants would have foreseen that the defendants’ conduct involved a risk of injury to children in the town of Mount Isa.

The plaintiff’s case proceeds on the basis that in determining the scope of the duty and whether there has been a breach, the Court must determine whether the scope of the duty contained an obligation by the defendants to warn parents of the risk of injury to their children.

The plaintiff contends that given the nature of the emissions (as identified) and the inevitability that people in the town of Mount Isa would be exposed to lead from the mine from time to time, and the significant risk that children face following the ingestion of lead, the only manner in which the risk of injury could be avoided was to ensure that parents knew of:
“(a)The risk of injury in that if a child between the age of one and four ingested lead that they had a significant risk of developing elevated blood lead levels and suffering consequential neurological damage; and
(b)The steps that might be taken to avoid that risk of injury, including those matters identified in paragraph 24.2 of the SOC.”²
The plaintiff’s case is that by participating with Queensland Health in the “Get Bled for Lead” campaign and by assisting and providing information, the defendants did not discharge the relevant duty of care. The plaintiff points to a number of arguments in support of this conclusion, but ultimately contends that the campaign and provision of information was not sufficient to alert the public of the risk of injury and the steps that could be taken to avoid that risk.

The plaintiff contends that the Court should determine that it is more probable than not that the plaintiff’s elevated blood lead levels identified in September 2007 were caused by consuming lead, a portion of which came from the emissions from the first defendant’s mining operations.

Relevant to this is that the plaintiff regularly ate dirt and was subsequently diagnosed with Iron Deficiency Anaemia. A consequence of Iron Deficiency Anaemia is pica and the plaintiff points to this being consistent with the evidence of Ms Seeto that the plaintiff ate dirt.

Extensive medical evidence was led on behalf of both the plaintiff and the defendants in respect of a number of aspects of this case. The plaintiff points to the evidence that

PCS at [28].

the neurological damage sustained by the plaintiff was caused by lead poisoning and Iron Deficiency Anaemia.

Almost all issues are contentious between the parties. It is necessary to deal with each issue in turn.

2. Issues arising at trial

A number of matters arose during the trial which impact on the issues to be determined, the evidence and these reasons. I will briefly deal with these at the outset, but they may be further considered in respect of the specific issues they are relevant to later in these reasons.

2.1 Pleading issue – amendment of Annexure A

Following a ruling during the trial as to the scope of the particulars in Annexure A of the Amended Defence in respect of the “Get Bled for Lead” campaign, the defendants sought leave to amend Annexure A. That course ultimately was not opposed by the plaintiff.

The defendants filed the Further Amended Defence containing an amended Annexure A.

The evidence of Professor Donovan was adjourned so that further factual enquiries could be made and to provide time for Professor Donovan to consider the Further Amended Defence.

Ultimately, no further evidence was called by the plaintiff in relation to the various steps taken in the “Get Bled for Lead” campaign. Professor Donovan’s evidence proceeded later in the trial. Professor Donovan’s evidence is separately dealt with below.

2.2 Evidence rulings – plaintiff’s reports and outstanding issues

The report and oral evidence of Professor Donovan were received into evidence, subject to the defendants’ objections. Ultimately, the defendants objected to the entirety of Professor Donovan’s evidence as well as some specific objections. A number of the specific objections were ruled on during the trial.

These reasons deal with the evidence of Professor Donovan, and address the outstanding evidence objections to the extent necessary.

The defendants also objected to the evidence of Professor Mark Taylor and Professor Russell Flegal. Again, this evidence will be dealt with in these reasons and to the extent necessary a ruling will be made in respect of the outstanding evidence objections.

The defendants acknowledge that depending on the findings made in respect of some of the expert evidence, it may not be necessary to rule on some of the specific objections.

Further, the defendants object to Professor Taylor’s use of academic studies in his report as truth of the contents of those studies. This issue was subject to specific

submissions and was referred to as the short hand “reliance on studies objection”. This issue remains outstanding and these reasons address the identified concerns to the extent necessary.

3. General issues concerning lay witness evidence

Both parties made submissions that addressed the lay witness evidence. Further, both parties raised specific issues that require consideration in these reasons.

3.1 General credit and reliability issues

A number of lay witnesses gave evidence including:
(a)Ms Seeto, the plaintiff’s mother. Ms Seeto gave evidence in respect of the plaintiff and the circumstances relevant to the facts specifically relating to the plaintiff and the alleged injury.
(b)Mr Edward (Ted) Prickett, previously Chief Environmental Health Officer at the Mount Isa City Council. A key aspect of the evidence of Mr Prickett concerns a memorandum written by him dated 22 November 1995 (also referred to at times as the Prickett Report) (Prickett Memorandum).³ The use of the Prickett Memorandum is contentious between the parties;
(c)Dr Jeremy Hayllar, the medical superintendent at the Mount Isa Base Hospital from 1992 to 2002. In 1994 he was also on the Community Environment Health Committee (CEHC).
(d)Mr John Piispanen, the Director of Environmental Health for Tropical Regional Services at the Department of Health from 1996 to 2011. Relevantly, in April 2006 Mr Piispanen undertook an investigation into the blood lead data for the previous 10 years for Mount Isa, he chaired the meeting of the Tropical Population Health Network Lead Stakeholders (Lead Stakeholder Group) in 2006, and in 2007 he was involved in the Lead Working Group, including, particularly the “Get Bled for Lead” campaign.
(e)Mr Ronald (Ron) Connor, a senior industrial and occupational hygienist with the first defendant in the 1990s. Mr Connor reported to Mr Jim Fewings, who reported to the General Manager of the first defendant. Mr Connor was responsible for creating and implementing a health safety environment management system for the first defendant.
(f)Ms Maryann Wipaki, an employee of Glencore and Mount Isa Mines. Ms Wipaki joined the first defendant in May 1995 as an ‘instructional designer’ and then worked in positions related to safety and training, risk and compliance and hygiene. Relevantly from January 2007 to April 2012, Ms Wipaki was the health and safety manager for the first defendant.
(g)Ms Melanie Edgar, who was employed by the first defendant between 2007 and 2012. Ms Edgar was initially employed as the manager of community relations and subsequently became the manager of corporate affairs and community relations.

HEA.001.018.0090.

(h)Mr Nathan Pike, who in 2001 was safety advisor with Mount Isa Mines and in 2003 was superintendent of safety, health and hygiene. In 2004, Mr Pike was promoted to safety and health manager. From January 2007, he was transferred out of the safety and health department and in June 2007, he was promoted to global general manager of safety and health for Xstrata Copper.
(i)Mr Edward Turley, who was employed between January 2005 and June 2005 by the first defendant as a senior environmental projects engineer, and environmental manager from July 2005 to September 2009.

The evidence given by these witnesses is to be considered in the context of the various factual findings that need to be made. The key factual findings sought are set out in the various date periods and headings in Part 4 of these reasons. I consider that it is more appropriate to deal with credit and the reliability of the evidence given by these lay witnesses as I consider the key factual findings that need to be made.

Accordingly, I consider these particular witnesses in the following parts of these reasons:
(a)Mr Edward (Ted) Prickett, Dr Jeremy Hayllar and Mr Ronald (Ron) Connor in
Part 4.1 in respect to the period of 1990 and 1999;
(b)Mr John Piispanen, Ms Maryann Wipaki, Mr Nathan Pike and Ms Melanie Edgar in Part 4.3 in relation to 2006 to 2007; and
(c)Ms Sharnelle Seeto in relation to Part 4.4, dealing with the facts specifically relating to the plaintiff.

Generally, each of the lay witnesses attempted to assist the Court to the best of their recollections. The circumstances giving rise to the plaintiff’s claim occurred approximately 15 years ago, and some of the events the subject of the evidence go back to the early 1990s.

In some cases, witnesses were assisted by documents which were produced contemporaneously to relevant events and understandably some witnesses did not have separate recollections from the information contained in the documents. This does not reflect on the witnesses. In some cases, witnesses do have specific recollections of events. Where a plausible explanation is given as to why that recollection remains in their memory, that does not reflect against the credit of the witness.
3.2Jones v Dunkel submissions relating to lay evidence

Both the plaintiff and the defendants raise for consideration whether Jones v Dunkel⁴
inferences should be made in respect of various witnesses.

The Jones v Dunkel principle is often paraphrased and sought to be deployed in a way that is not consistent with the authorities. The principle itself was clearly stated by

(1959) 101 CLR 298.

the High Court in RPS v The Queen⁵ at [26] where Gaudron ACJ, Gummow, Kirby and Hayne JJ stated:
“In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case: Jones v Dunkel at 321 per Windeyer J and that ‘where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference’: Jones v Dunkel at 312 per Menzies J.”

