(re Staniforth) Bluescope Steel Limited v Allianz Australia Insurance Limited
[2006] NSWDDT 42
•20/10/2006
Dust Diseases Tribunal
of New South Wales
CITATION: (re Staniforth) Bluescope Steel Limited v Allianz Australia Insurance Limited [2006] NSWDDT 42 PARTIES: Bluescope Steel Limited
Allianz Australia Insurance LimitedMATTER NUMBER(S): 338/2003/1 JUDGMENT OF: Kearns J CATCHWORDS: ARPD - Dust Diseases Tribunal :- LEGISLATION CITED: Workers Compensation Act 1987 CASES CITED: ICI Australia Operations Pty Limited v FAI Workers' Compensation (NSW) Limited (2001) 21 NSWCCR 465;;
MMI Insurance Compensation (NSW) Limited v Baker (1997) 41 NSWLR 289;;
FAI Traders Insurance Co Ltd v HIH Winterthur Workers' Compensation (NSW) Pty Ltd (1998) 45 NSWLR 257;;
Chubb Australia Ltd v Mercantile Mutual Insurance (Workers Compensation) Ltd (1999) 17 NSWCCR 537;;
N.S. Donnelley Pty Limited v CGU Workers Compensation (NSW) Limited [2006] NSWDDT 26;;
FAI Traders Insurance Co Limited v HIH Winterthur Workers Compensation (NSW) Pty Limited (1998) 45 NSWLR 257;;
The Government Insurance Office of NSW v Colgate Palmolive Pty Ltd (2001) 21 NSWCCR 436;;
Colgate Palmolive Pty Limited v GIO (NSW) (1999) 19 NSWCCR 106;;
Orica Limited v CGU Insurance Limited (2003) 59 NSWLR 14.DATES OF HEARING: 12/10/2006; 20/10/2006
DATE OF JUDGMENT:
10/20/2006LEGAL REPRESENTATIVES: Ms L Young, instructed by Hicksons, appeared for the Applicant, First Cross Defendant
Mr T M Rowles, instructed by Sparke Helmore, appeared for the Respondent, Main Cross Claimant
JUDGMENT:
RULING
KEARNS J
Background
1. Mr Staniforth (the plaintiff) settled his case against Bluescope Steel Limited (the defendant) for $75,000, inclusive of costs. He had sued the defendant in this Tribunal, seeking damages for asbestos related pleural disease (ARPD) which he contracted by being exposed negligently to asbestos dust and fibre in the course of his employment with the defendant.
2. In his statement of claim against the defendant, he alleged that he was employed by the defendant between 18 February 1957 and December 1991. He further alleged that he was exposed to asbestos dust and fibre in the course of his employment between 19 February 1957 and about the middle of the 1970s .
3. During part of the plaintiff’s period of employment with the defendant, the defendant had a policy of insurance with the cross-defendant, Allianz Australia Insurance Limited (Allianz). That was what is popularly known as a workers compensation policy. That policy commenced in about 1958 and expired on 30 September 1979.
4. All this is common ground. Further, it is not disputed by Allianz that the defendant was negligent in the occurrence of the plaintiff’s injuries.
5. The defendant made a claim on Allianz on the policy. Allianz says it is not liable by reason of the operation of section 151AB of the Workers Compensation Act 1987 . The reason it says it is not liable on the policy is that there was a time after 30 September 1979 when the plaintiff was employed by the defendant in employment to the nature of which his disease was due.
The legislation
6. Section 151AB relevantly provides:
(1) If an employer is liable independently of this Act for damages for an occupational disease contracted by a worker, the following provisions have effect for the purposes of any policy of insurance obtained by the employer:
(a) the liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due …
The issue
7. The issue before me concerns interrogatories.
8. Pursuant to short minutes of order, leave was granted to the defendant and Allianz to interrogate. Allianz did. The defendant answered. Allianz complains that many of the answers are unsatisfactory and it seeks better answers. What Allianz seeks by its interrogatories is evidence that the plaintiff, after 30 September 1979, worked in conditions of employment that exposed him to a risk of contracting ARPD. Ms Young, who appeared for Allianz, argued that this position was supported by a decision of Curtis J in ICI Australia Operations Pty Limited v FAI Workers’ Compensation (NSW) Limited (2001) 21 NSWCCR 465, (ICI).
