Della Maddalena v CSR Ltd
[2002] WADC 260
•17 DECEMBER 2002
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 DefendantMIDALCO 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 worked in the mill and mine at Wittenoom, on and off for a total period of about 3½ years until the end of 1966 when the operation was closed down. His duties at first included bagging asbestos and cleaning equipment. He later worked at the mill and the mine as a maintenance worker, machine miner and shift boss. It is not in dispute that in the course of his employment he was heavily exposed to dust containing asbestos.
When the mine closed down the plaintiff moved to Perth and after working in a timber mill in the south west of the state for a short time obtained a job in 1968 with the State Electricity Commission. He started as a labourer and then became a gas fitter and a gas faults man, a position he held until his retirement in 1995.
The plaintiff's evidence
The records of the Perth Chest Clinic indicate that the plaintiff attended for annual reviews commencing in 1967 but the plaintiff said that he started to think about the dangers he had been exposed to sometime before 1980 when he learned of the deaths of some of his co‑workers. However, it was when his brother Walter died in 1988 that he became deeply concerned. Walter had worked at Wittenoom for four or five years and he watched him die of mesothelioma over a period of about 12 months. He saw the deterioration in his condition, the loss of weight and the increasing difficulties he had in breathing. The effect of this experience caused him to consult his general medical practitioner, Dr Deleuil, and he was referred to Professor Musk at Sir Charles Gairdner Hospital.
The plaintiff said that Professor Musk told him that "they saw a lot of asbestos in his lungs" but that "everything was all right". He continued to be concerned despite this assurance. He was not suffering any symptoms at this stage but he was:
"… always thinking … about the way I'm going to end up, like my friends, also in hospital, dying of mesothelioma; it's the worst thing you can see a person die, not even a dog you would see dying like that. It's very, very painful."
After about 1990 the plaintiff said that he started to experience some shortness of breath, especially when bending down or upon digging. He also developed chest pains and was getting tired and felt that he was going "downhill" and "couldn't cope … anymore". He continued to see friends with whom he had worked become ill and die and he was worried that he was about to suffer the same fate and that he would not be able to care for his family. These worries were not alleviated by assurances to the contrary from his doctors.
In late 1992 a bone scan revealed what was called a "hot spot" and Professor Musk determined that it was necessary to perform a fine needle aspiration biopsy. The results revealed no evidence of malignancy but before he was advised of them the plaintiff said that he went to the Asbestos Diseases Society and learned that a hot spot "is what they call metastasis. It's cancer in the bone." In the three weeks or so between learning of the hot spot and being advised of the results of the biopsy the plaintiff said that he felt that his "time was up, like the rest". After being advised of the results he still felt "really bad" and upon being asked why he said:
"What they say, where smoke there's fire. There's got to be something there and it's a matter of time."
The plaintiff continued to worry about his condition and was referred by his general practitioner to a psychiatrist, Dr Gidley, who prescribed anti‑depressants but he only took them for a week because he felt that they were doing "more harm than good", making him sleep so heavily that he couldn't open his eyes in the morning. He was finding it difficult to cope at work and he took sick leave and ultimately applied for early retirement.
The application was approved and he ceased employment in September 1995. At this time he said that he felt "really down … because I seen all me friends die on me". This made him feel that he would "probably the next one". Exhibit 2 is a list of people whom the plaintiff said he had met at Wittenoom and he believed had died from asbestos related diseases. Thirty nine names are on the list. Fourteen were of people from his own home town in Italy. Only three remain alive apart from himself. The list includes the name of his brother and of the best man at his wedding.
The plaintiff said that before developing chest pains and breathlessness and becoming worried about his condition it was his intention to work until he was 65. He ceased work because he could not cope with the physical demands of the job. He said that he cannot now engage in any heavy physical work, feels "down", has difficulty sleeping, spends his days "just lazing around the house", only attends to minor tasks about the place or about properties owned by his sons or his wife such as fixing leaking taps or broken reticulation. He feels that he has no future.
Physical injury
The plaintiff pleads and the defendants deny that the plaintiff suffers from asbestosis, pleural disease, respiratory degeneration and pain and breathlessness.
Asbestosis
Asbestosis, Professor Musk said:
"… is a condition within the lung. It's inflammation and scarring, fibrosis of the tissues of the lung itself. The walls of the alveoli become inflamed and thickened and the lung becomes stiff but that's within the lung."
Dr Bremner, who is a respiratory physician, wrote in a report dated 6 October 1994 that the plaintiff did not have sufficient evidence to confirm asbestosis. As to the requirements for such a diagnosis he said:
"The most important requirement is: firstly, a history of significant asbestos exposure; secondly, the presence of diffuse interstitial lung disease or fibrosis in the lung, with appearances that are expected or typical of asbestos exposure. … and you would need abnormal – or, less importantly, abnormal lung function."
The requirement that interstitial lung disease be diffuse arises because these days scans can detect very small areas of abnormality. The diagnosis, said Dr Bremner:
"…. isn't a yes‑no, stop‑start division. With the current technology, it's difficult to be precise as to what day you do have and what day you don't have it as opposed to the change on the x‑ray."
When Dr Bremner first saw the plaintiff in September 1994 he noted his complaints of chest pain, breathlessness, loss of energy and tiredness but he was unable to provide any clear explanation for them. He wrote:
"There is radiological and clinical evidence to suggest very early interstitial lung disease. His stated disability with regard to breathlessness greatly exceeds the impairment of ventilatory function. It would be useful to compare his current pulmonary function with measurements made in the past in order to determine the rate of change over the years as an explanation for his symptoms. His chest pains are not easily explained by the presence of asbestos related lung disease and neither are they suggestive of ischaemic heart disease."
