Silicosis lawyers defend class action

2014-09-21 15:00

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Mines accused of bending truth to quash multibillion-rand suit to pay out tens of thousands of claimants

Gold mines were slammed this week for allegedly distorting the science around silicosis in their bid to quash a colossal class action potentially involving tens of thousands of sick former mine workers or their dependants.

Silicosis is an incurable lung disease caused by inhaling silica dust, particularly in the mines.

Professor Rodney Ehrlich and Jonathan Myers from the University of Cape Town filed affidavits this week tackling the experts who had filed affidavits for the mines.

They said the affidavits amounted to obvious bias and attempts to “cast maximum doubt upon, and obfuscate, the known relationships between exposure?...?and silica-related diseases”.

They were referring to part of the responses to the legal papers by the gold mines against the planned class action that was filed in June.

The mines’ medical experts are former Anglo American medical officers, Alistair Calvert and Robert Dowdeswell, while many of the scientific claims are made by Gold Fields’ counsel Taryn Harmse. The three have made several claims, including that the cause, diagnosis and health effects of silicosis are all up for debate.

Establishing that silicosis in South Africa is a result of working in a gold mine where dust levels are negligently high is pivotal to the potential multibillion-rand class action, which makes the rival expert testimony crucial to the matter.

The heart of the gold mines’ argument, based on their scientific claims, is that each mine worker’s case is unique and would have to involve massive volumes of individualised evidence about the specific worker’s work history and dust exposure.

Ehrlich and Myers say information that specific would be good to have, but does not exist precisely because the mines could not be bothered to monitor exposure with this kind of detail.

Instead, the class action lawyers want to prove there was a “systematic and generalised” failure by gold mines to protect workers from dust. They said this was proved by the fact that for decades, thousands of miners have kept contracting silicosis after working in gold mines.

According to Ehrlich, the mines’ claims that silicosis is a “complex disease?...?subject to contested views, particularly regarding causation” is untrue.

He says just because many miners never contract silicosis does not change the fact that silica dust is the only absolutely necessary condition for getting it.

If silicosis resulting from exposure to mine dust is not the basis for a common claim, it is “hard to imagine what is”, says Myers.

Dowdeswell also makes a case against damages flowing from silicosis because he says it is not necessarily always the disease that kills or disables mine workers.

Even if someone has silicosis, it could still be smoking, HIV, high blood pressure or other things that ultimately kills them, he adds. The implication is that each claimant has to be screened for everything else that may have helped disable or kill them before they can claim to have been harmed.

Myers and Ehrlich say they are astonished TB does not top that list. TB is the “most important contributor to co-morbidity, impairment and disability in silicosis”, says Ehrlich.

“Bias is evident” in the way the mine doctors “play down” the role of TB while “innumerable other variables and factors are adduced to muddy the waters for the causation and consequences of silica-related diseases”, says Myers.

The lawyers want a two-part class action with individual variables possibly affecting damage claims coming in the second half. First, they want a simple case on a simple question –?whether dangerous dust levels resulting in silicosis amounts to negligence.

Mines are also arguing this point saying that dust levels causing silicosis are not necessarily wrong because they were not barred by law or that science and technology was insufficient to prevent it.

Myers also attacks this argument. He says the risks of dust levels in South African mines have been well known for decades and mines could be expected to act on that knowledge even if the state did not make them do so.

The class action cites 30 mining companies, from South African gold mines operating after 1965, as respondents. It practically covers all silicotic workers, or their surviving dependants and will involve tens of thousands of claimants.

Richard Spoor, the lawyer who deposed the main replying affidavit this week for the silicosis lawyers, says the mines know that most of the mine workers have no hope of pursuing claims by themselves outside a class action.

Without the class action, lawyers would probably start cherry-picking the most high-worth claims, most likely those of white mine workers in urban areas, says Spoor.

The fact that Spoor has done exactly that has also become a point of attack for the mines.

A case worth billions

Among the mines’ response is that Spoor is bringing an individual silicosis case to court while claiming only a class action can achieve justice.

The case in question is a R20?million claim on behalf of Hein Strömbeck, a former machine operator in Gold Fields’ mechanised South Deep mine and Harmony’s Target mine before that. Strömbeck (37) has been diagnosed with a severe form of silicosis, is unable to work and will likely die young.

According to this week’s affidavit, the claim is “two orders of magnitude” larger than what the average member of the class action might ultimately get.

This means the average class action settlement could be about R200?000.

In the affidavit, Spoor says the claim “is of exceptional merit, urgency and value”.

“There would therefore be no advantage to his participating in the class action.”

No one said the class action has to completely settle all silicosis damages the mines might face in the future, he adds.

Separately from the class action, UK firm Leigh Day, working with local firm Garratt Mbuyisa Neale, have filed 4?335 silicosis claims for a total of R7.6?billion against Anglo American SA, as well as 1?204 claims against AngloGold for R2.1?billion.

These claims are for an average amount of R1.75?million each.

Assembling a case

The gold mines, particularly Gold Fields, have also taken aim at the class action lawyers, suggesting they are being opaque about their fees while crafting fee agreements to favour them and hurt workers.

Gold Fields has also filed papers to join Spoor’s US backers, Motley Rice, to the case to potentially claim costs from them.

All the fee agreements are now part of the court papers. They set a maximum of 25% on the fees the lawyers can charge on damages they win for the workers. This is the legal limit in South Africa.

Spoor says his agreement limits the fee to 15%, and the higher limit is included because the law requires it. He anticipates that the ultimate fees will be set by the court if and when the case proceeds to the point of settlement.

The cooperation agreement says fees will be split between legal teams based on their share of the work and the number of workers they bring as clients. The US firms backing Spoor and colleague Charles Abrahams with money and legal advice will receive 70% to 75% of the fees.

The third party of the legal team, the Legal Resources Centre, is working pro bono and is funded by Legal Aid SA.

Some mines also attacked liabilities workers could apparently incur due to the agreements, especially if they pulled out of the litigation. After signing up, workers can be made liable for costs incurred.

Spoor says this is meant to prevent other lawyers poaching clients and claiming individual damages after class action lawyers have incurred all costs.

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