SUPREME COURT OF QUEENSLAND

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1 SUPREME COURT OF QUEENSLAND CITATION: Hare v Mt Isa Mines Ltd & Ors [2009] QCA 91 PARTIES: STELLA YVONNE HARE by her litigation guardian DAPHNE YVONNE HARE (applicant/respondent) v MOUNT ISA MINES LIMITED ACN (first respondent/first applicant/appellant) XSTRATA PLC (INCORPORATED IN ENGLAND AND WALES UNDER THE COMPANIES ACT 1985 WITH REGISTRIES NUMBER ) (second respondent/second applicant/appellant) XSTRATA QUEENSLAND LIMITED ACN (third respondent/third applicant/appellant) FILE NO/S: Appeal No of 2008 DC No 1722 of 2008 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal General Civil Appeal Application for Leave s 118 DCA (Civil) Application for Stay of Execution District Court at Brisbane DELIVERED ON: 17 April 2009 DELIVERED AT: Brisbane HEARING DATE: 13 March 2009 JUDGES: ORDERS: Holmes and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Application for leave to appeal granted; 2. Appeal allowed; 3. Declaration and costs order made at first instance set aside; 4. Application for stay dismissed; 5. Respondent pay appellants costs of the application at first instance and of the application and appeal in this Court. Ex tempore orders of McMurdo P: 6. Vacate order 5; 7. Parties to make written submissions as to costs as per Practice Direction 2 of 2004.

2 2 CATCHWORDS: COUNSEL: SOLICITORS: APPEAL AND NEW TRIAL APPEAL - PRACTICE AND PROCEDURE QUEENSLAND POWERS OF COURT ORDERS SET ASIDE OR VARIED where trial judge made a declaration that respondent s notice of claim under the Personal Injuries Proceedings Act 2002 (Qld) was a complying part 1 notice of claim whether trial judge s reasons adequate whether notice compliant whether declaration wrongly made whether respondent remedied non-compliance whether Court should authorise respondent to proceed with claim despite non-compliance Personal Injuries Proceedings Act 2002 (Qld), s 4, s 9, s 12(2), s 13, s 18, s 22, s 27, s 36, s 59 Personal Injuries Proceedings Regulation 2002 (Qld), s 3(3)(b), s 3(3)(h), s 3(6)(d) Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, cited Drew v Makita (Australia) P/L [2009] QCA 66, cited Flannery v Halifax Estate Agencies [2000] 1 WLR 377; [1999] EWCA Civ 811, cited L F Kelly SC, with B F Charrington, for the applicants/appellants G R Mullins for the respondent Allens Arthur Robinson for the applicants/appellants Slater & Gordon Lawyers for the respondent [1] HOLMES JA: The respondent obtained a declaration at first instance that a notice of claim served on the appellants pursuant to s 9 of the Personal Injuries Proceedings Act 2002 ( PIPA ) was a complying part 1 notice of claim under PIPA. The appellants apply for leave to appeal against the making of that declaration and a stay of its effect. In the course of the applications, the merits of the substantive appeal were also argued and it was agreed that if leave to appeal were granted, the appeal itself should be determined. The notice of claim [2] The respondent (a child of six) wished to bring a personal injuries action against the appellants. Before doing so, s 9 of PIPA required her to give a notice of claim in two parts. Section 18 of PIPA precludes a claimant from proceeding if a complying part 1 notice of claim has not been given, absent court orders or certain specified concessions or non-responses by the recipient of the claim. The term complying part 1 notice of claim is defined in the dictionary to PIPA as meaning part 1 of a notice of a claim complying with section 9... that is given as required under chapter 2, part 1, division 1. [3] The respondent s mother, Ms Hare, gave part 1 of the notice on her behalf, as s 9(4) permits. Section 9(2)(a) requires that the notice of claim: contain a statement of the information required under a regulation.