Dr Bremner saw the plaintiff again in October 1994 after he had had a full range of pulmonary function tests and he wrote in a report of 6 October of that year that the results of the tests were "not consistent with significant interstitial lung disease".
The plaintiff was seen for review by Dr Bremner on 4 February 2002 and his report of 12 February is in evidence. He wrote:
"Mr Maddalena has benign asbestos lung disease in the form of pleural plaques. He has some very minor changes of fibrosis, most likely due to his known asbestos exposure. These would be consistent with asbestosis. However the degree of radiological and physiological abnormality is minor and does not explain his symptomology. It is unlikely therefore that his symptoms are the result of his known asbestos related lung disease. It's possible that his symptomology (breathlessness, chest pain, lack of energy) is related to an underlying depressive illness given that his symptoms are not explained by heart or lung disease."
Dr Bremner was asked and said in evidence:
"So if you were a responsible respiratory physician making a diagnosis in accordance with the literature you would not be making a diagnosis of asbestosis would you doctor?---No."
However he also said:
"… Just a point that I was trying to make before that you have fibrosis and you have fibrosis and at what point does it become diffuse?---There are no rules or guidelines how to determine that and if someone has some very early or minor fibrotic change, you know one might loosely refer to that as consistent with asbestosis but does the patient have asbestosis? As a disease process you would then say no. The problem has become recently that scans have become so accurate at finding very small areas of abnormality that we have had to change that, as I have said to diffuse disease, so in the past we may have referred to changes as being consistent with asbestos exposure and that is fibrosis; is it asbestosis as a disease process and the answer is no, we wouldn't call it now asbestosis. It's a matter of degree."
Professor Musk first saw the plaintiff in 1989 and his early reports contain repeated references to having reassured him that he could find no evidence of asbestosis nor any other lung disease.
On 25 March 1994 Professor Musk wrote to Dr Deleuil expressing concern that he might have failed to recognise some organic disease but he nevertheless stated that he was unable to provide the plaintiff with medical evidence to support an application for early retirement.
On 26 October 1994 he wrote to the plaintiff's solicitors stating:
"In the absence of crackles on auscultation of his chest or significant impairment of lung function I do not feel that he has a significant degree of asbestosis and certainly insufficient evidence of any abnormality to account for his symptoms.
On the other hand the CT is a very sensitive means of detecting very early disease which may not have any physiological significance. On conventional criteria Mr Della Maddalena therefore does not have asbestosis although there is pleural disease which can be considered responsible for the reduction in his lung volumes. There has been no significant deterioration in his gas transfer over a period of five years during which time seven separate estimates have been made and have all been made within normal limits. During the same period there has been a slight fall in his total lung capacity … These changes are consistent with pleural disease alone and also consistent with the results of his (sub maximal) exercise test.
I note that Dr Glancy considers that in the absence of pleural disease the appearance of his CT could not be construed as being typical of asbestosis and that a firm diagnosis would require biopsy. I am inclined to agree with this opinion."
This letter was of course written at a time when the plaintiff was very keen to retire from work and Dr Musk's support would have been important to him. Nevertheless on 8 April 1985 Professor Musk wrote to the Government Employees Superannuation Board stating that the changes in the plaintiff's lung function recorded between 1989 and 1994 were consistent "with their being [asbestos‑induced] pleural disease only". By this Professor Musk meant pleural plaques a condition characterised by localised areas of thickening of the pleura and not of itself diagnostic of any disease of the lung. In the final paragraph of that report he expressed the view that while the plaintiff's job as a faults man involved moderately heavy work he felt that he was physically capable of performing it.
What might be described as some change in Professor Musk's views begins to appear in 1996. On 25 July 1996 he wrote to the plaintiff's solicitors stating as follows:
"On examination there were a few crackles audible at the left base only. His chest x‑ray was unchanged from previously. Lung function assessment performed on 9 January 1996 showed reduced total lung capacity but normal expiratory flow rates and low/normal gas transfer. The results were not significantly changed from previous measurements since 1989. …
As a result of his asbestos exposure Mr Della Maddalena is at risk of developing asbestosis, bronchogenic carcinoma and malignant mesothelioma. He has possible very early asbestosis at this stage but I do not feel that this is definite."
Professor Musk said in evidence that he only wrote on 25 July 1996 that the plaintiff had "possible very early asbestosis" because he had a few crackles and a lower than average lung function albeit one not outside the normal range. He said: "That's all, possible and very early. So I couldn't exclude it but I didn't think it was particularly likely."
On 5 November 1997 Professor Musk wrote to the Asbestos Diseases Society. Again he gave a detailed history of his investigations but on this occasion he stated as follows:
"Crackles have been audible on auscultation of his lung bases since April 1997.
His most recent lung function assessment was performed on the 5th November 1997. This showed that over the past nine years since lung function tests were first performed here in March 1989 there has been a progressive decline in gas transfer and lung volumes. …"
Professor Musk ended his report stating:
"The changes in his lung function recorded between 1989 and 1997 are consistent with there being (asbestos-induced) pleural and mild parenchymal disease (asbestosis). This interpretation would be consistent with the presence of crackles on auscultation of his chest."
In relation to his report of 5 November 1997 Professor Musk said that he was not in a position to make a firm diagnosis of asbestosis and that is why he wrote that the findings (crackles and changes in lung function) were "consistent with" asbestosis.
