What You've Got Within You

3: Wollongong 2002

3Wollongong 2002

After the team meeting, Vivienne Glosioli returned to her office to think about what experts she should retain for the Henderson matter. She still felt unsettled. The previous week, she and Gary Shaw had visited James Henderson at Wollongong Hospital while he was recovering from surgery. Like many of the firm’s clients, James had been introduced to Shaw & Fletcher by one of the thoracic surgeons who regularly operated on the hapless victims of asbestos exposure. In advance of the meeting, Vivienne had informed the nursing unit manager of the arrangements. The nurse was unfazed by the meeting being scheduled outside of normal visiting hours or to being directed to provide extra chairs in James’s room for the solicitors. Such meetings were commonplace.

James and Jenny looked up in unison when Vivienne and Shaw’s clacketing footfall stopped at the doorway to James’s room. Vivienne watched as Shaw walked in with extended hand. James and Jenny shook it in turn. Vivienne sensed that Jenny had difficulty not being repulsed by Shaw’s appearance. It was a frequent reaction.

“Hello, hello, Mr and Mrs Henderson,” he said. Given Shaw’s size, most people expected a booming bass with nice, round vowel sounds. Instead, they were treated to a high-pitched, vibrating nasal twang.

“My name is Gary Shaw. I am a partner at Shaw & Fletcher. This is one of our associates, Vivienne Glosioli.”

“Very glad to meet you,” James said.

“Thank you. Please call us Gary and Vivienne.”

“Sure. And please, it’s James and Jenny,” Jenny forced herself to say.

“Thank you, Jenny. Do you mind?” He indicated the chairs beside the bed with his eyes.

“No, please sit down.” Jenny looked as though she hoped it would not be next to her.

Shaw motioned to Vivienne to be seated. He then lowered his bulky frame onto a chair. James twisted in his bed so that he could face the lawyers.

Shaw was an ugly man. He had a big, round face the texture of which was like fetta cheese. His cheeks were pocked, cracked and loose. When he moved, the flesh quivered like blancmange. His torso was in the same semi-solid quivering state – its movement under his shirt continued long after he was seated in the chair. He had a high forehead with wispy tufts of sandy hair. Sweat sat in the ringed channels of his jowls as glistening necklaces. He had the air of a man who knew it was to his advantage to sound and appear simple.

Gary Shaw came from a working-class family in the south west of Sydney. He had attended a rough school where most of the girls were mothers by 15 and the alumni comprised drunks, addicts, pushers and thugs. If it were not for his size and an unswerving need to bully, Shaw would have ended up in prison. His peculiar attributes kept his adversaries at bay, allowing him to study hard enough to enter law school. His craving to get on top of others was matched equally by a desire to escape the poverty and stupidity he was born into. Shaw may have appeared big and dumb, but he was a dangerous, explosive man, full of rat cunning and street-smart tricks. It had taken more than hard work to become the senior partner of the largest plaintiff law firm in New South Wales. Shaw had become very wealthy taking on some of Australia’s biggest companies. In the 1990s, he had won important test cases against V&L and Henry King Industries. These victories led to a constant stream of asbestos victims knocking on his door. This work kept teams of lawyers busy throughout Australia. The principal practice, however, was in New South Wales.

In its infinite wisdom, the New South Wales government had set up a specialist tribunal to hear and determine proceedings for asbestos-related diseases. The epidemic of cases of mesothelioma, asbestosis, lung cancer and asbestos-related pleural disease had led to hundreds of cases being launched in the District and Supreme Courts in the 1980s. They were overwhelmed. In order to unclog the courts, the Asbestos Diseases Tribunal was established. It was given the same jurisdiction as the Supreme Court without what was thought to be any of its intellectual firepower. It consisted of six judges, who heard nothing other than asbestos disease cases. As a consequence, they built up specialised knowledge about the medical issues associated with asbestos diseases. Because many of the plaintiffs were extremely ill or dying, the Tribunal also had devised a number of ways to expedite the hearing of proceedings. In fact, on occasions, a writ could be served on a defendant on a Friday and evidence could be taken from a dying plaintiff on the Monday. The aim was to permit a victim to know the outcome of his case before he died. He could then die in peace knowing his family would be financially secure with an award of damages. In such a system, the practitioners developed considerable expertise in the management of asbestos disease litigation. In the Asbestos Diseases Tribunal, Gary Shaw was king. And he knew it.

