Document byr0jB8vDVpOL29GrYvB9LLZ0

THE SyPftE^S COURT ) OP WESTERN AUSTRALIA ) No. 1148 Of 1987 BETWEEN: ; and Wo. 1161 of 1967 B E T WS EW t 'W \. aETWBKN 5 Heard: Delivered: IS November 1987 to 14 July 1988 4 August 1988 STEPHEN EDWARD JAMES TIMOTHY CHARLES EHVXW BARROW * plaintiff * and CSR LIMITED * First Defendant and W1QALCO PTY. LTD. .S...e...c..o...n...d.....D...e...f.e...n...dai nt PESTER BEYS plaintiff. and CSR LIMITED and F....i.r.s..t...nD-i--ef.e...n...d...a...n...t. MIDALCO PTY. LTD. *S...e..c...o..n..d Defendant (By Original Action) and CLAYTON .PETER BEYS as Administrator with the will annexed of the estate of RETSR KEYS deceased Plaintiff and CSR LIMITED and .F...Vi.r.Ts...t.....D...e...f.e.nd1 a1 n1 ~t* MIDALCO PTY. LTD. Second Defendant (By order dated the 2nd day of June 1988 that plaintiff be substituted and that action be carried on) V t i WV-003994 IN iHb ^Ut'KbMi: WUtu OF WESTERN AUSTRALIA No. U4S of 1987 BARROW v_ CSR LIMITED & ANOR. o. 1161 of 1987 HEYS v. * CSR LIMITED & ii REASONS FOR JUDGMENT ROWLAND J. 1^ y v. I - \c^ ^ , v** , :<*` dctis'crcd on * August 1980 -m Counsel Mr. D.R. Williams Q.C. Mr. D.J. Ashley Q.C. Mr. R.J. Viol (as he then was) to 12.1.88 Mr. R. Mc*?ay froa 8.3.88 ` Mr. R.K. O'Connor and Mr. J.R. Gordon from 2.2.88 (instructed by Messrs. Slater & Gordon) appeared for the plaintiffs Mr. D.K. Malcolm Q-C. (as he then was) to 18.3.88 Mr. T.F. Hughes Q.C. from 2.S.S8 Mr. R.K. skinner and Ms..J.I. Gillon and Ms. L. Evans from 21.1.88 (instructed by Messrs. Robinson Cox) appeared for the first defendant M*-i -S-Jv Arehe* . v . v. Mr. *R.U.M; "McKerraeher and _ Mrs. E. Ferri frofc 29.1.89 (instructed by Messrs. Robinson cox) the second defendants /* ' * * appeared for Cases referred to in judgment; Australian Safeway Stores Pty. Ltd. v. Zaluzna (1987) 61 A.L.J.R. 160 Bankstown Foundry Pty. Ltd. v. firaiatina (1986) 65 A.L.R- 1 Bonnington Castings Ltd. v, Wardlaw (1956) A.C. 613 Bryce v. Swan Hunter Group Pty. Ltd. (1968) 1 All E.R. 659 Banyan v. Jordan (1937) 57 C.L.R. 1 Chapman v. Hearse (1961) 106 C.L.R. 112 Clarke v. Chandler Clay Pty. Ltd. (1984) Aust. Torts Reports 80-631 Commissioner of Taxation (Cth.) v. Commonwealth Aluminium Corporation Ltd. (1979-80) 143 C.L.R.-646 Cook v. Cook (1986) 162 C.L.R. 376 Craig 6 Ors. v. Lake Asbestos of Quebec, of Appeals; unreported; 31 March 1988 U.S. Circuit Court D.H.N. Pood Distributors Ltd. v. Tower Haslets London Borgugh Council (19763 1 W.L.R. 852 Donoghu v. Stevenson [1932] A.C. 562 SBM Co. Ltd. v. Dominion- Bank [1937] 3 All B.R. 556 Pitch v. Hyde-Cates (1982) 39 A.L.R. 581 Poyster v. Minister for Education, Supreme Court of Western Australia (Fall Court)? anrported; Ho. 5744? 8 March 1985 Gwyder v. Peck [1983] 1 Qd.R. 351 Backshaw v. staw (1984) 155, C.L.R. *614 . * ,* . SaaMtoarv^ Sdkoof *'.*tyi Ltd; : (1856) 96 C.L.R., 18 ' Hotsun v. East Berkshire Area Health Authority [1987]' A.C. 750 Hughes v. Lord Advocate (1963J A.C. 837 Industrial Equity Ltd. v, Blackburn (1976-77) 137 C.L.R. 567 Jaensch v. coffey (1983-84) 155 C.L.2. 549 Joosten v. Midalco Pty. Ltd. (1979) A.I.L.R. 449 Lamb v. Cotogno (1987) 74 A.L.R. 188 McGhee v. National Coal Board [19723 3 All B.R. 1008 * McLean v. Todmaa (1985)-155 C.L.R. 306 McLoughlin v. O'Brian [1983] A.C. 520 Mt. Isa Mines Limited v. Puaey (1970) 125 C.L.R. 383 Neill v. Hew South Wales Fresh Foods and Ice Pty. Ltd. (1962- 1963) 108 C.L.R. 362 Nicholson v. Atlas Steel Foundry and Engineering Co. Ltd. [1957] 1 W.L.R. 613 Overseas Tankship (OK) Ltd. v. Worts Dock 6 Engineering Co. Ltd. (The Wagon Mound ,(o. 1)) [1961] A.C. 388 public Trustee v. Zoanetti (1945) 70 C.L.R. 266 Rae v. The Broken Bill Co. Pty. Ltd. (1957) 97 C.L.R, 419 Raimondo v. State of South Australia (1978-79) 23 A.L.R. 513 Rejfek v. McElroy (1964-1965) 112 C.L.R. 517 --Rowe v.-. McCartney [1976] 2 N.S.W.L.B. 7-2 Ruby v. Marsh (1975) 132 C.L.R. 642 Saloaan v. Saloman & Co. [1897] A.C. 22 San Sebastian Pty. Ltd. v. Minister Administering* the Environmental Planning and Assessment Act, 1979 (1986) 68 A.L.R. 161 Skelton v. Collins (1966) 115 C.L.R. 94 Stevens v. Brodribb Sawmilling Co. Ltd. (1985-86) 160 C.L.R. 16 Sutherland Shire Council v_ Heyman (1984-85) 1S7 C.L.R. 424 Tate v. Freecorns Pty. Ltd. (1972] W.A.R. 204 The Gramophone and Typewriter Limited v. Stanley (Surveyors of Taxes) . [1908) 2 K.B. 89 Tubemakers of Australia Ltd. v. Fernandez (1976) SO A.L.J.R. 720 Uren v. John Fairfax & Sons Ltd. (1966) 117 C-L.ft. 118 Vozza v. Tooth Pty. Ltd. (1964) 112 C.L.R. 316 H. West & Son Ltd. v. Shepherd (1964) A.C. 326 Wilsher v. Essex Area Health Authority (1988} 2 W.L.S. 557 Woolfson v. Strathclyde Regional Council (1978) S.C.(H.L-) 90 Wyong Shire Council v. Shirt (1979-1980) 146 C.L.R. 40 XL Petroleum (NSW) Pty. Ltd. v. Caitex oil (Australia.) pty. Ltd. & Anor. (1985) 57 A.L.R. 639 Cases also cited? Air Great Lakes Pty. Ltd. v. K.S. Easter (Holdings) pty. Ltd. (1985) 2 N.S.W.L.R. 309,- Albacru*' (Cargo Owners) v. Albazerro (owners) (1977) A.C. 774 Amalgamated Investment & property Co. Ltd. (in Liquidation) v. Texas commerce International Bank Ltd. [1982} Q.a. 84 Andrews v. S.C. Lohse 6 Co. (1966) Aust Torts Reports 80-043 Anns v. Merton London Borough [19783 A.C. 728 Australian Consolidated. press Limited. v. Cren (1967) 117 ' :C-LrR. * 251 *. . / ' v Australian iron.'6 Steel 'Limited v ' rStevski (1973) . 128 C.L.R. 666 B v. B [1979) 1 All E.Fu 801 " Bamford v. Bamford (1970) ch. 712? (1977) 40 M.L.R. 587 Benhas V. Gambling [1941) A.C. 257 Benaax v. Austin Kotor Co. Ltd. (1958) AC. 370 Birkholz v. R.J. Gilbertson Pty. Ltd. (1984-198S) 38 S.A.S.R. 221 Braithwaite v. Hutchinson [1969 3 1 O.B. 564 British Thornson-Houston Company Limited v. Sterling Accessories Limited [1924} 2 Ch. 33 Byrne v. Garrisson (1955) V.R. 523 C. Evans & Sons Ltd. v. spitebrand (2985) 1 W.L.R. 317 * Caitex Oil (Australia) Pty. Ltd. v. XL Petroleum (New South Wales) Pty. Ltd. (1985) 155 C.L.R. 448 Campbell v. McCreath (2975) S.C. 81 Carroll v. Purcell (1961) 107 C.L.R. 73 Cartiedge v. Jopling 6 Sons Ltd. [1963 3 A.C. 758 Cassell &.Co. Ltd. v. Broome (1972) A.C. 1027 Catnic Components Ltd. v. Hill & Smith Ltd. (1983) F.S.R. 512 Cavalier v. Pope (1906) A.C. 428 Charterbridge Corporation v. Lloyd's Bank Ltd. [1970 3 1 Ch. 62 ^China "v. Harrow UBC [19541 1 Q.B. 278'- Ciark v. Sougham (1823) 2 B&C 249 Commonwealth Aluminium Corporation Ltd. v. Federal Commissioner of Taxation (1978) 78 A.T.C. 4371 Commonwealth of Australia v. .Stoilkovski, Supreme Court of Victoria (Full Court)? unreported? 19 Mar. 1981 Cotogno v. Lamb (Kb. 3) (1986) 5 N.S.W.L.S. 559 Craig v. Johns-Manville Corporation et al, U.S. District Court for Eastern District of Pennsylvania (Scirica J.); unreported; No. 82-0321? 22 April 1997 Crookali v. Vickers Armstrong (1955) 1 W.L.R. 659 DRT Nominees Pty. Ltd. v. Mona Homes pty. Ltd. {1978} 138 C.L.R. 423 Da Costa v. Australian Iron a Steel Pty. Ltd. (1977-1978) 20 A.L.R. 257 Daimler Co. Limited v. Continental Tyre & Rubber Co. (Great Britain) Limited (1916} .2 A.C. 307 David Payne & Co., Re Young v. David Payne & Co. (1904) 2 Ch. 608 Dismore v. Hilton 11938) 2 All E.R. 762 Dorset Yacht Co. Ltd. v. Home Office (1970) A.C. 1004 Doughty v. Turner Manufacturing [1964) 1 Q.B. 518 Doughty v. Turner Manufacturing Co. Limited (1964) X Q.B. 518 Ebbw Vale UDC v. South Wales Traffic Area Licensing Authority (1951) 2 K.B. 366 Electric Light and Power Supply Corporation Ltd. v. Cormack (1911) S.R.(N.S.W.) 35Q FCT v. Barrett (1973) 129 C.L.R. 395 Federal Commissioner of Taxation v. Commonwealth Minister of iron* .Ore (1979-1980) 143 C.L.R. 646 Fire & All Risks Insurance Co. Ltd. v. Caratti (Bullfinch) Pty. Ltd. (1969) W.A.R. 49 Firestone Tyre & Rubber Co. Ltd. v. Lewell in (Inspector of Taxes) (1957) 1 All S.R. 561 Foggarty v. Dowerin Road Board . (1935) 53 C.L.R. 510 .. Fontin y. *. Kat'apcdifi> (1962 ) *-*Q8 ;C .L>:Rv \ 177 \ Foodiand Associated Limited v. National Country Party of WA Inc., Supreme Court of Western Australia (Wallace J.); unreported, 15 April 1983 Footner v. Broken Hill Associated Smelters Ltd. (1983) 33 S.A.SiR. 58 Forbes v. MVIT (2985} W.A.R. 50 Foufoulas v. F.G. Strang Pty. Ltd. * (1970-71) 123 C.L.R. 168 Gas Lighting Improvement Co. Ltd. v. IRC (1923) A.C. 723 General Cleaning Contractors Ltd. v. Christmas 180 (1953) A.C. Gilford Motor Co. Ltd. v. Borne (1933) Ch. 935 Gold v. Harr ingay Health Authority (1987) 3 W.L.R. 649 Gorton v. Federal Commissioner of Taxation (1965) 113 C.L.R. 604 Goulburn Valley Batter Factory Co. Pty. Ltd. v. Bank of New South Wales (1900) 26 V.L.R. 151 Gowar v. Bales (1928) 1 K.B. 191 Graham v. Co-operative Wholesale Society Ltd. (1957) 1 A.E.R. 654 Greene v. Chelsea Borough Council (1954) 2 Q.B. 127 Griffiths v. Kerkeaeyer (1977-78) 139 C.L.R. 161 Grunther Industrial Development & , Federated Employers --ir,T` Insurance Association (1973) 1 Lloyd's Rep.*394 Harold Holdswor&h & Co. (Wakefield) Ltd. v. Caddies (1955) 1 W.L.R. 352 Harper v. Phillips (1985) W.A.R. 100 .Hawkins v. Clayton (1987-1988) 62 A.L.J.R. 240 Hobart Bridge Company' Limited v. Commissioner of Taxation <Cth> (1951) 82 C.L.R. 372 Hodges v.. Frost (1984) 53 A.L.R. 373 Hotel Terrigal Pty. Ltd. v. Latec Investments (1969) 1 N.S.W.R. 676 pty. Ltd. (No 2) Houghton & Co. v. Northard Lowe and Mills [1928 3 A.C. 1 IRC v. Sansom (1921) 2 K.B. 492 In Willoughby Municipal Council v. Hallstead (1916) 22 C.L.R. 352 J. R. McfCensie Limited v. Gianoutos and Booleris [1957] N.2.L.R. 309 Jarvis v. Surrey CC (19253 1 K.6. 544 John Robertson v. Ferguson Transformers (1973) 129 C.L.R. 65 Jones v. Lipaan (1962) 1 W.L.R. 832 Julius Bandit Ltd. v. Commissioners of Inland Revenue (1945) 27 T.C. 44 Keape v. Gibbon (1846J 9 0-8. 609 Ketteman v. Hansel Properties (1987) 2 W.L.R. 312 Kingshott v. Goodyear (1987) 8 N.S.W.L.R. 707 Kitchen v. Royal Air Force Association (1958} 1 W.L.R..563 Kondis v. State Transport Authority (1984) 154 C.L.R. 672 Kr&lj v. McGraff (1986) 1 A.E.R. 34 Kwei Tek Chao v. British Traders & Shippers Ltd. (19541 2 l Q.B. 459 Lati&er v. ASC Limited (1953) A.C. 643 Lee v. Lee's Air Farming Ltd. (1961) A.C. 12 Littlewood*s Hail Order Stores Ltd. v. McGregor (Inspector of Taxes) (1968) 1 W.L.R. 1820 Littiewoods Mail Order Stores Limited v. Inland Revenue Commissioners 11969] l.W.L.JU 1241 $dnrfc<r Ltd. V.V Shell petroleum .Co.Limited. (i980>' 2. 357/* (1980) 1 W'.L.R; 367 MVIT v. Forbes (1986 3 W.A.R. 50 Malyon v. Plummer (1962) 3 All E.S. 884 McCormack v. Brewer (1951) V.L.R. 197 McDonald v. Commonwealth (1945) 46 S.JMN.S.W.) 129 McKenna v. Avior Pty. Ltd. (2981) W.A.R. 255 Merchandise Transport Ltd. v. British Transport Commissioner 1972] 2 Q.B. 173 Mersey Docks & Harbour Board v. Coggins a Griffiths. (Liverpool) Ltd. (1947) A.C. 1 Miller v. MVIT, Supreme Court of Western Australia (Full Court)? unreported; 4 May 1988 Morren v. Swinton and Pendlebury Borough Council [1965) 1 W.L.R. 576 Wort v. Bradley (1916) S.A.S.R. 128 Multinational Gas and Petrochemical Co. v. Multinational Gas and petrochemical Service Ltd. (1983) 2 Ch. 258?.(1983) 2 All E.R. 563 Musca v. Astie corporation Pty. Ltd., Federal Court of Australia (French J.); unreported? 20 Jan. 1988 Nader v* Urban Transport Authority (1985) 2 S.S.W;L.R. 501 NatioAal Coal Board v. McGhee (1972) 3 All E.R. 1008 -^Stionar`Employers Mutual v; Waind (1978J 1 N.S.W.L.R. 372 0*Dwyer v. Leo Boring Pty. Ltd. (1966) W.A.R. 67 Ogunsanya v. Lambeth Area Health* Authority, (Bristow J.)? QBD; 3 July 1985 Oldham v. Lawson No. 1 (1976) V.R. 754 Overseas Tanksbip (OK) Ltd. v. The Millar Steamship Company Pty. Ltd. (The Wagon Mound (No. 2)) (1967) 1 A.C. 617 papantonakis v. Australian Telecommunications (1985) 156 C.L.R. 7 Commission Patek v. City of Melbourne, Federal Court of Australia (Smithere J-): unreported; 20 Aug. 1906 Peabody Trust v. Parkinson 1985} A.C. 210 Peate v. Federal Commissioner of Taxation (1964) 111 C.L.R. 443 Pepper v. Litton (1939) 308 U.S. 295 Performing Sights Society v. Ciryl Theatrical Syndicate Ltd. {1924} 1 K.B. 1 Piloer v. McPhersons Limited, Supreme Court of Victoria; unreported Pioneer Concrete Services Ltd. v. Yelnah Pty. Ltd. (1985-86) 5 N.S.W.L.R. Pirelli General Cable Works Ltd. v. oscaf Faber 6 Partners (1983) 2 A.C. 1 Potts v. Miller (1940) 64 C.L.R. 282 Power v. Snowy Mountains Hydro Electric Authority (1957) S.R.{N.S.W.) 9 Public Trustee v. Hickisson (1964) 111 C.L.R. 500 Rabenait v. Midaico Pty. Ltd., Supreme Court of Victoria? unreported Sadovanovic v. MVIT' 19803 w:a.R. 105 Rainhaas Chemical Works Ltd. (in Liquidation) v. Belvedere Pish Guano Co. Ltd. (19213 2 A.C. 465 Re A.C.I. International Ltd. (1986} 11 A.C.L.K. 240 Re Darby (19113 1 K.B. 95 Re Exchange Banking Cp*,'Flitcroft.'s Case `(1882) 1 Ch,D. -519 7Be Fenwick Stobart &;Co.' <l'$0l) 1 Ch. 507 : * *' * Re S.R. Earner Ltd. (1959) 1 W.L.R.-62 Re Hampshire Land company (1896) 2 Ch. 743 Re M&rra Developments (Bo. 2) (1979-80) 4 A.C.L.R. 153 Re Marseilles Extension Railway Co. (1871) L.R. 7 Ch. 161 Re R.G. (Films) Ltd. (1953) 1 Cl.R. 483 Re The Estate of Parry (Deceased) (1977) 1 W.L.R. 93 Re The Hews Corporation Ltd. (1987) 70 A.L.R. 419 Regal (Bastings) Ltd. v. Gulliver (1942) 1 All E.R. 378 Richards v. state of Victoria (1969 J V.R. 136 Ridge v. Cockatoo Docks and Engineering Company Pty. Ltd., * Hew South Wales Supreme Court; unreported Ronex Properties v. John Laing [1983] 1 Q;B. 398 Rookes v. Barnard (1964 3 A.C. 112$ . Scottish Co-operative Wholesale Society Limited v. Meyer (19593 A.C. 324 Smith. Stone & Knight Ltd. v. City of Birmingham (1939} 4 Ail E.R. 116 Sovar v. Henry Lane (1967) 116 C.L.R. 397 Sprecapane v. Barber, Supreme Court of Western Australia (Full Court); unreported; No. 5441; 12 JUly 1984 Stanfield properties Ltd. v. National Westminster Bank Pic -i-11983} 2 All E.R. 249 - --' Steinberg v. Commissioner of Taxation (Cth) (1975) 134 C.L.R. 641 Stokes v. Guest, Keen and NettlefoXd (Bolts and Nuts) Ltd. (1968) 1 W.L.R. 1776 Summers v. Commonwealth (1918) 25 C.L.R. 144 Taylor v. Seere (1982) 1 N.Z.L.R. 81 Taylor v. standard Gas & Electric Co. (1939) 306 U.S. 307 Tesco Supermarkets Ltd. v. Nattrass (1972} A.C. 153 The King v. The Associated Northern collieries and Others (1910) 11 C.L.K. 738 The Nominal Defendant v. Clements (1960) 104 C.t.S. 476 Thompson v. Smiths Shiprepairers (North Shields) Ltd. (1984J 1 0-8. 405 Thomson v. Lord clarmor r is (1900) 1 ch. 7X8 Tremain v. pike (1969] 1 W.L.R. 1556 Tunstall v. Steigmann (1962) 2 Q.B. 593 United States v. Milwaukee Refrigerator Transit co. <1905) 142 Fed. 247 VoXi v. Inglewood Shire Council (1963) 110 C.L.R. 74 Wakeaan v. West (1836) C&P 479 Walker s Ors v. Hunger ford & ors (1988) 19 A.T.R. 745 Watson v. Barley (1962) 108 C.L.fi. 635 Wells v. Sainsbury and Hannigan Ltd. (1962) N.2.L.R. 552 Wentworth v. Cappe, Supreme Court of New South Wales (Brownie J.); unrported; 6 July 1987 West v. Shepherd (1964) A.C. 326 Whitfield v. Ce Lauret & Co. Ltd. (1920) 29 C.L.R. 71 Wilkinson v. Ancliff (BLT) Ltd- (1986) 1 W.L.R-. 1352 William Cory & Son Ltd. v. donaan Long & Co. (1936) 2 All E.R. 386 Willoughby Municipal Council v- Hallstead (1916) 22 C.L.R. 352 Wojcic v. incorporated Nominal Defendant (1967J V.R. 263- . Young..v. .David;.payne..& Co.. -' (1904], 2. Ch.- ,608 . \V -* Sordah- * y. Xetropolifan (Perth'J Passehger * Transpoft Trust (1963) A.L.R. 515 -\ Suijs v Wirth Bros. Pty. Ltd. (1955) 9-3 C.L.R. 561 ROWLAND J- REASONS FOR JUDGMENT Index preliminary Evidence {generally} The Case Conditions in the Mill Respirators Milling operation Oust.Control ^ ' .'i ( - Asbestos and its Related Diseases Knowledge of Asbestos Related Diseases 1943-1955 Defendants* Knowledge of Asbestos Related Diseases Duty of Care* t Standard of Care Foreseeability of Risk Plaintiff Barrow Barrow*s Damages The late Mr. Beys The "Keys" Damages . (i) Seys Estate - Law Refora Act r-- f*H) Heys - Dependants - Fatal Accidents Act Relationship between CSR and ABA Exemplary Damages Page 1 3 15 24 65 74 - "SO. 106 110 119 137 139 145 153 169 171 172 175 178 219. PRELIMINARY This hearing started in November 19a? and finished 14 July 1988- Each plaintiff had mesothelioma. One died during the trial. The other has survived longer than is usual with this disease. I have accordingly attempted to resolve the case as quickly as I am able. In pursuit of this goal, I have sacrificed attempts at elegance of expression,- I have attempted to avoid a detailed reference to the evidence and X have not followed to a conclusion all issues thrown up during the trial, or all arguments submitted by counsel. I intend no disrespect to 'counsel for that failure. 1 have, however, endeavoured to make all, findings of fact and to deal with all issues, relevant'.to a, resolution of.each case even thqu^hy. in the event/ some findings are not necessary for'my* purposes'. Each plaintiff sues the defendants for damages. The matters of complaint concern events Which are some years apart; but, because -many of the issues are common, an order was made that the actions be heard together and, subject to all just objections, the evidence in one would be admissible as evidence in the other. It is more convenient if I talk hereafter about the cases in the singular and I will only digress from that when dealing with the matters relevant only to each plaintiff and to the result of each. What would otherwise have been a relatively simple action -fn tort "has been complicated by three main facts. First, the breaches of duty alleged against the defendants are said to have occurred between 33 and 44 years ago; secondly, the serious injury said to arise from those breaches occurred to each plaintiff within the last 2 to 3 years and, thirdly, the C Vw o precise injury was not, 33 years ago, recognised as a direct consequence of the breach alleged. Before turning to the case, I refer to some preliminary matters and some of the complications which arise out of this time lag. Wherever possible, I will* endeavour to avoid a detailed reference to the allegations pleaded and particularised. The sheer volume of the pleadings and the repetitive nature of some* of the allegations la one reason to avoid a detailed reference. The other, and perhaps more important reason is that, at the end of the trial, each party has been able to formulate is a more concise form the issues identified py the pleadings which are .still alive.. There will be occasions;when a more detailed reference will be required. For ease of reference, X shall continue what has been the practice throughout the trial of referring to the first defendant, as CSR and the second defendant as ABA. It is sufficient for present purposes to note that CSR was at all material times called Colonial Sugar Refinery Limited, a company incorporated in Few South Wales in the last century with a paid up capital in the 1940s .of 27 million Pounds, having large sugar interests, and sugar refinery interests throughout Australia and Fiji, and with growing interests in manufacturing building materials from organic and *'"'-$oi'ganifc- substances and projects "associated `with these interests. ABA, originally Australia Blue Asbestos Limited and now called Midalco Pty Ltd, was a company incorporated under the WA Companies Act in 1943 by CSR for the purpose of acquiring asbestos mining tenements from Hancock prospecting Company and for the purpose of mining and milling asbestos for various purposes, including a use in its asbestos products' manufacturing enterprise. I will refer later to the relationship between the defendants. It is sufficient to note that ABA started its corporate life as a wholly owned subsidiary of CSS, although that was short lived, and x believe it was contemplated that this would be so. The Building Materials Division of CSR, which is simply an internal department within that company, will he described, * as is stamped on much of the correspondence, as SMD. The plaintiff Beys in Action 1161 of 1987 died on* 1st April 1988,, after the ..trial had been in progress, for. some months, 'as a result of the disease.mesothelioma, of which he complained in the action itself. By consent, his action is maintained by his personal representative and his dependents have raised .a separate claim, and again, by agreement, the evidence taken before his death is used for such continued and new actions. Again, for convenience, X will continue to -use the term 'plaintiffs* in context to refer to the late Mr. Beys and Mr. Barrow. X will comment as required on the evidence dealing with specific issues, but I make some general observations before doing so. EVIDENCE I have heard evidence which can be placed into different categories. 1. Contemporary Documents I believe that a useful guide is to be found in contemporary writings, particularly where the author of that writing describes observable facts or is recounting contemporary conversations. There are some caveats calling for caution in dealing with this type of evidence, and in general terns those caveats can include several natters. (1) Observed facts were noted and reported a by Mines c Inspectors fron tine to tine who visited the mill in the course of# and for the purpose of# undertaking their' duties. The v isits#' however, ; were spasmodic, vand .occurred V_at - such *. intervals that the climatic conditions were not always the same and likewise could occur at times when there could be some hiccup in the sill procedures. It is also 'possible that Inspectors could be unduly critical. To the extent that an Inspector is V dead, and his report comes into evidence pursuant to s.73C of the Evidence Act# extra caution should be taken. To the extent that the particular Inspector could be cross-examined# this caution was to some extent allayed; but even with the benefit of his reports Mr. Adams, for example, had no personal recollection of many matters in his reports, although he agreed that they would, to the best of his ability, record his views at the time they were given. Accordingly, I have always looked for outside support as far as possible when considering Inspectors' descriptions of observable facts. I should also exercise caution when the observable facts involve a subjective judgment and, in particular, where dust is described in relation to its visibility and volume. Both within these reports and internal memoranda passing between officers of Mines Department and memoranda passing between officers of Mines and Health Departments, there are expressions of opinion. Most of the officers are dead. I - heard much argument and gave many rulings concerning documents during the course of the trial. Section V7* was : also : extensively ':`amended ' during. -the. trial. 2 do. not now repeat ay rulings and reasons. For the curious, they may be found in the transcript or in separate published reasons. Many of the memoranda contain statements of the author's opinion. I have tried to avoid reliance on this unless the opinion quite clearly can give rise to an inference of fact which would otherwise be admissible. Hi) The second defendant has kept contemporary records of plant hire and equipment from time to time (exhibit 95) which 1 feel that X can accept as > being accurate in the .sense that ' the equipment described was used at some time. The main caution in this regard is to ascertain whether obsolete equipment is included in subsequent lists and also to use care in drawing inference as to when, and for how long, equipment mentioned in the lists was actually installed and in operation- As well, it must be remembered that it is a list of plant hired from CSR. There .may be other plant acquired by other means. (iii) Officers of the first and second defendants made reports from time to tine and in the course of their duties. These can, I believe, be accepted in the aain as factual accounts of events that are said to have been seen or reported oa by the particular officer. Some of the officers have in fact been cross-examined in this respect. (iv) * t. Officers of the. second defendant have at . times given answers'.1 to requests for'; information* from- * Mines Department Inspectors either orally or by letter. I believe again in the main that there is a basis of truth in the answers given, but some caution must be exercised in relation to this type of evidence. Some answers are to be assumed to be oral because they are reported or it can be inferred that they were given by management at the time. They are admissible as evidence of the fact that such an answer was given and are capable of being evidence against either defendant as inferred admissions from "competent officers who would be authorised by virtue of being described as management and capable of making admissions.. There has been no opportunity to cross-examine some. Many of such officers* are now dead. 1 am left with the overall impression which comes out from the correspondence itself, when taken in conjunction with other documents, that that type of correspondence may contain statements of fact or statements of intention which may not necessarily be entirely accurate, specially in relation to the timing of proposed action* I need not pause at this stage to consider the reasons for any possible inaccuracy. I am, however, left c with the impress'!on that management has at times endeavoured to 'deflect criticism, and perhaps drastic action proposed or threatened by the Mines . .Department Inspector,, by advising of procedures, , j ' *. > ' *. * * .** ' .* . and / proposals that may * at best?< be .described as. premature. Some of these letters follow criticisms which have apparently been made by the relevant( Mines inspector to the Manager at Wifctenooa, and I should note that it Is sot, in my r view, an unfair assessment to say that in the r> main, over the entire period with which I am *. concerned, inspectors have been in varying degrees critical of the dust generated by the mill. I shall deal with these in some detail later. (v) Missing documents:- The only other matter I need mention concerning documents is that there are missing from each of the defendants' records many contemporary documents which I believe would throw much light on events and the timing of events at Wifctenoom? in particular, the monthly and six monthly reports from the Manager at Wittenooa to the Managing Director of ABA in Sydney. The absence of these documents, of which several copies were made at the time/ has not been satisfactorily explained, but I do not draw any inferences adverse to either defendant because of that fact. The oral evidence indicates that these monthly reports were discussed at the monthly directors* meetings, but those minutes give little indication of-events relevant to the issues I must resolve. In fact, in the main, the minutes of the directors* meetings go to questions of finance rather* than matters', of nine policy or what was occurring at the mine, and the only notation in the minutes about the monthly reports is that they were either noted or adopted. I was told by Hr. Brown, a Director and later Managing Director of ABA, that some of the other items specifically mentioned in the minutes arose from the Manager's report. Other documents which are missing are the Hines Record .Booh into which Inspectors, from time to time, wrote requisitions to the Mine Manager who had to be nominated to the Department as the responsible officer at the mine. There are, 1 am told, few plans or maps showing design features of the mill. There was a design office in Perth as well as in BHD, Sydney. Plans were called for from the defendants but not produced. 2 have not heard from any present officer of either defendant explaining what searches have been ma<3e for documents which would quite obviously throw much light on what was happening. I have heard from some former officers that some documents were destroyed. In a case of this nature, ranging over such a long period, where the evidence shows that some documents were destroyed, it is obvious that one can expect many missing documents, and more so where there was some policy of destruction in c practice. At an early stage, Z allowed the first defendant to lead evidence of the contents of documents conditional on it producing satisfactory evidence showing that the documents were not available? in particular', the monthly- reported Those reports, and copies of them, were, in fact, last in the custody of' CSR in that copies were stored in, CSR buildings in Mosman Park and the originals in BHD office in Sydney, and copies in Mr. Brown's office in CSR Sydney after he had ceased to be a director of ABA in 1972. From the evidence, I could draw the inference that the documents in BMD office, Sydney, had been destroyed. 1 would not feel justified on the evidence of resolving what had happened to the others. In the end, the evidence sought to be led by the first defendant of the contents of those reports was only to show a system rather than the content of any particular report. It seems to me that the plaintiff should have sought further and better discovery before the matter caae to trial, or perhaps during the trial. On the other hand, the defendants must have known the importance of these documents and should have provided an explanation as to why this evidence was not available. There are other relevant documents which, it is said, were not discovered. As I have stated earlier, and as I .intimated to counsel during closing submissions arising from this, I do not intend to draw any inferences adverse to the defendants or .r! ' * any of the witnesses called by the. defendants. AS *. * to. the formerthe matter -has not*'really been . canvassed in a way that would justify the drawing of inferences, and as to the latter, no witnesses are presently employed by the defendants. On the question of drawing inferences, I should state that I have tried to avoid drawing any . inferences from contemporary writings Where more than one inference say be open. In that event, I have looked for other evidence to support any inference that may be open. 2. Eye Witnesses I l*ave heard from many witnesses _ who were present at Wittenoom at various times; some times being relevant, others not relevant; but I heard the latter evidence in the event that it may throw light on what existed during the relevant times or because it might assist in deciding that something undertaken later might have been undertaken earlier or because it was said that it showed evidence of a course of conduct or system during the relevant times; In matters of detail, the recollection of many witnesses has .to be viewed with caution, and this was recognised by most. To some extent, some witnesses were- aided when shown contemporary documents. Some, ifc was suggested, exaggerated the conditions which they described. Some, it was suggested, lacked objectivity because they had also issued writs against the defendants, making similar allegations to those aide by the plaintiffs. Some, it was said, were not truthful. Some, it was suggested, had reconstructed events based on anecdotal, stories -which,' after discussion vwith ^others, r*ld to "the' witness himself believing the events he described, which may not in fact have occurred. Some, it was said, either consciously or unconsciously had slanted the evidence with a < certain bias. Counsel for CSR also urged caution in that he suggested that there is often a tendency to think that things ) were worse than in fact they were, and he pointed out that this would tend to disadvantage the defendants more than the plaintiffs. Another basic premise he mentioned is the public policy involved in the Limitation Acts which also tend to work against a defendant. I accept both of those cautions. It is always easy to resolve .into which, category to place some oral evidence. Where necessary, I will, I hope, make sufficient findings to indicate the quality I give to the evidence to support the facts I find. I should say now, without intending to impugn the credit of anyone, that in matters that occurred at the relevant times, I have greater confidence in finding facts which can obtain support froa sources other than recollection alone Since 1979, ABA has been a party in several trials which concern, either directly or indirectly, conditions at the Wittenoom Hill. Some of the witnesses in this trial have given evidence at earlier trials. During the course of crossexamination in this trial, it has become apparent that some witnesses* evidence has, in varying degrees, changed from that given in earlier trials. I do not necessarily reject that witness as a witness of truth. it is my perception that the present trial has produced more contemporary writings than the earlier trials. This may tend to aid recollection. There has..been some current'discussion amongst .groups of . ex-residents of Wittenoom and members of Asbestos Diseases Association. Inc., which supports the Wittenoom sufferers and of which Association some witnesses were members, it is, of 4 ' course, possible that anecdotal stories are now accepted quite genuinely as matters of fact as noted by the teller of the y fact. On the other hand, discussions with others and looking at records can'trigger memories otherwise forgotten. 1 sake these general comments to indicate that I do not necessarily reject evidence because it differs to some extent from earlier evidence. Where necessary, I will draw attention to any serious defects in consistency. 3. Missing Witnesses Many persons whom it might be thought could throw a great deal of light on events which occurred and conditions which existed between 1943 and 1955 are now dead. Not unnaturally, this has affected the defendants to a great extent because it might be expected that those holding the top managerial positions would be much older than the general members oi the workforce. in particular, the manager at Wittenoom during most of the life of the mill, a Hr. Broadhurst, died of mesothelioma in 1982. Mr. Allan, the mill superintendent froa the beginning of 1950, died of asbestosis related causes in 1987. it follows that I have not heard from the two witnesses most likely to have a great knowledge of matters relevant to this trial. Mr. Broadhurst gave evidence at another trial in 1978 when a member of the workforce sued ABA. In the present trial, solicitors for ABA'produced to the plaintiffs' advisers a statement in the fora of a signed proof of evidence of Mr. Broadhurst for. that earlier trial. This was produced almost at the completion of ABA's case at trial. Counsel for ABA advised the plaintiffs' counsel that he would seek to tender that statement, but he did not formally do so until immediately prior to closing the defence. The application was made under s.79C of the Evidence Act. I refused the application and published reasons which I need not now mention. It was not debated before me whether the transcript of Mr. Broadhurst's evidence at the earlier trial was admissible under the same provisions of the Evidence Act, and no application was made to have that statement admitted. The lack of evidence froa these witnesses,*and others who ^are also-dead, highlights, in my vie*7 the need for caution in drawing inferences too readily from circumstances which might be explainable if other facts were known. Counsel for C5R also reminded me, and I agree, that whereas the standard of proof is still the civil standard, I should have regard, when dealing with the claim based on contumelious conduct, that the proof of that claim should be 'clear and cogent* - Rejfek v. McEiroy (1964-65) 112 C.L.R- 517 at p.521. 4. Expert Evidence This falls into two main categories - (i) Evidence of a relevant state of knowledge held by persons in 1943-1955 - in the main, general knowledge, medical knowledge* and engineering* knowledge. .This does sot give rise to much difficulty if one keeps to the forefront, that hindsight plays no part in assessing knowledge of the times. in the same category, one must recognise that theories that were esoteric at the time, but are now accepted, do not. necessarily lead to a finding that such theories should reasonably have been known or acted upon at the earlier time. (ii) Evidence of experts commenting on factual events in 1943-1955. In the sain, these are engineering or operational matters. An expert can only comment usefully on a certain set of facts. There is, in this case, the difficulty of finding the ___ ' facts upon which the expert _can comment. I will develop this in detail later when I consider the facts. 5 will make only some general observations at this stage. This trial has been conducted in a strictly adversary manner. This has some drawbacks when she events in issue occurred so long ago. On the other hand, the system draws attention to the need for accuracy fro witnesses and it does highlight that the onus is on the plaintiffs to prove their case. Initially, in the main, each defendant made few positive assertions and simply denied all allegations ' and insisted that each plaintiff should prove every fact that might go to support his case. This also remained the position after I granted each defendant leave to amend its. defence after the trial had been going for about one month. The amendments did, however, make positive assertions of what* the defendants said1.* existed in' t$e" mill during; 'the. relevant period and gave "some * particulars of the nature of its positive case. This gave the plaintiffs* experts something more positive to work on, but to a large degree many problems remain, with experts making assumptions which could not always be sustained. I will refer to this as necessary. i'Hg C&SE Each case arises out of the employment of the. plaintiffs , by, ABA _>at Wittenoom - Barrow in or. .about 1949 to 1952, WMHT * although there is some dispute about that, and Beys in aid 1955.Each alleges that ABA was in breach of the duty of care it owed to avoid exposing each to unreasonable levels of dust containing asbestos fibre, whereby each sustained the fatal disease mesothelioma and, in the case of Barrow, asbestosis as well. Other less serious injuries are complained of and each plaintiff alleges that he suffered damage. Each plaintiff also sues CSR, alleging a breach of the same duty of care. The formal pleadings and particulars are prolix. The plaintiffs* allegations against ABA are in similar terms, varying only with the precise nature and time of the employment of. each and the nature and extent at each time of the precise breaches complained of. Each, it is said, was employed by ABA in or about the mill, and lived in the environs during the time of each employment. In the course of the employment of each, and while .occupying 'living.-.areas- la the environment,: gach - claims that ABA owed the duty of care of- an employer to -avoid exposing them to an amount of asbestos dust which ABA knew, or ought to have known, was likely to cause injury of the class or type which was eventually caused. The pleaded allegations of negligence which, without going to the detailed particulars, are as followss- *18A. (a) Exposing the Plaintiff to inhalation of asbestos - (i) in his work and (ii) at the environs - * cii"* when it knew or should reasonably have known that there were dangers to health consequent upon such exposure. (b) Failing to take . any Or any adequate precautions for the safety of the plaintiff whilst he was engaged upon work and whilst he was .at the environs, each of which involved exposure to inhalation of asbestos, when it knew or should reasonably have known that there were dangers to health consequent upon such exposure. 'y V, j ----- (c) Failing to devise and/or maintain for the Plaintiff - (i) a safe system of work? (ii) a safe place of work; . (iii) proper and * adequate plant and equipment. <d) Failing to provide for the Plaintiff - (i) a sufficient employees; number of fellow (ii) reasonably employees; coupe tent fellow (e) Failing to instruct the Plaintiff adequately or at all in the performance of his duties. (f) Failing to instruct the plaintiff's fellow employees adequately or at all in the . performance of their duties. . (g) Failing - to supervise ' the Plaintiff adequately or at all in the performance of his duties. (h> Failing to supervise the Plaintiff's fellow employees adequately or at all in the performance of their duties. (i) Failing to take any or any adequate steps to inform itself of dangers to health consequent upon inhalation of asbestos. (j) Failing to take any or any adequate steps to inform itself of techniques available to alleviate the inhalation of asbestos by workers. (k) Failing to take any or any adequate steps to alleviate the inhalation of asbestos by the Plaintiff in his work. '<(1) Failing to warn - (i) the plaintiff or (ii) his fellow employees - of dangers to health consequent upon the inhalation of asbestos. (at) Failing to inform *8. (i) the Plaintiff or (ii) his fellow employees - that dangers to health consequent upon the inhalation of asbestos could increase with the length and degree of such exposure. (n) Failing to inform - (i) the Plaintiff or (ii) his fellow employees - that the average level of exposure to inhalation of asbestos sufficient to cause related respiratory disorders was substantially less than the average level of exposure to silica sufficient to cause silicosis. (o) persithing tailings to- leave the mill whilst still containing free asbestos , to .-.excess. (p) Permitting asbestos to arise from the tailings dumps and to enter the atmosphere of the environs. (q) Failing to ta1?e~ any or any adequate steps to prevent asbestos arising from the tailings dumps and entering the atmosphere of the environs. (r) Causing/permitting the use of tailings containing free asbestos to excess in the environs, and particularly for roads, paths, gardens and in recreation areas, such that asbestos arose therefrom into the ~ atmosphere of the environs. (s) So conducting the sill that asbestos was discharged or released therefrom into the environs. (t) Failing to instruct - (i) the Plaintiff or (ii) the Plaintiff's fellow employees - adequately or at all in the methods of asbestos/dust suppression. <u) If and insofar as the Plaintiff and/or his fellow employees were instructed in methods of asbestos/dust suppression, failing to - -J . (i) enforce; (ii) supervise che use thereof. 18B. (a) Failing to provide, any or any adequate extraction .system in the Bill. (b) Milling the ore containing asbestos dry? (c) Failing to devise milling process asbestos. and for implement a wet ore containing (d) If and insofar as a dust extraction system was provided (1) permitting the same to fall into disrepair? (ii) falling to have any or any proper system of maintenance of the same? < -or any. persons reasonably competent to maintain the same? (iv> using as maintenance, staff persons not reasonably competent to maintain the same? (v) failing to adequately; maintain the same (vi) failing to - <i) instruct; (ii) supervise - * its employees in the use of the same; (vii) permitting its employees to remove and not replace portions thereof; (viii) permitting its employees to remove and replace * incorrectly and adequately portions thereof; (ix) from time to time* altering portions thereof, but incompletely. (e) So conducting the milling of ore that asbestos was - (i) (ii) released into the atmosphere within the mill; and discharge from the mill into the atmosphere of the environs. (f) So conducting the bagging of asbestos that asbestos was - (i) released- into the atmosphere within the mill; and (ii) discharged from the mill into the atmosphere of the environs. (g) Failing to measure, adequately or at all - (i) asbestos; (ii) dust levels in the mill. (h) Failing to provide any or any adequate respiratory protection equipment. . (i) If and . insofar as .any respiratory protection equipment was provided - (i) failing to provide and make reasonably available* any or any adequate replacement particle filters; (ii) failing to - (x) direct; (y) enforce - the wearing of such equipment by the plaintiff. (j) Failing to provide adequate ventilation within the mill. (k) Failing to heed and act upon warnings given it by officers of the Mines-Department from time to time over the years of operation of the mill and with warnings given orally by Dr. Saint between 1948 and 1951 that workers were being exposed to .inhalation of asbestos to excess. (1) Failing to - (i) devise; <iii) enf of regular cUan * ^Uipm^n 63,6 structur*s Iw*- ^r18*** P of asbestos <*} If tb,fea 4 guipActt of the '-' the seae mill was ua5nduccin9 that ashes (i) within ral% atswsp^' the t (ii) discfcthe * atfflos *uvi*ons. the ' Further ailegations, * r a dais fo* .basis to contumelious damages, incl^on* of aXPreS8 of certain health'risks ajwst*<?i*??-/. * - * ^ ' by. various persons durin^jdS/ *^3 a11*9*^ failure to act in the ah ri**s' coftstit contuse llows .disregard .for ce of *<& plsi* hut is 1* will deal,with these parti each, arise / ^ clear that the plaintiff re3chos particulars a U lt3 , a ** ordinary da ** sane ci-m. c5U arly pleaded the the basis of each it is said to be Df . . Se**c*acnlt,!** an<3^ being owed ***** `v*"~ the ^ **a*ty irelationship between control ^ased _sgations of the AA*%s as they affected each 4 ooc ly, b>ec% relationship between c$R -lift the and ABA was such, it is said, a Id enable a* f ABA wefe the corporate veil** so as to find he actxon actions of CSft. It is Said that the doty owed by CSR and the breaches of duty by CSR are the same as those pleaded against ABA. At this stage, I record that any duty, and any basis for its existence, is denied by CSR .and, if CSR fails in that argument, it adopts the defences on the merits which are raised by ABA. It is not now in issue that each plaintiff suffered, or suffers, mesothelioma. The main issue that is left as to the medical condition of the plaintiffs is whether the plaintiff Barrow also has asbestosis. And that only has relevance to the question of foreseeability of risk and causation. If he does suffer asbestos is, it is of a mild degree only and has been completely eclipsed .by his-, suffering mesothelioah..:'- In its defence, as outlined ia- counseVs opening,-ASA admitted the employment of each plaintiff and its occupation o the mine and environs. 1. It admits that it owed to the plaintiffs a duty of care. 2. It describes the duty as a duty to take reasonable care to avoid exposing the plaintiffs to unnecessary risk of harm. 3. It submits that the performance of the duty is to be judged by contemporary standards of the time, i.e. 1943-1955. 4. It claims that it knew of asbestosis and that, in particular, it knew of circumstances, including duration of exposure and concentration of fibres, which could cause harm. 5. It believed that exposure had to be for significant periods of between 10 to 20 years to produce asbestosis. 6. It had no reason to believe, prior to 1955, that a person exposed to asbestos dust could contract lung cancer front that exposure without first having asbestosis. 7. it did not have, and cculd not have, knowledge that exposure to snail quantities over a short tine could ) lead to mesothelioma. 8. Having an appreciation of the potential, risk of harm from asbestos dust, it took reasonable steps, consistent with ' world :standards, to., minimise dust * produced.