Document r2qYZNJnKb4QLeKY53przmrv

FILE NAME Colonial Sugar Refinery CSR DATE 1987 DOC CSR186 DOCUMENT DESCRIPTION Legal - Amended Statement of Claim in Simpson vs. Midalco IN OF THE SUPREME COURT WESTERN AUSTRALIA BET No. 1814 of 1985 WALTER SIMPSON Plaintiff -andMIDALCO PTY LTD Defendant FURTHER AMENDED STATEMENT OF CLAIM AMENDED PURSUANT TO THE ORDER OF MASTER STAPLES MADE THE 27TH DAY OF FEBRUARY 1986 AND AGAIN PURSUANT TO THE ORDER OF MASTER SEAMAN Q.C. MADE THE 12TH DAY OF DECEMBER 1986 AGAIN PURSUANT TO THE ORDER OF MASTER SEAMAN Q.C. MADE THE 28TH DAY OF JANUARY 1987 1 The Plaintiff who on 22nd December 1936 was an invalid pensioner was born 2. The Defendant formerly named Australian Blue Asbestos Pty Ltd. is a duly incorporated company 3 At all material times the Defendant was the owner and mill operator of a blue asbestos mine and at Wittenoom 4. The Plaintiff was employed by the Defendant initially as a scraper driver then as a grizzly man and later as a loco driver and for short periods as a loco guard plate layer mechanical bogger and pump operator at the mine between about June 1959 and about March 1964 save for a period about six months in our about 1960 5. In the course of his said employment the Plaintiff was exposed to and inhaled dust containing a heavy concentration of asbestos fibres and particles as a result whereof he contracted asbestosis and chronic bronchitis 6 The Plaintiff contracted asbestosis and chronic bronchitis in consequence of the negligence of the Defendant its servants and agents and the Defendant's breach of statutory duty Al a - e These are Particulars not proper requests for Further and Notwithstanding this the Plaintiff says Better A loco guard was the guard on an ore train operating in a haulage way of the mine a plate layer was a person assisting to lay railway lines in the mine a mechanical bogger was a man using a machine to remove aggregate from a work face in the mine a pump operator was a person to operate a pump in the mine operating or assisting Q2 As to paragraph -particulars of aa of the Amended Statement of Claim give a b the ducting and other machinery it is alleged part of the dust collection system in the mill what is meant by the expression integrity formed A2 a b The not request to a proper provide particulars of the ducting is request for Further and Better Particulars The other machinery is the machinery being parts of the dust collection system of the mill described in detail by the Defendant in its publication The ABA Story being documents numbered 259 in the Defendant's List of Documents herein Integrity maintenance refers in this context to failure such that asbestos fibre and dust of Was permitted to escape from machinery into the mine the ducting and other 43 Government 61 a Yes b The Ventilation Shift Bosses Officer his assistants and 2.62 A.62 c Officers from the Mines Department of Western Australia were in the mine from time to time using dust measuring instruments ; The Defendant does not know and is not able to say which particular officers were monitoring levels at any particular time Further if yes to interrogatory ii were such levels monitored by - a a Konimeter 59 } and b a midget impinger a Yes Q.63 b The Defendant TT 1960 but _ the whether dust purchased Defendant a midget impinger in impinger is unable to state levels were monitored by the Defendant by the use of a midget impinger during the Plaintiff's period of employment If yes to interrogatory 62 - a was a Konimeter capable of detecting the incidence of fibres of asbestos length b i to the then knowledge of the Defendant did Dr. J. McNulty report to the Commissioner of Public Health W.A. 1959 as to the use of a Konimeter in in detecting the incidence of fibres of asbestos length ii if yes to part b did the Defendant - Honery 44 A.63 x prior to y subsequent to - acquiring knowledge of the said report and in either case then approximately when - iii aa know - that the Konimeter was unsuitable for detecting the incidence of fibres of asbestos length if no to part b did the Defendant at any and what time approximately - w prior to x during - the employment - " aa know - that the Konimeter was unsuitable for detecting the incidence of fibres of c a b asbestos length did the Defendant know during the employment of the method of measuring levels by use of a midget impinger The Defendant understood that the purpose of using a Konimeter was to measure dust levels The Defendant