3 3 The Personal Injuries Proceedings Regulation 2002 ( the Regulation ) is the relevant regulation. Section 3(3) of the Regulation requires, inter alia, these particulars about the incident alleged to have caused the personal injury to which the claim relates : (a) (b)... (h) the date, time and place of the incident; details of how the incident happened; the reasons the claimant attributes responsibility to the person or persons.... Incident is defined in the schedule to PIPA as meaning, where it appears in relation to personal injury, the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury. [4] The approved notice of claim form, however, contains questions which do not always correspond precisely with the way in which the particulars required are specified in the Regulation. Rather than being asked (in the terms of the Regulation) for details of how the incident happened, the claimant is required to give a brief description of the incident. In response to that requirement, at Q 9 on the form, the respondent (through Ms Hare) gave this description: The injured person (Stella) has lived in Mount Isa with her mother since June During this time, she has, without her knowledge or consent, been exposed to and consequently absorbed into her body, dangerous levels of lead, arsenic, cadmium and other toxic elements (the toxins). Exposure to the toxins has occurred at: 1) 27 Boyd Parade, Mount Isa; 2) Mount Isa Central State School, 49 Miles Street, Mount Isa; 3) Minnie Davis Park, Mount Isa from June 2002 to the present. The absorption by Stella of these toxins has had a deleterious effect upon her health generally and in particularly upon her brain and nerve function and development. The date of the incident was given as 2002 to present ; the place where it happened, Mount Isa. [5] The particular required by s 3(3)(h) appears as Q 18 in the notice of claim form: DETAIL THE REASONS WHY THE INJURED PERSON BELIEVES THAT PERSON CAUSED THE INCIDENT. A note immediately under that heading continues: The reasons must particularly identify the step, process or act/s of the person that caused the incident and the link to the named respondent.... The respondent gave these particulars relating to the appellants: First Respondent Mount Isa Mines Limited (MIM) Mt Isa Mines Limited (MIM) has over at least the past 20 years, wilfully and negligently caused the contamination of large parts of Mount Isa with lead and other toxic elements.

4 4 This contamination has been brought about by, inter alia: 1 The discharge of tailings and other contaminated liquid wastes via many drainage channels into the Leichhardt River; 2 The indiscriminate removal of contaminated soil from the river for use as top-dressing; 3 The widespread distribution of lead and other toxic elements contained in dust emanating from the MIM Lease (lease). In addition, particulate fall out from the smelters has added to this burden; 4 The failure by MIM to implement, promulgate and or enforce rules and procedures to prevent lead and other toxic elements leaving the lease on work clothing and boots; 5 Lead and other toxic elements leaving the lease on plant and equipment sent off site for repair; 6 Vehicles leaving the lease without being washed, due to breakdown of washing facilities, inefficient facilities and or failure to promulgate and enforce regulations and procedures to prevent vehicles leaving the lease without contaminated dust being first cleaned off; and 7 Overburden laden with lead and other toxic elements being used to stabilise properties in Mount Isa including through donations of mine site fill material for use in the community.. Fourth Respondent, Xstrata Plc and Fifth Respondent, Xstrata Queensland Limited Xstrata Plc acquired MIM Holdings Limited (MIMHL) in MIMHL was the former holding company of MIM. MIMHL changed its name to Xstrata Queensland Limited. Xstrata Plc is the current holding company ultimate decision maker and authority for MIM. [6] Section 3(4) of the Regulation requires a claimant to give: particulars about the nature and treatment of the injured person s personal injury while s 3(6) requires particulars of a general nature, among which are:... (d) details of any personal injury, illness or disability, in existence or sustained before the incident, that may affect the extent of the disabilities resulting from the personal injury to which the claim relates...