9. Because I have, with considerable hesitation, come to a view different to that of Curtis J in ICI, I seek to set out my reasoning in some detail hereunder.
A hurdle
10. I think there is authority binding on me that governs the result of this application.
11. MMI Insurance Compensation (NSW) Limited v Baker (1997) 41 NSWLR 289 (Baker) is binding and, if it applies, it will mean that none of the interrogatories has relevance. Ms Young argued that Baker did not apply for reasons I shall consider.
12. Ms Young’s principal argument was that section 151AB operated so as to relieve Allianz of any obligation to indemnify the defendant because the plaintiff was employed in conditions to the nature of which his disease was due after Allianz went off risk.
13. In considering section 151AB , there is the possibility of confusion unless it is appreciated that two different questions may arise. One question is – what insurers potentially might be liable to indemnify an insured? This might be described as a temporal issue. The other question is – when those insurers have been identified, which of them is liable to indemnify an insured? This might be described as a nexus issue.
14. It is important to understand that Baker was concerned with what I have called “the temporal issue”. What I draw from Baker, is that where an employee seeks damages from an employer, in respect of a particular period of exposure, an insurer will not be liable to indemnify the employer if it was not on risk during any part of the period of exposure alleged by the employee. In this case, the employee’s claim was in respect of a period of exposure between 19 February 1957 and about the middle of the 1970s . Insurers on risk after about the middle of the 1970s would not be liable to indemnify the defendant. Insurers who are potentially liable to indemnify the defendant are those insurers on risk in the period between 19 February 1957 and about the middle of the 1970s . That is the answer to the temporal issue.
15. I do not need to go on to the nexus issue in this case. This is because the determination of the temporal issue means that there can be no enquiry as to events after about the middle of the 1970s and it is only in respect of events after that time that Allianz seeks to interrogate.
16. I proceed then to analyse the authorities which I consider support the above process of reasoning.
17. In Baker, the plaintiff limited his claim against his employer to exposure to noise to a period expiring on 30 June 1987. The trial judge found he was exposed to noise after 30 June 1987 and held the insurer on risk in 1988 to be liable to indemnify the employer. On appeal, it was held that the plaintiff’s cause of action, being limited to a period expiring on 30 June 1987, the employer’s recourse to an insurer, was not to the insurer on risk in 1988, but the insurer on risk on 30 June 1987.
18. FAI Traders Insurance Co Ltd v HIH Winterthur Workers’ Compensation (NSW) Pty Ltd (1998) 45 NSWLR 257 was precisely to the same effect as Baker.
19. Chubb Australia Ltd v Mercantile Mutual Insurance (Workers Compensation)Ltd (1999) 17 NSWCCR 537, a decision of Armitage J, also supports the reasoning process I have adopted in this case. Armitage J applied Baker and FAI v HIH.
20. I did analyse Baker and other cases in a recent decision of N.S. Donnelley Pty Limited v CGU Workers Compensation (NSW) Limited [2006] NSWDDT26, (Donnelley). The matter is dealt with especially at paragraphs 16 and 19-24 of Donnelley.
21. In Donnelley, it was acknowledged that Baker was binding authority, and a distinction was sought to be made on the basis that Baker involved a finding by the court as to last exposure to noise, whereas in Donnelley, there was no finding as to last exposure to asbestos as the plaintiff’s case was settled. I considered that that was not a material or relevant distinction. There was no acknowledgment in this case that Baker was binding.
22. To take from the passage I quoted from Gleeson CJ, as he then was, in Baker at para 19 of Donnelley, there only ever was one insurer on risk in relation to the plaintiff’s cause of action and that was Allianz (bold highlighting added).
