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Miners’ lung disease suit is too varied for a class action - BDlive

Monday, 18 July 2016

THE class action that is being brought against current and former gold-mining companies on behalf of mine workers with silicosis and tuberculosis (TB) is a first of its kind. It is the first time anywhere in the world that an entire industry has been sued, rather than a single defendant.

Even in US tobacco lawsuits, the defendants were single tobacco companies. In the class action against Walmart over its employment practices, even though the case covered multiple Walmart stores and offices in the US, the country’s Supreme Court refused to certify the class.

The silicosis class action seeks to sue, in a single case, multiple companies — each with mines of varying descriptions, different policies, practices and circumstances.

The intended class action is also novel because of the length of time at issue. It relates to mine workers who were employed on gold mines between 1965 and 2014. This 49-year period traversed drastic technological, political, social and economic changes, with consequent changes at the mines and mining companies.

SA has little experience of class actions. The concept is relatively new to our courts and our lawyers, and we do not have the established legal framework for it that one might find in the US.

In matters as complex as this, our courts regularly consider international precedents. The high court, in its judgment, preferred to follow the international precedent established by Canadian courts, rather than the approach adopted by the US Supreme Court, in assessing whether there was sufficient commonality to justify certifying a class action.

A Canadian court assessing this question focused on whether there was a common question to be answered in the suit. The US Supreme Court’s test for commonality was framed as whether the examination of the proposed class members’ claims would produce a common answer.

As SA’s Supreme Court of Appeal has, in a previous case, followed the US Supreme Court decision on this issue, the mining companies believe that there is a reasonable possibility that it may differ from the route taken by the high court.

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