does not know what the phrase incidence of fibres of asbestos length means i Not in 1959 ii Not applicable iii w aa By letter dated General Secretary 16 of March 1960 the the Chamber of 45 Q.64 Mines of W.A. Inc. wrote to the General Manager of the Defendant enclosing a letter from the Quebec Asbestos Mining Association which stated inter alia that the Konimeter has not been found to be a suitable instrument in the asbestos field for several reasons one of which is that concentrations greater than 1,500 parts per CC cannot be measured Otherwise the Defendant did not know that the Konimeter was the incidence unsuitable for of fibres of detecting asbestos lengths Yes At any and what time - 64 a prior to b during - the employment did the Defendant - i know - that a dust concentration at a workplace of 300 particles per cubic centimetres - in excess x was excessive y might over a period cause asbestosis or other chest injury to a worker exposed thereto ab i x By letter dated 16 March 1960 the General Secretary of the Chamber of Mines of A. Inc. wrote to the fi Alkon ( 598 ) R Homery Homery Homery Sp Sp Sp 46 General Manager of the Defendant enclosing a letter from the Ontario Mining Association which stated inter alia that the general classification for concentrations of dust particles was 100 particles per cc excellent up to 300 particles per cc good 500-600 particles per cc fair over 1,000 particles per cc poor Otherwise the Defendant did not know that a dust concentration at a workplace in excess of 300 particles per cubic centimetres was excessive Q.65 y The Defendant objects to answering this interrogatory on the grounds that is oppressive as it does not specify over what particular period or what other chest injury On any and what occasions during the the Plaintiff exposed in the mine - employment was a to dust in centimetre excess of 300 particles per cubic b c to dust in excess of 300 particles per cubic centimetre to dust in containing blue asbestos fibres excess of 1000 particles per cubic centimetre A.65 D.N d to dust in excess of 1000 particles per cubic . centimetres containing blue asbestos fibres The Defendant objects to answering this interrogatory on the grounds that it is oppressive Allen Allen ( sqr ) R. Henvery Henvery Henvery a ( 5gr ) 47 as the Defendant is unable to ascertain where the Plaintiff in particular worked in the mine nor on what occasions he worked in any particular area and therefore nor to what level of dust if any he was exposed Q.66 If yes to any part of interrogatory approximately how many occasions in the mine Plaintiff exposed - 65 was on the a to dust in centimetre excess of 300 particles per cubic b c to dust in excess of 300 particles per cubic centimetre to dust in containing blue asbestos fibres excess of 1000 particles per cubic centimetre A.66 d to dust in excess of 1000 particles per cubic centimetre containing blue asbestos fibres Not applicable Q.67 67 In July 1961 was Dr. R. physician to the Defendant No. Rennie a consultant Q.68 Look at the document hereto the letters BB and say - annexed and marked with a did the same come Defendant to the - knowledge of the b was the same Defendant advised of the contents of c when the same came to the knowledge of the Defendant or in the alternative whichever is earlier when the Defendant was advised of its contents .N Allax Allax ( Sga ) R. Henverj Henverj Henverj ( Sga 48 a Yes b Yes Q.69 c In or about August 1961 a To the then knowledge of the Defendant did the Commissioner of Public Health present to both Houses of Parliament in Western Australia a Report for the year 1959 dealing with industrial chest disease inter alia of workers employed by the Defendant b If yes to part obtain a copy of the then when a did the Defendant said Report and if so a Not in 1959 Q.70 A.70 b Not applicable Between 1955/1959 former employees were approximately 12 employees or of the Defendant to the then knowledge of the Defendant its servants or agents diagnosed as suffering from chest disease due to exposure to blue asbestos fibre No. Q.71 Between 1960/1964 were approximately 24 employees or former employees of the Defendant additional to those employees enquired after in interrogatory 71 to the then knowledge of the Defendant its servants or agents diagnosed as suffering from chest disease due to exposure to blue asbestos fibres 1 The Defendant was advised by the State Mining . Engineer in February 1960 that the Health