Document NGwx2EdDvBOaaa3VjGJQngzMy

Australia The Wall Toxic torts"burgeon as CSR concedes ade in the 70s, when Australia's illegal. Lawyers do not see themselves as Beleventh largest company, CSR being in a position to give moral advice." Ltd., faced the first of hundreds of So, despite evidence from CSR's own claims by ex-employees that the Wittfeilens- that mine executives knew as far back oom asbestos mine in Western Austraasliathe *40s that asbestos mining could had caused incurable lung diseases, com trigger lung diseases, the company and its pany legal advisers and CSR's insurance insurers for eleven years fought all claims company faced two choices. from its dying former workers in six One was to offer compensation. separate and hugely expensive supreme Potential victims could be ttacedand their court cues in Victoria and Western doctors warned. Money could be spent on Australia. research to try to stop them dying. But it Ail the litigants, and the Perth-based could have cost CSR--through its wholly- Asbestos Diseases Association, which baa owned subsidiary Mtdako Pty. Ltd., campaigned for them, claim that poor which ran the mine--perhaps $35 million safety conditions caused the lung diseases in compensation payments, the victims' solicitors now estimate. It-also meant ad mitting that safety regulations to contain Wittenoom's deadly blue asbestos dust had been inadequate. The other tactic open to the sugar and construction giant was some variant on a popular play in US. courtrooms. Lawyers call it the Wall of Flesh defense. Cigarette and other major companies facing the possibility of big payouts on negligence claims stack the courtroom with teams of highpowered lawyers to argue minute points of law and maneuver for expensive adjournments. CSR records, secret until last week, show that its legal advisers, too, saw ad vantages for the company in denying aO Wittenoom claims and fighting every case to the legal finish. On September 28.1977, top Sydney law firm Freehil) HotUngdale and Page told CSR that despite the ethical arguments "we are of the view that there Pwtttow)*JcftaaortoowtthaMaclla:'`l WtHwInnworef are substantial legal barriers to be over come by a claimant. Therefore, in thecom asbestosis and mesothelioma, a rare incur history--CSR hired right barristers and pany's best interests any move outside the able tumor ofthe hing that can take 20 to sofidtore, including two QCs, who bad legal fortifications should only be under 40 years to appear. Over these years many their own computer data bank. Barristers' taken after weighty deliberation." The courtrooms saw the specter ofhollow-eyed fees and other costs ran to an estimated $3 company's insurers, the Perth-based State ex-miners--some sitting day after day in miDton on both sides. Peter Heys, 49, died Government Insurance Commission wheelchairs next to oxygen tanka. from mesothelioma in April 1988, half (SOic), added: "Ifwe lose, we win be in no Cornelius Maas was the first miner to way through the bearing. "CSR always worse a position than ifwe decided to meet sue. But he died from cancer before the claimed that it was concerned about 'pre the claim." case reached court. In 1980, loan Joosten, tenders,* " says Melbourne solicitor Peter In cold-blooded accounting and legal 53, who contracted mesothelioma after Gordon, who ran many of the victims* terms, there was no contest. Indeed, given working as a clerk at Wittenoom, <fied 30 cases. "The people proved they were not shareholders' interests and CSR's vast minutes before her appeal against an ad pretenders by promptly dying." Some of financial and legal resources, lawyers versejudgment was to be beard. those involved had effectively predicted as would have been incompetent in suggest Throughout the '80s, CSR. the scic much. A Conner safety officer at Wiue- ing any other tactic. Says Dr. Kathryn and the WA government, which was also ooom is quoted in another 1977 internal Cronin, a University of New South Wales being sued, defended doggedly. In the 10- CSR document as commenting that "even law lecturer: "Legal ethics are that lawyers month case fought by ex-Wittenoom if the workers die like flies, they will never must fight as hard as they can in the inter workers Peter Heys and Tim Barrow--one be able to pin anything on CSR." ests of their client without doing anything of the longest civil actions in Australian Until a rapid series of court decisions 66 T1ME.0CT08ERI?. 191* HwUmMiuuumawraainlrtw Matertc relic this year. CSR's defease held firm- la the fist case, fought in 1977 in Perth, the judge held that there was insufficient proof that the worker's lung disease was at* tribatabk to negligent work practices at Wiaeaoom, and CSR went on to win two ofthe next fivecases. Then this year, ex-miner Cofin Wat son, 52, who is dying from asbestos*, was awarded nearly $370,000 by the WA Supreme Court. Peter Hey* and Tim Barrow together won more than $371,000. And last month the Victorian Supreme Court upheld a jury verdict to award 52year-old former Wittenoom worker Klaus