Further, the principle in Jones v Dunkel may only be applied if three conditions exist, namely:
(a)the missing witness would be expected to be called by one party rather than the other party;
(b)their evidence will elucidate a particular relevant matter; and
(c)their absence is unexplained.⁶

Defendants’ failure to call Jim Fewings and other unidentified witnesses

The plaintiff contends that the defendants’ failure to call a witness to give evidence about the state of knowledge and belief of the first defendant about the extent to which the operations at Mount Isa and the relevant emissions were contributing to the lead in the soil during the 1990s should lead the Court to infer that no witness would have assisted the defendants’ case in that respect.

The plaintiff submits that Mr Ronald (Ron) Connor, called by the plaintiff to give evidence, was the only witness from the defendants to give evidence about the relevant state of knowledge at the relevant time. Mr Connor was an ex-employee of the first defendant and he expressed a view that was inconsistent with the opinion of Dr Ian Wilson, geologist (called by the defendants).⁷ Further, the plaintiff contends that:
(a)no witness was called by the defendants to suggest that the view of Mr Connor was wrong or not held by others at the defendants; and
(b)no witness was called by the defendants to confirm that the opinion and thesis of Dr Wilson was believed to be accurate.

The plaintiff also points to the failure of the defendants to call a person such as Mr Jim Fewings, who was a more senior manager of the first defendant at the relevant time, as supporting the making of a Jones v Dunkel inference.

(2000) 199 CLR 620.
Payne v Parker [1976] 1 NSWLR 191, 201 per Glass JA.
Dr Wilson’s evidence is addressed at Part 5.1 of these reasons.

In response, the defendants submit that no such inference is available or should be drawn.

First, the defendants point to the plaintiff’s pleaded facts relevant to knowledge of a risk of injury at [5]-[13] of the 4FASOC and acknowledge that many of these facts were admitted.

The document authored by Mr Connor entitled “Discussion paper – MIM and Community Lead Exposure” dated 11 June 1996 (Connor Discussion Paper),⁸ which is important to the plaintiff’s submission on knowledge, is not pleaded in the 4FASOC. In fact, it was only during the trial that the plaintiff notified that Mr Connor would be called or provided any information about the scope of his evidence.

Secondly, Mr Connor was called by the plaintiff and did give evidence. There is no dispute that his knowledge may be treated as knowledge of the first defendant. That evidence included what Mr Connor was seeking to do in the Connor Discussion Paper, his views and what he meant by what he wrote.

In respect of the plaintiff’s submission that Mr Fewings should have been called, the defendants note that Mr Fewings is no longer employed by the first defendant. It is also acknowledged that it is uncontroversial that the Connor Discussion Paper went to Mr Fewings. The defendants contend that the plaintiff does not point to why it was reasonable to expect Mr Fewings or other unidentified witnesses to be called and what they might have added that would be material to the evidence. There is no explanation for either of these issues.

Thirdly, the relevant issue is the first defendant’s knowledge as at 2007. The defendants contend that witnesses were called relevant to the first defendant’s knowledge at that time. Further, they point to the “abundance of documentary evidence”, including data for the ISA Caused Emissions.⁹
Further, the defendants contend that the first defendant has consistently referred to natural mineralisation being a substantial source of lead in Mount Isa, which is consistent with Dr Wilson’s evidence. Whilst the Connor Discussion Paper refers to natural mineralisation, he gave evidence that he did not know the relevant extent of contributions. At the relevant time, Mr Connor was a senior industrial and occupational hygienist. It is contended that Mr Connor’s statement is not inconsistent with the first defendant holding a view in 2007 that was consistent with the evidence of Dr Wilson.

The defendants are also critical of the plaintiff’s submissions in respect of the Connor Discussion Paper. The defendants contend that a single paragraph from the Connor Discussion Paper is taken out of the overall context, the plaintiff ignores Mr Connor’s oral evidence about it and also disregards other evidence on the topic.

For the purposes of considering whether a Jones v Dunkel inference is available or should be drawn in respect of the absence of evidence from Mr Fewings and other unidentified witnesses, the defendants contend that the plaintiff has not established

MIM.116.003.0223.
DCS in reply at [11].

that it is appropriate to draw an inference in the circumstances or that an inference would be available.

I am not satisfied that the plaintiff has established that it is appropriate to draw an inference or that an inference would be available as contended. In respect of the unidentified witnesses, the first condition identified in the authorities is not established. In respect of Mr Fewings, the second and third conditions have not been satisfied.

In relation to the Connor Discussion Paper and Mr Connor’s evidence, I separately deal with the more substantive issues in respect of Mr Connor’s evidence later in these reasons.

Plaintiff’s failure to call Michael Sanders

The defendants submit that the plaintiff’s failure to call Mr Michael Sanders, the plaintiff’s father, gives rise to an inference that his evidence would not have assisted the plaintiff. Further, it is submitted that this enables the Court to draw inferences with greater confidence in respect of Mr Sanders based on other evidence.

Mr Sanders was involved to some extent in the events which are relevant to the issues in respect of the plaintiff, including that:
(a)he lived in Mount Isa from June 2006 and lived with and parented the plaintiff for the duration of her time in Mount Isa;
(b)on Ms Seeto’s evidence, he was the person who regularly read the local newspaper. He brought newspaper articles or advertisements to her attention regarding blood lead testing and wanted the testing to occur at that time; and
(c)he was the person who had initial dealings with the plaintiff’s lawyers about pursuing a claim on behalf of the plaintiff.

It is in these circumstances that the defendants submit that Mr Sanders was a witness who would be expected to be called by the plaintiff and a person who would be expected to give relevant evidence in the case.

The only evidence in respect of Mr Sanders not being called is as a result of questions asked in re-examination of Ms Seeto. Ms Seeto’s evidence included that she was still in contact with Mr Sanders,¹⁰ she had asked her son Rhys to contact Mr Sanders,¹¹ and Mr Sanders had been in Brisbane recently but had returned to Norfolk Island. Ms Seeto gave evidence that Mr Sanders had a telephone.¹²
Further, Ms Seeto gave evidence that she had recently asked Mr Sanders to contact the plaintiff’s solicitors and that to her knowledge he had not done so.¹³ The defendants point out that this request was only two or three weeks before the commencement of the trial.

T2-82/22-42.
T2-83/30-32.
T2-83/42.
T2-82/30.

In these circumstances, the defendants submit there is no adequate explanation for why Mr Sanders was not called to give evidence for the plaintiff. This is particularly in the circumstances where the proceedings had been on foot for many years and were set down for trial since 2021.

The defendants also point to the lack of evidence as to whether the plaintiff’s lawyers were in contact with Mr Sanders at an earlier time and obtained a statement from him, whether he had actually been asked to give evidence in the case and whether he had refused to do so. In the circumstances where there is a complete lack of evidence in respect of Mr Sanders, the defendants contend that the inference is available and should be drawn.

In response, the plaintiff submits that the evidence of Ms Seeto explains the circumstances in which Mr Sanders had been asked to assist in the conduct of the case. It is submitted that he did not provide that assistance. Relevantly, and to that extent, Mr Sanders’ absence was explained.

Mr Sanders, as the plaintiff’s father, who was in Mount Isa for a period prior to the plaintiff moving there permanently and was also there when the plaintiff was residing in Mount Isa, would clearly be expected to be called by the plaintiff rather than the defendants. He is also a person who would be expected to give relevant evidence in the case. This is particularly so in circumstances where Mr Sanders was the person who raised getting the plaintiff tested for blood lead levels and where this was contentious between Ms Seeto and Mr Sanders on the evidence at trial.

The explanation given for Mr Sanders not being called is partial, at best. There is a failure to provide any explanation of attempts made by the plaintiff’s lawyers, or Ms Seeto when she was the litigation guardian,¹⁴ to explain to Mr Sanders the importance and relevance of his evidence, and any attempts made to get him to cooperate to give a statement. There is no evidence as to whether he has provided a statement at any stage to the plaintiff’s lawyers, and there is a failure to provide any detail of attempts to contact him or otherwise to provide an explanation of why Mr Sanders was not called to give evidence.

In these circumstances, the plaintiff’s failure to call Mr Sanders does give rise to an inference that his evidence would not have assisted the plaintiff. Further, in these circumstances the Court may be able to draw inferences concerning Mr Sanders, based on other evidence, with greater confidence.

Actual inferences to be drawn will be dealt with in the consideration of the findings of fact in respect of the plaintiff in Part 4.4 of these reasons.

4. History and key factual findings

General background

The defendants provide a general overview of background facts which is of some assistance in understanding the context of the claim and the pleaded facts. The

Ms Seeto ceased being litigation guardian on or about 5 May 2022 and the plaintiff’s grandfather was appointed litigation guardian.

plaintiff acknowledges that this background is not controversial or in dispute and is based on the established evidence.

