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| Things to Know It would have been better if the story of Solid Air had never had to be told, but with so many millions of people afflicted by asbestos-related diseases, I had no choice. In researching the story, I found that all the parties concerned claim they are engaged in the pursuit of justice. But the hidden truth is that individual victims can never understand the scale of the forces ranged against them. The nature of the system is such that claimants - already incurably ill and worn out by the process - face huge pressure to settle out-of-court, thus preserving the status quo. Fundamentally it is this absence of justice that Solid Air challenges.  In fictionalizing the asbestos issue I hoped to give voice to the tragedy at the core of the story – that the system of compensating the afflicted is deeply flawed. But I also knew it was not enough to expose injustice. I also had a responsibility to imbue the issue with humanity, sensitivity, and an authenticity of feeling. In writing the screenplay I had to distill the bigger picture into the personal. Solid Air deals not only with the issue, but with those less tangible aspects of human behavior – of how it is not always possible to express love for each other. That's what the story is really about. What is asbestos?
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| The previous quote was used in Tommy Gorman's book 'Asbestos: the Unwanted Legacy'. Tommy is an occupational disease worker and an active campaigner on asbestos-related issues. The setting for Solid Air is Glasgow, in Scotland. This city has statistically the worst record for asbestos-related disease in the United Kingdom. An industrial history of heavy engineering – shipbuilding, boiler-making, construction of power stations – resulted in the widespread use of asbestos throughout the 20th Century. Asbestos isn't man-made, but a group of naturally occurring crystalline fibers mined and used for the last 100 years. Peak use was in the 1970s. There are two main forms of asbestos – serpentine and amphiboles. Serpentine fibers are curly and pliable and there is only one type – chrysotile. This is the most commonly used form of raw asbestos. Amphiboles are thin, rod-like fibers, of which there are five main types – crocidolite, amosite, anthrophylite, tremolite and actinolyte. Amphiboles are considered the most carcinogenic, but the more commonly used chrysotile fibers have also been associated with malignant mesothelioma, the cancer associated with asbestos exposure. The three most important types of manufactured asbestos are blue (crocidolite), brown (amosite), and white (chrysotile). Those at risk from exposure are persons engaged in mining the ore, manufacturing asbestos products, lagging, spraying, construction, demolition, even laundering of asbestos worker's overalls or residents in the neighborhood of asbestos working. However, none of us is can be free from exposure. Reports on the 9/11 attacks on the World Trade Center in NYC have largely ignored the fact that asbestos was used in the construction of the towers, the dust from which hung in the New York air for weeks following their collapse. The effects of this catastrophe may not be known for decades. |
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| What are the diseases? The most common disease caused by asbestos exposure is asbestosis, a fibrosis or scarring of the lung tissue, which decreases the lung's ability to pick up oxygen from the bloodstream and drop off carbon dioxide. Further, one's chances of developing a tumor or cancer is five times greater than normal if exposed to asbestos. Manifestations may take 20 years or more to appear. A patient with asbestosis will experience the following symptoms: • shortness of breath – occurs with progressively diminishing levels of effort as the disease becomes worse.None of these symptoms are specific but asbestosis is a chronic progressive disease, meaning that once the symptoms start, they do not get better. There is no cure for asbestosis. The treatment involves limiting further complications of the disease and treating its symptoms. Shortness of breath is treated with bronchodilators that open the bronchial tubes to allow passage of air. Patients may also receive supplemental oxygen. Respiratory treatments that remove secretions from the lung through drainage may also be used. Mesothelioma is an aggressive, malignant tumor of the lining of the lung or abdomen, the latter being less common. The disease is significantly related to exposure to asbestos, especially the blue and brown varieties, though there is no safe threshold of dose below which there is no risk of asbestos related disease. |
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| Although mesothelioma is fairly uncommon, by the time the symptoms appear – the typical age at diagnosis is 50 to 70 years old - the average survival time is only one year. The 3-year survival rate is 10% and the 5-year survival rate is only 5% of cases. During the early stages of asbestos related disease, detection is by chest X-ray, which can reveal tiny nodules in the lung. Further, there may be a history of coughing and breathlessness and sound in the chest is detectable with a stethoscope. Lung function tests may be helpful, but usually not until the late stages of the disease. Because the symptoms develop so slowly, exposure may have begun so long ago that the patient may not even recall the event. Breathlessness occurs first and progresses as the lung loses its elasticity. There may be little or no cough and chest pain seldom occurs. The individual becomes weak and distressed on effort