Silicosis case: mines are being obstructive, say miners’ lawyers

Addressing the court on 22 October, the ninth day of the landmark silicosis case, advocate Wim Trengove said: “In reality, if this application for certification of the class action fails, hundreds of thousands of sick mineworkers and their families will have no other opportunity for a hearing, which is their constitutional right”.

Trengove and the other advocates for the miners were responding to argument earlier this week from advocates for mining companies which are opposing an application for a class action. This would allow the mineworkers in the case to represent other mineworkers and former mineworkers affected by silicosis and TB as a result of exposure to silica dust underground, and the families of dead mineworkers, in legal action against the gold mining companies.

Trengove said hundreds of thousands of gold mineworkers and their dependants suffering from silicosis and/or TB could show that their employers were to blame. Their lawyers had asked the mines how these mineworkers’ constitutional right to a day in court should be realised.

“The reply from the mines has been obstruction,” he said. The mines had not suggested any alternative way for the miners to exercise their rights. Test cases or arbitration would not be viable because they would not bind other mines to the outcome.

Judge Basheer Vally agreed.

Trengove went on to argue that the law favoured a pragmatic approach to class action and not the rigid approach which the mining companies insisted on. The court did not have to map out the whole case for the trial judge, he said.

He suggested that the issue of liability could be dealt with as a collective issue in phase one of a trial and individual damages in the second part. If the trial court found the mines liable, then individual applicants would file for damages, each applicant claiming against his own employer or former employer. Test cases could establish findings for a limited number of applicants and these could be extended to all.

Responding to arguments by Advocate Chris Loxton, for Harmony gold mine, that there were significant differences in dust control measures between mines, Trengove said all mines used much the same technologies to control dust, and this was sufficient for a class action to be certified. All the applicants ended up with diseases caused by excessive dust exposure, so breach of duty was common to all mines. It was not necessary, Trengove said, to show what each mine actually did, but what the mines ought to have known about the relationship between dust exposure and silicosis, and what they ought to have done to eliminate the risk of disease.

As to the mines’ objection to the allegation of “systemic breach” of their duty to reduce the dust levels, he said there was evidence in the mineworkers’ court papers (some of it from the mines themselves) of unlawful conduct in breach of underground regulations, and that all mines were using the same dust control measures, and all failed in the same ways. He said that his team had speculated that the cause of this was the role of the Chamber of Mines, but did not allege conspiracy. More evidence would come to light during the trial, he said.

Trengove said the mineworkers’ lawyers were proposing that phase one of the class action would deal with questions such as what the mines ought to have known, and when, about risk; what they ought to have done to reduce and eliminate it; and whether or not they had done this. These were common issues which affected liability. If the trial court found that the mines were liable, then phase two would examine the assertion by each applicant individually that the failure of a particular mine had caused his silicosis and/or TB.

Differences in dust control regimes, technologies, best practices and types of breaches were relevant to the individual claims, not to the class action, he said.

On the question of mineworkers who had TB only, as opposed to TB and silicosis, or silicosis only, Trengove acknowledged the arguments by mining companies about the causes of TB. The silicosis argument was simple, he said, because of the unique causes of silicosis. But the difference would only arise in phase two of the trial: in the first phase, applicants’ arguments about silicosis and TB would be exactly the same. The aim would be to prove negligent conduct resulting in excessive dust levels. Phase two would examine the impact of excessive dust levels on mineworkers’ respiratory health, “and here the ‘TB only’ group does diverge from the ‘silicosis with or without TB group’”, Trengove said. The issue there would be to determine what the mines ought to have done to prevent TB infection and whether, if they had done this, the applicants would have had a better chance of avoiding TB.

Trengove said that phase two would be a massive operation, but this was not a reason for the court not to certify the class action. Mineworkers living in poverty and disease did not have the resources to file their own individual claims, he said.