Following is a summary of the defendants’ overview of the general background facts.¹⁵
As early as 1920, some mining activities in the area were undertaken by others¹⁶ and the first defendant started mining around Mount Isa in April 1924.¹⁷
In 1929, the first processing plant was built. In May 1931, silver-lead-zinc ore mining and smelting commenced.¹⁸ In 1943, copper production began and in 1953 a copper smelter was commissioned.¹⁹ In 1968, the City of Mount Isa was proclaimed.²⁰
The first defendant’s mining operations have included at various times underground mines, open cut mining pits, concentrators, smelters, two power stations, various tailings dams and two water supply dams.²¹
In respect of the third defendant:
(a)in 1970, the third defendant was incorporated and at that time was called MIM Holdings Limited;
(b)from that time to the present the third defendant has held all the shares in the first defendant;²² and
(c)the third defendant was listed on the Australian Stock Exchange until 2003.

The first defendant implemented an air quality control system in the early 1970s, referred to as the “Intermittent Control System”, the “Air Quality Control system” and the “Air Quality Closed Loop Control System”.²³ For ease of reference, these reasons adopt the abbreviation “AQC System” to refer to this air quality control system.

Further, the first defendant commissioned a 270-metre lead smelter stack and an associated baghouse system in 1981.²⁴
Various tenures over land were held by the first defendant up until 1985. In February 1985, the first defendant’s tenure was modified as follows:
(a)in February 1985, the first defendant and the State of Queensland entered into a contractual agreement (ISA-State Agreement) by which the first defendant was granted Mining Lease number 8058 (ML8058).²⁵ ML8058 was for an

DCS at [16]-[29].
DME.001.017.0309 at pdf page 10.
DME.001.017.0309 at pdf page 10.
DME.001.017.0309 at pdf page 10.
DME.001.022.0001 at pdf page 217.
MIM.037.003.0041 at pdf page 15.
DME.001.022.0001 at pdf page 217.
AAR.006.001.0003.
DME.001.017.0309 at pdf page 122; T18-6/30-31.
DME.001.017.0309 at pdf page 122.
The form of the mining lease appears at EPA.001.026.0189 at pages 29-31.

initial term of 50 years and was in substitution for earlier tenures which were then extinguished;²⁶ and
(b)the ISA-State Agreement was ratified and given the force of law by the Mount Isa Mines Limited Agreement Act 1985 (Qld) (MIMLA Act).²⁷

Clause 3 of the ISA-State Agreement expressly set out the purposes for which ML8058 could be used. This included “mining for … lead”, “treatment of the ore or any product of the ore” of mine minerals, and “processing, manufacturing, stockpiling, storing, transporting or disposing of any product of such mining or treatment …”.²⁸
Further, under clause 9 of the ISA-State Agreement, the first defendant was required to submit a mining plan from time to time, which upon approval would form part of the conditions attached to ML8058. For the mining plan to be approved, the Minister was required to be satisfied that it had adequately provided “for the control of the impact on the environment of the operations to be carried out on the area of the Mining Lease …”.²⁹ It also provided that once approved, the mining plan “shall be considered to be part of the conditions of the mining lease”.

Schedule F of ISA-State Agreement also set out the conditions that ML8058 was subject to. The conditions, in 1985, required the first defendant to:
(a)monitor dust and noxious gases above and around the ML8058;
(b)if so directed by the Minister, commence a program to monitor air quality; and
(c)ensure that the amount of dust and gases generated on the ML8058 and affecting adjacent lands outside the boundaries of the ML8058 shall be at a level acceptable to the Minister.³⁰
The ISA-State Agreement also imposed obligations on the first defendant, including pursuant to clause 12 that the first defendant was obliged to continuously and bona fide carry out, on or in relation to ML8058, namely:
(a)exploration, mine planning, development and supply and maintenance of equipment; and/or
(b)mining and winning and/or treatment of silver, lead, zinc, copper, silica, clay or other designated material,
to a specified level.

That specified level was stated as a scale: that is, at least ($50,000,000 x lowest weekly wage among ISA employees)/250 was expended on such activities.³¹
As a result of the formula, the level of operations required was calculated by reference to the lowest weekly wage. The defendant provided the example that assuming the

The defendants identify three tenures that did continue but these are of no relevance to the current case.
The MIMLA Act as enacted appears at EPA.001.026.0189.
EPA.001.026.0189 at numbered pages 6-7.
MIM.500.004.0955 at pdf page 41.
EPA.001.026.0189 at page 25.
EPA.001.026.0189 at page 12.

lowest weekly wage of $250 per week in 1990, the first defendant was required to carry out operations that year so as to expend at least $50,000,000.

The relevant effect of these provisions was that from 1985 onwards the first defendant was:
(a)authorised to carry out activities for the purposes of which ML8058 was granted;
(b)obliged to carry out operations to make a substantial expenditure each year; and
(c)obliged to carry out its operations in accordance with the terms of mine plans approved from time to time and directions from the Minister from time to time, and the mine plans were to deal with controlling impacts of operations on the environment, amongst other things.

ML8058 is 52 kilometres in length from north to south and has an area of about 320 kilometres.³² Further, most mining and smelting activities are carried out either in the central processing area,³³ or at the Hilton mine site, approximately 20 kilometres north of the City of Mount Isa.³⁴
In evidence, there are also several maps which show the location of the City of Mount Isa, the mine and various other relevant features. These maps have assisted in understanding the evidence given by the witnesses at trial and also some of the evidence contained in the documents. These are:
(a)Maps showing the mine and City of Mount Isa, including the location of air quality monitors: MIM.516.001.0001, MIM.116.003.0239 at pdf page 9, MIM.107.003.0098 at pdf page 26 and MIM.512.001.0002;
(b)Maps showing the Central Business District (CBD):
(i)AAR.013.001.0003, being the CBD and ML8058;
(ii)AAR.013.001.0002, being the CBD only; and
(iii)AAR.013.001.0001, being the CBD only with satellite photo.
(c)a map showing the location of the lead smelter and associated infrastructure as at 1999: MIM.025.001.6251 at pdf page 114;
(d)a map showing the location of the copper smelter and associated infrastructure as at 1999: MIM.025.001.6251 at pdf page 101;
(e)a map showing parts of ML8058: DME.001.022.0001 at pdf page 221; and
(f)a map showing the layout of the mine: DME.001.022.0001 at pdf page 222.

I make findings of fact in accordance with [93] to [107] above.

DME.001.022.0001 at pdf page 217.
DME.001.022.0001 at pdf page 217. See also the map at DME.001.022.0001 at pdf page 222.
DME.001.022.0001 at pdf page 217 and the map at pdf page 218.

Emissions and the relevant periods

The plaintiff pleads in [5.2] of the 4FASOC:
“During 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’).”

In response, the defendants at [5(a)] of the Further Amended Defence state in respect of [5.2] of the 4FASOC:
“[A]dmit that at all material times during the period 1 January 1990 to January 2008 [the first defendant], during the process of its mining and smelting operations, caused emissions containing lead to be released from the Mining Lease into the atmosphere (ISA Caused Emissions).”

The issue of the emissions was central to the course of the trial, the written closing submissions, and oral closing submissions. At times the parties may not properly engage, as there is a difference in the terminology used as to the scope of the emissions pleaded by the plaintiff and what is admitted by the defendants.

For the purposes of [5] of the 4FASOC, the material time is the period 1 January 1990 until January 2008. Given the pleaded period and the traverse of this issue, the historical position from 1990 onwards is relevant to the plaintiff’s claim.

Further, the plaintiff points to:
(a)Paragraph [5.2] of the 4FASOC and the particulars contained in paragraph (iii) in which state:
“The Emissions were atmospherically transported and settled on buildings, roads and soil in the Town of Mount Isa.”;
(b)the defendants’ allegation that natural mineralisation had also been, both prior to and after 1990, transported from ML8058 and areas outside the ML8058 to the town of Mount Isa. The defendants allege that the lead in that material was also capable of ingestion, absorption and inhalation by persons who are living within the town of Mount Isa; and
(c)Paragraph [6(a)] of the 4FASOC which provides that between April 2007 and January 2008:
“The Emissions were a source of lead which was capable of Absorption by persons living within the Town of Mount Isa (including the Plaintiff).”³⁵
The defendants respond to this allegation in [7(a)] of the Further Amended Defence:
“Admit that between April 2007 and January 2008, ISA Caused Emissions were a source of lead capable of absorption by persons living within the town of Mt (sic) Isa, including the plaintiff.”

In the PCS reference is made to the “ISA Caused Emissions” whereas [6(a)] only deals with “Emissions”. Care needs to be taken in respect of the potential differences between these two terms.

Further, the defendants plead in [7(b)] that the ISA Caused Emissions were well within prescribed limits and were lawful; the amount of lead in the ISA Caused Emissions capable of inhalation by persons living within the town of Mount Isa was negligible; the amount of lead contained in surface soils capable of ingestion by persons living within the town of Mount Isa was negligible; and there were other sources of lead capable of absorption by persons living within the town of Mount Isa.

The specifically identified “other sources” include lead from Urquhart Shale, lead from the Cromwell sequence located to the east of the town which deposited soil across Mount Isa through catchment drainage flows, natural mineralisation and other sources.³⁶
The plaintiff states in the PCS as follows:
“187. That the defendant was emitting lead by atmospheric transportation into the Town of Mount Isa that was capable of ingestion or absorption by the plaintiff (and others) is not an issue that is in dispute in the trial.
188.In issue is the allegation by the defendant that the amount of lead capable of absorption from the ISA Caused Emissions by the plaintiff (and others) was negligible.”

