2013: Deadline for breaking silicosis grip

The success of multimillion-dollar claims against mining companies Gencor and Cape PLC to compensate asbestosis sufferers had a secondary effect – it highlighted the plight of those suffering from other lung diseases that can be related directly to mining.

The cases, for instance, created greater awareness about the prevalence of silicosis.

The disease now has the potential to become the costliest occupational illness in South Africa’s history.

Like asbestosis, silicosis is an incurable, debilitating lung disease that progressively worsens. In August, the Legal Resources Centre launched legal proceedings against one of South Africa’s former mining giants. Leigh Day & Co, the London-based legal firm that successfully represented the South African asbestos miners against Cape PLC, and Australian law firm Slater Gordon are acting as consultants to the Legal Resources Centre.

The three partners are sharing their resources as the British and Australian law firms are not registered in South Africa, and are not able to represent the miners in a local court. The case is funded partly by the South African Legal Aid Board, which is the main provider of legal aid in the country.

The ten plaintiffs in the test cases are all ex-employees of the Anglo American Corporation of South Africa, and worked in the company’s gold-mines, in the Free State.

The local gold-mining industry is particularly vulnerable to silicosis as high concentrations of the causative agent of the disease – free crystalline silica (SiO2) – are present with gold deposits in the form of quartz.

The ten ex-mineworkers who suffer from silicosis, and their families, are claiming more than R20-million in individual compensation from Anglo American. They are also claiming further moneys from the company, which will be used to establish a fund to monitor and treat occupational lung disease in ex-gold-miners.

If a ruling is made in favour of the plaintiffs, it could pave the way for other silicosis sufferers to take class action against other companies in the industry. Spokesperson for the Legal Resources Centre Durkje Gilfillan says that the centre is acting in the public’s interest as the implications of the ten test cases go beyond seeking compensation.

Former Leigh Day partner and now lawyer at Slater and Gordon, Richard Meeran, explains that the outcome of the cases could have wider ramifications concerning the liability of parent companies for their own direct negligence, in this case where the parent company had acted as a technical adviser and consulting engineer to its subsidiary.

According to Leigh Day & Co partner Martyn Day, there are striking similarities between what happened to hundreds of thousands of workers in the asbestos industry and possibly even a greater number of workers in the gold-mining industry.

Day says that, similar to asbestos fibres, the adverse effects of silica dust were well-known long before these companies started their mining operations in South Africa, yet the dangers to workers’ health were mostly ignored.

“In broad terms, the upshot of the test cases is that we believe that Anglo American could have taken more steps to ensure that exposure to silica dust was kept to a minimum. As a result of sustained exposure to the causative agent, the workers suffered serious damage to their health,” Day says.

Meeran claims that research indicates that the level of dust exposure in South African gold-mines was, for many years, fixed at a level “unacceptable elsewhere in the world”.

“The limit for dust particles containing silica was set at a level that was based on the assumption that about 15% of the workforce who had been employed for 20 years or more would contract silicosis. I cannot imagine that a risk estimate based on this assumption would be acceptable anywhere else in the world, besides under the apartheid regime. There is striking evidence about the lack of concern that many mining companies showed towards protecting their workers against serious respiratory illness,” he adds.

Meeran suggests that the practices of mining companies discriminated against black miners, as they were for many years not provided with any onsite shower and change room facilities to remove toxic dust, while these were available to white miners.

According to Anglo American spokesperson Anne Dunn, Anglo American Corporation of South Africa received nine separate summonses in August. “We do not believe that Anglo American Corporation is liable and will vigorously defend the claims,” was the only comment that the company wanted to make.

Lung Disease

Reports of workers dying from lung diseases caused by the inhalation of dust on South Africa’s gold-mines date back nearly a hundred years.

Today, despite the availability of a great deal of knowledge on the cause of silicosis – the most prevalent lung disease in the country’s mining industry – and methods to prevent it, mineworkers, in particular those in the gold-mining industry, are still exposed to free-crystalline silica by inhaling dust.

In July, the local mining industry committed itself to reduce miners’ exposure to the disease, and eliminate silicosis in its operations by 2013.

The industry, by way of the Chamber of Mines, announced that it was implementing a five-year silicosis prevention programme, which will be managed by the Safety in Mines Research Advisory Committee (Simrac), and will take place at a cost of R23-million.

The pledge coincided with the launch of the national silicosis elimination programme, which is spearheaded by the Department of Labour.

The national programme, in turn, is part of the International Labour Organisation and the World Health Organisation’s initiative to eliminate the disease worldwide by 2030.

Treatment

Last week, Chamber of Mines president Dr Con Fauconnier said in his address to the 114th meeting of the chamber that the organisation had extended its caring industry theme to provide correct treatment to HIV/Aids-infected workers to a campaign to deal with silicosis.

Besides launching an initiative to eliminate conditions that cause the disease by 2013, Fauconnier stated that the chamber’s executive council had also approved funding for a project in a selected employee recruitment area to assist the Department of Health in locating ex-mineworkers who are suffering from silicosis and then ensure that they get proper treatment, as well as the financial compensation that they are entitled to from government’s Compensation Commissioner.