23. To take also from the passage I quoted from Handley JA in FAI Traders Insurance Co Limited v HIH Winterthur Workers Compensation (NSW) Pty Limited (1998) 45 NSWLR 257, (FAI v HIH), at para 21 of Donnelley,
one result of this construction is that the identity of the insurer liable to indemnify the employer can be affected by … the period for which they (that is the damages) are claimed.
24. In FAI v HIH , Handley JA also said at p260,
This decision (that is Baker) , from which the High Court refused special leave to appeal, negatives, in a case such as this, the liability of any insurer which only came on risk after the expiration of the period during which the liability was incurred .
(Bold highlighting added.)
25. Ms Young had three answers to Baker. The first was that the decision of Curtis J in ICI Australia Operations Pty Limited v FAI Workers’ Compensation (NSW) Limited (2001) 21 NSWCCR 465, (ICI), allows Allianz to explore the plaintiff’s working conditions after 30 September 1979. The second answer is that Baker is distinguishable. The third answer is that the case is being conducted on this particular issue and should be allowed to proceed accordingly. There was a suggestion that Allianz may want to re-argue Baker.
26. I deal with each of those three matters.
ICI
27. In ICI, an insurer, the last in time of a number of insurers, sought an order dismissing a cross-claim against it. It was on risk from 30 September 1987. The plaintiff’s statement of claim alleged exposure between 1950 and 1982. Curtis J looked at some evidence touching on exposure after 1982. He noted the insurer’s submission and dealt with it as follows:
…First, because the plaintiff on his statement of claim recovered damages in respect of exposure between 1950 and 1982, he (ie. counsel for the insurer) asserts that s 151AB cannot apply to inculpate an insurer who did not extend cover in the period in respect of which the plaintiff recovers damages. This I found to be an attractive proposition when I said as much in the matter of Colgate Palmolive Pty Ltd v GIO (NSW); Re Greniewicz (1999) 19 NSWCCR 106. In the light of the decision of the Court of Appeal in this matter delivered on 22 February 2001 ( GIO(NSW) v Colgate Palmolive Pty Ltd (2001) 21 NSWCCR 436), I do not believe that that contention is available.
28. When I turned to The Government Insurance Office of NSW v Colgate Palmolive Pty Ltd (2001) 21 NSWCCR 436, (GIO v Colgate Palmolive), I was not as convinced as Curtis J was that it supported the proposition contended for by the insurer in the case before him and by Allianz in this case.
29. I turn to Colgate Palmolive Pty Limited v GIO (NSW) (1999) 19 NSWCCR 106 (Greniewicz).
· In that case, the plaintiff was employed by Colgate Palmolive between 1966 and 1991. Between 1967 and 1970, he inhaled proteolytic enzymes. This caused him to suffer asthma, bronchitis and emphysema.
· Between 1972 and 1988, he was exposed to welding fumes. The actual finding is recorded as follows in para 6:
…Colgate required of him that he perform welding work, exposing him to harmful fumes between 1972 and 1988. Between 1972 and 1986 he spent 15 – 20 per cent of his working hours welding. Between 1986 and June of 1987 that percentage was approximately five per cent because of the changes in his duties…
· The finding, therefore, as I read it is that the plaintiff was exposed to harmful welding fumes up to June 1987. That interpretation of the finding appears to be affirmed by paragraph 12 of the Judgment.
· The insurer, GIO, came on risk on 1 January 1987.
· On 20 January 1987, the plaintiff suffered an acute attack of breathing difficulty whilst welding. The immediate effects of that episode were transient.
· The plaintiff was a smoker, but that is not relevant to this analysis.
· In his statement of claim, the plaintiff claimed damages for injuries resulting from exposure to enzymes and welding fumes between 1966 and approximately 1987 .
