National head of asbestos litigation, Ian McFall, discusses how litigation, treatments and campaigning around asbestos disease have changed since the 1980s.
Ian McFall joined Thompsons Solicitors in 1983, initially working on a range of industrial disease and workplace accident cases for clients across the North East of England, but soon found a growing – and concerning – trend of people turning to Thompsons for support after developing lung conditions caused by asbestos exposure.
Here, Ian talks about the “inadequate awareness and response” of many healthcare professionals to asbestos diseases from the 1980s to early 1990s; unsatisfactory procedures in the courts, and the importance of developing campaigns to ensure the “callous indifference and vested self-interests” of employers and insurers were held to account for their failings.
“It was around the late 1980s that I started dealing with an increasing number of asbestos claims, mostly pleural plaques. Having already previously represented hundreds of people affected by noise-induced hearing loss, I knew that the best way to take these asbestos cases forward was by quickly and thoroughly investigating the work history, circumstances of exposure and medical history.
“I first had the responsibility and privilege to deal with a mesothelioma claim over 25 years ago. The process of the client making contact with Thompsons was rather old-fashioned back then. The details of the new client would be handwritten on an application form for union legal assistance. The information rarely contained much more than a name, address, phone number, job description and the word “asbestos”. At that time, almost all cases involved men with a work history in heavy industry.
“When I made initial contact with a mesothelioma client on the same day as receiving the union form, it would often be the client’s wife who took the call. This would never be an easy conversation, attempting to gain some further information and arrange a home visit with families who were understandably shell-shocked by the diagnosis of mesothelioma and rarely knew what to say. An urgent face-to-face meeting at their home was always offered at their earliest possible convenience
“Remember when there were no mobile phones or Sat-Navs? I would photocopy the directions to the family address from an A to Z street map. The locations were usually in housing estates throughout the manufacturing heartlands of Tyneside, Wearside, Teesside and Cumbria. I would be welcomed into each client’s living room and introduced as “Mr McFall from the union solicitors”. From the outset I asked if it was okay with them if they called me Ian. The families could not have been more hospitable. I remember a lasting sense of humility from being treated like a dignitary. In their neatly decorated homes, the client was either propped up in an armchair or sitting on a sofa, made up as a downstairs bed if he was already too frail to manage the stairs.
“In the quiet, private, presence of the family home there was a palpable tension between the dignified pride of their anxiety and concern for each other and - at the same time - their sense of shock and abject fear of what was happening to their loved one who had suddenly, unexpectedly become so profoundly ill and was deteriorating so quickly. They couldn’t understand why this was happening to them. It was obvious they needed help.
“I started to realise that men diagnosed with mesothelioma were reluctant to reveal the true horror of their pain, suffering and loss of dignity in front of their wives and children, instead telling me that they’re ‘fine’, ‘alright’, ‘okay’ – or a familiar Geordie colloquialism ‘canny’ - while trying to appear determined they were still able to cope even when emaciated, in constant agony and incapable of moving without assistance. Similarly, wives and children, particularly adult daughters, who had become full time, round the clock, primary carers, would not want to discuss the unbearable strain they were under to avoid upsetting their husband/dad.
“I tried to find subtle ways of holding separate conversations with them, sometimes speaking to the wife or daughter in the kitchen to get the full graphic account of how the client’s illness had shattered their lives and then having the same conversation with the client in the living room while the tea brewed. It was almost always the way during those home visits that at some point I would be offered a cup of tea, brought in on a tray with the best china cups on saucers and a selection of biscuits. What may ordinarily have seemed like a token gesture of polite courtesy speaks volumes about the strength, dignity and resilience of those families in the face of such adversity and distress.
“By the mid-1990s, the sheer number of asbestos disease clients being referred to Thompsons meant I stopped handling accident claims and made a transition to specialising in mesothelioma cases. Soon enough, the A to Z street map had become so frayed and creased that I no longer needed it to find my way around because the address of the next mesothelioma clients were in the same housing estates and streets that I’d visited many times already, and would continue to crop up time after time, in the same industrialised parts of North East England.
“As the decade went on, the number of trade union members being diagnosed with asbestos disease continued to increase. Thompsons’ growing reputation as asbestos law experts had reached the healthcare sector who began to signpost sufferers to Thompsons, bringing a new source of clients to the firm. We recruited lawyers to expand the team in order to manage the quantity of cases – leading to the development of Thompsons’ specialist asbestos litigation team.”
Changes to healthcare
“Treatment options and palliative care during the mid-1980s and early 1990s were almost non-existent for mesothelioma patients. As one of the first medical questions would be ‘did you smoke?’ some patients were initially misdiagnosed with lung cancer, this resulted, on many occasions, to a diagnosis of mesothelioma only being identified on post-mortem when the Coroner returned an Inquest verdict of death due to industrial disease.
“Why was this the case? Back then, the NHS service was led by consultants who predominantly were white, middle class, privately educated men, with limited ability to communicate effectively with mesothelioma patients and their families. One particularly blunt consultant told a mesothelioma patient and his wife – who had asked the question of life expectancy – not to ‘bother buying Christmas presents for each other this year.’ Although there were a number of exceptional visionary Physicians at the time they were notable exceptions as, too often among the middle class, male-dominated, consultant-led service, there was an air of shocking indifference.
