You must complete Parts 1 to 4, 6, 7 and 9 of this form. Part 5 must also be completed unless the condition in respect of which you are claiming is mesothelioma.
You must create a covering index which lists each Part you have completed.
Where the form indicates that material must be attached to the statement of particulars, you should number each attachment sequentially and identify the number of that attachment in the relevant answer. You must also list the attachments in the covering index.
If you do not know the answer to a particular question you should state this in your answer.
You have a continuing obligation to provide information. In the event that you remember additional facts or information, you should update your answers.
It is not necessary for you to obtain and provide material with this form (such as documentary evidence and reports) on which you would generally rely in proceedings before the Tribunal, except where the form indicates that specific material is required to be attached.
By providing comprehensive answers to the questions in this form, the defendant will be able to make an assessment of the answers provided and can then make a decision as to whether further material (such as documentary evidence or an expert report) is required to assess the claim. Where further material is required by a defendant, you should provide that further material as soon as practicable.
If you already have additional material such as documentary evidence or expert reports then you may wish to provide that material now, or indicate that you have that material.
Where specific material is required to be attached to this form, but you do not have the material requested available to you at the time you complete the form, you must indicate that you will forward this material to the defendant/s when it becomes available to you. You must provide an indication of when you expect this further material to be available.
Your solicitor may complete this form on your behalf, however, you must still swear or affirm the statutory declaration at the end of this form.
If your claim is made under the Compensation to Relatives Act 1897, you should complete the Exposure sections in respect of the person as a result of whose death you are claiming and Part 8 of this form.
Have you been known by any other name? If so, provide in full the name(s) by which you were known—
Solicitor—
Solicitor’s address—
Solicitor’s phone and fax number—
Please complete the details below if you are not represented by a solicitor—
Home address of claimant—
Postal address (if different to home address)—
Home and mobile telephone numbers—
Part 2 Medical evidence
Medical condition
2.1 What asbestos-related condition have you been diagnosed with (your condition)?
2.2 When was your condition diagnosed?
2.3 What is the name of the medical practitioner who diagnosed your condition?
2.4 Attach a short report from the medical practitioner who diagnosed your condition and any medical evidence which relates to your current condition (including X-rays, pathology reports, ultrasounds etc) on which you intend to rely and which is currently available to you.
2.5 What disabilities has your condition resulted in?
2.6 What treatments have been prescribed for you and what operations have you had for your condition? Describe in detail or attach any reports on which you intend to rely in proceedings that you have obtained to date which set out this information.
2.7 Do you have any other continuing medical conditions? If so, describe in detail.
2.8 Do you have any disabilities that have not arisen from your condition?
Treating medical practitioners
2.9 Provide the following details for all medical practitioners or other health care providers (including all medical experts, surgeons and rehabilitation providers) who have treated you for your condition—
• Name of practitioner
• Name of practice
• Address
• Telephone number
• Period of consultation
• Treatment provided
Other medical practitioners or health care providers
2.10 Provide details of all other medical practitioners or health care providers who have consulted you for any condition in the last five years—
• Name of provider
• Name of practice
• Occupation
• Address
• Telephone number
• Period of consultation
2.11 Do you authorise the persons against whom you bring this claim to access your medical records? If so, complete the following authority as a separate document and attach it to this statement—
Medical authority
I, [Name], authorise any medical practitioner or other health care professional who has treated or examined me to give [Insert all defendants’ names],
and any other person who is joined as a party to the proceedings commenced by me, access to a copy of my medical records to assist in the proof and settlement of my claim. A copy of this authority can be acted upon as if it were the original.
Signature—
Date—
2.12 Do you authorise a medical practitioner nominated by the defendant to access your pathological and histopathological material for the purpose of confirming your diagnosis? If so, complete the following authority as a separate document and attach it to this statement—
Authority to access pathology results
I, [Name], authorise a pathologist nominated by each defendant and cross-defendant to the proceedings commenced by me to be given access to my pathological and histopathological material for the purpose of confirming my diagnosis.
Signature—
Date—
Part 3 Summary of work and exposure history
3.1 Complete the following details relating to all employment and work, including periods where you were self-employed or employed as a contractor. Include ALL interstate and overseas employment details. Include additional rows in the Table as required.
| Start Date | End Date | Name and address of employer (including any other names by which the employer may have been known) | Employer’s industry | Occupation, a brief description of duties and status (eg full time, part-time, casual) | Exposure to asbestos (Yes or No) |
| | | | | | |
| | | | | | |
| | | | | | |
3.2 Complete the following details relating to all non-work related exposure (including interstate and overseas exposures). Include additional rows in the Table as required.
| Start date of exposure period | End date of exposure period | Address where exposure occurred | Brief description of activity you were engaged in (eg home renovation, washing clothes) |
| | | | |
| | | | |
| | | | |
Part 4 Detailed exposure history
Complete an exposure history for each separate period of exposure listed in Part 3 (including work and non-work related exposures).
You must answer all of the general questions. You must also answer the specific questions relevant to your circumstances.
4A General questions (To be answered for each exposure period)
4.1 How were you exposed to asbestos?
4.2 What were you doing at the time you were exposed to asbestos?
4.3 What is the address of the premises where exposure occurred, if different from that specified in Part 3? If the address is unknown, please describe the premises and their general location.
4.4 Do you know who owned the premises where exposure occurred?
4.5 How often were you exposed to asbestos during the period of exposure (including the number of occasions and/or the frequency with which this occurred)?