Then on 16 September 1998 Professor Musk wrote to the plaintiff's solicitors stating:
"On examination he still has inspiratory crackles at his lung bases and his most recent lung function assessment on the 14th September 1998 showed that there has been a progressive decline in parenchymal function with gas transfer falling from 27.8 mls/min/mmHg in 1989 to 22.2 mls/min/mmHg on the 14 September 1998 (predicted 29.1). There has been little change in ventilatory capacity (FEV1/FVC 3.0/3.8 litres in 1989 and 2.8/3.7 in 1998, predicted 3.2/4.3) or total lung capacity (5.6 litres in 1989 and 5.8 litres in 1998, predicted 6.8).
I have reviewed his most recent chest x‑ray from SKG Mt Lawley (25th August 1998) which showed a little vascular deformity suggestive of mild airway disease only. CT of his thorax at SKG Mt Lawley (20th August 1998) has show bilateral pleural plaques and minimal septal thickening with some fine linear bands of fibrosis of the lung bases consistent with minimal insterstitial fibrosis.
These results suggest he has developed some mild asbestosis."
Despite the reference in this report to there being a progressive decline in parenchymal function with gas transfer falling Professor Musk agreed that the results of all lung function tests were in the low normal range and that septal thickening with some fine linear bands of fibrosis of the lung bases was not a finding specific to asbestosis.
In cross‑examination Professor Musk was asked and said:
"In order to make a diagnosis of asbestosis according to the literature you require exposure to asbestos?‑‑‑Absolutely.
You require some form of abnormal lung function?‑‑‑Yes.
And you require diffuse interstitial lung disease of fibrosis?‑‑‑Evidence of interstitial disease radiologically, I think you mean.
Yes, and it must be diffuse?‑‑‑That is to separate it from a focal abnormality such as you see in cancer or pneumonia or something like that. It means that it's not a focal abnormality, its something that's distributed within the tissues of the lung and preferably both sides. That's what we mean by diffuse.
There is no abnormal lung function is there at this point in time or indeed at any point in time in the graph that you have mentioned?‑‑‑No, the lung function is in the low normal range and that has been throughout, varying from time to time but still within the low normal range.
Even on 16 September 1998 Mr Della Maddalena doesn't meet the conventional criteria for a diagnosis of asbestosis?‑‑‑Not the conventional criteria, no."
Dr Richard Tarala, a consultant respiratory physician, examined the plaintiff in 1992, 1996 and 1999. He wrote in a report dated 10 September 1992:
"Opinion – Mr Della Maddalena has been exposed to asbestos during several periods of work at Wittenoom. There were no crackles on auscultation, chest x‑ray was normal and lung function tests did not suggest a parenchymal lung disease. In reply to the question in your letter of 12 August 1992 I find no evidence to suggest the presence of parenchymal lung disease in Mr Della Maddalena."
Parenchymal lung disease is a disease in which the substance of the lung is altered to a degree substantial enough to cause abnormal breathing test results.
Dr Tarala also noted in his report of 10 September 1992 that although a CT scan done on 22 March 1990 showed some pleural plaques there was no calcification and no evidence of fibrosis.
After examining the plaintiff in 1996 he wrote:
"Percussion note was dull at both bases. There were a few crackles at his left base posteriorly. … CT shows some areas of pleural thickening on the diaphragm, but no interstitial changes."
Dr Tarala's view was that none of these findings were sufficient to justify a diagnosis of asbestosis and he wrote that Mr Maddalena did "not fulfil the conventionally accepted criteria."
Dr Tarala saw the plaintiff for the third and last time on 17 March 1999. On this occasion he wrote in answer to the question: What if any asbestos related conditions does he have?:
"Mr Della Maddalena has evidence of significant exposure to asbestosis, in the form of a number of pleural plaques. He has a few crackles on auscultation, some interface signs on CT thorax of 25.8.98 in association with the pleural plaques, and a suggestion of ventilatory limitation on exercise test performed on 14.9.98. In comparison with my previous assessment, Mr Della Maddalena now has a few crackles. I consider that Mr Della Maddalena has pleural plaques related to previous exposure to asbestos. In favour of asbestosis are a few crackles on auscultation. Against asbestosis are the lack of fibrotic changes and the normal gas transfer. Accordingly, on a balance of probabilities, he does not have sufficient features to confirm asbestosis."
The fourth respiratory physician to see Mr Della Maddalena and give evidence was Dr Julian Lee.
He was firmly of the view that the plaintiff does not have asbestosis. He noted in a report dated 23 March 2000 that there were "late fine inspiratory crackles" detectable at the base of the left lung and that there was radiographical change visible in the form of small discrete pleural plaques together with minor non‑specific fibrosis and occasional parenchymal bands. However it was Dr Lee's opinion that there was "no convincing clinical or radiological evidence to indicate the presence of an identifiable asbestos‑related disease.
It is clear that all the respiratory physicians who testified are agreed that the plaintiff does not meet the conventional criteria for a diagnosis of asbestosis. There is no doubt that there is evidence of exposure to asbestosis and that pleural plaques exist (first detected radiologically, it seems by Professor Musk in 1994). But as Dr Bremner said pleural plaques are "not really of any general concern … they merely reflect exposure".
In relation to the requirement for a diagnosis that there be diffuse interstitial lung disease it is true that Dr Bremner said in his report of 23 September 1994 that there was "radiological and clinical evidence to suggest very early interstitial lung disease" but he stated in his final report of 12 February 2002, written after reviewing the plaintiff some seven years after he first saw him:
"My comment on his CT scan from 1994 was that he had pleural plaques and some evidence of very early interstitial disease. Diffuse interstitial changes of asbestosis were absent. I reviewed his CT scan done 15th May 2001. Again there was some very minor pleural plaque formation bilaterally. There was some very minor subpleural interlobular septal thickening bilaterally. He did not have interstitial lung disease."