“Vivienne here will be looking after your case, James. She is a very experienced litigator and has already got some pretty big judgments under her belt.” James and Jenny turned to acknowledge her. She gave a polite, expressionless smile. “We see a bright future for Vivienne at the firm. You will be in very good hands. I, of course, will be overseeing everything and will always have my finger on the pulse of your case. Does that sound acceptable to you both?” They nodded. “Good, good. Now, what we need to do is take a very detailed statement from you, James. This will form the basis of an affidavit we will need to prepare down the track. The affidavit may be used at trial if it comes to that.”

“What do you mean ‘if it comes to that’?” Jenny asked.

Shaw took the question in his conversational stride. “Good question, Jenny. Most of the asbestos disease cases we handle settle before trial, some as late as at the door of the court. You see, we’ve already run the big test cases against the asbestos companies and, frankly, after the walloping they received, they’re a little g*n-shy about going to court. So, once Vivienne has taken a statement, we should be in a good position to advise you about your prospects. Ninety-nine out of a hundred cases settle. We have a very good track record. The best in fact.”

“I’ve had a fair amount of exposure, Gary. I’ve worked at Disaster Gorge, in King Industries’ Riverwood factory, and I’ve been a builder for years. Does that sound like there might be a case?” James asked, sounding tired of Shaw’s self-promotion.

“Well, James, that sounds fairly typical, I’m afraid. I really don’t foresee too many problems in your case. I would hope to have it all wrapped up before Christmas. Obviously, we’ll know more after a detailed statement, but at first blush, I’d say this would be pretty seamless. The only hassle will be that you may have to be examined by a number of doctors retained by both you and the potential defendants. That’s standard practice. The rest of the preparation, you just leave to us. We know which doctors are likely to provide favourable opinions, who are plaintiff-friendly so to speak. Vivienne will go through it all with you. It may take bit of time, however. Vivienne may need to return tomorrow to complete the statement and all the paperwork. She’ll probably stay locally to ensure it’s done.

Now, I should also mention what your case will be about. It will be in negligence. What that means is that you will need to prove that the particular defendants breached their duty of care to you and that that breach caused you to develop mesothelioma. Sounds pretty simple, doesn’t it? It should be. We will argue on your behalf that they knew about the dangers of asbestos but did nothing to protect employees and customers from exposure. They should have insisted on masks, exhaust equipment, warning labels, or stopped using asbestos altogether. You follow? Good, anyway, Vivienne will run through it in more detail after she takes your statement.”

Jenny was concerned that all the questioning would tire James, but he was keen to have the initial interrogation over and done with as soon as possible. Jenny accepted that was probably the safest course. Vivienne could tell she just wanted the thing over, and Shaw gone. “That’s okay by me.” James said. “Will you need Jenny to be here as well?”

“No, she doesn’t need to stick around for this. It will be terribly boring.”

“No, no, I’ll stay,” insisted Jenny, staring straight at Vivienne with determination.

“Well, I don’t suppose you have any first-hand knowledge of James’s work, so I think it will be fine. You know, we can’t have two witnesses on the same issue talking to us at the same time. Wouldn’t be proper.” Shaw chortled to himself, the movement liberating a bead of sweat from his chin, which trickled onto his white collar. “Now, if there are no more questions, I’ll be off. I have some other business to attend to.” Shaw again shook James and Jenny’s hands. “Please do not hesitate to telephone me if you have any questions. Otherwise, I’ll leave you in Vivienne’s capable hands.” Shaw hauled his body off the chair. His gut wobbled beneath the thin film of his silk shirt as he steadied himself on his feet. Vivienne would have liked to see a singlet under his shirt. He turned to her as he left. “I’ll expect a full debriefing later, Vivienne,” he said. Her eyes revealed a glimmer of revulsion at the prospect. She then turned to James.

“Now, James, before I get started, I need to explain a few administrative things. I will need to have your authority to contact your treating doctors and obtain information from them. You will need to sign a few forms I have prepared to enable me to do this. I will then give you an overview of the fees we will charge. Most of what I will say will be in a costs agreement you must sign before we can act for you. Please rest assured that you won’t have to pay us a thing unless you win your case. It’s what is known as a ‘no win, no fee’ costs agreement. After we’ve been through that, I’ll start on your statement. Are you okay with that?”

“Sure, just so long as I can stop for a toilet break along the way.” James grimaced as he chuckled at his rather poor joke. Jenny patted James’s hand and stroked his forearm. Vivienne hoped the relationship would improve with time. It had to.