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Mesothelioma Lawyer - Article - Retrial Ordered for Asbestos Miner

Posted on Feb 02, 2006 | www.theage.com.au

Retrial Ordered for Asbestos Miner

February 2, 2006 - 12:09PM

The High Court has ordered a retrial for a former asbestos miner, who is attempting to sue CSR and Midalco for allegedly giving him asbestosis and depression through negligence.

Arturo Della Maddalena, worked for CSR and Midalco at the asbestos mine and mill in Wittenoom in north-western Western Australia for a total of three and a half years from 1961 to 1966.

The 63-year-old alleged that during the course of his work he was exposed to asbestos causing him to suffer asbestosis, pleural disease, respiratory degeneration, pain and breathlessness, and psychiatric injury.

At the age of 18, Mr Della Maddalena had followed his older brother Walter from Italy to work at the mine at Wittenoom. Walter died of mesothelioma in 1988.

Two years later Mr Della Maddalena started experiencing shortness of breath, chest pain and tiredness and specialists found asbestos in his lungs.

In the lead-up to his WA District Court hearing, lawyers for the mining companies kept Mr Della Maddalena under surveillance and filmed him for 150 hours.

Eighty-two minutes of the footage was tendered during the hearing.

The tapes showed him doing activities which were allegedly inconsistent with breathlessness or chest pain.

Psychiatrists gave evidence during the hearing that he was suffering from a major depression associated with significant anxiety arising from concern about the effects of asbestos exposure.

His own two psychiatrists did not change their diagnosis after watching the tape.

But a psychiatrist retained by CSR and Midalco, Dr Salvatore Febbo, said he changed his mind after watching the tape as he believed Mr Della Maddalena's account of what he could physically do was unreliable.

WA District Court Judge Michael O'Sullivan agreed with Dr Febbo and dismissed Mr Della Maddalena's claim, saying the evidence did not show he was suffering any physical or psychiatric injury.

Mr Della Maddalena appealed to the full court of the WA Supreme Court which ruled he did suffer a psychiatric injury.

The companies appealed to the High Court which ordered, by a three to two majority, a retrial.

During the hearings it was revealed that nine of the 13 people who came to work at the asbestos mine at Wittenoom with Mr Maddalena from his village in Italy died from mesothelioma.

Mr Della Maddalena's lawyer, Tim Hammond, later said the High Court's decision did not represent a defeat for his client, who would continue his fight for justice.

"Mr Della Maddalena has had an extremely difficult time. He is now one of only a few of his countrymen who made the journey from Italy to work in Wittenoom and have not succumbed to the deadly dust," Mr Hammond said.

"He is determined to see this through."

© 2006 AAP

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