“During the early stages of mesothelioma, fluid builds up in the lining of the lung to such an extent that it causes pain and breathlessness. One client’s wife described the method of draining the fluid as barbaric. She sat in the treatment room watching her husband as he was undressed to the waist and sat with his bare back facing two junior doctors – one with a large needle, another reading an x-ray – as both would try to estimate the position of the pocket of fluid, then one doctor would pierce the skin and insert the needle. If no fluid came out, they would move the needle and try again. This could take multiple attempts, with no anaesthetic for the patient, before the needle was positioned correctly and the effusion was drained.
“Worse yet, it took some time before the medical profession recognised that, unless the site where the drain began was immediately treated with radiotherapy, the tumour could expand through the site where the drain had been inserted. This would leave patients hunched over in excruciating pain. For them and their families it only added to an already unimaginably harrowing experience.
“There was not much in the way of specialist radiotherapy or chemotherapy care back then either. Patients would be lucky to get packed off with a prescription for pain control such as morphine sulphate tablets which were effective at relieving pain but reduced the client to a ‘zombified’ state the next time I visited them.
The litigation process
“Typically, insurers would delay everything by routinely insisting on detailed evidence to prove each claimant’s full employment history (often dating back to the 1940s) asbestos exposure, diagnosis and financial losses. Insurers were stuck in an incredibly process-driven, short-sighted, tick-box mentality. Their strategy in every claim was denial, obfuscation and delay. Our response was to commence court proceedings at the earliest opportunity, inevitably meaning the cases would proceed towards trial, often settling only a few days before the court hearing or in the corridors of court on the day of trial.
“One issue was that regional courts were too slow. Judges were unfamiliar with the need for urgency. Many mesothelioma sufferers died before their cases were concluded. This not only devastated families emotionally but left many of them financially destitute until the compensation claim could be resolved.”
Improvements and reforms to the law
“A decade of relentless legal challenges ensued from the late 1990s to the early 2010s, with key landmarks including the Fairchild and Barker cases in the House of Lords and the ‘mesothelioma trigger’ ruling in the Supreme Court.”
History of asbestos cases and landmark litigation
Find out more about the history of asbestos by viewing our asbestos timeline here.
“The early 2000s saw much needed and overdue reforms in the court service, with Senior Queen’s Bench Master Whitaker leading a transformational change in the Royal Courts of Justice, dragging the system from an outdated world overburdened with paper bundles, letters and faxes into a modern, streamlined era of efficient communication by email and hearings taking place by telephone, significantly speeding up the litigation process.
“These progressive reforms known as the Mesothelioma Fast Track meant that once a court action was launched, the defendant would be required to ‘show cause’ why judgement should not be entered. If there was no credible defence, judgement was entered against the defendant(s) and the mesothelioma claimant was awarded an interim payment of £50,000 to be paid within 21 days.
“The mesothelioma fast track procedure enabled our specialist legal team to drive cases forward urgently and provide clients with some assurance that that compensation was available quickly. This led to many more mesothelioma cases being successfully concluded during the client’s lifetime if they opted for that choice.”
Changes to the health service
“The health service moved away from an old-school, consultant physician-led approach to multi-disciplinary teams involving specialists from other key medical areas including oncology, radiology, immunotherapy, palliative care, and much more, providing different outlooks to the issues of diagnosis and treatment. The role of specialist nurses was created bringing a much greater awareness of mesothelioma and improving the standard of information, guidance, and support for patients and family members which had previously been lacking.
“One pioneering mesothelioma specialist nurse Liz Darlinson set up Mesothelioma UK. This new network revolutionised support, including a helpline and signposting patients to benefits and help.
“The cutting-edge, current healthcare system for diagnosis and treatment of mesothelioma is now barely recognisable compared to the attitude of hopelessness and primitive forms of investigation back in the late 1980s and early 1990s.”
“Asbestos victim support groups and trade unions have been at the forefront of well organised political lobbying and campaigns to protect and improve the rights of asbestos victims and their families. A number of campaigners played pivotal roles. Their tireless efforts led to further advancements in the availability of welfare benefits and funding for medical research.
“Among those who were most influential is Tony Whitston who set up and chaired the National Asbestos Victims’ Support Groups Forum, during a time when the insurance industry was on a mission to erode the rights of people affected by asbestos diseases.
"The Forum’s campaigning, led by Tony, alongside trade unions, Labour MPs and others, supported by Thompsons, brought about important improvements in the availability of DWP benefits and compensation schemes for mesothelioma sufferers.
"Following the death of her husband Mick from mesothelioma, Chris Knighton MBE established a support network for families affected by the disease in the North East and set up the Mick Knighton Mesothelioma Research Fund (MKMRF) to raise much-needed funding to help improve the available methods of diagnosis and treatment. Due to Chris’s relentless, efforts and the generosity of many who supported MKMRF, more than £1 million was raised. MKMRF also established and funded a tissue sample research facility, MesobanK, which has made a significant contribution towards advancements in treatment to improve the quality of life and life expectancy for those with the disease."
“While there has been a dramatic improvement in healthcare services, treatments, access to support services and the legal system as a whole, much still needs to be done to remove the risks of workers and the public being exposed to asbestos.
“Despite the introduction of law 20 years ago banning the importation, sale, and use of all forms of asbestos, it remains present in the fabric of many buildings constructed or renovated before 1999.
“It is vital that government, regulators, trade unions and everyone concerned with the health and safety of our workplaces and public buildings learn from the lessons of the past and build upon the progress to prevent asbestos exposure to ensure full compensation and the best possible standards of medical support to the victims of asbestos disease.”
To read more about what our specialist team and support groups have to say about the asbestos 20 year anniversary, please click below.