4.6 Describe the level or intensity of exposure as you perceived it (including whether you consider the level or intensity was low, medium or high). Where there are multiple premises you should do this for each location, unless there is no material difference in the level or intensity of exposure at the different sites (for example, where as a contractor you attended multiple sites and the level or intensity of exposure was about the same at a number of the sites). You should indicate whether the exposure changed over time and if so, describe how it changed.
4.7 If you have had more than one exposure period, estimate (if you can reliably do so) as a percentage the proportion that this period of exposure constitutes of your total exposure?
4.8 What asbestos products were you exposed to, including the product trade-name if known? If you do not know the trade-name of the product, describe the product.
4.9 Do you know who was the manufacturer and/or supplier of those asbestos products?
4.10 Do you know where the products were purchased from?
4.11 If there was more than one product during this period, estimate (if you can reliably do so) as a percentage the relative exposure to each product.
4.12 Do you recall any identifying features or markings on those asbestos products?
4B Specific questions—to be completed for each exposure which is work-related
4.13 Did your exposure result from working directly with asbestos or from working in the vicinity of others who were working with asbestos?
4.14 What specific activities or duties were you engaged in at the time you were exposed to asbestos?
4.15 How often did you engage in these duties or activities?
4.16 If your exposure occurred whilst you were working in the vicinity of others who were using asbestos, what activities were the others who were working with asbestos engaged in?
4.17 Were there any persons other than your employer who directed or controlled the work at those premises such as the owner or occupier of the premises or a contractor?
4.18 Were you provided with any relevant protective gear? If so, describe the gear you were provided with.
4.19 Were you required to wear protective gear whilst exposed to asbestos?
4.20 Did you comply with this requirement? If not, why not?
4.21 Did your employer advise you of any safety measures to protect you from being exposed to asbestos? If so, describe these measures.
4.22 Did the employer or occupier take any precautions to minimise the generation or dissemination of dust?
4.23 Do you know whether any companies other than your employer—
(a) specified the use of the asbestos products to which you were exposed?
(b) designed or installed plant or equipment containing the asbestos to which you were exposed?
4.24 Were you using or working on particular plant or equipment which contained asbestos when the exposure to asbestos occurred? Please identify the plant or equipment and state what you were doing?
4.25 Did any products you handled, or the machinery you used, have any instructions or guidance as to safe usage to avoid exposure to asbestos?
4.26 What was the date of your last exposure to asbestos, if this was not your last date of employment?
Attach documents you currently hold evidencing your employment with this employer (eg tax returns, references etc).
4C Specific questions—exposure while self-employed
4.27 If you were engaged as an independent contractor, identify the principal contractor.
4.28 Do you know who controlled the work which you were undertaking?
4.29 Did you have any insurance, including workers compensation insurance?
4.30 Did you employ any other people?
4D Specific questions—secondary exposure as a result of the work of another member of your family or household
4.31 Were you exposed to asbestos as a result of the work of another member of your family or household?
4.32 What was the name of the other person?
4.33 What was your relationship with that other person?
In addition to providing the above information, you must complete Part 4A and/or Part 4B in respect of the member of your family or household through whose work you were exposed (in addition to completing Part 4A in relation to your own exposure). In completing these Parts you should construe a reference to you as a reference to the person who it is alleged was exposed during the course of employment and/or self-employment. You are only required to provide detailed information about their exposure if you are able to do so.
Part 5 Smoking history
You do not need to complete this Part of the form if the condition from which you suffer is mesothelioma.
5.1 Do you currently or did you ever smoke? If so, provide the following information—
– Over what period have you smoked?
– What brand(s) of cigarettes or other tobacco products have you smoked?
– Provide the following information for each brand of cigarette or other tobacco product you have smoked—
• How often have you smoked?
• How many cigarettes or other tobacco products have you smoked a day?
• Has your smoking pattern changed over time? If so, how?
• Have you sustained any illnesses as a result of smoking?
• Have your illnesses been treated by a medical practitioner? If so, what is the name of the medical practitioner?
Part 6 Compensation
In completing this Part you should not obtain medical or occupational therapist’s reports to support your answers. The defendant may subsequently indicate that they require such material to assess your claim. You may also need to obtain these reports for proceedings in the Tribunal.
6.1 If you are claiming compensation for any of the damages categories listed below, provide brief particulars of your claim. You may be requested by the defendant to provide further detailed particulars, including setting out in detail the facts, circumstances and evidence on which you intend to rely. The information provided should include the details listed below each category—
– General damages (pain and suffering, loss of expectation of life)
• Include details on your prognosis
– Past economic loss and future loss of earning capacity including—
• Per weekly loss alleged
• Period of time over which the loss has occurred, or will continue to occur
• The personal expenditure of the plaintiff if the plaintiff had not been injured (if the claim relates to mesothelioma or lung cancer)
• Attach any tax returns, wage slips invoices or other documentation that may be relevant to your claim
– Cost of future medical care
– Out of pocket expenses
– Personal care costs
• Specify the nature of the care required
• Include details of the provider, including their relationship to you
• Specify how often the care is to be provided
– Damages for services provided to third parties
• Specify the nature of the services provided
• Identify to whom the services are to be provided
• The nature of the recipient’s relationship to you
• How long you have provided the services
• The frequency with which you have provided these services
– Home modifications
6.2 If you are claiming economic loss, are you receiving any Government benefit? If yes, please specify the benefit and the date on which that benefit commenced.