- ^ 9- Between 1943 and 1955, it took continuous measures to reduce the amount of dust in the mill. 10. The particular harm sustained by the plaintiffs being unforeseeable, the particular harm being ) inevitable and remote from the foreseeable risk, there is no negligence. Fart of the matters mentioned in the above items were included in the amendment to the defences on 15th December last, and it is unnecessary for ae, at this stage, to deal with those in detail. It is sufficient now to say that, by its amendment, each defendant made some'positive assertions in the context of pleading that each had taken all proper and reasonable care and precautions in the mill and environs to avoid exposing the plaintiffs to dust containing asbestos fibres and particles in such concentrations and in such circumstances and for such periods as could foreseeable cause them to suffer any harm, having regard to contemporary industry knowledge, their knowledge of the relevant dangers and other factors, which I will detail as required when dealing with each of the matters that are in issue. COSPITIQSfS IS TBS MXX.l. A brief outline of the issues concerning the mill CSR acquired asbestos mineral claims in Western Australia in 1942 and caused ABA to be incorporated to mine and mill the asbestos.* -* **" ABA commenced to mine and sill in 1944. The process of milling involved the crushing of the ore in. order to release the fibre. The whole process''v&a * ary *one'. " ThV' released*'*' fibre was fluffed up by other machines and. was aspirated from * shaker screens to cyclones for further separation from dust, thence it was dropped,into trommels for further separation and then to bagging stations where it was bagged' manually. The process was dusty. From time to time. Mines Department ) Inspectors visited to ensure compliance with Mines Regulations. They submitted reports of their visits to the State Mining Engineer. They discussed requisitions they required with the management. Their reports are generally critical of the amount of dust generated and not controlled. """^During 19*48, Dr. Saint, the then Flying Doctor, drew attention to the amount of dust and its health consequences. Other Health Department officers visited Wittenoom. Much of the case concerns the defendants' efforts to control dust: the knowledge of ABA officers, or what should have been their knowledge, o the dangers of exposure to asbestos dust, and the ability of the defendants to operate the mill properly, names which will appear often in these reasons include Mr. Brown, a director of ABA and a senior officer of BMD; his \ assistant at BMD, Mr. King; and Mr. Broadhurst, the nine manager, an employee of CSR on loan to ABA. With that brief outline, I turn to contemporary writings. I have set out contemporary writings of what was occurring between 1543 to 1955 impacting on conditions at Wittenooa as perceived by the officers of the Mines Department. I have also set out writings taken froa the Health Department files. One gets some information as to gondi tions . at' > JH11eapom1 in . t$e *.. y&Xl . :as;seen ' by .` various Inspectors of Mines and one gets an understanding of 'the knowledge of various government officers at the times of the writings, x have also included, on the guestion of knowledge. writings dealing with asbestosis as early as 1935. 1 have digressed from time to time to interpose - (1) evidence disclosed by contemporary reports and letters from officers employed by ABA or sent to investigate and report during this pe.riod; {2} oral evidence of witnesses describing conditions at the* time. ___ Subsequently I will refer back to_some of these writings when discussing the equipment in the* mill froa time to time and in making findings of fact generally. Relevant writings are in chronological order, and a resume of each is set out alongside the exhibit number of the document * in question. I have interposed some of the oral evidence relevant to the time and I have also included some comments at my own. Exhibit No Document 287 Memorandum Inspector of Factories and Shops to Chief Inspector, 8 March 1935. The Inspector drew the attention of the Chief inspector to "the report on the effects of asbestos dust on the lungs" by Dr Merewether and Mr. Price and described the clinical features of the disease asbestosis as resembling silicosis and as such "very definitely dangerous". He recommended early action with regard to the introduction of methods for the suppression of dust in the process he was examining, which was in fact the manufacturing processes of James Bardie & Co in its Perth factory where it was dealing with blending and grinding raw asbestos and generally manufacturing cement and other sheets. 286 't * The Chief Inspector in a memo, to the Coaaissloner of Public Health, .5th April 1935, drew attention to the report published in 1935 referred to .in \exi|i?pit;:'2e?*,y *: \*v .( . *%. ' 287/288/291 Thereafter, in 1939, are some reports between the Chief Inspector of Factories and the Commissioner of public Health monitoring some workers from James Hardie with respiratory disorders. I mention these a^moraside simply to draw attention to the fact that, at least within the Public Service as early as 1935, up-to-date literature about asbestos is was available in the State ana within at least two government departments, ie Health and Factories, where one night in fact expect it to be available. 90 In December 1943, in a report on the Zeehan asbestos mill run by a wholly owned subsidiary of CSR, the author, Mr. King, a technical officer in BMD, drew attention to: "The amount of asbestos ^w1 and silica dust about would be injurious to health over a period and we must eliminate this nuisance. All positions where fine dust occurs such as trommels, tailings, chutes, torrey cyclone ayid Kubit mill must be completely covered in with hinged doors provided to permit inspection when necessary and a suction pipe from a fan and a cyclone separator must run to each position." Reference was made to drenching tailings to avoid a bad dust nuisance. Reference was made to a dust room which was not successful: "The inner room is almost impossible to clean out without a complete service respirator. It is reminiscent ofi but worse than, the hessian dust room we had at the caneite factory when we first commenced operation and which we later displaced for an efficient cyclone separator." In discussing the dust it was stated: "It is possible to walk freely about the mill without a dust mask unless one wishes to bend over a screen or tailing chute where a dust mask is essential." Recommendations were made to "gradually go ahead fitting all units which are dusty, such as the trommel before No. 3 screen, all tailing chutes and tailing trucks, torrey cyclone Kubit mill etc with good dustproof covers, to which 2" to 3" pipes can be run from No. 1 cyclone fan*. The author undertook to look into the question of efficient dust collectors to replace the dust room. Mr. King gave oral evidence. In 1943 he was technical assistant to Mr. Brown and was at. all times employed .by CSR. Be `' was* never an eaployee of 1 ABA.'' He became an alterrtate director of' ABA to Mr. Brown on 20/5/49 and a director on 22/1/52 when Brown became managing director. Mr. King, as Mr. Brown's assistant,, was available to give technical advice at all times material to these actions. Re visited the mill and mine at Wlttenooa approximately two times per year from ) 1948. Be went overseas in 1945, 1948/49 and 1953, and visited many factories and mills in Europe. He is a qualified engineer and claims that on those visits he did not learn any techniques of dust control he did not already understand. His knowledge of health hazards was that inhalation of dust over `-'356`hg' periods - up to 20 years - could cause fibrosis of lungs (silicosis). Re said he had' never heard of asbestos is until 1960. Re was inclined to modify this in cross-examination by limiting his previous answer by saying that if he had heard of asbestosis he regarded it as the same as silicosis. 59 A report by the Inspector of Mines, Cue <Kr. Adams), to the State Mining Engineer regarding ABA, 9th June 1944. The inexperience of the designers was highlighted by Inspector Adams, who also drew attention to the hardness of the rock. This statement was put to Mr. Brown at T9447. He agreed. He said that there was nowhere for ABA to turn to for help. I have some difficulty with that. There is no suggestion that they looked witside CSR at that time. I believe that Adams, in his report, was referring to the lack of any mining or milling experience in those involved. In its pleading. Particulars p.34, it was said that Mr. Brows, a director of the second defendant, and many other senior personnel, had expertise in controlling and suppressing dust in. miXling ;:bperatibns.;, *' : Mr. --Brown v told, me'! (-T6092) - .that mill was designed by Mr. Br6ad.hurst,' with some advice from Mr. Brown and Mr. King. None had any hardrode mining or milling experience. Sroadhurst, it is said, also designed the mill at Zeehan with assistance from CSR staff, but he sever went to Zeehan to see it in operation (Brown T6858 and *6862-3). 92 in a report on Wittenoom, presumably to the managing director ABA, ^ 5th December 1944, by Mr. Brown at p.5, he said: "So serious attempt to' eliminate dust. Awaiting delivery of dust collection equipment. The dust is very., very bad and is aggravated on windy days by the open buildings which allow grit dust and fibre to be blown off the belt conveyors and screens. The main sources of dust are the No. 2 crusher, the rolls, the rot ex screens-, the cleaning trommel and the discharge from the waste bin. The mill is so dusty that it is definitely hazardous to health." Attention was drawn to the lack of skilled labour. In his report he also included matters already commented on by Broadhurst, including at p.6 a reference to a requirement for a waste bin, which is simply a discharge point of dust and rock from waste conveyors, and in item 6: "plant must be installed to completely eliminate ail dust. Much o this plant has been ordered but in view of our experience in Tasmania where multiclone collectors are not entirely satisfactory it appears as though further equipment should be ordered. All material being discharged from waste bins will probably have to be drenched". This report should be read in the context of evidence from Mr. Brown, who conceded in evidence that- no dust collection or suppression was installed initially (T9452-3). Two important matters arise from this. The first is the comparison with Hr. Brown's first quoted comments in exhibit 92 p.5 ' regarding the aggravation of the dust on windy days related to the open nature of the building, with his evidence concerning subsequent efforts when he wished to avoid enclosing the mill.. I will return-to this later.-. ...The..second la > that everyone* involved 'was award `of the problem and, at that time/ an unspecified danger, and the need to cope with both the problem and the danger. IS This was a report about Vampire Gorge Nine by the Assistant State Mining Engineer in July of 1945. It drew attention to dust at the plant and the difficulty of getting men to wear respirators and the "dangerous nature of asbestos dust". 76 Mr. * Adams reported to the state Mining Engineer on the West Australian Blue Asbestos Fibre Company on 24th October 1945. This was in connection with that company*s` operations at Vampire. At folio 139 he indicates an appreciation of the dust menace and refers again - to the use of respirators and the reluctance of men to wear them, but he concluded, that the disadvantages of wearing them was "nevertheless * far outweighed by the one advantage of health ----- v ^* protection. This attitude towards respirators s quite universal on all the mining fields in my experience so that the solution of the dust . problem resolves itself into the willingness of the management to accept the responsibility of seeing to it that the various machines release as little dust as possible into the atmosphere". In his summary he makes reference to ABA's venture at Wittenoom and to what he stated to be the CSR attitude through Broadhursts. comments that if it wouldn* t work they would simply shut down and he was critical of what he said was a rather amateurish approach. I will deal with the evidence concerning respirators separately. 1 mention these matters in exhibits 15 and 76 at this stage to give a contemporary flavour to Mines Inspectors* perceptions in the district at the times stated. Mr. Adams gave evidence. Be has almost no present day recollection o the layout of the mill. At T1477 he did have a vivid recollection of his first visit in 1943 or 1944 or thereabout "with all the dust pouring out of it ... the mill was crushing ore and out of any opening were clouds of .dust pouring out. 1 have never seen that in any mining mill before . f:`and.-I >hav vsaeft a*. :lpt -of rminirsg;- a* lis ?;.* V. &e: 'recalled one' or two other visits and stated that "as far as X remember, there was always dust emanating from the mill" and he said that this was generally as described on his first visit. Be continued to be District Inspector until 1949. Bis description of conditions at the mill at Yaapire Gorge in exhibit 76, he said, were also similar to those at Wittenoom. At T1527, he told me that his description of Yampire in exhibit 76 when he said "when the air in the gorge is stagnant and the plant is in operation the conditions are simply appalling** applied also to Wittenoom. In general, Mr^. Adtms could not recall many of the_rports which he wrote, MM* 4 but he accepted that they would accurately express his views at the time. Be was then a well qualified and experienced mining engineer. I have no reason to doubt his evidence. Re was in fact sympathetic to some extent to the difficulties faced by the mine developers. Brown agreed that there was. in the early stages, excessive dust, but he regarded Adams* assessment as an exaggeration (T7572-3, T9465-6). 60 District Inspector o Hines, Mr. Adams, reported to the State Mining Engineer on l?th September 1946 about ABA. He stated at p.ll that the mill was well designed and, despite difficulties of war-time, was well done. "One of its chief faults has been that insufficient attention has been given.to the eradication of dust which has been treated as an afterthought^ When there is a flow of aix into the gorge, which does not occur very often, dust conditions in the vicinity of the plant have been "terrific". Appreciable tine and money have been spent lately on the problem, but efforts were based on wrong principles . In any dry crushing plant the dust menace must be ') accepted as a major principle of design and not as an afterthought". Brown does not accept this* assessment. It was his evidence that in 1945 ore transfer points creating most dust * ': ,<'were..h<?bded; and th^t. at v that' time'".there\were\ three* cyclbnesV .: v* for the purpose of aspirating fibre and two ordinary .cyclones were collecting dust from these transfer points. Be. said all five cyclones were exhausting to atmosphere (T9460). In t regard to the mill flow he does not accept the assessment made by the plaint if f*s expert. Dr Jeffrey, who indicated his ) assessment that there were in 1944 (exhibit 89(o)} four cyclones aspirating fibre, and in *1945 (exhibit 89(p)) three of the four cyclones going to multiclones 'which in. turn exhausted to atmosphere, with perhaps one cyclone or one or more multiclones going to a bag dust house. Brown said (at ^ not seen , exhibit 60. at the time. attention, however, to exhibit 61. X draw 61 This is a letter dated 18th September 1946 by' the State Mining Engineer to CSR enclosing what I infer to be a copy of Adams' report (exhibit 60). 68 A report from the District Inspector of Mines (Kalgooriie), Mr. Lloyd, to the- Manager ABA, 9th February 1948, notes the satisfactory conditions on his visit and suggests abandoning the dining room to avoid dus-t. 69 . On 23 rd February 1948, Lloyd reported to the State Mining Engineer of an inspection which occurred on 15th January 1948 and which probably has reference to his inspection which was the subject of exhibit 68. Re mentioned that the mill was idle, awaiting a decision to change screens for the purpose of coabating waste in the tailings and he therefore could not get a duet sample, although he indicated that there was sufficient evidence of dust to reguest the new dining room three-guarters of a mile away to be operated. The evidence of Brown generally on the period up to 1948 is'that in 1944 dust conditions about the mill were very bad (T9452), that in 1945 the position improved considerably showing a vast improvement in the atmosphere (T9460), that in 1946 .once the multiclone* .had. been. ..ccaneptid - conditions:..were ? fairly* good (T9465), and that by 1948 wording conditions in the mill were quite reasonable (T947S). 44 Letter Dr. Saint to Dr Cook, the Commission* of Public Health, 20th .March 1948, in relation Z believe to the sine. He said: "It is perhaps fortunate that men do not work extended spells for l shudder to think of the ravages asbestos is and TB aay develop". Dr. Saint was appointed Medical Officer with public Health Department (Flying Doctor) at Port Hedlaod about February 1948. From then until about March 1951, he visited Wittenooa about once per fortnight, increasing to once per week in the latter times. --^..- 527'. The Secretary of the AW wrote to the State Mining Engineer on 19th April 1948 regarding Wittenoo. Re said: "No adequate provision made by management to effectively control dust in treatment plant. The result is that heavy clouds of dust are drifting through the plant, including the engine room, fitting shop and offices. In fact the whole atmosphere in the vicinity of the treatment plant, when in operation, is dust laden. There can be no doubt that employees occupied in the ptocess ate exposed to serious danger from a health point of view'*. This letter was shown by the state Mining Engineer to the Perth Engineer of ABA. who wrote to the Manager of ABA wittenoom, sending copies on 7th May 194$, noting that this had given rise to a news report on X3th May 1948 by ABC News, which was in fact reported to the Mine Manager on 14th May. 45 Letter Dr Saint to Dr Coo* of the Department of Public Health, 6th June 1948? "The asbestos mill at Wittenoom off the record operates without any sort of dust extraction whatsoever; and since the 'incubation period' of asbestos is so much less than Si02 in a year or two ABA will produce the richest and most lethal crop of eases of asbestosis in the world's literature-. 46 Commissioner, of public Health to Dr Saint, 14 June 19481 "I am discussing certain aspects of this suggestion (chest x-rays) with Dr Benzell . next . Monday and I shall, bring before him your remarks. . on < asbestos' which x. regard . a* > .dfi .the * * highest importance**..' \ * "* * % 47' Commissioner of public Health to Dr Saint, 6th June 1948, refers to Dr Coo**s discussion with Dr H'enzeilT "Your comments on the incubation period of asbestosis are interesting * and it is recognised that these workers could easily incur a greater hazard than do workers in our gold mines". . 70 This is a report by Inspector Lloyd to State * Mining Engineer, 26th November 1948. It details an inspection made by Lloyd, Inspector Adams and Workmen's Inspector Hunter on 10th September, during which certain dust samples were taken. Three readings indicated 10004, which was above the capacity of the machine . to measure. Inspector Lloyd noted in his report that in an interview between himself and Inspector Adams and the Manager, the Manager's attention was drawn to the "unsatisfactory set-up of the dust exhausting system and danger to the health of the men". In reply the Manager stated that's "The present plant would, in the near future, be discarded and it was the intention of the company to erect a new plant when sufficient data had been obtained as a result of operating the present system*. With one exception, all dust counts shown in the report were well above what was or what became the recognised acceptable limit of 176 particles per cubic centimetre, although that fact was not mentioned in the report- It nay not have been known, although exhibit 714 would indicate limits of 300 and 200ppcc for silica and asbestos respectively were known. 62 Is a nemo dated 15th November 1948 from the Inspector to Workmen's Inspector Hunter, which made reference to a memorandum from the Secretary of the AWU Mining Division and continued: "though Mr. Broadhurst has seated that a new sill is to be erected in which adequate provision is to be made for dust prevention, the sen were fully justified in their concern about the condition? which now exist. I think that it is safe to say that the present sill will be in operation for at least another 12 months and you would be within your rights in pressing for improvements to the existing plant". 721 Is a memorandum, undated, from the Minister for Mines to the Minister for Health which indicates * that "Dr Saint has been misinformed as regards precautions* taken at the .asbestos.' works at Hitteaooa.-' gorge' ai; Mines > ` Rigulafifc;1 lAct .is strictly ' enforced and _ ail employees 'are thoroughly examined and must hold a certificate that they are free of TS before they can be employed in or about the asbestos works". It also reports that the men reported as having Tfi were employed in the township which* was several miles from the mine workings.. Exhibits 68, 69, 44, 527, 45, 46, 47, 70, 62 and 721 above can be seen as reports and memoranda made between February and November 1948 that detail a period of comment and inspections between February and September 1948. It can be seen that during this period there is an interrelation of comment on the control of dust at the mill and mine and the health of the workers. I now detail oral evidence that leads bp^to-and'Covers that period. I have already mentioned the evidence of Inspector Adams who visited between 1944 and 1949. In his oral evidence. Dr. Saint told me of his concern at the huge cloud of dust that hung over the mill and he assumed that it was an admixture of siiicous rock and a high concentration ot asbestos fibre. He wrote about his concerns to the Department and I have outlined his letters. He stated in evidence that at that time, in view of his experience in industrial research in England immediately prior to his arrival in Western Australia, he was particularly concerned with the high concentration of asbestos fibre in the mill area and the effects of exposure to this fibre in particular. Be said that he spoke to Brosdhurst and others at Wittenooa of his grave concern of conditions in the mill and the-high concentration of asbestos fibre to which the sen were exposed and that in the state of current knowledge it would be predictable that there would be a subsequent development of asbestosis in .the people who .continued, to be .employed, coder. those conditions! . .. Brown was present at the sill in or about Bovember or Peceaber 1949. He had not seen exhibit 70 and had evidently not discussed the dust levels indicated in it with the manager. He did not hear of Dr. saint's correspondence with the Department of Health or Dr. Saint's statements concerning the hasards of * asbestos fibre and dust to Bro&dhurst and he indicated that the dust level was reasonable when he was* i. present. He states that there was not then any intention to discard the plant and erect a new plant, and Broadhurst had no authority to suggest that there was. On the latter matter, th^ following exchange took place during Hr. Adams* cross- examination {TI325) by counsel for CSR: "It was the fact was it not that over the years that you were associated with Wittenoom continued efforts were being made by the use of different forms of plant and equipment to suppress and control the amount of dust that was created in the mill?____Well, they did make some attempt but I think the general opinion was then that you wanted a completely new designed still. Z think at one stage you were informed that it was the intention to build a new mill?*------Yes." He was not asked when this information was given to him. Mr. Adams ceased his inspections in 1949, but he renewed his association with 'Wittenoom* for some weeks for the hearing of the Tariff Board Enquiry in 1954. X draw the inference from exhibit 70 that Adams was told of the proposal to have a new mill at least as early as 10th September 1948. X shall deal separately with the health aspects of these writings later. X turn now to the year 1949. 54 ; . .^ , is a report by Workmen's Inspector Hunter of 17th September 1949, stating that the surface plant was just*as dusty ai on any previous visit. 285 Is a memorandum Acting Commissioner of Public Health to Minister of Public Health, 14th November 1949,___referring to Dr Saint's drawing attention to the unsatisfactory precautions against dust taken at the Wittenoom Gorge asbestos works and querying whether the provisions of the Factories Act could be applicable north of the 26th parallel. I expect that exhibit 721 referred to above is in fact a response* to this memorandum. 722 Acting Commissioner of public Health to Dr Saint of 28th December 1949 asking for a report on men with TB and whether this was attributable to the conditions at Wittenoom and querying whether the Factory Act could be made applicable. X interpose to refer to the oral evidence concerning conditions in the mill at that time. Mr. Young told me that he was employed for about 11 months from the end of 1948. He worked in the general store in the settlement, which he thought was half a kilometre fro the mill. In the course of his duties he would visit the will and general office. tie could not recall how often. He described the dust conditions as appalling with dust everywhere. It used to reach his general store. His view was that conditions deteriorated during.the tiae he was there. He was subjected to a searching cross-examination, but 1 see no reason to doubt that he was giving me his general recollections of things as he recalled them. I will mention Mr. Barrow's evidence separately at a later stage. Mr. Axford was employed for some 4-5 months from April 194$. He was a maintenance fitter and spent about 90% of his time in the mill. Be described the dust In the mill (71121) as virtually like a fog generally and when the suction tubes became choked up it was everywhere, it" was just like a dust storm. Be indicated that there were no hoods on any of the equipment other than the fibre aspirating hoods; it was suggested that he was not an independent witness in that he had issued a writ in January 1987 claiming asbestos is and pleural thickening - he has the latter but not the former. He claims he was advised to issue a writ by a certain time as a precaution. I find no difficulty`in accepting, as X do, his reasons for issuing process, and also that he has described conditions in the mill to the best of his recollection. Mr.-Moore was employed between May 1949 and May 1987. He commenced work in the general office, which was about ISO feet south of the mill, as" a clerk. He visited the mill about once per week. He stated that when he first went to Wittenoon he noticed people in the mill were covered in dust, which he said was at times so thick that visibility was only a few yards. although he indicated that this improved within the next six or seven years. He indicated that on a still day a dust pall hung over the mill, and on a breezy day it could be seen trailing away in the air. He was called by the first defendant. Mr. stobie was employed at Wittenooa between September 1947 and October 1958. Re started as an electrician and after some 18 months became foreman electrician. During his early days he went into the mill on many occasions. Be said "it was > pretty dusty**, but this varied throughout the mill, the areas around the bagging area and rolls crusher area being described as particularly dusty. Iti localised areas, conditions improved over the period with the introduction after 1948-1949 of collection hoods over some equipment (T8686). Be was called by the second defendant. Brown was acting manager for about three months commencing December 1949. Be did not accept that the dust was excessive at that time and he said that he would have noticed because he was allergic to dust and used to go to the sill ) frequently. King spent some three months in Wittenoom in 1948, much of this in the mill. He said that parts were clear and parts were dusty, but that dust conditions generally improved. He in fact continued to visit for short periods once or twice per yssr. Apart from the continuing interest in the dust problem by the Mines Department, the AWU and other Unions referred an industrial dispute to the Court of Arbitration in June 1949 (exhibit 714). The matters in dispute concerned claims for allowances, and in the course of that the Union drew attention to the dust hazard and produced a report from a Kaigporlie doctor concerning the danger of silicosis and asbestosis and references to silica dust counts of 30Gppcc in the gold mining industry being greater than the 200ppcc suggested for Wittenoom. 2 mention this matter here to draw attention to the fact that the ' transcript makes, reference to Hr. Broadhurst's interest in the proceedings and at least at one time his presence at the hearing, frost which 1 would infer that he was at least aware of what was there being said. The medical report referred to indicated a period of exposure for silicosis of 15-20 years, with the presence of 15% asbestos likely to accelerate that development and lead to the feoftCttrienbe of a': mixture of - silicosis / and r;aabes tips is * . 2vio not take this as evidence of the truth of what was stated, but simply of what was told to the Arbitration Court and recorded in the . presence of the second defendant's advocate and probably, according to the transcript, in the presence of Hr. Broadhurst. 1 will also return to this when discussing dust counts generally. 723 , Is a memorandum by the Acting Commissioner of public Health to the Minister of public Health of 9th January 1950, reporting on Dr. Saint's report that the conditions of the mill where the ore is crushed are dangerous to health owing to lack of adequate dust suppression measures and asking, Z assume, that the Minister asks the Minister for Mines whether or not ventilation officers have been appointed by the Manager, and, if so, what do their records show as to the ventilation and dust suppression conditions at the mill. 74 Letter Acting State Mining Engineer to District Inspector Mr. Boyland, dated 6 February 1950, referred to Hunter's last visit in September reporting bad conditions in the mill/ referred to Inspector Maas* report in his letter of 14th November (which was not produced); referred to a letter from the Department of Health concerning the danger to health that existed and asked him to consider the appointment of a ventilation officer at Wittenoo under Regulation 153. 724 The Under Secretary of Mines reported to the Minister on 7th February 1950, advising the dust position was being carefully watched by his Inspectors- He reported that in November 1949 the Manager advised the Dust Inspector that the present treatment plant would be discarded and a new one built, but no action along these lines has yet been taken. He indicated that an Inspector would be again visiting and discussing the matter with management and whether ventilation officer should be appointed. a It will be remembered that the first reference to a new mill was made in September 1946 (exhibit 70}. 63 Exhibit 63 is an undated note from Inspector Lloyd to the Manager ABA, referring to the continuing dusty conditions being .detrimental. to .the i.heilth. df:; .the employe6s'.and'stating*. tha;t> by virtue of s.22 of the Mines Regulations Act, "I now reguest that the milling section be totally enclosed by walls and that suitable dust extractors be placed In the roof to draw all dust out of the working spaces of the mill*. 26 The Acting Manager, K.O. Brown, replied on 17th February 19S0 (exhibit 26): "I have to acknowledge receipt of your memorandum of 14th Inst, concerning dust in our milling plant. We are at present engaged in installing four additional large stocking type collectors together with necessa'ry fans, hoods, ducts etc. and we believe this portion of the programme we have set ourselves will be completed within a few weeks. .In addition we have placed on order a further large wet type collector but this may be some months before installation is completes., our object is not only to ensure that the whole of our mill is dust free but also to collect the dust rather than let it go direct to atmosphere to be blown back into the mill building and other buildings. We feel sure that when we have completed the installation you will be pleased with the results. Consideration has been given previously to completely closing in the mill wall instead of leaving a gap near the loor level as at present but we have hesitated to do this because the mill would then be much hotter than it is now and in this climate in the summer time this is an aspect that needs , careful attention. * We trust therefore that you will not insist on having the whole milling section totally enclosed.** 110 ,. This.is a note District Inspector of Mines to the State Mining Engineer, 14th February 1950, which carries the suggestion that the raanageaent was aware of the visit which was forthcoming "and had conditions prepared1*. He indicated that there was a aild gale blowing up the gorge and that there was certainly dust blowing through the Bill, but most of this was natural dost froa outside. Be could visualise that conditions would be fairly dusty norsally and the only way to overcome this would be to totally enclose the. Billing section and install nuaerous dust collectors in the ceiling. However, he did* not know where, they would get, the necessary building. v .ssaterial. Be;indicated* that she had written to management requesting that-they do'these things. I interpose to say that I heard evidence froa sen who worked at the mill at various times that sanagement were aware of forthcoming visits by Inspectors and that prior to arrival of the Inspector an extensive clean-up would take place, and during the visit the Bill would operate at a much reduced capacity so as to avoid as much dust as possible. In 1956, another of the Inspectors at least was aware of the allegations, but he could not substantiate thea. I accept that the witnesses are convinced that these things occurred and that the stories were circulating at the time. The evidence is mainly anecdotal. I can understand (in view of the continual criticism from Inspectors) management would want to produce a clean mill for any inspection of which they were given advance notice and that they did clean up at these times. I am not satisfied, however, on balance, that it has been established that there was a deliberate reduction in production during those visits. 266 . Commissioner ot Public Health Henzell reported to the Minister, 20th February 1950, that he was in Wittenoom at the end of 1948, found the dust hazard in the present plant "must be very serious. The whole, of the surroundings within a radius of one mile or sore were smothered with dust which is produced in the treatment. As far as was ascertainable very few if- any precautions were taken. .Asbestos dust if inhaled constitutes a very grave risk and is, if anything, worse than silicosis-; 53 Report by workmen's Inspector Hunter of about 27th February refers to a note of 14th February (probably exhibit 110), approves the appointment of a ventilation officer and said: "Regarding the mill I must admit that this is too big a problem for me to handle. All I can do * is howl every time I see a dust catcher .left off through carelessness". "267 ^ : Report Stat4 lining Engineer . to Under 'Secretary for Mines dated 1st March 1950, . refers -to exhibits 110/ 26 and 63, and indicates that an instruction is required rather than a request and refers to the difficulty in getting material, refers to the ventilation officer and his * proposal to enforce compliance with the regulations. These reports were sent to the Minister for Health and a note on the file suggests it should be brought up In three months. 64 District Inspector Boyland reports to State Mining Engineer, 19th June 1950, confirming a thorough inspection of ABA with Hunter and expressed confidence that future complaints would cease, noted certain improvements, but stated much more room for improvement and* indicated that he called in the top management and laid down a fairly hard policy and* indicated that he had "already stopped every development place except two until adequate ventilation was supplied". is* unclear whether this latter* comment refers to the mill or the mine or perhaps other mines. In any event, a subsequent inspection by Lloyd in October 1950 (exhibit 71), to which I will refer later, causes me to believe that his confidence was misplaced. Memorandum State Mining Engineer to Under Secretary for Mines, 14 July 1950, encloses exhibit 4, states that he visited the mine on 11th and 12th, reportsz "Underground ventilation appeared to me to be reasonably satisfactory but conditions , in the plant still leave much to be desired. 'This however, is being taken care of and the Manager is giving it every attention. One Warman dust collector has been installed and another was ordered but was unavailable at the time. A similar unit was therefore constructed at the mine and installed. The second warman unit is in transit and will be installed on arrival in addition to the two already in use. Following the Inspector's last visit the management is installing a series of suction pipes in the roof of the building which when in operation will draw off the dust as it forms*. He felt hopeful of future co-operation.. Report District Inspector for Mines to _State Mining Engineer Perth, 26th September 1950, refers to the unsatisfactory dust, nuisance and not enough had been done to overcome it. Referred .that, on the. last visit*., revested certain. altepatioas to avoid dii*t; * fr the . millihg :i , section. Moted that work. had not been carried out .as promised and went on 17th September with the object of stopping the mill until the work was done, but had evidently not done so because there had not been sufficient co-ordination between Inspectors. t District Inspector 1,1oyd to State Mining Engineer, 13 October 1950, refers to an inspection of the underground workings and treatment plant on 13 th September 1950. In relation to the treatment plant the Inspector stated: "From a dust point of view conditions in the mill have' definitely worsened since my previous visit as illustrated in the following 15 samples0. Those samples in fact showed eight reading 10004, four over 410, one 210 and one taken in a fitting shop of 80. The report indicates that the samples were viewed by the management and the report continues: "At present two Warman dust collectors are on the lease and on arrival of three fans which will be installed in the roof of the mill for the purpose of* drawing off fibre these Warman wet dust collectors will be put into operation. It is the intention of the company that in. future control of dust will be done under the wet process and in order to minimise same all waste rock will be eliminated before reaching the crushing section*. 100 This is a report o discussions on sits 24th and 25th May 1951 between Powell {then Managing Director ABA at that time), Bcoadhurst, Brown, Luke and Reagan he latter two being American mining sen employed on contract). By item 6: "Proceed as rapidly as possible with the completion of the dust collecting system as already generally planned, put the Sock collectors into use and also put the second Warman collector now at the barracks store area into use. Alter some dust collecting hoods to avoid the difficulty now experienced in sucking fibre into the dust collecting system*. In this report it was agreed to accept the flow sheet dated 8th February 1951 and to work towards the general aim of putting the .sill into good order and condition and to gradually achieve the flow process as set out in the sheet. The sheet was not produced in evidence. These matters were reported in the context of discussions for increasing^ production- ..and:;;Of 'achieving -; 3,000 tOQs^pe? - annua or even 6,000 tons. An operating1 loss.was contemplated. 107 This is the annual report by District inspector of Mines Lloyd to the State Mining Engineer, 15 th March 19S1, reporting as at the year ended 31 December 1950. Reporting on his inspection in September,' he said ... "... A comprehensive dust survey was carried out in the treatment plant where conditions were found to be extremely bad. proposals are in hand for control of dust by wet cyclone process but unless these are installed on a lavish scale the problem of successfully controlling the dust will remain*. 114 ' '* Report JMF Assistant Ventilation Inspector of Mines to State Mining Engineer,. 21st August 1951, reports a discussion with Mine Manager Thomas and, under the heading 'treatment plant*t "By comparing the results of dust samples taken during this visit with those taken by Mr. Lloyd In September 1950 it will be seen that conditions have improved. * The improvement Is probably due to the installation of .a Warman dust collector (wet) and fans which exhaust to atmosphere above the aill building. The area in the vicinity of the treatment plant appears very dusty and is probably due to the exhaust from the fans in the plant drifting down or being forced down by the wind. The situation of the plant in respect of the walls of the gorge may cause the wind to bear down. It was suggested that some lengths of ducts would carry the exhaust dust higher and in some measure eliminate the dust nuisance.* Of the counts, three ranged between 110 and 155? five ranged between 200 and 250; four between 330 and 485 and one was 820. In dealing with the mine, he indicated that respirators were on order and would be issued. `Brown indicated (at T9487-8)' that this report gives a. wrong impression. In particular, he said that in relation to this and to the consent in exhibit 107 of installation of wet cyclone processes needed on a lavish scale that five Warmans were put in and this was in fact on a lavish scale, 1 note# however# that at best it could - not have been earlier than February 1953 that five warmans were on site (exhibit 659). 267 .-.j V: ' ' A memorandum from Secretary for Mines to the Commissioner for public Health# 31st August 1951# .forwarding a copy of what I .believe is ej&ibit ,114> .reporting 'thafc-.-.swa result; /of- inspector. : Fa^qhney*'s -visit'* a. full-timev venfcilatibn Officer- has been appointed by management, 42 aenzell# Commissioner of public Health to Under Secretary for Mines# 17th September 1951. This Acknowledges exhibit 267# notes that the area invicinity of the plant is still dusty and says: "The interest of this Department is to be understood when it is realised that the hazard from asbestos is considerably greater than that from silica and that we have reason to believe that attention to this aspect of mining operations at Wittenoom has been inadequate in the past1*. 270 Oader Secretary for Mines to commissioner of public Health, 21st September 1951# acknowledges exhibit 42 and forwarded the dust counts taken by Faichney at sill and mine. 271 * ^ --r,;' Under Secretary for Mines to Commissioner of Public. Health# requests Commissioner to make available to Mines Department any information on asbestosis hazard "which you state is greater than that of silicosis**. The Under Secretary advised that this department's technical officers think that such hazard at Wittenoom would exist in the mill rather than underground. 43 Henzell# Commissioner of Public Health to Under Secretary for Mines, 26th October 1951. This is a response to exhibit 271. it refers to the upper permissible limit of asbestos dust for a 701 702 working atmosphere is 176 ppcc and notes that many o the counts are far in excess of this and continues: "The method of count is unknown and although there is no known really satisfactory method it is highly probable that the one used excluded many long fibres from the count because of their reluctance to enter a machine of the Watson Koniaeter type. Unlike normal silicosis where small particles are the danger the main hazard in asbestosis is from the longer fibres and these will probably be in excess of anything indicated in the counts. Asbestosis produces more rapid fibrosis of the lung than silicosis and is more liable to superimposed infection. Xt is therefore apparent on the data submitted that conditions are far from satisfactory and in the interest of the health of the workers, .this Department must, investigate, the matter . .further r*nd press-.sfdr immediate :Improvement :of ' superv is ion and * Work ihg'. cohd.itioas at Wittenooa.* " State Mining Engineer to Senior Inspector of Mines, and in turn District Inspector of Mines, Cue, forwarded a copy of exhibit 43 and noted Faichney's report that he does not anticipate any great asbestosis hazard in the underground workings as there is little boring done in fibrous material. The letter is titled "Asbestos Hazard - ffittenoom Gorge**. Assistant Ventilation Inspector Faichney to State Mining Engineer, 2nd Boveaber 1951. In replying to exhibit.* 701, indicates interest in the upper permissible limit of 176 and mentioned that it was 300 for silica and reiterates the difficulty of finding fibre in the samples. The average levels for mill and mine were 307 ppcc. AC T9489, Brown said that his attention was not drawn to the fact that the average level for mill and mine of 307 which was referred to in this report was just over what he called the permissible limit. permissible limits. X will return to his understanding of 660 This is a report dated 16 November 1951, Dr- Kins, Director o Tuberculosis Control Branch to Commissioner of Public Health, dealing with asbestosis, concluding: "It takes on the average between five to ten years for asbestosis to develop, although it may occur in as short a period of two years where working conditions are bad'. Whether the disease can progress after contact is broken with asbestos dust is still . unsettled. Death results from tuberculosis or non-tuberculosis infection, congestive heart disease or other intereurrent. diseases. The measures listed for the prevention of silicosis apply also to asbestosis". Dr. King in fact gave evidence in support of this opinion. His specialist field was in tuberculosis. 