· At para 12 of his Judgment, Curtis J said,
Accepting that the plaintiff’s work between January 1987 and 30 June 1987 was, in the abstract, employment to the nature of which the diseases of asthma, bronchitis and emphysema may be due, there is no evidence specifically directed to the question of whether the work in that short period materially contributed to the injuries for which the plaintiff recovered damages. I must rely on inference.
· It seems to me that what was at issue in that case was what I have called with the nexus issue. The determination of the nexus issue required a determination of the proper test to apply in interpreting the phrase in section 151AB , employment to the nature of which the disease was due . Was the proper test one of causation, one of risk which may be causative of the disease or some other test? Curtis J appears to have applied a causation or material aggravation test in paragraph 12 of his Judgment – see also paras 50 and 52 of his Judgment.
· At para 52, Curtis J said,
In any event I am bound by the decisions in MMI v Baker and FAI v HIH. In the application of s 151AB to the present facts, I must determine the time at which, in consequence of his employer’s breach of duty, the plaintiff last became entitled to damages as a result of a material aggravation of an occupational disease in an employment to the nature of which the disease was due.
· Curtis J was here discussing what I have called the nexus issue and, whilst he said he was bound by the decisions of Baker and FAI v HIH , those cases did not go to that issue. In my view, he was not bound by those cases on the determination of that issue and they did not bind him to find causation or material aggravation as the test for resolving the nexus issue. It was only in that respect that the Court of Appeal considered that Curtis J was in error. The error did not affect the result in that case and it does not affect the result in this case as I am concerned with the temporal issue and not the nexus issue.
30. In the appeal in Greniewicz in GIO v Colgate Palmolive, Heydon JA, as he then was, stated at para 12 that neither Baker nor FAI v HIH supported the approach of Curtis J. This was plainly a reference to paras 50 and 52 of Greniewicz where Curtis J applied a causation or material aggravation test to section 151AB . As indicated, paragraphs 50 and 52 deal with the nexus issue and not the temporal issue. I do not understand Heydon JA to be saying that those cases affect the temporal issue or to be saying that an insurer who comes on risk after a time in respect of which the plaintiff sues could be liable. The passages he quotes from Baker and FAI v HIH , in paragraphs 12 and 13 of his Judgment would suggest that he was not saying that at all and that he was approving of both Baker and FAI v HIH.
31. Having reconsidered my decision in Donnelley and the cases under consideration, I am firmed in my view that an insurer which comes on risk after a period in respect of which a plaintiff claims damages will not be liable to indemnify the defendant by reason of section 151AB .
Baker is distinguishable
32. The only point of distinction argued was that the wording of section 151AB has been changed since Baker was decided. How the change of wording created a point of distinction was not developed. I do not think this is a valid point of distinction. The changes were not introduced with any intention to deal with Baker. They followed Orica Limited v CGU Insurance Limited (2003) 59 NSWLR 14 . The opening clause of the section remains the same, If an employer is liable independently of this Act for damages . The employer was not liable for damages in Baker after 30 June 1987 and the defendant is not liable for damages in this case after 30 September 1979. No insurer or self-insurer after those dates could be liable.
Baker to be re-argued
33. Ms Young made a comment near the end of her submission in reply to the effect that Baker may be revisited. It will need leave of the Court of Appeal at two levels – leave to appeal because of the amount involved and leave to re-argue. That is not something I can venture into and, but for this comment at the end of Ms Young’s submissions in reply, I would have dismissed this application on the ground that none of the interrogatories can have any relevance.
The interrogatories
34. Assuming the case is to proceed as a contest, I deal with the interrogatories. It is necessary to go through each of them. I set out each interrogatory that is in issue and, where necessary, the answer.
Interrogatory 3(b)(ii)
35. Interrogatory 3(b)(ii) requests as follows:
specify the nature of the asbestos by reference to its trade name, its shape, its colour and its location within the workplace.
36. Interrogatory 3(b)(ii) was premised on the basis that the answer to 3(a) was “yes”. The answer to 3(a) was that, despite proper enquiries and searches, the defendant did not know, but believed that the plaintiff was required to work with asbestos.
