GREEN LIGHT FOR CLASS SUIT: SILICOSIS AND TUBERCULOSIS
Title: Bongani and others v Harmony Gold Mining and others (consolidated case number 48226/2012)
On 13 May 2016 the High Court of South Africa confirmed the validity of a class action suit against gold mining companies for damages suffered by more than half a million mine workers who contracted silicosis and tuberculosis underground during their time being employed at the relevant mines. These mine workers brought an application for certification of their proposed class action on behalf of current and previous mine workers suffering from silicosis and tuberculosis, including dependents of mine workers that died as a result of silicosis or tuberculosis.
Silicosis is caused by inhaling Crystalline silica/ quartz dust from gold-bearing rocks. Symptoms can take up to 15 years to appear and include shortness of breath and susceptibility to tuberculosis. The applicants alleged that the mining companies were negligent and can be held liable for these damages as a result of failure to comply with their duty of care obligations (to create a safe working environment for employees). This failure resulted in ongoing unlawful emissions of silica dust. Measures that could have been implemented as part of the mines’ duty of care obligations to prevent mine workers’ exposure to silica dust include the following:
- the implementation of dust control and elimination measures,
- dilution of silica dust,
- the implementation of sufficient ventilation systems to evacuate contaminated dust,
- the provision of suitable respiratory personal protective equipment, and
- monitor the effects of silica dust exposure on mine workers.
The Court held that the proposed class action is the most appropriate way for this matter to proceed. The mine workers can now proceed with the issuing of summons against the mining companies. Thereafter the liability of each mining company will be determined by pairing all claims proven against specific mining companies.
“So what” for my operation?
It is important to take note that, in this case, the Court allowed employees who suffered damages as a result of negligent conduct on the side of the employer to claim such damages through a class action.
Ensure that your operation complies with the duty of care principle in health and safety legislation to prevent or minimise liability similar to that of the mining companies in the above mentioned case. In terms of health and safety management processes, your organisation must be ensured that:
- Risks are identified. This can be done through multiple layers or types of risk assessments such as baseline line risk assessments, health risk assessment or hygiene surveys.
- Control measures are identified and effectively implemented, such as the dilution of silica dust, the implementation of sufficient ventilation systems to evacuate contaminated dust, the provision of suitable respiratory personal protective equipment, and the appointment of competent advisors such as Hygienists and Occupational Medical Practitioners.
- Training of employees pertaining to the implementation of control measures is conducted. This ensures that controls are effectively implemented and controlled.
- the effectiveness of the control measures implemented is monitored by, for example, medical surveillance programmes, task observations and area and personal silica dust exposure monitoring. Where shortfalls are identified, corrective actions are implemented.
Ensure that your operation is, at all times, in a position to prove that it took reasonable measures to provide a safe and healthy working environment to your employees. Record management is a key aspect in proving duty of care.
What is Shangoni’s approach?
Shangoni has expertise in developing and implementing risk based health and safety management systems for clients in the mining and non-mining industry. These systems are an effective tool to ensure that all risks from the workplace environment, activities performed and emanating from legal requirements (to which your organisation must adhere to) are identified, understood and controlled. This will ensure that your legal liability as well as risks in terms of health and safety are managed. Such will proof compliance with your duty of care obligation.