661 . Dnder secretary for Mines to Commissioner of Public Health, 21 Decestoar 1951, acknowledged receiving Dr. King's, report (exhibit 660) end notes that. King deals with chrysotile rather than erocidilite; t - pause' . to1 give a- * resume * of the'- oral. evidence " 6v conditions at the mill during the. period 1950 and 1951. Mr, Barrow was employed during both of these years, as * well as 1949 and perhaps 1948. t+ He could not isolate any * particular times, but Ms evidence disclosed various areas that were dusty and the pall of dust over the mill which* depended on atmospheric conditions. He stated that whenever the mill was operating the dust was "not exactly a pea souper but it was reasonably thick", with visibility at times down to about 10-2S feet. The dust, he said, just hung over the gorge like a big cloud. I will detail his evidence elsewhere when dealing*with other matters. .. Mr. Wilson was at Wittenoom from 1949 until at least 1955. He went as a foreman and until 1952 was mainly eapioyed in the town- He used to go to or past the sill, however, three or. four times per week during his early years (T675). Ke described a -big cloud of dust". This could be seen halfway to Che mill site. Be described the whole surrounding area as "a dust environment*'. He did not notice over the time that he was at Hittenoom any improvement in the level of dustiness. He could not recall any hoods over primary and crushing areas at any time 1952-56 (T679), and he said that all conveyors were open. He helped instal the new surge bin and a new cone crusher. He also frequently repaired holes in duct work on aspiration ducts to cyclones, which were often repaired by stop gap measures until maintenance day (T6Q4). Be became filthy when working in the mill. Be also described being involved in building a bag house that did not work* Much of his .evidence was canvassed in cross-examination# but .as-,, gounse1 ; foe-.. the second .. dgfendant said. at ,; when: he . objected to a question on dust* conditions in re-examination. Hi1sot was not cross-examined about dust conditions in the mill. Mr. Whitmaker went to Wifctenooa in 1948 and, after some' time, he was employed as a truck driver carting tailings. Be went north to Port Bed land in April 1951. He returned to Hittenoom in December 1953 and remained until November 1959* -Curing his first period he used to empty the.tailings bins, which were dumped into his truck by a chute. Some of the fine tailings at. times contained sufficient fibre for it to be recycled through the plant. Not unnaturally, he said he used to be covered in dust, these operations were carried out in the immediate vicinity of the mill. In the main, Mr. .Brown's evidence remained the same. He said that on the occasions he was on site the mill conditions were reasonable. He had no difficulty seeing in the mill - bis glasses were not dusted in any way. He detailed bis view of the flow sheet in this period, which does not really differ from that suggested by the plaintiff's witness. Dr. Jeffrey, who prepared it from contemporary documents. The main difference is not in what the flow sheet discloses but rather what it does not disclose. It is true that often a flow diagram will not necessarily be concerned with items of dust control or dust collection. This is not always the case but it is not a matter that is in dispute. It is Mr. Brown's evidence in the main that at all times between .194? and 1952 there were two cyclones connected to hooded' ore transfer points within the mill aspirating dust only* and he said there were three fibre aspirating cyclones Which exhausted to secondary, dusp. collector? feeJog either Muit'tdlones^or. later J Warmans and at times a bag house and van Gaidar socles. Much of this is in dispute. The most important area of dispute for ay purposes, is the dust collecting equipment and I will deal with this when discussing that equipment. I return to the contemporary writings. 58 .Report by Boyland, 25 June 1952, on a visit made 14th May 1952, indicates: "Several additions have been made in the sill and the dust hazard again became evident. I have now instructed the company to totally enclose the mill section and place larger extractor cyclones." 273 * Faiehney, Assistant Inspector of Mines to State Mining Engineer, 14th August 1952, reports on an inspection from 28th July to 2nd August, and on the treatment plant reports: "Following a request from our Mr. Boyland, work has commenced on the installation of 48" diameter Richardson propellor fans in the roof of the mill building. The mill is to be enclosed and those fans are to exhaust the dust. Besides the dust which is liberated in the mill each time the ore drops from one section t another, the dust which is exhausted to the atmosphere from five small cyclones drifts down. In the vicinity of the mill building it is his glasses were not ousted in any way. He detailed his view of the flow sheet in this period, which does not really differ from that suggested by the plaintiff's witness, Dr- Jeffrey, who prepared it from contemporary documents. The main difference is not in what the flow sheet discloses but rather what it does not disclose. It is true that often a flow diagram will not necessarily be concerned with items of dust control or dust collection. This is not always the case but it is not a matter that is in dispute. It Is Hr. Brown's evidence in the main that at all times between .1947 and 1952 there were two cyclones connected to hooded' ore transfer points within the sill aspirating dust only, and he said there were. three fibre aspirating. cyclones which exhausted to ; <*;'. .** -`"'Tv ' secoiid'a^y' dust .' collectors^ being either Hulticlones or' `later Warsans and at times a bag house and van Gelder socks. Much of this is in dispute. The most important area of dispute for my purposes is the dust collecting equipment and 1 will deal t with this when discussing that equipment. I return to the contemporary writings. 56 Report by Boyland, 25 June 1952, on a visit made 14th Hay 1952, indicates s "Several additions have been made in the mill and the dust hazard again became evident.' 1 have now instructed the company to totally enclose the mill section and place larger extractor cyclones." 273 * ' Faichney, Assistant Inspector of Mines to State Mining Engineer, 14th August 1952, reports on an inspection from 28th July to 2nd August, and on the treatment plant reports! ^Following a request from our Mr. Boyland, work has commenced on the installation of 48H diameter Richardson propellor fans in the roof of the mill building. The mill is to be enclosed and those fans are to exhaust the dust. Besides the dust which is liberated in the mill each time the ore drops from one section to another, the dust which is exhausted to the atmosphere from five small cyclones drifts down. In the vicinity of the mill building it is very dusty, especially the road past the Bill where each tine a vehicle passes a cloud of dust arises. proposals are in hand to lead the exhaust from those cyclones to an 8*6" diameter 18* high cyclone, then through a trommel to four field dust collectors. The object being to capture the fibre which is now being lost, also to eliminate some of the dost.** X pause to note that Hr. Brown's recollection is that so cyclones were exhausting to ataosphere (T9566). They were exhausting to a secondary dust collection system (T9569). ' It was his evidence that the reference to `five small cyclones* was a reference to sulfciclones. I will also return to this. 101 ( District Inspector-. Boyland to State** Mining* Engineer, 17th September 195?, dealing with a recent inspection*: "Conditions here have improvedstill more. At my reguest the bill building is being totally enclosed and a great improvement can already be seen in the .dust control*; .. - Several, 'nitrations ? in. scrdfcmiag ;and' lagging ibr* been made arid . this7 has _also lessened the* dust nuisance". He concludes that "very few men leave' tfittenoos now". 55 X report by District Inspector Boyland* 16 ijuly 1953, referring to * a visit 29 April 1953* "Hammermills have been taken from the circuit and a Symons crusher installed. Mill extensions and alterations are well under way. Dust extractors and eliminators are operating extremely well and the dust nuisance is the mill is practically nil. a water shortage was causing concern,, 102 Report Faichney and others to State Mining Engineer, 19th August 1953, concerning a visit on duly 28th to August 4th, 1953, dealing with the treatment plant. They reported: "Extensive additions and alterations are being made to plant. Included in the additions is the installation of a cyclone dust collector and three field dust collectors. These to connect the five small cyclones which exhaust through the roof of the building. This should prevent much of the dust which is at present exhausted to atmosphere and drifts down and back into the mill. (This installation should now be in operation). Inside the mill hessian (and wool bale) walls have been erected. These enclose certain sections of the plant and act as ducts to the 48" diameter Richardson propellor fans installed in the roof. These fans also need exhaust ducts to carry the dust into the air and away from the vicinity of the mill* The aiXl has been enclosed on two sides and according to reports this has had a good effect on the amount of dust in the plant. I consider the worst feature of the mill is the cloud of dust which arises from the sill and then either drifts down to the ground or blows down the gorge. Zt seems to have a demoralising effect. By requesting that extensions be added to the exhaust ducts it is hoped that the dust will be taken away from the vicinity of the Bill. The attached sheet shows the dust counts, recorded-in the bill. These counts are high but possibly the Improved, dust collection set-up will improve conditions in the all!** \ .The report .indicates that on a,calm sunny day the /.dust, count outside;* the, mill, office:* was) >20, -.os' .thfe. primary picking '60, * '.cm' the' conveyor 'belt' operator's platform 170, on the vicinity of the .fibre cleaning screens ISO, on the floor near the bag fibre store 170, on picking top grade fibre off Ho. 7 conveyor 470, secondary picking 1000*, on the floor near the Symons crusher 960, on the floor vicinity Ho. 2 rolls 1000*, on the vicinity Kubit Bill* 1000* and bagging fibre 3rd grade 980. Brown again says the reference to five small cyclones is a reference to multiclones <T9506), and he makes reference to the change in impetus from the original design which was based on natural ventilation within the mill. Be was critical of the direction to enclose the mill. Brown*s evidence concerning the `five small cyclones* is In conflict with the defendants* amended pleadings and particulars which specified that these cyclones were fibre collecting cyclones. In closing, counsel for ABA opted for an acceptance of Brown's evidence rather than the pleaded case in that regard- 56 Soyiand to State Mining Engineer, 28th October 1953, noted an increase in production, good underground conditions, "but continual alterations and additions to the milling sections necessitate the removal 5 various sections of the mill walls and the dust menace was again prevalent. New treatment plant construction is well under way and the plant will again be totally enclosed. The dust will again be under full control**. The 'new treatment plant* is a reference to 'more .equipment to cater for increased production in the Wittenooa mill. Faichney to State Mining Engineer, 19th January 1954, reported on a proposed visit to Wittenoom, noting that previous visits had been made during winter seasons when climatic conditions were ideal and he considered going in February. Faichney and others to State Mining Engineer, February 1954.. Annual ventilation report for various sines, dealing with Wittenooa, Z believe, as at the end of 1953s "In the treatment plant extensive additions and alterations are now in progress . The five small cyclones which exhaust through the.roof of the mill are to be connected to a cyclone `dust collector and three field dust collectors." 'Report -vFaichney to .'Sthfce34*: Mining-' .Engineer,. 24th February' 1954,. on his visit 9th to 13th February, under the heading 'treatment plant's "(1} Most of the ducts from cyclones etc. projecting through the roof of the plant building have been connected up and conducted to three. Field dust collectors. Considerable dust is ejected from the exhausts to these dust collectors and this dust tends to drop down and re-enter the buildings. I have requested that more duct be added to these exhausts. (2) Similarly, to take the dust away from the vicinity .of the buildings the 48* diameter fans installed in the roof require casing and ducting. This has been requested. These roof fans, of which there are four, are intended to draw the dust out of the plant generally and from the vicinity of certain dust producing machines particularly. . 2n this regard a large intake duct made of hessian has been erected up to each roof fan. . (3) The metallurgist will instal in his plant a suitable water spray if one can be recommended. In this regard it is intended to forward a drawing of the compressed airwater blast as used by Gold Mines of Kalgoorlie Ltd. If this is suitable and no accumulation of water occurs on conveyor belts much of the dust in this plant may be eliminated. Attached please find a copy of dust counts recorded at underground working places and in the treatment plant. For purposes of comparison dust counts recorded in the plant at my last visit in July 1953 are shown in red. These counts show a decided improvement. However, there appears little change in the visual appearance of conditions in the plant." The comparative dust counts did show improvement. Two were at 50, one at 150, in the interior of the mill 220, the exterior of the mill 280, number 5 and 6 screens 380, Ho* 1 Kubit sill and screens 400* and Ho* 2 Kubit sill and screen 460. ` y 275 Faichney to the Manager ABA, 26 February 1954, forwarded for the attention of his ventilation officer, various texts on .ventilation and mine plant design and a copy of the dust counts and \ 1 temperatures. recorded in,exhib'it*. ,27.4 >*' 19 Ibbotson, * inspector of-Mines at Ciie, to State Mining Engineer, 2nd August 1954*' Be reported the underground workings in very good order and saidi uThe milling plant is disgraceful* Some sections have been hooded in with canvas curtains but a severe dust (or fibre) concentration pollutes the entire plant. consider that the most effective remedy would be to exhaust large volumes of air through the roof of the mill building. The sealing of the > walls should be done in such a manner as to permit intake air at those points which would carry the dust direct to the exhaust openings." Ibbotson gave evidence that this was his first visit. Brown expressed disappointment (T9504) that the Mines Department had insisted on enclosing the mill. . 276 Faichney to State Mining Engineer, 11th October 1954, detailing dust "counts recorded at treatment plant 22nd September 1954 and referring to ventilation requiring attention in the record book, experiments in .the first stages to evolve a wet method of treatment and recovery of fibre. Outside readings were 40, 90 and 100, probably due to mill exhaust. Internally they were 250, 250, 1000-f, 1000+ in the vicinity of the rolls and the Kubit mill and 100 near the bagging section. Reference as made to the two heavy readings and that those areas were ventilated by roof fans and that exhaust ducting needed repairs. 20 Report of District Inspector of Mines Ibbotson to State Mining Engineer/ Ilth June 1955, relating to inspection on June 1st when the Inspector drew the attention of aanageaent "to the very unsatisfactory working conditions of the Billing section. I pointed out that no effective modification .aimed at the eradication of dust had been achieved during the 11 sonths since sy initial inspection. Wanted the company's future intentions and if these not received by the end of June &ay be compelled to order closure of the Billing section.1* Be said in his report: *1 an advising you of this Batter now. The repercussions could be quite serious, However, the working .conditions are disgraceful and X consider chat X would be failing in ay duty to have taken a sore lenient attitude." Be reported that the underground conditions were as good as he had seen in . any Bine. in this .state. ,,r' v >: Mr. Ibbot'son gave oral evidence at the trial, to which I will refer later. 21 Acting Manager Thomas, ABA to District Inspector of Mines, , 21 June 1955; This is. obviously in response to Ibbotson* s threat outlined in exhibit 20: Dear sir. In conformity with your request in our Mine Inspection Record Book, we wish to advise that the following work has been carried oat on the dust problem in the Mill. a). The suction ducts from the Kubit sills have been redesigned and connected to independent cyclones, b). The suction pipes from the Trailer and Symon Crushers_ are now connected into tfo-5 Field collector, giving greatly improved results. c). d). no.1 Field collector-has been connected to tto.l Rolls discharge, Bo.2 Soils feed and discharge, and Bo.2 Trommel feed and discharge. Dust hoods have been fitted over the feed entrance to the main bagging trommel - 55. e). The dust fans Trommels have maximum limit. over been So.3 ana Ho.4 speeded op to f). A regular check on the field collectors has been' instituted, with a regular . sludge pumping programs. g). Duct work is being inspected daily for obstructions. The above changes have greatly improved conditions within the Mill, and. our engineering staff, in conjunction with the Mill Superintendent,are investigating all possible avenues of improvement. Should the tariff enquiry prove favourable, we should be ) in a position to proceed with a wet silling circuit, in which case the dust hazard should, become a thing of the past.* 279 ,Paichney, District Inspector of Mines, ' ; Kalgoorlie, to . Manager ABA,, 26th July 1955, aqti*^'avprppb.sal*. tq^iieit'^go/AMgiis^'-aad^, 277 Faiehaey, District'* Inspector of 'Hines,,.*.. Kalgoorlie, 17th August to State . Mining Engineer, 1955, * noting a visit 2nd to 6th August. Be reported conditions . in ' the treatment plant were such the sane as on previous visits, referred to Inclement weather and the proposed alterations for wet treatment, hoped to be in operation by February 1956. There were showers and moderate winds at the time and counts at final bagging section were 380, and in the vicinity of the 1 and 2 rolls ) and 2 trommels and 1 Kubit mill and screens the readings were 1000+ in each case. Z should note that Hr. Zbbotson was a District Inspector of Mines stationed at Cue. Bis district extended through the Murchison and pilbara Goldfields. Hr. Faichney was District Inspector of Mines in Kalgoorlie and he was al'jfo a ventilation officer* "appointed by the Mines Department. He was responsible for the dust counts taken f \ during his period, I believe that there were times that \ Mines officers did not liaise with each other about proposed inspecting or proposals they wanted introduced. 56. 57 Boyland, District Inspector, to State Wining Engineer, 28th June 1956, reporting oft a visit 31st May and 1st June 1956, reports on an air of optimism and good underground conditions and saidt "This good work however is offset by haphazard experimental work and general dust conditions in the sill. It is evident that several attempts have been made to el ter the flow sheet with, 2 trust, a view to eliminating dust, but up to date results have been far from satisfactory. Experiments are continuing with wet processing.1* 24 By a memorandum dated 22 October 2958 from District Inspector, Cue (Hr. Ibbotson) to State Mining Engineer, under- heading * re Dust nuisance - ABA Ltd Witfcenoom*, Mr. Xbbotson reported in the context of some of the history since his first visit. &e said: "At the tine of my initial visit to ttittenoo* In July,- 1954, X was staggered to : see the extremely bad working .conditions in the .milling section.. Xt was : 'v.apparent', to 'We -thea -^air ^e^eendittehK*'^ f .2 saw.' then- oust have*' persisted for* some bine so I decided to contact' the Senior Inspector of Mines my predecessor at Cueand ascertain what line of action he had adopted regarding the Wittenooa mill. On subsequent visits the company was experimenting with a wet treatment process and it seemed likely that this method would ultimately replace the dry treatment. This would have virtually eliminated the dust problem. Because of this probable eventuality I was tolerant regarding the dust question although 2 always pressed for more effective dust control. Later, when overseas markets were established and I was told that the newly acquired clients did' not want 'wet' treated fibre I insisted on better supervision of the milling process and close attention to dust control. As a programme of increased "production was to take place the dust concentrations could be expected to increase also. - To overcome this problem the manager told me that a system of Roto-clone dust collectors were to be installed at as anticipated cost of 50,000 Pounds. During the period which elapsed from the placing of the order until the final installation 57 of the Koto-clones the dust problem became very serious . Union representatives wanted me to order the management to reduce production to the point where existing appliances could maintain satisfactory working conditions.* The future of the . industry appeared, at that time, to rest with the establishment of the overseas market? and it was essential to supply in full all of the initial orders. A Board of Reference was constituted and it was agreed that employees who had to work in the dusty conditions would receive extra payment in the form of penalty rates. I was not at all in favour of ) this, and Regulation 150 of the Mines Regulation Act does not permit work to be performed in excessively dusty places, 1 told the manager that X would enforce this Regulation whether or, not the employees w^reprspared;, to accept penalty rates, for *, sub^sfcaddjaricbnditions i* ;', .;' i note at this time that the `wet process* experiments did not get underway to any major extent until after the time with which I am concerned. And they came to nothing because the customers would not accept the resultant product. Also, the Roto-clones referred to were not installed until at least 1956 or 1957, again outside the relevant time.. ) I have, in the main, rejected evidence of events occurring after October 1955, unless those events can in some way be shown to relate to matters in issue. The transcript will indicate where this has occurred. Before detailing Jbbotson's oral evidence, 1 should complete the oral evidence concerning conditions at the mill between 1952 and 1956. Mr. Bee ton went to Wittenoora in June 1954 as a 14 year old, and commenced work at that age in January 1955. He remained in the workshop, which was the old power station, as S3. ) ***,* a trades assistant for some five to six months. He considered that it was dusty in the mill more so than in the workshop. In the workshop, dust conditions depended mainly on which way the wind was blowing. He used to sweep the workshop floor every morning. It was dusty and a dark blue in colour. He said that at times in the mill, in certain places, visibility was down to a foot - "on a full production day the mill was very dusty inside4*. Be described that, to get to working places within the mill, he and the people whom he was assisting had to push thick dust aside with their hands* Be said that*it used to get sufficiently thick on the roof of the mill to, fill in between the corrugations* so as to give the." iron '.roof : a*1 flat *' appearance; * He' can ..remember*' fibre . falling out from the trommel straight in front of the bagger's face with fine dust from another part of the trommel going into bins. Be said the fibre was scooped up by the baggers using their arms and scooped into a bag on rings, and then rammed into the bags with a pick handle with a piece of steel on the end* Be described this as a continuous operation and that he rarely saw men wearing respirators. Mr. tee was present for some 18 months. In his evidence, he said that this was between 1944 and 1946. His employment card, which was subsequently produced, indicates, however, that he was precisely 10 years eut_ and that his employment was * between 1955 and 1956. This was not taken up in cross-- examination. Counsel for the plaintiffs now says that it is more likely that he was in fact 10 years out. Be worked as a bagger at some times. His description of the dusty conditions would be consistent with that of either period. I believe. 59. hoover, X should ignore his evidence, except to the extent that, whatever the period, it is at least consistent with witnesses who described conditions during both periods. The late Mr. Keys was employed between August and October of 1955. Be was employed in the mill at the bagging section for a period of approximately six weeks. Be recalled stamping down the fibre into bags and he recalled a lot of fibre in the air, "sort of covering me; not -- I was not inundated; I wasn't smothered in it; but 2 can remember clearly the fibre in the hair and clothes and the immediate area". Mr. Reichold arrived sometime about December 1955. He was engaged in Perth &s a mill hand. He was then aged SO years, ^ and.>had/ Jusfc. .*rrfv<ed from Germany with.'v accounting ^ qualifications, which were not recognised in Australia: on arrival at the mill, and on being shown his wor* .place, he refused to go into the mill because of the dusty and dirty work environment. , After some discussion between Mr. Allan, the mill superintendent, and Mr. McKenna, the mill foreman, he was offered, and accepted, employment in the store next to the ) mill. I need not consider his evidence as to conditions in 1956. Mr. Knapinski arrived atwittenoom in September 1950. He said that he was contractually bound by the terms of his immigration approval to stay for two years. In fact he stayed .at , Wittenoom until 1957. -- R was - a qualified boilermaker/welder. Initially he worked in the workshop building heavy boiler equipment, in 1952 he was made leading hand responsible for maintenance in the mill. He described the mill as dusty in general terms, with more dust generated at the bagging station, and, when the wind blew from the old power station end, the dust moved around the mill - "the whole mill was having the dust1*. He indicated that most times the area looked as is depicted in photograph 6 of exhibit 2 (that photograph depicts what Z would describe as a very heavy hate which obscures vision to a marked degree). I should note* however, that most of the photographs in exhibit 2 show the immediate environment outside the mill. He spoke of occasions of over-production causing clogging of equipment which, he indicated, occurred more often at night time. This would call for recycling of material, all of which generated more dust. He spoke of using compressed air from his exy torch to blow .dust: away from areas, to.W.r.epaire^.^ :A? -with ,bt^er witnesses, I will return to Knhpinski*s evidence when discussing. other, aspects of the claim. I limit my present references here to general description of dusty conditions. Mr. Ibbotson supported the comments made in his reports. It was, according to him, a plant operating with excessive dust. Be concluded it had gone too far when he saw it in 1954 to do anything about it. Dust equipment introduced was simply not doing its job (T667). Frequently the equipment was removed to facilitate maintenance and it was not put back (T6S2). Be was critical of supervision within the mill and wanted someone to undertake responsibility for this (T654). " ^Mr.* Brown's general assessment did not much change. He accepted that there was a time in 1953 when changes were being implemented that conditions deteriorated; but, in the Bain, he considered that the reports made by Mines Department inspectors exaggerated the position. Brown visited the site Oi . about twice per year for short periods each tine, apart from the three months he spent there from December 1949 to March 1950. Dust Counts 2 heard much evidence concerning the methods of assessing the quantity of dust particles in the .atmosphere. 2 have already mentioned briefly some dust counts that were taken by ventilation officers within the Mines Department. Counsel for ABA submitted that I should ignore this evidence as being irrelevant. Be said that the equipment used was inadequate for the purpose, was only used spasmodically in varying climatic conditions so as to make comparisons useless and, . accordingly, telle .me almost nothin#* : -. ../. ** v y - Theta ie; something in; all of the- complaints he makes, but, in my view, his conclusion is not one which X should It is not in issue, and the experts accept, that the Konimeter as a dust particle reading instrument had its drawbacks and this was accepted, even in the 40s and 50s. None the less, it at least gave some guide. Mr. Brown hinted that ABA took its own dust counts. This was no more than a hint. I have not seen any contemporary records that this was so, nor did Brown suggest what use he would have made oi any information given by such a method. He said that he relied upon, ,,hls visual perception to estimate dust* levels. His initial standard in the 1940s for a safe limit was `a medium silica hazard* which he took to be 20,000,000 ppef. This* converts to 704 ppcc, based on the calibration of the Konimeter. The translation of cubic centimeters to cubic feet is an arithmetic one with 5,000,000 ppcf equivalent to 176 ppcc. Mr. Brown's safe standard had changed by about 1955 to a high silica risk, which he took to be 5,000,000 ppcf. An American writer. Or. Dreeson, had introduced a threshold licit of 5,000,000 particles per cubic foot in 1933 and, whether the threshold licit recommended in Australia arose from that source or from other sources, the fact is that it was stipulated in regulations in Victoria, was recognised by officers in the Public Health Department in Hew South Wales and by officers in the Health Department in Westers Australia. For the latter, see exhibit 43. This was apparently not universally accepted. For example, in Jbne 1949,. reference had b'eert' Bade to 300 and* 200 ppcc for silica and asbestos respectively (exhibit 714 above). It is....true that most of the readings referred to in the literature related to factory conditions. Notwithstanding that, Z have difficulty in accepting the closing submissions of counsel for ABA that the readings are irrelevant for the purpose, of this case. There is no reason in logic that readings should differ between various environments. And although it is true that in the asbestos factories the level of fibres might be thought higher than at wittenooa, that is not universally the case, especially in the bagging areas Vhere the fibre is as pure as the.system will allow. This was n , accepted by Brown (T7291). it would also apply to a slightly lesser extent in the areas where fibre is being recycled, and in areas around the aspirating shakers where the very nature of the operation would also indicate an extremely high percentage of fibre. 63. Mr. Brown's assessment of dust counts was a visual one. That is not to be criticised because in fact it was* not unusual for visual perceptions to be relied upon at that time, and also the Konimeter did have drawbacks as 1 have mentioned. Of 20,000,000 ppcf at T7751, Brown said that he knew what it looked like - "You are conscious that- there is dust in the air*1. He said there is "no visibility difficulty. I mean you can see perfectly well". Be indicated that you can see in it well with glasses, indicating, 2 believe, that the dust did not settle on the glasses. Se described 5,000,000 ppcf as "very clean air". You couldn't see it generally unless through a shaft of light or sunlight. . Sven allowing for the disability that the Kooiaeter does not pick up the larger fibres, -when taking its saaple for counting it it is still a useful tool and it would indicate that its cut off point of 1,000 ppcc, which is equivalent to approximately 28*000,000 ppcf, would be well above Hr. Brown's own perception of dust in the mill. Findings of fact as to dust 1 find as fact that, at most times, the dust in the sill was excessive and in fact excessive to a narked degree. 1 also find that dust in the immediate vicinity of the nil! was at &any tines excessive to a marked degree. It is also inevitable that in many areas within the mill the dust generated contained a high percentage of fibre. 1 do not accept the suggestion by the defendants* witnesses that, as the host rock averaged only Si or 6% fibre, the dust liberated would have no more than 5% or 61 fibre within it. In sone areas there would be less fibre than 5% in the dust and that would be. in the main, in the crushing areas, whereas further along in the process within the mill the dust would contain a greater percentage of fibre, depending upon the nature of the particular process, until at the end at the bagging area, the dust being liberated would contain a very large proportion of fibre. Likewise outside the mill there would be a relatively large proportion of fibre, this, of course, would vary, and 1 expect that, towards the end of the relevant period, the* fibre in that dust would have been reduced because of the imposition between the exhausts from the fibre producing cyclones of various wet collecting systems. Taking into account all of the cautions 1 have mentioned earlier, the evidence of persons working in the mill is overwhelmingly consistent. That evidence is supportedby the contemporary writings of inspectors, now dead or unable to be called, it is supported by the writings and the evidence of two inspectors, Adams and ibbotsoa, which I accept. it is supported by the evidence of S>x. Saint, which 1 accept. It is supported to an extent by surrounding circumstances, for example, the Union action in seeking a dust allowance. Both Mr. Brown and Mr. King tended to suggest that the dustiness was exaggerated, but it seems .to me, and I so find, that either the recollection of each is faulty or, alternatively, the times that they visited the mill were on occasions when conditions were exceptionally and unusually 'good. In any event, Mr. Brown's assessment of a safe upper level of 20" mppcf, which he described visually, has probably colooted his whole perception when he endeavoured to place a value judgment on what should have been appropriate. Using the 65. descriptions of witnesses who worked in the mill when they described the dust, I have little difficulty in finding that the mill usually operated in conditions where the dust counts in some parts of the still would, based on Mr. Brown's, visual assessment, have been markedly in excess of 20 appcf. RESPIRATORS 2 have already indicated that I would deal separately with the issue in the trial concerning respirators. ^ Pleadings The plaintiff alleges in its particulars of negligence, para. 18 cl.B{b) and (i), a failure to provide any or any adequate respirators and a failure to direct and enforce the wearing of them. Both defendants in the. original defences denied these allegations, by .which l take it to mean that each defendant denied that it failed to provide and denied that it failed to direct and enforce the wearing of then. ) Each defendant, by amendments made 15th Decenter 1987, continued these denials, but each made positive averments by which each gave particulars of care and precautions taken to avoid foreseeable harm, including - "The fact that there was a high turnover of labour at the mill and a significant proportion of such , . personnel was unable or ...unwilling to follow --' instructions or directions such as the direction to wear respirators or masks and the direction not to remove dust protection flaps, hoods and curtains on mill machinery." The plaintiff sought particulars of that allegation, including a request that, if it was alleged that directions to wear respirators or masks were given by or on behalf of the first defendant or the second defendant, to give particulars in the usual manner. That request was objected to on the basis that it was irrelevant. .'Each defendant also pleaded in its amendment that it provided respirators and replacement parts for such respirators and endeavoured to encourage the plaintiff and other employees to wear suitable respirators or masks. Requests to both defendants for particulars in the main were set with the response that the requests related only to matters of evidence. It cat* be seen that the amended plea lacks any specific particularity and in .the main most of the ; plaintiffs* `wl toesses as to the` pr imary facts ha cotopleted their~evidence' prior to the amendment and it can also be sees from a summary of the evidence given by some of the witnesses which I have set out below that, it is difficult to assess, from the crossexamination of the plaintiff's witnesses, what was the positive case being asserted by the defendants prior to 15 December 1937 when the amendment was made. 2. The Evidence (i) Barrow. Be was employed by the second defendant at Wittenooa during 1949, 1950 and 1951. It is in dispute whether he was employed there for most of 1948. At 261 he said that no respirators were worn in ^ the mill, no respirators were in the store, no respirators were issued, one chappie * used a handkerchief. ..... . T262 - he never wore a respirator. T265 - no instructions re masks, available in store. none were He was not cross-examined in this respect by the first defendant who, of course, relied upon any cross-examination by the second defendant. lit c ross -exam inat ion by the second defendant following exchange occurred at 335s- the "When you arrived at the mill work Mr. Broadhurst gave instructions did he?----Yes. site to begin you some You say that he did not tell you when you arrived that it was advisable to wear a respirator?---Respirators were never thought And you didn't think t it-either did you?-- No." At T355 - Barrow agreed that he did not suggest to anybody that respirators were required and did not ask for them. At T371 - it was put to Barrow that in August 1951 the operator of a cleaning screen wore a respirator. ' Barrow had no recollection of this. Be indicated that in any event that person did not get it froa the store because there were no respirators in the store. .At' T374 was.'..*?t .to, Berrdw that'-if' Broadhurst; was available, to give evidence lie would'say- that respirators were available to workers at the nine and the mill at least froa the late 40's to obviate the inhalation of dust but were not offered to office workers. The answer was ano respirators in the stores*. {Broadhurst was manager at Wittenooss. Be died in 1S82). At T374 - it was put to Barrow that if Millington was available he would say that "if respirators were issued; in the first instance they were not worn very much because they were pretty warn conditions in the soaner and it was a damn sight easier to breathe the dust than breathe through a respirator". In answer to the above question at T375, Barrow said "no respirators, had to go through the store and did not", (Millington died in 1985). At T375 - it was put to Barrow that if Allan was available he would suggest that management tried to persuade people to use respirators and were able to persuade some of the men to use respirators part of the tine. It was suggested that Mr. Allan would be in a better position to speak about attempts to persuade people to use 68. respirators. Barrow agreed with the suggestion, but he said there would respirators in the stores to issue. latter be no (Allan was mill supervisor. 1987). He died September At T393 - in re-exaoination Barrow described the checking system through the stores and said "no respirators at all". He also .said that none were requisitioned. ^-- <ii) Beeton. He worked near the sill late 1954 and early 1955 and again between Kay 1956-December 1957 At T508 he said some persons wore respirators at the bagging station, some did not. Be also said that other people wore Basks and some did not. Be often wore a mask but he used to get a sweat rash and remove it. T535 - did not wear a aask In bagging operations on his second period of employment. TS38"-'did* ftpt shot down*: the equipment jnst to.do . temporary'repairs while it1 s still Vgoihg until naintenance. day. T542 - he was at the *Bill between Kay *56 to the end of *57 on his second stint. T545 on his first stint as a junior labourer, was at the sill January *55 to Hay *5Sj he could not recall whether people wore respirators in the sill then. TS59 - talks of a shortage of respirators and filters. fiii) Wilson. He worked at Wittenoon between 1949 and July 1956 - at times after 1952 in the Bill. At 685 Wilson said that the baggers had soae respirators but they were not consistently worn. Be was not cross-examined by the second defendant regarding this or the fact that he wore a handkerchief over his face when in. the sill. (iv) Reichhold. Was employed'in Berth in late 1955 as aallihand. When he arrived about December he took one, look inside the sill and left. He then had a discussion with senior personnel and agreed to work in the store. He left in 1958. He indicated a shortage of Basks and filters, but in his time he indicated that they were not such worn. I have, in the sain, ignored evidence of events after 1955 unless it can in a negative sense throw light on what equipment and plant existed in the still during the periods 1949 and 1955. 69. Adacs. A District Inspector of Mines. gave general evidence of the custom of men to avoid wearing respirators if they could. He recognised in 1946 that the dislike of men wearing them was outweighed by the advantage of health protection. He regarded the solution as management having the responsibility of seeing that the various machines released as little dust as possible. Counsel for 2nd defendant at T1639 put to him that in the early period the respirators were primitive and uncomfortable. Be agreed and thought that that remained the position thereafter. <vi> Beys . Employed August-October 1955. T861, 7862 (i) no warning of hazard (ii) not provided with a mask. Ko cross-examination by 1st defendant. on* these aspects. . A : .* . . . . ;*-v Cross-examination by 2nd defendant, 7891. 7891 - admits to the, possibility of people ia the mill wearing...masks or outside the bagging area, but can't remember. At T892 agreed* it possible but does not recall seeing anyone wearing a mask or respirator. Bo. cross-examination suggestion that there masks. about a warning or was a direction to wear (vii) Lee. He said he was in the mill for a period of 18 months between 1944 and 1946. 7110? - worked as s bagger for a time; the bagging was dusty. Til10 - clawed the asbestos down when the chute got blocked. 71111 - the dust got in through his nose, no masks there, were not told to wear a mask and when he was a leading hand or a shift boss he did not tell baggers to wear a mask. There were no masks. Be never saw anyone wearing a mask but he used a handkerchief. He was not cross-examined by the first defendant regarding casks. 70. Till? - in cross-examination by counsel for the second defendant, he stated that he was involved in bagging on and off all of the time he was there. He agreed with counsel's suggestion that the mill was primitive. T1118 - asked whether.he had seen anyone wearing ,* a mask, he said not aver. No other cross- examination regarding masks or directions. I "have already mentioned that M?t tee'""i&Sf* have"TlSaen 10 years out in the time he was at the ail!. I have no difficulty, however, in accepting his description of conditions and his comments about Basks. <viii) Oxford 1 Till? - in the mill between April *49 to October *49,' although a suggestion of February to April '49. 71120 .was ,a maintenance fitter ''**'** ' * * 71123* - used five-eighth rods to relieve choking of the spill for fibre. ' 71123 - did not see anyone wearing a Bask, was cot told by anyone to wear a mask. No cjross-examination defendant. re masks froa first No cross-examination defendant. re Basks froa second ) (ix) Knapinski. Gave evidence after the defence was amended " He was employed at-Wittenoom between September *50 to January *57. From 1952 until January 1957 he was a leading hand boilermaker - welder responsible for maintenance, in the mill. At 71825 - he said it was too hot to wear masks, filters clogged, no instructions to wear masks. In cross-examination by the second defendant at 72001s "And was this the position with respirators that the wearing of respirators was impossible because they prevented people from doing their job?--Ofas. And while it might have been a good idea to wear a respirator it was ' too hot and impossible to do so?---2 can say, impossible. 'fou said on Tuesday that neither r. Allan not Mr. Broadburst instructed you to wear a respirator? -------They never told ne to wearing one. Nobody was told to wearing? just if you arc working in the dust and you feel there is too much dust, you can go and picked up one mask and wearing if you like it, but some of the boys was trying this, but for five, ten minutes, they throw this away? it was impossible in the hot weather {inaudible}. Well, nobody ever told - you to wear a respirator? ---Pardon? -- a Nobody ever told you to wear a respirator?-- To wearing? Yes?-------So. You knew they were available?--Yes. Was this the position t if Hr. Allan or Hr. Btoadhaxst told you to wear a respirator, you would have told then it was impossible to do so?----But-. they ^ never, .told -as ^ ever . to;. v V.. . wearitf' this because; tfcy"-fcfever %. they-/come'. to', the plant * in the* dust and * they never * wearing then themselves." * . ' At T2006, the first defendant was accept the results of the first cr oss-e xaa i na t ion. content to' defendant's (*) Brown. At T7292 stated that in IB44 he wore a respirator, and after 1948 he saw some men wearing them in the bagging station and when adjusting hoods which required fine adjustment. T7294 - he instructed Allan to enforce the wearing of masks and when he was Acting Manager from December 1949 to March 19S0 he had occasion to point out to a workman that his mask was slipped round his neck. Be indicated that it was the direction to wear masks and both Allan and Broadhurst told him of this. direction at T7295-7297. He deals with this In cross-examination at T7661 - up to the end of 1955, he agreed that all bagging was done manually, with no separation of the bagger from the chute. At T7662 - bagged into unlined jute bags. T7663 - he was not aware of any difficulties of supply of masks or filters. Ti. - no direct evidence as to directions given other than stated in chief. Agrees that, if directions were not given to men at the bagging station to wear masks by those in charge, it would fail short of what he would have expected of his Wittenoom management. He agreed that if reasonable supervision was not given to ensure obedience to directions to wear masks, then this would fall short of the supervision required - he understood it . wajs one of the things done. '*'* " " * At T7667 - he was asked whether he considered that workers be directed to wear masks when at the bagging station, or at points at particular dust creation, was a practice that he considered necessary in 1949 and thereafter, and he stated that he considered it a desirable procedure necessary in the sense that that was an instruction that ought to be carried out. Be said it was a desirable precaution because one didn't know what the conditions were in which the , men were working.