6.3 Have you received any compensation from a workers compensation or other insurer in respect of your condition? If yes, please specify the benefit paid and the date received.
6.4 Although you are not required at this stage to provide a notice of past benefits from the Health Insurance Commission, have you requested a notice? If you have received this information you should attach it.
Part 7 Dust Diseases Board claims
7.1 Have you previously or are you currently making a claim in relation to your condition with the Dust Diseases Board? If so, provide the following information—
– Date of claim
– Was the claim accepted?
– If yes, what benefit was awarded?
Part 8 Compensation to Relatives
8.1 If you are claiming compensation under the Compensation to Relatives Act 1897, provide brief particulars of this claim. You may be requested by the defendant to provide further detailed particulars, including setting out in detail the facts, circumstances and evidence on which you intend to rely. The information provided should include the details listed below—
• Details of the person or person on whose behalf the damages are sought (name, address, relationship to deceased, marital status)
• Details of dependency on deceased
• Details of damages claimed by dependents
Part 9 Statutory declaration
I, [Name], of [Address], solemnly declare that the answer to each and every question on this form and the particulars contained therein or attached hereto, are true. I make this declaration in accordance with the Oaths Act 1900, and subject to the punishment by law provided for the making of any wilfully false statement in any such declaration.
Claimant’s signature—
Date—
Declared before me—
Title—
Signature—
Date—
Form 2 Defendant’s reply
(Clause 26)
Instructions for completing this form
All defendants must complete Parts 1, 2, 7, 9 and 11 of this form. Part 8 of the form only needs to be completed where there is more than one defendant. Part 10 of the form only needs to be completed if compensation under the Compensation to Relatives Act 1897 has been claimed.
You must complete and submit the remaining Parts of the form which are relevant to the claim made against you.
You must create a covering index which lists the Parts of the form which you have completed and which identifies those Parts of the form which have not been completed.
Where the form indicates that material must be attached to the Reply, you should number each attachment sequentially and identify the number of that attachment in the relevant answer. You must also list the attachments in the covering index.
Where you require further information from the claimant in order to answer a particular question, you must state this in your answer and specify what information you require in order to answer the question.
You have a continuing obligation to provide information and update your answers as new information becomes available.
If you answer a question with “Do not know” and you are undertaking further investigations you must clearly indicate this and state when you expect those investigations to be complete. Once complete you must update your answer and the information in the form as soon as practicable.
You are not required to obtain and provide material (such as expert reports) with this form, except where the form indicates that specific material is required to be attached.
By providing comprehensive answers to the questions in this form, the plaintiff and other defendants will be able to make an assessment of the answers provided and will then be able to make a decision as to whether further material (such as documentary evidence or an expert report) is required to assess your defence. Where further material is required by a claimant or other defendant, you must provide that further material as soon as practicable.
Where this form requires you to summarise the type of evidence on which you intend to rely to support your position, you must describe that evidence in sufficient detail for the plaintiff and other defendants to fully understand the basis of your position. A response that refers to material in general terms which may be obtained through other processes (such as discovery or interrogatories) is not considered adequate.
The term “evidence” in this form includes statements of witnesses, documents over which you have custody or control, documents you have obtained from third parties, verified answers to interrogatories provided in other claims and expert reports.
In some cases the form requires you to attach evidence. Where the form indicates that evidence must be attached you are only required to provide evidence that is available to you at the time you complete this form. You are, however, required to provide details of all evidence that you are aware of or that is reasonably discoverable by you. You should indicate if you intend on obtaining further evidence (such as an expert report). If so, you should specify when you expect to receive the further evidence.
If you are the insurer for a person against whom the claim is made you must complete this form and construe a reference to you as a reference to the insured. If you do not know the answer to any of the questions because you have been unable to obtain this information specify this and indicate whether you expect that further information will become available to you, and if so when. You should update your answer at that time.
Part 1 Defendant details
Name of defendant—
ABN/ACN—
Postal address—
Address for service—
Email address—
Phone—
Fax—
Name of claimant—
Date of service of the statement of particulars on you—
Were proceedings commenced against you directly by the claimant or are you a cross-defendant?
Have you made any cross-claims in this matter? If yes, list those cross-defendants.
Do you need to inspect particular premises or a place where the exposure is alleged to have occurred in order to respond to the claimant’s claim? If yes, please specify those premises.
Note.
Where a request to inspect premises or a place is made, you still must answer all of the questions in this reply.
Part 2 Diagnosis of the claimant’s injury
2.1 Do you admit that the claimant has the alleged condition?
2.2 Do you accept the medical evidence on the claimant’s diagnosis that the claimant has provided with the claimant’s statement of particulars? If you only accept some of the evidence provided by the claimant, specify those parts which you accept.
2.3 Do you admit that the alleged condition was caused by exposure to asbestos?
2.4 Do you admit that the claimant has the disabilities claimed? If you only admit that the claimant has some of the disabilities claimed, please specify which disabilities you admit the claimant suffers from.
2.5 If you did not answer yes to questions 2.1 to 2.4, do you have any medical evidence to support your position? Attach the evidence. If you do not have evidence to support your position but you have arranged for medical evidence to be obtained you should indicate when you expect to receive this evidence and provide that evidence as soon as it is received.
