Document np05Mggp90EjgXV2GvoBKjQ02

I i 1 General Manager Asbestos - Wittenoom / This is a discussion paper, with some recommendations, prepared i r response to your revest. Tiie following have been consulted and have contributed: Mr Browne Or Monday Or Smytite Kf OavU Hr M G Sing Mr Hrs-'Pratt Hr Burgess Mr leUh Hr Pickford Mr Petfrse Mr McConnell Mr Benson Mr tlfverson The paper consists of the following parts? \ Diseases caused by asbestos 2 Study of pulmonary disease in asbestos miners in WA 3 negligence? A Workers* compensation 5 Liability and insurance / 6 Obligation? 7 Publicity 8 Administration in CSA 9 Summary of recommendations The paper in this final fora goes to you only. I have a copy* \ have checked a near final form with Mr King, Or Smythe, Or Monday and Mr Pickford. I must take responsibility, however, for the opinions and recommendations, and for what \ have put forward a* fatWA, SW of which is bound to turn out to be not quite as I have put it # Mr Voss has asked to be informed on this subject. ` 1 suggest he WV-04378 Asbestos - Wittenoom (paper by OFB Apr 77) Diseases caused by asbestos Asbestos exposure can cause a disease called asbestosis. a form of pneumoconiosis. Asbestos exposure say contribute to lung cancer, WesatheHftna is a rare career of the outer surface of the long, or the lining of the chest, cavity. It can be caused by relatively short exposure to asbestos, and can appear many years after exposure. The Oust Diseases Board, Sydney, reported iAtsse Cancer Society's journal Kar 76) on: ".,,265 Persons who have successfully claimed condensation irons the Oust Diseases Board for some asbestos-related disability, since February 1968. "Of these 168 people, 43 have already died, 16 from lung cancer and 14 from mesothelioma. Of the H deaths reported in N$N from mesothelioma over the D-yea period 68-76 none were from WUtenoom. The pattern of exposure and the ticue~lag is indicated by some examples.* occupation exposure dsteVirst exposed welder asbestos sheets, bags, spraying asbestos stripping lagging lagging asbestos floor tile grinding asbestos mangfactore 1941 1946 1960 carpenter spraying blue asbestos 1932 mnaaer of building handling washers made constructs on with blue asbestos products firm i970 In Kov 73 Dr Maguire (of WA Dept of Public Health) stated fa a paper that there were: 142 cases of asbestosW 6 cases of mesothelioma resulting fro esjplo^sent^at Hittenoom. 2 23 of the 1*3 cases were fatal! mesothelioma cancer of the Tung asbestos is . coronary thrombosis others 5 7 3 4 4 Professor Robbs of KA told Or Smythe in Feb 75 {after a Bulletin article) that there were 10 docu&eated cases of roesothcTiefta in WA. in 5cp 78 Professor Robbs sent Dr Satythe so^prelisioaigMws^ter^'^ of a study,,of pulcnonary-diseases in asbestos mines in WA. The study showed that there were then 19 cases of mesothelioma in ex-Wittoneom workers, mainly confined to men engaged before 1955, V fc^ In addition there were then 4 other Known oases of mesothelioma, net from mining but from contact otherwise with Wittenoera asbestos: - a private carting contractor - a waterside worker - the wvfe of a winer - the daughter of a miner making a total of 23 Wi ttonown-caused cases as at Sep 76. The 23 identified HUtenoom-caused cases in Sep 76 had apparently increased to 25 by Rar 77; the TDT program in Perth on 24 #ay 77 stated "...There have been .26 cases of fuesothatigaa in Australia in people who lived at Wittenoom during Che mining days. All died..." While 2.2X of 446 men employed before 1955 and working for longer than one year at Wittenoom hove contracted mesothelioma, Professor Hobbs says the entire workforce rosy still be considered at risk. Dr SiRytho expresses the view, and he stresses that it is only 9 view, that there is not likely to be any upsurge of cases of mesothel ioma, but that cases will continue to be reported for 10 to 20 years or so at about the sa*e rate as over the post few years. Or it ati.ght be, as -hypothesised by Professor Hobbs "that we arc at present seeing only the early part of the distribution of what will eventually be a much larger number of cases." From the above one can rcake sww Inferences; - there will continue to be mesothelioma cases throughout Australia, arising from various kinds of exposure to asbestos - only some of these wiU be attributable to exposure at Wittanoo people exposed to asbestos contract other diseases besides mesothelioma - more people who worked or lived at Wittenoom can be expected to die from asbestosis, lung *i cancer, or asosothel i otna - only wine and will workers can be expected to die of asbestosis and long cancer {and they will be