* . ' At ?960i -* he' stated in- Cross-examination, after he had been called to give 'evidence again, this time for the second defendant, that it was his opinion that as a precaution the bagger should wear a respirator - "you can't be sure he-isn't getting exposure that is higher than the surrounding mill". Cxi) in interrogatory Q120 in Barrow, ABA was askedt "Immediately prior to the period at any and what time during the period did the second defendant .............................which of its servants and agents - (ii) instruct the plaintiff that respiratory protection must be worn at all times When working in the mill to which the second defendant replied that it "does not know"." (xii) Bush. An expert called by the second defendant, agreed at T6912 that prior to 1944 it was accepted' in Engineering texts * that respirators were no substitute for efficient dost control, and at T6913 agreed that it was unsatisfactory practice - if the use. of respirators in dusty places was neither*the subject of instruction nor supervision. TS914 - he would suggest' use of respirators rather than a device to separate the worker from V3 . the asbestos example, that full shift of should wear occasionally. fibre at bagging stations, for shown in exhibit 94. Even for & fi hours he suggested that workers masks and they could break The plaintiff alleged that masks and filters were not always available. The main evidence in this related to a period after 1955. .. -- In the end, for the period 1949-55, the , j. ii ,ia.i plaintiffs have not satisfied the onus of proof. I need not pursue that natter further. It is quite clear that at no time were any witnesses in this trial warned of the danger of inhaling dust containing .silica or dust containing asbestos. Nor were they directed by management to wear masks. Nor was the wearing of masks actively sought by management. It is equallyclear thaut,.*.in summer months 'at; least;/.the conditions'^. * in the mill would have made it extremely uncomfortable-for a workman to wear a mask during the whole of a shift. Hr. Adams pointed out the difficulty in getting workmen to wear masks and this was supported by witnesses, both lay and expert* and in the end that was the stance taken by counsel for ABA. He said that it was a deliberate choice taken by workers not to ) wear masks. In this he seemed to part from Mr. Brown's view, which was that in the bagging areas and in areas where workers were making fine adjustments to fibre aspirating hoods* masks should have been worn, and he would have accepted it as bad practice for management not to insist upon this. Mr. Heys worked at the bagging station for about six weeks. The nature of his work exposed him to the purest form of asbestos to come from the mill. He scooped the raw asbestos to him in armsful to drop into bags.. Re pummelled the raw asbestos in the bags with a wooden mallet in order to ?4 . compact it into Che bags. This was accepted by Brew* as a danger spot. He should have been warned of danger, he should have been protected. In the absence of any other protective device to Unit his immediate exposure to asbestos and asbestos dust, he should have been directed to wear a mask, and this direction should have been 'enforced and, if necessary, a roster arrange<3 so that he fcould have breaks during his shift. Irrespective of any other steps taken to rain liaise dust within the mill, and 2 will return to these, and *) in the absence of other devices for the bagging section alone, the failure to enforce the wearing of a respirator by Heys when bagging was . a breach of duty by his employer. And that . is.- the 'bortoWl'ihethat- should have .applied to all' workers in the sill if "there-were no other methods available to control the escape of dust containing asbestos fibre. The evidence which X have recited concerning the lack of use of respirators highlights and supports the finding X make that the sill was, . on most occasions, excessively dusty. ) MIT.LXKG OPSRATXOEr _ Before dealing in detail with the milling operation, X make some general observations. The system is basically simple. * The ore is crushed with the object of ensuring that the host rock is removed with as little damage being done to the fibre length of the asbestos as was possible. The object then was to separate the fibre from the rock and collect the fibre with as little grit, rock and dust as was possible. The long fibre was taken off first. After crushing and screening, the fibre, with any rock still attached, was put into an impact mill which ceased out and fluffed up the fibre and, hopefully, removed any rock fragments. It was then put into a sheket screen where the rock fragments were shaken to the bottom. The fluffed up fibre came to the top and, at the end of the screening process, the fluffed up fibre was aspirated to a cyclone. The undersized rock and fibre continued through _ .-a.- in . --i , .. further similar processes to give No.2 grade and No.3 grade fibres. The cyclone was a collector and separator. The air stream took the combination of fluffed up fibre, with whatever grit and dust remained, from the shaker screen and this was ducted to the cyclone and entered tangently into the cyclone. .At that stage the fibre, being the heavier stateral, settled to the ..bottom _ of- the\'cyclone - and' :the fighter.: fibres' and dust were exhausted through the'top of the-cyclone. * The entire operation of separation of fibre from host rock was mechanical and, unlike many other processes, it was a dry process. It follows inevitably that it was, and must have been known to be, an extremely dusty process. The use of cyclones as separators also made it abundantly clear that further dust and material. Which was pf necessity finer and lighter than the fibre sought to be or capable of being collected, would be exhausted from the cyclone. Speaking generally of the operation of cyclones, it is now, and was at all material times, well recognised that the cyclone is basically a dust extractor and it works effectively on coarse particles. The heavy material is trapped in the cyclone and the lighter finer material is exhausted either to atmosphere or to other dust collection devices. When it is used as a fibre collector and separator, the heavy material* in this case the larger fibres, is then dropped direct to the bagcing section through a chute, or to that section via another cleaning or separating device, namely a trommel. it was also well recognised in the engineering texts of the 40s that the smaller the cyclone the more efficient it is in collecting the smaller particles and the larger the cyclone ******* * t the less efficient it is for that purpose.^ 'X"cyclone with a 12" inlet and an 8* diameter, as used at Wittenooa, is a large cyclone and it is accepted in the literature of the time that anything over 30-60 microns will not he trapped and therefore will be exhausted from the cyclone. The disadvantage of this, apfert from any loss of product of that size, is that there is an .obvious, .hazard mb; silica .dust and whatever ;hazard is associated . with * the ` small' particles of the lost product exhausted from the cyclone. This also was well recognised, as was the resultant danger to the health of the operator. The hazard was mostly spoken of as a silica hazard, but it was always patently obvious that dust containing the finer asbestos fibres would be exhausted in this manner. And they were exhausted in this manner. Zn outline, the milling operation remained the same throughout the period. Equipmentf of course, changed from time to time, production increased and more equipment and more systems were introduced at various times. 1 set out a general description of the system as it existed at most times between 1949 and 1955. The ore was introduced into a feeder bin outside the north-western end of the crushing section of the mill building. This ore was carried by a conveyor, into the mill and into & jaw crusher. On the way, workmen picked out from the ore these lumps c rock which showed r.o sign cf ccntaininc asbestos fibre. These lumps were manually discarded into a bin. This waste rock was conveyed outside the nil! where it was dumped and carted away in trucks. After the first crushing through the jaw crushers, the ore was reduced in size. It "then passed through No.l trommel*' Tor^'screening. Oversize material sometimes went to a further picking and the balance for further crushing through a taylor crusher. From that, the reduced material was conveyed to roll crushers, or the secondary crushing system. On the way it also met the material that was undersize that came from the trommel screen mentioned' earlier. The '* '*> ;* trommel screen met' the material -that came froa- the tfo.l > .'V v : x.y " . V,/ materialcoming 'from ' the roller. crushers and this material could, if necessary, be diverted to a surge bin, when that was added about 1950, so that at any , stage there would be sufficient material not to hold up any subsequent processes. The material was thereafter delivered by conveyor to No.2 trommel for further screening and the liberated fibre, with some rock adhering to the ends of it, went to an impact mill, being either a hammer mill or Kubit mill. This had the object of fluffing up the liberated fibre which went to a shaker screen, the lateral and vibrating movements of which caused the heavier rock material to fall to the bottom of the screen and the fluffed up fibre to the top of the screen where it was eventually, at the end of the screen, aspirated to a cyclone. This was first grade fibre. This fibre was then collected and bagged from the cyclone or a trommel. The 10 exhaust from thac cyclone was taken outside the mill end went either to a further cyclone or to atmosphere or to further dust collection systems. X will deal with dust collection separately. The balance of the ore from the first shaker screen then went to a further set of roll crushers and met material coming through impact mills and roll crushers, being the left over from the material that was undersize from the No.l trommel. This material went through an impact mill, which again caused the fluffing up of the fibre, and further shaker screens, and was- again aspirated through cyclones. From time to time the number of crushings, either through roll crushers or hammer mills or a Kubit mill, were changed as far aa . the jdefcei1 * of the aystea .is .concernedV but'* ev'enfctta\ly - the undersize material that came through"the trommels was conveyed for further crushing, fluffing up and shaking treatment, and also the residue , the material that came from the uncollected material from the earlier shaker screens, went through the same type of treatment of further crushing and fluffing and shaking, eo that at the end of the system the No.3 grade fibre was bagged. Exhibit 89(e) gives a more accurate and detailed pictorial account of what I have tried to describe above. It was prepared by Dr. Jaffrey from-a plant list which was in turn prepared by the mill superintendent, Mr. Allan, sometime in 1950 or in 1951. As a flow sheet of the time, this was generally accepted by Mr. Brown, although there was a dispute about what happened to the exhaust from cyclones and the extent of the dust collection equipment within the mill. The exact nature of the Clow sheet at any tine is not important for *y purposes. What is important is to have sufficient understanding to appreciate that, in all of the processes to varying degrees, dust was liberated inside the mill*at almost every stage in the process, including transfer points where the ore moved or was dropped from the primary and. secondary crushing stages through all the,.conveyors, tromeeis, crushers, hammer and Kubit mills, screens and shakers, end wherever the fibre was bagged from the cyclones and trommels; likewise at the waste and tailing discharges and at all exhaust discharges from cyclones outside the mill. Eighty to ninety per cent of the fibre was third grade fibre, or smaller fibre. Which was collected at the, end of, the ^ .> . . 4 * ^4 C process*, -and', at that* stage ' other material 'Vae.. being recirculated so that the dust emitted would certainly contain a greater percentage of- fibre at those end stations, culminating, of course, at the Ho.3 bagging station where the fibre was as pure as the system allowed. It followed, from this overall description, that dust containing varying degrees of asbestos fibre would be emitted both inside and outside the mill. The cyclones initially exhausted out the top of the mill to atmosphere and subsequently to another larger cyclone and on to dust collection equipment. The dust from the primary crushing section would be exhausted both outside and inside the sill. The dust from the secondary crushers and mill equipment proper would exhaust to inside the mill unless otherwise contained or collected. It was axiomatic that the fibre collecting cyclones, by the nature of their operation, would have a dual purpose of collecting both fibre and dust so that some dust from the shaker screens would be evacuated from the mill by these cyclones. Likewise, these cyclones, being unable to capture the smaller particles, would exhaust the smaller fibres of asbestos. DUST CONTROL The still commenced to operate about the end of 1944 or the beginning of 1945 with almost no provision made for dust prevention or dust control. According to Mr. Brown, the original design philosophy was evidently to ventilate the Bill itself by leaving a ?' to 9* gap around the bottom of the wallss of the sill .with the roof having a ventilating ridge,, and . to' vent* ' any' internally generated' -dust * an&v the fibre collecting cyclones to the atmosphere. It was no doubt thought that the natural ventilation would Keep the air fresh inside the Bill and that the dust exhausted to atmosphere would. be taken away up the gorge by the various breezes that would hopefully arrive. Ins ide, the hot air would rise, thus carrying fine dust and any light fibre out through the ventilating ridge in the roof. Any breeze would bring into the Bill fresh air from outside and, in a way not explained, this evidently would not blow any of the dust liberated inside anywhere but up to the ventilating ridge. If that in fact was the philosophy, then it simply did not work, and between 194S and 1955, and beyond, the management experimented with many kinds of dust extraction and collection equipment. Few of the experiments worked. The evidence discloses quite clearly that the mill, although in Ol . production at ell tines, except for s major breakdown for a period of five souths in 1546, was also used to gain experience {and see exhibit 70). Experimental methods o dust collection were attempted, including multiclones, bag houses, van Gelder stockings, Warman or field dust collectors and subsequently, after 1955, roto-clones. There was experimentation with wet processing. Boqe of the systems prior to the introduction of roto-clones worked satisfactorily. Based on well known engineering principles, none of these were likely' to work in the conditions that were there existing, nor did they. It is not that the majority could not work? rather, 1 find,'that none of the systems used were used in.their. .propgr context, or vin . a>. suffleient quantity, or with sufficient maintenance or supervision 'as to their use. In the result, people in the mill or immediately surrounding the mill were working most times in conditions r which exposed them to excessive quantities of dust containing asbestos fibre. There was much information available to CSR concerning methods of milling. Messrs Powell and Brown visited mills in the United Kingdom and Canada during 1936. They enjoyed a commercial relationship with Johns Manville, which had one of the largest milling operations in the world. Johns Manville used organic and inorganic substances in the manufacture of various materials, including asbestos, in the * making of various products, including asbestos cement and asbestos sheeting. It was largely the influence of Johns ManvSlle that led to the establishment of the Building Material Division of CSR. BMD in fact established an asbestos manufacturing company in Sydney- In 1943 it acquired an asbestos mine in Zeehan and it is said that Mr. Bro&dhurst designed that mill. He had, of course, technical assistance from others in CSR. CSR then acquired the Hancock Asbestos Company's asbestos mineral claims. ASA was formed and Broadhurst was sent to Wittenoom to start the project. It was war-time. It is said that the Commonwealth Government required* asbestos products as part of the war effort and it is also said that building materials were difficult to obtain and were in short supply, although it appears that the defendants were given a priority for this purpose. I can accept the war-time restrictions as a matter of general knowledge, although evidence of the effect of these, difficulties on the defendants ; was.. vefy thin v The general. principle of design and operation of an asbestos sill was not new. Bach one, however, will have its own requirements and.its own problems. One such problem at Wittenoom was the harsh and abrasive nature of the host rock. This caused two problems. The process was extremely dusty and this played havoc with the equipment, which was constantly and quickly wearing out. It was said on behalf of the defendants that conditions were dustier than could have been reasonably expected. 1 have great difficulty with that. A mill was already operating at vampire Gorge. It is almost inconceivable that that was not inspected prior to the establishment of the Wittenoos mill, which was based on similar design principles as that at vampire. All at BMD knew, at least from the Sheehan experience, that the process was very dusty and that there would be problems with dust. It is said that the harsh and abrasive properties of the host rock were not known. That may be so in 19-43, although there is nothing to suggest that anyone in CSS or ABA tested the rock before anything was attempted. Whatever may be said about these matters in 1943, the problems must have been abundantly clear by the end of 1944 when the mill came into production. The basic principles of mill design, however, should not vary; the object being to get as much clean fibre as possible from the host rock. The-dust generated, and there would be such dust* generated, had to be separated from the fibre* For reasons of health, as well as comfort, the operators had to be able to. work in an atmosphere as frfee.of dust as. is' possible t* * and, of . course, a dust free atmosphere Had implications for the well-being of the machinery. Air control and ventilation were therefore prime matters for consideration. This is apparent from all general engineering literature and from the literature that concerns the Canadian mills. it is also apparent from the reports from the various Mines Department ) inspectors and Health Department reports from time to time. I *v was also told these things by experts. The inference X draw from the recitation of contemporary Mines Department reports and from the evidence of Mr. Adams is that the excessive dust generated by the mill was known by management and that in part they held the inspectors at bay in effecting improvements with statements in 1948-1950 indicating that a new mill was in train and subsequently, in about 1954, that a wet process was being investigated. X will refer to this below. Before X do so, however, X should note that I accept, of course, that ABA did make efforts to -contain and collect the dust. These attempts were experimental in nature, were to an unacceptably great extent based on trial and error, and had a low priority in comparison to attempts to increase production. 4 It is difficult to assess with accuracy the flow in the mill for any particular time. The defendant suggests that it is a task which cannot be done. There are now almost no plans' in existence. It is not known how much equipment was fabricated on the site, end it is not known how much equipment was purchased that was not the subject of an approval by the ABA Board, or on the plant lists prepared which identified equipment purchased by CSJfc and hired to ABA. ,, 7 . .. Befote ' T "dehl. with ^.that* .submission; ` however*,* * I -* *fce findings of background facts. Some'were agreed. I will flag those which were In dispute. 1. Accordint g to Brown, and 7 find as fact, the 'venture was always financially doubtful. It could only survive with the financial backing of CSS. ABA was never at the stage where the venture could have been financed by traditional means in the absence of, capital and loan money from its parent, CSR. 2. There were times when CSK had difficulty in financing some of its internal operations and this was so in 1930 to 1951. 3. There were times when ABA was kept afloat by injections of capital from CSR made almost monthly, and by monthly ad hoc loans from CSS made each month on application for the stated ) 1 17 ) purpose of paying eocnthly expenses <ABA minutes, exhibit 370). 4. I find chat production results were given greater emphasis than dust control in the sail (Knapinski, TX836, T20X5). 5. The mill was designed with no provision made for dust control or extraction- other. than that already indicated, ie natural ventilation. It Is true, and there is no dispute amongst the experts, that it is most unlikely that modifications would not be required in any design; but it is equally true that no provision was made for dust control other . than faking advantage -61: ttatoral' ataosjteerit? `ondiions': fc6 :\ dissipate dust exhaustion by natural ventilation and from--the fibre aspirating cyclones*. 1 mention .this as a background fact. X Bake no judgment upon it. . As will become apparent later when X deal with the knowledge and perceptions of dust levels and dust dangers held by officers of ABA, which Brown * said were often discussed at tfittenooa, x find that those in control were either not operating on any maximum safety levels of dust, or were operating on maximum safety levels of dust which were well in excess of those normally recognised in industry. this was disputed by the defendants. It is clear that, irrespective of the merits of the design philosophy, it did not work in the sense that the clouds of dust emanating from the roof. both from the ventilating ridge, the open sides ^and the cyclones, were not being dissipated into the vast wilderness. Whatever the cause, be it wind, atmospheric conditions or the effect of the position of the nil! in the gorge, the evidence indicates that, at" nost tinea* dust exhausted from the 1 mill was returning to earth in the close vicinity of the mill. Three things had to happen, first, the dust caused by the crushing* rolling* screening and shaking could not be reduced except by hand picking the ore which apparently contained no fibre before it got. to the crushing plant. It was also axiomatic 'that.**'the gfeater the *'quantity'of ore,' irfeted,. the greater 1 * would be the quantity .of dust created. Secondly* a means had to be devised to trap the dust at each of its source points and transport it out of the sill. t Thirdly, that dust had then to be captured so that it did not exhaust to atmosphere where it was likely to return and pollute the surrounding areas and be returned into the mill again. The evidence discloses that during the period 1944 to 1955 the defendants went nowhere near achieving any of these objectives. " By about 1952 or 1953* ASA had bowed to requests from the Hines Department Inspectors to enclose the mill. Brown was inclined to be critical of the department in this regard and he suggested that this varied the original design ideas and caused further probless. There are two answers to that. first, it is the prime responsibility of ABA to construct and maintain a mill that is as free of dust as is reasonably practicable and. secondly, having decided to adopt Mines Department suggestions, it remained the prime responsibility of ABA to maintain proper ventilation. Contemporary records, and Brown's own evidence, indicate that the roof extractor fans introduced at this tin were not extracting sufficient dust, and it does not require great engineering skills to understand why. The Bill was simply too large for these to work adequately without- at least partial enclosure of soae areas to aid suction from more confined areas through each fan. They extracted some dust hut obviously not enough. Z will return in more detail to the dust -control and dust collection techniques employed. In its amended pleading, ABA described the mill flow * *ieeh *1949 to ''1952 as -simil&r to1..;that, contained' in exhibit 86, which purports to depict the flow "as existing ' duly 1952". The plaintiffs are inclined_j:o accept that as a working basis. It in fact depicts some of* the five cyclones % described as recycling material that has already been through the system and indicates that all five cyclones depicted are used for fibre aspiration, with perhaps No. 5 cyclone having a dual purpose of dust collection as well. Mr. Brown, however, disagrees with the latter part of the process and described the system depicted in that part of the flow as "silly*. Exhibit 86 also depicts some dust collection system within the mill, but Mr. Brown says that that was not the only dust collection within the mill. Be said that two cyclones were solely for dust collection. It follows that Mr. Brown does not accept the other particulars of the emended defence where reference is made to the five cyclones depicted on exhibit 86, which were said to be initially exhausting to atmosphere and then subsequently being connected to a large cyclone and through to ether dust collecting equipment. Ke also says that the exhibit does not disclose all dust collecting hoods over dust generating points within the mill. Hr. Knapinski, who was leading hand maintenance in the mill during this period and who was called- fay the plaintif is, ___ ._ -i. *. -- rmT.11if is eves sore scathing when referring to exhibit 86. Be called it a "nonsense*' plan and likened it to other plans which he assumed came roa CSR is Queensland, it was his evidence that constant changes were being made in the mill during the* period 1952 to 1955, and that some -plana were being produced by persons on the other side of the, country who had never been to * c'kittenooav . Knapinski/ qf coasc*, :eniy: fae'eame'' involved -X' directly *nd in detail with the internal workings in the mill in 1952. The variations between nr. Brown's evidence and the amended defence, however, place me in something of a dilemma. Zn fact, it might be thought that on this aspect the defence has been drawn with the aid of a computer which has looked at some contemporary writings, but has not been concerned to speak to real people. Counsel for the plaintiffs says that X can rely generally on exhibit 86 to give an overall picture of the mill flow. Counsel for the defendants suggests that I accept Nr. Brown's evidence. Hay I say that X do not query the credibility of Mr. Brown on this issue. X believe that he has endeavoured to let me have his present recollections to the best of his ability. X accept Mr. Knapinski * s evidence, however, that there were very many changes made over a short period and, accordingly, I find that it is difficult for either to define with great accuracy what equipment was in place at any particular time and where that equipment was situate. And * this applied more so in the period 1950 to 1953 where the ore treated in the mill increased from 20,756 long tons to 116,690 long tons (exhibit 473). To the extent that it is necessary to refer to the mill flow, the;re is at least some agreement in general with pr. Jeffrey's reconstruction as at 1951,* exhibit 89fs) which was taken,from Hr. Allan's mill- equipment list Which was made... at or . about, that time, and"also,-as- at- T1955i* exhibit- B9{tfc-- which was taken by Sr. Jeffrey from exhibit 103. ; but rather to find what dust collection . equipment was in place. In the end, I am obliged to refer back to contemporary writings in conjunction with evidence of witnesses who were at 4 the mill. I have already mentioned the relevant contemporary Hines Inspectors* reports and some site meetings held by officers of ABA or GSR. I should also refer to Hr. Allan's mill equipment list. this is a list entitled "Hill Equipment* prepared by the mill superintendent, Mr. Allan, probably 1950 or 1951, exhibit 97.* "Hill Equipment List To facilitate identification by all concerned with the operation and maintenance of mill equipment, the following list has been prepared.* For present purposes Z note that it includes *7 cyclones All aspirating fibre with the possible exception of No. 3 cyclone which was taking 'floats' Included small unsaleable fibre from cyclones 2. which 1 and Fan No. 4 drawing dust from Kubit mill, through aulticlone system and into No. 2 Dust Collector discharge discharge *Fan No. ? drawing dost from centre No. 3 Fan and enclosure and discharge to atmosphere Fan No. 3 Fan No. 9 drawing dust from discharge and of No. 3 Trommel and discharge to..ataosphase, discharging to No. 1 Dust system (Warman system)." Collector Under the heading "Dust collectors"; No. 2 Collector -warman system servicing crashing section and Nos. 1 and 2 Hammer Mills No. 2 Collector Servicing Kubit Mill drawing through Multiclone system." ; :* V' X: St;- tfc** Impression. from.\rea`dihg' ' the *4isftuhihhiht'ed : by the views of other witnesses, that. When exhibit 9? speaks of two dust collection systems, it should be read literally which would indicate -two systems, No.l being a Harman system of either one or more Warman or Field Collectors servicing the areas mentioned, and No. 2 being through Multiclone system of either one or wore Multiclones servicing the Kubit* Mill. The opening sentence which Z have quoted sets out the stated purpose of the list. Z will, however, deal with this in the context of other evidence. Other contemporary records include the plant hire lists (exhibit 95) which list the plant purchased by CSR and hired to ABA, and the warman sales record book (exhibit 659). I have already found as fact that at all times during the period 1944 to 1955 there was excessive dust in the mill and areas immediately surrounding the mill. Much of this is explained because o my finding that natural ventilation did not work in practice- Although the mill was never during the period totally enclosed, the bottom 9` on the sides previously left open were filled in in or about 1952 and ,1 have dealt with that. other attempts at dust control and collection were, however, made, and I should make reference to these, although it is not, in my view, necessary nor, J believe, wise to endeavour to attempt to reconstruct from the writings and the evidence the precise location and timing of the various Items of dust control equipment.-which were installed. There is no evidence that ASA sought expert advice on dust control installations until early 1956 when it called in E.P. Gregory & CO. who, through their agents in Western . * AUs.traiia>: were,.in'strueted' to'; instili ' a /1oto-clone >ystea' 'of -* / dust control. The. agents, Barts & Co., did in* fact manufacture seme of the earlier equipment used by ABA, including some cyclonest but there is no evidence that their advice was sought at any earlier time. I should mention, however, some of the equipment used, or said to be used, as dust collectors. As 2 have already noted, cyclones screens. were * used to aspirate fibre frop the shaker The operation was such that some dust was inevitably taken with the fibre, and that the smaller fibres and hopefully most of the dust would be separated in the cyclone with the relatively clean product passing to a trommel and then to a bagging station. Hie balance, being fine fibre and dust, was exhausted from the top of the cyclone. It was the evidence of Brown that from a very early time two cyclones were used solely as dust collectors, and' that aspirating hoods collected dust rout some of the dust creation points within the mill end this passed through these cyclones and thence to other dust collecting devices. There is no support for this from any contemporary documents and a reading of Hr. Allan's mill,*equipment list (exhibit 69} would tend to indicate that this was probably not the case, at least in 1951 when that list was prepared. If there were ever any plans depicting dust control only, they no longer exist. .1 was not told of any such plana. As 1 have mentioned, one need not necessarily expect to find dust control depicted on a mill flow diagram, although exhibit 86 does 'depict some, as well as indicating the mill flow. It is cot in issue that some dust creation points within the mill were hooded from time to time and dust ':was *extraeted fp*;;thos*;.areas ^ through; jSucts; fey.*:fans.; ''^hey; s < * could either go to cyclones, a dust room, multiclones, van Gelder socJcs or Harman collectors, or perhaps_a combination of core than one of those or perhaps direct to atmosphere.. If it matters, I would be inclined to accept Mr. Brown's evidence to the extent that cyclones were installed for use soiey as dust collectors. It would, in ay view, be a little strange if they were not. cyclones are traditionally used as dust'collectors and, as the system at Wittenoora was geared to collect fibre by using cyclones, it would follow that the cyclones which were obviously understood would be used for ' their traditional purpose as well. I find on balance, however, that if such cyclones were at some time used for the sole purpose of collecting dust, then they were not operational when Mr. Allan made his list and probably not in use thereafter. In the end, the plaintiffs concede fchat^ some > ..I .. a -4 dost points in the mill did have hoods connected by ducting to one or other of the dust collecting systems and. in my view. it is not greatly important which one. I do not intend to attempt to dissect the evidence dealing with each individual dust collector. The so-called dust room or bag-house was, in the vernacular, neither fish nor fowl. . it was not, as pleaded, akin to the Canadian settling room and', becausT of the nature of its materials, it is unlikely that it was ever thought to serve such purpose. Multi clones were recognised, even before their installation,- as being not very efficient. and they were eventually, taken over by-the Warman- or Field . collectors. I accept as factual the .plaintiffs* : *: reconstruction ,* :fron -.the -;,eontemporaryddguments: '*`fchaf f hhe~ :. Warmans were introduced into the "system later than1 was asserted by the defendants and that they were introduced without any sense of the urgency which the dust conditions at * the time demanded. I also accept the evidence of the plaintiffs* witnesses that they were not consistently maintained; that they often became clogged and, as with much of the other equipment, if any broke down or became damaged and could not be fixed on the run,, then production did not stop and that piece of equipment would remain out of action until the regular maintenance day arrived on the weekend. Without going to it in detail, I accept the general outline and thrust of Mr. Knapinski's evidence. Be was closely involved with the equipment for a long period. Re was involved in its day to day operation and the maintenance of it. He recalls being involved In making shakers. Which increased from about seven in number to twelve while he was there. He said there were no hoods over the shakers to collect dost only, and that often, when fibre aspirating hoods were placed too low, the cyclones could not cope. He agreed that there was such experimentation; but, using sy words, it was clearly on an ad hoc basis. He said they were trying to sake improvements ail the tine. .Experimentation is a fact of life .in "industry - the impression given, however, is that this was trial and error to excess, and that is not good practice. Be stated that the emphasis was on increasing production, and to keep dust out of the fibre rather than clear the dust fros the Bill generally.. The plant was not shut down if dust collection items or fane-broke; dwri~ ,;.X accept tfeaVevideace. - *f .It is probable* that the late-Mr. Broadhurst' and the late Mr. Allan could have filled in* many gaps in the knowledge which is presently available as to the dust collecting equipment. In their absence/ I as hesitant to sake definite findings on particular natters. The overwhelming impact of the evidence/ however, is that, insofar as dust collection is concerned, there was too little undertaken, and what was done was too late and there was almost always Insufficient equipment on site or installed capable of doing the job. There was not a planned attempt to tackle the problem and this, I believe, becomes apparent when tracing the history of the Harmans, even accepting, as Z do, that over the relevant period five were purchased and one was manufactured on site. I find that many of the dust creation points were not covered, nor subject to immediate dust control, and that this was constantly the position. 1 am unable to accept 55. Mr. Brown's recollection that the majority o these points were thus controlled. Alternatively, if equipment was installed, then I find that it was either removed during the extensive changes which occurred from time to tiee and not replaced, or soon became damaged as a result of the abrasive nature, o_the rock and was not adequately repaired.-, . a From the evidence, it is my finding that there is no reason why the mill should not have been upgraded with adequate dust equipment, as it was in fact upgraded to increase production. Rotcyclones were known and understood by Hr. King by 1943 at the latest. He would have seen them in use in Canada. They, were recognised by him as having greater . affictency than "the -Warmin' oli.eetore*. Gregory Co. heid; the Australian franchise for their distribution, but there is no evidence to suggest that they -were- consulted on dust collection generally until early 1956 and the evidence discloses that by late 1956 the first one had been .installed. It is implicit, and perhaps explicit, in the amended defence that the defendant was at all times aware of, and had available to it, all that the then modern technology had to offer the rest of the world. 'Tt is apparent from the Roto-clone brochure {exhibit 186} that these items were being installed, at least in America, since 1943. There is no suggestion from either Messrs. Brown or King that efforts were made to acquire any prior to Gregory's advice being sought in 1956. They should have been aware, prior to that tine, that unacceptable and dangerous quantities of dust were not being captured and that existing equipment was not coping and, as 2 find, had never adequately coped. Both Brown and King had visited asbestos mills in other parts of the world end their assessment of conditions in those mills was that, except perhaps in South Africa, they were apparently free of dust, or certainly free of any excess dust, and * it is reasonably clear iron the contemporary literature that that was a prine objective. In the Johns Manville mill. this "objective was' probably sore readfly^ effected because of the policy to collect for cosmercial purposes much of the dust and fibre exhausted the fibre collecting cyclones and some of the traditional dust collecting equipment. The fact that, at Wittenoom, no attempt was made to collect these exhausts for commercial purposes did not, in my view, lessen Z find that equipment and techniques existed at the relevant times that could enable the defendants to contain and control dusts to1 limits which were then acceptable?' bet 'that. the defendants failed to utilise the equipment and techniques available and failed to achieve an acceptable limit, and 1 find that an acceptable limit would have been 176 ppcc or in accordance with Mr. Brown's description of 'clean air*. The defendants plead, however, in answer to the plaintiff's allegations of negligence, which were set out in para. 16 of the statement of claim and which were denied, the followings "18A(a) during the period it too* all proper and reasonable cere and precautions both in the mill and the environs to avoid exposing the Plaintiff to dust containing asbestos fibres and particles ("Dust) in such concentrations, in such circumstances and for such periods a could foreseeably cause him to suffer any harm of the hind alleged from such exposure having regard to:* 9? The defendants then list 29 paragraphs setting out those matters to which regard should be had. 1 have already dealt with some, but I will note them all and comment on each. s(l) contemporary industry knowledge of the relevant dangers; (2) the Second Defendant's knowledge of the -'-relevant dangers; , * (3) dust removal and suppression techniques known and available to the Second Defendant; (4) dust removal and suppression techniques known and available to the industry at large;" 2 have already dealt with items (3) and (4) and I will. turn to items (1) and (2) later. > ... (5^).. .the*. ektrepaiy..hard * and- abrasive qualities of. '** * *l* the` host;; rdck. and ; fibre ''being* ilie# fey. the-*: *w Second Defendant * the hardness and abrasiveness ' of which severely damaged dust collecting equipment installed by the Second Defendant to an extent far greater than could reasonably have been foreseen?" r-* There is no eyidence that tests were made before any of - the design or construction of equipment in the mill. The nature , of the plea itself would indicate that no tests were made. The only evidence Z have is that the rock was in fact hard and abrasive and that the host rock for chryeotile is generally softer. but Z would expect that someone about to embark upon a mining and milling enterprise might already understand some of the properties of the host rock and also 1 would expect that, if he did not know those properties when he started, he would very quickly find out when he commenced mining, and no doubt later when he commenced milling. An* if in fact he had not made any investigation before deciding on the equipment for his mill, he would be obliged to make the necessary adjustments as soon as practicable. The relevant time in these actions which concern Barrow was either 1948 or 1949. I have heard no evidence that, by either of those dates, officers of the defendant still laboured under a misapprehension as to the quality of the rock, or had not had sufficient time to cater for the problems thereby occasioned. I have not _ ._ _ leads the defendant. really been Obviously, told_ where the allegation j. with -harsh and abrasive materials, heavier equipment is required; alternatively, more maintenance, and that means more materials and more labour. (6) the fact that the host rock {unlike the rock ) crushed at most other dry crushing asbestos plants in the world) contained such a small percentage of fibre that far more crushing of host rock was necessary to extract the fibre . than 'was the case .in other comparable mills, in .'jftastraljta -.or . overseas dujring the . period. with ` the '"'consequence' ` that /, ar*V;o*'. V&ast; - was created? *' . * 1 would make similar consents to those Which I made ia response to (5) above. I cannot see how either item, taken singly or collectively, affects the duty owed by the defendant. '(7) the fact that although dry crushing unavoidably generated more dust than a .wet process, it was J not during the period and never has been/ possible to extract asbestos fibre by way of a wet process system in a manner capable of preserving the fibre so as to enable it to be of any industrial use?" This may well be a comment on an allegation made by the plaintiff in its pleadings. The evidence discloses that wet processing had already been tried In other countries, but the product was not acceptable to customers. Wet processing was discussed at Wittenoom in the early 19S0s, but no serious attempt was made to experiment with a wet process until after 1955, and the only evidence I heard was that a trial batch did not find favour with Che purchaser and the experiment was not proceeded with. In any event, no effective attempt at a wet process was commenced until after Keys had left wittenoom. "(8) the fact that during the period (and even in modern tines) no material's were, (or presently * are) available which were (or are) capable of resisting, for any extensive period of time, the wear and tear imposed upon ducting and ..... other equipment hy reason therysh-^.ami-- abrasive nature of the fibre and.host roc*;* The allegation there made, of course, is a fact of life well known to hard rock quarriers, miners and millers everywhere. Z do not know what the defendant is suggesting that Z should do with that information. There was no firs evidence of shortages of labour or aaterials by 1948. (9) ,, the ifaet. th.^t *be boat. rock. and ..the. fibre. were* hot ` reheptiv**>* -process*- of* "Wetiiftg ff "V ** * (10) the fact that, there were not "wetting agents" suitable or effective for application to the host rock and fibre which would have enabled them to be "wetted"; (11) the fact that water towers or spray towers which assist in dust suppression in some sills, were neither practicable nor likely to be effective in aiding in dust suppression in the mill; (12) the fact that none of the natters referred to in sub-paragraphs (9) (10) $nd (11) hereof was . reasonably* * foreseeable to the Second Defendant;" paragraphs (9) and (10) refer, Z believe, to the reasons why the Harman collectors were not wholly efficient, or at least one of those reasons. An efficient wetting systea depends upon wetting as such of the surface of the particle to be wetted as possible. There is no evidence that either ABA or cSR undertook any investigation as to the wetting properties of the material, although it ie clear that CSR'had facilities for such testing and research. Paragraph (11). X . *> 1 ) 100. believe. is aimed at an allegation made by the plaintiffs that water sprays were not used to suppress dust. Mr. firown in fact thought that water was used to spray some of the tailings in the tailings bins and at some parts prior to the crushing operation. He said that it did not prove successful, but none of these matters were put to the plaintiffs* witnesses. The evidence indicated that water was not uSed in any of the cleaning processes within the mill, and it was said that this was so because the whole of the floor of the mill. was sot concreted and water would have caused difficulties. it was accepted by all that good practice would call for wet cleaning of dust covered floors if is fact .suitable floors were capable ' <$' beibg.wsfttsed.;; "(13) the ' fact that the collection of - the dust generated in the aill by the process of electrostatic precipitation was neither feasible nor reasonably possible due toi <i) <ii> .... (Hi) .... <iv)______ It is not necessary for me to detail the reasons or to comment on this statement. The plaintiff had alleged that collection by this method was not undertaken. In the end# the evidence# such as it was# indicated that It was not tried# nor were any tests made, and there was no evidence as to whether it would have been suitable or not.' I intend to ignore it. It seems to me that it adds nothing to either the plaintiff's case or the defence. *(14) the remoteness and isolation of Wittenoo Gorge {being 1000 miles north of Perth. 