According to Meeran, the initiative is “a drop in the ocean, and does not indicate serious commitment to addressing the issue of silicosis”.

“Hence, we will be pursuing claims to create a fund that will provide proper medical monitoring and treatment for ex-mineworkers,” he says.

Earlier this year, the National Union of Mineworkers (NUM), which represents most of the employees in the sector, and the Chamber of Mines, also started engaging one another on the issue of silicosis.

NUM head of health and safety Joseph Morallana tells Mining Weekly that the negotiations are at an early stage, and that the parties are in the process of finalising terms of reference to guide their discussions.

Morallana says that the union and the chamber have agreed that the employment agency that has been the main recruiter of migrant labour, Teba, and the National Centre for Occupational Health, which has been conducting research on lung disease in the industry since 1956, will be engaged to gatheras much information about ex-mineworkers and current employees affected by the disease.

NUM has assigned a task team to spearhead the information gathering process, which will extend beyond the borders of South Africa to other countries in the Southern African Development Community (SADC), such as Botswana, Lesotho, Swaziland and Mozambique from which migrant labour was sourced. Morallana adds that the union also intends to enter into structured arrangements with the chamber concerning the implementation of measures to reach the target of eliminating silicosis in the industry by 2013.

“We would ultimately like the out-come to be a situation where workers are not exposed to airborne pollutants that cause occupational diseases. Besides this, we would also like the industry to come up with an acceptable programme for compensation that is over and above the existing legal framework.

"Paramount to this would be an undertaking by the industry to commit itself to social programmes that will assist people who suffer from silicosis,” Morallana says.

NUM is not part of the legal action currently under way, nor is it in opposition to the plaintiffs’ claims for compensation. However, according to Morallana, the union does not intend to follow a similar approach for the time being, instead seeking a negotiated arrangement.

“That approach (of legal action) could be followed as our last option after serious attempts at engagement have been exhausted, as we are sensitive to the long-term impact that legal action of this kind could have on the gold-mining industry,” he states.

He adds that that the union is of the opinion that it will be able to achieve the best deal for mineworkers if it consults with the gold-mining The success of multimillion-dollar claims against mining companies Gencor and Cape PLC to compensate asbestosis sufferers had a secondary effect – it highlighted the plight of those suffering from other lung diseases that can be related directly to mining.

The cases, for instance, created greater awareness about the prevalence of silicosis.

According to Leigh Day & Co partner Martyn Day, there are striking similarities between what happened to hundreds of thousands of workers in the asbestos industry and possibly even a greater number of workers in the gold-mining industry.

Day says that, similar to asbestos fibres, the adverse effects of silica dust were well-known long before these companies started their mining operations in South Africa, yet the dangers to workers’ health were mostly ignored.

“In broad terms, the upshot of the test cases is that we believe that Anglo American could have taken more steps to ensure that exposure to silica dust was kept to a minimum. As a result of sustained exposure to the causative agent, the workers suffered serious damage to their health,” Day says.

Meeran claims that research indicates that the level of dust exposure in South African gold-mines was, for many years, fixed at a level “unacceptable elsewhere in the world”.

In July, the local mining industry committed itself to reduce miners’ exposure to the disease, and eliminate silicosis in its operations by 2013.

The industry, by way of the Chamber of Mines, announced that it was implementing a five-year silicosis prevention programme, which will be managed by the Safety in Mines Research Advisory Committee (Simrac), and will take place at a cost of R23-million.

The pledge coincided with the launch of the national silicosis elimination programme, which is spearheaded by the Department of Labour.

The national programme, in turn, is part of the International Labour Organisation and the World Health Organisation’s initiative to eliminate the disease worldwide by 2030.

Last week, Chamber of Mines president Dr Con Fauconnier said in his address to the 114th meeting of the chamber that the organisation had extended its caring industry theme to provide correct treatment to HIV/Aids-infected workers to a campaign to deal with silicosis.

Besides launching an initiative to eliminate conditions that cause the disease by 2013, Fauconnier stated that the chamber’s executive council had also approved funding for a project in a selected employee recruitment area to assist the Department of Health in locating ex-mineworkers who are suffering from silicosis and then ensure that they get proper treatment, as well as the financial compensation that they are entitled to from government’s Compensation Commissioner.

According to Meeran, the initiative is “a drop in the ocean, and does not indicate serious commitment to addressing the issue of silicosis”.

“Hence, we will be pursuing claims to create a fund that will provide proper medical monitoring and treatment for ex-mineworkers,” he says.

Earlier this year, the National Union of Mineworkers (NUM), which represents most of the employees in the sector, and the Chamber of Mines, also started engaging one another on the issue of silicosis.

NUM head of health and safety Joseph Morallana tells Mining Weekly that the negotiations are at an early stage, and that the parties are in the process of finalising terms of reference to guide their discussions.