Rabenah $256,000 in exemplary damages on top ofa S42600 compensation payout becauseofindustrial negligence. It was the first time that punitive dam ages had been awarded in an Australian industrial negligence daim, Mr. Justice Kayeobserved that a strong case had been made to support a finding of recklessness, "indeed ofcontinuing, conscious and con tumelious (humiliating) disregard by the defendant for the plaintiffs right to be free from risking injury or disease." The Rabenah case set a precedent and. faced with the inevitable. CSR managing director lan Burgess decided to settle. By then, the company had spent an estimated $20 million in legal fees on its defense. Burgess how says CSR's liability to the 288 ex-employees who are suing for com pensation is likely to be $50 million. This is Critics accuse the West Australian government and Ha Department of Mine* of ignoring the dangers in their dene to see mineral development in the north at any price. For a time Wittenoom was seen as one of the great hopes of WA adv ancement. The ironic reality: the state now has the highest rate of mesothelioma of any region in the world. The ending of one phase of the legal battle last week only served to trigger anotber.~Burgess announced that CSR was Iso now taking to court its main insurer, the sore, whose managing director, Frank Mitchell, had argued that CSR and Midal- co had failed to take reasonable safety pre cautions at Wittenoom and had therefore made their insurance cover `'inoperative." CSR, in turn, announced that it was going to sue the SGtc for $30 million. "I am cer tainly not going to let the scic walk away from their financial responsibility," Bur gess snapped. CSR's humiliation continued when confidential company files were broadcast on the Nine Network's program Business Sunday. They showed company exe cutives, as well as the WA Mines Depart ment, had lotig known that mining blueas bestoscarried beahb risks. The most damning 15-year-old memo referred to a warning given in 1948, four yean after mining at Witte noom began, by the local Royal Flying Doctor, based on its insurer's Dr. Eric Saint Saint, estimates and includes all now a professor at the future daims. But a University of WA, re record $200 million to calls: MI wrote to the WA $400 million total com Commissioner of Health pensation payout may be On 1948). 1 said that it involved, according to would probably be the some legal and market biggest epidemic of as analysts. The final bestosis the world had amount depends on bow ever known. That was on many of the 7,000 Wit- the record. Then I spoke teaootn workerscontract to the local manager and asbestosis or mesothelio told him that this was ex ma. Stephen Woodward, tremely dangerous. 1 said an anti-cancer activist CSR'a Surgesr dadded to --ttf that almost certainly and former University of within a few years cases WA researcher, believes that more than ofasbestosis would arise." As late as last 1.900 people could die. Says Woodward: month, CSR was specifically denying that "The rate will accelerate into the 1990s. The it had been warned by Saint, or that the last deaths wifi not stop until the second or warning had been passed on. Yet an un third decade ofthe next century." signed draft memo, dated June 12, 1974, While events have unfolded in board and beaded Press Enquiry--Mesothelio rooms and courtrooms, the deserted mine ma confirmed that Saint had indeed given itself has become a sinister historic relic. warnings about Wittenoom. Wittenoom. which lies in the shadow of Id another document, dated June 18, the Hamereley range, 1,600'kilometers 1974, a CSR executive referred to an over north of Penh, was always a place of seas trip as far back as 1945 from which shreds and patches, with rundown housing "we were aware of some danger from the commission bungalows. Once there was so inhalation of asbestos fiber. Initially we much dust and fiber from the mine that understood this to be similar to silicosis Wittenoom's streets were literally paved but later heard of asbestosis and other with blue asbestos. During its years of related diseases." During court battles. operation from 1944 to 1966. an estimated CSR ran its entire defense on the basis that 20.000 workers and their families helped to it did not know of the risk and could not produce 6,000 tons ofrefined fiber a year. have been reasonably expected to know in TIME.OCTOBER 17.19SS 67 the circumstances. Documents reveal that its executives knew by 1977 that more and more ofits workers could die ofmesothe* Korea. "I was outraged when 1 read the com pany documents," says Perth solicitor John Gordon, 29, who represented many of the Witienoom worker*."I felt it was immoral for CSR to sit back and do no thing and let people die. And they were dying not knowing whether their families would be looked after.'* n the Id-month Heys/Banow case, ICSR*s QCs required the plaintiff to prove every minute point, prove every document and photograph. Says solicitor Peter Gordon. 