The Gauteng High Court has found no basis for a “factually hopeless” lead poisoning class action against Anglo American, linked to the Kabwe mine in Zambia in which the company had owned a stake between 1926 and 1974, with the judge saying the “harm now contended was unforeseeable at the time”.
In a 126-page ruling, Judge Leonie Windell found the class action suit the plaintiffs intended to pursue – which their lawyers say could involve as many as 142 000 plaintiffs – sought to advance “an untenable claim that would set a grave precedent”, reports News24.
In her ruling, Windell found that the 12 Zambian child and women plaintiffs who had sought to bring the class action against Anglo over the lead poisoning they had suffered while living in the mining town of Kabwe had failed to make out a “prima facie case on the facts” or “an arguable case on the law”.
The judge said the plaintiffs had not disputed Anglo’s evidence that it had held a stake in the mine between 1926 and 1974, before the toxic qualities of lead were fully known or understood, and had operated the mine with “emissions controls that were state-of-the-art for their time”.
Additionally, she said, the plaintiffs’ own expert had recognised that these controls were “highly efficient, often approaching 99% even for the smallest particles”.
She said the plaintiffs were seeking permission “to advance an untenable claim that would set a grave precedent”, pursuing a case that suffered from “hindsight bias”.
“The precedent is that a business could be held liable half a century after its activities have ceased, to generations not yet born, as a result of being tested against future knowledge and standards unknown at the time.
“To establish that Anglo owed a duty of care 50 years and more ago to the proposed class members currently living in the Kabwe district, this court must be satisfied that there is prima facie evidence to find that between almost 100 and nearly 50 years ago, Anglo must have foreseen that the current community, not the historical community, would suffer harm from lead released into the environment by the mine during the relevant period,” she said.
She added that the plaintiffs could not “meaningfully contest” Anglo’s evidence that it had no say in the Kabwe mine’s operations after it was nationalised by the Zambian Government in 1974 and taken over by state-owned Zambia Consolidated Copper Mines (ZCCM).
For this reason, Anglo's alleged acts and omissions during the period between 1926 and 1974 represent the high-water mark for the applicants’ case, she said.
“Following that, ZCCM admittedly ran down the mine by failing to invest in skills and maintenance. From at least 1985 to 1994, it operated the smelter plant with inadequate (and, for the most part, no) emissions control.
“During this period, all measures of lead pollution, including community blood lead levels, skyrocketed. After the mine’s closure, ZCCM neglected its remediation obligations, which is typically an integral component of a mine’s life cycle.”
Anglo had said the class action the Kabwe plaintiffs had pursued against it should actually have been directed at the ZCCM – an argument Windell appears to have largely accepted.
“The applicants’ case is further bereft of any specification of what Anglo is said to have done wrong, because they fail to say what the reasonable miner in Anglo’s shoes would have done differently to prevent or minimise lead emissions at the time,” she added.
“They have not cited any precedent in which an alleged historical polluter was held liable in tort for negligence because it owed a duty of care to those who had not yet been born at the time it allegedly polluted.
“I agree with counsel for Anglo that the limited legal precedents available indicate that establishing such an intergenerational duty of care is untenable, as damage to subsequent generations and decades into the future could not have been foreseen.
“Therefore, the harm now contended for by the applicants was not foreseeable at the relevant time, nor were the proposed classes, the majority of whom had not yet been born.”
Australian report
The judge also rejected the plaintiffs’ argument that the 1893 Broken Hill Report, which documented the outcomes of a New South Wales commission inquiry into lead poisoning in children, showed that Anglo American must have been aware of the health risks associated with lead smelting and mining at the time of its involvement with the Kabwe mine.
“The report purportedly presented substantial evidence of lead poisoning in the neighbouring communities of Broken Hill, Australia, attributed to the emission of fumes from the lead smelters which were ‘injurious to the general population’. The commission noted that ‘the kind of poisoning to be expected among both classes (workers and townspeople) is almost exclusively of the chronic sort’,” she said.
The Kabwe plaintiffs argued that “initial evidence” suggested the Zambian mine had direct contact with Broken Hill and ought to have been aware of the report.
“However, Anglo was only established in 1917,” Windell countered.
“There is no evidence that the report came to the attention of Anglo at any point (including between 1925 and 1974). The applicants do not explain how an entity, established 24 years after the report was published, located in a different country and on a different continent, and in an age of basic forms of communication technology, came to know of this report. In these circumstances, it cannot be suggested that Anglo had knowledge of the harms set out in the report.”
Anglo welcomed the decision, but the law firms representing the plaintiffs, Mbuyisa Moleele and Leigh Day, said they would seek to appeal the ruling.
See more from MedicalBrief archives:
Anglo American ‘knew of lead danger’ at Zambian mine
Anglo American seeks more documents in Zambian mine lead poisoning action
Gauteng High Court asked to rule on Zambia lead-poisoning class action