Morallana says that the union and the chamber have agreed that the employment agency that has been the main recruiter of migrant labour, Teba, and the National Centre for Occupational Health, which has been conducting research on lung disease in the industry since 1956, will be engaged to gatheras much information about ex-mineworkers and current employees affected by the disease.

NUM has assigned a task team to spearhead the information gathering process, which will extend beyond the borders of South Africa to other countries in the Southern African Development Community (SADC), such as Botswana, Lesotho, Swaziland and Mozambique from which migrant labour was sourced. Morallana adds that the union also intends to enter into structured arrangements with the chamber concerning the implementation of measures to reach the target of eliminating silicosis in the industry by 2013.

“We would ultimately like the out-come to be a situation where workers are not exposed to airborne pollutants that cause occupational diseases. Besides this, we would also like the industry to come up with an acceptable programme for compensation that is over and above the existing legal framework.

“Paramount to this would be an undertaking by the industry to commit itself to social programmes that will assist people who suffer from silicosis,” Morallana says.

NUM is not part of the legal action currently under way, nor is it in opposition to the plaintiffs’ claims for compensation. However, according to Morallana, the union does not intend to follow a similar approach for the time being, instead seeking a negotiated arrangement.

“That approach (of legal action) could be followed as our last option after serious attempts at engagement have been exhausted, as we are sensitive to the long-term impact that legal action of this kind could have on the gold-mining industry,” he states.

He adds that that the union is of the opinion that it will be able to achieve the best deal for mineworkers if it consults with the gold-mining industry as a collective force, instead of negotiating with individual companies.

Prominent Nelspruit lawyer Richard Spoor who also represents a group of silicosis victims, but has not filed any formal claims yet, says that any settlement should be part of an inclusive process that takes into account the interests of ex-mineworkers and their families and communities.

Spoor suggests that the gold-mining industry is “intent upon a closed and secretive process of deal-making to limit its potential liability to mineworkers and to exclude many people from the process that are most affected by the disease.”

According to him, there should be greater public debate about the issue and increased consultation with affected parties, including rural communities and governments of labour sending countries such as Lesotho, Mozambique, Botswana and Swaziland.

Spoor is concerned that legislative changes could be made that will impair the rights of those suffering from silicosis to claim compensation.

“The South African gold-mining industry has a lot to answer for. For years it has built enormous wealth on the backs of mineworkers, while knowingly causing lung disease.

“Now that the issue of compensation has come to the fore, it is pleading poverty, and raising the alarm about affordability,” he comments.

Under current legislation, compensation for the debilitating disease remains scant and discriminatory, says Spoor.

He explains that the Occupational Diseases Mines and Works Act (ODMWA) from which miners receive benefits does not offer the same benefits as the Compensation for Occupational injury and Diseases Act (Coida). ODMWA limits the payout for occupational lung disease to a total of R82 000.

Workers that contract silicosis have no medical or pension benefits.

Spoor says that, should the average industrial worker who, for instance, works as a sandblaster, fall victim to the same disease, he is entitled to compensation, including medical and pension benefits, of more than a million rands. “The compensation regime for occupational diseases in the mining industry is clearly inferior to that in general industry.

“Indications are that the cost of equalising benefits will be as high as R500-million a year,” Spoor says.

He adds that the structure of the current system, whereby mining companies contribute levies to a fund administered by the State, which then pays out compensation to workers with lung disease, adds a further dimension to the issue. As the State is responsible for paying out benefits, the taxpayer could ultimately foot the bill for any additional demand made on the fund.

“The fact that no legal reform has been forthcoming, despite Cabinet giving the go-ahead to change the relevant legislation several years ago, is indicative of the unwillingness of the mining industry and the State to carry the cost of silicosis,” Spoor comments.

He adds that, even though mine-workers have access to free testing for lung disease, test centres are few and far between. As a result, a relatively small number of those who leave the mines and later develop silicosis actually access the full statutory benefits that they are allowed. According to Spoor, the devastating effects of silicosis are most evident in the impoverished rural areas that have always been a source of migrant labour.

“The breadwinners in these areas went to work on the gold-mines, and came back ill after a few years, with very little to show for it.

“Instead of supporting their families, they were unable to work, and became a financial burden,” he notes.

Gilfillan agrees that obliging mining companies to alleviate the social impact of the disease is one of the prime reasons why legal action has been instituted. Exactly how many people silicosis has claimed locally since the inception of the gold-mining industry is unknown.

A study conducted in1998 estimated that, based on the prevalence rate of the disease in some villages from which migrant labour was sourced, about 480 000 of the country’s two-million ex-mineworkers could be suffering from pneumoconiosis, including silicosis.

A study conducted on behalf of Simrac, of which the results were published in May last year, concluded that almost one in five of the older, longer-serving black mineworkers had developed silicosis. The study stated that if the results were extrapolated to the gold-mining industry in general, “they confirm the existence of a significant epidemic of silicosis in the industry and a concomitant need for dust-reduction strategies”.

The research also found that the current occupational exposure level of 0,1 mg of quartz dust per cubic metre of air did not protect workers against the disease and suggested that it would have to be reduced to 0,05 mg/m3 to improve protection.