Part 3 Response to claim relating to employment
To be completed by a defendant who is alleged to have employed the claimant.
Note—
If the claimant alleges that the claimant’s condition was caused by exposure to asbestos which occurred as a result of contact with another person whom the claimant alleges was employed by you, you should also complete this Part.
In so doing you should construe a reference to the claimant as a reference to the person who it is alleged you employed except in relation to questions 3.7 to 3.13 where you should answer each question with respect to both the claimant and the person you employed.
3.1 Do you admit that you employed the claimant, as alleged?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 3.2.
If no, set out the basis on which you do not admit that you employed the claimant. What evidence do you have and what evidence do you intend to obtain to contradict the claimant’s or other defendant’s version of events? If you know who employed the claimant during the period, identify that person. Any evidence which you have at present should be attached to this form.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Any evidence which you have at present should be attached to this form.
3.2 Did you occupy or control the premises at which the claimant alleges he or she was exposed to asbestos?
| Yes | □ | No | □ | Do not know | □ |
If you answered yes to this question you must also complete Part 4 of this form.
If you do not know or do not admit the allegation, on what basis do you assert that you do not know or do not admit to the allegation? Summarise the type of evidence on which you intend to rely to support your position.
3.3 Do you admit that the time period during which the claimant is alleged to have been employed by you is correct?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 3.4.
If no—
(a) do you admit that you employed the claimant in another period and, if so, what period?
(b) what evidence do you have to support this admission?
If you do not know or do not admit you employed the claimant in any period, on what basis do you assert that you do not know or do not admit that you employed the claimant? Do you have any evidence to contradict the claimant’s allegation?
Attach all relevant evidence.
3.4 Do you admit that the claimant was exposed to asbestos in the course of or arising out of employment by you?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 3.5.
If no, on what basis do you dispute the claimant’s allegation that he or she was exposed to asbestos arising out of or in the course of employment by you. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
3.5 Do you agree with the claimant’s description of—
(a) the circumstances in which exposure occurred (including the duties or activities engaged in by the claimant and the frequency with which exposure occurred);
| Yes | □ | No | □ | Do not know | □ |
(b) the intensity and duration of exposure;
| Yes | □ | No | □ | Do not know | □ |
(c) the products to which the claimant was exposed?
| Yes | □ | No | □ | Do not know | □ |
If you answered yes to all of the above questions, proceed to question 3.6.
If you answered no to one or more of the above questions, set out the basis on which you disagree with the claimant’s description for each question to which you answered no. Summarise the type of evidence on which you intend to rely to support your position.
If you answered that you do not know the answer to one or more of the above questions, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
3.6 Do you admit that you knew or ought to have known that exposure to asbestos gave rise to a risk of personal injury (either of the kind suffered by the claimant or other personal injury) at the time of the alleged exposure?
| Yes | □ | No | □ |
If yes, proceed to question 3.7 (although you may provide further information on your knowledge at the time of the alleged exposure if you consider this to be relevant).
If no, set out in detail your basis (including the evidence on which you intend to rely) for not admitting that you had such knowledge, including references to any decided cases which support your position.
3.7 Do you admit that you owed a common law duty of care to the claimant as an employer during the period of alleged exposure?
| Yes | □ | No | □ |
If yes, proceed to question 3.8.
If no, on what basis do you claim that you did not have a duty?
3.8 Regardless of whether or not you admit that you had a duty, did you discharge the common law duty to the standard of a reasonable person, for example, by having a safe system of work, by providing instructions on the safe use and handling of asbestos or by taking reasonable precautions?
| Yes | □ | No | □ | Do not know | □ |
If yes, set out the basis on which you assert that you discharged your duty and provide detailed information concerning the steps taken which you consider discharged the duty of care. Summarise the type of evidence on which you intend to rely to support your position.
If no, proceed to question 3.9.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the evidence on which you intend to rely to support your position.
3.9 Do you admit that you owed a statutory duty to the claimant as an employer or otherwise during the alleged period of exposure?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 3.10.
If no or do not know, on what basis do you claim that you did not have a duty?
3.10 Do you admit that you failed to discharge the statutory duty said to apply to you?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 3.11.
If no, set out the basis on which you assert that you discharged your duty and provide detailed information concerning the steps taken which you consider discharged the duty of care. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
3.11 Do you admit that your breach of duty (whether common law or statutory) is a cause of the alleged asbestos related injury?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 3.12.
If no, set out the basis of your argument as to why you do not admit the breach caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
3.12 Regardless of whether you admit that the claimant has an asbestos related injury, whether or not you admit that you owed a duty (whether common law or statutory) or whether or not you admit that you breached that duty, do you admit that the conduct alleged by the claimant to have been engaged in by you is a cause of the asbestos related injury alleged by the claimant?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 3.13.
If no, set out the basis of your argument as to why you do not admit that the conduct caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
3.13 Do you intend to rely on any other defence which you say defeats the claimant’s claim in whole or in part (such as a limitation defence or that the risk of injury to the claimant was not foreseeable)?
| Yes | □ | No | □ |
If no, proceed to Part 4.
If yes, provide details of that defence and summarise the type of evidence on which you intend to rely.
Part 4 Response to claim as an occupier
To be completed by a defendant who is alleged to have occupied premises at which the claimant was alleged to have been injured.
Notes—
4.1 What are the premises to which the claim relates?
4.2 Do you admit that you occupied or controlled the premises at the time of the alleged exposure?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 4.3.