5 5 Ms Hare identified, on the respondent s behalf, the injuries she had suffered in the incident as: Learning difficulties due to poor attention and concentration span, developmental delay, hyperactivity and irritability, loss of appetite, hearing and sight problems. In answer to Q 24 on the claim form, which asked whether the respondent had suffered any injuries, illnesses or disabilities which might affect the extent of the disabilities to which the claim related or the amount of damages, Ms Hare answered in the negative. The respondent s solicitor deposed in an affidavit that Ms Hare had informed him that it had not been suggested to her that her daughter suffered any disability as a consequence of her premature birth, and she did not believe that the respondent s current disabilities were related to the premature birth. The submissions at first instance [7] The appellants argued below (as they argue here) that the assertion, in the answer given to Q 9, that the respondent absorbed toxins at the three identified locations with deleterious effects on her health, was deficient in explaining how the incident happened. It did not mention any of the appellants, or identify any means by which the toxins found their way to the three locations, or any means by which the respondent absorbed the toxins. Secondly, the answer to Q 18, requiring the respondent to give her reasons for believing the appellants caused the incident, failed to identify any connection between the appellants conduct there described and the incident described in the answer to Q 9. It made, for example, no connection between the alleged discharge of waste into the river or removal of soil from the river and the presence of toxins at the three named locations where the respondent s exposure was said to have occurred, or with her absorption of those toxins. [8] At first instance, the appellants relied on an affidavit from Dr McDowell, a developmental paediatrician, who had examined certain of the respondent s medical records which showed that she was born prematurely. He expressed his opinion that the injuries of which she complained (learning difficulties, poor attention and concentration span, developmental delay, hyperactivity, and hearing and sight problems) were recognised consequences of her premature birth and post-natal medical complications. Although those symptoms might not be evident during preschool years, they characteristically became apparent once the child was required to meet the developmental demands of school. He concluded by deposing: [the respondent] is at risk of having suffered from a personal injury, illness, disability or medical condition arising from her circumstances of premature birth which may affect the extent of the disability to which her claim now relates. It followed, the appellants argued, that Q 24 could only correctly be answered in the affirmative. The failure to do so rendered the notice non-compliant. [9] The respondent contended that she had adequately answered the questions asked. She had provided a brief description of the incident and had given reasons for believing that the appellants caused the incident. Those answers might require further particularisation, but the appellants had been given sufficient notice of her

6 6 claim. Dr McDowell s evidence was merely that the respondent was at risk of suffering from a disability, and Ms Hare had believed that the premature birth had no continuing impact on her daughter s development. In any event, further medical records had been provided to the appellants, and the respondent was prepared to provide any further authorities required for the obtaining of medical information. Any deficiency had thus been remedied. The judgment below [10] In his judgment, the learned judge at first instance set out a chronology of events. He went on to outline the respondent s and the appellants submissions and to identify the relevant parts of PIPA. Next, he made these findings: (i) The applicant s Part 1 Notice of Claim served on the respondents on 24 April 2008 is a complying notice pursuant to the provisions of PIPA and the Regulations thereunder as I am satisfied that the information contained therein is sufficient to comply with the requirements of s 3 of the Regulation in that although the Regulation requires a claimant to provide detailed information of a claim as set out therein (which the notice served does), the fundamental purpose of the notice is to provide sufficient information to a respondent about a proposed claim to enable the respondent to identify: the nature of the incident giving rise to the claim; when it happened; where it happened; why the respondent is alleged to be responsible; and the nature of the alleged injury caused. (ii) I find therefore that the notice as served fulfils this fundamental purpose, in respect of what might be described as a unique claim to enable the claim to progress through the various pre-court procedures to follow. That if the notice was deficient as originally served (and I have found to the contrary) causing it to be non-compliant, any perceived deficiency has since been remedied by the applicant, so that it is now in any event, a complying notice of claim. (iii) The deficiencies alleged by the respondents in the notice are not compliance issues but are issues which, though properly and relevantly raised by the respondents for argument and debate, deal with the questions of liability and quantum in relation to a claim. These issues will no doubt require detailed analysis and investigation and will be subject to comprehensive disclosure by all parties in the course of the various pre-court procedures to be completed under PIPA but do not impact upon the efficacy of the Part 1 Notice as served on the respondents. The judgment contained nothing further by way of reasons; the learned judge proceeded immediately to making the declaration that the notice of claim was compliant and a costs order.

