A month before he was contacted by Wendy Rowe, Peter Gordon had telephoned me in Perth, where I’d spent several years running the asbestos diseases practice at the law firm Slater & Gordon. Peter Gordon had left Slater & Gordon after almost thirty years and set up his own practice—Gordon Legal. But after becoming interested in thalidomide he had invited his old firm to join him in the class action for thalidomide survivors. Gordon had heard I was moving back to Melbourne. Would I be interested in working on thalidomide with him?
Western Australia has one of the highest rates of asbestos disease in the world, a sad circumstance largely due to two corporations. The CSR-run blue asbestos mine at Wittenoom, which operated for about twenty years in the remote Pilbara region of the state, has claimed many hundreds of lives. Mine workers and their families, including those exposed as babies and toddlers, have steadily fallen victim to deadly diseases. Chief among them is mesothelioma, a rapidly fatal cancer which typically develops thirty to forty years after exposure to asbestos.
The other corporation most responsible for Western Australia’s terrible asbestos toll is James Hardie, the former asbestos cement building-products giant which refused to properly heed warning signs about asbestos for decades, and which exposed not just its employees to the deadly fibres, but also generations of tradesmen and home renovators.
Much of my work in Perth involved suing these two corporate giants, along with dozens of other asbestos defendants. After almost four years of wading through thousands of their internal documents, I felt I had a reasonable understanding of the corporate mentality required to behave in reckless or negligent fashion. So when Gordon asked me to work with him on thalidomide, I was interested. Thalidomide was, after all, the most notorious drug disaster in history. And no doubt there was a damning story waiting to emerge, though at the time I knew little of the background. I had also assumed that the litigation was ancient history. But Gordon said many victims had never been compensated, and that we’d be fighting the odds to reopen a fifty-year-old case against two very powerful companies. He did not have to say much more. That sounded very appealing.
In January 2011 my partner Nicole and I returned to Melbourne, and I started on the case that would consume the next three years of my working life. Immediately I ran hard to catch up, reading as much as possible about thalidomide, the drug companies involved, and the relevant medicine. I learned about the ‘unavoidable tragedy’ line consistently run by Grünenthal and Distillers. I also discovered that, aside from one 1971 case in the United States, no thalidomide claims had ever been litigated to judgment anywhere in the world.
Gordon had already assembled a small team and in the office we debated the obstacles to succeeding in a thalidomide claim fifty years after the tragedy. Obviously, we would have to show that Wendy took the drug, and that the drug then damaged Lyn. That would be a major task in itself, but nowhere near enough.
We would also have to establish that the drug companies behaved negligently: that, in lay terms, they should have known better. This meant proving they should have realised there was a risk of harming Lyn by supplying her mother with thalidomide. The hard part was that we would have to prove this ‘foreseeable risk’ of harm, not by the standards of the twenty-first century, but by the standards that applied at the time Wendy Rowe took the drug, mid-1961.
Dozens of other tricky legal issues would beset Lyn’s case. For example, we would have to find a way of getting around her statute of limitations problem. Limitations, as lawyers refer to the concept, is the idea that if you are injured by another person you have to make your legal claim within a limited period of time. If you don’t act, you lose your rights. Limitations periods can vary. Three years is common, and it’s longer if the victim is a child. But fifty years on we knew the drug companies would argue that it was all too late, that Lyn’s time to bring a claim had long expired. We would have to persuade a judge that an exception was warranted: that Lyn should be allowed her day in court many years late.
One of my priorities was to start work on the family’s legal statements, their accounts of what had happened fifty years ago and in the years since. This would require a lot of time with each family member. So, to make a start, in February 2011 I arranged to visit the Rowes. It was the first of many occasions I would make the forty-minute train trip to Nunawading and walk ten minutes to the home in a quiet side street.
My first visits were planned as get-to-know-you meetings. I wanted to establish some sort of relationship before taking detailed histories and asking personal questions. First impressions are often completely misleading when meeting injured or ill clients. Frequently they are stressed and anxious, not just about their injury or illness, but also about being cast into an unfamiliar world of lawyers and doctors, usually for the first time in their lives. Sometimes they’re angry. They may have been dwelling on the unfairness of it all for months or even years. As a result, first meetings with lawyers can be vexed and halting affairs, and rapport can take some time to develop.