If no, what evidence do you have and what evidence do you intend to obtain to support your position? If you know who occupied the premises during the period, identify that person. Any evidence which you have at present should be attached to this form.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Any evidence which you have at present should be attached to this form.
4.3 Do you admit that you occupied the premises for the whole of the period during which exposure is alleged to have occurred?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 4.4.
If no—
(a) for what period do you admit that you occupied the premises?
(b) what evidence do you have to support this admission? Any evidence which you have at present should be attached to this form.
If you do not know or do not admit you occupied the premises during any period, do you have any evidence to contradict the claimant’s allegation? Any evidence which you have at present should be attached to this form.
4.4 Do you admit that the claimant was exposed to asbestos at the premises occupied or controlled by you?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 4.5.
If no, on what basis do you dispute the allegation that the claimant was exposed to asbestos at premises controlled or occupied by you? Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
4.5 Do you agree with the claimant’s description of—
(a) the circumstances in which exposure occurred (including the duties or activities engaged in by the claimant and the frequency with which exposure occurred);
| Yes | □ | No | □ | Do not know | □ |
(b) the intensity and duration of exposure;
| Yes | □ | No | □ | Do not know | □ |
(c) the products to which the claimant was exposed?
| Yes | □ | No | □ | Do not know | □ |
If you answered yes to all of the above questions, proceed to question 4.6.
If you answered no to one or more of the above questions, set out the basis on which you disagree with the claimant’s description for each question. Summarise the type of evidence on which you intend to rely to support your position.
If you answered that you do not know the answer to one or more of the above questions, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
4.6 Do you admit that you knew or ought to have known that exposure to asbestos gave rise to a risk of personal injury (either of the kind suffered by the claimant or other person injury) at the time of the alleged exposure?
| Yes | □ | No | □ |
If yes, proceed to question 4.7 (although you may provide further information on your knowledge at the time of the alleged exposure if you consider this to be relevant).
If no, set out in detail your basis (including the evidence on which you intend to rely) for not admitting that you had such knowledge, including references to any decided cases which support your position.
4.7 Do you admit that you owed a common law duty of care to the claimant as an occupier during the period of alleged exposure?
| Yes | □ | No | □ |
If yes, proceed to question 4.8
If no, on what basis do you claim that you did not have a duty?
4.8 Regardless of whether or not you admit that you had a duty, did you discharge the common law duty to the standard of a reasonable person, for example, by providing instructions on the safe use and handling of asbestos or by taking reasonable precautions?
| Yes | □ | No | □ | Do not know | □ |
If yes, set out the basis on which you assert that you discharged your duty and provide detailed information concerning the steps taken which you consider discharged the duty of care. Summarise the type of evidence on which you intend to rely to support your position.
If no, proceed to question 4.9.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
4.9 Do you admit that you owed a statutory duty to the claimant as an occupier or otherwise during the alleged period of exposure?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 4.10.
If no or you do not know, on what basis do you claim that you did not have a duty? Summarise the type of evidence on which you intend to rely to support your position.
4.10 Do you admit that your breach of duty (whether common law or statutory) is a cause of the alleged asbestos related injury?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 4.11.
If no, set out the basis on which you assert that you discharged your duty and provide detailed information concerning the reasons why you do not admit the breach of duty caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
4.11 Regardless of whether you admit that the claimant has an asbestos related injury, whether or not you admit that you owed a duty (whether common law or statutory) or whether or not you admit that you breached that duty, do you admit that the conduct alleged by the claimant to have been engaged in by you is a cause of the asbestos related injury alleged by the claimant?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 4.12.
If no, set out the basis of your argument as to why you do not admit that the conduct caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
4.12 Do you intend to rely on any other defence which you say defeats the claimant’s claim in whole or in part (such as a limitation defence or that the risk of injury to the claimant was not foreseeable)?
| Yes | □ | No | □ |
If no, proceed to Part 5.
If yes, provide details of that defence and summarise the type of evidence on which you intend to rely to support your position.
Part 5 Response to claim as a manufacturer or supplier of asbestos
To be completed by a defendant who is alleged to have manufactured or supplied asbestos which has injured the claimant. This includes products which are manufactured or supplied as part of plant or equipment.
Note—
If the claimant alleges that the claimant’s injury was caused by exposure to asbestos which occurred as a result of contact with another person whom the claimant alleges was exposed to asbestos manufactured or supplied by you, you should also complete this Part. In completing this Part you should construe a reference to the claimant as a reference to the person who it is alleged was exposed to the product manufactured or supplied by you.
5.1 What are the asbestos products to which is it alleged that the claimant was exposed as set out in the claimant’s statement of particulars?
5.2 Do you admit that you manufactured or supplied those products at any time?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 5.3.
If no, on what basis do you assert that you did not manufacture or supply those products? If you know who supplied or manufactured those products, identify that person. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.3 Do you admit that the claimant was exposed to products manufactured or supplied by you in the circumstances alleged by the claimant or otherwise?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 5.4.
If no, on what basis do you disagree with the claimant’s version of events? Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.4 What was the composition of each asbestos product you admit to manufacturing or supplying, including the type and quantity of asbestos?
