Psychiatric Injury to Australian Asbestos Worker
Overturning the District Court judgement of Judge Michael O'Sullivan, the full Court of the Western Australian Supreme Court ruled that plaintiff Arthur Della Maddelena suffered a psychiatric injury caused by exposure to blue asbestos whilst employed at the Wittenoom crocidolite mine even though he has not contracted asbestosis, mesothelioma or another asbestos-related physical injury. The sixty-one year old father of two lives in a state of chronic fear having watched 39 of his former Wittenoom workmates, including his brother Walter and his cousin, die from asbestos-related disease. Mr. Della Maddelena is one of three surviving members of a 42 strong crew of Italian immigrants employed at Wittenoom from 1961-1966; 14 of the deceased came from Mr. Della Maddelena's tiny home town of Montagna.
The anxiety, depression, sleeplessness and panic attacks which the plaintiff suffers from have made him unable to work: “I (am) always thinking,” Mr. Della Maddelena said “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 of, not even a dog you would see dying like that. It's very, very painful.” Fear of contracting an asbestos-related disease is not unusual according to Robert Vojakovic, President of the Perth-based Asbestos Diseases Society of Australia:
“Forty per cent of our time, maybe even more if we can afford it, is taken up with counselling and speaking to these people, trying to alleviate their fears, trying to put them in touch with a doctor, or just talk to them and… assist them to live their lives in a more positive manner.”
Evidence from psychiatrists that the plaintiff suffered from a seriously debilitating condition was accepted by Justices Christopher Steytler, Anthony Templeman and Christine Wheeler who have now referred the case back to Judge O'Sullivan for assessment of damages. Lawyer Tim Hammond said his client who had, prior to his illness, worked as a gas fitter would claim for 13 years of lost wages plus damages for pain, suffering and medical expenses. It is estimated that the claim could be in the “hundreds of thousands of dollars.”
Although this judgment sets an important Australian precedent, it is unlikely to “open the floodgates,” says Hammond:
“The facts in relation to this claim were really quite specific and we're looking at situations where it is such a unique circumstance, with so many of his friends and loved ones dying from the same disease, a huge exposure to asbestos and a very recognised diagnosable condition which was supported by two eminent psychiatrists.”
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October 28, 2004