31, in Melbourne: "At ooe stage, we wanted to put in a letter from an employee who is dead. They knew be was dead. We knew he was dead. But they would not allow the letter to go in until we proved that be was dead. That involved adjourning the case, looking for bis widow, making application to the registrar for births, deaths and marriage, and then QfMwwood; clow to ccmptettwgtumtlgtlo--elig tendering the death certificate.** But CSR*s corporate relations chief Keith Roberts, says suggestions of delaying tactics are War Crimes Conflictabsurd. "Jo the Heys/Barrow case, we agreed to an expedited bearing which al lowed thecases tojump the queue.** Liberalspushfor changes that Labor willnot accept Perhaps partly as a result of Witten- oom, corporate negligence claims are on the increase in Australia. Judges, indeed, have complained that they are dogging up hile special investigator Robert said to be dose to completing their investi WGreenwood, QC, continues to tnvd gations of 16 cases involving allegations of rite world in search of evidence agaimnsutrder and mass murder. None of these (be courts. Lawyers have a joke phrase for them: ``toxic torts,** which cavers claims alleged Nazi war criminals living in Aust ralia, there are growing doubts that the cJaUstewsHw, ill proceed unless the legislation is ranging from the allegedly defective legislation to enable their prosecution in The opposition signaled its concern Daikon Shield IUD contraceptive device Australian courts wiQ be passed in its pre about the legislation when Greenwood's to lung cancers said to have been induced sent form. investigations were criticized last week by by passive smoking. After a Senate committee Inquiry into shadow attorney-general Neil Brown, who To prevent this growing dass oftitiga- the legislation in February, the Federal accused the investigators of interrogating tioo from Kten&y dogging the legal Government's War Crimes Amendments three people without cautioning them. "It system, the Australian Law Reform Com Bill was listed for consideration in the iscontrary to aQ principles for government mission has proposed that Australia Senate in April, but debate has been agents to act as ifa biS that is before par should adopt a system of class actions delayed partly because of prolonged nego liament has been passed into law," be said. whereby one group oflitigants can sue in a tiations over opposition amendments to Brown also criticized Prime Minister Bob representative capacity, with the decision the bill. No agreement has been reached. Hawke who, on a television program, said binding on all parties. The Government argues that the amend that some of the crimes committed by Class actions potentially reduce costs ments are either unnecessary or would people Greenwood was looking at were and time, the main problems with mass render prosecutions impossible. "quite horrendous." "The Prime Minister plaintiffHtigation. They also stop corpora The bill is now likely to be considered seemed to be prejudging cases before they tions individualizing cases by producing by the Senate on November 1 and it prom had even gone to court," said Brown. damaging evidence of wayward behavior ises to be a lengthy and difficult debate. "That's not acceptable.** The exchange be against a sole Etigant and implying that Some opposition senators, including tween Hawke and Brown was just a taste the injury may have been aggravated or Liberal David Hamer and the National ofthe strong reactions the war crimes issue caused by that behavior. But business leaders strongly oppose class action legi slation, fearing that it will set off a rash of Party's John Stone, have been strong critics of the legislation. Stone has ex pressed the fear that it would lead ufshow is likely to raise once the debate in the Senate gets under way. The war crimes bOL which went frivolous claims. They also object to the possibility of consumers who have not complained trials in which suspect Soviet-sourced evid ence would be used. Other opposition poli ticians. tike Liberal Senator Peter Baume. through the House of Representatives last December, has already provoked strong reactions in some of Australia's ethnic about a corporation's behavior being have made it clear they will support the communities, and politicians across the enjoined in a class action against that legislation even ifthe opposition decides to political spectrum have been subjected to company. Says Clive Speed of the Busi oppose it. sustained lobbying campaigns by repre ness Council of Australia: **I have never Meanwhile, Greenwood and his team sentatives of the Baltic and Ukrainian seen Australian business and industry so of investigators have spent more than SI communities. They want the legislation to united on an issue. The class action pro million traveling to Israel the United be cither dropped altogether or substant posal has polarued business and con States, Europe and the Soviet Unioo gath ially modified so that all Soviet-sourced sumers.** ering evidence for prosecutions. They are evidence is automatically excluded from 68 TIME.OCTOBER 17.19IS