Dr Bremner made it quite clear in his evidence that in his opinion the plaintiff did not have diffuse interstitial lung disease. Dr Lee and Dr Tarala were also of that view. If Professor Musk is of a different view it is clear that he nevertheless accepts that the plaintiff did not meet the conventional criteria in that regard and I am left to speculate about the exact nature of Professor Musk's opinion.
In any event it seems to me that it is clear on the evidence that the plaintiff has not shown signs of abnormal lung function and so the third criteria relevant to a conventional diagnosis of asbestosis has not been satisfied. Professor Musk agrees with the other respiratory physicians who testified that the results of lung function test fell within the normal range and there was no evidence of any decline in gas transfer. If Dr Bremner is of a different view then that opinion does not seem to be borne out by the test results.
In the end in my opinion it must be concluded that the plaintiff has not established on a balance of probabilities that he suffers from asbestosis.
Pleural disease
"Pleural disease" is a term which was used somewhat confusingly in the course of the trial. Counsel for the plaintiff used it in opening to signify simply the existence of pleural plaques, which as I have already noted, are localised areas of thickening of the pleura, sometimes calcified. At times that is the sense in which Professor Musk and Dr Bremner also used the expression. However, all doctors agreed that while pleural plaques indicate exposure to asbestos they are not of themselves diagnostic of any disease of the lung. Dr Lee defined "disease" as a "variation from the normal … such as to cause biological disadvantage."
In closing counsel for the plaintiff submitted that it had been established on the evidence that the plaintiff had pleural plaques which caused him to suffer chest pains. I take this to be a submission in support of the allegation contained in the statement of claim that he suffers from "pleural disease".
Professor Musk gave evidence that in a study carried out a few years ago a number of patients with pleural plaques complained of chest pain and a statistical association was thereby established. However as the Professor made clear those results do not prove that the pain was due to the plaques, "it was just a simple statistical association", and he conceded that the whole question of whether plaques could cause chest pain was a controversial one.
Neither the Professor nor any other expert expressed the opinion that the plaintiff's complaint of chest pain in this case was due to his pleural plaques and in my view such a contention has not been made out.
Respiratory degeneration, pain and breathlessness
All the medical practitioners who testified recorded the plaintiff's complaints of pain and breathlessness.
For example, Dr Febbo reported on 23 December 1996:
"Mr Della Maddalena said that he first experienced shortness of breath in 1988 while he was helping lay a footpath. He then said that his condition has gradually deteriorated to the point that he is now significantly incapacitated. For example he is unable to go to the football because he cannot walk from the car park to the field. He said: 'It is two years of not going to the football.' He added that he has ceased other activities such as fishing because although he used to enjoy it he now gets tired 'casting and walking backwards and forwards.' "
Dr Febbo also said that the plaintiff told him that he experiences continuous pain on both sides of his chest and that if he tries to do anything "like gardening, I get breathless, start sweating".
Professor Musk wrote on 5 November 1997:
"I have continued to see him periodically and last saw him on 5 November 1997 when he complained that his breathlessness had increased and that he can now only walk about 200 metres before slowing down. He says that he walks about half a kilometre in about 20 minutes to the shops every morning but stops when he gets there because of breathlessness and tiredness. … He additionally complains of pains across his lower chest posteriorly and worse when he bends forward."
On 23 April 1999 Dr Tarala reported:
"Mr Della Maddalena told me that he was tired and breathless and he felt more breathless over the last 3 or 4 months. He couldn't breathe when he bends down to his shoes and he continues to have dizziness and pain in his chest with breathing."
And on 23 March 2000 Dr Lee reported that the plaintiff told him that:
"… apart from watering the garden he claims not to be able to undertake any form of physical activity."
Video taped footage was tendered in the course of the trial and it is fair to say that it depicts the plaintiff engaged in many activities which are inconsistent with these complaints. It is true that much of what is seen on video simply shows the plaintiff standing or sitting or walking slowly but there are scenes in which he demonstrates a significant ability to engage in physical activities including lifting and digging. On one occasion, for example, he is seen assisting in the lifting of what appears to be a washing machine onto the back of a utility. On another he digs a reticulation trench. He is frequently depicted at work checking or fixing reticulation in the various houses which are owned by members of his family. The video tape also clearly shows him engaged in maintenance work around the houses, attending hardware stores and then visiting houses with tools and items purchased for the purpose of carrying out work at the properties.
The results of lung function assessments are also unsupportive of the plaintiff. As already noted, Professor Musk gave evidence that all the results of testing were within the normal range and that variations were of no particular significance.
The plaintiff made it very clear in his evidence that he did not suffer from breathlessness until after his brother died in 1988. He said in evidence in chief that while the death of his brother caused him to worry that he might meet a similar fate he was not suffering any other symptoms at that stage. This was confirmed a little later in his evidence when he said that it was just after 1990 that he started getting short of breath when doing work which required a lot of bending down and digging. In cross‑examination he was asked and said:
"The breathlessness, when do you become breathless?‑‑‑That's after 1990 I think.
After 1990, that was the first time you experience breathlessness?‑‑‑Yes.
When was the first time you experienced this pain in your chest or the back area you have mentioned?‑‑‑In the same – same time.
So the first time that you complained about chest pain and breathlessness was in 1990 is that right?‑‑‑Yes around there 1990.
That's your evidence?‑‑‑That's my evidence.
And you didn't experience those symptoms before your brother died?‑‑‑No.
You were fit and healthy before then?‑‑‑Yes".
