UCPR 171: strike out & causation

Body v Mount Isa Mines Limited & Ors [2013] QSC 188

 

JUDGE: Boddice J
ORDER: I shall hear the parties as to the appropriate orders, and as to costs.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the defendants make application to strike out the fifth further amended statement of claim under r 171 Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiff claims injuries from the ingestion of lead – where the defendants contend the pleaded facts are insufficient to give a cause of action – where the plaintiff defines certain terms in the pleading – whether the pleading discloses a cause of action.

 

Applicable legal principles

[17] The power to strike out a pleading on the ground that it fails to disclose a cause of action is to be exercised sparingly, and in only the clearest of cases.[1] In considering applications, it is relevant to have regard to the purpose of a pleading, which is to ensure the parties know the case they have to meet.[2] A plaintiff’s obligation to plead a case properly and sufficiently includes an obligation to plead causation.

[18] The obligation in respect of causation was summarised by Chesterman J (as his Honour then was) in Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd[3]:

“[15] The parties are agreed upon the relevant principles. In any cause of action in respect of which causation is an essential element it is necessary to plead the material facts which are said to give rise to the causal connection. In particular it is necessary to plead the facts which lead to a reasonable inference that the acts complained of (here the relevant non-disclosure) and the alleged later event (here the making of the dragline agreement) stand to each other in the relation of cause and effect. Douglas J put it this way in LBS Holdings Pty Ltd v The Body Corporate for Condor Community Title Scheme 13200 & Ors [2004] QSC 229 (at para [3]):

‘… The principle relied on is that facts must be set out which lead to a reasonable inference that the acts complained of and the loss claimed stand to each other in the relation of cause and effect and that the plaintiff must plead the necessary facts showing that causal link …’

Discussion

[19] An application of the relevant legal principles easily disposes of the first of the defendants’ arguments. Whilst whether a duty of care can be imposed upon a person or entity carrying out its operations in accordance with its statutory obligations, is a question of law, whether the imposition of such a duty is incompatible with that party’s other duties, statutory or otherwise, cannot be determined in isolation. That question must be determined having regard to all of the circumstances, including a consideration of any evidence led in relation to the operation of the applicants’ activities. That being so, it cannot be said that that question must so clearly be determined in the applicants’ favour that the court ought, in the exercise of its discretion, to strike out the pleading for failing to disclose a cause of action.

[20] A similar conclusion is reached when considering the applicants’ second contention. Whether others were susceptible to owing a duty to warn cannot, so clearly result in the conclusion that the applicant could not owe such a duty of care as to warrant the exercise of the court’s discretion to strike out the plaintiff’s pleading.

[21] The applicants’ third contention is in a different category. The plaintiff has chosen, to define certain terms, including “the emissions”, “absorption” and “the risk of injury”, in the pleading,. The use of defined terms means the pleading must be read in a particular way. For example, the allegation that people living in Mount Isa were at risk of absorption of lead from the emissions (paragraph 9.1) contains an allegation that the absorption of lead therein referred to is only that caused by the operation of the lease by the defendant. However, the allegation that absorption of lead could cause personal injury (paragraph 9.2) is not limited to the absorption of lead from the emissions. That allegation is that there was a risk of personal injury from the absorption of lead generally.

[22] This distinction is significant when considering the pleading of causation. The risk of injury, as defined, includes both the risk of the absorption of lead from the emissions, and the absorption of lead generally. It is that combined risk, defined as the “risk of injury”, which is pleaded to be reasonably foreseeable.

[23] Whilst the plaintiff pleads he was vulnerable to the absorption of lead from the emissions (paragraph 26), and that during the period November 2004 to the date of the pleading, he had absorbed into his body lead from the emissions (paragraph 27), the plaintiff pleads that as a consequence of “his absorption of lead” and subsequent blood contamination, he has suffered various impairments as well as brain damage and dysfunction (paragraph 30). By its terms, paragraph 30 is referring to the absorption of lead generally.

[24] Whilst the plaintiff contended paragraph 30 ought properly to be understood as an allegation that his impairments, brain damage and dysfunction were caused by the absorption of lead from the emissions, that is not the allegation in paragraph 30. The distinction drawn in other aspects of the pleading, between the absorption of lead from the emissions and the absorption of lead generally, renders paragraph 30 to be properly read, in its present form, as an allegation that the plaintiff’s injuries were as a consequence of his absorption of lead generally.

[25] Such an allegation is insufficient to establish a cause of action against the defendants, particularly in circumstances where the plaintiff specifically pleads that the emissions were a significant source of lead which was capable of absorption by persons living in Mount Isa. That allegation contains within it an acceptance that there were other significant sources of lead capable of absorption.

[26] That being so, it does not follow, as a matter of law, that the plaintiff’s absorption of lead, alleged in paragraph 30 to be the cause of his injuries, is as a consequence of the absorption of lead from the emissions as opposed to the absorption of lead from another significant source of contamination separate and distinct from any contamination by the absorption of lead from the emissions.

Conclusions

[27] The defendants have established the present pleading fails to plead a causal link between their alleged breach of duty and the plaintiff’s injuries. Whilst the deficiency in the pleading may be corrected by yet a further amendment of the pleading, there is substance in the applicant’s contention that its application should be determined on the present pleading.

[28] The pleading is properly to be struck out as failing to disclose a cause of action against the defendants. However, the plaintiff ought to be given leave to re-plead.

[29] I shall hear the parties as to the appropriate orders, and as to costs.

David Cormack – Brisbane Barrister. 

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