5.5 Do you agree with the description of—
(a) the circumstances in which exposure occurred (including the duties or activities engaged in by the claimant and the frequency with which exposure occurred);
| Yes | □ | No | □ | Do not know | □ |
(b) the intensity or duration of exposure?
| Yes | □ | No | □ | Do not know | □ |
If you answered yes or do not know to both of the above questions, proceed to question 5.6.
If you answered no to one or both of the above questions, set out the basis on which you disagree with the claimant’s description. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.6 Do you admit in the period alleged that you failed to provide to the persons who used your products instructions as to the steps to be taken to handle asbestos in a safe manner or warnings as to the risks associated with asbestos?
| Yes | □ | No | □ |
If yes, proceed to question 5.7.
If no, set out in detail the instructions or warnings which you say were provided, including details on how or by what means those instructions were conveyed to the user of the product. Specify for each relevant product the date on which you claim that warnings or instructions first appeared. Summarise the type of evidence on which you intend to rely to support your position.
5.7 Do you admit that you owed a common law duty of care to the claimant during the period of alleged exposure?
| Yes | □ | No | □ |
If yes, proceed to question 5.8.
If no, why do you believe that you did not have a duty?
5.8 Do you admit that you knew or ought to have known that exposure to asbestos gave rise to a risk of personal injury (either of the kind suffered by the claimant or other person injury) at the time of the alleged exposure?
| Yes | □ | No | □ |
If yes, proceed to question 5.9 (although you may provide further information on your knowledge at the time of the alleged exposure if you consider this to be relevant).
If no, set out in detail your basis (including the evidence on which you intend to rely) for not admitting that you had such knowledge, including references to any decided cases which support your position.
5.9 Do you admit that you failed to discharge your common law duty of care to the standard of a reasonable person?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 5.10.
If no, provide a detailed response setting out how you discharged the duty to the standard of a reasonable person, for example, by providing instructions on the safe use and handling of asbestos or by providing warnings. Provide a detailed description of those measures and summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.10 Do you admit that your breach of duty of care is a cause of the alleged asbestos related injury?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 5.11.
If no, provide detailed information concerning the reasons why you do not admit the breach of duty caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.11 Regardless of whether or not you admit that the claimant has an asbestos related injury, whether or not you admit that you owed a duty of care and whether or not you admit that you breached any duty of care, do you admit that the conduct alleged by the claimant to have been engaged in by you (in particular the manufacture or supply of the products) is a cause of the asbestos related injury alleged by the claimant?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 5.12.
If no, provide detailed information concerning the reasons why you do not admit the conduct caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
5.12 Do you intend to rely on any other defence which you say defeats the claimant’s claim in whole or in part (such as a limitation defence or that the risk of injury to the claimant was not foreseeable)?
| Yes | □ | No | □ |
If no, proceed to Part 7.
If yes, provide details of that defence and summarise the type of evidence on which you intend to rely to support your position.
Part 6 Response to other claims
This part is to be completed by a defendant who does not fit within the categories in Part 3, 4 or 5. You do not have to complete this Part if you have completed Part 3, 4 or 5.
6.1 Do you admit that the claimant was exposed to asbestos in the manner alleged by the claimant?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 6.2.
If no, on what basis do you dispute the claimant’s allegation that they were exposed to asbestos in the manner alleged. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.2 Do you agree with the claimant’s description of—
(a) the circumstances in which exposure occurred (including the frequency with which exposure occurred);
| Yes | □ | No | □ | Do not know | □ |
(b) the intensity and duration of exposure;
| Yes | □ | No | □ | Do not know | □ |
(c) the products to which the claimant was exposed?
| Yes | □ | No | □ | Do not know | □ |
If you answered yes to all of the above questions, proceed to question 6.3.
If you answered no to one or more of the above questions, set out the basis on which you disagree with the claimant’s description for each question. Summarise the type of evidence on which you intend to rely to support your position.
If you answered that you do not know the answer to one or more of the above questions, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.3 Do you admit that you knew or ought to have known that exposure to asbestos gave rise to a risk of personal injury (either of the kind suffered by the claimant or other person injury) at the time of the alleged exposure?
| Yes | □ | No | □ |
If yes, proceed to question 6.4 (although you may provide further information on your knowledge at the time of the alleged exposure if you consider this to be relevant).
If no, set out in detail your basis (including the evidence on which you intend to rely) for not admitting that you had such knowledge, including references to any decided cases which support your position.
6.4 Do you admit that you owed a duty to the claimant (either common law or statutory) during the period of alleged exposure?
| Yes | □ | No | □ |
If yes, proceed to question 6.5.
If no, on what basis do you claim that you did not have a duty?
6.5 Regardless of whether or not you admit that you had a duty, did you discharge the duty?
| Yes | □ | No | □ | Do not know | □ |
If yes, set out the basis on which you assert that you discharged the duty and provide detailed information concerning the steps taken which you consider discharged the duty. Summarise the type of evidence on which you intend to rely to support your position.
If no, proceed to question 6.6.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.6 Do you admit that your breach of duty is a cause of the alleged asbestos related injury?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 6.7.
If no, set out the basis for your reasons as to why you do not admit the breach of duty caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.7 Regardless of whether you admit that the claimant has an asbestos related injury, whether or not you admit that you owed a duty or whether or not you admit that you breached that duty, do you admit that the conduct alleged by the claimant to have been engaged in by you is a cause of the asbestos related injury alleged by the claimant?
| Yes | □ | No | □ | Do not know | □ |
If yes, proceed to question 6.8.