Despite the firmness with which this evidence was given the fact is that the records of the Perth Chest Clinic disclose that the plaintiff complained of shortness of breath and chest pain as early as 1968 and that he continued to complain regularly thereafter. The clinic's notes dated 17 April 1968 read in part:
"… volunteers because he is dyspnoeic on exertion especially at work."
The note dated 29 April 1971 reads:
"Keeps quite well though dyspnoeic."
The entry dated 29 October 1977 reads in part:
"… occasional chest pain."
That for the 14 May 1979 reads:
"Pain left side of chest."
The note dated 2 June 1983 appears to read in part:
"SOB upstairs."
SOB stands for "shortness of breath".
The note dated 16 March 1987 also refers to shortness of breath when climbing stairs.
It is clear that the plaintiff has been complaining of breathlessness and chest pain for a very long time and yet he continued to work as a gas faults man until 1995 sometimes engaging in very strenuous physical activities. Against this background and the objective evidence of the video tapes and the lung function tests I have concluded that the claim that he now suffers from breathlessness and chest pain should not be accepted.
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."
Dr Deleuil referred the plaintiff to a psychiatrist, Dr John Penman, who saw him on 9 September 1997. Dr Penman expressed his opinion in a report dated 16 September 1997 stating:
Mr Della Maddalena has symptoms of depression and particularly of anxiety related to his illness of asbestosis. Mr Della Maddalena is fearful of dying a painful death and because of this he has thoughts of taking his own life. While he remains an ongoing suicidal risk he is not immediately at serious risk and there is no indication of hospitalisation because of this. He might well respond to an anti-depressant, particularly one of the SSRI variety, which will also hopefully help his level of anxiety as well….."
Dr Penman's views were of course also based upon his examination of the plaintiff and of the history he was given. Like Mr Burns Dr Penman noted that the plaintiff had told him that he had persuaded his step‑brother to come out to Australia to work at Wittenoom and that he felt responsible for his fate. Other symptoms recorded were of pain and breathlessness and of feeling "down in his mood" particularly when not able to tackle tasks which he had previously been able to accomplish, bad appetite, insomnia, morbid thoughts and thoughts of self harm, depression and anxiety.
Dr Penman agreed in cross-examination that his diagnosis was dependant upon the accuracy of what he was told by the plaintiff. He said:
"If someone chooses to tell lies that can obviously affect one's decision making. It has got to be a very consistent and well constructed lie if the whole story does not fit together."
Professor Allen German, consulting physician in psychological medicine, first saw the plaintiff in about April 1998 and saw and treated him on about twenty occasions until his retirement this year. Professor German wrote in a report dated 16 October 1998:
"In my opinion Mr Maddalena lives in fear of death from mesothelioma as a result of his undoubted heavy exposure to asbestos some 25 or so years ago. He has watched his brother and numerous colleagues die severe, painful and lingering deaths. He suffers from chronic fear. Technically he has a severe chronic anxiety state; a secondary depressive illness of the adjustment disorder type; and in my opinion is enmeshed in a sick role driven by his total belief in his ongoing and progressive pathology with death not far off. He cannot be described as cancer phobic because the term phobic implies no real reason for such a belief. I believe that he has compelling reality and emotional reasons for his belief. His general practitioner obviously shares these views and I say that with respect.
The psychiatric disabilities have exacerbated his physical symptoms of breathlessness and pain and the unfortunate development of objective evidence of pulmonary disease, albeit mild, has more firmly established, if that were necessary, his convictions of ill health."
Professor German also stated in the same report:
"8.I have no doubt that your client's experiences and conditioning that has been ongoing since asbestosis had been mentioned, is sufficiently serious to constitute recognisable psychiatric injury ‑ of some substance. It has been reinforced repeatedly by the continuing series of deaths of people he knows well and with whom he has had personal contact. There is nothing transient about his state nor initial. It is a very serious emotional response to overwhelming trauma.
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10.As far as I know this condition is said to have begun in 1988 (by the patient) but I suspect that it had commenced earlier with growing social awareness about the medical consequences of asbestosis and almost certainly from the time that condition was diagnosed in his step‑brother.
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13.His prognosis is for a continuance of the present state with probable worsening, partly because as he grows older he becomes increasingly conscious that his time left is reducing (and he attributes this to asbestos) and partly due to the possibility that he does show early stages of what will eventually be a severe asbestos deterioration. That cannot be forecast at this juncture other than in statistical terms. He will therefore continue to live as presently with fluctuations in the extent to which he can do things or enjoy things reflecting responses, mainly to medication and to other possible forms of psychological therapy such as described by Mr Burns in his report in your booklet. I do not believe he has any prospect whatsoever of improvement or getting better.
14.He is presently anxious and depressed as described above with some amelioration, particularly in his sleep pattern, as a result of recent anti-depressant therapy. There has been some slight ‑ no more than about 5‑10% ‑ improvement in his activity levels, but I think that improvement is extremely fragile and likely to vanish should there be further evidence of chest disease. This does not require to be medical evidence but evidence which is compelling to him."
As with other witnesses Professor German conceded that in reaching his conclusions he was dependant upon what the plaintiff had told him but only "up to a point". He said that a person can believe he has a disease and develop a depressive illness as a result of that belief. If evidence shows a person to be doing what they have claimed to be unable to do that would be a relevant matter to consider in the making of a diagnosis but it would not necessarily be determinative. Professor German said:
"It's part of the total gestalt. It is not just one thing it is part of a totality of things over time as well."
Professor German was in fact shown the video tapes of the plaintiff which were placed in evidence and he commented upon them in a report dated 5 July 2001 as follows:
"I do not think that there was anything in these video passages that sheds any light on his fundamental mental state and the state of mind which I have described in my previous reports."