The plaintiff characterises the defendants’ position as an admission. It does not address the difference in scope between [5.2] of the 4FASOC and [5] of the Further Amended Defence.

These reasons use where relevant the term “ISA Caused Emissions” as admitted by the defendants in [5] of the Further Amended Defence. This is in contrast to a general reference to emissions, including from all sources and/or historical emissions prior to 1990.

4.1 1990 – 1999

In respect of the period of 1990 to 1999, whilst the focus of the plaintiff’s pleaded claim is on the events in 2007, the activities in Mount Isa and at the mine between 1990 and 1999 are relevant to several of the matters in the pleadings.

At [31] to [34] of the DCS the defendants:
(a)highlight that it is the first defendant’s emissions of lead into the atmosphere since 1 January 1990 which are alleged to have created the relevant risk of injury as set out in [5] and [6] of the 4FASOC and which are said to have caused or materially contributed to the plaintiff’s injury;³⁷
(b)contend that the level of the first defendant’s lead emissions and its compliance with regulations relevant to these emissions between 1990 and 1999 are also relevant.³⁸ That is, the emissions are to be considered in light of the defendants’ contentions as to the lawfulness of the emissions as pleaded in the defence;³⁹

Further Amended Defence at [7(b)(iv)].
DCS at [31].
DCS at [32].
See Further Amended Defence at [7(b)(i)], [24(b)], [32(e)], [38]-[52].

(c)identify that a key aspect of the plaintiff’s claim is that the first defendant’s alleged breach of the standard of care in 2007 was that it did not ensure that the activities of the CEHC were maintained.⁴⁰ The CEHC operated in Mount Isa between 1994 and 1999 and therefore it is necessary to consider the activities of the CEHC in that period, particularly in relation to its formation and disbandment, and to make necessary findings; and
(d)acknowledge that matters known by the first defendant in the 1990s are relevant to assessing the knowledge it is alleged to have had in 2007, particularly for the purposes of [20] of the 4FASOC.⁴¹

Three main witnesses gave evidence in respect of this period: Mr Prickett, Dr Hayllar and Mr Connor.

The defendants submit that Mr Prickett presented as an honest and forthright witness and recalled a variety of matters from the early 1990s in respect of his role of Chief Environmental Health Officer at the Mount Isa City Council. Mr Prickett left Mount Isa at the end of 1995. The defendants point to various aspects of Mr Prickett’s evidence where he had no recollection of specific meetings, events and people identified in contemporaneous documents.⁴² In these circumstances, it is submitted that Mr Prickett’s evidence is helpful to provide context but it is not appropriate to rely on his evidence where it is inconsistent with or departs from contemporaneous records or where it was more a matter of impression than recollection.

The defendants submit that Dr Hayllar was also an honest and forthright witness. At various points in his evidence, Dr Hayllar conceded that there were matters about which he had no real recollection.⁴³ The defendants submit that a similar approach should be taken, that is that Dr Hayllar’s evidence provides context around contemporaneous documentary evidence but it would not be appropriate to rely on his evidence where it is inconsistent with or departs from contemporaneous records or where it is more of a matter of impression than recollection.

In respect of Mr Connor, the defendants acknowledge that he gave his evidence truthfully and without any indication of hostility to the plaintiff or loyalty to the defendants. His evidence should generally be accepted.

In respect of the four factors identified in the DCS at [31] to [34] and set out at [122] above, the plaintiff agrees:
(a)that these are significant to the plaintiff’s pleaded case;
(b)with the contention that the matters known by the first defendant in the 1990s are relevant to assessing the knowledge which it is alleged to have had in 2007 consistent with the DCS at [34]; and
(c)that Mr Prickett, Dr Hayllar and Mr Connor were witnesses that gave their evidence in an honest and forthright manner.

DCS at [33].
DCS at [34].
See eg T3-13/25-26; T3-15/36-37; T3-18/26-31; T3-19/27-31; T3-19/41-47; T3-21/7-10; T3-22/28-
31; T3-31/24-25; T3-31/42-47; T3-32/5-9; T3-36/7-15; T3-38/21.
See eg T4-31/20-21; T4-35/22-25; T4-37/19-22; T4-37/31-35; T4-42/10-15; T4-43/39-40; T4-44/4-
12; T4-45/35-36; T4-50/36-37.

However, in respect of the defendants’ submission on Mr Prickett’s evidence, the plaintiff submits that this evidence should be accepted in full as he was an impressive witness who exhibited an interest in the wellbeing of the vulnerable children in Mount Isa. This is subject to further consideration at Part 4.1.5 below.

In respect of the matters where Dr Hayllar indicated he had no real recollection, I do not accept his evidence as probative where it is inconsistent with or departs from the contemporaneous records or where it is more of a matter of impression than recollection.

In respect of Mr Prickett and Mr Connor, their evidence is considered at [171] to
[196] and [336] to [341], and [342] to [389], respectively, below.

4.1.1 Mining activities and statutory framework including compliance with lead emissions requirements

The plaintiff accepts:⁴⁴
(a)that between 1990 and 2006, the first defendant’s operations were governed by the terms of the MIMLA Act⁴⁵ as amended in 1997⁴⁶ and by the terms of licences given under the Clean Air Act 1963 (Qld) and other legislation;
(b)that mine plans submitted by the first defendant over that period of time record “a range of measures in relation to dust quality, including air quality monitor and control, dust suppression by wetting of disturbed areas and containment of operations during unfavourable wind conditions”;⁴⁷ and
(c)that during the 1990s, the first defendant introduced a “greenbelt” of trees which were located between the lead smelter and the township to reduce the transport of dust.

The defendants review the evidence in respect of these issues in significantly more detail, and also break it into two periods, namely:
(a)1990 to 1996 regarding operation of the mine prior to the grant of the environmental authority (ISA EA);⁴⁸ and
(b)1996 to 1999 regarding the operation of the mine after the grant of the ISA EA.

The defendants submit that by 1990, the mining activities had been ongoing in the Mount Isa area for about 60 years and had transitioned to becoming regulated under the ISA-State Agreement. Whilst there were no regulatory limits imposed at that time in respect of lead in the air, the first defendant monitored, sought to minimise and reported on emissions, including lead emissions in the period between 1990 and 1996.⁴⁹

PCS at [189]-[190].
EPA.001.026.0189.
AAR.006.001.0346.
DME.001.017.0309 at page 33.
See MIM.025.001.7046.
1996 being when the ISA EA commenced.

In support of this, the defendants refer to and rely on the November 1991-November 1996 Mine Plan prepared by the first defendant in 1991 summarising the steps that were undertaken to monitor, minimise and report on emissions.⁵⁰
Further, reliance is placed on the updates to the November 1991-November 1996 Mine Plan in September 1993⁵¹ and in July 1994.⁵²
The defendants identify some specific measures during this period.

First, the first defendant had installed PM-10 high volume air samplers (PM-10 Monitors) by 1990. The PM-10 Monitors measured the ambient air quality in Mount Isa including lead levels and were installed at five sites across the city.

The PM-10 Monitor locations are identified on one of the maps in evidence⁵³ and are labelled “HVAS”. The locations are generally referred to as “BSD”, “RSL”, “Racecourse”, “Miles St” and “Kruttschnitt Oval” (or the shorthand reference of “K Oval”).

The defendants rely on the results of the monitoring by way of the PM-10 Monitors which were reported to the Department of Environment annually⁵⁴ and which are in evidence.

Further, Annexure B to the DCS is a summary of the results of the lead levels recorded by the PM-10 Monitors from 1990. Annexure B was prepared using the data in primary documents in evidence, such as the first defendant’s 1990- 1991 report to the Department of Environment.⁵⁵
In respect of the overall summary contained in Annexure B, the defendants submit that between 1990 and 1996, despite there being no specific regulatory limit at the time, the 90-day rolling mean lead levels at air monitoring sites around Mount Isa did not exceed the subsequently imposed limit of 1.5 μg/m³.⁵⁶
Secondly, the first defendant continued to operate the AQC System. Mr Turley in his evidence provided an explanation of the AQC System.⁵⁷ In summary, the AQC System involved real-time monitoring of sulphur dioxide levels in the Mount Isa town area. This was in conjunction with monitoring of meteorological conditions and included the ability for employees responsible for air quality control to require smelter operations to be curtailed or stopped completely if unacceptable levels of sulphur dioxide were impacting, or were predicted to impact, the Mount Isa town area.⁵⁸

DME.001.017.0309 at pdf pages 84-141.
DME.001.017.0309 at pdf pages 41-83.
DME.001.017.0309 at pdf pages 1-40.
MIM.516.001.0001.
DME.001.017.0309 at pdf pages 122-123 [3.6.3]. See also EPA.001.028.0184 at pdf page 11 in respect of the RSL monitor being commissioned in July 1990 as the last monitor to be commissioned. At the time, the department was called the Division of Environment.
EPA.001.026.0461.
EPA.001.028.0184 at page 11; EPA.001.026.0461 at page 15; EPA.001.026.0395 at page 14; EPA.001.028.0275 at pages 12-13; EPA.001.026.0283 at page 12.
T18-6/30 to T18-9/31.
DME.001.017.0309 at pdf page 122. See also evidence of Mr Turley at T18-6/43-46; T18-7/21-23.