2S0 miles inland and accessible for delivery of major 101 - equipment only on a very irregular basis) from locations at which dust collection equipmentand equipment ancillary thereto could be properly designed and/or manufactured and/or transported both in and prior to the period;** The geography is not in issue. Heavy equipment was usually transported by sea and then road. Urgent items were sent in by aeroplane. At reasonably pyqd'ict^bla. tines during the wet season, roads became impassable for a period. Obviously at times there would be .delays in equipment arriving, but I do not understand how the geography and isolation could affect the proper design or manufacture of equipment. Z find that dust collection equipment was simply not a priority w (IS) the need'- to $nsu'$*e* * that' the. passage'*3V>o'afid'* fibre' through- the mill. * at all stages was ' readily observable;** This is, X assume, directed to the fact that not all equipment in the mill was enclosed. Some items in fact could have been enclosed so as to make them dustproof. It also' refers perhaps to the suggestion that the mill could have been subdivided. The evidence disclosed that workmen did mot wish to have equipment enclosed, especially those who were involved in maintenance. They had to remove .the covers* before getting to the parts that required repair and they might be lax in replacing the covers. The evidence disclosed, however, that provision for inspection could be made in such equipment. In my view, little turns on this. "(16) the feet that the Hines Department in Western Australia, which had statutory responsibility for ensuring the safety of the enployees of the Second Defendant in the mine and mill during the period, placed greater emphasis on the viability .and productivity of the general operations at Wittenooo for the perceived benefit of the development of Che mining Kt 102 . industry in Western Australia rather than on dust prevention or control;" (20) the fact that officers of the Mines Department of Western Australia did not consider the risk of exposure to the dust to be so great as to warrant the wearing of . respirators or masks within the mill: (21) the fact that officers of the Mines Department of Western Australia did not consider the dust problem to- be serious enough to-=rrant-- prosecution of the Second Defendant in relation thereto; (22) the fact that officers of the Mines Department of Western Australia at no time attempted to close down the mill or duspead its operation on the grounds -that it was too dusty or for any other reason;* * Z have already drawn attention to the evidence from Mines Department officers*. The evidence, from those , officers* * *,v' r ' * :V ...V'.v.**` \ !' * ** i '\*.v **'. '*s *- **. * - ,< : ; ^ indicates that they pefcei'vtd a*benefit`.for the 'development of '* the mining industry in Western. Australia by the operation* of the mine and the mill, but in my view there is no warrant oa the evidence to suptport the allegations made in any of those paragraphs. The evidence is that the relevant officers did have's concern and did, on at least one occasion, threaten to close the mill, and it seems reasonably clear that, on each occasion that any complaint was made, they were met with statements and promises, which in the main were not fulfilled or not folftiled within the time implicit or stated in the response. No direct evidence was led by the defendant to support the suggestions made, or the implications from those suggestions, and the only correspondence which 1 have seen, and which I have already referred to, would tend to show a concern by officers of both the Mines Department and the Health Department as to the general condition of the mill* Apart from any other considerations, there are two matters Z 103. should mention. First, the defendant cannot avoid whatever its duty may be because others who have other or even similar duties have not fulfilled them end, secondly, the Hines Department 1$ not a patty to these proceedings and it would be quite improper for me to make any judgments on the reasons for action or.non-action.by the department. 4tone^or=*fce officers who gave evidence accepted the implications involved in these allegations. **(17) the fact that despite reasonable enquiry having been made of other saining and milling operations and from suitable experts, for or on' behalf of the Second Defendant there was no other relevant milling and mining operation in -the world from which the Second Defendant could have acquire#, such-knowledge or experience as * - / , would;'have-:enabled ;.theateraafion iof dbsfc>wfthin :: * * -the <fcry milling /operation * to- have been . avoided' . * or even-substantially nini'miBedj** ` * ** ' ' I have already dealt with this, z do not aeeept it as fact. "(18.) the fact * that there were strong commercial motives as well as.health reasons which induced the Second Defendant to minimise dust generation in the mill namely the' vital importance of producing clean fibre for sale to } customers and the need to prevent damage caused by dust to machinery and ducting within the mill?* - One could accept the theory, but it was ndt carried into effect. "(19) the fact that the Second Defendant did its best to keep abreast of developing knowledge of dust suppression techniques within the industry;* The evidence from both Brown and King was that they did in fact keep abreast of developing knowledge of dust suppression techniques'within the industry and that on many of their trips abroad they learnt nothing which was new. It is my finding that either their claimed knowledge was not 104. implemented or they were unable to implement it for reasons not apparent to ae, but which might be financial ones to the extent that dust suppression was given little priority. "(23) the fact that the offices of the management of the Second Defendant which were occupied by management were located immediately adjacent to the mill and as such were . exposed to a significant portion of the dust generated from - "the mill:*' This is in fact the case. I have already drawn attention to the senior officers of the second defendant who have died; some, in fact/ as a result of asbestos related diseases* and to the fact that most of 'the officers lived in Wittenooa with their families during the period. Z dp not intend to < 'speculate' about ;.the*e/.ma tiers'.. "(24) the fact that there was, a high turnover of labour at the mill and a significant proportion of such personnel were unable or unwilling to 1 follow instructions or directions such as the direction to wear respirators or mash* and the direction cot to remove dust protection flaps* hoods and'curtains on mill machinery; (29) the, fact that the high turnover of labour gave rise to the result that most employees were exposed to dust, if at all, for only relatively short periods of time.*1 ) I shall deal with the matters raised in these paragrees later when discussing knowledge.of dangers. *(2S) the fact that to the extent that there was wind in Wittenoom Gorge the prevailing wind tended to blow the exude from the dust extraction equipment in the mill away from the sill, offices and settlement and the environs generally;" Evidence concerning prevailing winds, or winds generally, was rather confused. The general consensus seemed to be that* when the wind blew from the southerly end, conditions in the mill were bad. When it blew from the northerly end, it would blow over the main office, and when it did not ,blow at all. ICS . which seems from the evidence to he quite often, a pall f dust hung over the Bill. "(26) the fact that notwithstanding effective representation on industrial natters by the Australian Workers Union/ at no tine was there a strike on account of dust conditions;" There was certainly no strike of any description. One -- __ - *i. .I. i "">.+ witness indicated that when he was at Wittepoom there was very little Union presence there. It did. however, take some interest. "(27) the fact that to the extent that there were complaints by or on behalf of employees concerning dust. those representing the employees, namely the Australian Workers Union, sought additional payments in respect of the dust rather than .a solution, to the .alleged. . 1 .dusty- bbpdit'ibna;** - ;V'. v. ! \V*: *' * It is true that the Union sought additional payments in respect of dust. The evidence indicates that the Union was conscious of the dust danger and did sake complaints, but no evidence was called from the Onion. "(28) the fact (of which the Second Defendant was at all times unaware) that despite having been alerted by the Health Department from the early 1950' s that the instrument it was using to measure dust was inadequate, the Hines Department persisted in using the same instrument, namely the Konimeter, which measured neither dust nor fibre effectively and thereby gave no indication to the Second Defendant of the extent of dangers (if any) prevailing in the mill and the environs;" I have already mentioned the use of the Konimeter. To the extent that it was used, it indicated to the second defendant that levels of dust in the mill were generally excessive. At all relevant times, Hr. Brown .had a perception of a safe upper limit level of dust which was markedly in excess of that held by others, not only in this State but generally. He said that dust levels were discussed by ABA 106- officers et wittenoom. There is no evidence that the levels discussed were appropriate. There is no evidence that ABA took its own dust readings, or what level* it would rely upon if In fact it did, and no evidence'of efforts to acquire more suitable dust reading implements, or any dust reading equipaent. ... -.-- The allegations contained in this paragraph, together with those concerning the attitudes and activities of the Union and the Hines Department, tend to highlight the attitude of the defendants which was indicated by the oral evidence given by Hr. Brown, which seemed to be to the effect that if others with authority thought that there was danger, efforts ' ..... . r- Vv.-. ' r\ .**- * *>'; would be made to shut down the operation*. It Bay be . that the attitudes of others would have sone bearing upon contemporary attitudes generally, but it see&s to Be that in this regard the attitudes of the others referred to were all critical of the defendants. In ay view, subject to the satters concerning knowledge of dangers, to which 2 will return, none of the Batters referred to in para.l8A<a) mentioned above, taken either singly or together, should obviate the defendants* common law obligations towards its workforce or the way it fulfills those obligations. Z turn now to a discussion of the evidence concerning asbestos and its related diseases, and the knowledge> both now and in 1943-2955, of these Batters. ASBESTOS AMD ITS RELATED DISEASES Asbestos is from the Greek word `'unquenchable". It is 107. aptly named. The collective name "asbestos** applies to minerals which, although sinilar in many respects, have differences, both in chemical composition and physical properties. The more common asbestos is a serpentine asbestos or chrysotile (white asbestos). This is mined principally in Canada____ The other, an amphibole. ashes**, --includes crocidolite (blue asbestos) and a also aaosite (brown asbestos). The serpentine asbestos (white asbestos) is a silicate of magnesium. The fibre tends to be small in diameter and curly, and it is soluble in lung tissue. The crocidolite or blue asbestos mined at Wit tecoca is a silicate of iron. It tends to be longer and sfreighter than white asbestos and is greater in diameter. . As strategic minerals during World War II, white asbestos was used in materials that were required to be fire resistant, and blue asbestos was used in materials tha could survive salt water. Blue asbestos will not dissolve in lung tissue, and it is this tendency to be indestructible within the body tissues which causes blue asbestos to have much sore lethal qualities than white asbestos. Obviously the differences -in physical properties of the forms of asbestos were well known, as were their uses; but, la the forties, the differences in medical effect were not generally appreciated. At Wittenooa, the length of the first grade fibre was 1* and over, second grade was 5/8-1" in length, and third grade, which was approximately 80%**90% of the total fibre produced, less than 5/8" in length. 106- 2t is probably a reasonable assessment to say that, except by perhaps a few researchers, there was no general distinction drawn between the types of fibre which would lead to the then known diseases. 2 turn now to the general benign diseases which can be caused by the inhalation of asbestos dust. (a) Asbestos is. This is a diffuse interstitial pulmonary fibrosis in the lung. The fibre, whether it be blue or white, if inhaled into the lung in sufficient quantities over a sufficient period of time, will cause an inflammation which leads to scarring or fibrosis of the walls of the small airways and surfaces within-the lung. 2t is diffuse in that it occurs throughout the lung. Zt is interstitial in that it is found between the alveolar lining cells and the ceils lining the blood capillaries in the walls of the alveoli. Once the process is set in motion it is usually an > ongoing process. The interstitIon becomes thickened so there is a greater distance for diffusion to take place between the airspace and the capillary, and as well the lung becomes stiffer and harder to expand. This eventually leads to shortness of breath. In its severe forms, it becomes fatal. <b) Pleural Plaques. These are localised areas of thickening on the inner pleural lining of the chest wall. They do not signifleant2y affect the way the lungs function and they normally occur on the parietal pleura, that is the lining of the chest wall, rather than the covering of the lung. \ -, 1 Av <c) Diffuse Pleural Thickening. This is a condition when the pleura, which lines the outside of the lung and the inside of the chest, becomes generally thickened and inflamed. It may follow a benign pleural effusion and. when advanced, it may impair lung function. This also commonly commences with - the chest wall lining, but it can pove to the pleura which lines the lung. Lung function is impaired when the pleural thickening is sufficiently advanced to offer resistance to the lung being stretched during breathing. . Malignant sequelae of asbestos exposure include lung * ..<*(cancer aftdtvplsural ;>teesothplioawj. (\ ; * . 4*. . (a) -Lung Cancer. There-is an established .link ' between asbestosis and lung cancer, especially amongst smokers. It is now generally believed that'there is a link between asbestos and lung cancer that need not include the intermediary step of asbestosis. it is not known whether asbestos fibre is a carcinogen or simply acts as a reagent. <b) Pleural Mesothelioma. Another malignant tumour can arise from the pleural mesotheliua which is known as pleural mesothelioma. It is not known how the tumour starts, but it is accepted that the known catalysts include blue asbestos fibre which penetrates the pleural cavity either from within the lung ox by other means. The tumour is like other tumours with uncontrolled grouch of cells, in this case the mesothelium cells- The malignant cells invade their neighbours and occupy the spaces previously occupied by their neighbours and eventually prevent expansion of the lung and cause contraction of the heart as well as attacking , other parts of- the1 "'638?."`''The disease is fast acting, extremely painful, incurable and inevitably fatal within a short time of the disease being diagnosed. KNOWLEDGE OP ASBESTOS RELATED DISEASES 1943-1955 ;v;."Allegation^.- *oigligencd. *, ,ins,far, as* they\ concern yxe ? knowledge, and what should have been the- knowledge, of .the defendants, are set out in para.l8A(a), (b), (i), (1), (a). (n) and in para*Id of the statement of claim* The pleadings <are quite detailed * and have been particularised and are somewhat repetitive, but they detail allegations concerning the dangers of asbestos exposure* The plaintiffs allege that. there was a body of information available to the defendants which youId warn them of the dangers to health of exposure to asbestos and, when asked to particularise the dangers to health, they alleged asbestos is, mesothelioma, lupg cancer, pleural thickening, respiratory degeneration, psychological reaction and depression, and that those dangers increased with the length and degree of exposure to asbestos. The plaintiffs, in their voluminous pleadings, did not specify with any particularity the precise ambit of that which should have been known about each danger. 111. In opening the case, counsel for the plaintiffs outlined the way the asbestos fibres, if inhaled, cause fibrosis of the lungs, and the progression of the disease called asbestosis. He referred to the quality of asbestos as carcinogenic and the relationship between asbestosis sufferers and lung cancer, and referred ,to._the lack .of knowledge of the wayf-tiP-whteh--the a presence of asbestos fibre gets to the pleura and then causes the cell'aultiplication that constitutes the malignant tuaour known as mesothelioma. He also detailed the sore benign effects of pleural fibrosis. am concerned with knowledge of the various diseases in the late ,40s to the... aid .50s. ' There.'are.,1 it seems, to */ several relevant levels of knowledge. *(y. findings are as follows. The disinterested layman at that tine*-on--looking in a aedical dictionary, would probably reach the conclusion that asbestosis was a fibrosis of the lung to be equated to silicosis and caused by the inhalation of asbestos dust rather than silica dust. A respiratory physician would, of course, know such more. An Australian physician in both the 40s- and up to the middle 50s would have available to hi a wealth of literature concerning asbestosis. Those who obtained their Fellowship in England prior to that tise (as sost did) would probably have act it, and they would certainly have an advantage over their colleagues in Australia in that regard. N Sy 1943, an enquirer, who had obtained the relevant literature, would know that asbestosis had been identified by name .by bx . Cooke in 1927 and that, by 1930, it was the 2 2 2. subject of a substantial industry-wide report in the United Kingdom by Merewether and price (exhibit 125). He would know at that time that it was a disease that occurred in the manufacturing industry, which really gave rise to the blossoming interest in it, but it also occurred in mining and milling. ..He... would know from his reading*, that,-the*..IDs., a regulations were introduced in the United Kingdom under the Factories and Workshop Act with an emphasis on educating employers to appreciate the risk; and suppress the dust, ) pre-war, he would know that asbestos is was dust related and that the only remedy was prophylaxis at the .workface. He . would know., that . some individuals ..had -a-. different. V.'. susceptibility than other's, 'but, subject-.to that, . he * would know that the greater the extent of exposure the greater was the risk. By about 1950, he would know that opinion was divided, but that the* majority opinion amongst the workers ia this area* considered that its effects were more serious and more severe than silicosis with a lesser dose required than silicosis. He would know that the latter, however, was not j universally accepted. The enquirer would know that in factory areas an upper threshold limit of 5,000,000 particles per cubic foot of dust containing asbestos had been recommended by some writers in New South Wales, and set by regulations in Victoria and other countries - all probably stimulated by. the work of Dr. Dreeson in the U.S.A. in 1938. By that tiae (the late 40s, early 50s), he would know that there was an increasing recognition that there was, an association of lung cancer with asbestos is sufferers and, over the next few years to the mid 1950b, he would know that there was a greater dissemination of information about the dangers of asbestos is, that it was capable of producing severe pulmonary damage, that it was certainly dose related with a stronger suggestion of there being a shorter period for it to develop than silicosis and he would know___that the . heavier and longer. th;>..exposuxe--the greater was the risk. By the beginning of the 1950s, the link between asbestos is and lung cancer was now a strong probability, although there were still some sceptics, both as to this link and the length of exposure. X have heard such evidence fron experts as to the state of .Knowledge in both the, 40s and. the aid -SOs. pr v,Castleaaa, ah American industrial' hygienist,, has made a. study of the ' literature which was in fact the basis for his Ph.'O. thesis, and he indicated that by 1945, based on- English statistics, it was shown that asbestosis was cosparable, to the sore serious silicosis risks and that where asbestos dust was present it was accepted that, if one followed the guidelines prescribed by health authorities, the upper safe Halt would be 5,000,000 particles per cubic foot, and he also indicated that, following the 1947 Merewether report and Dr, Hueper's findings in 1950, he would have noted a potential hazard of a greater risk of cancer than in the community generally. X accept this evidence. Or. Joseph was a consultant physician with an interest in chest diseases in 1947 in Sydney. He worked for his fellowship in London prior to and during Wsrld War XI. Had he been asked in, the aid 1940s to advise as to the effect of asbestos exposure, "appropos ashes fcosis**, he would have been 114. In a position to advise that asbestosis was a definitive disease, dose related, liable to produce serious disability or death, considered by some authors at least to produce more rapid effect than silicosis and/or more serious effect when established and that the only remedies were dust suppression and/or respiratory protection (exhibit 32S). --*----- He indicated that published material put medical men on notice of the possible link between asbestosis and lung cancer and, by 1950. advice as to any health risk would have included a probable rather than possible association with lung > cancer. fie would have advised that there was no cure for asbestosis, and he said that there would have to be a reliance upon prophylaxis being 'measures * to aupprest asbestos' dust'. : ' He thought that i* any persons in the mining industry in the 40a and 50s held the view that asbestosis was like silicosis, except that it was caused by asbestos rather than silica, then that was an* uninformed view. At that time he would have said that it was a serious lung disease and one would have to find out just how great the exposure was ) proposed. Or. Gandevia, a specialist chest physician, who was called by the defendant, would have warned of .the hazards of asbestosis and warned an employer to stick to permissible levels of less than 5,000,000 particles per cubic foot of whole dust, and he would have included a reference to a presumed association between asbestosis and lung cancer. At the end of the trial, it seems to me that the only difference between the plaintiffs* and the defendants* medical experts lay in the emphasis which could be given to the various aspects. J prefer and accept the evidence of Dr. Joseph where there are any differences in the state of contemporary expert medical opinion. I heard a great deal of evidence of what literature or what, advice was available in Australia. Every piece of evidence tendered by the plaintiff was subject to searching - cross-examination. '** * The area of dispute, if there be a dispute, is the way in which & lay enquirer would obtain information, it seeded to be implicit in Dr. Gandevia's approach that if the enquirer relied upon the literature he would go to the medical texts rather than to journals or sedical catalogues. That say in fact abjit the needs, p .some lay enquixprs,, It may be that If such, aa enquirer went off the street info a busy'doctor's surgery. and ashed about asbestos is and wanted an on the spot answer, the doctor, if he was no.t aware of asbestos is, might adopt the same approach. Zt may not be * the case, however, that this course would be followed if the enquirer sought a thorough investigation to the effects of exposure to asbestos dust. Zf that in fact was the task, then in ay view the differences between Dr. Gandevia and Dr. Joseph would simply become differences of emphasis and, without, going to the detailed evidence, it is clear that within Australia and in fact within the libraries of the British Medical Association, as it then was, in Sydney, and with the use of the then day to day tools of the librarian of that era referred to by Ms Ba&t, the searcher would have found ample literature to support the contemporary opinions expressed by Dr. Joseph. I was taken carefully through all of the literature on more than one occasion during the trial. I would like to 1X6. . believe that, had X been an industrialist at the relevant time about to embark upon an enterprise of the nature of that embarked upon at.Wittenoom and had I been given the relevant literature 4 X would have reached the same conclusion as Dr. .Joseph- X am reasonably convinced, however, that I need not pause* to resolve that question. **fiftd.;-tot .had--an industrialist in the position of CSR or ABA been minded to find out about the dangers of asbestos, either because it was hie duty to do so* or because he had been warned of the existence of a disease called ashestosis, of which he was not particularly knowledgeable, then he would have not only read ..the material aside available tp hift- bat'.w^uld have.-jsought a.; medical view'on what1 that material disclosed. In the end, X believe that Mr. Brown was inclined to concede that, had he been minded to seek infora*&ion of a medical nature, the librarians at CSR could have acquired for him ouch of the literature which has * been referred to and which was, in fact, reasonably accessible to hia. This would have come not necessarily from the CSR library, which he said v had no medical sources; but I.find it would have been found from the sources mentioned by Ms* Batt, whose evidence in the end, although tested, * was not effectively challenged os refuted, and from SMA Library, Sydney. X was interested in the views of Dr. Murray, who was called by the first defendant. Be was a medical inspector of factories, employed in the DR between 1947 and 1956, and in fact in 1947 undertook some of the clinical investigation into the relationship between asbestos exposure and lung cancer for Merewether which was eventually incorporated into the 1947 117. Mere^ether report which vas published in 1949. If asked for advice during that period, Dr. Murray would have referred the enquirer to the Asbestos industry Regulations of 1931 and s.? of the Factories Act 1937, which drew attention to the need to exhaust dust from its point of origin. Medically, he would 'have drawn attention, had he been asked,, tg asbea.tfifiAS:^tou,Ji 4 would not have drawn attention to the suggested relationship of asbestosis with lung cancer, which Merewether had suspected in 1947, until after 1955 when he said it was established 7 epideniologically by Richard Doll. With respect, that seeits to be. an extremely conservative approach in the light of . br. Murray'sinvolvement, with *,Dr.. ..Merewether. Dr. Murray - '.* i. *- . <> * *. \ \* s**a ` , -V v v, u r-\-y v .W conceded that there' was a growing, suspicion. as to such a relationship and, albeit that other views were still being expressed, the failure to at least warn of the growing suspicion is rather. difficult to understand, -even accepting the need for a conservative approach. Dr. Murray agreed, incidentally, that the instances of endothelioma of the pleura, which we would now call mesothelioma, and Which were identified in writings in the 30s and 40s, were at that time not distinguished from lung cancer, albeit it being accepted that it was not until I960 that Wagner's work on the subject related asbestos exposure directly to mesothelioma as distinct from lung cancer. Dr. Murray also said that although levels of dust were estimated by visual means in the OK during this time rather than by dust counting instruments, he would agree that the likelihood of developing mesothelioma was dose related in the sense that a worker exposed to a level of 20,000,000 ppcf was ne. aor at risk of contracting the disease than a worker exposed to a level of 5,000,000 ppcf. I find as fact that a serious enquiry Bade in Sydney in the . period 1943-1955 would have involved a search of literature including, but not linited to, standard text books. "It- would have included a sea'rbh Cf "THl' ffeleb`4ht indices referred to by Ms. Batt and the medical index and, in the absence of an appreciation of medical natters by the enquirer, it would involve a aedical assessment of the literature and it would have disclosed the following in general terns ' V ; V:1. ' *;. Asbea.tosi'S.'; %s a , disease -.qatte^d.by; thf inhalation 'of- excessive quantities of -asbestos-containing .. dust coaoonly found in factories treating the raw fibre, but also found in mining and milling areas. 2. It causes fibrosis of the lungs which can be debilitating, can lead to other coaplications and can be fatal in its own right, 3. It is dose related in that the greater the exposure measured in terms of intensity and duration the greater the risk of developing the disease. 4. Some writers on the subject, and they were becoming sore numerous in the late 1940s, early 1950s, considered that it could develop Bore quickly than silicosis, with some cases being reported after exposure as little as six months to a year or two, and to be sore serious and severe than silicosis in its effects. There were those who still doubted this in the mid 50s. There were some suggestions that it could toe progressive after exposure had ceased . s. There was no cure and that the industrial remedy was said to lie in prophylaxis, and it was generally accepted that an upper limit of whole dust containing asbestos should toe^Sa ppcf-- (which _ in terms of visibility, on Brown's evidence, would be relatively clear air visible only in certain circumstances). .6 There was not much change to this knowledge over the period except that the suggested link between asbestosis and lung.cancer had gained in support by 1950 with the widespread publication *6.\the <1947 . Herewether report, which was editorialised in the Journal of the American Medical Association in 1949, and although the link had not heen proven* the suspicions were hardening to an acceptance of a probable connection, although again there were soae sceptics. Z turn now to the knowledge of asbestos related diseases by the defendants1 responsible officers, and I do it by looking at the pleadings, counsel's statements and the evidence. It is not always easy to reconcile the three sources. Unless stage, ignore any 1 draw attention to it, 1 will, at this specific warnings of knowledge said to have been given to the defendants. I will deal with these later. DEFESDANTS* KNOWLEDGE OP ASBESTOS RELATED DISEASES Each defendant denied the plaintiffs' pleaded 120. allegatxons. which themselves lack specific particulars, and then, in their amended defences, made some positive assertions in the context of then pleading that they had taken ail proper and reasonable care and precautions In the mill and environs to avoid exposing the plaintiffs to dust .containing asbestos fibres end particles in such concentrations and in such circumstances and for such periods as could foreseeably cause then to suffer any harm, having regard to conteaporary industry knowledge, their knowledge of the relevant dangers and other factors. Silicosis. In giving particulars, the defendants stated that v.silicosis* -was * 'known.' ;*:to. the -defendants' -and* >the.*f international mining industry as being a respiratory disorder occasioning shortness of breath and coughing, possibly sustained by workers exposed to heavy quantities of silicio.us f, dust for long periods of 10 to 15 years. It had a gradual onset, but was detectable by x-rays. It would abate and not progress if the worker was removed from the dusty environment. It was not serious and it was an occupational hazard which the workers could voluntarily avoid. - Asbestos is. It was stated that the defendants and the industry generally either did not know of the disease at all, or to the extent of knowledge, .it was believed it was the same in all respects as silicosis, except the exposure was to asbestos rather than silica dust. Mesothelioma. The defendants had no knowledge of mesothelioma insofar as it was related to asbestos - that really is not in issue. X2X. Lung Cancer. The defendants stated that they had a very limited knowledge.of the danger of lung cancer and stated it was not medically established as being caused by exposure to asbestos and that that is still the case. * In the context of his opening and stating that actual knowledge' 'CSR was knowledge on the part of "1ts~~rVcfcors , counsel for the first defendant said that the primary contention of the first defendant is that there was no obligation on CSR to make enquiries and that CSR is not to be fixed with the knowledge <of an expert. But, he said,_i_ this does not find favour, "the most that could reasonably have ,been' known. Is;. that ashestost* :*wasr a,-fpn of,;si-licoals. -<- . silicosis a known risk in the mining industry which might be contracted after long term exposure of many years to continually high concentrations of dust" <75*70). i At 76005, counsel pointed out that there was no specific allegation that the knowledge of any particular person was the knowledge of CSS. He said, at 76007, that there were several ) possibilities not canvassed by the plaintiffs, but he would deal with them. And he did so in the following manner - 1. If the test is the knowledge of- the Board of Directors and the general manager, then it was the first defendant's case that the Board and general manager in the relevant period did not know anything bout asbestos related diseases. 2. If a widened test, and if it be that the Board had the knowledge of Brown, then Brown will give evidence as to his knowledge and he said, "It is impossible to summarise the precise way in which 122. . Brown or any witness will give his evidence on such a topic, that he would not attempt to precisely put. down what Brown would say, but the position of CSR is that basically dust was generally not good for health and, with sufficient exposure over any "adequate period, if you4re mining'in ilTca* rock'^you could contract silicosis- If one read what was in the literature one learned about asbestos is and understood that' to be similar to silicosis, except caused by asbestos, and that most silicosis had occurred in textile factories." j was fcpld-that."Sir James. Vernon,and Hr.- .-Brown- will have ** **.V" . an opportunity to tell me perhaps more fully*. junior Counsel for the second defendant said, on 15th March 1988, at T5513 (and prior to Brown giving evidence}, as a result of a concern I had expressed as to my understanding of the defence and after referring to the defendants1 particulars and in relation to my consent that the particulars seem to start with a denial of knowledge of asbestos is, that, "putting the statement very very generally the position is that * there was a general guard against dust because of the knowledge of silicosis, but there was no express knowledge of asbestos is or no express understanding of its consequences". When he opened the case for the second defendant on 16 May 1988, after Brown had been called by, and given evidence for the first defendant, counsel for 181 said that the knowledge of ABA. at all material times was the knowledge of Brown. 123. Brown gave evidence, when called by the first defendant, that he was involved with ABA in some ways,! and was kept aware of what was happening from the beginning of this venture, at least from 1943, and his interest and involvement became greater throughout the years, lie became an alternate director of ASA in _2943, a permanent director in * l^fU-Jsnd .ascaging director in 2952. He had heard of asbestos is. Be said that he equated it in general terms to silicosis and, to summarise his evidence between T7264a to T7271, he said that he began to read information in 'the early 1940s and first read of asbestosis prior to his first trip to Wittenoom in 1944. Be equated it to the exposure to silicon, dioxide in excessive amounts'over a: long period ;With sobstitutlon' asbestos* fof: silica. Be said that he believed that both required a period of exposure of between 10 to 20 years. Be said that -he believed that if you showed signs and then were removed from the atmosphere of dust, the disease remained dormant. Be said that chest x-rays would give early indication of asbestosis. He first thought it was a chemical reaction but later, .in the mid SOs, thought that it might be a mechanical reaction. Za summary, at T7271, he said, "The effect of bbth silicosis and asbestosis was essentially the same froa any point of view, both exposure to silica and exposure to asbestos resulting in fibrosis of the lung, which diminished lung capacity". Re had not heard of an association between lung cancer and asbestos but had heard of the possibility of lung cancer following on from asbestosis. He conceded that he had read the 1938 and 1947 Merewether reports, which he described as indicating a rather speculative relationship between asbestosis, and then 124. lung cancer . fie was unable to recall the source of the knowledge of asbestosis which he said he had at the time. He was not told of any dangers in any overseas trips which he undertook, nor did he enquire of any dangers when he visited Allis in the USA and Canada. Brown and Powell, who was managing director of ABA^from 1943 to 1952, visited the United states and `Canada in 1938. They visited Johns Manville sloe and sill at Asbestos in Canada. They visited Johns Manville textile factory in Sew Jersey. - CSR had commercial dealings with Johns Manvilie. Brown and Powell were interested is establishing a similar organisation to. that, run by Johns Hanville - 'mining,- milling and: 'us ing - ores/.; miiled ` .in aahing asbestos cement and*' btfcer \ hardboard products. Brown spent a couple.of days at* the mill in Asbestos. Be visited their manufacturing operations in Bew Jersey again and mill at in 1947, and in 1952 he again visited the mine >, Asbestos in Canada, an asbestos plant in New Orleans and again manufacturing plants in Kew Jersey. Bis initial knowledge did not increase. King visited the same places and more in 1945. In 1948/9 he went again to Asbestos in Canada, and to a large asbestos cement plant in Manchester and asbestos mines in South Africa and Switzerland. In 1953 he visited textile and asbestos cement plants in Europe. In 1943, CSR, through a subsidiary (Tasmanian Asbestos pty. Ltd.}, acquired an asbestos mine in Zeehan and commenced to mill asbestos ore (white asbestos}. In 1944, CSS, through another subsidiary (Asbestos Products Pty. Ltd.}, commenced an asbestos cement manufacturing enterprise in Sydney. King's evidence was a little equivocal, In chief, he said he had not heard of asbestosis prior to 19.S2. He said that he first learned of asbestosis after 1960 {T9145). He raay have been a little confused. .It is more likely that his cross-examination reveals a more accurate picture. He said then that he knew that silica was the cause of a jSust disease, silicosis, and that, as far as he was concerned, asbestosis was the seme. Ae had no knowledge of a link between asbestosis and lung cancer prior to 1955. He thought that dust exposure for 20 years was required to produce ) silicosis. Be was unaware of the source of his knowledge - he probably collected it during his student days. Be expected that -/tii 'night -"-have- had''."some discussions ' during his;: .overseas, trips, but has no recollection of having learned anything about health hazards. Brown said that he Bade no enquiry of health hazards when he was overseas. 94 Be made no enquiries of anyone other`than his own reading, but he Bade no effort to read any Bedleal opinions.' His attitude, no doubt based on his belief in the ) adequacy pf his general knowledge or whatever he had read, was that if there was a hazard then the aedic&l people would tell hi&, and no doubt someone, and probably someone in authority in a government authority which had jurisdiction over the natter, would tell his (T7701J. Be expected that if the Bill operation was hazardous, then soaeone in government, and one assumes either Health Department or Mines Department, would shut it down (T7742). Be recognised no obligation to make enquiries. He relied upon that which his'experience and his own non-technical or non-medical reading informed his. 126. It, in fact, his own understanding of the disease was correct, then of coarse he has no further obligation. is not, then the consequences require consideration. 2f it If an employer does not discharge an employer's duty to take care for `the safety of its workers by ascertaining and guarding against the -dangers of his process, hL -AR9 4 liability because he does not know the dangers or because someone else, who may also have obligations, does nothing. On the matters of knowledge in the abstract, X find that if the knowledge of CSR and ABA between 1949 and 19S5 was that of Brown, then it was deficient as to the dangers of asbestos dust exposure in that it.either ignored or was not aware of a growing' belief-'.that* asbestos dust had a shorter - expbsure tine * than silica to cause fibrosis in the form of asbestos is, it discounted the level of exposure or the dose relationship to the time of exposure,' end that hia eontemporary knowledge was wrong in discounting lung cancer following asbestos is as a risk in the circumstances. The plaintiffs submitted that there were other indicators of knowledge within ABA. : The following matters were sot put' forward by the plaintiffs necessarily as evidence of the truth of the stated propositions, but rather that there was information from the stated source which should have alerted an employer to make further enquiries. In 1949, the Union complained of dust conditions in the mill. It wanted dust.masks for its workers. In the course of an Arbitration Court hearing (already referred to exhibit 714), a doctor from the Goldfields was said to have indicated ' :) .> > . ) 127. thac there was a danger of asbestos is from the sample of ore he was asked to examine by the Union secretary, and there was a discussion of exposure of 15-20 years and possibly less with asbestos dust mixed with silica leading to asbestosis, and % that in Kalgoorlie the permissible limit was said to be 300 ppce and for asbestos it was 200 ppcc. * toe HearTng was'^afs told that asbestos is was more distressing and its onset was more rapid than silicosis. Broadhurst was present at some of the hearing. The transcript of * the proceedings was sent to the managing director of ABA. * Sometime.r in JL94B, Dr.; .Saint,.* then , Flyipg. Doctor,, expressed his * concern to mine personnel and th4 -Health' Department in graphic terms. Zn hie letter (exhibit 45) already referred to, he stated to the department that, since the incubation period of asbestos is is so much less than silica, he expected that "in a year or two ABA would produce the richest and most, lethal crop of cases of asbestos is is the world's history*. Colourful language - criticised by counsel . for the second defendant as hyperbole. It does .hot, in sy view, matter whether or not he was correct. Counsel for the plaintiffs in fact says that he was and, on a statistical basis, this say well be correct. The important matter is that here was, in the words of Dr. Gandevia (an expert called by the defendants), a unique opportunity for the mine operators to obtain information from an extremely well qualified doctor who had had a recent involvement in industrial medicine and who had given a graphic warning to his superiors In the Bea1th Department of his views. Those views were not inconsistent with the current medical trend in its understanding o asbestos related diseases, more colourfully phrased, no doubt, but in line with informed medical opinion. Dr. Saint told me that he had further discussions with Dr. Cooke in September 1946* and Dr. Hensell in 1949, and with Dr. Davidson in port Hedland, about the sane topic. He told, jae tbatr^hg had__a least one and probably more discussions with Broadhurst at wittenoem, and used words to the effect, "do you realise the risk that these workers - the risk of exposure to asbestos and the long term consequences?" (T1209J, and he told him that his ) understanding was that "the workers in the sill are at a high risk of acquiring asbestosis". He indicated, that Broadhurst listened,' but effectively made*no cotoWnS. He was criticised for not following this up with further complaints, it was put to Dr. Saint in cross-examination that Dr. Davidson of the Health Department told him at the time that the departmental view was that you needed a long and heavy exposure to dust to cause asbestosis, that the department regarded asbestosis as a minor branch of the silicosis problem, and that he told him ) that, because of the high labour turnover at Witteaooa, very few people- stayed long enough to contract asbeafcosis. Dr. Saint had no recollection of any of these matters. As to these matters, Dr. Saint also said that he would have disputed the suggestion that it was a minor branch of the silicosis problem. He agreed that the tact that there was a high turnover would limit the range of people who were likely to develop asbestos is.' He had no recollection of Dr. Davidson telling him that the amount of dust generated at Wittenoom was no worse than that generated at coal or gold mines, nor that the department treated the mine and mill at wittenoom as they would any mine and mill in the Kalgoorlie area. He did not recall that Dr. Davidson had told him that the Health Department view was that, as long as the workers at * Wittenoom were monitored by x-rays, that would be sufficient, .and he stated that, "if he had said it X would haae contested it". Dr. Davidson was not called by the defendants to give evidence. Dr. Saint said his understanding at the tine for getting asbestosis was an exposure of "three, two, three, five years, depending on .the particular occupation of the individual concerned". 'He agreed that, : ih his' correspondence to'the department, he did sot suggest that exposure for 2-3 months would be enough, and agreed that that would have flown, in the face of all contemporary medical knowledge at the time. I have already referred to the contemporary writing which was put into evidence from within both the Mines Department and the Health Department, especially between 1949-51. Dr. Saint was not aware of this at the time. Be thought that, based on the feedback which he received, the Department was uncomprehending. X need not comment on that. It is sufficient to note that in 1951 Dr. King was asked for a report, and he noted in particular the short lead up time for asbestos is could be less than his stated 5-10 years and could be two years (exhibit 60). 