7 7 The adequacy of the reasons [11] The appellants argued that the learned judge in making the finding at par (i) had failed to deal with their arguments or to expose his process of reasoning. Similarly, the findings in par (ii) and par (iii) were bare conclusions, unsupported by any evident process of reasoning. Finally, the learned judge had failed to deal with the appellants contentions and the evidence in relation to Q 24. The respondent, on the other hand, argued that the learned judge had properly considered s 9 of PIPA and s 3 of the Regulation, and had decided, as a simple question of fact, that the answers to Q 9 and Q 18 were complying. He had mentioned the respondent s submission that Ms Hare believed the premature birth and complications to have no relevance; from his findings he must have accepted that submission. It was implicit from his reasons that he had rejected the appellants arguments. [12] Muir JA, in Drew v Makita (Australia) Pty Ltd, 1 has recently reviewed the authorities as to the duty of a first instance judge to give adequate reasons for his or her decision, and it is unnecessary for me to undertake a similar exercise. This was not a simple credit case, in which little in the way of reasons was required; it involved competing arguments as to what the requirements imposed by the Regulation were and whether the contents of the notice of claim met those requirements. As the English Court of Appeal observed in Flannery v Halifax Estate Agencies Ltd: 2 where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. [13] Here, the learned judge, as it seems to me, impermissibly re-cast the requirements of s 3(3) and s 3(4)(a) of the Regulation in par (i) of his findings so as to substitute for the requirement of details of how the incident happened, a different requirement, for information about the nature of the incident. The two are not, in my view, interchangeable. In consequence, his Honour did not address the appellants argument that details of how the incident happened were not provided. Nor did he offer any reasons for his finding that the respondent s notice identified why the [appellants were] alleged to be responsible. He simply did not deal with the appellants complaint that the respondent had wrongly answered Q 24 and had not complied with the requirement in s 3(6)(d) of the Regulation. [14] In par (ii), the learned judge made the finding that any deficiency had been remedied without explanation of how, and in what respect, that had occurred. The assertion in par (iii) that the deficiencies alleged by the appellants were not compliance issues but... issues which... deal with the questions of liability and quantum in relation to a claim is hard to understand. The foundation for that statement is not made clear, but it would seem to be a mischaracterisation of the appellants arguments, which squarely addressed the requirements of the Regulation. 1 2 [2009] QCA 66. [2000] 1 WLR 377 at 382.

8 8 [15] The judgment did not meet the third of the requirements for an adequate statement of reasons formulated by Meagher JA in Beale v Government Insurance Office of NSW: 3 a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferrably logical as well. The failure to give adequate reasons means, in this case, that the appellants are left with a justifiable sense of grievance that their arguments have not been considered or addressed; a circumstance which of itself warrants the giving of leave to appeal. [16] It then becomes necessary for this Court to consider what orders should be made; which in turn requires the consideration of whether the notice was compliant; whether any non-compliance has been remedied; and whether, in the event that those questions are answered in the negative, the respondent ought to be authorised to proceed with her claim notwithstanding. The statutory background [17] The appellants and respondent both relied on the statutory purposes of the notice of claim form in making their arguments at first instance, and here, as to the adequacy of the answers given in the respondent s notice of claim. [18] Section 4 of PIPA says that the main purpose of the Act, to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury is to be achieved generally by, inter alia, (a) providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and (b) (c) promoting settlement of claims at an early stage wherever possible; and ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and... (e) minimising the costs of claims;.... [19] The provisions governing claims procedures are set out in Chapter 2, Part 1, Division 1 of PIPA. Section 9(3) requires that part 1 of the notice of claim must be given nine months after the incident or the first appearance of symptoms of the injury; or one month after the day the claimant first instructs a law practice to act on his or her behalf, and the proposed respondent is identified; whichever is the earlier. 3 (1997) 48 NSWLR 430 at

