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