2 accept Dr. Saint's evidence. 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Z find that the Board of ABA should, in 1943/ have caused enquiries to be Bade about asbestos related dangers. It. aay .be thought, presumptuous at this distance to. a*sea* -the. duty of an eapl-oyer eoae 40 odd years .ago./ 2 find'it impossible, however, to believe that standards have changed to the extent that an industrialist would not be obliged to find out all that there was to know about the properties of .a mineral which he intended to Bine and mill, and to find out the industrial dangers of such as enterprise which involved a process which, on any assessment, was little known in this - country and which would involve. a workforce of many men working in conditions which would be very dusty, with known dangers of silica dust and less known, but obtainable, knowledge of the hazards of asbestos dust. If 2 as wrong in that finding, then the constant complaints of danger to health from Mines Inspectors, Onion representatives, the statements made by Dr. Saint to Broadhurst and in fact the generally recognised perception within ABA officers of a dust danger from a recognised dusty activity, demanded, by 1949 at the latest, a comprehensive 137 . technical and medical enquiry which would have giver, the knowledge X have found to he available. I turn to consider some of the legal issues thrown up by thes* findings and to make further findings of fact la conformity with my understanding of those legal issues. DUTY OF CASE The plaintiffs formulate the duty of care against ASA as that owed by an employer to an employee. This is accepted by 'j ABA, and it is unnecessary for me to deal with the plaintiffs* allegation, that the plaintiff was a contractual entrant to v . *ABA* a*, property. ; Counsel ;for/ABA is/ prepared to accept th^t ,. . r the duty is the same as * that < wed. by the employer - see Australian Safeway Stores pty. Ltd, v. Saiuzna (1987) 61 A.L.J.R. 180, at p.lSBs "The fact of the plaintiff being a lawful entrant of the defendant* s land establishes a relationship between then which of itself suffices to give rise to a duty on the part of the {owner] to take reasonable care to avoid a foreseeable risk of injury to the entrant." J Counsel submits that the duty so described is no different from that of the duty owed by an employer and he relies upon the comments of Deane J. in flackshaw v. Shaw (1984) 155 C.D.XL 614,* cited with approval by the majority in Zaluzna; **A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury.1 * ... The measure of the discharge of the duty is what a reasonable man would in the circumstances do by way of response to the foreseeable risk." Nor is there dispute as to the nature of the duty. Counsel have referred me to the same cases and simply wish to emphasise certain aspects. The starting point is Hamilton v. 138. unmet (W.a.) PtY> ltd. {1956} 96 C.L.R. 18 at p.2S, per Dixon C.J. and Kitto J.: -The duty ... is that, of a reasonably prudent employer and it is the duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The decree of care and foresight required from an employer must naturally vary with the circumstances of each case.** The defendant quotes from Vosra v. Tooth Pty. Ltd. (1964) 112 C.L.R. 316, at p.318s "The ruling principle is that an employer is bound to take reasonable care for the safety of his workmen and all other rules ox formulas must be takes subject to this principle.* ) Again, afc p.319: "For a plaintiff to succeed it must . appear by treasonable' *. inference S. trcmi the'- > evidence .. that ..the ' defendant `nnreasdhabiy: failed`to take measures'`'6t-' * * adopt . means * reasonably open to - him, .In all; circumstances Which would have protected the plaintiff from the dangers of his task without unduly impeding his accomplishment.1* As was pointed out by the court in Backstown Foundry pty. Ltd, v. Braistina (1986) 65 A.L.R. 1, at p.6, the last five words of that quotation add nothing to the formulation of the test and may well distract attention from the reasonableness ) of the measures which are open, that being only one of the matters to be taken into account. Counsel also relied upon the restatement of the test from Hamilton v. Buroof (supra), adopted by the majority in Bankstown Foundry at p-6: "What must be asserted is that the law has not changed. It is at accurate today as it was thirty years ago to say that the duty "Is that of a reasonably prudent employer and it is the duty to take reasonable care to avoid exposing the employees to unnecessary risk of injury*." I will return to questions of causation or preventability and the evidence that must be led to establish the breach of duty, but first I will refer to the standard of care. 139. STANDARD OF CARE It is not in issue that the standard appropriate is the standard of the times, fe, r 40s and early 50s, and in in the case of Barrow, the case of Keys, the in the late middle 50a. If there be differences between preseht day'"standard"and a those of the times, they should not be exaggerated. It Braistina (supra), at p.7, the majority saidt "What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. Insofar as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on commonity expectations of the reasonably . * prudent ' employer. .As. Mason,' Wilson,' Brennan and 'Dawson : said;* . >feSeah . tbdaan (1995) 155, C.D.R. 306, at p. 313TJ ''Accident' .prevention -is/ unquestionably one of the*modern responsibilities of an employer." fiowever it would be wrong to exaggerate the recency of the trend in this regard." 2a discussing whether the duty is discharged, counsel for 1 ABA referred to the comments made by Taylor J., agreed to by Dixon C.J. and Fullager J. in Rae v. The Broken Hill Co. Pty. Ltd. (1957) 97 C.L.R. 419, at p.430, where he posed the ) question* * "Whether an employee's injury has resulted from some failure on the part of the employer to take reasonable care for the safety of the former" and he then posed the method of establishing that failure either by - "Establishing in appropriate cases a failure to observe commonly recognised precautions or safeguards or, in other, by showing that the performance of his work by an employee has exposed him to risk of injury which might reasonably have been foreseen and avoided. Accordingly, the first, question in this case is whether, upon the facts, a jury would have been entitled to say that the plaintiff was exposed to a rtsV of injury which, by the exercise of reasonable care, might have been foreseen and avoided. But in pursuing such an 140. inquiry, it is & simple matter to permit hindsight to take the place of foresight and to see after the occurrence of an accident that appropriate safeguards night have been provided which would have ensured safety. But as has been said so many times, this is a completely erroneous approach to the 'problem. No doubt in many cases where an employee 'has sustained an injury in the performance of his daily work, a relevant breach of duty may frequently be readily detected, but in oeneral the-: mere. occurrence of an * accident -is not itself indicative of a breach of a duty to take care.* It is necessary in this case to ascertain, as a matter of evidence, whether the system of work was such that the risk of injury was foreseeable, ie, was there a risk of harm to the plaintiff from his inhalino asbestos dust, and, as was stated by the majority in firaistina (supra), at p.4s "The question that remained was whether the appellant took reasonable care to minimise* that risk*4. In Rae, the, test seems to have been formulated as to whether the risk should have been "avoided" t whereas in Braistina, the word tised is "minimised". The test was formulated by Taylor ?. and Owen J. in a joint judgment in Neill v. New South Hales Fresh Foods and Ice Pty. Ltd. (1962-1963) 108 C.L.E. 362, at p.369z "Whether or not there has been such a failure- on the part, of -the employer may in some cases be resolved by the application of common knowledge; in* others it may be necessary to show a departure from lone established practice in the type of work * under consideration or by showioa that an appropriate method -which would* eliminate or minimise the risk was reasonably available." This was approved by the court in Raimondo v. State of South Australia (1978-79) 23 A.L.R. S13 and, of course, in Braistina, which Z have already cited. counsel for ABA referred to the passage in the joint judgment in Neill (supra), at p;370 that.- "Additionally c course it must appear that the plaintiff's injuries would have been prevented if the standard practice or the alternative method had been employed**. Counsel for the plaintiff pointed out, however, that the use of the word "prevented* in that passage in Kelli is simply a reference to causation. It looks at the evidence that is required to show a breach of the duty of *care. As counsel said: "Evidence of breach, of duty does not make out a plaintiff's case*. It must be shown that the-breach caused the injury - or, as their Honours suggested in Keill, that the plaintiff's injuries would have been prevented or minimised had the breach of duty not occurred. Counsel submitted'that is a causation issue and that there is a particular application of that in industrial diseases cases, and he referred to Bonningtoa Castings Ltd, v. Wardlaw [1956J A.C. 613, Nicholson ?. Atlas Steel Foundry and Engineering Co. Xtd. [1957) 1 W.L.R. 613, McGhee v. National Coal Board [1972J 3 All E.R. 1008, Bryce v. Swan Hunter croup Ptv. Ltd. C1S88I 1 Ail E.R. 659, Tubemakers of Australia I/td.' v. Fernandaz (1976) 50 A.L.J.R. 720 at p.724 and Wilshet v. Essex Area Health Authority [1986) 22 W.L.fc. 557. When looking at the evidence necessary to establish the breach, one also bears in mind that the onus is on the plaintiff. It is the plaintiff's contention that "in the context of serious dangers to health that were or should have been foreseen the defendants failed in many identified ways to reduce the dust hazard and so alleviate the risk of harm". 142. In Hot sun v. Bast Berkshire Area Health Authority U967) A.C. 750, at p.782, Lord Bridge formulated the test of causation in a medical negligence case. In that case, the plaintiff's case was that the negligence of the doctor, in failing to give the correct treatment in time, caused the . resultant complication arising from th*,, origin*-* injuries which resulted in his seeking medical treatment. It was the defence case that the plaintiff would have sustained the resultant damage irrespective of the medical delays in treatment. At p.782, Lord Bridge said: "Unless the plaintiff proved on a balance of probabilities that the delayed treatment was at least a material - contributory cause of the muscular . neerosis. fee failed a. the,iss lie'. of cauSAtloo *. .Viw Some of the cases are discussed by Phillips J;.ia Bryce v. Swan gunter Corporation (supra). I mention this case mainly because it Involved mesothelioma. Zt also discusses some similar issues 'as the present. One issue In that case was whether one or any of the plaintiff's employers who had been joined as defendants had caused or materially contributed ) to the plaintiff developing mesothelioma. As a matter of fact, Phillips J. was unable to resolve the case on the basis of an increase in the risk. The risk of getting mesothelioma, he agreed, was dose related. But, at p.655, he said* "The present state of medical knowledge does not enable one to draw a conclusion as to precisely why it is that an increase in exposure to asbestos dust increases the risk of contracting the disease." On the facts in that case, he was unable to say on balance that the additional fibres inhaled as the result of the breach of duty were a cause of the mesothelioma. He indicated that it was equally impossible for the defendants to 143. 3 i ) show that their breaches were not at least a contributory cause. In the end, he finessed this question and he said, at p.671s "I find however that the plaintiff can successfully invoke the principle in McGhee as identified by the Court of Appeal in Wilsher. Whether the defendant's breaches of duty merely added to the number of possible initiators of mesothelioma, with! n_th*=Oongx of Mr. Bryce . or whether they also .produced a cumulative effect on the reduction of his body's defence mechanism then increased the risk of his developing mesothelioma. Se developed mesothelioma. Bach Of the defendants must accordingly be taken to have caused the mesothelioma by its breach of duty. " Shortly after that case was decided, Wilsher was overruled by the Rouse of Lords and certain comments in McGhee . were,.critiSceisiseedd.. < It seems ^to. me* with ^respect,. that, in Bryce . : the court was rather diverted in Its^approach to the question by the view it took of McGhee and Wilsher, both of which were subsequently explained by Lord Bridge when the Bouse of Lords overruled Wi lsher. , Zn my view, the question is, "Did the defendants* breach of duty materially, contribute to the plaintiff's injury?" and to establish the relevant causation, the onus of proof lies on the plaintiff. in the context of the instant case, the question is, "Have the plaintiffs established on a balance of probabilities that it was the defendants* breach of duty that was a material contributory cause of the mesothelioma contracted by each?" Applying that test to the facts generally, there are some matters not in issue. 1. It is accepted that each plaintiff contracted mesothelioma as a -result of working at Wittenooa and being exposed to asbestos dust. Similarly, if it be fcund thac Ssrrow has asbestosis, Cher, this also was as a result of his exposure to dust at wittenooa. 2 X have found, contrary to the defence submissions, that the dust within the hill and its immediate surrounds was excessive to a narked degree in that it- was generally well above whaTt* shouldrrlTXVe^brh"'a a reasonably achievable safe Halt of 5a ppcf and, based on visual estimates, would, on far too many occasions, indicate a level in the vicinity of 3 20a ppcf, and levels which oust have been well is excess of that figure, it was excessive due to the defendants' breach of . duty to employee generally.... It is accepted as factr and < I so find, .that mesothelioma can result froa as exposure to dust levels which is such less than that which would have been accepted in 1942-1955 as a safe Halt, ie 176 ppcc or 5m ppcf. 4 I find as fact that mesothelioma can be dose related in the sense that, even though now there is so safe ) level of exposure that is generally acceptable in m industry, the cases of ordinary members of the public contracting the disease by casual exposure to a small amount are comparatively rare. Both Dr. Minty and Dr. Joseph, although accepting that persons exposed to levels below 176 were at risk, stated that the risk is increased if the dose Is increased. Dr. Murray pointed out at T8217 the relativity of 4 'small* and 'substantial* doses. Dr. Berry gave statistical information which tended to support the assessments of Drs. Minty and Joseph. 14 5. S. 1 fine on balance, in general terms, that, provided the dose was sufficiently excessive, Chen it is possible to find that in face a particular dose has materially increased the; risk. Whether it has id each case I will leave until .1 deal with each particular plaintiff. . I first, however, say sostething about foreseeability of risk. FORESUSABILITY OF RISK In Wyong Shire council v. Shirt (1979-1980) 146 C.L.8. v40,, *tp.47,* .Hasan.-3. said, . "foreseeability .of the`risl and. likelihood that it will happen- are-two different things* he said this was in the context of breach of duty rather than whether the duty exists. Be posed the question as, "Whether a reasonable nan is the defendant's position would have foreseen that his conduct involved risk of injury to the plaintiff" and, if yes, he said, "it is then for the tribunal of fact to determine what a reasonable nan would do by way of response to the risk'*. One could interpose 'reasonable employer* for 'reasonable man*. In Ruches v. Lord Advocate (1963) A.C. 837, Lord Held, at p.845. formulated the test in the following way: "A defender is liable although the damage may be a good deal greater in' extent than was foreseeable. Be can only escape liability if the damage can be regarded as differing in kind from what was foreseeable." This statement followed the following passage in Which Lord Reid set out the appellant's argument: "It was argued that the appellant cannot recover because the damage which he suffered was of a kind which was not foreseeable. That was not the ground of judgment of the First Division or of the Lord Ordinary and the facts proved do not, in ay judgment, support that argument. The appellant's injuries were mainly caused by burns, and it cannot be said that injuries from burns were.unforeseeable. As a warning to traffic the workmen had set-lighted^ red lamps round the tent which cVeVed the* siafeholeT*" and if boys did enter the dark tent* it was very likely that they would take one of these lamps with them. If the lamp fell and broke it was not at all unlikely that the boy would be burned and the burns might well be serious. No doubt it was not' to be expected that the injuries would be as serious as those which the appellant in -fact sustained." In Mt. Isa Mines Limited v. Posey (1971) 125 C.B.R. 383, the plaintiff suffered a severe psychiatric reaction to the. sight 'of / and -because *of his assistingi . tW fellow. Workmen employed by the defendant injured as a' result of the employer's negligence in failing to properly instruct them as to certain mattefSA . It was argued by the ' plaintiff, as respondent to the appeal and in support of the trial judge's award of damages, that "(The guestion] is a matter of fact. The question is whether any reasonable employer could 'reasonably have foreseen the prospect that anyone placed as the present plaintiff was could be affected in the manner in which he was*. In the result. Barwick C.J., at p.390, dealt with that case on the basis that although the result, ie nervous shock resulting i& schizophrenia, was rmuaual .lone case in 18 years of practice to the knowledge of the doctor), the rarity does not deny "the foreseeability of an injury of the class of which it forms one, that is, it is sufficient that the class of .injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for particular injury" and he referred to Chapman v. Hearse <1961) 106 C.k.R. 112. The Chief Justice dealt with and rejected the argument that the particular makeup of the plaintiff contributed to the resulting injury and was a defence. Henries J., at p.393, accepted ........ .the trial Judge's assessment that "the shock injury and the kind of Illness that followed was of a kind or type which was reasonably foreseeable by the defendant in a general way". Wiodeyer j., at p.395, referred to the-formulation by Dixon J. in Bunyan v. Jordan (193?) 5? C.L.R. 1 at p.16 of "the foreseeability of hary,bf. some sucU nature.** (ie.. resulting .' from :hexvbus shook) Walsh J. said, at pp.423*~4144 of the conclusions reached by Skeraan J. in Overseas Tankship (DK) Ltd, v. Moris Dock a Engineerin<? Co. Ltd, (The Wagon Hound (yO.l)) U961) A.C. 308s "The first is that it is not a condition of liability that either the precise character of the damage or the extent of it should have been foresees. It is necessary only that the damage suffered should not be different in kind from that which was foreseeable s see Hughes v. Lord .Advocate (!) and Chapman v. gearse (2i~ fhe1"second reason is that in ^rhe ^waqon Hound" fo, 13 (3) express approval was given to the statement of Denning D.J. in King v. Phillips (4) that "there can* be no doubt since Bourhi11 y. young th&t the test of. liability tor shock xs eeseeabiiity of injury by shock*. Shus' injury by shock is treated as a distinct "kind" or class of damage for the purposes of the general principle enunciated in The "Wagon Hound" (no. jj (6) that liability depends upon the foreseeability of the kind of damage for which the defendant is sued." One can find in the judgments many different words to formulate the guestion. A convenient formulation is whether the injury suffered is of a similar class, type or'character to the foreseeable injury. The difficulty is to ascertain what those words or any other formulation of words means and. 14C. perhaps core aptly, whether as a setter of fact the particular injury suffered falls within those words. And it is a matter of fact in each case. 1 have been referred to other formulations made by single judges in jury trials. This has been criticised to soae extent toy counsel for ^the defendant; ,,- . . j_ ---- ---* ---* but in the end it searns to a* that these shy assist. It is a Question of fact and it should be forsulated in simple terms. It is also sometimes too easy to confuse Questions of foreseeability and remoteness or causation, which can become further tangled with matters of onus of proof. The difficulties become apparent when one looks at attempts to 'formulate the criteria Which go-:to conditioh'the;factfinder's approach to the problem. The second defendant submitted that Z need look no further than Joostea v. Widalco (1979) * decision of this Court where the learned A.I.L.R. 449, a ** trial Judge found that there was no knowledge of mesothelioma until 1960 and, in the circumstances of that case where the plaintiff worked in the office at Witteaooa, it could not have been reasonably foreseen that the plaintiff would suffer injury. The facts in that case are different and the evidence was different. Zt does not afford any precedent to a finding of fact in this case, or to the ultimate decision in this case. After a consideration of the cases, the learned author of Fleming, Law of Torts, 7th ed. at p.192, reached the rather pragmatic conclusion? "Clearly it is a matter of judgment where to draw the line and in problematical cases this will depend largely on what outcome the court wishes to reach. Overriding perhaps is the guiding principle that the hazards should not be defined with over much particularity less the unigue features inherent in every case disqualify the injury from falling within the description of the apprehended risk. Uor should it be defined too broadly lest a defendant be held . liable for all resulting harn of which his default was the cause in fact." , In the end, the questions in this case are - was there a foreseeable risk of the plaintiff contract i ng--aysotheliem* from his inhaling asbestos dust?; did the defendant fail to take reasonable care to minimise that risk?; were the plaintiff's injuries caused by that failure?; and did the 1 defendants' breaches materially contribute to the plaintiff's injuries? And the onus is on the plaintiffs to establish the answers to those questions. which bust condition their right to damagesI The''first question involves a consideration *of the ' known dangers of exposure to asbestos dust. Was there a' foreseeable risk that the plaintiffs would contract asbestos is or would contract ^lung cancer, and is mesothelioma of like class or type or character to either asbestosis or lung cancer? X find as fact that ABA should have foreseen a risk of ) asbestosis. I also find that at all times between 1949-1955, ABA Should have foreseen a risk of lung cancer following asbestosis. Counsel for the plaintiff then .submitted that some of the reports in the 1940s, although referring to endothelioma which is mesothelioma, were classified as 'lung cancers* in the statistical information s he saya that if I find that lung cancer was foreseeable, mesothelioma was *t probably at the time grouped with lung cancer and therefore foreseeable in that manner. 1 have some doubts about that argument, but X need not pause to consider it because Z have reached the conclusion as a matter of fact that both lung 150. cancer and mesothelioma are of a similar class, type or character to asbestosis. 1 heard much detailed 'evidence of the precise characteristics, so far as they are. known, of asbestosis, lung cancer- and mesothelioma. Differences ranged-ove> a variety of a areas, including cell type, pathology, position in the body, differences in treatment, life expectancy, cause, latency period, complications, effects caused by smoking and more. For the curious, the evidence discussing the similarities or differences and references in the transcript are collated at pp.494-500 in Vol.IXI, plaintiffs* written .submissions. The' distinctions, .in*' ay view'; are too nhrrowiy' 'drawn' For the purpose of reaching the conclusion that mesothelioma and lung cancer are diseases e like kind and character to asbestosis, I rely, upon the following findings of fact - 1. Each of the three diseases can be caused by the inhalation of asbestos dust. 1. Each affects the respiratory system. 3. Each is dose related in .the sense that, the greater the exposure related to both quantity and time, the greater the risk. It is statistically true that a smaller dose will cause more cases of mesothelioma than asbestos is, but it is also true that asbestos is can be contracted with relatively small doses. For example, evidence shows that some had contracted the disease after heavy exposure for periods of one year or less. 4. hung cancer, of course, was at the time suspected of following on as a possible complication from ISX . ssbestosis. Asbestosis, lung cancer 4n.fi mesothelioma are each capable of producing severe incapacity and death. It is true that mesothelioma will inevitably be fatal within a very short period of diagnosis. Lung cancer will nearly always be - --fatal, but not necessarily within -swfra short-time of diagnosis. Lung cancer will often be preceded by asbestos is. Asbestos is is capable of severe consequences itself. Severity is a difficg.lt concept. It is accepted that the lapse* of tine between exposure and contracting asbestos is is usually, shorter than the lapse*?, of. time/between 'exposure :and - contracting mesothelioma, in the .former, it may be only a few years; in the latter, it may be 30 or 40 years. In the isformer, if the asbestos is severe it stay itself, or with complications not necessarily being lung cancer, cause death. Mesothelioma will inevitably cause death, and relatively much more quickly than in the case of ashestosis. Bow does one compare these cases in terms of severity? As well, are there policy considerations in the context of it being accepted that, for mesothelioma, there is no safe dose? Samuel J. in Rowe v. McCartney (1976] 2 U.S.W.L.R. 72, -at p.98, suggested that matters of policy may help resolve the matter. 2 do not disagree with the approach; but, in ay view, it does not help resolve the present problem. It is not inevitable that all exposed to asbestos dust will contract mesothelioma. But the risfc is increased if the levels are increased. What is the policy consideration that absolves an employer for negligently exposing a workman to doses of dust 152. that cause a risk at asbestosis but he contracts mesothelioma instead? Are there considerations of policy which would enable one worker who inhales excess quantities of asbestos dust''due to his employer's failure to contain the dust to a reasonable level and who contracts asbestos is within two years which causes his death in, say, 10 years; and who obtains compensation, but excludes the workman who worked alongside the former man in the same conditions. and contracted ) mesothelioma as a result some 30 years later and died within a year? Zt is difficult to decide in the abstract which is the - aoreC severe - result ' in ; 'those/examples'* it' -might be / thought* that considerations of policy would, if other circumstances tended in that direction, favour a finding that mesothelioma x is of like class to asbestosis and therefore foreseeable. * Each is a physical injury, each affects the lungs, each can have severe consequences affecting the lungs, each can be and is usually caused by the inhalation of asbestos dust and, ) although the threshold risk for asbestosis may be less than that for mesothelioma, the risk has been increased in each case because of the defendants' failure to *keep the dust within acceptable limits. Such an approach would seem to follow that taken by Brinsden J. in Clarke v. Chandler Clay Pty. Ltd. (1984) Aust. Torts Reports 80-631, who took a broad view of harm by physical injury when considering injury to health by exposure to dust. As a fact, 1 find that mesothelioma is of like class and character as asbestos is and was a risk of foreseeable harm against which the defendant should have guarded to the extent I have already mentioned. 153. I also find that mesothelioma is of like class and character as lung cancer, and was also a foreseeable risk to be guarded against to the sane extent as guarding against asbestosis. In simple terms, it 'was reasonably foreseeable that. with..the high doses of asbestos ^ibre to,-which workers in or about the mill were exposed, they were at risk of contracting a serious disease, asbestosis. or other serious harm of like class, namely lung cancer or mesothelioma, caused by inhalation of such dust. I turn now to consider the case of Barrow. PiAXHTirraarrow : The plaintiff Barrow was born on 13 March 1923, in London. At age 19 years he joined the British Army and served in an entertainment group. Be Was demobilised in 1942. puring his time in the Army he obtained a BA by correspondence at the London polytechnic. Be emigrated to Australia in about June or July of 1947 and is or about October or BoveBber 1947 he obtained employment as a driller's of fsider doing geological survey work at Wittenooa;. Be worked for several months on top of the gorge known as colonial Gorge. The team he was with was drilling for asbestos. That team worked for Hancock t> Wright. Be used to call in to the settlement fro* time to time by climbing down the gorge. It is his recollection that when that work ceased he applied for a job to Mr. Broadhurst, the sine manager for ABA at Wittenoom at the time. Be was given a job as time-keeper. It was his recollection that he commenced work in March or April of 19*8 and that he remained employed at Wittenoom until he left in August or September of 1951. His employment record (exhibit 3} might give an indication that he started with ABA on 24th January 1949, but he still believed that he commenced earlier. In the sain, I believe that the records of ABA chat remain indicate chat reliance can be placed upon then as accurately reflecting that which is contained in thee. This is not necessarily the case vith Hr. Barrow's employment card. There is absent from his card certain data common to most other cards. It may be that this is explained because be was engaged at Wittenooa rather than at Perth. Another difficulty in accepting the card at face value is the practice of paying off employees and re-engaging them after holiday 'breaks,*' which .could`^Account;.-for the ` later/,'1starting- date'., notified on'the card. That card, indicates a'starting date of 24 January 1949 and that he was paid off 8 July 1949. But it is not in dispute that he was employed until 30 September t 1957. There are other entries on the card which are hard to explain. In the end, 2 do not believe that it matters, but if I as wrong in that regard I accept Mr. Barrow's considered sworn evidence on the subject, even though it differs from some of his earlier attempts to outline his work history. These were first attempts and not made until some 30 odd years after the event. Prior to the hearing, he has been obliged to reconsider the timetable for the purpose of giving sworn evidence and have no trouble in accepting his present sworn recollections. It has always been his view that he was employed by ABA, not CSB, and he believed that ABA was a subsidiary, of CSR. Be indicated that the people who worked in Wittenoom were mostly foreigners, being mainly Europeans. Re commenced work as a time-keeper. Hr. Brcadhurst explained to IS5. hire that he would have to go round the mill to do this because many of the workers ecuId not speak English. In fact, because ot this language difficulty, most of the time cards were written up by Hr. Barrow himself. -He indicated that he would spend about two hours of the day on this tash"and' tKafc~Sout one hour of this would be spent in the mill visiting most places where the sen worked. Be was employed most of the tine in the store immediately opposite the mill, which was some 20 feet away, and he was involved in checking all incoming goods. Shortly after he was employed*, although again, there .nay be -some* doubt about' .tbe; precise, time, (he started , to. do, assay work. Be lived to the tent:-town -initially'until he was transferred to staff some time later in 1949 apd he then moved to a four roomed house. Be recalls that the mill opposite the store was either asbestos or metal cladding with a 10 to 15* gap from the ground and a 5* opening below the roof line all the way round. This was, he thought, to let the air ia at the bottom and the dust out at the top. Bis description of the building, showed that it had a concrete floor, though this was quite often heavy with asbestos dust, sometimes up to 2* deep. The concrete floor was about S' above ground level, in fact level with the tray of a truck. There'is also debate about whether the whole of the floor wae concreted. 2 an unable, on the evidence, to resolve that question. . Be described the store as having either asbestos or tin walls * with a tin roof and an inside mezzanine floor with a back and front door but no windows. He said there was a gap between the eaves and the roof which he' and others stuffed up to stop the dust getting in. He did most of his work from the store i 56. ana in this he was assisted toy a Mr. Perzizi . Daring his time he believed that the mill worked two shifts of ?-* hoars each, starting at 7.30 an. His hoars were normally 7.30 ea to S.00 pm. His time-keeping took his arpund the mill, the fitting shop)* the garage and the other mill areas, collecting time sheets*. He would fill them in as he'toent`ahd'nfheT'collate a them io his office and take the results to the main office. Sis job as assayer took him into the mill every two hours to take samples of the asbestos fibre from the bagging bin. He collected a 4 lb. sample in the box from where the fibre was bagged, took it into the store and divided it into four sections. One of these., he. placed over.small screens which. were then vibrated by hits turning_a handle.. .The product was then analysed to ascertain how much rock and dust was separated so as to assess the amount of impurities in the asbestos. This operation took about 10 to IS minutes every two Hours and he would sample approximately eight times per day. The screens on which he sampled were open and he said that dust emanated from the continuous vibrating of the screens when he was screening the sample. Another task which he undertook was to act.as tally clerk when the trucks which brought stores were used to backload the hags of asbestos. Be also operated the pedal radio between 10.30 to 11.00 am each day. This was mostly for the Flying Doctor and for urgent telegrams. There was no telephone. His correspondence and papers in the store were usually gritty because of the dust and there was always in the store minute particles of dust floating around. There were no fans or airconditioning. Be stated that the mill closed down for maintenance on Saturdays. i 5?. His recollection of the most dusty places in the rail! were at the crusher and the shaking tables. He said there was a deal of dust and asbestos on the floor and consistently there was dust where the bags were 'filled and where they were loaded on to the trucks. His tally cfoxklng ^.job ,wwa& undertaken three or four times per week. * He indicated that the removal of tailings also created dust and he said that outside the mill the dust was so bad os some days that you ) could not see one end of the bill from the other. Both his evidence and that of Brown indicated that, along the open side of the sill on the side of the.road opposite Barrow's offiqe, ,,'V 'trucks loaded frottr the t;aitings .bin Which .was i&sidd `the inill and they also loaded the bagged asbestos onto trucks from near that area. Barrow said that the pall of dust depended upon atmospheric conditions .and wind. When he was in the generally there was not much nill the machinery was usually operating and the dust was, as described by him, Mnot exactly a pea souper, but it was reasonably thick" Be indicated that sometimes visibility would be down to 10 to 13 feet and there could be up to or about 2" of dust on the floor. His recollection was that the dust was worst at the crushing and shaking table. Be stated that the dust just hung over the gorge like a big cloud. it would be about three-quarters of the way up the gorge; He recalls the dust coming from the mill itself through the gaps in the walls at ceiling and floor levels, and he recalls that 44 gallon drums were welded together and used as flues or chimneys. Be cannot recall any fans or exhaust systems. He recalls the bagging area as a metal unit, shaped rather like the cover over a fish and chip- 158. cooker in a fish shop. The bagging area had a space for two operators where the asbestos could be pulled through and bagged. He stated that near the bagging bins the workers were virtually covered in asbestos. * He said there were no respirators at the store and no workers used any. although he recalls that some men wore a handkerchief over their faces. He recalls seeing asbestos and dust on the floor being pushed away with a broad broom, with a flat piece of wood at the > bottom, around the bagging machine, fie indicated that .one had to be careful - walking outside near any roof edge because the ' ' vibratipns of 'the mill;,. would quite often dfcbp. dollops of'4ustV - off the roof onto the ground. Be stated that tailings were trucked away regularly and that there were trucks involved in doing nothing but taking tailings fros the Bill. Be said that t no instructions were given to him about the impact on health of asbestos fibre or dust, and no instructions were given as* to the wearing of masks. He indicated that the sill had a ) flat roof with some 44 gallon drums welded together as flues going through it. Be stated that the workers were classified into mine workers, surface workers, staff, senior staff and he understood that ABA was run by CSR. fie was cross-examined in general terms as to dust extraction but has no recollection of fans or exhausts and. does not know what cyclones are and cannot recall other than the 44 gallon drums and believed that there would be five or six of those coming out through the roof. Be had not heard of a Warman Wet Collector. He said, "To the best of my knowledge there was no water in the mill at all". This,, of course, is not correct if it was a reference to the Warman. H was quite 159 - certain, when questioned about respirators not being worn. have detailed his evidence on respirators elsewhere. I Z accept the plaintiff as a witness of truth and that his evidence as to the conditions in the mill and the loused late surrounding areas is his best recollection of events and scenes daring the tine that he was in Wittenooa. His description of the dust conditions observed by hia is consistent with that of other witnesses. 1 find as fact that for some three years he worked in the storeroom, and that during that time he was occupied each day in the aill taking the time sheets, and later the samples, and tallying the bags ` to 'be:. trucked; out4 and _ fchat... the. balance- of :his working: hoyrs s. ' were, apart1 froa' time .spent at the' pedal- radio, spent in or about the store, which also contained appreciable quantities of dust. I -find that, during the whole of the tiae he was at those places, other than perhaps the radio, he was in varying degrees exposed to dust containing asbestos fibres coning directly from the mill equipment inside the Bill and ventilating through the sides and the roof and through various chimneys; that dust'often fell in the vicinity of the ail! and* reaained in the vicinity of the Bill and, of course, his storeroom which was but 20 feet away, and that asbestos dust was generated froa vehicles transporting tailings and bags of fibre, and the roadway. 2 find that the exposure was., excessive to the extent previously expressed and for the reasons previously expressed. When the conditions were such that visibility was reduced to the extent he has indicated, and as shown in exhibit 2 photograph 6, then masks should have been wprn until these conditions cleared. Unfortunately, 160. these conditions occurred too often during the life of the aiill. That they did is because of the failure of ABA to contain the dust by the introduction of sufficient equipment end -the introduction of sufficient' supervision to see that it . was aainfcained in working conditions .at all times that.-the plant was operating. The issue concerning respirators in fact becomes a little unreal in the context of conditions of dust described by the witnesses. Even on Hr. Brown* s' assessment of conditions, it sees* to me that entrants to the mill who were obliged to go to the bagging section should have been provided with &asks and directed to wear then for the short tines they " rwere present: 'This .would, hkve b-eerr practicable.'in the case fef * Barrow. It did not happen. The exposure to dust containing asbestos fibres in such large< aaounts over a period of soae three years was excessive, leaving &e in no doubt that the 9 risk of Hr. Barrow contracting asbestos is, or lung cancer, or sesotheIlona, was &&terially increased and thereby contributed to his contracting Besothelioaa. Be has satisfied the onus of proof on causation in relation to him that I had previously left for later consideration. It follows that causation ^for asbestosis is also proved. Hr. Barrow is entitled to damages from ABA. Mr. Barrow left Wittenooa in or about Septeaber 1951. Be worked in various jobs thereafter, apparently not being subject to any exposure to asbestos dust. In 1962, Hr. Barrow became short of breath when nowing his lawn. Be was then living in Wandurah. Ke went to see Or. Ong of Kandurah. Or. Ong recorded that he first saw Hr.. Barrow concerning a chest complaint on 1? September 1982 when he came complaining 161. of coughing. He again visited Dr. Ong on 28 September, still complaining of chest coughing and wheezing and, on 25 October 1982, complaining of shortness of breath and chest tightness. He was sent for x-rays; and Dr. Ong saw him again with a 'similar complaint on 2 November 1$82. chest x--ray taken in October 1982 was, according to the radiological report accompanying the radiograph, 'probably due to pleurisy some 2-3 months ago - patient stable41. hr. Barrow later sought further advice from Dr. Wallace at Pin jarra Hospital and be was referred to Sir Charles Gairdner Hospital, no doubt because, of his. history, of .havingrworked.at 'Kitt.ehoom. -.1 rvili deal in detail with Mr. Barrow's medical history later:' It is sufficient at this time to note that his x-rays indicated pleural thickening and biopsies~were taken for the purpose of excluding mesothelioma. Thereafter he was tested from time to time at Sir Charles Gairdner Hospital until September 1983 when he was discharged. He returned again in January 1983 following a two week history of breathlessness and right sided chest pain. Chest x-rays then indicated malignant mesothelioma and this was verified by biopsy. Barrow's claim that he has Asbestos is In medical terms, whether Barrow has mild asbestosis or not makes little difference to his condition. The evidence indicates that he probably had a pleural effusion when he was diagnosed as having pleurisy in 1982. He was found to have pleural plagues and pleural thickening to a marked degree. There is no dispute that this was caused by his asbestos exposure at Wittenoom. Sputum tests show excessive quantities of asbestos fibre 35 years on. 162. He suffered breathlessness froa 1982, which was either the result of the pleural thickening or mild asbestosis. Froa 1986, when the diagnosis of malignant mesothelioma was cade, his .symptoms froa that tuaour have overtaken all other syaptoas. - On the view 2 take of the aatter of-foreseeability, it does not natter whether Barrow has asbeatosis or not, nor will it affect any award of damages, because. If he has asbestosis, it is of a slid kind and his symptoms of breathlessness between 1982-1986 are consistent with pleural thickening as a result of asbestos exposure, I have, :however,-.heard a great deal of evidence on the aiatfcer; and* 'the defendants argue strongly that: the' pliintiffs cannot get the foreseeability argument off the ground if each plaintiff does not have asbestosis. I have rejected that argument, both as to foreseeability and causation: but, in the event that 2 am -wrong, I should make findings of fact dealing with the allegation that Mr. Barrow has asbestosis. Mr. Barrow was not diagnosed as having asbestosis when he was being treated at Sir Charles calrdner Hospital between 1982 and 1985. It was Established that he had pleural thickening, and there was nothing particular about his x-rays to call for closer examination. His pleural thickening produced mild symptoms only. What was important for his medical advisers, in view of the mildness of his symptoms, was -that there was nothing to indicate mesothelioma. His symptoms did not apparently progress and, in 1985, he was discharged in the sense that he was told that he need not return on a regular basis for checking unless there was an increase in his symptoms. 163- He was, in fact, back within three months and, shortly after that, malignant mesothelioma was diagnosed. This became the dominant matter to be examined. The statement of claim of both s plaintiffs alleges asbestos is as well as mesothelioma, although,,..it is conceded that Mr.*Beys not^have asbestosis. in January 1984, writs for damages were issued on behalf of many ex-employees of ABA, claiming diseases from which the particular plaintiff was not suffering (the witness Young was such a case). I have assumed that those writs were issued on legal advice 'because of the Amendments to the Limitation. Act. which altered earlier limitation periods,, in certain' circumstances of' asbestos'delated diseases. I do not pause to consider the merits of that advice. In fact, both defendants pleaded the Statute of Limitations. ABA abandoned the plea when counsel opened ABA* defence. CSR abandoned the plea in closing. During counsel's opening the case for the plaintiffs in November 1987, I asked counsel whether Barrow had ) asbestosis. Bis response was, "that is an interesting question". Se was correct and, in fact, it created much interest during the trial, if interest is to be gauged by the time spent upon it, I expect that the interest was instigated initially from the legal point of view. Dr. Musk is the physician responsible for the treatment of those who attend the chest clinic at Queen Elizabeth II Medical Centre. Be readily concedes that asbestosis was not diagnosed until he started to review the clinical records and medical history of Mr. Barrow in 1987. 