Cape/Gencor lawsuits (re So. Africa)
In 1997, a group of five South Africans suffering from asbestos-related disease (ARD) brought suit against Cape PLC in the English High Court seeking compensation for their injuries from Cape’s asbestos mining and milling activity in South Africa. The plaintiffs, former Cape workers and individuals living in the vicinity of Cape’s operations, alleged that Cape exposed its workers to 30 times the British legal limit of asbestos dust without adequate protective gear and that asbestos related injuries were suffered by those living near Cape’s asbestos operations. After the claim was filed, Cape applied to stay these claims on forum non conveniens grounds, arguing that the case should be tried in South Africa. At the beginning of 1998, Cape’s application was granted by the trial court, but the Court of Appeals later reversed the lower court’s decision. In 1999, another 2000 claims were commenced against Cape in England for ARD based on Cape’s activity in South Africa. Cape reapplied to stay these new claims, in addition to those filed in 1997, and Cape’s application was granted. On appeal, the Court of Appeals affirmed the lower court’s ruling. The plaintiffs then appealed to the UK House of Lords, and in 2000 the Law Lords held that the case should be allowed to continue in the English High Court. The Law Lords found that South African courts would not be a viable alternative forum because legal aid in South Africa had been withdrawn for personal injury claims and no reasonable likelihood existed for the plaintiffs to acquire effective legal representation on a contingency fee basis for a case of such complexity. After the House of Lords decision, more claimants joined the case, and by 2001 there were approximately 7500 claimants. In 2001, Cape agreed to a £21 million out-of-court settlement with the plaintiffs, but the company encountered financial problems in August 2002 and did not meet the agreed settlement terms. Therefore, the litigation recommenced in September 2002, and Gencor Ltd. was joined as a defendant in the case. Gencor is a South African company which took over some of Cape’s South African asbestos operations when Cape left the country in 1979.
In 2003, the plaintiffs, Cape and Gencor reached a settlement agreement. There were three parts to the settlement. First, Gencor established and now administers a £35 million trust in South Africa (the trust is to compensate ARD victims in South Africa who were not represented by Leigh Day & Co.). Second, Cape settled with its 7500 claimants for £7.5 million. Third, Gencor settled with the 7500 claimants for approximately £3 million.
- [PDF] “Cape plc: South African Mineworkers' Quest for Justice”, Richard Meeran [counsel for plaintiffs], International Journal of Occupational Environmental Health, Jul/Sep 2003
- Action for Southern Africa: “Cape Caves in on South African Asbestos Case”, 13 Mar 2003
- Cape PLC: Cape Annual Report 2003 [scroll to page 47, item 26(ii) for discussion of 2003 settlement]
- Leigh Day & Co. (plaintiffs’ counsel): South African Asbestos Victims Finally Get Their Money, 30 Jun 2003
- Thompsons Solicitors (counsel for claimants suing Gencor): Landmark Settlement Brings Justice for Thousands of SA Former Asbestos Miners, 13 Mar 2003
- UK House of Lords: Judgments - Schalk Willem Burger Lubbe (Suing as Administrator of the Estate of Rachel Jacoba Lubbe) and 4 Others and Cape Plc. and Related Appeals, 20 July 2000 [House of Lords decision]
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[PDF] The Changing Landscape of Liability - A Director’s Guide to Trends in Corporate Environmental, Social and Economic Liability
[refers to Phillip Morris (part of Altria), McDonald's, Nestlé, Nike, Unocal, Ford, Shell, Monsanto, ExxonMobil, Dow Chemical, Union Carbide (part of Dow Chemical), Talisman, Walt Disney, Swiss Re, General Motors, General Electric, Texaco (part of ChevronTexaco), Chevron (part of ChevronTexaco), Gap, Southern Peru Copper (joint venture Grupo México, Cerro Trading, Phelps Dodge), Coca-Cola, Rio Tinto, Freeport McMoRan, Del Monte (Fresh Del Monte Produce), Dyncorp (part of Computer Sciences), Barclays, Cape plc, Mitsubishi, Total, Burger King, KFC (part of YUM!), Kraft Foods (part of Altria), PepsiCo]
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Author: Steve Bloomfield, Independent [UK]