A key aspect of the system is that it is both predictive and reactive. Predictive control decisions were made based on weather forecasts received from the Bureau of Meteorology and also local measurements.⁵⁹ Reactive controls were implemented based on readings from real time wind and sulphur dioxide monitors.⁶⁰
Whilst the primary focus of the AQC System was sulphur dioxide, the system also operated to curtail smelter operations in unfavourable meteorological conditions. The practical effect of curtailment of smelter operations in unfavourable meteorological conditions resulted in lead emissions from the smelters being minimised. That is, as both sulphur dioxide and lead were emitted by the smelters, if there was a reduction in the emissions by the smelters when there were particular weather conditions, the system also minimised lead emissions from the smelters reaching Mount Isa.

The Mount Isa Mines Limited Mining Plan 1999-2004 contains a summary of the AQC System shutdowns during the 1990s of the copper smelter and the lead smelter as follows: ⁶¹

Financial year

Copper Smelter

Lead Smelter

Shutdown hours

% of year

Shutdown hours

% of year

1991/92

1058

12.1

317

3.63

1992/93

865

9.91

318

3.64

1993/94

700

8.02

250

2.87

1994/95

797

9.13

262

3.00

1995/96

994

11.4

424

4.86

1996/97

940

10.7

330

3.77

1997/98

960

10.9

298

3.4

Mr Turley also gave evidence that the AQC System informed wider operational decisions.⁶²
This included “green days” to be scheduled when the AQC System predicted there would be minimal westerly winds allowing for dust generating activities to be maximised.⁶³ The AQC System also informed decisions in relation to operations where there were westerly winds and curtailment of loading activities.⁶⁴
Another aspect of the AQC System was dust monitoring. This was commenced in 1972 and involved 30 deposition gauges installed around Mount Isa.⁶⁵

MIM.025.001.6251 at pdf page 170 [8.2.3].
MIM.025.001.6251 at pdf page 170 [8.2.3].
MIM.025.001.6251 at pdf page 171.
T18-6/36-39.
DME.001.017.0309 at pdf 123.
DME.001.017.0309 at pdf page 33.
DME.001.017.0309 at pdf page 123.

The defendants point to and rely on the average dust measurements from those gauges reported in the first defendant’s November 1991-November 1996 Mine Plan as indicating that in 1999, the total average dust measured by the gauges in Mount Isa was comparable to average measured dust levels in Brisbane.⁶⁶
Thirdly, the defendants also refer to and rely upon various other site measures implemented to minimise dust. These were also incorporated in the mine plans. Mr Turley gave evidence about these measures, including that they had commenced prior to his employment starting.⁶⁷
The relevant dust control measures from the early 1990s included:
(a)the use of water trucks and sprays to wet all frequently used unsealed roads and other disturbed areas;⁶⁸
(b)the use of sweeper trucks continuously cleaning all sealed roads;⁶⁹
(c)timing any blasting to coincide with favourable meteorological conditions;⁷⁰
(d)wheel washes for vehicles in certain areas;⁷¹ and
(e)dust control for tailings dams including wetting the tops of the dams with fresh tailings.⁷²
Fourthly, the defendants refer to and rely upon a range of improvements to infrastructure, technology and areas around the mine site in the early 1990s that are relevant to this period. Relevantly, this included during 1991 and 1992 an upgrade to the lead and copper smelters, the lead sinter plant and the blast furnace.⁷³
During this period, the smelters were upgraded to use what is described as “ISASMELT” technology.⁷⁴ Mr Turley gave evidence that this was a process that was developed by the first defendant which resulted in an efficient smelting process and “capturing off gases”.⁷⁵ (This is subject to a maintenance period in 1994 as recorded in MIM.025.001.6251 at pdf page 116.)

The effect of the upgrades to the sinter plant and blast furnace is recorded in the Mount Isa Mines Technical Report in September 1992 as being that the “lead-in-air” levels in the sinter plant were approximately halved.⁷⁶
Further, from about 1991, the first defendant also commenced work on establishing a “greenbelt”. This “greenbelt” was designed to act as a buffer zone between the central processing area of the mine and the Mount Isa community more generally. Further, in 1992 the first defendant undertook work to recontour land in anticipation

DME.001.017.0309 at pdf page 123.
T18-12/7 to T18-14/30 and particularly T18-26/28-41; T 18-27/11.
DME.001.017.0309 at pdf pages 33, 124.
DME.001.017.0309 at pdf page 124. See also evidence of Mr Turley at T18-13/46.
DME.001.017.0309 at pdf page 124.
DME.001.017.0309 at pdf page 124.
DME.001.017.0309 at pdf page 33.
EPA.001.026.0392; EPA.001.026.0461.
EPA.001.026.0395 at pdf pages 2-3.
T18-6/8-10.
EPA.001.026.0395 at pdf page 3.

of the installation of an irrigation system and tree planting⁷⁷ and these steps continued in 1994.⁷⁸

Mr Turley gave evidence that ultimately the “greenbelt” ran for approximately one and a half kilometres north-south in an area adjacent and immediately to the east of mine operations in the vicinity of the Mount Isa CBD.⁷⁹
In respect of the period from 1996 to 1999, the defendants also point to several features when the operation of the mine was subject to the grant of the ISA EA.

In February 1996 the first defendant received the ISA EA by way of a notice of decision to grant an environmental authority.⁸⁰ The defendants contend that the ISA EA imposed specific limits in relation to lead and in parallel authorised the carrying out of activities and the associated environmental harm and nuisance.⁸¹
The defendants refer to and rely on specific provisions within the ISA EA. These include:
(a)the terms of the authorisation provided:
“This environmental authority authorises the holder to carry out the environmentally relevant activities identified above, to annually produce up to 300,000 tonnes of copper metal or impure copper metal and up to 210,000 tonnes of lead metal or impure lead metal, and to cause, subject to the conditions set out in the Schedule, the associated environmental harm and nuisance, including the release of contaminants into the environment.”;⁸²
(b)conditions (A2) and (A3) provided for the examination by any authorised person and the production between the authorised person or the administering authority of any record required to be kept by condition of the ISA EA; and
(c)further, by condition (A5), the first defendant was to develop an “Integrated Environmental Management System” (IEMS). The IEMS was to formulate and implement an environmental policy, planning, implementation and risk management, measurement and evaluation and review and correction of deficiencies. Further, progress reports were to be provided on a six-monthly basis.

Specifically in respect of air, the defendants refer to and rely on:
(a)condition (B1): “[a]mbient air quality impacts of the activities to which this authority relates shall be managed by the ‘Air Quality Closed Loop Control System’ (AQC system) as defined in Appendix 1”;
(b)condition (B4): “the holder must maintain high volume PM-10 samplers at the locations identified in Appendix 2 and must report annually the mean value of

EPA.001.026.0392.
EPA.001.026.0339.
T17-12/23-42.
MIM.025.001.7046.
MIM.025.001.7046 at pdf page 3.
MIM.025.001.7046 at pdf page 3.

quarterly running average concentrations of arsenic, cadmium, lead and mercury for all samplers”; and
(c)condition (B5): “the holder must not cause the quarterly running average concentration of lead to exceed 1.5 μg/m³ at the PM-10 high volume sampling sites at the locations identified in Appendix 2”.

Relevantly, in May 1997 the ISA-State Agreement and the MIMLA Act were amended (respectively, Amended ISA-State Agreement and the Amended MIMLA Act). The circumstances giving rise to the amendments included an expected reduction in sulphur dioxide emissions as a result of the construction of a proposed WMC acid plant.⁸³
Clauses 1 to 4, 9 and 12 were not affected by these amendments.