37. Ms Young at first submitted that the relevance of 3(b)(ii) was that it went to the risk of the plaintiff’s exposure, the plaintiff’s risk would increase with the age of the asbestos and the answer would let Allianz know with specificity what the risks of exposure were. Where there is no issue that the plaintiff was exposed and that the defendant was negligent, I do not see the relevance of this interrogatory.
38. As I understand the submission, it became refined to a point that the answer to this interrogatory would help identify a point in time the plaintiff was exposed. I do not see how any of the properties of trade name, shape, colour or location do that.
39. In my view, this interrogatory is irrelevant.
Interrogatory 3(d)(i)
40. Interrogatory 3(d)(i) and the answer were:
for what period was asbestos in the workplace?
A: The cross claimant having made enquiries of all it’s [sic] present and former officers, servants and agents who might have knowledge of information of the matters enquired of an [sic] from search of such records as now remains [sic] in its possession or documents formerly in its possession of which it is aware is unable to say and does not have any records which will enable it to answer the question enquired of and has no knowledge, means of information or belief which will enable it to answer except to say that the extent of the cross claimant’s knowledge in regards to these matters is contained in the cross claimant’s discovered documents.
41. The objection is that the answer is embarrassing by its reference to the discovered documents. I think this point is good. Answers to interrogatories should be such that they may be tendered in evidence if need be and that they be sufficient in themselves. An answer that refers to discovered documents, as voluminous as the defendant’s documents must be, is objectionable.
42. This interrogatory should be answered.
Interrogatory 3(d)(ii)
43. Interrogatory 3(d)(ii) requests as follows:
specify the nature of the asbestos by reference to its trade name, its shape, its colour and its location within the workplace .
44. For reasons given in relation to interrogatory 3(b)(ii), I consider this interrogatory is irrelevant.
Interrogatory 3(f)(i)
45. Interrogatory 3(f)(i) and the answer were:
If yes to interrogatory 3(e):
(i) For what period was the plaintiff present whilst other workers removed, replaced or worked with asbestos?
A: The cross claimant having made enquiries of its present and former officers, servants and agents who might have knowledge of the matters enquired of and from a search of such records as now remain in its possession or documents formerly in its possession of which it is aware is unable to say and does not have any records and is not aware of any documents formerly in its possession which enable it to answer this interrogatory other than the plaintiff’s pleadings.
46. The answer should not have been in the form it was referring to the plaintiff’s pleadings. However, there is only one pleading and that is the statement of claim. There is only one small paragraph in the statement of claim of any relevance. In the end, Allianz did not really press this interrogatory and I would not require it to be re-answered.
Interrogatory 3(f)(ii)
47. Interrogatory 3(f)(ii) requests as follows:
specify the nature of the asbestos by reference to its trade name, its shape, its colour and its location within the workplace.
48. For the reasons given in relation to interrogatory 3(b)(ii), I consider this interrogatory to be irrelevant.
Interrogatory 4
49. Interrogatory 4 and answer are as follows:
If yes to any of the interrogatories 3(a), 3(b) and 3(e) above, specify:
(a) The supplier to you of asbestos.
(b) The period of supply of asbestos.
A: In answer to the entirety of this interrogatory, the cross claimant objects to answering this interrogatory as it is irrelevant and does not relate to any issue between the cross defendant and the cross claimant.
50. For the reasons given in relation to interrogatory 3(b)(ii), I consider interrogatory 4(a) to be irrelevant. As Allianz seeks evidence in relation to the plaintiff’s working conditions after 30 September 1979, in my view, interrogatory 4(b) is relevant to that and this interrogatory should be further answered.
Interrogatory 5
51. Interrogatory 5 asks:
As to each supplier identified in interrogatory 4 above, did the supplier give you any warning of contracting disease from inhaling asbestos dust and fibre? If yes, state in respect of each warning:
(a) Whether the warning was oral or written or both.
