What You've Got Within You

10: Sydney 2002

10Sydney 2002

Fraser stopped what he was doing and read the statement of claim given to him by Morahan together with the expert reports accompanying it. D1, V&L. D2, Henry King Industries. They had been sued so many times before that Fraser imagined receipt of a fresh writ barely raised an eyebrow at their head offices. No sooner were writs served than they were being faxed to the solicitors they retained on an on-going basis to act for them in asbestos litigation. V&L and Henry King Industries were large, important companies. Their directors, naturally, considered it appropriate to instruct large, prestigious law firms. Henry King used Jacksons. V&L retained Berry Hall. The boards of both companies believed their respective law firms were the best in the land. As Fraser well knew, the fact was that the law firms were indistinguishable. Both occupied multiple floors in steel and glass towers on Phillip Street. Both had almost 250 partners throughout Australia. Both plundered the university law schools for the brightest students. And both sucked every single molecule of creativity, sympathy and humour from its employees. It was only then that they would be ready for partnership. Fraser knew the game. He believed he could play it without losing anything of himself. He was also aware of the historical bond between Henry King Industries and Jacksons.

Jacksons had always enjoyed a very strong association with Henry King Industries. Its former directors, Gideon and Gordon King, who decades earlier were responsible for the company’s metamorphosis into a major national manufacturing enterprise, had been good friends with the son of the founding partner, Robert Jackson. They lived in Vaucluse and their children had gone to the same private schools. Jackson had served on the board of trustees of two schools with one or other of the Kings. Although Jackson and the Kings were long gone, the connection between the law firm and the company remained solid. The current King Industries chairman, Terry Abrahams, was a firm friend of Paul Morahan, the senior litigation partner. They golfed weekly at the Royal Sydney Golf Club, enjoyed watching the cricket from the members’ stand of the Sydney Cricket Ground, and liked to tag team at the swank brothel they frequented in East Sydney with several well-known politicians. Fraser hoped one day to have the same pull with the company and with other big corporations in Australia. He saw himself as a future managing partner with directorships in several top 100 companies. One big win for Henry King against the odds was all it required for him to be on his way. The client would forever be grateful and Morahan’s influence would be undermined.

Bruce Fraser had been waiting for the right mesothelioma case to test a theory he had on legal causation. Henry King was paying out millions of dollars every year to plaintiffs and their lawyers. There was no end in sight. Most cases involved asbestos exposure decades in the past. The plaintiffs often had different periods of exposure with a variety of employers. Frequently, Henry King was only responsible for a proportion of a plaintiff’s overall exposure and yet it was usually the only defendant sued or one of the few sued. Cases were settled for almost full value without any discount for the fact that asbestos exposure from other sources was also responsible. It was simply assumed that the Henry King exposure contributed to the development of a plaintiff’s mesothelioma and that that was sufficient to sheet home full liability. The company was basically carrying the can for all those “empty-chair” defendants – companies not sued (usually because they had gone bankrupt), even though they were responsible for much of a plaintiff’s asbestos exposure. To Fraser’s black letter law mindset, this was wrong. It didn’t matter how delinquent King Industries may have been in managing the asbestos problem (and he was not convinced about that either), it should not have to pay for everyone’s mistakes.

King Industries was no lone ranger when it came to ignoring the dangers of asbestos. V&L Ltd, the company that mined the blue asbestos at Disaster Gorge, and the Commonwealth and State governments were in it up to their necks.

Sure, mesothelioma was a ghastly disease, but that didn’t mean King Industries had to bend over and take it up the tail pipe all the time. The plaintiffs had to prove their cases. They weren’t all deserving. Far from it. Their stupid, lazy lawyers had to do some work instead of holding their money-grubbing hands out for exorbitant fees. Fraser wanted the circus to stop.

He had been researching the epidemiological studies on mesothelioma. There were quite a few. He had been analysing the numerous expert reports on causation that crossed his desk. He was not convinced any scientist knew how a mesothelioma arose or which asbestos exposure out of many could be incriminated in an individual case. All the scientists knew was that each exposure increased the risk a person might develop mesothelioma in the future. That risk varied depending on the type of fibre to which a person was exposed and how long ago the exposure occurred. Blue asbestos was worst, particularly if it was Disaster Blue and occurred early in a plaintiff’s employment. Fraser wanted to test the law on causation by arguing that it was impossible to implicate exposure to Henry King Industries’ products as the cause of a mesothelioma where there were multiple periods of exposure with one of the earliest exposures being to blue. He did not think it was fair or even scientifically valid to hold Henry King Industries responsible for damages when it did not cause all a plaintiff’s exposure to asbestos. He hoped the courts would be attracted by this argument. He was convinced he was correct at law. If he won such a case, Henry King Industries would save millions of dollars in payouts. And they would be forever in his debt.

Each time he read a new statement of claim, Fraser hoped it would be the long-awaited test case on causation. Was James Henderson the case he was looking forward? The pleadings referred to many years’ exposure over different periods and employment situations. There was exposure to blue asbestos at the Disaster Gorge mill, the Henry King asbestos cement factory and for decades of work as a builder undoubtedly using all manner of asbestos-containing building products. This was promising. He turned to the expert reports. Henderson was originally from Scotland. The experts referred to asbestos exposure in Scotland as a fitter and turner before arriving in Australia but dismissed it as irrelevant. Fraser quickly read between the lines. This sort of subterfuge may appear clever to the clods at Shaw & Fletcher, but it was not fooling him one second. He knew from the many cases brought by laggers, boilermakers, fitters and turners and shipyard workers he had defended on behalf of Henry King Industries that the Scottish asbestos exposure would have been heavy. It was absurd concentrating on the Australian exposure and glossing over Mr Henderson’s Scottish exposure. It was being deliberately underplayed. The details of that exposure would have to be teased out by the respiratory physician he would engage to examine Mr Henderson. Given the likelihood of this early, heavy exposure together with early contact with Disaster Blue and the disparate work history in Australia, Fraser began to believe that the James Henderson case could be the perfect vehicle to test his views on causation.

But if he were going to run a test case, he would have to get the other defendant’s solicitors to see it the same way. In the past, that had proved difficult. V&L’s solicitors, Berry Hall, saw the history of asbestos exploitation in Australia somewhat differently from Fraser. It was a reconstruction of history that held V&L blameless, and Henry King culpable. Fraser found it hard to fathom. Over the years acting for Henry King Industries, he had read thousands of discovered documents and spoken to many retired or dead employees of the two companies. He had prepared statements, interviewed experts, uncovered revealing documents tucked away deep in government archives or public libraries. He knew all about V&L’s grubby past. In his mind, it had a lot to answer for.