Dealing with objections from lawyers for Anglo American to the “opt-out” model proposed for phase one of the trial (where all affected miners, former miners and dependants of dead miners would be automatically included in the class unless they explicitly chose to opt out), Trengove asked why the court would burden mineworkers with the fuss and delay of “opting-in”. The time for an “opt-in” model would be phase two (individual damages), he said. If settlement was hindered by uncertainty over the number of miners in the class, as Anglo American had argued, there could be a lump sum payment by mines to claimants, or a fund could be set up.

Addressing mining companies’ objections to the allegation of “systemic failure”, advocate Geoff Budlender said that there was no dispute that the mines’ system to control dust levels affected everyone underground. The objection was to the concept of “industry-wide failure” . But attorneys for the applicants had presented evidence from various commissions of inquiry, affidavits from mineworkers, expert testimony, and the outcome of increasing levels of silica dust in mines. In addition, mines had cooperated with the Chamber of Mines research on dust control, and the research was available to all the mines, so they knew best practices on dust control.

There was also a huge quantity of evidence in the “dust books” held by the mines, reports they were required to submit to the Medical Bureau for Occupational Diseases if an employee was found to have TB or silicosis, transfer and dismissal records of silicosis and/or TB sufferers, post mortem reports when a miner died in service, and reports and received ratings under the Occupational Diseases in Mines and Works Act on each mine’s health and safety system.

“In five days of presentations, 11 senior counsel for the mines never said ‘we have at all times complied with the statute, common law, and the Constitution, and here is the evidence’,” said Budlender. “None of them said ‘none of our workers got sick and here is the evidence’, so they must have had excessive dust levels, and all of them breached duties at some stage’. None of them said ‘we did excessively expose mineworkers to dust, but it was only in exceptional incidents’. Thus they agreed that breaches were systemic.”

He accepted that there were differences between mines, but asked: “What are the consequences of those differences? Not one mine said that ‘as a result of my company’s activities, there will be no further excessive dust levels, and no further silicosis cases.’”

Advocate Jason Brickhill dealt with the initial contention from Anglo American and Randgold that they were not liable for damages because they were only advisers to the individual mines, did not appoint mine managers and had no control over what happened at mine level. He pointed out that Anglo American had later conceded that the company was responsible directly for mine medical services and ventilation.

The applicants rejected attempts to narrow the scope of the class action in this way, he said.

Advocate Stephen Budlender took issue with the “unmanageability” objection raised with respect to the proposed class action by several of the counsel for the mines. The numbers of applicants involved in a class action were irrelevant to whether it should be certified, he said.

Finally, advocate Michelle Le Roux tackled the rejection by lawyers for the mines of the inclusion of the “TB only” subclass. She referred to a government notice under the Compensation for Occupational Injuries and Diseases Act (COIDA), which stated that if a worker contracts TB after two years service in a workplace with a silica dust hazard, the TB is presumed to be work-related.

Presiding Judge Phineas Mojapelo asked her about the diagnosis of silica-related TB without silicosis. She replied that it consisted of a sputum or bodily fluid test, and an X-ray. If a person had silica-related TB without silicosis, it was still possible to tell from the X-ray that the person had been exposed to silica dust, which showed up as small scarring (granuloma) on the tissue of the lung. This was different from the X-ray of a lung damaged by TB infection.

“The silica granulomas can act to release TB later, even after TB treatment, so TB treatment is not 100% effective in workers over-exposed to respirable silica dust” she said.

Le Roux explained that the source of the TB infection – the precise person from whom it was contracted – was irrelevant in silica-related TB, because silica exposure opened the way to TB infection through its immune-suppression effects.

She disagreed that silica dust exposure could not be regarded as a cause of TB because there were multiple risk factors for TB, and it would be impossible to prove in any particular case that the silica exposure had any impact on the contracting of the disease. She cited studies showing that gold miners had double the risk of TB infection of platinum workers.

The court is to respond today.