and, eventually, even when resting. Regression of the disease is rare. The disease may remain unchanged, but it is generally slowly progressive due to accumulating damage caused by asbestos fibers in the lung. Shortness of breath becomes more pronounced, eventually interfering with the ability to carry out everyday tasks and the individual may require oxygen. The end result is failure of the lungs and eventual heart failure, resulting from stress. All of which is of little help when pursuing a personal injury claim against your former employers for their malpractice. This is particularly so since, in a civil case, the burden of proof lies with the claimant, and not the defendant. The following section is drawn from an article written by James Kelman, the writer and active campaigner on asbestos issues. He sent me the piece, which I was unaware of, though already having written two drafts of Solid Air. Needless to say I was astonished at the similarity to the cases I had based my script on, not least my own father's. Kelman's damning account of the case of Pat McCrystal is representative of so many cases it's worth excerpting here, not least because it puts a human face on the issue. |
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Scottish Law and the Victims of Asbestos The case of Patrick McCrystal illustrates the absurdity of the concept of 'justice' for suffers of asbestos-related industrial disease under Scottish law.When McCrystal was diagnosed with mesothelioma he was given four months to live; he was fortunate to be alive when his claim was finally settled six months later. In fighting for compensation, however, from those responsible for inflicting him with a progressive, ultimately terminal illness, McCrystal's life and imminent death was settled in a behind closed doors out-of-court financial deal between his legal representation and that of the Defenders. The Defenders had accepted liability, establishing that some of the most illustrious Glasgow shipbuilding names had exposed their workforce to the deadly fiber and that they did so knowingly. Thus there was 'no case'. Even so, attempting to take his case all the way into court to obtain a definitive judgment proved impossible; McCrystal felt he was browbeaten into the financial settlement by his lawyers. Specifically, his own senior Counsel threatened to resign from the case if McCrystal did not accept the cash offer. McCrystal was rendered powerless by what he described as 'legal blackmail'. McCrystal rejected two initial offers on his life amounting to some $33,000. One week before his scheduled court appearance the offer was suddenly increased to $75,000. He rejected this and again stressed to his lawyer that the money was immaterial; he sought 'justice' rather than financial compensation. He intended that the full guilt of his former employers would not only be revealed in public but become subject to some form of court ruling that might aid other asbestos victims. His fight was not simply on his own account but those of thousands of workers who suffer, and will continue to suffer – a fate similar to his own. It was evident that those professionally involved were unable to grasp the point. It was explained to him that civil actions were only ever about money. McCrystal remained adamant. |
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| McCrystal did mention in passing that there had been a full six months in which this business could have been conducted. In view of his fast deteriorating physical condition coupled with the current psychological stress, he was not in the best state to deal with it at this late stage in the proceedings. On the morning of his scheduled court appearance McCrystal’s lawyer again insisted that he should settle for the cash offered. McCrystal replied that he was determined on 'going to court'. Negotiations now moved up a gear. His lawyer impressed upon him that the sum offered was extremely good and if he went through with the court hearing it was likely that the 'in-court' figure would be substantially less because of deductions that the Defenders could insist upon. McCrystal was further advised that the Defenders were not too enamored of the media interest in his case and that such public interest might prejudice his case. They did not, however, explain how this interest might lead to the judge to find against him. McCrystal of course declined the offer. For six months he had prepared for court and he would go through with it come what may. This in spite of the tremendous stress he was suffering, not least because of the effects of his fast deteriorating physical condition. His lawyers departed for further consultations. When they returned they gave him their ultimatum. Unless the final offer of an 'out-of-court' settlement was accepted his senior Counsel would withdraw from the case, leaving McCrystal unable to continue. McCrystal was obliged to concede defeat. Like all cases before his, he had failed to secure a judgment from the court. Without this judgment no precedent could be established that would secure an equitable route to compensation for future claimants. |
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| This in spite of the fact that employers had been aware of the deadly effects of asbestos exposure for decades. The British government itself was aware of the terrible dangers. As early as 1898 factory inspectors were expressing concerns about 'the evil effects' of asbestos dust. Only ten years later a Parliamentary Commission confirmed the first cases of asbestos deaths in factories and recommended better ventilation and safety measures. As far back as 1929 the world's largest asbestos corporation, the US corporation Johns Manville, was served with writs by asbestos victims. The claims, however, were settled 'out-of-court', bound by 'secrecy orders'. In Passing, by James Murdoch (2000) Hello Jack! Want a lift up Kilbowie Hill? |
