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Silicosis class action 'is a blunt weapon to bludgeon' mines - BDlive

Tuesday, 20 October 2015

LAWYERS for mine workers in the gold sector were trying to create the biggest class of possible claimants in their silicosis class action, bludgeoning the sector in the process, Gold Fields’ counsel Jeremy Gauntlett SC said on Monday.

The landmark case, which began in the High Court in Johannesburg last Monday, has huge financial implications for gold mining companies, with estimates that there are tens of thousands of former gold miners who are suffering from silicosis. Compensation claims could run to billions.

A big part of what the court must decide at this stage is how to define the class of claimants, those people who would benefit from the litigation if the class is certified.

Mr Gauntlett argued that if the applicants got their way on this score, the number of potential claimants would remain obscure "until late in the day" and could run to half-a-million people. The approach taken by the applicants would make the case unmanageable and turn it into " a very blunt weapon" to bludgeon the gold mining companies, he said.

The applicants want the court to certify two classes of claimants: one of former miners with silicosis and one of former miners who do not have silicosis but have tuberculosis, arguing that there is a relationship between high levels of silica dust, which suppresses the immune system, and tuberculosis.

Willem van der Linde SC, also for Gold Fields, said that, unlike silicosis, tuberculosis could be triggered by a range of factors, making the link between high levels of silica dust and the disease very complex. Unlike silicosis, tuberculosis was also curable in at least 80% of the cases. Based on these factors, only four out of 100 might notionally benefit from a tuberculosis class investigation, he said.

Mr van der Linde also argued that there was no prima facie evidence that exposure to silica dust resulted in tuberculosis. The only reliable study referred to by the mine workers’ legal teams had been called "flimsy" by one of their own experts, he said.

Mr Gauntlett took issue with the applicants wanting the court to order an "opt-out" approach to the litigation. In such an approach all those who fall within the class definition would benefit, unless they decided to opt out. Opting in would mean that once the class was defined, only those who chose to participate in the litigation were bound by its outcome.

Mr Gauntlett said, by going for an opt-out approach, the applicants were trying to defer the moment of establishing how many claims the gold companies would be facing, having earlier said they could number anything between 250,000 and half-a-million people. This made the case a "blunt weapon".

The mine workers’ lawyers have also asked the court to "develop the common law" so that the families of those mine workers who could die in the run-up to the trial could still benefit from claims for pain and suffering. Currently, the law states that if a plaintiff dies a claim for pain and suffering — one of the claims the applicants plan to make — dies with him, unless the case has reached the point of "litis contestatio" or close of pleadings.

Close of pleadings is the point in the run-up to a trial at which all the allegations made on paper have been put before the court.

Mr van der Linde said the original thinking was that pain and suffering were viewed as highly personal and could not be transferrable commodities (like other claims such as loss of income).

The "litis contestatio" rule was an exception and a "line in the sand". The courts could not simply change the line, as that was the job of the legislature, he said.

But he faced a number of questions on this score from the bench with Deputy Judge President Phineas Mojapelo asking whether the original line in the sand was drawn by the courts and pointing to a number of earlier instances when the courts had scrapped entitlements under the common law.

The hearing continues.

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