covered by workers* compensation) - any person who worked or lived at WUtenoom, * or handled Wittonoom blue asbestos, or came in * contact with it, may get mesothelioma (&nd .. ' XSR-ADA may be liable to civil claim) - the numbers of further Mesothelioma cases arising from exposure at Wittcnoom might be in the order of 30, In addition to the 26 established cases as at Kar 77 but we cannot predict with any confidence - the numbers aright be far.higher than 30 (but arc not likely to be much less) Stedv of pulmonary disease in asbestos miners In Mk y This study, to which CSR contributed $20,000 in 1974.was conducted at toe University of KA under the control of Professor 111chael Hobbs {Saria 1 and Preventive Medicine). "The employment records of A0A were made available so that ex-employees coulsJ be traced. SJo publication of the study results has yet been made, but Professor Hobbs provided some preliminary results to Or Soothe in Sep 76 on. confidential basis {see above). Jt would seem fitting to ask Professor Hobbs if he needs further financial or other help, and to make it available to him (within reason). Negligence? The Wittenoom mine and mill were operated from 1943 to 1966. Ws regards protection of people at Wittenoom A8A-CSR may have behaved reasonably by the standards of production people at that time. f*hor to the knowledge of mesothelioma (first touted to asbestos in a medical paper published in 1960) fairly massive exposure to asbestos dust was believed to be needed to cause asbestosis. U was not until the 60's that people realised that relatively small exposures might cause mesothelioma; and it was not until 1969 (in the UK) that regulations were first introduced to tighten-up permissible dust levels in asbestos industries. ' In 1963 a full-time ventilation officer was appointed at Wsttenoom* his duties were said to include dust Reasurements and checks on air supply, ventilation and dust extraction. How well he did his Job, or was able to do it, is another matter. There was not in the days of Wittenoom mining such a consciousness as there is now, in the commmity or in the company, -of Industrial health hazards, or what should be done about then. The behaviour of people at another time should not, of course, be judged by the standards of the present; but such judgments will undoubtedly continue,to be made. ... t ... , There would assuredly have been seme degree of*negligence at Wittenoom; the place was run by human beings! AGA-CSR has already been accused of negligence. The accusations arc likely to continue. The degree of negligence, and its nature, will almost certainly be exaggerated by some. We can expect some exaggerated accusations of negligence, and insinuations that the pursuit of profit was put ahead of concern for people's lives. Hut there may be evidence of negligence; or of what a jury would consider to be negligence. Gersh Hajor, of the Commonwealth Department ofMlealth, carried out on inspection at Wittenoom in 1366, 2 weeks before the mine closed. * He commented on inappropriate and inadequate equipment and dust control procedures, and has been heard to say that the standard of housekeeping was atrocious. There is a strong implication that ADA was negligent. The Bulletin articles in dul 74 and Feb 75, and the Nar*77 TOT program in WA point to laxness by* ABA in dust control, and "cover up" measures when tTierYwefe health or mines department inspections. I am told that some CSR staff who worked at Wittenoom hold the view that such laxness and "cover up* could have been possible. ** % In a case of the wife of a Wunderlich worker who got mesothelioma 4 from washing her husband's clothes, 1 understand that the legal view was that the claimant would not have much difficulty in proving negligence, and that Wunderlich had a "duty of care* towards the wife as well as her husband. This case was settled out of court. k* ^ M If it can be established that ABA did not take adequate precautions against asbestosis, and were thus negligent, I am told that the negligence thus established could extend to a pre-1960 mesothelioma case even though ABA knew nothing about mesothelioma prior to i960. n Vlorkcrs* compensation Compensation of individuals whose health has been affected by their employment at Wittenoom is covered, as with any other occupational 5 'diseases, by workers* compensation insurance. In the case of ADA employees, compensation is effected through the WA State Government insurance Office. The WA act specifies a maximum compensation payment of $37,253. This maximum is reviewed at 1 Oul each year and will Increase to about $<10,000 as from 1 Jul 77. In WA, I am told, an incapacitated