9 9 The respondent argued that it was clear from the imposition of that time limit that an exhaustive investigation into a claim was not expected; instead the purpose of the Act was to ensure that the prospective defendant was advised of the claim as soon as possible, although the information provided was in a preliminary form. The appellants, on the other hand, relied on s 18(1)(c)(ii) of PIPA, which enables a claimant unable to furnish a complying form to seek the court s authorisation to proceed, to argue that the compliance requirement did not produce any unfairness. [20] Section 22(1)(b) of PIPA requires a claimant to give a respondent information reasonably requested about matters such as the incident, the personal injury, and the claimant s medical history. Section 27(1)(a) imposes a duty on the respondent to give a claimant, among other things, copies of: reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates where those copies are in the respondent s possession and are directly relevant to a matter in issue in the claim. The appellants complained that the imprecision and lack of intelligibility of the respondent s answers imposed a burden on it in attempting disclosure under s 27(1)(a). Section 36 requires that the parties attend a compulsory conference, before which copies of all documents required under the Act must be provided to the other party. 4 If no settlement occurs at that conference, the parties must exchange final offers. 5 It was not feasible or fair, the appellants said, that they should have to take part in that process without proper information. [21] It is worth noting here that the delivery of a complying part 1 notice of claim determines the timing for the provision of copies of reports and documents under s 27 and, where there is a single respondent, for the compulsory conference. Those are not the only steps under PIPA for which the complying notice of claim is the starting point. From the delivery of a complying notice run the times for its recipient: to add a contributor ; 6 to give the claimant written notice stating whether liability is admitted or denied, and whether, and to what degree, contributory negligence is asserted; 7 and to respond to or make an offer of settlement. 8 If the compulsory conference is dispensed with, the delivery of the complying part 1 notice of claim determines the time within which proceedings must be started. 9 [22] Section 59 makes the time at which a complying part 1 notice of claim is given even more significant. The claimant may start a proceeding, even though the period of limitation has ended, provided a complying part 1 notice of claim is given before the end of the limitation period; but the proceeding must be started within six months after the complying notice is given, or leave to start the proceeding is granted, or within such longer period as is allowed by the court. Was the notice of claim compliant? [23] The appellants argument that the notice of claim did not give details of how the incident happened must be accepted. The answer at Q 9 explained what the Section 37(1). Section 39. Section 16. Section 20(1)(b). Section 20(1)(c)-(e). Section 42(2).

10 10 incident was: the absorption of toxins at various locations; but it did not explain how that had happened. That was probably the product of the terms of the form itself, which asked for no more than a description. One can, of course, look beyond that answer to the rest of the contents of the form to see if the information is given; s 9(2) merely requires that the notice contain the information required by the Regulation, not that it appear at any particular part of the form. But an examination of the rest of the form does not improve matters. At best, there is an allegation, in the context of explaining the responsibility of another party (the State of Queensland), that Queensland Health was aware of pathways for exposure to toxins: through soil, food, airborne dust and water. That answer is not sufficiently related to the respondent s position to provide an adequate explanation of how she ingested the toxins. [24] The respondent failed, therefore, to comply with the requirement in s 3(3)(b) of the Regulation that she provide details of how the incident happened It might not, of course, have been possible for her to provide those details when the form was completed; but the remedy for that was to seek authorisation from the court under s 18(1)(c)(ii) of the PIPA to proceed notwithstanding. [25] The appellants complaint that the respondent failed to give her reasons for attributing responsibility to the appellants (s 3(3)(h) of the Regulation) is similarly justified. No link was drawn between, on the one hand, the appellants alleged contamination of large parts of Mt Isa with lead and other toxic elements in the identified ways, and, on the other hand, the respondent s absorption of toxins, or the locations at which her exposure was said to have occurred. [26] The third of the appellants complaints, that the respondent wrongly answered Q 24 as to whether she had suffered any injuries, illnesses, or disabilities which might affect the extent of the disabilities to which the claim related or the amount of damages, presents different issues. Counsel for the appellants argued that the answer had to be objectively correct, so that it was to be answered as if the claimant were in possession of all the relevant medical evidence. The time for assessing its correctness, and hence its compliance, was, he asserted, at the time when the court came to consider it, against the background of the information then available. A complying notice could subsequently become non-complying as more information came to hand. In this case, since at the time the matter was before the judge at first instance uncontradicted medical evidence showed the relevance of the premature birth, the answer to Q 24 was then established to be wrong and the notice noncompliant. [27] Taking the second aspect of the argument first, the point at which compliance is to be judged is of considerable importance. The time at which a complying notice of claim is delivered determines a claimant s ability to proceed outside the limitation period; so compliance must be capable of being ascertained by reference to a fixed time. The definition of complying part 1 notice of claim contains two elements: the notice must comply with s 9 and it must be given as required under the relevant chapter of PIPA. Thus the issue is whether the notice as given is compliant; so the question is whether it complies with s 9 as at the time of delivery. [28] That view is reinforced by s 12(2) of PIPA. It requires the recipient of a notice who is not satisfied that it is a complying part 1 notice of claim to waive compliance, or, alternatively, to allow the claimant time either to satisfy the recipient that the notice