164 . There are two mainstreams o evidence, On the one hand. Dr. Musk is now of the view that the earlier signs of asbestosis were missed by his department and that the latest tests, which by themselves are not diagnostic tests, add confirmation to that view. He concedes, from Jjii^owu assessment, that x-rays cannot confirm the* diagnosis? but he does not agree that there must be radiographic signs apparent to sustain a diagnosis of asbestosis, especially when it is in the early .stages. Also, the x-rays are . to a degree obscured by the pleural thickening. Be obtains support from the radiographs, however., in the fora of evidence, fro* Dr.( Glancy,. a specialist radiologi'st: On the * other hand, ' a': physici-an *' called by the second defendant. Dr. Lee,' places greater emphasis on finding radiographic signs and greater enphasis on hearing crackles that there say consistently in both * have been a hint lungs. Be indicated of crackles at one examination, but he would have expected more, and in both lungs, before he would diagnose asbestosis. Dr. Gandevia supported Dr. Lee. He could find no signs of fibrosis on the x-rays. Drs. Lee and Gandevia were supported by Dr. Hunter, another specialist radiologist. Barrow*s pleural thickening is consistent with a benign asbestos pleural effusion. He had past asbestos exposure, he had no previous history to suggest pleural thickening for non-asbestos related causes. Dr. Musk(s evidence in summary, to support a finding of asbestosis, was (1) There was asbestos exposure, even though it was at the end of the range of time for an expectation that 265. asbestos is would occur after commencement or cessation of exposure to asbestos fibre. (2) When inhaled, asbestos is retained in the lung and the fibres become coated and can be recognised under _ a microscope. __________ (3) A broncho alveolar lavage wash in November 1987 produced large numbers of asbestos bodies. (4) Asbestos sufferers usually produce inspiratory s > .crackles, which are fine, discontinuous noises which can be heard through a stethoscope. Crackles have -been heard in both* lungs by Dr. Husk, although, apt . ' cons istently >*. 'ah'd he* .agreed ' tj>at he would be bore confident in diagnosing asbestos is if he had heard crackles in both lungs than crackles is one lung only. (5) lung function tests and exercise tests showed abnormality which was, at the time, said to be consistent with pleural disease and it Is not ) disputed that the consistency still remains. Dr. Musk reviewed all of these tests in 1987 and said that the last test in November -1987 indicated abnormality of gas exchange within the long which, he said, could not be attributable to the presence of pleural disease. (6) Dr. Husk was not confident that he could detect asbestos is in Barrow from his x-rays, but he would not discount other findings simply because it could not be detected radiologically. 166. Or. flinty, an oncologist in the field of radiotherapy, examined Barrow in July 198? for the purpose of supporting a diagnosis of mesothelioma, which was apparently then still n issue. He aade no mention of asbestos is when reporting to the t plaintiff's solicitors. He considered,' from the hospital records, that this was self-evident and he,was only concerned with the diagnosis of a fatal cancer. He diagnosed asbestos is based on his examination of the file? Barrow's heavy exposure to asbestos? his obvious respiratory problems and his x-ray appearances. 8e referred to x-rays taken before Barrow bad been diagnosed* or showed any signs of aesothelioaa, and he .reached- ' oongius ion; 'that Abe had, "plebrah"* tiiip^ehingV obliteration of the costaphreoic angle and what I considered to be quite clear evidence of fibrosis in his lungs ... Be had a very abnormal chest x-ray which 2 interpreted -- not as a thoracic physician 'but as a cancer doctor as showing fibrosis of his lungs0. Be was, however, quite prepared to bow to the opinion of radiologists when it cm to interpreting x-rays. In this regard, I suspect that he would dot be able tq argue with either Dr. Glaacy or Dr. Hunter, both specialist radiologists, each with a different interpretation of the x-ray readings - on the one hand. Dr. Clancy confirming the diagnosis of ashestosis? on the other. Dr. Hunter negating such a diagnosis based on the x-rays produced. Drs. bee and Gandevla, both eminent thoracic specialists, supported Dr. Hunter or, perhaps to be more accurate, neither Dr. Lee nor Dr. Candevia would support a diagnosis of asbestosis based on several factors, including particularly the absence of x-ray indications, and Dr. Hunter confirmed that aspect. 16? . Dr. Finucane is a physician and head of the department of pulmonary Physiology at Sir Charles cairdner Hospital and has specialised in his field for 25 years. The lung function test? performed on Barrow were undertaken in his department. He accepted that his* tests were not diagnostic;`Bfft^cdQla^Kelp eliminate or support other diagnoses. Ke inclined to the view that the results of the lung function and exercise tests were most supportive of a diagnosis of interstitial pulmonary fibrosis. Beturning to Dr. Dee - he said that the radiological - evidence fell short of. that which .would .be .*reguired. tt?, diagnose asbestos is. He agreed _that the*' broncho alveolar lavage test taken in 1987 indicated an inflammatory process within the alveolar area and that asbestos exposure was the most likely cause and that this could lead to fibrosis. He considered that this inflammatory process night indicate a precursor of asbestos is. He was sot prepared to diagnose asbestosis, however, in the absence of radiological or other . histological findings, and he said he would consider sore seriously a diagnosis of asbestosis before there were radiological signs if there were crackles present. Be would not exclude the possibility that Barrow had asbestosis, but he could not support a diagnosis that he presently had. it. 1 have dealt relatively briefly with the evidence. 1 am left with the choice that Barrow either has an extremely mild form of asbestosis or he has the precursor of asbestosis. Z find that the clinical signs are such that, for all practical purposes, were he not suffering from mesothelioma and were it not for the legal implications, it is unlikely that, in the 16 8. normal course ct events, he would have been diagnosed aa suffering from asbestosis. It would not have beers important enough co investigate solely for medical purposes. 1 an, however, obliged to resolve the issue and it is not simply a question of counting medical heads to see which argument has the greatest numerical support. ' I make the following findings - 1. It is not essential for a diagnosis of asbestosis in its early stages that it be identified radiological!*. 2* There is a permissible range of variation in interpreting radiographs. I accept that Drs, Clancy * yr;-:r> .. . > * * . * / . ' and Minty; believe that the x-rays. support a positive ' diagnosis of asbestosis and that Crs. Lee, Gandevia and Sunter do not. I am not competent to look at the films for the purpose' of deciding who is correct. Zf the diagnosis depended solely on the radiographs, the plaintiff would fail simply because 1 would be unable to find on balance Who was correct. 3. The matter falls to be resolved between the view of the team headed by Dr. Musk which is monitoring Mr. Barrow*s Illness and the defendants* experts. In the end. Dr. Lee was unable to exclude the possibility. He rather indicated that he was unable to support a present diagnosis. Bo doubt the . distinction between a disease and a precursor of that disease is very fine; but those supporting the diagnosis have convinced me that there is clinical support 169. for it and that the symptoms suffered by Barrow since 1962 are consistent with it, albeit consistent also with pleural thickening. And it is accepted that there is an ioflemmatorv process in the alveolar area and there is some positive support from an experienced radiologist."*' a Z find that Barrow has an extremely t mild fore of asbestos is and that his symptoms since 1982 are a result of a combination of that and his pleural thickening. As I have pointed out earlier, this finding has no practical effect on Hr. Barrow's case in the sense that it ^dges^ not-affect his, guantum of .damages..; Borgia py view, doe* it have any legal implications. _ / ' '* BAagOtf'S DAMAGES The progression of the disease with Hr. Barrow has been slower than is usually the case. Malignant mesothelioma was diagnosed in AP*ii 1986. Be has recently, however, started to deteriorate and- there is a strong possibility that he will lose the use of his right are. Mrs. Barrow is also unwell. She is a diabetic with liver problem and a duodenal ulcer and will have difficulty in caring for Mr. Barrow.* Help will be required even before he reaches the terminal stage of his illness. Mr. Barrow adopts a public appearance of accepting his disease with fortitude. Be has, however, the conscious prospect of a very much shortened life span with the certain knowledge that, whatever the period, it will be occasioned by increasing discomfort, increasing disability in function and increasing pain and will end during the terminal stage with some three months or s in hospital. The tumour has already eaten into his ribcage and will probably eat into his armpit, making for greater disability and more severe pain. He faces a lingering death and, unlike many, injury cases, the greater pain and discomfort is yet to come. SIS noro^l'^tfe"'span- is curtailed by some 10 years and he has now lived with the spectre of all of these prospects since 1986. He is now aged 65. 1 would assess damages as follows - 2. ;t 2. General damages including past and future pain.and suffering and loss of amenities Loss of expectation Of life ?100,000.00 . ' *$ ' 4,000.00 3. Future services from an association akin to the Silver Chain <exhibit 462} $ 8,000.00 4. Past economic loss, the calculations for which1 appear in the schedule to the plaintiff4s submissions $ 35,519.00 5. Future economic loss of capacity - Mr. . Barrow is now 65 and it was not likely that he would continue working, however he has lost a capacity and the ability to undertake any type of employment, part-time or otherwise, and Z would assess this at $ 5,000.00 6. Medical expenses and special damages to date * . $ 5,312.65 . 7. Prospective future medical expenses and hospital expenses mainly during the terminal stage (exhibit 254} $60,974 discounted in combination with item 3 and generally to cover overlap and prospect of non-use $ 56,500.00 Counsel for the defendants did not dispute, in closing, the submission made by counsel for the plaintiffs that past and prospective medical expenses for treatment at Sir Charles Gairdner Hospital say be included on the basis of the decision in Griffiths v. Kerkemeyer {1576-1S7?) 135 C.L.R. 161 and the assessment made by Prof. Lents on that case at pp. 207-8 Assessment of Damages 2nd ed. I .have, accordingly, allowed it at a;discunted figure. X do not allow interest on any iteas,. based on the fact chat. compensation uhder the Workers' *" Conj>8K3Bti6h """Slid Assistance Act has been paid. Although it nay be repayable, the plaintiff has had the use of that money already. In the .result, subject to adjustment for Workers* Compensation paid, the * plaintiff Barrow is entitled to judgment for $216,331.65. THE XATS HR. BEYS '* The late Hr. Beys was employed at Wittenooa between "W"August 295S and 6 October 1P5S. J?e was originally engaged as a plumber's assistant, but he obtained a job, after about three weeks, as a bagger, which was better paid. On one or two occasions during that time he worked a double shift. I have already described the method of bagging, the conditions as described by Mr. Beys, and hie description of the fibre and dust to which he was exposed. 2 find that ABA breached its duty of care Is failing to warn bin of the dangers of working in the environment which existed; in failing to either devise a system to shield him from the asbestos fibre in particular at his work spot within the nill and to control, contain and exhaust the excessive dust which was produced in the mill and, alternatively, as a last resort, in * the absence of these other measures. In failing to insist that he wore a respirator at all times whilst bagging. 1*72. I find that it was foreseeable that such heavy exposure to, end the continuous inhalation of, fibre and dust in such excessive quantities at his work place in the ill could cause the ;serious injuries already mentioned, and that this materially contributed to the harm he eventually sustained. fie left Wiccenooaas a result of a gambling windfall and his career progressed in an orthodox manner until late 1965. fie had influenza in August of 1965. In November of 1985 he thought that he had pleurisy and he saw his local doctor. 8e was reviewed in Perth Chest Clinic in January 2986 and in Sir Charles Gairdner Hospital in March and April 1966 Where# after `ext'enslye'-Iavestigat i ots' '-and.*fcests was- revefcle&..that ;he - had malignant mesothelioma..' It is not in issue that this was caused by his exposure to asbestos at Wifctenoon. Be had extensive radiotherapy and surgery after that. By < beeember he had marked impairment of lung function. It was then predicted that his life expectancy was between three to six months and he, in fact, died on 1st April 1988. Mr. Beys was entitled, on his death, to damages from ABA. THE "HBYS* DAMAGES The late Mr. Beys* claim has survived for the benefit of his estate, pursuant to and subject to the provisions of the Law Reform (Miscellaneous Provisions) Act, 1941-1986. As well, his dependants claim pursuant to s.4 Fatal Accidents Act, 1959-1986. I shall deal with each in turn. Claim under Law Refor (Miscellaneous Provisions) Act. By s .4 (1 >s 173 . "Subject to the provisions of this section on the death of any person all causes of action vested in hi* shall survive for the benefit of his estate." By s.4(2 5: ,"The damages recoverable for the benefit of the estate ~ (a) shall not include any exemplary.damages; (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action shall be calculated without reference to any loss or gain to his estate consequent on his death except that a sum in respect of funeral expenses may be included; and <d) shall not include any damages for the pain or suffering'of that person .or for any. bodily r eatal ' harm *. suffered .by him or r* fpr curtailment `of his expectation fTlifes, * * <e) shall not include any damages for the loss of the capacity of that person to earn or for the loss of future probable earnings of .that person during such time after his death as he would have survived but for the act or omission which gives rise to the cause of action.* The only matter in issue is that the substituted plaintiff, being representative of the estate, claims damages for loss of amenities of life, the argument being that this head of .damage was not excluded in s.4(2). * In the absence of authority, 1 would reject such an argument. The expression *amenities of life* is an expression coined by judges. As Taylor J. said in Skelton v. Collins (1964) 115 C.L.R. 94, at p.113* "boss of the amenities of life is a loose expression but as a head of damages in personal injury cases it is intended to denote a loss of the capacity of the injured person consciously to enjoy life to the full as apart from his injury he might have done.* In Fitch v. Hvde-Cates (1982) 39 A.L.B. 591, at p.58B, Hason J, (as he then was) discussed the phrases 'loss of amenities of life* and 'pain and suffering* and he indicated 174. Chat there could be a difference. Ke discussed this in the context of a provision similar to s.4(2)(d). That discussion does not resolve this case. it follows from it, however, that although loss of amenities of life may not be entirely subsumed under the expression `curtailment of his expectation of* life' , it seems to' me `tfiat' it^wouid be subsumed by incorporating it within the expressions `bodily or mental harm* and `pain and suffering* collectively. Counsel for the plaintiff referred to the case of H. West & Son j,td. v. Shepherd 11964) A.C. 326, but this merely distinguished the two expressions, 'loss of amenities* and 'pain and suffering* by discus s ing them.as separa*e. heads. .. Thab d-eo ision does fiot Impinge on the present, case. _ '' ." . In ny view, the expression `loss of amenities of life* is encapsulated within the three heeds of damage excluded by sub-s.<d), and counsel was unable to refer me to an authority which said otherwise. I believe the authorities support the view 2 take. I reject the plaintiff's submission in this matter. t w It follows that the relevant heads of damage are (1) loss < of economic capacity to the date of death, <ii) funeral expenses, (iii) special damages. (i) Prior to his illness, Beys was employed by Perth City Council as a parking inspector. Be ceased on 13 February 198? as a result of his injuries. Re accordingly lost income by way of salary and overtime. The arithmetic is not in dispute and, completing the plaintiff's calculations to bring matters to the date of death/ the net past lose is $18,977.47. 175. (ii) Funeral expenses of $1.600.00 have been paid by the estate. v (iii) Special damages. The defendants do not dispute the claim for special damages in Dr. Husk's schedule (exhibit 478) being - Had leal and hospital expenses ^ ,481700" In exhibit 238 Dr. Musk estimated expenses in the terminal stages at $10,127. I reduce this by $282. Mr. Beys died 1 April 1968 which would reduce the estimated out-patients visits from 8 to 5 $ 9,845.00 $18,326.00 The.substituted plaintiff .in;the law ' Kefora'Act''Application i* therefore ' entitled to an amount totalling $38,903.47 I do not allow interest on part earnings. The deceased had the use of Workers* Compensation payments. Dependants of Beys claim under Fatal Accidents Act The principles on which this claim is to be assessed were not in issue, except to the extent of how ! should deal with workers' compensation payments received by the deceased during his lifetime. Counsel for the plaintiff submitted that those payments should sot be treated so as to require repayment pursuant to s,92 of the Workers* Compensation and Assistance Act 1961 and he relied upon Foyster v. Minister for Education, Supreme Court of Western Australia (Full Court), unreported, No. 3744, 8 March 1985. Counsel for the defendant submitted that the matter was arguable and that 2 should ignore this aspect and that 2 should make an award irrespective of any consequences and the law will act as it should. 2 can and 17?. an expected benefit is usually found in the maintenance and support which the deceased was providing for the claimant and could be expected to have continued to provide Cor their joint lives, or where the claimant is,a child, until the claimant became self-supporting: Luntr 9.2.0?." I accept that the deceased's interest in the home is not to be taken into account, nor the salary of Mrs. Keys after the death of- her husband, nor the proceedS' of ariy*rSOpbr*f?muaion benefit received by Mrs. Keys. The average weekly net wage of the deceased was $330. Ha > t was* a frugal man and it is submitted that a reasonable apportionment of the income for the first five years would give a dependency of $210 per week, or approximately $10,900 * .anpy*". `This ,seems^to .me to;Jpe. a. reasonably cpfts,ervati,ye figure and, using a multiplier on the 3% tables for five years of 4.647, there is a loss to the family of $50,745 for the first five years. Af the end f that time, with any children still at home paying full board and Mrs. Beys no longer working, the dependency would on reasonably traditional grounds be assessed at two-thirds, ie $220 per week, and the ) multiplier for 14 years less the multiplier for the first five years ie 6.614, giving a figure of $77,952 for the latter nine years - in all a total of $126,697. 1 have used the 3% rather than 6% tables, based on the reasoning in Owyder v. Peck C1S633 1 Od.R. 351. There are the usual contingency considerations and, as well, the impact of superannuation instalments as against the reduced ultimate payout. in my view, a deduction of approximately 10% for these matters would be reasonable. I award the dependants $116,000. I would apportion this at $3,000 to each son, $5,000 to the daughter and $10S,000 to Mrs. Beys. 2 7a. RELATIONSHIP BETWEEN CSR AND ASA In December 1942, CSR obtained an option to purchase mineral claims for asbestos at Witteroom from L.G. Hancock Ashe itos Company. The option document is not available, its terms are not known. ___ On 6th January 1943, the CSR Board ratified Hr. Tucker's application for mineral claims for asbestos at Wittenoom and authorised him to make further applications. "Mr. Tucker was the Perth manager for CSR. The Board also agreed to the appointment of staff officers of CSR as directors of Western Australian Asbestos Limited (the name then, proposed .for. /Aba);: .'?-Hsrs: Powell,'; WorledgeV' Elmsite/. -Tucker" and Layteft. were agreed to (exhibit 728). The subscribers to the memorandum and articles of association of ABA, which are both dated 23rd March 1943, were t Messrs Powell, Worledge, Elmslie, Tucker and Layton, and each subscribed as the holder of five shares. On 24th March 1943, the Board of CSR sanctioned the registration of ABA and it was in fact registered under the Companies Act of Western- Australia on 6th April 1943. The memorandum and articles* disclosed that the capital of ABA was 100,000 pounds, divided into 80,000 ordinary shares of one pound each, numbered one to 80,000, and 20,000 deferred shares of one pound each, numbered 80,001 to 100.000. The ordinary shares gave preferential dividend rights but, except in special circumstances, no voting rights. The deferred shares effectively held all the voting rights. The articles of association make provision for between five and seven directors and, by article 76: 179. 'The first Directors of the Company shall be Charles Wilfrid Roberts Powell of Kosman in the State of New South Males George Norrie Worledge of Turraourra in the said. State James Alexander Elaslie of Lindfield in the said State John. Leith Tucker of Perth in the State of Western Australia and Ernest Elvin Terry Layton of Perth aforesaid and- each of the& shall be entitled subject to Article 82 hereof .0 retain^ office so long as he holds not lVss than 'one Ifoare''' in the capital of the Company and `whilst holding office by virtue of this provision shall be called a Peraanent Director." Article 82 need not concern me ~ it deals with ) disqualification for cause. By article 84, each director shall have the power to nominate, and the Board^ to appoint, any parson to act as a& ' a'ieirhat% director, in :that*director'splatfe'during'kis abse'nd*' or inability to act, and article 86 provides for the retirement in rotation of any non-permanent directors. All the directors nominated la the articles as permanent t directors were at all times full time employees of CSR. Powell was then in fact the head of the Building Materials Division of CSR, or what came to be known as that division. That division was responsible, amongst other things, for the activities of CSR in the manufacture of hardboard products from various materials and fibres. CSS became involved in these activities, both directly and through subsidiary companies which in the stain were wholly owned by it. Powell also had other duties - he was a senior officer in CSS responsible for CSR refineries. Worledge was the company secretary of CSR. Elmslie was the chief clerk in the accounts section of the Building Materials Division of CSR. 2 have already noted that Tucker was the branch manager for CSR in Perth. Layton was the factory manager of CSR's sugar refinery in Mosaan park'in Western Australia. Each of these directors l&O. held five shares in ABA, and each acknowledged that he held his shares in trust for CSR. Powell was the aost senior officer within CSR of all of these directors. On 7th April 1943, the CSR .Board decided to take tap 10,200 deferred shares in ABA (exhibit 728). At the first meeting of directors* of JA8K"T?eia"**a^s"the company's registered office in Perth on 10th April 1943, which in fact was the only aeeting of directors held in Western Australia during the period with which 1 am concerned, namely 1943 to 1955, Messrs Powell, Layton and Tucker accepted office as directors, and the minutes disclosed that Powell was elected chairman and .was appointed managing director. Apart froa other statutory -requirements for a first meeting, the minutes disclosed that a cheque for 25 pounds was received for the 55 qualifying shares for the first directors, which were numbered 80,001 to 80,025 respectively. These fully paid deferred shares were Issued to each of the five - directors nominated in the articles of association. These cheques is fact arrived, by letter, from the General Manager CSR to Manager Perth, dated 7th April 1943 {exhibit 490), together with the assignment documents shortly to be mentioned and instructions of how these should be dealt with. The minutes disclosed that an application from CSR for 10,175 deferred shares, together with a cheque for payment of five shillings per share, was received and these shares were allotted at that first meeting. They were numbered 80,026 to 90,200. The next resolution which, like the previous one, must have been arranged in advance between the directors (and one 182. assumes Powell) &jxS the Board ot CSR <see exhibit 49G and minutes CSR 7 April 1943. exhibit 728), was that the directors resolved to accept an offer by CSR to assign its option from L.G. Hancock Asbestos Company, dated 16 December 1942, for 500 pounds. This option concerned ^the transfer, of___the relevant mineral claims held by Z..G- Hancock Asbestos Company on which the asbestos mine was to operate. 1 was not told the consideration for the option held by CSR. At that nesting, 9,800 fully paid deferred shares, being vendor shares, were allotted to noninees of - L.G. Hancock Asbestos coapany, it being resolved also that the shares would be issued on completion of the registration of the , relevant mineral claims into the name of ABA. Agreements were executed between ABA and L.G. -Hancock, B.J. Warren and B-A.M. Wright, the owners of L.G.. Hancock Asbestos Company, dated 10th April 1948 (exhibit 419), which no doubt evidenced this arrangement. At the next directors* meeting of' ABA on 21st June 1943, the share scrip to the five directors was sealed, as was the share scrip for the shares issued to CSR, and under the heading in the minutes of that meeting * Appointment of the Colonial Sugar Refining Co Ltd as managing agent and sole distributor* appeared the following minutes "A form of agreement appointing the Colonial Sugar Refining Co Ltd as managing `agent and sole distributor was considered by the meeting and it was resolved that it be executed under the seal of the company and also that Mr. H.E. Breakspear . be authorised to countersign it, the agreement thereafter to be forwarded to the Colonial Sugar Refining Co Ltd for its acceptance." This, of course, had already been the subject of a resolution by the CSR Board on 21st April 1943, which minutes disclose "... that the company would accept the managing' agency of the asbestos company at a fee to be arranged later"- 282. In fact, on 23rd June 1943, the CSR Board minutes show "the agreement in duplicate between Australian Blue Asbestos Ltd and this company appointing this company managing agents and sole distributors was signed and sealed". At that time, namely 23rd June 1943, the only issued shares in ABA were all beneficially held by CSR, so that at that time, given the beneficial ownership of the directors* shares, ABA was effectively a wholly owned subsidiary of CSR. It was not until the directors* meeting of ABA held on 20th July 1943 that the vendors' shares to nominees of L.G. Hancock Asbestos company were issued, and on that day at that ' meeting * it . was : reported " 'that > dSR * hadexecuted the :: managing agent and sole distributor's agreement. At that meeting. Hr, Brown was appointed alternate director for Hr. Morledge. T Senior staff of CSR, including the mine manager, were to be employed to run the mine. Mr. Broadhurst was one such officer. Mr. Tucker, Perth Manager CSR {and a director of ABA), wrote to the general manager of CSR by letter 15tb Hay 1943 {exhibit 365): We would refer to your Alfl and enquire if it is your intention that the salaries, wages etc of CSR employees loaned to ABA should be reimbursed by ABA monthly or whether CSR is bearing the expense." The response, a letter dated 26th May (exhibit 38S), indicated that payment would be made direct by CSR with reimbursement by ABA to CSR. I assume both letters to be CSR letters. After the first, all directors' meetings of ABA were held in Sydney. They were held in the office of the managing director, Mr. Powell, until his retirement in 1952. Thereafter, they 185. were held in che office of Mr. K.O. Brown, who took over Powell's function both as head of 8MD and managing director of ^fter the first directors* meeting,' the minutes of ABA disclose that almost invariably the number* of directors who attended the meetings were three. From time to time meetings were attended by others, including alternate directors in the absence of some of the more usual directors who attended. Persons whose expertise was required for the relevant matters under consideration also attended from time to time.- At no ttki- - 'When' ' these, whom*' X'* `wddId' descr ibe --)km , /the * exceptiv directors, were present, were any of the Perth based directors present, either personally or by their alternate. If a Perth based director, by hie alternate, was shown to be present as a director at any meeting, it would only be because there were not three other directors present, Neither Taylor nor bayton personally attended any meetings of directors of ABA after* the first. One wonders now why they were appointed or why they remained as directors. Mr. Brennan was a chief clerk under Mr. Elmslie in 5MD. He was made an alternate director for Mr. Tucker in November 1949. Since shortly before that time he attended each of the directors* meetings and he did so for the purpose of taking the minutes of those meetings. After his appointment as an alternate director for Kt. Tucker, he noted in the minutes that he was "present" as an alternate director when there were only two other directors 'present* Thereafter, although he was Invariably at the meetings and entitled to be present as Tucker's alternate because Tucker never attended, he did not disclose that he was "present" as a director but rather 184 , indicated that he was "in attendance". Be confirmed in his evidence that he was there to take the minutes; he did not participate in the discussions. He was employed by CSS, not ABA. \ One now wonders why he was appointed a director and why * he remained a director. ---------------- Quite often a Hr. Breakspear attended meetings. He was an alternate director. Sometimes he attended as an alternate director in the absence of his nominated director, but some times he was in attendance to give advice of* a legal nature. Be was in fact a legal officer employed by CSR and w*4 not. employed by . ABA. . Mf. Brown. accented .that.,: pn - many,. ' occasions that Breakspear was shown as being either `present* or * in attendance*, there was a legal matter to resolve and that was why he was there. The three directors disclosed in the minutes as conducting the affairs of ABA were almost invariably the head of BMD as managing director or his .alternate, an engineering* or technical officer of BHD or his alternate, and someone from the administrative accounting or marketing side of BHD or his alternate. Prom time to time these were added to by such other directors or alternates as could add his particular expertise to the subject under discussion. For a period commencing 18 February 1944, Mr. Hancock was a director. Re represented the Hancock-Wright interests. Mr. Wright was appointed his alternate and subsequently a director in his place at the annual general meeting, probably in September 1944. He remained a director until Hay 1949. Wright attended only two directors* meetings, both in 1944. Mr. Brown also recalled seeing Wright once in the Sydney 185. office of BHD. He thought that he may have attended an annual general meeting of ABA. The annual general meetings of ASA were a2ways held in Sydney in directors4 the offices of BMD. * They usual ly_ followed a i *..... meeting. They were usually attended by some directors, both in their capacity as shareholders (holding their shares in trust for CSR) and as directors. At all such meetings, one of the directors of ABA, and sometimes two, and ) almost inevitably one of them being the managing director, held the proxy for. CSR. - *. aii \ of : tfce> fa5ciii ti e of <xsr. were* a t'' the * disposalOf . ABA. The managing director could call* on administrative, accounting and technical support from CSR, and did so regularly. None of the directors were paid by ABA, although over the years they and other members of the CSR staff undertook a tremendous amount of work for ABA, both of an administrative financial and technical nature. ) The Building Materials Division was a separate division within CSR and was responsible for several undertakings which were run either directly by BKD officers, or indirectly through wholly owned CSR subsidiary companies. * CSR had other subsidiary companies in which it had either taken over or bought into existing outside companies and it effectively became a participating partner with the other major shareholder in such companies. ASA was more akin to the wholly owned subsidiary companies of CSR. The only persons who in fact exercised executive power in the running of the affairs of ABA were full-time officers of CSR who were either employed full-time with CSR or were on secondment from CSR to ABA. 106. For a time, Hancock was the mine superintendent. The mill was designed by Broadhurst, with technical assistance from either the technical division of CSR or the technical engineering assisted by side of BHD, of which Brown was in charge, Hr. King. - i'i.I1'*. . > * -"* This assistance case from people who were situated in either Sydney or, at tines, in Perth. 1 an told is fact that diagram SDPl, showing a nil! flow sheet, in the amended Defence of each defendant was prepared by an engineer normally employed by CSR at the CSR Be finery in Perth. The sill and mine were, thoughout the period, under the' .direct -gohtrol,. of. jBroadhufst.,. exeept.far ' short'- periods ~when technical experts' were brought in froh overseas and took charge of either Billing or mining or both for limited periods and daring the time that Brosdhurst was concentrating on developing the town of Wittenoca. The manager at Wittenoos had the right to hire and fire all wages staff, but not any staff who were on loan from CSR. The ranks of this type of staff lent by CSR increased in numbers is 1949 when non-wages employees of ABA were offered, and in the main accepted, employment with CSR. In a way not described, they were then on loan to ABA, which continued to pay their salary. The only practical difference this made was that their tenure and prospects for the future became more secure and, of course, they then became eligible to join CSR superannuation schemes. They were then, of course, subject to the directions of CSR if that company was minded to send them to work in different places for other CSR projects. There were also social benefits. This, of course, had another effect and that is that the firing of this category of staff of ABA was out of IS?. 3 ) the hands of A8A in the sense that ultimate control lay with CSB. The salaries of that category of staff were in fact fixed by CSR. I should return to the sp-called managing agent's agreement 7 X eventually allowed this into evidence against strenuous objections from both defendants. None of the witnesses called by the defendants had ever heard of it prior to this case. Sir James Vernon became a senior executive officer of CSR in 1951 and, from 1958, a director. Be had-not heard of it. Hr. Brown, who from early tines was sent most of .the *: correspondence and. was in. fact , appointed an ; .alternate director the day'that the ASA'Boardl was told of the .execution of the agreement by CSR, had never heard of it. 1 assume that he had not read the early minutes of directors, including1 the minutes noting his' appointment as alternate. Hr. King, Who was at most times Hr. Brown's assistant and Who became an alternate director, and then a full director, had never heard of it. Reference to Managing Agent appears again in the minutes of ABA. Before dealing with those entries end the agreement itself, Z should aahe some general comments about the minutes of ASA. Apart from the first meeting, and until about 1948, the minutes gave almost no indication of what It was that ABA was involved in. The minutes usually noted matters financial - in the main, calls on shares. After 1946, the minutes usually noted receipt of a monthly report from the secretary or manager. It the policy of the company was decided by the directors, then those decisions certainly found no place in isa. the minutes of the directors' meetings which were held regularly each month. To the extent that the minutes recorded other matters later in the life of the company, the entries in the main also related to financial matters. One can obtain *.... .. . I.K. -- I-- almost no indication of what the company w^s doing or what was happening by reading the minutes of directors* meetings. Hr. Brown stated that the manager*s monthly reports were invariably discussed at . length at the meetings. The monthly reports are amongst the documents not produced. One can discern something from the minutes of the annual general meeting of .shareholders.`and an interesting .-example':<of this is in 'the annual general'meeting .of shareholders held 15th October 1946. In that year* in January* the crankshaft of one of the main engines at Hitfcenoom broke and production at the mine slowed down and the mill practically ceased producing for several months. This is noted in the annual general meeting of 15th October 1946 where the chairman* It is said* addressed the meeting in the following termss *Progress generally during the year has been very disappointing* the average production being only 7.4 tons per week. This low production was caused to a large extent by the breakage of the crankshaft of our main engine at Wittenoom in January .last* and this accident put the mill out of production for approximately five months. Curing this five months mining was continued but at a reduced rate and at higher cost. These facts find no expression at all in the minutes of directors' meetings of ABA held during that year. Only a few directors attended that annual general meeting. The chairman held proxies for most of the shareholders. It is probably a fair inference that Powell* Worledge and Slmslie were the only persons who attended. Reference in documents is made to the managing agent during this period. I will detail some of the minutes of the Board of CSR and the Board of ABA during some of the period January to August 1946, s At that, time, sill production was effectively halted. As I have already ..noteddirectors' meetings of ABA cade no mention of this or other than hereafter set out anything of what was being planned or undertaken. I shall also include, in chronological order, extracts from certain correspondence which touch the matter`of the lack of production at the sill and the managing agent. . CSR Board Meeting 23 January .1946. , _ - ... "A;serious accident in'connection' with the breaking of a crankshaft in the Ruston engine at Wittenooa . was reported.** i CSR Board Keating 6 February 1946 "Mr. C.W.R. Powell reported orally on Australian Blue Asbestos Ltd', and it was agreed to continue operating this company and for the time being to call up no additional capital but to finance the project is accordance with the suggestion contained in Hr Powell's memorandum of 2nd January 1 interpose to note that Mr. Powell's memorandum was called for by the plaintiff but not produced by either defendant. CSR Board Minutes 27th February 1946 "It was agreed that the company should endeavour to make a selling arrangement with the Johns-Manvilie Corporation for the disposal of blue asbestos la North and South America . ..** Z interpose again to indicate that nothing in the minutes of ABA from October 1945 to the end of February 1946 indicates that any of the matters mentioned in the CSR minutes noted above had occurred or were occurring. 3.90. ABA Directors* Minutes 19 February 2946 "It was resolved to make a call of four shillings per share on shares numbered 150,001 to 200,000 and to increase the salary of Hancock.* .ABA Directors* Minutes 16 April 1946 Further call of two shillings on those sae=%*res%-- ABA Birectors* Hfnutes 21 Hay 1946 Further call of two shillings on those shares. ABA Streeters1 Minutes IB June 1946 "Some diseaseion on the general outlook at the mine ensured, but no other business was transacted.* ABA Directors* Minutes >16 July 1946 Further ealivof': two shiiiipgsj?r share,'-making'a?', total of 1& shillings pad on ..those shares. Under the heading 'Mine* - ' Kins . It was reported that, in view of difficulties encountered in mining. It seems evident that sore capital will be necessary in order. to reach the production stage, and that a report is now being prepared by the Managing Agents on the position and will be submitted to the Board at the next meeting.* CSS Board Minutes 24 July 1946 "A memorandum by C.W.R. Powell dated 23rd instant in connection with Australian Blue Asbestos Ltd was circulated amongst the directors." I interpolate again to note that Mr. Powell's memorandum dated 23 duly 1946 was neither discovered nor produced by either defendant after call by plaintiff at trial. I deal with writings in chronological order. What next appears is a letter dated 3rd August 1946 from managing director, ABA to manager, ABA Perth <part of exhibit 385). That letter is identified P45, the 4 P* of which indicates a coding ot * Private*. The letter states: 191. "Dear Sir, It has been decided that the manner in which the affairs * of Australian Blue Asbestos Ltd. are directed is to be altered and that The C.S.R. Co. Ltd., as Managing Agents for A.S.A. Ltd. shall actively direct and be responsible for all natters affecting Australian Blue Asbestos Ltd. _ x^ . _i > ^^..11.1.1, *. *>. Consequently, the full authority, which you have had as Manager. A.S.A. Ltd. during this year will be altered and the arrangement will be that The C.S.R. Co. Ltd., will direct natters either from its Sydney Bead Office, or through its Manager at Perth, Mr. J-L. Tucker, whilst your responsibility will be that of Manager at Wittenoom. Generally, this means that your responsibilities will be very much as they were prior to January, 1946, with the difference that the work that was previously carried out in Perth and Is now carried out--at Witb*no ^{mainly .aocpuntaae^) .will.-cbatiauer*, :to be carried but - at. HiiteribosC' ' For 'dxampi'eY the half-yearly and yearly balance sheets will be made by your staff at Wittenooo. Correspondence. In order . to implement the above decision, certain changes is the method of conducting .correspondence are necessary and the schedule below sets cut our intentions in this regard and this system will be commenced forthwith:- (1) All letters to and from Wlttenoom will be' oa A.B.A. Ltd. paper as at present. (2) All letters from Sydney (except on purely Company matters) will be addressed to the Manager, A.B.A. Ltd., Wittenoom, and all letters Whether they are private. Staff or General, will be forwarded from Sydney in duplicate. Such letters will be in separate envelopes (not included in General C.S.R. Co. Ltd. correspondence) and will be forwarded to the Manager, The C.S.R. Co. Ltd., 16 William Street, Perth, envelopes* containing Private or Staff letters being marked accordingly. (3) The Perth Manager, The C.S.R. Co. Ltd. will forward one copy of each letter (whether it is Private, Staff or General) to the Manager, A.B.A. Ltd., Wittenoom, and will retain the other copy for his file.4 (4) Letters from the Managing Director on purely Company matters such as Board Meetings, Minutes, Call up of Capital, etc., will be addressed to the Secretary, A.B.A. Ltd., Perth, as at present, and a copy will not be forwarded 192 . co Wiecenoom. Similarly, a letter on such matters from the Secretary will be forwarded direct to the Managing Director, A.B.A. Ltd., and a copy will not be forwarded to Wittenoon. (5) The Manager, Wittenoom, will write Private, Staff and General letters direct to the Managing Director, A.B.A. Ltd., (who__Is ajljso. "'the particular officer appointed by the . Managing Agents to deal with all A.B.A. Ltd. matters), but will also forward a copy of each letter to the Manager, The C.S.S. Co. Ltd., Perth, Mr. L.J. Tucker. <) The numbering of Private, Staff and General correspondence between the Manager, Wittenooa, and the Managing Director will simply continue as at present. Yours Faithfully." ' Bext * in-.ehronological. order*' CSR Board' Minutes 7th August l946 "It was agreed to proceed with the development of Australian Blue Asbestos,- Limited, to attain an output of 3,000 tonnes of fibre per annua along the lines recommended by Mr. Powell in his aeaorandua of 23rd July, 1946. This involves the support and assistance of the West Australian Government, the appointment of a Mine Manager and an Underground Manager, and additional capital expenditure of 130.000 Pound8, of which 81 ,,663 Pounds is for development of nine and mill and the remainder for working capital. It was resolved that the company approves an' application to the Treasury by Australian Blue Astestes. Limited, for permission to increase the nominal capital of that company of 400.000 Pounds." CSP Board Minutes 14th August 1946 "It was agreed that, should Australian Blue Asbestos, Limited, decide to raise additional capital by giving a mortgage or floating charge over its assets as an alternative to increasing its share capital. The Colonial Sugar Refining Company, Limited, would grant a loan up to 130,000 Pounds on terms to he mutually agreed. Transfer of 5 deferred shares, numbered 80,026 to 80,030 inclusive, in Australian Blue Asbestos Limited, from the Company to W.J. Baird was, by resolution, signed and sealed." The next Directors* meeting of ABA after 16th July was 20th August 1946. 