Foreword

Foreword by Robert Vojakovic AM JP

It is a privilege to contribute a foreword to the story in which the struggle against injustice brought together men of courage and determination like Liborio Napolitano.

Exposure to asbestos at Wittenoom has had an enormous impact on the health of all Australians, particularly Western Australians. Western Australia now has a higher rate of malignant mesothelioma than any state in Australia or elsewhere in the world for which mortality statistics are available. These statistics are a result, not only of disease in the workforce of Wittenoom but in numerous people along the line of transporters, manufacturers and users, as well as the general population who have been exposed to the most potent cause of malignant mesothelioma that is known (apart from Turkish erionite). Faced with this threat of a uniformly fatal disease coming on many years after even short periods of exposure, the Wittenoom former miners and residents have organised themselves and formed a very effective support group called the Asbestos Diseases Society of Australia Inc. (ADSA) which has successfully mounted legal actions against the asbestos industry and various government instrumentalities.

It has been revealed by the ‘Business Sunday’ programme (October 1988) that from the time of the Bulletin articles about Wittenoom in 1974, that CSR was worried about the litigation consequences of its Wittenoom years. The panic that ensued led to adoptions of strategies that included silence in not responding to legitimate requests for information, diversion and propaganda in the form of the Wittenoom Trust, and, most shamefully, embarking upon strategies to avoid facing victims in the Courts. The low point of this litigation strategy was in accepting the advice from Mr Rothery of Freehill Hollingdale and Page in 1977 shortly after receiving the first writ from a former Wittenoom worker, Cornelius Maas. This advice, constituting a refusal to admit liability, and obfuscation and delay, seems to have guided CSR’s conduct for the next 17 shameful years. Dozens of asbestos victims died without receiving adequate compensation for their dependant families as a result of this strategy.

The documentation that CSR made available to the second former Wittenoom worker to seek compensation, Mrs Joan Joosten (after whom the ADSA’s premises in North Perth, Western Australia were named) was pitiful by comparison with the many documents, some critical in eventually fixing CSR with liability, that were forced from CSR in later actions.

Throughout the 1980s, all the while knowing the force of the case against CSR, and the likelihood of a finding of negligence if the case ever got to trial, vast sums of money were spent on strategies to discourage potential plaintiffs. The death of Rino Pedrotti, without having had his day in Court in 1985, is but one example of this. CSR was assisted in their strategy for a long time, by the shameful failure of the State of Western Australia to locate and make available its files on Wittenoom, which included such notable documents as the late Professor Eric Saint’s telling 1948 correspondence.

CSR was also assisted by some in the medical community who saw it as a personal crusade, or perhaps a matter of avoiding the consequences of professional failure, to assist CSR in seeking to avoid liability.

Then, in 1988, these barricades came crashing down. Firstly in the case of Rabenalt in the Supreme court of Victoria where a dying former Wittenoom miner was awarded the first award of punitive damages against an Australian company in an industrial accident claim which demonstrated the Court’s abhorrence of what the Full Court of the Victorian Supreme Court on appeal called ‘the continuing conscious and contumelious disregard’ for the right of the workers at Wittenoom to a healthy workplace.

Then, in August 1988 came the judgement of the Supreme Court of Western Australia in the claims by Time Barrow and Peter Hays. That this case is the longest ever in the history of the Australian civil Courts is not a matter for any pride, with the tragic death of Peter Heys during the trial, which left a young family destitute. The failure by CSR to pay the Heys family general damages to which Peter Heys would have been entitled during his life, and then to recover from Mrs Heys the worker’s compensation paid to Mr Heys, will always ensure and attitude of profound contempt of CSR by those who are aware of the circumstances, and provide a significant motivation for a continuing campaign against the company.

the Barrow/Heys judgement, of course, found that CSR itself, as well as its subsidiary ABA were liable to the workers at Wittenoom. Indeed the judgement of Roldand J left no room for doubt as to the extent of the control exercised by CSR over the Wittenoom operations.

Thereafter, until 1994, the only issues that CSR forced to Court, were issues relating to payment of damages, in several of which cases (Jongen, Coulthard, Bouwhuis, Napolitano) CSR suffered crushing defeats, the amounts being awarded by the Courts being significantly above any offer made by CSR.