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The Case of Charlie Coyle Again, I'm grateful to Tommy Gorman who kindly gave me a paper he had written for the Sourcebook of Asbestos Diseases. It concerns the case of Charlie Coyle, an asbestos victim. A worker at Newall's Insulation (later Turner and Newall, my father's ex-employers), Charlie Coyle's case is an early example of the employers playing the system for all it's worth, demonstrating their utter contempt for their employees.Rather than reproduce Tommy Gorman's text in full, an abbreviated version was included in another invaluable book, Lethal Work: A History of the Asbestos Tragedy in Scotland, written by Ronald Johnston and Arthur McIvor, who also kindly took the time to discuss the asbestos issue with me. "In Scotland, shipyard workers were particularly at risk of contracting asbestos-related disease, and a recurring theme in the evidence is the callousness with which victims and their families were treated by employers and the legal system. The case of Charlie Coyle is an example. Coyle worked for Newall's Insulation - the largest UK asbestos thermal insulating contractor – as an asbestos sprayer between 1945 and 1954. In 1954 he was diagnosed with advanced pneumoniconiosis and suspended. He then took up a legal case against Newall's for compensation for negligence. The solicitors for Turner & Newall (the parent company and biggest asbestos manufacturer in Britain) fought the case quite ruthlessly – employing delaying tactics, denying liability and shedding doubt upon the extent of the victim's incapacity. At that time, Scottish law decreed that if a claimant died, the case virtually died too, so the company solicitors knew exactly what they were doing, informing Turner & Newall: The man has a very poor expectation of life and if he does succumb the claim will not be any more expensive, and without his evidence the solicitors will be in greater difficulties. In short, I do not think tactically we have anything to lose by leaving the matter in abeyance. |
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| "With a relatively inexperienced solicitor representing Coyle, the process was allowed to be strung out for over a year. In the event, Charlie Coyle died in November 1956. T&N's solicitors then pressurized Charlie Coyle's solicitor and widow into accepting an ex gratia payment of £500 in a final out-of-court settlement with the company officially refusing to accept any liability for Coyle's death. 'A hard fight' was threatened if the case went to court. £500 was a miniscule price to pay for a man's life, cut short at the young age of 48. Had the case gone to court when Charlie Coyle was still living, it had been estimated that the settlement would have been nearer to £4000. Not surprisingly, T&N expressed their satisfaction with such a favorable outcome." With cases nowadays often taking more than five years to reach an outcome, this strategy of death by delay has now become one of the most powerful weapons in the Defenders' armory, drastically limiting the scope for sufferers to achieve restitution. 'If they say it's not about money, it's about money' I use the HR Mencken quote in the screenplay because essentially that's what civil cases are all about. Putting the line into the mouth of Douglas, the Senior Partner at the fictitious law firm of Bailey Robbins, suggests where his – and the legal profession's - concerns truly lie.The amount of money paid in compensation to asbestos victims en masse is increasing year-on-year as more cases come are contested. Not that the average settlement is disproportionately large anyway; it's been estimated that claims are undervalued by 90% and that the main beneficiary is the legal profession itself, who receive some 60% of all compensation paid out by insurers. But regardless of who benefits, pay-outs are impacting on big business. In recent times insurers such as Chester Street Holdings have filed for insolvency. However, it is alleged that, in fact, the amounts ring-fenced for asbestos claims have been siphoned off through a process of disincorporation; certain parts of a company ceased trading, but its assets were redeployed to other parts of the company. |
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| Lloyd's of London, as reported by Lisa Buckingham in the Guardian newspaper in February 2000, was subject to its own investors filing a lawsuit again them - known as the Jaffrey case - accusing the insurance company of fraud because of a failure to disclose that the company was facing billions of pounds in asbestos claims. The background to the story was that Lloyd's was owed £370m by those individuals - names - who joined a market offering magnificent tax breaks for the most affluent but who, in exchange, had to accept unlimited liability. A former chairman of the market used to illustrate the point to new names by making them sign a blank check which he would then fill with in with enough zeros to make their eyes water. The Jaffrey names claim they are not trying to renege on their side of the blank check. What they argue is that Lloyd's went hunting for names deliberately in order to spread the pain of about £4bn of asbestos liability losses which underwriters were keeping secret in their books. So much for Lloyd's motto, uberrmina fides – utmost good faith – and little comfort to the ordinary working man pursuing his asbestos claim. |
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