Though reeling from its initial loss in the Wally Simpson case, Slater and Gordon took heart from a vital test case win in Melbourne. In a stunning verdict, Wittenoom victim Klaus Rabenalt was awarded $426,000 damages for negligence, plus $257,000 exemplary damages. It was the first verdict for a former Wittenoom employee, and the first time in a British or Australian court that a company had been punished to such an extent for reckless indifference to the health of its workers.
The first victory for the new Perth office came in the case of Colin Watson, a wharf worker who loaded asbestos in the 1950s. In 1987, burdened with bottled oxygen and a fatal diagnosis, he approached Slater and Gordon to sue the Minister for Transport.
In the first successful WA claim by an asbestos sufferer, Colin was awarded $461,800. An appeal, mainly on the ground that the plaintiff’s injury was not foreseeable, rebounded in the government’s face. The WA Full Supreme Court ruled that damages be increased to $567,800.
In early 1988, with momentum building, the Perth office took up the causes of Wittenoom veterans Peter Heys and Tim Barrow. Both men had advanced mesothelioma, with Heys dying while his case was still being heard.
On August 4, 1988, Justice Barry Rowland handed down a devastating judgement against CSR. He found that the WA Public Service and CSR had been aware of the dangers of asbestos in the 1930s and ‘40s. It was reasonably foreseeable, he said, that workers ‘were at risk of contracting a serious disease.’
Peter Heys’ family won $116,000 damages. Tim Barrow, awarded $216,000, died two months later. The huge costs of the case, nearly $600,000 on the plaintiffs’ side, naturally went against CSR.
Source: Financial Review, Thursday 22 September 1988
The tide begins to turn
At last Slater and Gordon’s efforts seemed to have won considerable court approval. The verdicts set a precedent for the settlement of hundreds of other cases in WA.
In September 1988, CSR made its first individual offers of settlement, to four men dying of mesothelioma. In a series of face-saving newspaper advertisements, the company said the remaining claims ‘should be settled speedily on humanitarian grounds.’
There were wry smiles at Slater and Gordon and the Asbestos Diseases Society, who had been trying for years to get CSR to the negotiating table.
On April 5, 1989, CSR and the WA State Government Insurance Commission (SGIC) signed an unprecedented open-ended deal, committing the two organisations to share in compensation payments to all Wittenoom workers who suffered asbestos-type illnesses in the past or future. It was expected that about $20 million would be paid to 100 survivors who worked at Wittenoom up to 1958, with $30 million to those who worked there after that time.
But in private negotiations, CSR’s lawyer’s made nonsense of the glowing promises. Tempers flared with Slater and Gordon of the firm view that the pittance offered by the company was in no way acceptable reparation for victims’ pain and suffering.
Slater and Gordon called a media conference, declaring the CSR lawyers’ offers to be ‘not in good faith at all’. But despite the renewal of adverse publicity for CSR, only about 50 claims could be settled on a reasonable basis.
Left with several difficult cases, Slater and Gordon sought to settle them in one hit. The Firm launched proceedings in Perth, Melbourne and Sydney on one day, forcing CSR to confront the enormity of the problem.
In June 1989, Slater and Gordon proposed to CSR’s lawyers a ‘global settlement’, based on resolved Wittenoom claims, to establish an average settlement figure. The alternative of pursuing every individual claim through the courts would have been a disaster for CSR.