193. ABA Directors` Meeting 20 August 1946 At this, a further call of two shillings for the relevant shares was roads, making those shares fully paid, and under Che headings `Capital' and 'Mine';- - Capital - The Managing Director reported that The Colonial Sugar Refining Company Limited had signified its approval of Australian Blue "Xsbes iosf""_XisT tef~~ applying to the Commonwealth treasurer for permission to increase the authorities capital of the Company to 400,000 pounds and The Colonial Sugar Refining Company Limited agreed, subject to satisfactory reports on development being forthcoming, to subscribe for any new capital issued to cover the development programme for the next 12 months* operations, or, alternatively, that it would land up to 130,000 Pounds to Australian Blue Asbestos Limited, the loan to be secured by mortgage or other charge at a rate of interest'to be mutually agreed- < . 0 It" was' besolved that-* the. eonsen t* ..of * ' the.;' Jtederal Treasurer be sought for permission to increase the authorised capital of the Company to 400,000 Pounds by the creation of 200,000 new ordinary shares of One Pound each. Mine The Chairman read a report 1946, from the Managing position at the mine." dated the 20th August, Agents regarding the 2 interpose again to note that the report dated 20th August 2946 was neither discovered nor produced by either defendant and to also note that at that meeting Baird In fact was appointed a director and five shares in ABA were transferred to his, which one assumes he held on the usual basis as trustee for CSIU . Baird was employed by CSR as marketing manager of BMD. Be was never an employee of ABA. The next is a letter dated 30 August 1946 (pare exhibit 365), managing director, ABA to manager, ABA Wittenooas "YEARLY ACCOUNTS. We have now examined the accounts for the" year ended 30th June, 1946 as supplied by you and attached to your Private So. 61. 194. *) *' Although the loss incurred during the period was more or less expected, mainly due to the mechanical breakdown of the mine, the results were most disappointing. The form in which the accounts have been written up this year, however, now gives a comprehensive idea of the various operations with details of costs and as already advised it win be .necessary during the ensuing year to watch all 'expenditure very closely, particularly in relation to indirect expenses etc. etc. -- On page 4 of your P. No. 61, you asked if the method of charging Commission could be altered but we would point out that Clause 5 of the Agreement (June 1941} between The Colonial Sugar Refining Co. Ltd. {The Company) and Australian Blue Asbestos Ltd., reads as follows;- "The remuneration of the Company for its services hereunder shall be a sum equal to five per centum - (5%) of the total amount of all sales of asbestos and. other minerals, purchased, ofned. or. produced by ox oq. laehaif" of *,thejprincljpal .whether,*'#oldto * . the Company ox' otherwise^ . including * freight, . insurance and other charges appearing, on Company's invoices for such sales. the yours Faithfully." I again interpose to state that cl.5 is in identical terms to the cl.5 contained in the Oune 1943 agreement, the sianaging agent agreement (exhibit 378). Mr. Brown denied seeing any of this correspondence and could throw .no light on the references in the minutes to managing agents. There was a suggestion that the letter dated 3 August 1946 (P45) was never sent in the fora disclosed by the duplicate, which was in a place in the file where one would expect it to be. I reject that suggestion. By letter IS September 1947 (exhibit 577), the manager at wittenoom was notified that CSB had agreed to accept 5% commission on value of sales only and to waive ccsaission on freight, insurance and other charges. By letter 6 February 1952, the remaining commission of 5t on f.o.b. value of sales was waived (exhibit 392). These waivers are waivers of 295. mounts due under a clause in terms the same as cl.5 of the Managing Agent agreement. Mr. Brown indicated that these were also connected with a sales agency. That is, of course, correct. No separate agreement was produced. and The BMD Secretariat was responsible for openitfgT~*ort'iTn3w sending to the relevant recipients any mail, whether addressed to BMD or ABA, with the possible exception of *?' letters. All ABA correspondence leaving Sydney was in fact drafted by whichever relevant officer, whether Bmd or ABA, was involved, and soaetises these were several. The drafts were then put into the form,of ^letter, by BWB-.staff and .this would usually be sighed by the managing.director of Aa, although on some occasions, if he was not available, it was signed by a senior executive officer in CSS.not part of BMD. The relationship' of ABA with CSR was always noted in correspondence both internal and external. Every ABA letter, no Better from which source, contained a diamond shaped logo which had the words 'CSR Asbestos' written in it. This may be explained by the' fact that ABA acquired the right to use the CSR trademark. If in fact the letter came from head office, the letterhead, as well as having that logo, .disclosed that CSR was the managing agents of ABA and initially those letterheads also noted that the paid up capital of the managing agents was 27,000,000 Pounds. Mr. Brown and Mr. Brennan, when pressed, thought that the use of the term 'Managing Agent CSR* on the ABA letterhead had something to do with CSR acting as selling agent for ABA, but could offer no other explanation. . .9 ._ ) 197. I draw the inference that the 1946 minutes and correspondence I have mentioned above indicate that Powell had been liaising with the CSR Board concerning the future of ABA, and .the memoranda referred to ail deal with that batter, and, in a Way" which 2 do not attempt to 'uhderstancTT* Jewels'*-has found it necessary to advise his cc~directors In ABA that his proposals came from the managing agent. 1 note ay surprise that Mr Brown, who has shown little hesitation in recognising correspondence and minutes going back to 1943, says that he has no recollection of the references to managing agent. Both he f and: Six., Ja^es yernon ^who * .was. .called;, by */CSKj.- ha^e^been inclined to distance CSR from any1 suggestion of control over the affairs of ABA. Bach has been at pains to indicate that the Board of CSR had no more than the interest in ABA that 8 parent company would have of one of its subsidiary companies. In contrast, 2 note the statement of E.R. Knox, chairman of directors of CSR, who, in his report to shareholders of CSR in 1944 (exhibit 446} saidt "the Building Materials Division has continued its policy.of expansion. its aim has been to produce materials which will enable the company to contribute in a substantial way to the advancement of new and changing forms of building construction* ... wIn spite of very considerable transport difficulties satisfactory progress has been made in the development of the blue crocidolite asbestos mines and mill in Western Australia. Trial runs are now being made of the mill plant and it is expected that we shall shortly be in full production. During the year the erection of the mill, in Tasmania for the production of chrysotile asbestos fibre was completed and it has been in operation since the early part of this year. We are now in the course of taking over Asbestos Products Limited and propose continuing to operate this business for the manufacture of asbestos products* (ex 446)." 198. I find the relationship to be much closer that that cf parent and subsidiary and, as I will indicate, much closer than banker and customer. It is clear < controlling the that the ventures BHD had a in which great deal of autonomy it was engaged. It in is interesting to note that every reference `to ABA in the CSR minutes is, in the context of that Board's consideration of Building Materials, a reference to 3MD. When shown extracts from CSR minutes (exhibit 370), sir James Vernon was minded to ') seek out some dictionaries' meaning for words used to explain the role of CSR in .approving natters concerning ASA. Unfortunately; * he -'did/ not ;;have- Available '.the 'Whole *of' the minutes of CSR during the' years T948-51 * inclusive and 1955 (exhibit 643). The words used in the minutes have a consistency which leaves little'doubt that decisions in a real 9 sense were often made by CSR concerning ABA affairs. It is not in issue that HMD was very close to ABA: 1 will return to this aspect in sore detail when considering the other elements } which are said by the plaintiffs to place CSR in proximity to them. Firstly, I shall endeavour to clear away the so-called managing agent's agreement, both in its ' terms and in its context. It is in the following termss "AH AGREEMENT made the twentythird day of June, 1943, 8 B T W E B a TBS COLONIAL SUGAR REFIHXHG COMPANY LIMITED a Company duly incorporated in accordance with the laws of the State of Hew South Wales having its Registered Office at Sydney in that State (hereinafter called "the Company") of the one part end AUSTRALIAN BLUB ASBESTOS LIMITED a Company duly incorporated ' in accordance with tKe laws of the State of Western Australia and having its Registered Office at Berth in that State (hereinafter called the "principal") of the other part WHEREAS the Principal is about to commence the business of operation of mining and milling blue asbestos at Hammersley and other places in the said State of 199 - Western Australia and has requested the Company to act as its Managing Agent and the sole distributor of its products which the Company has agreed to do upon the terms and conditions and for the consideration hereinafter appearing NOW IT IS AGREED as follows?- ---- 1. The Principal hereby appoints the Company to act as its Managing Agent and Sole Distributor with full and absolute authority to do ail_ things necessary,. for' the proper management and control of the business and undertaking of the Principal. In addition to any other power which may be necessary for the proper performance of its duties as such Managing Agent and Sole Distributor of the Principal the company shall have the sole right for the purposes hereof3- } (a) To engage from time to time on behalf of the Principal such Managers, Accountants* Technicians, clerks* Miners* Labourers and other employees at such salaries or wages and upon such, .terms -and, conditions -as -^he Company '** in * its; /absoiuia- discretion ' thii&s'.fiV *ahd - at' pleasure, to dismiss any_one of more' of such employees. ' (b) To purchase on behalf of the Principal such books of account, ' receipt books., office stationery and fittings* and all. mining and milling machinery and other equipment including motor cars* lorries and other vehicles which the Company deems necessary or desirable to enable it to properly carry out its duties as Managing Agent of the Principal. \ (c) To supervise and control the mining and milling ' of blue asbestos and other minerals on all mineral leases and claims now owned or controlled or which may be acquired or controlled in the future by the Principal. (d) To fix the wholesale and retail selling prices from time to time of all such asbestos or other minerals to establish markets there for and sell the same on such terms and subject to such conditions as the Company may from time to time in its absolute discretion determine. (e) To appoint sub-agents and sub-distributors to handle and cell the Prirtcipal's products in Australia and elsewhere and to grant to such agents or Distributors such preferential terms discounts and/or commissions as the Company thinks fit. 2. All moneys expended or debts incurred by the Company in respect of salaries* wages* office 200. furniture and equipment, motor cars, motor lorries, plant machinery and for any other purpose whatsoever in pursuance of this Agreement shall be refunded and/or paid by the principal within fourteen days after receipt of an account therefor froa the Company. Accounts may be rendered at intervals of not less than one month commencing from the first ,day of the month of July, 1943*. - _ 3. In the event of the Company tteing its own employees for any of the purposes hereof the Company when rendering accounts in respect of any of its own employees who may be engaged or occupied from time to time for the purposes of this Agreement shall be at liberty to add and the Principal shall pay to the Company in addition to the salaries wages allowances and expenses paid to or for such employees a sum equivalent to ten per centum (10%) of the net amount (inclusive of income tax) of all such salaries and wages to cover the Company's obligations for Workers Compensation and other charges and taxes in respect of. such employees^. / . , % *-. 4. The company shall: be at liberty to purchase the* * whole or such part .of the raw or milled asbestos and/or other minerals mined or produced by or on behalf of the Principal as the Company may froa time to time think fit and the Company shall be entitled to purchase such products at' a price equal to the cost advantageous net price at which such similar products axe sold to any other purchaser from time to time less a further preferential discount of (5) five per cent. 5. The remuneration of the Company for its services hereunder shall be a sum equal to five per centum (S%)~o the total amount of all sales of asbestos and other minerals purchased, mined or produced by or on behalf of the Principal whether sold to the Company or otherwise, including freight, insurance and other charges appearing invoices for such sales. on the Company's . The Principal shall not without the consent of the Company previously given in writing appoint any agent or distributor (other than the Company) to handle nor shall the principal sell or offer for sale any raw or silled asbestos or other products and shall refer all prospective purchasers to the Company ox its nearest authorised agent. 7. The company shall at all times keep separate and complete books of account and other records relating to all work, operations and activities of the Company under and for the purposes of this agreement and shall at reasonable intervals permit the principal through its authorised officers or Auditors to examine inspect and audit such books of account and records. 201. 8. The Company shall account to the Principal for all receipts aod expenditure pursuant to this Agreement at regular three monthly intervals during the currency hereof, the first of such, accountings to take place as at the 30th' day of Septenter. 1943- At the tine of any. such accounting the .Company nay deduct from moneys in its hands otherwise payable to the Principal any sums then due by the Principal to the Company heyeundey. 9. This agreement shall operate for a term of five years from the date hereof and thereafter from year to year until one year's written notice of determination is given by one party to the other Provided however that hereinbefore contained notwithstanding the Agreement anything may be determined by mutual agreement of the parties at any time." 2 leave aside the general appointment contained ia cl.2 >sd turn,-t,o the particular- powers which. CSR. may exercise-where necessary "for [ the proper performance, of .its duties as Managing Director and Sole Distributor" to examine what powers were in fact exercised by CSR which might be thought to fall within the expressed categories - Clause 1(a) - Until 2949 the .CSR manager in Perth was ABA Secretary. Most wages staff for Wittenoea were in fact engaged by ABA officers in Perth, although some ) were engaged overseas at the instigation of CSS and some were engaged at wittenoem by ABA (by Barrow). The wages of wages staff were determined by State Industrial awards. Executive staff in control at Witteaoom were CSR employees seconded to ASA. Their salaries and conditions of employment were fixed by CSR. Certain staff officers of ABA were placed on CSR staff after a certain period of employment with ABA and, after 2949, ABA staff of a certain seniority were invited to join CSR. Thereafter, all their conditions of employment, including salary, were fixed by CSR and they were simply seconded to ABA. They continued to be paid by ABA. Overseas experts were engaged by CSR to work for ABA and these included Reagan and Luke who were managers at some stages. They were not shown in ABA salaries records. They were paid by CSR and the money recouped from ABA. recruitment of staff. CSR lent its name to the 202. as counsel for CSR points out. however, the very nature of the exercise of power under the clause is an agency to appoint staff to work for ABA - not for CSR - and that there were good practical reasons for keeping all CSR salaries consistent, 1 agree. The .importance, however, of the exercise of this power `by CSR necessarily means a diminution of power in the ABA Board or management of ABA. * Clause 1(b) - (i) purchase of Stationery : BHD purchase of stationery for ABA. arranged 'the (ii) purchase of Plant and Equipment vehicles s CSR did cot in fact purchase shipment on behalf of ABA in a strict sense, Zt purchased moveable plant and by informal arrangements and then a formal agreement it hired plant to ABA (exhibit 235 vol.i). Counsel for CSR says that the . formal - .hiring agreement (exhibit 95a) * is : ` inconsistent' with . 'this / provision^ .1* iv-have difficulty with- that. ~ Clause' 2. calls for payment for purchases within 14 days, but the fact that CSR. did not insist on payment and agreed to hire the equipment simply recognised Clause 1(c) Supervision and control of mining and milling ... on present areas and future acquired areas : other areas were in fact acquired. This clause simply reiterates the powers in the opening paragraph of cl.l. In a sense this makes the agreement difficult to construe in a legal sense. if construed too widely* it might be thought to derogate from the powers and functions of the directors. Clause 1(d) - The evidence shows that the selling price of asbestos ore and all sales were resolved at' CSS Board level. Initially, sales were undertaken by Perth staff of CSR on letterhead that showed sales by BHD as agent for ABA and, at one stage in the 1950*s, the bookwork for this was undertaken by ABA staff, but they continued to use the BMD documents for all invoices etc. Overseas agents were appointed by CSR. The remuneration of 5% mentioned in cl.5 was deducted FOB, then reduced to C1F. After February 1952, no charge was made, although BHD still arranged sales. Hr Shepherdson, who was originally employed by ASA and then joined CSR staff in 1949 and remained 203. wording for ABA as a clerk, both at wittenoom and then in Perth, was involved in sales documentation. It was his recollection that sale prices were fixed by BMD in Sydney. Clause ? - Clause 7 did not apply - almost the reverse in 'fact. ABA kept meticulous and detailed accounts of all of its affairs. It employed .its own aud itors/accountants . From t imV to"' "fxa<? inspected its accounts and conducted its own internal audit of ABA. Counsel for CSR points out that, in cl. 2, powers can only be exercised- for the proper performance of the duties of ) managing agent and sole distributor and that CSR did not in fact act as a managing agent because, apart from fibre sales, . the, underbaking . was all in the .name of; ABA. I agree;, ^ith those comments. I have difficulty-with the agreement and, to some extent, all parties share that difficulty in varying degrees. 1 have not been able to understand the accounting between CSR and ABA* for the use by ABA of CSR staff. The item in the book under the heading * management' was not really explained by Mr. Moore. Mr. Brown suggested that at some y stage the technical men in CSR were told that-they should note the time they spent on ASA affairs so that'it could be debited . to ABA's account. This suggestion was not developed in the evidence. No attempt was made to suggest that time spent by the directors was so debited or that the time spent by CSR administrative staff was so debited. There is nothing in the accounting records to support Hr. Brown's suggestion. 2 am not satisfied that it happened. Counsel for plaintiff and CSR conjectured that perhaps the agreement was executed as a backstop in the event that the L.G. Hancock Prospecting Company interests wanted to control the operation. I do not 204. know. i can think of several explanations. 3 do not intend to conjecture. I find as fact that an agreement in the Cora of exhibit 379 was executed by both ABA and CSR and that, for reasons which I do not know and do not intend to guess at# it was at Jleast resolving what invoked by Powell in. .. the ^ oirrautBseanceS' of * the future of ABA would be in 1946. And sose of its powers could have been used to justify some of the actions of CSR from time to time. 2 find, however, that CSR did not act as managing agent in the overall sense that the agreement would indicate was to be the case. . At.*face value, it is .clear that ABA was a separate legal entity. It kept separate books of account, it kept its own bank accounts, it had its own auditors and it dealt with the public in the main as a separate entity. 2 do not pause to consider the legal implications to third parties of the reference on ABA letterheads to the stateaent that CSR was its Managing Agent, or that there existed a Managing Agent's agreement, or any of the other references that noted that CSS was the agent of ABA. These natters say have relevance to others who dealt with ABA or CSS. I seriously doubt the relevance in these proceedings. It would, however, in ay view, be completely unrealistic to suggest that ABA controlled its own destiny in any real sense. The minutes disclose that it was financed entirely by CSR, originally from equity capital, and during the early part of 2946 by regular calls on shares held by .CSS, and after August 1946 by an increase in share capital by the issue of shares to CSR and by the iapleeentation of a more formalised plane hire agreement between ABA and CSB to finance ail plant purchased by CSR Cot aba. By January 19AT. capital expenditure had to be confirmed by the ASA Board and thereafter confirmation had to be given to this type of expenditure monthly. Usually, expenditure was confirmed by the general manager of CSR, who might or might not take it to the CSR Board, and this was usually done before it was confirmed by the ABA Board. Hr. Brown conceded is evidence that ABAwas a doubtful proposition from the commenceseat and that it could never ^lave been financed through normal commercial channels. He stated that the economics of the yenture were poor..ftorn the s tart. and, if anyth!ng, 'they got' worse until about 1958. The method of financing ABA by making calls on shares from month to month obviously made ABA- dependent entirely upon CSR, and this Method of financing continued until about November 1949.At that time, the managing director was authorised to negotiate a loan of 50,000 Pounds from CSR on terms to be arranged by him, Thereafter, it was a regular monthly entry in the minutes that the managing director was authorised to arrange loans from CSR to cover expenditure for each month. This continued until March of 1952 when the company apparently made a profit. Thereafter, from December 1952 until January 1953, the minutes disclose that ABA was financed by equity capital put -in by CSR that was called up at the rate of a few shillings per share per month. During almost the whole of the time between 194$ to 1953, ABA lived on monthly handouts from CSR, either by way of equity capital or loan funds. 206. I make Che following findings of fact - few of which are in issue. 1. \ All directors of ABA were senior employees of CSR. At one time one was secretary'of CSS? others were from BMD. 2. The only two managing directors of ABA at the relevant tines were each when appointed also head of the BMD. 3. Save for the exception I will mention, executives (management) et Witfceaooa .were all CSR enployees on .loan, to ABA. ' CSS thereby had ultimate shy in their length of stay with ABA and the terns and conditions of their contract of, eaployaent, including salary. CSR also therefore had ultimate say in who would he appointed to executive management at Wittenooa. See, for example, Broadhurst (memorandaa 22 July 1944 and CSR letter 27 July 1944 - both part of exhibit B32>. Powell liaised with CSR Board . concerning the appointment of other senior officers (CSR minutes - exhibit 370). The exceptions are Reagan and XArice, who were in fact engaged as consultants by CSR (exhibit 370). They were never employees of ABA. They were not shown on ABA payrolls. 4. . ABA had access to all CSR facilities; technical, including engineering and drawing. legal (Mr. Breahspeare), administrative - staff* central accounts, clerical, research. Brown, in 1944, gave technical advice. Me was then an alternate director 207. but not en ABA employee. King, in 1948. spent some three months at wittenoom for the. same purpose. e was not an employee of ABA. He was not a director or alternate director. t Gilaour spent some three months as Perth Engineer and gave advice of a technical nature. __ He was not an ABA employee. All i. w _j. JZZZiJ-*, --..w three were CSR employees, all were responsible only to Powell as head of BHD. Counsel for CSR submitted that I should infer that during these times they were seconded to ABA. Such an inference would he contrary to the evidence. King at least was given authority by Brown or Powell and, in view of King's employment with CSR, it could only be Brown or Powell or Powell* s superior within CSR who could authorise him to investigate matters at Wittenoom in 1949. Ring was gives express authority from Pcweli over fireacfriurst whilst there (exhibit 704), albeit he did not need to expressly exercise any such authority (9390-1). King agreed that he was directly responsible to Brown in BHD. . In the course of these investigations* these officers were responsible for reporting on processes, procedures and requirements at Wittenoom, including the mill and dust control at the mill. The close chech on expenditure exceeding 10 Pounds (later, increased) meant that Wittenoom management was usually subject to supervision* on many matters from head office, ie, ABA managing director at least - and he was subject to similer checks by the general manager of CSR. Both would no doubt exercise their discretion about whether or not matters had to go to either ABA Board or CSR Board respectively. Apart from this, 2 have already detailed the financial dependence of ABA on CSR, which obviousLy affected day to day control at the mine and placed it in Sydney.. CSR Board, for example, would authorise expenditure in a certain amount for mill expansion. Such authority must control all equipment for expansion, including dost extraction and control equipment, CSR usually fixed the price of .fibre sold and in f*ot,. more often. than apt prices *.wara tiied '.by.* the CSR Board before going ter the ABA Board, CSR was exercising an interest as shareholder, as financier, and through its department head of B2 and its other employees in BHD, as managing director and directors of ABA. * Brown was at pains to explain that he has always understood* his duties as a director and where those duties lay. That is not in issue. Obviously there was never a time In his view that his duties as a director conflicted with his duties as an employee of CSR. In the Joostcn action against ABA in 1970, CSR was not a party and, although the issue of the relationship of the defendant was not before that court, an insight into Brown*s perception of his role can be seen in an extract from his cross-examination when, in discussing his roles with ABA, he said* "1 later 209. became fully responsible to the CSR Board for it ... as senior officer in CSR looking after building materials. By that time (and I an talking now about post 1952) I was also in effect managing director of ABA. " (exhibit 381). CSR exercised control over appointment of executive staff and, in particular, management staff. 1 find that this control impacted directly on all that happened in the day to day affairs at Wittenooa. It has been suggested by the defendants that the day to day management o ABA was at Wittenooa. To an extent that was correct. But in fact, the direction 'as..-to the-type of equipment 'installed-was, froa.th* . beginning, subject to close * control. from the managing director in Sydney, and control also in the sense of a limited budget (see, for example, exhibits 674, 675 end 676. and also 646). Both Brown and King indicated that when they were at Wittenoom at those early times they never attempted to exert authority over management in the sense that each was senior to Broadhurst in CSR. There was discussion and the exercise of power was sever in issue. That seems to me to be of little moment. Similar considerations apply when considering the relationship between the directors of ABA with CSR. Any matters between them were discussed probably between managing director ASA and general manager CSR and, occasionally, managing director ASA direct with Board of CSR. CSR dealt with ABA as if it were an activity of BMD, and BMD dealt with 210- ABA as it would with its internally run projects, except ell was channelled through the corporate structure. And it is not suggested that there is anything improper or sinister about thisT it is the fact that everything that ABA did was controlled and guided by the directors* of ABA who were also __ M fc. ,, --' | <-- |*U- full"time employees of CSR who were controlled and guided by the directors of CSS. There was a hierarchy down from the Board of CSR that kept the seniority of office within CSR as the controller of ABA. This commenced through the managing director of ABA# Who was the senior officer in BHD# through to the manager of the nine .. and. his staff .officeta#. all. of whoa Were, subject' toi directions from CSR as employees of CSR# 'and the seniority did not deviate through this chain of command on the only change in managing directors Which occurred during the telewant period. The same relationships of office were retained. CSR maintained, in fact, a control by its close involvement in funding and the exercise by it, froa time to time# of power approving specific expenditure for items of development at Wittenoom. The close control of finances gave it the capacity to direct and control and, as well# so did the Managing Agents agreement. Those capacities of control were# in fact# exercised on occasions. Counsel for CSR said there is no decided case Which makes a parent company liable in tort for.its subsidiary. Z suspect that he is correct. This is not, however, the issue. The plaintiffs do not seek to establish liability on the basis simply that a parent company is liable in tort for any action by its subsidiary. Bor do they seek to establish liability on the basis that CSR was responsible for appointing officers who were not capable of undertaking their tasks properly. This was mentioned by counsel for CSR for the purpose of refuting it, but that has never been the plaintiffs' case. The plaintiffs* case is that, in the facts thrown up by this case, the unique nature of the relationship between CSR and ASA gives, rise to liability in CSR. a 7 have not dealt with all of the Batters raised by the plaintiffs in this issue. 1 have, Z believe, referred to sufficient to create a sufficiently clear picture of what in fact was happening. 2 now turn to the legal implications. * in the end/ the plaintiffs put their case against CSR on two broad.bases. _* * -* Primarily, they say that CSR owed a duty of care to each plaintiff by reason of its proximity to each. And this is based on common law principles of negligence. The thrust of the subnission is that "given the extent of CSR control of the Wittenoom facilities ... the officers of CSR from the Board down should reasonably have foreseen that the health of ABA employees in the Wittenooa Bill would be affected by their decisions and actions". Both in opening the plaintiffs4 case, and in closing, counsel outlined the developaent of the law of,negligence, or aore recent declarations of it, from Sonoghue v. Stevenson 12932) A.C. 562 to the present day, insofar as it declared those who aay be said to owe a duty of care. The test laid down by lord Atkin in Ponoghuc v. Stevenson (supra), at pp.560-82, was refined by Mason 7. in Wyong Shire Council v. Shirt (supra), at p.44. Be saids 217, "Prioa facie a duty of care arises on the part of a defendant to a plaintiff when there exists between the a sufficient relationship of proximity such that a reasonable man in the defendant's position would foresee that carelessness on his part may be .lively to cause damage to the plaintiff.** He queries where there were "any considerations which negate the duty". let >7aen8ch v. Coffey Gibbs C,J., at p.5S3, said: 4s* , (1983-84) 155 C.L.R. 549, -The statement of basic principle by Lord Atkin In Dono^hue v. Stevenson does not make liability for negligence 'depend solely on a failure to take reasonable care to avoid acts or omissions which it can reasonably be foreseen will be likely to injure someone. The duty is owed cot to the world, but-to one's neighbour, i.e. to 'persons who are so closely and . directly affected by my act that X ought ' 'v reasonably to, have them-in contemplation as being so * affected when 1 am directing, my mind to. the acts or missions which are called in question*." * Be indicated that the principle is one of proximity as well as foreseeability. He adopted the observation of Lord Wilberforce in McLouohlln v. O'Brian (1983 J A.C. 520, "foreseeability does not of itself and automatically lead to a duty of care*. Be indicated that there are no closed category of cases. In Australian Safeway Stores Pty. Ltd, v. galuzna (supra), at p.488, in a joint judgment. Mason, Wilson, Deane and Dawson JJ. adopted the statement of Deane . J. in Backshaw v. Shaw (supra), at pp.662-653, in the following terms? **.., it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a . special duty goa occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. a prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a .reasonable nan would, in the. circumstances, do by `way of response to the foreseeable risk." Similar comments can be found in Sutherland., Shjr.e. .Council v. Heyman (1984-85) 157 C.I..R. 424, at pp. 506-8, Stevens v. Brodribb Sawatiling Co. Ltd. (1985-86) 160 C.L.R. 16 per Deane 0., at pp.52-53 and San Sebastian Rty. Ltd, v. Minister Administering the Environmental Planning and Assessment. Ret, 1979 (1986) 68 A.L.R. 261 in a joint judgment by Gibbs c.<7.. Mason, Wilson and Dawson JJ., at p.169. And see Cook v. Cook (1986) 162 C.L.R. 376r' at pp.381-2. , As an alternative approach, counsel for ABA then submits that this is a case- for `lifting the corporate veil". Re intimates that I do not have to consider the authorities in this area if Z find a sufficient proximity in the relationship between CSR and each plaintiff. Whilst hot necessarily arguing with what has fallen from the courts gn 'proximity*, counsel for CSR indicates that it is necessary to distill a recognisable legal relationship between ABA and CSR giving rise to either the proximity basis to establish the duty which conditions liability to the plaintiffs, or a properly legally defined relationship to establish a basis for lifting the corporate veil. -In this regard he referred me to The Gramophone and Typewriter Dial ted v. Stanley (Surveyors of Taxes) (1908J 2 K.B. 89 at pp.95-99, ESH Co. Ltd, v. Dominion Bank 119373 3 All E.R. 556 at pp.5645 and Commissioner of Taxation v. Commonwealth Aluminium Corporation Dtd. (1979-80) 143 C.D.ft. 646 at pp.59-661, all 214. of which underline che importance of the separation of the rights and liabilities of a company end its shareholders and ideas of control. He referred to the criticism of D.H.K. Food Distributors Ltd, v. Tower Haslets London Borough Council (19753 1 W.L.R. 852, by the Privy Council in Woolfson v, Strathclyde Regional Council (2978) Sf.*C. (Hri.7) ~9b 'at pp794-96 and the recent Australian authorities asserting the principle in Saloman v. Saloman & Co. (18971 A.C. 22, including Industrial Equity Ltd. v, Blackburn (1976-77) 137 C.L.R. 567 at p.577. He submitted that the American Courts still required control in the sense ct complete domination before acting (in the absence of fraud) - Craig & ors. v. Lake Asbestos of Quebec, unreported, -31 March 1988, D.S. Circuit Court of Appeals. He points out - (1) CSR was not the `direct employer' of the plaintiffs; and (2) the use of the expression 'indirect* connotes another type of employment, which is imprecise and lacks definition in any legal sense. Leaving aside the question of proximity, he submits, that ABA was not the agent of CSR and vice versa and, in dealing with the plaintiffs* case to `lift the corporate veil', he submits that, apart from the above authorities, I aa bound by Tate v. Freecorns Pty. Ltd. (1972J W.A.R. 204 to find an identifiable agency between ABA and CSR in a relevant legal sense before CSR can be held liable in tort. Zn that case. Hale and Wickham JJ. agreed with the trial Judge, Burt J. (as he then was) that a legal agency had to be first established. Jackson C.J. left the point open and he agreed with Hale J. that the trial Judge was correct in deciding the case based on estoppel. ! j | I. i ( .^ ^ . - There has been much discussion in recent times on v7 Mr. Hughes described as the slogan of lifting 'the corpora veil'. without wishing to pre-empt which way the autheriti are presently heading, t Relieve that thete is at least strong argument that I a in fact bound by the preci: decision of Tate. . 2 believe that, to succeed on the issue called the corporate veil', the plaintiff .. ...... "" establish at least a relationship that woujj b* .ohXi^mA t ` would bring it withi the proximity range. That being the case, it is y intentic to avoid if 1 can the fascinating issue of lifting veils if in the end# I can find that the relationship between cSR an the plaintiff was sufficiently proximate to apply the cosuso . law rule# It nay be that the answer is the sane, although o the proximity argument/ as the authorities now stand# I do no believe that Tate is an impediment. Tate was net argued : proximity. it was a case of legal agency and estoppel. The plaintiffs* case# in the end# boils down to a matte: of control and# 2 believe* control in the aense that It must bear upon events which affect the particular conduct whic) causes the breach. In Stevens v. Srodribb Sawaillinq company Pty. Ltd i supra)# Hason J- (as he then was) said, at p.196. in the context of an employee of a subcontractor working for another: the importance of control lies not so much in its actual exercise as in the right of the employer to exercise it," He continued: *&ut the existence of control# whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which oust be considered in the determination of that question , This is not a Stevens v. Brodribb case, but 2 believe that 1 can- adopt the same approach. Howsoever one classifies the relationship between CSR and ASA, 1 find that the Board of csa was content to allow its senior employees in BHJ> to control what X shall call the Wittenoom Project through ABA. CSR initiated the project. Xt acquired the right to the sineral claims, it instructed Powell to incorporate ABA, it appointed the subscribers to the Memorandum and Articles of Association of ABA and appointed those directors from its employees who held their qualifying shareholding on trust for CSS. It effectively assigned its interests in the sine to ABA (although the mechanics of this were altered). it appointed froa its senior staff Che first and subsequently all managers (X have noted the two exceptions who were engaged os contract direct by CSS). It was thereafter informed through BHD or the managing director of ASA of all relevant ABA activities. It funded the * entire venture on a basis which gave it total control of the extent of any development from tine to time. Proa the beginning, it entered into what was called a Managing Agents agreement which was in terns sufficient, whenever it was invoked, to create an agency at law to enable it to direct all that occurred at wittenoom, There were occasions when it exercised control directly . through this agreement? for example, , the development in 1946 to which I have already referred. it certainly allowed and encouraged others to believe that it was closely involved in the Wittenoom activities. It dealt with Federal Government authorities to get approvals and priorities to establish the project. It dealt with State Governments to obtain financial assistance. It lent its support to the Tariff Board inquiry, which was put forward by Brown as managing director of ABA and senior staff officer of CSR. It maintained the CSR logo on all letterheads, and on some letterheads noted its involvement as managing agents. its logo was oh ail bagged.^sbestps sold; all asbestos was sold by it as expressed* agent for ABA. It eventually employed directly all executive staff who then remained with ASA and were in effect seconded to ABA at the pleasure of CSR. it must have been fully aware that the knowledge of the directors of ABA was, . In effect/ the knowledge of its own senior and responsible officers to whoa it delegated authority. It had put them there for the purpose of the project. It was its senior officers who obtained knowledge and inforaation during visits to the United States and Europe. Those trips were instigated because BKD was expanding its activities. xt was the knowledge of its officers that was utilised, its financial control was such as ' to approve that which the managing director. Who was Its overseer, recommended to it. xt delegated`its voting right as shareholder to one of ABA*a directors - usually the managing director. In the* words of counsel for the plaintiff. CSR had a 'hands on' relationship in ABA affairs. it had the legal right by virtue of the Managing Agent agreement to direct development at the mine and at times it exercised that right. It had the legal right to exercise directive powers concerning expenditure, all of which j&culd impinge on the day to day activities at Wittenooa, and at times it oxercised that right. Brown conceded that ABA could not be funded by traditional comrcUi The fact that it -as funded either equity capital or loans for long periods on an ad orttb to aonth basis to eet expenses, ali of which fund requited approval fro* CSR. that, whether or not . operated or not from month to mo^th, and the extent of . opera6in was entirely in the control of - Wow. whether one defines all d the above in teres agency* in ay view it ie, or control, or whether one * that there was a proximity between CSR and Che employees ABA., tr whether one talks In terms of lifting the corpora veil/'the effect is, in ay respectful submission, the sa* Therewas "the necessary degree of proximity of relations*4 > hetwen each plaintiff and CSR to give rise to a duty of ca: t on tie part of edit to take reasonable care for the safety c each plaintiff consensurate with and identical to the dut owed by And it failed to exercise sudh care. Tor th reasons 3 have* previously outlined, the knowledge, actions an responsibilities of the directors of ABA are also those c Cssu The CSR Board obviously relied upon its senior officer in BKD to have the knowledge in their capacity as CSR officer; to organise the whole arrangeseat of ABA and to ensure that it was carried through. Knowledge possessed by Brown and King is particular bust be knowledge acquired by both companies. Bad company had an interest and a duty to know the knowledge of its offleers who had duel responsibilities to both. In the base of ABA, the duty was not only because Brown was a director. But also because ABA relied upon hit knowledge. In the cese of CSR, as a senior employee in CSR, Brown had a duty oC communication to CSS and CSR had a duty to receive that communication. in *y view. CSR U liable to each plaintiff. EXEKP-AJ?Y DAMAGES The plaintiffs daisied exemplary damages based on what was said to be the contumelious disregard for the rights oi each.plaintiff and his safety. It .pleaded that the defendants had Knowledge that ABA or its agents knew that exposing the plaintiffs to . asbestos and duet conrEvt'nift'S' -"asbestos constituted a serious risk to health, took no steps or no adequate steps to alleviate or minimise the exposure and gave no warning and, by para. 27, chose to take no steps to obtain knowledge or give a warning. In his written submission, counsel for the plaintiffs outlined the case "14.3 The plaintiffs submit: _ . . (i) That exemplary damages are available in an action brought in tort - (a) where the defendant acts with a high handed, outrageous or contumelious disregard for the rights of the plaintiff; (eg; XL Petroleum v. Caltex Oil & Mor C19S3f" $7 6SW at' Wen"v. . *ohn Fairfax & Sons Ltd. (1966) 117 ClR 118 at 129.8)? (b) where the defendant acts in an humiliating manner and in wanton disregard of the plaintiff's welfare (Laab v. Cotocno <1987) 74 ALB 168 at 195.29.45');. ------------ (e) whether or not there is malice (Lamb, op cit, 195,27-41); ------------- (d) where the defendant acts recklessly (Lash, op cit, 195.38-41)*. ------------- (e) where the conduce of the defendant merits punishment <eg* bren, op dit, at 147.6); (f) where exemplary damages would act as a deterrent or example either to the defendant cr to others is a like position (Lamb, op cit, 193); (g) whether or not the defendant holds indemnity insurance (Lamb, op cit, 193.10- 20); - (h) even though the conduct causing offence is subsequent to the tort which is productive of the injury .in respect of which compensatory damages are awarded (Lamb/ op cit, 195.7-19): (i) where the defendant's conduct, with disregard of the plaintiff, is directed to money-making (this say be regarded as one alternative aspect of contumelious disregard for the safety of the plaintiff; " or as conduct meriting punishment r'br-'aS-- conduct demanding imposition of exemplary damages as a deterrent to others). (ii) That, as - the concept of exemplary damages is punitive end not compensatory, and is capable of a valuation*in monetary terms in the hands of the dependants, exemplary damages lie * in a Fatal Accidents Act claim. (Hi) in the circumstances, no distinction should be drawn .between the defendants in the event that primary liability is established against each . of them, because the facts supporting a claim for exemplary damages apply-.equally to both defendants. (iv) That in determining whether the conduct of a c&apany is such that exemplary damages should be awarded against it the company is vicariously liable for the actions of its servants and agents, whose actions, and beliefs may be considered {eg r in Uren, HcTiernan J looked to the conduct of fcheiamedlate author of the offending article (at 125). Although his was a minority judgment this aspect of his judgment was not the subject of dissent, in XL, the actions and beliefs of officers of (Saltex were debated at first instance and on appeal as being proper for consideration.* Counsel for CSS referred to Crea v. John Fairfax 6 Sons Etd. and submitted that the test is a simple one - there must be "contumelious disregard of another's rights*. Re explained that lamb v. Cotogno was a case of a deliberate intent to inflict injury. It was a deliberate assault with an intent to inflict injury. Be submitted that If that test is wrong and that it can apply in a case of negligence, it would have to be established that it was gross negligence. 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