306
in a Wittenoom worker.
154
This till then rare asbestos-related disease would
also begin to
appear in other Wittenoom workers and residents. Meanwhile the health of those who left
Wittenoom suffering from asbestosis progressively deteriorated. Once brought to the
attention of the Australian media, Wittenoom and the hazards of asbestos were widely
reported. The Bulletin articles in July 1974 and February 1975 and the March 1977
This Day
Tonight programme in Western Australia pointed to ABA Limited’s laxness regarding dust
control, and “cover up” measures when there were Health or Mines Department
inspections.
155
In response to the media revelations, CSR began to extricate itself from
visible links to asbestos mining and prepared a secret defence strategy should
asbestos
victims seek damages.
156
The
Bulletin article of 6 July 1974 on Wittenoom prompted CSR executives to go into
damage control. They sought answers to the newspaper’s report.
157
Deputy General
Manager, Malcolm King — in CSR’s employ since 1933 — was instructed to assemble what
eventually amounted to 20,000 documents that CSR and ABA Limited possessed on the
Wittenoom operation.
158
King could not respond immediately to several of CSR’s senior
management’s questions. He had to search the Cottesloe [a suburb of Perth] ABA
archives.
159
This of itself is an interesting revelation, because in the early common law cases
which failed, CSR would only provide about 30 documents. Vojakovic and Gordon were blunt
in their summation of CSR in this regard: “Clearly, if people were going to take on CSR, CSR
wasn’t going to give them a leg up from their own records”.
160
These
are questionable actions
over which CSR has never been called to account — given “the conventions of legal
discovery require all parties involved in legal proceedings to give discovery by making
154
McNulty(1962), Op Cit. Saint, E. G. (1963), 'The Medical Problem of Migrants',
Medical Journal
Australia, pp. 1335-40.
Elder, Op Cit.
155
Vojakovic & Gordon, Op Cit. p. 386. Peacock (1978), Op Cit.
156
Vojakovic & Gordon, Op Cit.
157
Motley Rice Plaintiff’s Exhibit no. 10674_05: Some questions and answers concerning Bulletin
Cover Story: “Is there a killer in your home?” July 6 1974.
158
Vojakovic & Gordon, Op Cit. pp. 377 & 393. Motley Rice Plaintiff’s Exhibit no. 10674_05: Some
questions and answers concerning Bulletin Cover Story: “Is there a killer in your home?” July 6 1974.
159
Motley Rice Plaintiff’s exhibit no. 10674_05: Some questions and answers concerning Bulletin
Cover Story: “Is there a killer in your home?” July 6, 1974.
160
Vojakovic & Gordon, Op Cit. p. 393.
307
available a list of all documents in their possession, custody or power relevant to the matters
in issue to the other party or parties”.
161
CSR went to great lengths to avoid the payment of damages to asbestos victims.
162
The company’s efforts to protect their own interests commenced with two changes to their
subsidiary company, Australian Blue
Asbestos Limited, which had operated the Wittenoom
mine. Firstly, in 1974, ABA Limited’s name was changed to Midalco Pty Ltd.
163
Secondly, and
not commonly known, in May 1975 the parent company, CSR, reduced Midalco’s capital
from $7,000,000 to a sole asset of $100,000. CSR had given this amount to Midalco as an
interest free loan. As one CSR executive remarked in October 1977, “it
could be dynamite if
known”.
164
That same year CSR established the Wittenoom Trust, apparently to aid
Wittenoom victims. The Trust, however, was a vehicle to uncover the unsuspecting victims’
strategies in their common law cases against CSR.
165
Several participants in this research
mentioned approaching the Wittenoom Trust for financial help or that they attended the
Trust’s social functions and excursions. These included Christmas in July, Easter and
Christmas lunches, regular bingo events, and Mother’s and Father’s Day celebrations.
Excursions outside of Perth were made to Rottnest Island and Kalgoorlie.
One participant
recalled CSR had holiday homes in Bunbury made available to them.
By December 1977 the company had finalized its defence strategy, should it be
required to defend itself in the courts. In his 30 page report, John Rothery of the Sydney law
firm, Freehill, Hollingdale and Page, recommended that CSR stand behind Midalco’s limited
liability. “Midalco was the operating company and had insurance protection. The insurers
(and society generally) should carry all the liability. It is really not CSR’s responsibility”.
166
Rothery’s legal advice concluded that with Midalco not liquidated, in the event of damages
claims based on
a case of negligence, Midalco could be sued. They would not, however,
have the money to pay claims beyond the $100,000 it held unless CSR stood behind its
161
Explanation of the term legal discovery provided in an email by Emilia Oprandi, solicitor, 28
December 2012. See also
Simpson, S.D., Bailey, D.L. and Evans, E.K. (1984),
Discovery and
Interrogatories; (Sydney: Butterworths).
162
Vojakovic & Gordon, Op Cit.
163
Ibid. p. 378.
164
Ibid. pp. 389 & 393.
165
Ibid. pp. 392, 398-401.
166
Ibid. p. 390.
308
subsidiary. J. F. Blaxland, CSR’s Corporate Secretary, had conceded the company’s
negligence at their 8
th
September 1977 meeting — one of several that year — during which
Malcolm King, F. N. Lewis (CSR legal department) and W. Harvey (nominal chairman of
Midalco Pty Ltd) were present.
167
Legal advice quashed any notion of generosity towards the victims on the grounds
that there was no way to ascertain the number of potential claimants.
Two CSR executives,
Ian Burgess and J. F. Blaxland, felt the weight of the moral obligation to the asbestos victims
but would acquiesce given the legal advice.
168
Vojakovic and Gordon summarized CSR’s
strategy thus: “delay, don’t settle, don’t be generous, ride it out, keep it quiet, hide the truth,
and whatever happens make sure they never pin anything on CSR”.
169
The early claimants
for compensation would fail as a result.
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