Additional clauses were added which are referred to and relied upon by the defendants. These include:
(a)clause 19, which mirrored the IEMS provisions of the ISA EA;⁸⁴
(b)clause 20, which required the first defendant to carry out a “Panel Assessment Study”, being a study into the environmental impacts of sulphur dioxide emissions from the smelter in certain circumstances;⁸⁵
(c)clause 22, which stated:
“(1)Despite any Environmental Legislation or other law to the contrary–
(a)with respect to air emissions, the only standards, parameters, conditions and requirements which apply to and regulate the environmental effects and emissions from or in connection with the Smelters of those set out in Schedule H (the ‘Prescribed Requirements’);
(b)environmental effects and emissions from or in connection with air emissions from the Smelters and their operation that conform with the Prescribed Requirements are lawful; and
(c)the Company shall be taken for all purposes to be the holder of a licence under Chapter 3 Part 4 of the Environmental Protection Act 1994 which is consistent with the provisions and conditions contained in Schedule H.”;⁸⁶ and
(d)schedule H, which provided:
“The Company shall not cause the quarterly running average concentration of lead to exceed 1.5 μg/m³ at the PM-10 high

AAR.006.001.0346 at pdf page 9. See also new ss 2, 2A and 3A.
AAR.006.001.0346 at pdf pages 11-12.
AAR.006.001.0346 at pdf pages 11, 13.
AAR.006.001.0346 at pdf pages 13-14.

volume sampling sites at the locations identified in Part 4 of this Schedule H.”⁸⁷

A summary of the regulatory framework applying to the first defendant by the end of 1999 is contained in s 1.2 of the Mount Isa Mines Limited Mining Plan 1999-2004 which states as follows:

[1724] Annexure C to the DCS in reply is a modified version of Schedule C to the PCS.

[1725]The revised calculations in the defendants’ Annexure C incorporate the following points:
(a)in respect of phase 1, the defendants submit that gratuitous care should be provided in respect of the transition to independent living only. Any support and assistance until the completion of high school should not be covered in any damages award;
(b)in respect of phase 2, the defendants’ position is that the plaintiff’s calculations assume that the plaintiff will be provided with the same amount of care for the duration of the phase. However, Mr Hoey’s evidence was consistent with the care needs reducing over time.¹⁰⁹⁴ Further, a transition to phase 3 implies that by the end of phase 2 the plaintiff would only require the amount of care and

SAN.001.001.2447.
T4-66/36-47.

supervision contemplated in phase 3. Accordingly, the defendants propose a graded approach, with the amount of care to be provided gradually reducing throughout phase 2 as reflected in the defendants’ Annexure C; and
(c)in respect of phase 3, the defendants submit that allowance should be made into the future for the continued improvement of the plaintiff’s condition, although the defendants accept that there is a point beyond which continued improvement is unlikely. The graded approach incorporated into phase 3 reflects that it is reasonable to expect the plaintiff to improve in phase 3 over a period of five years to the point where she only requires four hours of care per day, consistent with the range given by Mr Hoey.¹⁰⁹⁵

[1726]Based on the defendants’ calculations in the defendants’ Annexure C, the present value of care into the future is not more than $2,263,307.48. Further, the defendants contend that a substantial discount needs to be applied to recognise the contribution of the plaintiff’s Iron Deficiency Anaemia to future care needs.

[1727]Further, if the Court finds that negligence by the defendants caused the first injury only, that is lead exposure to September 2007, then making an allowance for the plaintiff’s other injuries, the Court should not award the plaintiff more than
$339,496.12. This represents a reduction of the headline figure of 85 per cent.

[1728]In the PCS in reply, the plaintiff maintains that the present case is distinguishable from Leonardi v Payne & Anor¹⁰⁹⁶ given the needs base assessment undertaken by Mr Hoey. The plaintiff submits that this exceeds the s 59(1)(c) Civil Liability Act threshold.

[1729]Further, the plaintiff submits that the case of Land v Dhalival & Anor¹⁰⁹⁷ is also distinguishable. In that case, Daubney J held that it was not possible on the evidence to discern the extent to which the work undertaken by the plaintiff’s wife was directed to meet the plaintiff’s needs. The plaintiff submits that here, Ms Seeto has articulated the care provided solely to meet the needs of the plaintiff.

[1730]The plaintiff also submits that the case of Sutton v Hunter¹⁰⁹⁸ is distinguishable from the present case. Firstly, it is again submitted that Ms Seeto has articulated the care provided solely to meet the needs of the plaintiff. The plaintiff submits that Ms Seeto’s evidence is both realistic and reliable. Secondly, the plaintiff relies upon the medical evidence as supporting the needs for the care provided. Thirdly, the medical evidence permits the Court to identify the portion that is lead related and the portion that is related to Iron Deficiency Anaemia.

[1731] In these circumstances, the plaintiff submits that the Court should reject the submission by the defendants that any gratuitous care claim should be substantially reduced. In response, the plaintiff submits that:
(a)the absence of a care diary is no basis to substantially reduce the claim for care that is otherwise supported by clear evidence;

SAN.001.001.2447 at pdf page 3 [10].
[2009] QSC 382.
[2012] QSC 360 at [100].
(2021) 97 MVR 451; [2021] QSC 249 at [128]-[140].

(b)Ms Seeto gave evidence as to the plaintiff’s change in behaviours and the consequential shift in her care needs. The date at which symptoms of those behaviours were medically attributed to lead poisoning is no basis to substantially reduce the claim for care;
(c)the fact that the plaintiff required supervision specific to her compensable injury is supported by medical evidence. The plaintiff contends that the evidence here establishes that it was additional care over and above the care needs of the plaintiff’s siblings;
(d)Grace, being a newborn in April 2008, has no bearing on the additional needs of the plaintiff;
(e)there is no evidence that the plaintiff’s care needs markedly increased after her discharge from hospital because of her Iron Deficiency Anaemia. The fact that services became available to the plaintiff following her Iron Deficiency Anaemia admission is no basis to substantially reduce the claim for care;
(f)Ms Seeto gave clear and reliable evidence about the care provided to the plaintiff and this is supported by the medical evidence, particularly that of Dr Harbord, Ms Anderson and Mr Hoey; and
(g)the assertion that the plaintiff may reach a stage where she requires minimal care is unsupported by any medical evidence and is contrary to the evidence of Mr Hoey.

[1732]The plaintiff contends that the Court should reject the defendants’ submission that the plaintiff’s care claim should fail completely due to s 59(2) of the Civil Liability Act. The issue is whether the services are in fact the “same kind” as the care being provided to the plaintiff but for the breach.

[1733]As a general proposition, the plaintiff accepts that services cannot be brought into account unless and until they exceed the care the plaintiff was accustomed to receiving before suffering injury.

[1734]However, it is submitted that s 59(2) of the Civil Liability Act operates to prevent a claim for care, for example, where a plaintiff had the provision of three meals per day both before and after compensable injury.

[1735]The plaintiff submits that s 59(2) does not squarely deal with the circumstances of children where their care needs reduce over time. Accordingly, it is submitted that the Court is to consider whether the care for a child is of “the same kind” by reference to both the quality of the care and the quantity of the care.

[1736]By way of an example, the plaintiff submits it would be an unrealistic interpretation of s 59(2) to say that because a plaintiff needed her nappy changed when she was a two-year-old she is precluded from claiming the care associated with changing her nappy when she was nine years old.

[1737] In these circumstances, the plaintiff submits that the Court should reject the defendants’ submission in this regard.

[1738] Further, the plaintiff submits that the Court should also reject the defendant’s submission in respect of the absence of a written record of care distinguishing

between the supervision attributed to lead toxicity brain damage and the Iron Deficiency Anaemia. Here, the plaintiff relies upon expert opinion as to the interplay between the two conditions.

[1739]Overall, the plaintiff’s case remains that the cognitive impairment attributable to the lead poisoning is the basis for her claim for care. That is, it is the compensable loss of IQ that prevents her from being able to live an ordinary life, obtaining employment and living alone without the need for extensive assistance and support.

9.4 Special damages

[1740]The plaintiff claims the sum of $653 by way of special damages to be allowed for a Medicare refund.

[1741]The plaintiff also submits that she will be entitled to an award to compensation for future out of pocket expenses as a result of her injuries.

[1742]The plaintiff’s claim includes a claim for three 12-week blocks of occupational therapy per annum for three years at a cost of $97,200.00.

[1743]In response, the defendants contend that there is no evidence to support a Medicare refund of $653. In the DCS, the defendants contend that there is no evidence of past medical expenses and no damages can be awarded in respect of that.

[1744]As to future medical expenses, the defendants submit that an allowance of $2000 per annum for 70 years is reasonable.

[1745]In response, the plaintiff accepts this as a general proposition, being in addition to the claim for occupational therapy for a specific cost associated with attempting to transition the plaintiff to independent living.

9.5 Funds management fees (deferred)

[1746] The plaintiff’s claim includes a claim for the cost of an administrator’s fund management and administration fees on any damages awarded in addition to other heads of damages.

[1747]Dr Harbord has provided an opinion that the plaintiff would have significant difficulty in understanding the nature and effect of decisions about managing a large sum of money and, without significant assistance, would be unable to freely and voluntarily make decisions about the matter.¹⁰⁹⁹
[1748]The plaintiff submits that this head of damage should be delayed until damages have been assessed.

[1749] The defendants agree to the deferral of this issue.

SAN.001.001.1057 at pages 10-11.

Consideration

[1750] There are several issues that need to be considered in respect of damages:

(a)what is the proper characterisation of the plaintiff’s injury for the assignment of an ISV under the Civil Liability Regulation?
(b)what is the proper approach to economic loss in the circumstances?
(c)what amount is recoverable in respect of domestic assistance, both past and future?