Dr Paul Skerritt, consultant psychiatrist, saw the plaintiff for assessment on 13 and 27 November 2000 and wrote a report dated 16 January 2001. He stated:
"In my opinion we need to start in the understanding of his case by the observation of Professor Musk that he has asbestosis but not of a degree consistent with symptoms that he has subsequently demonstrated. Many of his symptoms are of a type which might be described as psychophysiological, that is the several symptoms around the body, many of which are in the respiratory system, consequent on severe anxiety. The prominence of worry and the long standing nature of much of his symptomatology suggests that the formal diagnosis is generalised anxiety disorder although he possibly comes quite close to panic disorder because of the nocturnal panic attacks and the few that occur during the day. Anxiety and depressive disorders coincide frequently and I think that he had one or other variety of depressive disorder, such as major depressive disorder. I think that his symptoms do go further than the designation of adjustment disorder with depressed mood, suggested by Dr German.
I think that there are several factors increasing the impact of relatively mild asbestosis on Mr Della Maddalena. Breathlessness which is ultimately due to hyperventilation, with tightness across the chest and pounding heart are very typical symptoms of anxiety which are interpreted as features of asbestosis according to Mr Della Maddalena's understanding of it. The symptom of worry is very prominent in anxiety disorders and particularly in this case. It is little more than commonsense to say that the more one worries about a symptom the worse it gets. For example, in any normal person the experience of a tooth ache is worse at night than it is in the day. I think that this phenomenon is projected to a much greater extent in Mr Della Maddalena and, coupled with his relatively poor understanding of the situation of the cultural and educational reasons, he now finds himself in the position of complaining of massive physical symptoms quite out of proportion to the physical pathology.
This is well described in the concept of abnormal illness behaviour. Unfortunately the handicap that proceeds from an illness depends on the illness behaviour. In his case he has very little awareness of the whole complicated process generating the abnormality of his illness behaviour and indeed of the frank psychiatric symptoms of anxiety and depression which he suffers.
There is further room for improvement and his anti-depressant treatment is at a relatively early stage. Were I treating Mr Della Maddalena I would pursue the treatment somewhat more intensively. In view of his perception of the situation however I would be very cautious about the possibility of ever achieving a work rehabilitation and I think it is very unlikely, whatever happens, that he will achieve his previous capacity or indeed any work capacity in the future. This is because of the heavy degree of somatisation leading to physical symptoms which may well persist even if the anxiety and depressive symptoms which underlie them are removed. The various individual and cultural factors will of course not be removed by treatment."
The views which Dr Skerritt expressed in this report were unaltered by the video footage which he subsequently saw. He wrote in a report dated 2 April 2001:
"This film was as unimpressive as I have ever seen. As seems to be the case with most of these the principal activity demonstrated was walking in car parks and getting in and out of cars. There was some demonstration of relatively mild activity such as pulling what looked like an empty wheelbarrow behind him for a matter of seconds on 19 September 1997. On 11 December 1997 he dug a couple of holes for what might have been the repair of reticulation. On careful analysis of the times demonstrated on this film this digging never went on for more than a couple of minutes and was interposed with periods of walking around or leaning on his spade. Similar sequences were demonstrated in the same place on 16 November 1999. Around lunch time on the same day he went into a café called La Cantina where he stood outside smoking and carrying the children on one or two occasions.
None of this is inconsistent with a man with moderate respiratory distress, which is what Mr Della Maddalena believes himself to be. Nor does it seem to be particularly inconsistent with the descriptions that he gave to my colleagues. None of the behaviour on film has any relevance whatsoever to his psychiatric symptoms as described.
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My overall impression is that the videotape does not reveal any behaviour, which is in serious contradiction to that which he was claiming as recorded by my colleague. Mr Della Maddalena believes himself to be handicapped in a physical way and this is consistent with the demonstration of periods which were never more than a couple of minutes of physical activity interposed by periods of smoking, walking around and leaning on his spade."
Dr Skerritt agreed in cross-examination that if there were significant inaccuracies in the plaintiff's history as taken by him he would have to reconsider his opinion. However he did not regard the video as disclosing any significant inaccuracies.
Dr Sam Febbo, consultant psychiatrist, was called by the defendants. He first saw the plaintiff on 3 September 1996 and after seeing him again on 26 November of that year expressed his views in a report to the plaintiff's solicitor dated 23 December. He wrote:
"On the basis of my two interviews with Mr Della Maddalena, my conversation with his wife and my review of the documentation supplied accepting the veracity of his history I form the following opinion.
From Mr Della Maddalena's history it is clear that he firmly believes that he has considerable lung pathology which has caused significant incapacity in a number of activities. He was particularly sceptical of the general medical view summarised in your letter of 24 July 1996 that he has 'not being diagnosed as having asbestosis' and went to great length to emphasise his level of incapacity. To a large extent his opinion is based on the fact that he has seen a number of his workmates and, more particularly, his brother die from asbestosis. From what he said it is his expectation that this will be his fate as well.
I believe that Mr Della Maddalena's view of his physical state is critical in understanding his presentation and particularly the level of incapacity he described. My psychiatric interview certainly revealed a number of depressive symptoms and from the history given they probably reach the level required for a major depression according to the Diagnostic and Statistical Manual of Mental Disorders 4th edn (DSM IV). Mr Della Maddalena was probably predisposed to the development of this disorder and I note the family history of psychiatric disorder. However, when one considers my findings on mental state examination, which are certainly not in keeping with a severe depression, the severity of this disorder falls far short of that required to explain the high level of incapacity described by Mr Della Maddalena. It is my view that Mr Della Maddalena has, in fact, for the reasons I mentioned earlier, adopted the sick role to a much greater degree that can be explained by his Depression or, from reading the documentation you have provided by his physical status. …
Unfortunately because Mr Della Maddalena's level of incapacity relates to more complex factors than simply a diagnosis of Major Depression I am not optimistic about his response to medication and, indeed, I note that this has been minimal in the past."
