Della Maddalena v CSR Ltd - [2002] WADC 260

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DELLA MADDALENA -v- CSR LTD & ANOR [2002] WADC 260

CORAM: O'SULLIVAN DCJ

HEARD: 2-9 APRIL 2002

DELIVERED : 17 DECEMBER 2002

FILE NO/S: CIV 5932 of 1994

BETWEEN: ARTURO DELLA MADDALENA
Plaintiff
AND
CSR LTD
First Defendant
MIDALCO PTY LTD
Second Defendant

Catchwords:

Negligence - Personal injuries - Claim for physical and psychiatric harm - Exposure to asbestos - Credibility - Findings that the plaintiff has not established that he has suffered any injury

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos & Mr A C Dimsey
First Defendant             :     Ms N Johnson QC & Mr J G Mengler
Second Defendant         :     Ms N Johnson QC & Mr J G Mengler

Solicitors:

Plaintiff:     Slater & Gordon
First Defendant             :     Jackson McDonald
Second Defendant         :     Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Battaglia v James Hardie & Co Pty Ltd, unreported; SCt of Vic; BC8700633; 12 March 1987
Broken Hill Proprietary Company Limited; unreported; SCt of SA; BC9300281; 9 March 1993
Cartledge v G Jopling & Sons Ltd [1963] AC 758
Collins v James Hardie & Co Pty Ltd & Ors, unreported; Dust Diseases Tribunal of NSW; 9 of 1989; 16 May 1990
Do Carmo v Ford Excavations Pty Ltd (1983) 154 CLR 234
Greville Torrens v James Hardie & Co Pty Ltd, unreported; Dust Diseases Tribunal of NSW; 10 of 1989; 17 May 1990
Jaensch v Coffey (1984) 155 CLR 549
Jongen v CSR Ltd & Anor, unreported; SCt of WA; Library No 920325; 18 June 1992
Morgan & Anor v Tame (2000) 49 NSWLR 21
Mt Isa Mines Ltd v Pusey (1971) 125 CLR 383
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Papadopolous v James Hardie & Co Pty Ltd, unreported; SCt of Vic; BC8800807; 12 February 1988
Tame v The State of New South Wales; Annetts v Australian Stations Pty Limited (20020 191 ALR 449
The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40
Zappacosta v CSR Ltd & Anor, unreported; DCt of WA; Library No 4201; 28 October 1994

O'SULLIVAN DCJ: This is another case in which a plaintiff claims damages said to have been sustained in the course of his employment at Wittenoom. The matter comes to trial not because the well known dangers of exposure to asbestos are still in dispute but because it is denied that the plaintiff has suffered any injury or any injury for which the defendants are responsible. The quantum of the claim is also in issue.

Background

The plaintiff was born in Italy on 24 January 1943. He came to Australia in August 1961 following other members of his family including an older brother Walter. Upon his arrival Walter took him to the offices of Australian Blue Asbestos in St George's Terrace and he obtained a job at Wittenoom starting in September 1961. He was 18 years old.
The plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Della Maddalena v CSR Ltd

Details

AGLC: Della Maddalena v CSR Ltd [2002] WADC 260
Case: [2002] WADC 260
Decision Date: 17 DECEMBER 2002

CaseChat Overview and Summary

Della Maddalena brought an action against CSR Ltd in the Supreme Court of Western Australia. The plaintiff alleged that he had suffered physical and psychiatric harm as a result of his exposure to asbestos while working at Wittenoom. The court was required to determine whether the plaintiff had established that he had suffered any injury as a result of the exposure to asbestos.

The primary issue before the court was whether the plaintiff had suffered any physical or psychiatric injury as a result of his exposure to asbestos. The court noted that the evidence did not support a finding that the plaintiff had suffered any physical injury as a result of the exposure. The court also examined the psychiatric evidence, which indicated that the plaintiff had suffered from depression and anxiety as a result of his exposure to asbestos. The court considered the plaintiff's subjective symptoms, including his feelings of guilt, suicidal ideation, and physical limitations, as well as the opinions of the experts who had examined him.

The court found that the plaintiff had not established that he had suffered any physical injury as a result of his exposure to asbestos. The court also found that the plaintiff's psychiatric symptoms were not sufficient to establish that he had suffered any psychiatric injury. The court noted that the plaintiff's subjective symptoms were not corroborated by objective evidence, and that the experts who had examined him did not provide conclusive evidence of psychiatric injury. The court found that the plaintiff's claims were not credible and dismissed the action.

The court ordered that the plaintiff pay the defendant's costs of the action.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In my opinion the evidence does not justify the view that as the result of exposure to asbestos the plaintiff has suffered any physical injury.Psychiatric evidence The plaintiff first attended on a psychiatrist in 1994 when he was referred by Dr Deleuil to Dr Gidley. However Dr Gidley was not called and no reports from him are in evidence. At the time of the referral Dr Deleuil wrote that it had been suggested that the plaintiff might be depressed "although", he added, "this does not seem to be a pronounced feature". The plaintiff said that Dr Gidley prescribed anti-depressants but (as I have already noted) he only took them for a short time because they made him drowsy and he did not feel that they were doing him any good. In 1996 Dr Deleuil referred the plaintiff to a clinical psychologist George W Burns who saw him on about eight occasions until March 1997 and then again in March 2002. Mr Burns wrote in a report dated 19 March 1997: "From the assessment there is no evidence of a previous psychiatric history. He has been a hardworking man who has lived a normal well-adjusted life. He has been enthusiastic about his work as well as being active in recreational and social pursuits such as fishing, football and the Italian Club. I consider that his current pessimistic attitude and somatic focus, along with the other symptoms described above, are part of his depressive condition.Psychotherapeutic treatment has been aimed at helping him to adjust to the diagnosis of a life threatening disease. He has been and continues to be offered treatment for his depressive symptoms, instruction in techniques of relaxation and assistance to help re-establish practical interests and directions in his life." Mr Burns's opinion was of course based upon his examination of the plaintiff and the history taken from him. Earlier in his report he had noted that the plaintiff told him, among other things, that he had encouraged his step‑brother to come out from Italy and work with him at Wittenoom and that his brother had died in 1988 and this caused him to have feelings of guilt. Mr Burns also noted that the plaintiff told him that he suffered from insomnia, diminished appetite and libido, breathlessness and an inability to engage in energetic physical activity. He wrote that the plaintiff said that he could not walk across the sand to go fishing on the beach, play darts or bocce, go to the football, mow the lawn, attend social functions where people were smoking nor go dancing. Mr Burns also noted that the plaintiff said that he experienced some suicidal ideation, having seen his step‑brother and friends die of asbestos related diseases. He had purchased a grave plot at Karrakatta cemetery without consulting his wife who became concerned and distressed when she learned of it. After seeing the plaintiff again on 6 March 2002 Mr Burns reported that in his opinion the plaintiff's condition remained much the same as it was in 1997. He wrote:"Essentially there is little change in his psychological symptoms and he continues to have a somewhat realistically based anxiety about his health and future life span. He remains pessimistic in his attitude, is highly conscious of his somatic symptoms, has suicidal ideation and quite naturally feels somewhat depressed."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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