[1751]The earlier findings in respect of the plaintiff’s injury and the medical evidence are relevant to the proper characterisation of the plaintiff’s injury and the application of an ISV by reference to Schedules 3 and 4 of the Civil Liability Regulation.

[1752]Schedule 3 sets out matters which a court may or must have regard to in the application of Schedule 4. The aim of the regime as stated in s 1 of Schedule 3 is to have consistency between assessments of general damages awarded by courts for similar injuries, and similar assessments of general damages awarded by courts for different types of injury that have a similar level of adverse impact on an injured person.

[1753]Section 61 of the Civil Liability Act provides that if general damages are to be awarded in relation to an injury after 1 December 2002, the court must assess an ISV. The approach is further set out as follows:
(a)the injured person’s total general damages must be assigned a numerical value (being an ISV) on a scale of 0 to 100;
(b)the scale reflects equal gradations from an injury not severe enough to justify an award of general damages to a case in which an injury is of the gravest conceivable kind;
(c)regard is to be had to the regulations and the ISV given to similar injuries in previous proceedings; and
(d)if the court assesses an ISV to be more or less than an ISV prescribed or attributed to similar injuries, the court must state the factors which justify the ISV.

[1754]Schedule 3 of the Civil Liability Regulation provides how Schedule 4, which outlines the ranges of ISVs, is to be used. This includes:
(a)considering the range of ISVs, including the level of adverse impact of the injury on the injured person;¹¹⁰⁰
(b)where there are multiple injuries, the court must consider the range of ISVs for the dominant injury of the multiple injuries. The court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury than if the dominant injury alone was assessed;¹¹⁰¹ and

Civil Liability Regulation Schedule 3 s 2.
Civil Liability Regulation Schedule 3 s 3.

(c)where there are multiple injuries and the adverse impact is so severe that the maximum dominant ISV is inadequate to reflect the level of impact, the court may assess an ISV higher than the dominant ISV (subject to certain qualifications).¹¹⁰²

[1755]Section 7 of Schedule 3 of the Civil Liability Regulation is particularly relevant to the current considerations. The defendants contend this section applies to the assessment to be undertaken. The plaintiff disagrees.

[1756] Section 7 states:

“Aggravation of pre-existing condition
(1)This section applies if an injured person has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV.
(2)In considering the impact of the aggravation of the pre- existing condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.”

[1757] The court is also to consider other factors particularly relevant to the current case.

[1758]Section 9 of Schedule 3 identifies some examples of other matters the court may take into account. These include:
(a)the injured person’s age and degree of insight; and
(b)the effects of a pre-existing condition of the injured persons.

[1759]The plaintiff’s approach is based on the position outlined in their submissions. As identified earlier in these reasons, this in part is outside the plaintiff’s pleaded case and is also reliant on expert evidence which has not been accepted.

[1760]The plaintiff’s pleaded case, the findings I have made and the expert evidence which has been accepted, are consistent with:
(a)the plaintiff’s Iron Deficiency Anaemia being a pre-existing condition which caused cognitive injury; and
(b)the injury as a result of exposure to lead being an aggravation of that pre- existing condition.

[1761]Accordingly, s 7 of Schedule 3 of the Civil Liability Regulation applies. Section 7 mandates that the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.

[1762]The relevant assessment exercise then requires consideration of the various ranges of ISV set out in Schedule 4.

Civil Liability Regulation Schedule 3 s 4.

[1763]	The defendants contend that on this approach, the appropriate ISV is item 7 (moderate brain injury). The range of ISVs is 21 to 55 but the item provides further assistance on relevant considerations.
[1764]	Item 7 provides:

“the injured person will be seriously disabled, but the degree of the injured person’s dependence on others, although still present, is lower than for an item 6 injury”.

[1765] Item 6 states:

“An ISV at or near the top of the range will be appropriate only if the injured person substantially depends on others and needs substantial professional and other case”.

[1766] In contrast, item 7 at the higher end of the ISV range states:

“An ISV of 41 to 55 will be appropriate if there is no capacity for employment, and/or more of the following—
·moderate to severe cognitive impairment
·marked personality change
·dramatic effect on speech, sight or other senses
·epilepsy or a high risk of epilepsy.”

[1767]The defendants contend that this assessment is appropriate but then go on to further discount that ISV range to take account of:
(a)The plaintiff’s capacity for employment; and
(b)The fact that the plaintiff would have had at least a mild cognitive impairment as a result of her Iron Deficiency Anaemia.

[1768]Consequently, the defendants contend for the lower ISV range of 30-40 which item 7 describes as follows:
“An ISV of 26-40 will be appropriate if there is an increased risk of epilepsy and either or both—
·A moderate cognitive impairment
·Loss of, or greatly reduced capacity for, employment.”

[1769]I do not entirely accept the logic of the defendants’ submission in this respect. In applying s 7 of Schedule 3 the court is assessing the extent to which the lead exposure made the plaintiff’s impairment from Iron Deficiency Anaemia worse. There is no need to further discount the ISV range to take into account the pre-existing condition. That would appear to be a “double-discount”, as the full impairment is not assessed under this approach.

[1770]The plaintiff’s Iron Deficiency Anaemia resulted in a level of impairment including a reduction in her IQ. The exposure to lead resulted in a further reduction of her IQ

to a level which has resulted in her experiencing further adverse impacts. The difference in IQ has resulted in a lower level of functioning when considering the various factors. In particular, the additional reduction in IQ due to lead exposure has resulted in additional indicators of functional impairment across areas including self- care and personal hygiene, social and recreational activities, travel, social function, concentration, persistence and pace and adaption.

[1771]Considering these indicators, the level of impairment increases from generally mild to moderate impairment, to severe impairment, because of the aggravating injury.

[1772]I also accept the evidence of Mr Hoey that the plaintiff does not have commercial earning capacity. While she may be able ultimately to work in some capacity, the reality is this would require a high level of supervision and is unlikely to be readily available in the job market.

[1773]Accordingly, I consider that the plaintiff’s injury due to lead exposure falls within item 7 (moderate brain injury) and within the ISV range of 41 to 55, being the upper end. Within that range, the various factors present in respect of the plaintiff justify the higher end of that range. It would be appropriate to make some minor discount to reflect that employment in some capacity may be available to the plaintiff. Accordingly, a reduction to an ISV of 53 is reasonable in all of the circumstances.

[1774] An ISV of 53 results in a general damages figure of $102,080.

[1775]The second issue is economic loss. This is a significant component of the plaintiff’s claim, given the age of the plaintiff at the time of the injury and her age at trial.

[1776]Section 55 of the Civil Liability Act applies because the damages for loss of earnings are unable to be precisely calculated by reference to a defined weekly loss.¹¹⁰³ Accordingly, pursuant to the section:
(a)damages may only be awarded if the court is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters;¹¹⁰⁴ and
(b)the court must state the assumptions on which the award is based and the methodology used to arrive at the award.¹¹⁰⁵

[1777]The starting point is the plaintiff’s claim of future loss of income calculated on the average net weekly wage of $1181.50 (which has been agreed between the parties).

[1778] The plaintiff claims:

(a)Forty-nine years (multiplier of 971) from December 2023 until 16 January 2072, being $1,147,236.50; and
(b)a 15 per cent reduction for contingencies. This brings the amount claimed to
$975,157.02; and

Civil Liability Act s 55(1).
Civil Liability Act s 55(2).
Civil Liability Act s 55(3).

(c)superannuation entitlements at 11.90 per cent, being $116,042.97.

[1779]The defendants contend that a 45 per cent reduction should apply, resulting in a total of $586,495.91.

[1780] The defendants’ justification for the greater reduction for contingencies includes:

(a)even without the injury caused by the exposure to lead, the plaintiff was unlikely to be employed in a role which paid average weekly earnings;
(b)the net weekly wage for jobs such as chef, process worker, secretary, clerk, counter attendant and cleaner would be $928 (being 22 percent lower than the average weekly earnings of $1181.50);

(c)therefore, a reduction of 37 percent (being the sum of 15 per cent and 22 per cent) would be rational; and
(d)a further discount for the plaintiff’s Iron Deficiency Anaemia should also be applied.

[1781]I consider that the particular circumstances of this case are distinguishable from Brockhurst v Rawlings.¹¹⁰⁶ Here, the evidence establishes that the occupations which the plaintiff would have had attract remuneration that is less than the average weekly wage.

[1782]Further, the reduction in the plaintiff’s IQ from the Iron Deficiency Anaemia would likely have had the effect of the plaintiff having a low average range IQ. The available occupations would likely have been those identified by Mr Hoey and also similar career choices of her mother and grandmother.

[1783]The additional reduction in the plaintiff’s IQ has resulted in the plaintiff having an IQ in the borderline range for the rest of her life.

[1784]Given the age of the plaintiff, I consider that the appropriate starting point is taking the average weekly earnings and then applying relevant discounts from known contingencies and factors. Here, discounts would apply for:
(a)the differential between the average weekly earnings figure and the likely employment net average wage (here 22 per cent);
(b)the plaintiff’s Iron Deficiency Anaemia; and
(c)general contingencies.