11 11 is in fact compliant, or to take the action proposed by the recipient to remedy the non-compliance. That section indicates that the claimant may be able to convince the recipient that the notice as given was in fact compliant, or may be able to remedy non-compliance, but not that a non-complying notice can be rendered compliant. The terms of s 13 are also noteworthy. If the recipient fails to respond to the notice, it is not deemed to be a complying part 1 notice of claim; rather, the recipient is conclusively presumed to be satisfied it is a complying part 1 notice of claim, preventing him or her thereafter from acting or asserting to the contrary. [29] Those provisions, in my view, confirm that it is the state of the document at the time it is delivered that is relevant. Non-compliance cannot thereafter be altered, although it can be remedied; and compliance cannot be reversed by subsequent events, although it may become necessary to give supplementary information under s 22(6) if the claimant becomes aware of a change in his or her medical condition or disabilities or any other circumstances relevant to an assessment of his or her claim. [30] As to the requirement in s 3(6)(d) of the Regulation, the parties submissions were diametrically opposed. The respondent argued for a purely subjective test of what was required, so that, in effect, the claimant s belief was conclusive. The appellants contended that the correctness of the answer was to be assessed from an entirely objective standpoint by reference to the relevant medical evidence. I do not think either approach is satisfactory. It clearly would not meet the purposes of the Act were the claimant able to meet the requirement simply by stating a purely subjective belief, however irrational, as to whether he or she had any relevant pre-existing injuries or disabilities. That would do nothing to advance a speedy resolution of the claim or promote its settlement. I do not accept, therefore, that it was sufficient that Ms Hare believed the response to Q 24 to be correct. [31] On the other hand, although counsel for the appellants disclaimed any submission that compliance with s 3(6)(d) of the Regulation required an omniscient claimant, that was, I think, the effect of his contention that the answer to Q 24 was to be assessed according to the appellants medical evidence, although it was not in the respondent s possession at the time the form was delivered. It seems improbable, given PIPA s requirement that the notice of claim be provided within a relatively short time from injury (often, if not usually, before expert opinion is obtained), that the claimant is required to answer as if in possession of all relevant medical knowledge, failing which the notice should be regarded as non-compliant. An approach more consonant with the terms and purposes of the Act may be to assess the correctness of the answer against what is reasonable for a person in the circumstances of the claimant, with the knowledge the claimant has. [32] But it is not necessary to reach a concluded view on the point, because it seems to me that whether one takes an entirely objective or only partly objective view in this case, the answer given to Q 24 was not correct. The material for the appellants included the discharge summary from the Department of Neonatology at the Townsville Hospital, where the respondent was born at 23 weeks gestation, with an extremely low birth weight of 510 grams and an array of other complications. Those birth complications are, in my view, properly regarded as injury, illness or disability; indeed, the respondent did not argue to the contrary; and they must have been known to Ms Hare. Although there may have been a significant lapse in time between those complications and Ms Hare s later observation of the respondent s developmental delays and disabilities, so that there was scope for argument about the link between the two, what the Regulation required was acknowledgement of a

12 12 possibility, not an actuality. It does not seem to me, in the circumstances, that it could be reasonably said that there was no personal injury, illness or disability... sustained before the incident, that [might] affect the extent of the disabilities resulting from the personal injury to which the claim relates. [33] It follows from those conclusions that the notice was not a complying part 1 notice of claim under PIPA, and the declaration made at first instance was wrongly made. Was non-compliance remedied? [34] The respondent pointed out that before the hearing at first instance the appellants had been given material prepared by the Environmental Protection Agency, which described various means by which individuals could be exposed to lead and other particulate emissions in Mt Isa. The affidavit of the respondent s solicitor, served for the purposes of the first instance hearing, identified the respondent s exposure to dust in her home, and described her habit of playing in the local park and school playground (the three locations identified in the answer to Q 9). That affidavit exhibited a set of results from soil and dust sampling at the respondent s house and school. Since the application at first instance, the appellants had been provided with a report from a Professor Flegal, a Professor of Microbiology and Environmental Toxicology, which expressed certain conclusions about the contribution of industrial lead emissions from the appellants operations to elevated blood lead concentrations in children in Mt Isa, attributing those results to atmospheric dispersion of pollutants, and to a lesser degree to other processes of contamination. All of that material, the respondent contended, went to remedy any non-compliance in respect of Q 9 and Q 18. [35] As to the answer to Q 24, the respondent s solicitor, it was said, had cured any deficiency in the notice of claim by providing all medical records in the respondent s possession and control to the appellants. [36] It seems to me that non-compliance is remedied by putting the other party in as good a position as it would have been had the notice been complying. The person to whom a notice of claim is given is entitled to particulars of how the incident happened, and the claimant s reasons for attributing responsibility to the recipient. The articulation of those details is important in order to enable the notice s recipient: to consider whether it is a proper respondent to the claim, and whether it ought to add another person as a contributor; to meet its obligations to attempt to resolve the claim under s 20; and to provide documents and information under s 27. It also has a bearing on preparation for the compulsory conference, its conduct, and the exchange of mandatory final offers if the claim is not settled. [37] Against that background, I do not think it can be said that the mere provision of material from which the recipient of the notice of claim may be able to deduce the correct answers and ascertain the nature of the claimant s claim, amounts to remedying non-compliance with the requirements of the notice. To remedy her non-compliance in respect of the answers to Q 9 and Q 18, it was incumbent on the respondent to articulate to the appellants how she ingested the toxins and why she attributed responsibility to them. [38] The approved notice of claim at Q 24, besides asking about pre-existing illness, injury or disability, provides, where the answer is in the affirmative, for the claimant to provide details of doctors and hospitals presumably concerned with that illness, injury or disability. Section 9(2)(b) of PIPA requires that the notice of claim