If no, set out the basis for your reasons as to why you do not admit that the conduct caused the injury. Summarise the type of evidence on which you intend to rely to support your position.
If you do not know, do you have any evidence to contradict the claimant’s allegation? Summarise the type of evidence on which you intend to rely to support your position.
6.8 Do you intend to rely on any other defence which you say defeats the claimant’s claim in whole or in part (such as a limitation defence or that the risk of injury to the claimant was not foreseeable)?
| Yes | □ | No | □ |
If no, proceed to Part 7.
If yes, provide details of that defence and summarise the type of evidence on which you intend to rely to support your position.
Part 7 Insurance
Do you believe that you may be entitled to recover all or part of the damages from your former or current insurer?
| Yes | □ | No | □ | Do not know | □ |
If yes, specify the insurer, the type of insurance, the period of cover and whether there is any limit to the cover provided. If you answered that you do not know you should indicate when you expect to be in a position to answer this question.
Part 8 Apportionment of liability among defendants
A standard presumption will be used to assign a share of liability to each defendant depending on which category it falls into. The standard presumptions vary according to the period in which the exposure occurred and the category of defendant. The Contributions Assessor may vary the standard presumption applying to a claim having regard to the factors set out in clause 5 (5) and (6) of Schedule 1 to the Order, but the Contributions Assessor may not vary the standard presumptions outside of the permitted range.
Answer the following questions.
8.1 Into which category should each defendant be placed?
8.2 How should the standard presumptions be varied to take account of the level of knowledge which you believe should be assigned to each Category 2 defendant, (including yourself if relevant)? Set out the basis for your position.
Note.
Please note, the standard presumptions have been prepared on the basis that Category 1 defendants are presumed to have had actual knowledge of the risks of asbestos, so it cannot be argued that the presumption should be varied against a Category 1 defendant on the basis of its level of knowledge.
8.3 What level of knowledge should be attributed to each Category 2 defendant, including yourself, as to the risks of asbestos (either of the kind suffered by the claimant or other personal injury) at the time of the alleged exposure? Set out the basis for your position, including references to any cases on which you intend to rely to support your position.
8.4 If other findings have been made in relation to your knowledge of the risks of asbestos at the time of the alleged exposure, provide details of those cases. Do you intend to rely on or dispute those findings? If you intend to dispute those findings, on what basis?
8.5 Should the standard presumptions be varied on the basis of the identity, capacity, size or state of sophistication of a particular defendant (including yourself), including the industry, and nature of the industry in which the defendant was engaged? Set out the basis for your position.
8.6 Should the standard presumptions be varied on the basis of the number of defendants identified in each category as being at fault in connection with the claim? Set out the basis for your position.
8.7 Should the standard presumptions be varied having regard to the steps which a particular defendant (including yourself) took, ought to have taken and/or was capable of taking to minimise the risk of harm? Set out the basis for your position.
8.8 Should the standard presumptions be varied for any other reason? Set out the basis for your position.
8.9 If there are more than two defendants in any one category, are there any particular factors relating to the blameworthiness of those defendants which would justify sharing the apportioned liability between those defendants other than on an equal basis? Set out the basis of your position.
Part 9 Compensation
To be completed by all defendants, including cross-defendants.
Provide a detailed response to each question indicating whether you agree with the claimant’s assessment of damages. If you disagree with the claimant’s assessment, you must specify the facts and circumstances on which you rely to establish your position.
9.1 Are there any other conditions or injuries which you believe contributed to the claimant’s damage?
| Yes | □ | No | □ |
If yes, specify the other conditions or injuries.
9.2 Set out the facts and circumstances on which you say the level of general damages should be calculated and the amount which should be awarded. Your response should indicate the extent to which you say other conditions or injuries contribute to the claimant’s pain and suffering and loss of enjoyment of life, whether you dispute the claimant’s evidence as to prognosis and details of any previous awards of the Tribunal which you think are relevant. Summarise the type of evidence on which you intend to rely to support your position.
9.3 Do you agree with the claimant’s assessment of—
(a) the alleged per weekly loss;
(b) the period of time over which the per weekly loss is alleged to occur;
(c) the assessment of the personal expenditure of the claimant?
| Yes | □ | No | □ | Not applicable | □ |
If yes, proceed to question 9.4.
If no, set out the basis on which you dispute each of the matters set out above. Summarise the type of evidence on which you intend to rely to support your position.
9.4 Do you agree with the claimant’s assessment of the cost of future medical care?
| Yes | □ | No | □ | Not applicable | □ |
If yes, proceed to question 9.5.
If no, set out the basis on which you say future medical care should be assessed. Summarise the type of evidence on which you intend to rely to support your position.
9.5 Do you agree with the claimant’s assessment of out of pocket expenses?
| Yes | □ | No | □ | Not applicable | □ |
If yes, proceed to question 9.6.
If no, set out the basis on which you say out of pocket expenses should be assessed. Summarise the type of evidence on which you intend to rely to support your position.
9.6 Do you agree with the claimant’s assessment of personal care costs, both past and future?
| Yes | □ | No | □ | Not applicable | □ |
If yes, proceed to question 9.7.
If no, set out the basis on which you say personal care costs should be assessed, with particular attention to the nature and level of care required and the cost of that care. Summarise the type of evidence on which you intend to rely to support your position.
9.7 Do you agree with the claimant’s assessment of the cost of services provided to third parties?
| Yes | □ | No | □ | Not applicable | □ |
If yes, proceed to question 9.8.