But with the Rowes there was no settling-in period. Wendy, Ian and Lyn were totally direct and forthright, right from that first meeting, perhaps because they had been dealing with their lot for fifty years. No issue or subject matter seemed to bother them, and they had plenty of probing questions of their own—about the legal process and about what they were getting into. And they were resolute. Once Lyn and her parents decided to sue the drug companies, they never wavered throughout all the ups and downs that followed. They were, in fact, dream clients.
During my early visits to their home we sat in their living room. Lyn, of course, sat in her electric wheelchair which she controlled by pressing her head and shoulders against levers. When my note-taking ramped up we usually moved to the kitchen table with tea and biscuits. The front of the house, always neat and presentable, belied the dilapidated state of the rest of the home. It too was tidy—but crumbling. The house had shifted on its stumps so that the floor sloped precipitously, cracks gaped around the skirting boards and the back door was jammed shut. The hallway to the rear of the house was too narrow for Lyn to turn her wheelchair. She had to back up to a place where there was more room. In the bathroom, I trod warily: the floor was cracked and fragile and felt as though I could easily put a foot through it. Clearly, the home was epically unsuitable for someone in a wheelchair. Later, when a building expert assessed the home for a renovation, his strong recommendation was demolition.
Naturally the Rowes were aware of the state of their home, but they had no money for improvements. They had to make do. Looking after Lyn took precedence over everything else. Any extra cash was spent on her needs, and had been since 1962. At one of our early meetings, Wendy reflected on the challenges.
New mums often find the first few months exhausting. That’s what it was like with Lyn, and with all my girls. But with Lyn that never changed. Most babies learn how to walk and to feed themselves, and dress and go to the toilet, and wash themselves. I knew that was never going to happen with Lyn. Fifty years later I still do all of that for her.
Initially, the lives Lyn and her parents had led seemed unknowable to me. How on earth had they coped? How had this family not been overwhelmed by the terrible, unchanging reality of Lyn’s missing arms and legs? Could anyone ever come to terms with such a profound physical disability? What toll would it take on parents, knowing that things would never improve for their child, never get better?
Of course I kept these questions strictly to myself. But at that time Nicole and I had a baby boy, Asher, who was only a few months old. One day, suffering from run-of-the-mill sleep deprivation, I asked Wendy in passing when Lyn had first slept through the night. She laughed. ‘What do you mean? She’s never slept through the night! I get up two or three times a night to move her or to help her use a bedpan. I’ve been doing that since 1962.’
It was 2011 and Wendy Rowe was closing in on fifty years of interrupted sleep. Without complaint.
Slowly, as I talked with Wendy, Ian and Lyn, their story became more familiar to me, and started to take shape in my notes.
On the Friday morning of Lyn’s birth, after Wendy went into labour, Ian Rowe took her to the Box Hill Hospital and then caught the train into the city. At that time fathers almost never attended their children’s birth. On his way from Flinders Street Station to the AMP building on Collins Street, Ian Rowe walked under a ladder. Never a superstitious person, he nevertheless remembers thinking to himself, ‘I hope that’s not a bad omen.’
In the early afternoon Ian’s phone rang. ‘I don’t remember who it was. It may have been Dr Dickinson. I knew something bad had happened, but whether I was told exactly what had happened I just don’t know.’ The trauma of the day has left large gaps in his memory.
Ian Rowe raced back to the station and caught a train to Box Hill.
I remember walking to the hospital and being really anxious. I don’t remember much about it. I don’t even recall whether I saw Lyn that day. I don’t remember who I spoke with or who told me that Lyn did not have legs and arms. I have a faint memory of Wendy being very sedated, and I remember being very concerned about Wendy. But I remember nothing else about the visit.
Ian’s memories of that period have vanished. All he remembers is a deep sense of grief and loss. He went straight back to work on Monday three days after the birth. Wendy remembers he visited the hospital every day during the following week, but Ian has no memory of that.
At the time, the doctors told Wendy her daughter would not survive. Lyn would be lying down all the time, they said, and would develop severe chest infections which would lead to her death. One of the nurses said something like, ‘Just put her in a home and forget about her, she’ll be dead in six months.’
After a week in hospital, Wendy was allowed to leave. She and Ian asked the hospital to look after Lyn for another week, and Wendy’s parents volunteered to take care of the older children for a little longer. Then the couple escaped to Victoria’s mountains. ‘We wanted to talk, just the two of us, about what we were going to do and how we were going to cope,’ Wendy recalled.