miner would be paid about $100 pw which would allow Mm to get an invalid pension as well, -If he dies his widow is entitled to 85S of' the maXinuir^yflffnV,'* '* that is, $31,665. If he had been drawing compensation for say A years at 5100 pw, and then died his widow would get $37,253 less the 520,200 he had drawn. Other than the fixed total compensation, ha h comparable to other states, except NSW which is more generous to both the man and the widow. An ex-employee (whether he had received compensation or not), or his dependents, or his estate, could sue in the civil courts, charging negligence. Any damages that might be awarded would fall on the workers' compensation insurer, SGIO(HA). Out common law claitvs are rarely brought in dust disease matters (Hr Irving's advice) mainly because of the difficulty of proving legal negligence on the employer's part (which, in the view of some, may not be so difficult in the case of Wittenoom). s There is provision in the accounts of CSR for $320,000 to cover any uninsured workers' compensation or coswion Uw claims, to Increase by $60,000 a year to $500,000. if a claimant succeeded in a common law case. Hr Irving.suggested a payment in the order of $80,000 may result (1 have taken $100,000 - sec below). 5 Liability and insurance In addition to ex-employees from Wittenoom there are others who could be effected: - Wittenoom townspeople; there is a reported case, among others, of a young married woman who lived in Kittenoom as a child; people living at Wittenoom today, and tourists, could be affected - people who worked at Wfttenooa and who are still in our employ (Messrs M 6 King, P C Thomas, for example)* v people who worked with "Blue asbestos other than at * Wittenoom (blue asbestos ore was milled in a small mill in Central Laboratory, for example, and blue asbestos was used as a filter for some period for raw sugar filterabilUy tests) 6 Ex-rcsidents of Wictenoom could take civil action against tiidalco fty ltd Successor to ABA). Cur insurance people, checking with United Insurance, cannot tell ate whether or not we had any public liability cover for ASA prior to j953. A search of ASA files (sou* of them in tea chests at Cottesloe) may uncover a policy. Tisey also advise that the first blanket-type cover token out for CSR and its subsidiaries was for/5C,0Q0 per claim in 1959, increasing to $10,000,000 today. ,,Tbe.cover that would apply in any particutfff caseJti:T}ie'*cdverrthrt. was in force on the last day of exposure. The cover would also be for those whose exposure cossneoced %ftev the 1959 policy was taken out. If they lived at Nittenocw prior to 1959 and left, there would be no cover, If they lived at Wittenoom prior to 1959 and continued there into the 60`s the insurance company would claim that the prior 1959 exposure may have caused the disease. So it seems that we have public liability insurance dover only for 1959-66. CSR could be unprotected by insurance and be up for say 30 x $100,000 6 $3,000,000 or more for asbestos-caused diseases in people who were at Wittenoom pre-1959. The legal and insurance aspects of our liability obviously need thorough checking out. Obligation? Some of us may believe that CSR has no continuing or undischarged moral or legal obligations; but others will no doubt from time to time assert that we do have. I think we have, and will continue to have, an obligation (or.il or humanitarian, only minimally financial) to find out who was hurt, and whether tan help. Vte t&n`t D*t turn pur back oa the situation. The eonttunity accepts, through social services or through the institution of compulsory workers* compensation insurance, the financial obligation to help people who suffer disability. The workers at Wittenoom were Insured. CSR-A0A*s legal and financial obligation would appear to be discharged. But workers' compensation payments iu VA to incapacitated people, or to widows, while in some respects as good as those in most other states, are not generous. ^ have we some kind of obligation to support a case for increased condensation? If we put up such * case to the WA authorHies tUyy wouU ask if we too were prepared to contribute. Our answer could quite properly be "yes; we would help in a supplementary way, and within limits", and we *r a t**,,** r 7 There may be a case to help some in particularly sad or difficult situations - not from either legal or moral obligation, but from coowon humanity, We could offer, for example, an education allowance to a widowed mother of a school-age child. To do so would expose us to a risk; we could be accused of acknowledging culpability and obligation. Out we should accept that risk, I