(b) The content of the warning.
(c) The date the warning was given.
52. This interrogatory is now not applicable in view of what I have said in relation to interrogatory 4(a). In any event, it is not relevant to the issue of what the plaintiff’s working conditions were after 30 September 1979.
Interrogatory 7(a)
53. The answer to interrogatory 6 was that after enquiries and searches, the defendant did not know, but believed, that the plaintiff did work in areas where the atmosphere contained asbestos dust and fibre for some of the period of his employment.
54. Interrogatory 7(a) and the answer were as follows:
If yes to interrogatory 6 above state:
(a) The area.
A: The cross claimant objects to answering on the grounds that it is too wide and oppressive given the size of the cross claimant’s workplace and workforce, the diverse nature of the operations of the cross claimant, the scope of the cross claimant’s activities, and the length of period to which the interrogatory is related.
55. The defendant might have been better placed with its objection to interrogatory 7(a) had it filed an affidavit giving some detail of the size of its workplace and workforce and the other matters set out in this answer. There were some facts given from the Bar table of which I can take no notice. I can, however, take notice of the fact that the defendant’s workplace was indeed very large, covering several square miles of Port Kembla. I can also take notice of the fact that it had a very large workforce, a workforce in the many thousands. It was a well known workplace for migrants coming to this country. I can also take notice of the fact that from 1957 to 1991, there were many changes of personnel in that workforce.
56. The defendant has answered, and it is not challenged, that it cannot answer definitively as to whether the plaintiff worked in areas containing asbestos dust and fibre, but has a belief that he did. That being the position, it is a fair objection in my view, especially considering the size of the defendant and its personnel and operations over the period and the unlimited time period covered by this interrogatory that it is too oppressive and, accordingly, I do not allow it.
Interrogatory 8
57. Interrogatory 8 asks:
During the plaintiff’s period of employment, did you require your employees working with or in the vicinity of asbestos to:
(a) Wear masks?
(b) Use other respiratory protective equipment?
(c) Dampen down areas where they were working by using water?
(d) Fence or rope off areas where they were working from other workers?
58. There is no attempt made in this interrogatory to relate it to the plaintiff or places where he worked. I consider it to be too wide and irrelevant.
Interrogatory 9
59. Interrogatory 9 asks:
If yes to any of interrogatory 8 above, in what period or on what dates did you require your employees to:
(a) Wear masks?
(b) Use other respiratory protective equipment?
(c) Dampen down areas where they were working by using water?
(d) Fence or rope off areas where they were working from other workers?
60. In the light of what I have said in relation to interrogatory 8, this interrogatory does not arise.
Interrogatory 10
61. Interrogatory 10 and the answer were:
During the plaintiff’s period of employment, did you take any measures to protect workers from inhaling asbestos dust and fibre?
A: In answer to the entirety of this interrogatory as it relates to “workers” the cross claimant objects to answering on the grounds that it is too wide and oppressive taking into account the size of the cross claimant’s workforce and the length of period to which the interrogatory is related and/or in the alternative as it is irrelevant and does not relate to any issue between the cross claimant and the cross defendant.
62. It was at first agreed that the position of this interrogatory falls to be determined in the same way as interrogatory 8. Then it was put to me by Ms Young in her submission in reply that the defendant had already answered this interrogatory in answering the plaintiff’s interrogatories. Mr Rowles, who appeared for the defendant, did not challenge this. That would appear to overcome the defendant’s objection that it is oppressive. It does not, however, overcome the problem that no attempt has been made in this interrogatory to relate it to the plaintiff or places where he worked and it covers the whole of the period of his employment when employment after 30 September 1979 only can be relevant.
Interrogatory 11
63. Interrogatory 11 requests:
If yes to interrogatory 10 above, identify in respect of each measure taken:
(a) The measure taken by you.
(b) The date on which the measure was taken by you.
(c) The specific place where the measure was taken.