So we drove up to the high country, stayed in cheap hotels, slept in the back of the car one night, and just talked and talked. We talked about Lyn and how long she would live, and how the hospital thought we should put her in a home. We talked about our older girls. It was emotional and difficult and we were probably still in shock. But when we got back to Melbourne we collected Lyn and took her home.
It was 1962: there was no counselling, no assistance. Wendy and Ian were a young couple with two young children, and now they had a baby with extremely high needs. ‘We were on our own,’ was Wendy’s summation and the following months were traumatic. ‘We were in a desperate state. Struggling to cope with caring for Lyn and our older girls, adjusting to the reality of a terribly handicapped child, trying to accept the fact that there was no cure for Lyn,’ Wendy said. ‘Nothing was going to bring her limbs back. It was going to be this way, and never change. Forever.’
One of the adjustments was the effect Lyn had on other people. ‘Lots of people just didn’t know what to say to us,’ Wendy said. ‘Some people crossed the road to avoid us and other people stared and pointed and whispered. We lost some friendships and it took me a while to become comfortable with going out with Lyn in public.’
This unwanted attention never ceased. ‘All of our girls had to deal with other kids pointing and staring at Lyn, people shrinking back in horror or fright, making unkind comments,’ Wendy said. At one children’s party one of the mothers pointed at Lyn and issued a stern warning to the other children: ‘Don’t look at her!’
Lyn’s sisters struggled with the reaction Lyn drew, but found their own ways of dealing with it, quick with a smart or cutting retort. Wendy remembered a typical reaction from ten-year-old Alison.
We were all on holidays in New South Wales, in a supermarket, and Alison was pushing Lyn in a wheelchair. A young boy had left his mother and was following Lyn around, pointing and giggling at her. Alison told him to go away several times. When he wouldn’t, she told him that her father would come along and chop his arms and legs off, just like he had done to Lyn.
The boy fled.
With the family revolving around Lyn and her needs, Wendy had no illusion about how hard it would be to give her older girls a semblance of normality. ‘Merrilyn and Alison were just little girls themselves, yet I knew that Lyn was going to occupy almost all of my time.’
In evenings after the children had gone to bed Wendy always felt an enormous sense of relief, along with complete exhaustion. ‘I could pretend for a few minutes that we were a normal family, and that I didn’t have a daughter in the bedroom who would need my care and attention for the rest of my life, or for as long as I was able to give it.’
Given the hospital’s bleak prediction for Lyn, Wendy was surprised that as the months passed Lyn met all the normal milestones, or at least the ones that weren’t out of the question. Obviously she could not crawl or stand or reach for things, but she fed well—she liked food—and ate solids easily. She giggled and smiled and started trying to speak early. She was doing so well she went for her first prosthetic fittings when she was around nine months old. She was a happy baby and, her parents thought, very inquisitive. ‘Lyn rolled around and got stuck under pieces of furniture,’ Wendy said. ‘When her older sisters were playing with Lego, Lyn liked to grab the pieces in her mouth and I’d have to tip her up to get them out.’ Wendy hoped that Lyn would be able to develop a satisfying life, full of reading and music and conversation.
But another blow was coming. When Lyn was ten or eleven months old and teething, she developed a fever. Dr Indian visited the home and urged Ian and Wendy to get Lyn to hospital immediately. ‘We took her to the Royal Children’s Hospital but the fever got worse, and she fell into a coma. She stayed in the coma for a week. The doctors told us that because Lyn was missing all of her limbs, she didn’t have the surface area to release heat from her body,’ Wendy said. This susceptibility to fever was a common problem for thalidomide babies and many died after lapsing into unconsciousness.
When Lyn emerged from the coma she was noticeably different and the doctors warned she might have suffered brain damage. ‘Her development changed, she’d regressed,’ Wendy said. ‘She had forgotten how to feed and she had to relearn simple things, like sucking on a bottle. She stared a lot and was like a little zombie. After that she picked up new things quite slowly.’
The period after Lyn’s coma was as difficult for Wendy as the weeks and months after the birth. ‘I was totally devastated. I felt that she had no hope now. She had no limbs and she had brain damage. I saw an incredibly bleak future for her. I had to keep going, but I felt very despondent for a long time.’