[scroll to para. 15 onwards for references to cases against companies] Martyn Day and Sarah Leigh set up Leigh Day in 1987...The firm's speciality, says Day, is complex class-actions like the case in Kenya - David vs Goliath battles that have in the past pitted Leigh Day against British companies and government departments, as well as foreign governments and multinationals on behalf of groups of often poor litigants. [refers to Cape Plc]
Author: Barrie Clement, Independent [UK]
[UK]: A leading London law firm agreed a deal to destroy documents which could be used by workers to claim compensation for asbestos-related diseases, The Independent has learnt. The City firm, Leigh, Day & Co, signed an undertaking with Cape plc to keep the agreement confidential and to resist any legal action to disclose the evidence. After claimants in other cases protested against the deal, Leigh, Day told Cape that instead of destroying the documents it would hand them back to the company...Although the company says that it will keep original copies of the papers, it could take prolonged litigation for a new set of claimants to obtain them...Sally Moore of Leigh, Day said that documents belonged to the company because the claim was settled out of court. Only papers disclosed at a legal hearing are regarded as "in the public domain".
Author: Sir Geoffrey Chandler
Companies today have a choice – of continuing to oppose anything that goes beyond the voluntary, so incurring further erosion of reputation and public trust, or of engagingly constructively with efforts to provide an appropriate regulatory framework.
Author: Ronnie Morris, Business Report [So. Africa]
Moral responsibility by multinational firms towards former mineworkers who are ill or dying because of exposure to asbestos dust and fibres appears to be an elusive dream. One need look no further than the shameful actions of British firm Cape when 7 500 South Africans sued for damages in the London high court…In the end, Cape agreed to settle out of court…Despite several extensions, Cape reneged on its undertakings while people continued to die of asbestos-related diseases. The company eventually paid £7.5 million…Gencor…did the honourable thing when confronted with litigation by 37 former mineworkers…Gencor agreed to settle out of court and paid a final settlement of R460.5 million. The company denied any liability. [also refers to Leigh Day, Impala Platinum, Griqualand Exploration & Finance Co., Msauli Asbes Beperk, Xstrata Coal, Wandrag Asbestos Mining Co., Lonmin]
Author: Amnesty International Secretary General, Irene Khan [adapted from speech at Novartis conference]
Amnesty International has been working on the issue of human rights and business for over 10 years...We work in a variety of ways, some more controversial than others, ranging from mass mobilisation to tabling shareholder resolutions and participating in voluntary schemes like the Global Reporting Initiative and the UN Global Compact to dialogue and training of corporate actors. [refers to BP, Shell, ExxonMobil, Coca-Cola, Cape plc, Unocal]
Author: Leigh, Day & Co
[refers to lawsuits in UK against Rio Tinto for conduct in Namibia, Thor Chemicals for conduct in South Africa, Cape Plc & Gencor for conduct in South Africa]
Author: Business Day [South Africa]
A long-running battle for compensation by the British company Cape to South African miners with asbestos-related diseases was settled yesterday for 7.5 million pounds. The settlement includes provision for a further 3.1 million pounds by the South African company Gencor, making a total payout to the workers of around 10.6 million pounds. The compensation deal was clinched in March, but formally approved yesterday
Author: Lynne Altenroxel, Mercury [South Africa]
After a four-year battle, thousands of terminally-ill asbestos miners have learnt that they will receive only half of the money promised to them in a multi-million rand lawsuit. [settlement by Cape Plc and Gencor]
Author: South African Press Association, in Mail & Guardian [South Africa]
Various organisations said on Thursday nothing would reverse the loss of life and damage suffered by victims of asbestos-related diseases but they welcomed the settlement agreements with Cape plc and Gencor with a mixture of anger and relief.
- Related stories: Black workers to receive £45m asbestos settlement [South Africa] Cape/Gencor lawsuits (re So. Africa)
- Related companies: Cape PLC Gencor (mining)