thfnJu Some non-financlal responsibilities Some of the people who passed through Wittenoom, either as workers or .residents, ere nop likely to be very competent at _freljgfcag, themselves. even at obtaining compensation. A case could be made that we should work with others to provide, or contribute towards, counsel and guidance to Such people, and their dependents, including legal advice. locating them would be difficult. Social as well as medical reports on them would be needed. - Professor Michael Hobbs has expressed views to Or Smythe about trying to contact people from Uittenoom who might be suffering (or be potential sufferers) from mesothelioma; he said nothing could be done for them medically, and contacting suspects could only cause increased anxiety. We should probably keep more closely in touch with Professor Hobbs (and offer further financial or other help) and others in WA. It could be a continuing job for Mr Leith. s I think we do have a real obligation: " - to know the facts - to know of the individuals who are suffering - to be helpfgl where we can, with^pre-decided . fimits X Maybe we should set up, or help set up, soma kind of arms-length organisation and a trust fund. 7 Publicity There will inevitably be further cases and further publicity. I suggest that as a general rule we do NOT make public statements of any kind, but firmly and resolutely and courteously abstain, as far as we can do so, from any kind of involvement in public denote or mediaproduction. It may be said that "CSR refused to comment*. It nay be implied that we were careless, or blameworthy (but the media will be hesitant ' about going too far because of the laws of HbeU We may just have to live with those things, & za^entu position may be imprudent to toaintadn. If we hav* so say something we might issue a statement along the lines of dr Smytl*'* draft attached. We should take the opportunity to ensure that responsible people, including our own staff, are informed. It may also be necessary at'some future tine to publish something i She annual report (but only if we can't avoid it), or elsewhere. A set of notes, coolly stating the facts, without advocacy, would be helpful to infcm those responsible and involved in the and could serve as a basis of any public statements we might he forced to isle. .It would need legal checking. --*-- Administration in CSft The files on asbestos and related matters are dispersed in CSR. Pad there are numbers of people who have been involved; fir h G King, who has authorised various actions and uho has sortie files legal department, who have not recently been involved {Mr Chate had sewe ABA files) 2r Scythe, who is vie11 informed and has Wen involved Tor sous years. He has .a library of references* fir Pick ford has considerable knowledge too* particularly an white asbestos. Mr Irving, who is well informed on conditions at Wittengom nd compensation matters. air Browne Rr Ddvis and Hr flfverson Rr Pearse "It could be useful if one single person were made responsible for: - assembling files and information - maintaining contact with Hr teith and Professor Hobbs - compiling information - establishing a source of sound, on-going (and readily available) legal advice - working up a case to WA authorities to increase compensation - submitting reemendations for ex-gratia < < ,,-. .C,. .... .... . 9 The one single person charged with the administrative on-carriage of asbestos matters could be Or_Hunday. Or Munday could report on this matter to Mr Davis or to some other senior officer, but maintain close liaison with Or Smythe who could advise him on maintaining contact with and helping,Professor Hobbs, Summary of recommendotions " felicity Keep out of public debate. - Son11 mak^^UteflofttS' (if we can avoid doing so). Information Compile notes for reference. Special help Set aside, say, $20,000 - $30,000 pa, or more, for say 10Tears for ex-gratia financial assistance to special cases, to help foliow-up and to provide help, guidance and counsel to known sufferers or their depeodeots. Maybe do so, at anas-length, through a trust. Trust Set up an aras-length trust to receive theSe sums, and to atSnfnister help. HA compensation Investigate and decide whether we should put a case to improve, or whether we should supplement in any way. Consultation Consult more closely with the HAsauthor!ties and the university study, and co-operate with them. Medical retainer Check out arrangements made with Or Rennie and Or doseph some years ago. legal Get legal advice on overall situation, and particularly TfabTlity and insurance. ftdmi ni strati on Name a senior roan in CSR to work on and co-ordinate these matters.