13 13 authorise its recipient (or that person s insurer) to have access to records and sources of information relevant to the claim specified under a regulation. Section 4 of the Regulation prescribes the records and sources of information to which the recipient or his or her insurer is authorised to have access as including: (c) (e) reports and clinical notes in the possession of a hospital, including a private hospital, at which the injured person received treatment relevant to the personal injury to which the claim relates; and reports or clinical notes in the possession of a health care provider who treated or assessed the injured person relevant to the personal injury to which the claim relates.... The notice of claim itself contains an authority for the person against whom the claim is made, or their insurer:.. to contact those persons and entities mentioned within this Part 1 Notice of Claim and to obtain information and documents relevant to the claim. [39] In this case, because Ms Hare answered Q 24 in the negative, she did not go on to identify any medical practitioners. The appellants complained that in consequence they did not have the benefit of the authorisation provided for in the notice of claim, although they had been provided with records of the respondent s treatment. The respondent did not take any point about whether the reports and clinical notes... relevant to the personal injury to which the claim relates referred to in s 4 of the Regulation extended to records about the complications of the respondent s premature birth, or whether the authority in the notice of claim exceeded the requirements of that section. Rather, it seemed to be tacitly accepted that remedying non-compliance with s 3(6)(d) would entail the provision of the proper authority; indeed as much was offered at first instance. It does not seem, however, that such an authority has been given. [40] I think there is an argument that the terms of the authority in the notice of claim form extend beyond what s 4 of the Regulation requires. But, given my conclusions as to the failure to remedy non-compliance in respect of the answers to Q 9 and Q 18, I would not declare, in terms of s 18(1)(c)(i), that the respondent has remedied her failure to give a complying part 1 notice of claim. Should the Court authorise the claimant to proceed with the claim? [41] The respondent argued that the court ought to exercise its power under s 18(1)(c)(ii) to authorise the respondent to proceed further with the claim despite the noncompliance. I do not think, however, that any basis has been made out for such an order. Although it formed part of the relief sought at first instance, it does not seem to have been addressed in the affidavit material, or in the oral submissions before this Court. It was not suggested here that the non-compliance could not now be remedied. In the circumstances, I would not make the order. Orders

14 14 [42] For the reasons given, the appellants are entitled to succeed in this appeal. I would grant the application for leave to appeal, and allow the appeal, setting aside the declaration and costs order made at first instance. The application for a stay should be dismissed, simply because the need for it has been obviated by the decision to allow the appeal. The appellants asked for a declaration that the notice of claim was a non-complying part 1 notice of claim, but such an order has not been the subject of any application, and I see no reason to make it. The appellants should have their costs of the application at first instance, and their costs of the application and appeal in this Court. [43] FRASER JA: I agree with the orders proposed by Holmes JA and her Honour s reasons for those orders. [44] DOUGLAS J: I also agree with the reasons and orders proposed by Holmes JA.

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