64. In the light of what I have said in relation to interrogatory 10, this interrogatory does not arise.
Interrogatory 12
65. Interrogatory 12 asks:
At any time during the plaintiff’s period of employment, were any of the following conducted:
(a) Dust surveys in the workplace;
(b) Radiological examinations of the workers; or
(c) Medical surveys of workers;
to determine the effects of asbestos dust and fibre on the respiratory system of workers?
66. This interrogatory asks whether certain surveys and examinations were done for a certain purpose. That purpose was to determine the effect of asbestos dust and fibre on the respiratory system of workers. That is not an issue between the parties. The effects of asbestos dust and fibre on the respiratory system of workers were known to the defendant or should have been known to the defendant. That much is a given from the common ground that it was liable in negligence to the plaintiff. I do not think this interrogatory is relevant.
Interrogatory 13
67. Interrogatory 13 asks:
If yes to any of interrogatory 12 above, when were:
(a) Dust surveys;
(b) Radiological examinations; or
(c) Medical surveys;
carried out?
68. By reason of what I have said in relation to interrogatory 12, this interrogatory does not arise.
Interrogatories 14 and 15
69. These interrogatories are as follows:
14. During the plaintiff’s period of employment, did you give any warning to your workers as to the dangers of contracting asbestos related disease?
15. If yes to interrogatory 14 above, specify in relation to each warning:
(a) Whether the warning was oral or written or both.
(b) The content of the warning.
(c) The date on which the warning was given.
70. These interrogatories make no attempt to relate the warnings in any way to the plaintiff and, accordingly, in my view, they are irrelevant.
Interrogatories 16 and 17
71. Interrogatories 16 and 17 are as follows:
16. During the plaintiff’s period of employment, did you give any direction to your employees as to safe working methods when working with and/or in the vicinity of asbestos?
17. If yes to interrogatory 16 above, specify in relation to each direction:
(a) Whether the direction was written or oral or both.
(b) The content of the direction.
(c) The date on which the direction was given.
72. It was agreed that the ruling on these interrogatories would fall to be determined in the same way as the rulings in relation to 14 and 15 and, accordingly, interrogatory 16 I consider to be irrelevant and interrogatory 17 does not arise.
Interrogatory 18
73. Interrogatory 18 and the answer are as follows:
During the plaintiff’s period of employment, did you carry out any asbestos removal program in the workplace? If yes, specify:
(a) When the program was carried out.
(b) Where in the workplace the program was carried out.
A: The cross claimant having made enquiries of all it’s [sic] present and former officers, servants and agents who might have knowledge of information of the matters enquired of an [sic] from search of such records as now remains [sic] in its possession or documents formerly in its possession of which it is aware is unable to say and does not have any records which will enable it to answer the question enquired of and has no knowledge, means of information or believe which will enable it to answer except to say that the extent of the cross claimant’s knowledge in regards to these matters is contained in the cross claimant’s discovered documents.
74. For reasons given in relation to interrogatory 3(d)(i), I consider the answer to be objectionable and this interrogatory should be re-answered.
Interrogatories 19 and 20
75. Interrogatories 19 and 20 are as follows:
19. Did you know that the inhalation of asbestos dust and fibre could cause asbestos related disease to workers working with and/or in the vicinity of asbestos:
(a) Prior to 30 September 1979?
(b) Prior to December 1991?
20. If yes to any of interrogatory 19 above, state the date that you acquired this knowledge.
76. The defendant’s state of knowledge that the inhalation of asbestos dust and fibre could cause asbestos related disease says nothing as to whether the defendant had asbestos dust and fibre at its premises at any time. I consider interrogatory 19 to be irrelevant and interrogatory 20 does not arise.
77. I order the defendant to provide further answers to interrogatories 3(d)(i), 4(b) and 18.RULING
Ms L Young instructed by Hicksons appeared for the (applicant) First Cross Defendant.Mr T M Rowles, instructed by Sparke Helmore appeared for the (respondent) Main Cross Claimant.
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