If no, set out the basis on which you say the cost of services provided to third parties should be assessed, with particular attention to the nature of the services and the claimant’s circumstances. Summarise the type of evidence on which you intend to rely to support your position.
9.8 Do you agree with the claimant’s assessment of the cost of home modifications?
| Yes | □ | No | □ | Not applicable | □ |
If yes, proceed to Part 10.
If no, set out the basis on which you say the cost of home modifications should be assessed. Summarise the type of evidence on which you intend to rely to support your position.
Provide a detailed response to each question indicating whether you agree with the claimant’s statement of dependency and assessment of damages. If you disagree with the claimant’s statement or assessment, you must specify the facts and circumstances on which you rely on to establish your position.
10.1 Do you agree with the claimant’s statement of dependency?
| Yes | □ | No | □ | Not applicable | □ |
If yes, proceed to question 10.2.
If no, set out the basis on which you dispute the claimant’s statement of dependency. Summarise the type of evidence on which you intend to rely to support your position.
10.2 Do you agree with the claimant’s assessment of damages claimed by dependents?
| Yes | □ | No | □ | Not applicable | □ |
If yes, proceed to Part 11.
If no, set out the basis on which you dispute the claimant’s assessment of damages claimed by dependents. Summarise the type of evidence on which you intend to rely to support your position.
Part 11 Certification
The form must be completed by the defendant’s claims manager or a solicitor acting for the defendant.
I, [Name], [Position], [Company/Solicitor’s Firm], certify that I reasonably believe on the basis of provable facts and a reasonably arguable view of the law that the defence set out in this reply has reasonable prospects of success if the matter were to be litigated before the Tribunal.
Claims manager’s or defendant’s solicitor’s signature—
Title—
Date—
Form 3 Claims information
(Clause 97)
Information concerning claims
| Claim details |
| Proceedings number | |
| Name of claimant | |
| Name of each defendant | |
| Name of each cross-defendant | |
| If you are a solicitor, party for which you acted | |
| If you are a solicitor, name of your firm and solicitor on the record | |
| Nature of claimant’s injury | □ Mesothelioma□ Asbestosis□ Asbestos related cancer□ Asbestos related pleural diseases |
| Compensation awarded or agreed |
| Was the claim settled or determined by the Tribunal? | □ Settled□ Judgment(Tick the appropriate box) |
| At what stage was the claim settled or determined? | □ After filling the statement of claim but before serving the statement of claim and statement of particulars□ After serving the statement of claim and statement of particulars but before the defendant or defendants file a reply□ Where there is only one defendant, after the reply is filed but before the claim is referred for mediation□ Where there is more than one defendant, after the defendants file their replies but before they agreed on contribution or the claim is referred to a Contributions Assessor□ Where there is more than one defendant, if the defendants agree on contribution, after that agreement but before the claim is referred for mediation□ Where there is more than one defendant, if the claim is referred to a Contributions Assessor, after that referral but before the Contributions Assessor makes a determination□ Where there is more than one defendant, if the claim is referred to a Contributions Assessor, after the Contributions Assessor makes a determination but before the claim is referred to mediation□ After the claim is referred for mediation but before the mediation occurs□ During mediation□ After an unsuccessful mediation but before the claim is returned to the Tribunal□ After the claim is referred to the Tribunal but before the Tribunal makes a determination□ Judgment by the Tribunal |
| If the claim was settled, state the amount for which the claim was settled (including the amount of any costs included in the statement or assessed separately) | Total amount (including costs)—Costs (if separately agreed or assessed)— |
| If the claim was not settled, state the quantum of damages awarded at judgment (including the amount of any costs agreed or assessed) | Total amount (including costs)—Costs (if separately agreed or assessed)— |
| Have you previously been awarded provisional damages for an asbestos related injury? | |
| Legal costs and disbursements |
| Total solicitor/client costs (including amounts recovered from the defendants)—excluding disbursements | |
| Counsel’s fees | |
| Cost of expert reports obtained (list each report separately, identifying the nature of the report including specialty (eg medical report (pathology), occupational therapist, industrial hygienist) and the cost of each report | |
| Other disbursements | |
| Costs recovered |
| Specify the amount of legal costs recovered. List the amount recovered from each other party separately and identify that party. | |
| Specify the amount of disbursements recovered. List the amount recovered from each other party separately and identify that party. | |
| Were costs recovered on an indemnity basis? List the amount recovered from each other party separately and identify that party. | |
| If costs were recovered on an indemnity basis, describe the circumstances in which this order was made | |
| If a defendant, the amount paid to a single claims manager (whether another defendant or an independent claims manager) | |
| Contributions Assessor |
| Was any matter referred to a Contributions Assessor for determination? | |
| Single claims manager |
| Was a single claims manager used or did all the defendants decide not to use a single claims manager? | |
| Name of single claims manager | |
| Who selected the single claims manager (defendants, registrar or Contributions Assessor)? | |
| Single claims manager costs and disbursements (to be completed by those acting as a single claims manager only) |
| Operational costs—excluding disbursements | |
| External legal costs—excluding disbursements | |
| Counsel’s fees | |
| Cost of expert reports obtained (list each report separately, identifying the nature of the report including specialty (eg medical report (pathology), occupational therapist, industrial hygienist) and the cost of each report | |
| Other disbursements | |