After seeing video surveillance tapes Dr Febbo wrote in a report dated 31 August 2000:
"Mr Della Maddalena is seen performing a number of activities. In particular I note that on a number of occasions he is observed bending and digging. Whilst in parts of the video evidence it was not possible to identify him clearly there is considerable footage showing Mr Della Maddalena performing a number of activities including digging, gardening, bending and walking. He appears comfortable whilst he is performing these tasks.
In contrast to the above on reviewing my report dated 23 December 1996 which was based on my interviews of 3 September 1996 and 26 November 1996 Mr Della Maddalena described being in constant pain which was made worse when he leant forward. It is noteworthy that he told me 'I am not doing anything because of pain' and that on doing minor tasks he starts 'puffing, sweating and getting out of breath'. He told me he was unable to go to the football because he could not walk from the car park to the field and he added that at the time I saw him it had been 'two years' since he had last gone to the football. He also said that he was unable to fish. I also note that Mr Della Maddalena made the comment 'I was doing two jobs and now I can't even do my gardening'.
In short, assuming that there has not been a considerable improvement in Mr Della Maddalena's condition between the time of my assessment and the time over which the video surveillance tapes were filmed I am unable to reconcile what I observed in the tapes with the history with which he was providing during those interviews in 1996."
Having made these comments Dr Febbo went on to state that he could no longer be certain of a diagnosis of major depression and that he considered that it was clear that Mr Della Maddalena retained the ability "to be selective in the circumstances in which he adopted the sick role". It was his view that he had a greater capacity to undertake physical activity than he claimed.
Dr Febbo saw the plaintiff again for assessment on 16 and 22 January 2001 but he said in evidence that he did not discuss the video tapes with him. In a report dated 16 April 2001 Dr Febbo said that the plaintiff told him that from a physical perspective he was able to do less in January 2001 than when he saw him in 1996. He wrote:
"Mr Della Maddalena reported continuing physical symptoms such as chest pain and shortness of breath related to his lung condition. He reported quite considerable incapacity related to his condition.
From a psychiatric perspective it appears that if anything there has been deterioration in his mental state since late 1996. A detailed psychiatric history revealed the presence of a number of depressive symptoms and anxiety symptoms. From the history with which I was provided the severity and extent of those symptoms are in keeping with a partially treated major depression associated with significant anxiety. I note that he is currently on the anti-depressant Aropax at a dose of 40mg daily.
It is fair to say from the history with which I was provided that the severity of the depressive and anxiety symptoms would be of a nature as to be associated with a significant partial incapacity in relation to social and occupational functioning.
Having made the above comment however the history suggests incapacity that in my view goes far beyond what can be explained by the severity of the depressive and anxiety symptoms.
In my last report dated 23 December 1996 I addressed the issue of Mr Della Maddalena having ' … adopted the sick role …' and, in my view, this is significant in understanding his current level of social and occupational functioning. Indeed, using a DSM IV framework aspects of his presentation fall within the category of the Somatoform Disorders.
In my view Mr Della Maddalena's mental state, his depression and anxiety symptoms and the overall presentation are being negatively affected and perpetuated by the ongoing losses with which he has to deal."
It was Dr Febbo's opinion that while the history of symptoms reported to him by Mr Della Maddalena supported a diagnosis of major depression associated with significant anxiety the inconsistencies revealed by the video reports were such that he could no longer be confident of such a diagnosis. He stated in evidence:
"The video material really worries me. It really, really worries me because I remember my own emotional response when I saw it. I was very much surprised to the point that I felt that the diagnosis I had made … lacked substance. So I would have to say that I have concerns about his veracity, concerns about the reliability of the history and because of that I would be unwilling to make a diagnosis."
Dr Febbo reviewed the plaintiff again on 21 January 2002. He stated in a report dated 18 March 2002 that, having discussed the complex nature of Mr Della Maddalena's presentation and causation of his psychiatric condition in his earlier report he had nothing more to add.
The significance of the video tapes
It is clear that the video tapes made a significant impression upon Dr Febbo but that they did not have that effect upon Professor German and Dr Skerritt.
Professor German made a note while watching the tapes which reads in part:
"Brief episodes …
Shown getting in and out of vehicles carrying items (small) from the boot: visiting stores/other homes? Friends, relatives?
Working in garden with a hose digging holes slowly with long pauses intermixed with light digging? Reticulation?
Also seen stopping to smoke a cigarette. Later, with another man, lifts a medium sized refrigerator and another bulky object into a large waste bin.
No significant behaviours relevant to his mental state noted. Activity level probably consistent with his relatively mild/moderate chest disease. All slow and paced.
Nil of note."
I have already set out the report of Dr Skerritt in which he described the video footage in dismissive terms. He noted that it contained "some demonstration of relatively mild activity" and depicted some digging which "never went on for more than a couple of minutes". However in the same report Dr Skerritt did note that the plaintiff had told Dr Febbo that he could not even do his gardening and he conceded in cross‑examination that this was inconsistent with the level of activity demonstrated on the video tapes.
Dr Skerritt also stated in the same report:
"When I review my own notes I did not interrogate him on precisely what physical activities he could do and not do, concentrating rather on my attempt to elucidate the rather obscure and heavily somatised psychiatric symptoms which occur in depression."