[1785]I do not consider that the mathematical exercise of adding the plaintiff’s suggested contingency discount of 15 per cent to the 22 per cent differential in weekly earnings is the correct approach. It is not clear exactly what the plaintiff’s 15 per cent includes and there may be some duplication in merely adding the two figures.

[1786]There is no precise mathematical approach to this figure. Rather, it involves a level of instinctive synthesis. Otherwise, the risk is that adding discrete components will result in a greater overall reduction, with some duplication.

[2021] QSC 217.

[1787]Overall, allowing some discount for the differential in average weekly wage without injury, the effect of the plaintiff’s impairment as a result of the Iron Deficiency Anaemia and general contingencies, I consider an overall discount of 35 per cent is appropriate.

[1788] Accordingly, the figure for economic loss is calculated by:

(a)average weekly wage of $1181.00 for 49 years (971 multiplier) from December 2023 to 16 January 2072; and

(b) thirty-five per cent contingency, being a total of $745,703.72.
[1789]Further, the superannuation amount is 11.90 per cent of the loss of income figure, being $88,738.74.

[1790] If the amount is to be deferred for a period, then a further reduction may be required.

[1791] The issue of domestic assistance involves two parts:

(a)past care; and
(b)future care.

[1792] The award of these damages is governed by s 59 of the Civil Liability Act.

[1793]In respect of past gratuitous care, there are difficulties with the plaintiff’s claim and the lack of evidence supporting the hours claimed. I accept Ms Seeto’s evidence that she has had to provide care and support to the plaintiff over and above the amount of care needed by her other children at the similar age due to the plaintiff’s impairment.

[1794]However, the amounts claimed seem excessive when considered in the context of the care that would need to be provided at the particular ages in any event. Further, there are no contemporary records to support the claim and there is no evidence that assists with assessing the amount of care resulting from the plaintiff’s Iron Deficiency Anaemia and the exposure to lead.

[1795]Further, s 59(2) of the Civil Liability Act prevents recovery of any services “of the same kind” as were provided before the injury. Many of the services provided by Ms Seeto arguably fall within this description. Again, due to the lack of precision in the evidence provided, it is difficult to identify any amount which would clearly not be caught by this provision and be recoverable.

[1796]The defendants submit that if the court considers it appropriate to make an award in respect of past care, the plaintiff’s claim should be significantly reduced for these reasons, plus the use of 2022 rates in respect of care from 2008. The defendants’ ultimate position is that a reduction of 85 per cent would be appropriate given these difficulties.

[1797]I accept the criticisms and difficulties raised by the defendants in respect of the plaintiff’s claim for past care. While there are no written records evidencing the past care, I do accept Ms Seeto’s oral evidence of the provision of some additional care,

but not the full amounts claimed. It is appropriate to reduce any award in respect of past care to reflect the contingencies, and deficiencies, identified.

[1798]In the circumstances, if the plaintiff is to be awarded damages for past care, an award of 85 per cent of the plaintiffs’ claim is reasonable, being $187,909.20.

[1799]In respect of future gratuitous care and assistance, the phased approach is the most reasonable approach, particularly given that it is likely that the plaintiff’s transition through the phases will be gradual. I also agree with the proposal by the defendants that the phases themselves be stepped, as this is most likely to reflect the plaintiff’s actual progression.

[1800]Given the current age of the plaintiff, the plaintiff’s needs in phase 1 will be less than as claimed.

[1801]The defendants propose no damages for phase 1, based on the plaintiff completing high school in that period and receiving existing levels of support and assistance until then.

[1802]Whilst the application of s 59(2) of the Civil Liability Act appears harsh in respect of non-compensable care “of the same kind” as was previously provided, at least in respect of the assistance of the kind that would be applicable in respect of a child completing school, the section would prevent damages being recovered.

[1803]There is no evidence clearly identifying the care that goes beyond that ordinary level of care, that may be recoverable. In the circumstances, there is no basis to make an award of damages in respect of phase 1.

[1804]It is appropriate to adopt the approach set out in the defendants’ Annexure C to the DCS and the calculations set out therein.

[1805]Annexure C uses the plaintiff’s rates and the phased approach proposed by Mr Hoey and the plaintiff, with additional stepping or smoothing between phases to reflect progress in the transitions.

[1806]This approach is consistent with the requirements of the legislative regime but also reflects the evidence and findings set out in these reasons.

[1807]The defendants further contend that an additional substantial discount needs to be applied to recognise the contribution of the plaintiff’s Iron Deficiency Anaemia to future care needs. The basis for this further discount is not made out.

[1808]I find that the cognitive impairment attributable to the lead poisoning is the basis for the future care claim. The aggravation of the pre-existing condition resulted in the further reduction in the plaintiff’s IQ. It is this further reduction which has resulted in the plaintiff needing assistance in respect of living an ordinary life, obtaining employment and living alone.

[1809]If I am wrong about that conclusion, the further discount should not be less than the substantial discount proposed by the defendants. In the circumstances, a discount of 33 per cent would be reasonable if a further discount is to be applied.

[1810] In respect of special damages:

(a)the amount of $653 claimed regarding a Medicare refund is not supported by evidence, so is not allowed. Therefore, there are no damages for past medical expenses; and
(b)in respect of future medical expenses, the following is claimed and an award of damage as follows is appropriate:
(i)the amount of $97,200.00 being for three by 12-week blocks of occupational therapy per annum for three years. This relates to transitioning the plaintiff to independent living and is reasonable in the circumstances;¹¹⁰⁷ and
(ii)the amount of $2000 per annum for 70 years for future medical expenses. This is accepted by the defendant as reasonable. The total is $140,000.

[1811]The parties should calculate the overall damages recoverable if, contrary to the findings in these reasons, the defendants are liable to the plaintiff for damages.

Next steps

[1812] In the circumstances, the plaintiff’s claim must fail.

[1813]I will hear from the parties as to whether any further findings are required prior to making the final order.

[1814] The parties are directed to provide to my Associate by 4pm on 8 September 2023:

(a)submissions of no more than five pages identifying any further findings required and the basis for the proposed findings; and
(b)an agreed draft order finalising the proceeding.

[1815]Following any further findings and the final order being made, I will hear from the parties as to the appropriate costs order.

Orders

[1816]Accordingly, THE COURT DIRECTS THAT the parties provide to the Associate to Williams J by 4pm on 8 September 2023:
(a)submissions of no more than five pages identifying any further findings required and the basis for the proposed findings; and
(b)an agreed draft order finalising the proceeding.

If this is recovered as part of past or present gratuitous assistance it would not be recoverable again here.

CITATION:	Sanders v Mount Isa Mines Limited & Ors [2023] QSC 188
PARTIES:	BETHANY SANDERS BY HER LITIGATION GUARDIAN JIM SEETO (plaintiff) v MOUNT ISA MINES LIMITED (ACN 009 661 447), XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 REG NUMBER 4345939) AND XSTRATA QUEENSLAND LIMITED (ACN 009 814 019) (MOUNT ISA MINES LIMITED) (XSTRATA PLC) (defendants)
FILENO/S:	BS No 7608 of 2011
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVEREDON:	25 August 2023
DELIVEREDAT:	Brisbane
HEARING DATES:	9 May 2022 to 2 June 2022, 6 June 2022 and 13 July 2022
JUDGE:	Williams J
ORDERS:	THE COURT DIRECTS THAT the parties provide to the Associate to Williams J by 4pm on 8 September 2023: 1. submissions of no more than five pages identifying any further findings required and the basis for the proposed findings; and 2. an agreed draft order finalising the proceedings.
CATCHWORDS:	TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – GENERALLY – where the plaintiff claims damages for personal injuries alleging she suffers brain damage and neurological injury as a result of lead poisoning caused by the defendants’ negligence – where the defendants have undertaken mining activities in Mount Isa since 1924, with the plaintiff’s claim putting in issue the operation of the mine from 1990 to 2008 – where the plaintiff resided within three kilometres of the mining and smelting operations carried out by the defendants in 2007 – where the defendants submit that the lead emissions caused by the mining and smelting operations were within prescribed limits and lawful, and the

Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260 Wyong Shire Council v Shirt (1980) 146 CLR 40 Yamaguchi v Phipps & Anor [2016] QSC 151
COUNSEL:	G R Mullins, C Campbell and M Karaman for the plaintiff D G Clothier KC and S J Webster for the defendants
SOLICITORS:	Slater & Gordon Lawyers for the plaintiff Allens for the defendants

Financial year	Copper Smelter		Lead Smelter
Financial year	Shutdown hours	% of year	Shutdown hours	% of year
1991/92	1058	12.1	317	3.63
1992/93	865	9.91	318	3.64
1993/94	700	8.02	250	2.87
1994/95	797	9.13	262	3.00
1995/96	994	11.4	424	4.86
1996/97	940	10.7	330	3.77
1997/98	960	10.9	298	3.4