Silicosis settlement: ticking clocks drive new strategies

2013-09-29 14:00

Anglo American SA this week announced the first modest settlement with ex-mine workers suffering from silicosis, covering 16 living and seven dead former employees.

The confidential settlement, with no admission of liability, has no legal implications for the two separate campaigns to claim damages for thousands of former mine workers, but could “create impetus for all cases”, according to Richard Meeran, the mine workers’ lawyer.

This week’s settlement follows a decade’s preparation with the small group of miners as a test case.

The arbitration had finally been set down for hearing next year before a panel of ex-judges, including Ian Farlam of the Marikana Commission of Inquiry.

Now the miners are settling instead, chiefly because more of them may die before the arbitration runs its course by the end of next year.

A ticking clock also hangs over other, larger silicosis cases.

There are at least two major ongoing campaigns to claim damages on behalf of thousands of former mine workers.

One has been driven in the UK by Meeran, while there is a separate attempt to certify a class action in the South Gauteng High Court involving three teams of lawyers from the Legal Resource Centre, Richard Spoor Attorneys and Cape Town-based Abraham Kiewitz Inc.

Meeran, of the UK law firm Leigh Day, has, however, started moving some of his more than 2?336 clients in the UK courts to South Africa.

He recently lost a jurisdiction case while trying to sue Anglo American SA’s parent – the listed Anglo American – in British courts on behalf of the former mine workers who all worked at Anglo gold mines before the company divested its gold business in 1998.

While he is appealing that decision, the delays are starting to threaten his clients’ ability to alternatively claim damages in South Africa if they end up losing the UK appeal, he said this week at the media conference announcing the settlement.

In SA, claims become prescribed three years after claimants become?aware they have a claim, according to Meeran.

The first clients in the UK case had lodged their claims in September 2011, the latest possible date they could argue they “became aware of” their case against the mining giant.

Now these initial clients are having their cases transferred to the North and South Gauteng high courts.

Meeran says about 100 individual claims are being filed in Pretoria, while another 100 may be filed in Joburg. Meeran and his South African partner Zanele Mbuyisa had already filed 31 individual silicosis claims in Joburg last year against AngloGold Ashanti in yet another leg of the silicosis legal campaigns.

Here there is yet another ticking clock.

The “pain and suffering” element of the claims amount to roughly R450?000 each, Meeran said this week. If claimants die, their dependants can still sue. But they will be unable to claim the “pain and suffering” portion.

The more people die, the “less the bill” faced by mines, according to Meeran. Beyond this threatened portion, he declined to reveal the amounts being claimed. The claims also include lost earnings and medical expenses, which differ sharply from worker to worker.

In its annual report for last year, AngloGold Ashanti cited the 31 initial cases, saying the claims total was $9?million – on average R2.6?million per claimant.

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