In his first report written after seeing the plaintiff on two occasions Dr Febbo set out a detailed summary of the plaintiff's complaints under the heading "History of physical and psychiatric problems." Dr Febbo noted, among other things that the plaintiff complained of experiencing continuous pain on both sides of his chest made worse with activity and by leaning forward. He also noted complaints of shortness of breath which had got worse over time so that he was now unable to go to the football because he could not walk from the car park to the field, and unable to fish because the motion of casting a rod caused tiredness.
In dealing with psychiatric and psychological complaints Dr Febbo noted that the plaintiff told him that he did not sleep well waking two or three times a night, that he felt guilty about not being able to look after his family and suffered from irritability and nervousness on occasions.
Dr Febbo's second report, written after seeing the video tapes contains a detailed description of what is depicted in them. He describes the plaintiff's activities including, on one occasion, transferring the contents of a wheelbarrow into the back of his car, leaning into cars to lift articles into or out of them, digging and laying or repairing reticulation or taps, crouching down to work in so doing, lifting a large object with the assistance of another man into a large bin, digging at times quite vigorously, inspecting work and standing talking to people and smoking.
In my view the video tapes do disclose a level of activity by the plaintiff which is significantly greater than that described by him to a number of medical practitioners. As long ago as 1989 Professor Musk reported that the plaintiff claimed to be unable to keep up with others of his own age while walking because of breathlessness. On 10 September 1992 Dr Tarala reported that the plaintiff told him that he found it hard to keep up at work because of chest pain and shortness of breath. On 25 March 1994 Professor Musk wrote that the plaintiff told him that he can only walk about 200 metres slowly and becomes very tired and that he was breathless when washing or showering himself and wanted to lie down all the time. The reports from all the medical practitioners are replete with complaints of this kind.
Having closely watched the video tapes I am satisfied that they demonstrate that the plaintiff is capable of a much greater level of activity than that claimed by him. Against this background I find the views of Dr Skerritt and Professor German puzzling.
The plaintiff's claims concerning the death of his brother and the onset of symptoms of breathlessness
Two further aspects of the history taken by the medical practitioners call for comment. The first concerns the instruction that the plaintiff gave to Mr Burns and Dr Penman that he felt guilty about the death of his brother Walter. Walter, of course, came to Australia before the plaintiff and was much older than him and the plaintiff played no part at all in bringing him to work at Wittenoom.
Counsel for the plaintiff submitted that the reports of Mr Burns and Dr Penman are so obviously wrong that they must have been a misunderstanding but it is difficult to comprehend how such a confusion might have come about.
The significance of this misinformation is not simply that it goes to the reliability of the plaintiff in his evidence. As Dr Penman, who found the plaintiff to be suffering from symptoms of depression said: "guilt is very much a part of depression". Mr Burns also found the information relevant when he said that guilt was one of the factors he took into account in forming his opinion that the plaintiff was depressed.
The reports of Dr Penman and Mr Burns were of course available to Professor German and Dr Skerritt although neither made specific comment linking findings of depression with feelings of guilt on the plaintiffs' part. It is clear that both Professor German and Dr Skerritt relied upon instructions from the plaintiff in making their diagnoses and one important one was that the plaintiff first experienced breathlessness after the death of his brother. This was regarded as significant in the context of a diagnosis of an anxiety condition made by Professor German who said:
"One of the most common sings of anxiety is inability to fill the chest with air, breathlessness, tightness of the chest, people describe it sometimes."
Dr Skerritt also noted in his first report that the plaintiff complained of breathlessness and he stated:
"He attributed the origins of the symptoms in temporal terms to the death of his step‑brother."
Dr Skerritt agreed that breathlessness was a common symptom of anxiety disorders. It was clearly Dr Skerritt's view that the link between a person knowing that a relative who had worked in the same area had died and the manifestation of symptoms such as breathlessness was significant.
It is clear that as with the plaintiff's claim of feeling guilty about the death of his brother, the history given to Professor German and Dr Skerritt concerning the onset of symptoms of breathlessness was not accurate. The notes from the Perth Chest Clinic establish beyond doubt that he complained of breathlessness many years before the death of his brother and of course he continued to work, notwithstanding those complaints.
Psychiatric injury
It is, of course, not inevitable that a person who witnesses the frightening consequences of exposure to asbestos and who is himself exposed to it, will go on to suffer a psychiatric illness, although no one doubts the potential for that to occur. The diagnostic process is a complicated one, involving, at it does, the taking of a history and an examination of an extensive range of considerations.
It is clear that much of the plaintiff's history involves complaints which are more or less subjective in nature. Symptoms such as pain, sleeplessness, lack of energy, loss of appetite, anxious and depressive thoughts and a pre‑occupation with death all depend to a significant extent upon an acceptance of the plaintiff as a reliable witness. All the psychiatrists who gave evidence accepted that in forming their opinions they were dependent upon what the plaintiff told them. Even Professor German, who was perhaps more reluctant than others agreed that an accurate history was important.
In my opinion the absence of any objective evidence to support the plaintiff's complaints in this case is a real cause for concern. In addition, in my view, the evidence of the video tapes, the results of the lung function tests, the notes from the Chest Clinic and the evidence of inaccuracies in the history given by the plaintiff concerning the death of his brother and the onset of symptoms of breathlessness add weight to that concern. Against this background the conclusion to which I have come is that the opinion of Dr Febbo is to be preferred. In my view the plaintiff has not established that he has suffered any psychiatric injury.
Conclusion
In my opinion the evidence does not warrant the conclusion that as a result of his exposure to asbestos the plaintiff has suffered any physical or psychiatric injury. Accordingly the claim should be dismissed.
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