Laboratory expressed concern that four of the Defendant's employees were diagnosed as 2 49 suffering from asbestosis Defendant 2 In a letter < dated 20th June 1960 the Office that there were three or four claims over the last 12 months for employees certified as suffering from asbestosis either with or without tuberculosis 3 The Defendant's Mine Manager Mr. 0. Allan was diagnosed in about May 1961 as suffering from some degree asbestosis of silicosis or possibly 4 In about August 1961 the Defendant was provided with copies of a memorandum to Dr. A. King dated 13 January 1960 an addendum to Report on the Health of Workers in Wittenoom 1959 dated 23 March 1960 and the Wittenoom chest ray survey of 1960. The copies were returned to Dr. Bruce Hunt on 31 August 1961 and as the Defendant did not keep copies of the reports at the time the Defendant is now unable to state what information was contained in those reports 5 The Defendant's available records indicate that in October Thomas on 1961 there behalf of was a meeting with Mr. P. the Defendant and Drs McNulty and Letham when statistics were apparently tabled at the meeting listing 34 names of persons sufferingfrom asbestosis or silicosisbelieved to be contracted whilst in D.N. igal igal 50 the employ years of the Defendant over the past 15 6 In about September 1963 the Defendant was aware that there were attributed to Wittenoom 21 - cases of asbestosis and asbestosis which had been graded by the Public Health Department as one asbestosis four early asbestosis fourteen early asbestosis and two asbestosis Q.72 Q.72 During the period of the employment and at such time if any as the Plaintiff worked shift work did - A.72 a b c a the morning shift end at approximately 3.30 p.m the afternoon shift commence at 4.00 p.m the afternoon shift commence at 4.30 p.m. For the employees not morning shift involved with blasting ended at approximately work 3.15 p.m. for 3.30 p.m. those employed in blasting work at b No c Yes Q.73 Q.73 A.73 A.73 During the period of the employment or some and what part thereof was blasting work undertaken in the mine at or about the time of the ending of the morning morning shift Yes Q.74 Q.74 Did such blasting work as was undertaken in the mine during the period of the employment - D.N .. Allon ( Sga ) R. Heavy Heavy Sga ( Sga 51 a produce dust in b result in the dissemination of dust throughout - i the stopes ii the haulage ways 111 the main adit a & b ii and iii Blasting work produced dust in the vicinity of the area blasted which depended upon the stage of the development of the mine and the Q.75 necessity for blasting If yes to any part of interrogatory 74 hereof what measures if any did the Defendant take to alleviate the production there referred to or dissemination of dust A.75 The Defendant - a allowed time between shifts for the dust to settle and to be exhausted by the ventilation system referred to in my answer to interrogatory 20 Q.76 b a instructed its employees to water down the ore broken by blasting At any time prior to b At some and what time during - the employment was the Defendant i requested ii directed ~ by officers of any and what department Western Australian Government to allow a period than - of the greater D Allon ( Sgd ) R. Hervery Hervery Hervery 52 A.76 x 1 hour y 1-1 hours - between blasting operations and the the next shift of work in the mine commencement of a i ii x and y 1 Yes A letter dated 6 September 1960 Senior Inspector of Mines and the from the Workmens Inspector of Mines to the Manager of the Defendant contained in the Colonial Mine Record Book stated inter alia It is suggested that shifts be arranged so that there is a break of 2 1/2 hours between any day shift and afternoon shift for underground workers 2 A letter dated 19 September 1960 from the Senior Inspector of Mines to the Defendant stated to me inter that alia My investigations indicated _ a longer break between day and afternoon shift would allow the fume conditions to cle anda thr at the period a ee necessaryfor this is twto wo and and one . half 2 1/2 hours b i No. ii x and y 2.77 A.77 Q.78 If yes to any part of interrogatory 76 give the usual particulars of any such direction I refer to and repeat my answer to interrogatory 76 Further if yes to Defendant pursuant any of to any interrogator 7y6 did the such direction at any and what time and for any and what period during TNS, Allan Allan ( syr R. Hennery Hennery Hennery Hennery Hennery