Justine Nolan, Professor of Law and Justice and Director of the Australian Human Rights Institute, UNSW Sydney
Today, business and human rights is a well-accepted field of study promulgated by academics, industry and civil society groups around the world. But in the mid-1990s, when a fledgling lawyer in England decided to sue a behemoth asbestos corporation in South Africa, the idea that corporations might have a responsibility to respect human rights, no matter where, was more pipedream than reality.
David Kinley’s book, In a Rain of Dust, tells a Dickensian tale of men and women killed by the mining of asbestos and the lawyer who fought for them. It reads like a well-crafted thriller rather than the diary of a very complicated lawsuit.
Review: In a Rain of Dust: Death, Deceit, and the Lawyer Who Busted Big Asbestos – David Kinley (Johns Hopkins University Press)
The book has all the elements of a John Grisham novel: corporate coverups, deceitful lawyers, international intrigue, scientific discoveries, political subterfuge, downtrodden yet persistent workers, death, many deaths, a union seeking justice and a lawyer in a land far away who simply won’t give up.
Kinley, a Sydney-based human rights lawyer and academic, skilfully delivers this tragic tale of how a UK company – Cape Plc – was eventually brought to account for its pernicious history in the commercialisation of South African asbestos.
This is a complex legal case where the reader needs to understand some basic science and law. Kinley manages to present the story in the most engaging and non-legalistic manner, hooking readers from the opening paragraph.
A deadly history
Asbestos, a naturally occurring mineral, once lauded for its durability and fire resistance was widely used in construction around the world from the late 1880s. It is now well known as a killer – but this is not new information.
As Kinley notes, an 1898 report by “Britain’s first female inspector of factories” noted the “evil effects of asbestos dust” on human health. In 1931, “dismally inadequate” regulations were introduced in the United Kingdom, acknowledging the health dangers of asbestos.
Throughout the 1900s (most significantly in the 1960s) medical studies established the link between asbestos and mesothelioma (cancer). Today, the website of the World Health Organisation states: “all forms of asbestos […] are carcinogenic to humans”. Globally, it notes
more than 200,000 deaths are estimated to be caused by occupational exposure to asbestos – more than 70% of all deaths from work-related cancers.
What did Cape Plc – a UK based company and one of the world’s largest corporations mining and selling asbestos – know during its golden years of production in the 1960s-1980s in South Africa? This is what a young, English-based lawyer, Richard Meeran, set out to prove in the mid-1990s.
Meeran had been approached by members of Britain’s National Union of Mineworkers to help sue a Cape Plc on behalf of the employees of its former South African subsidiary companies who were “diseased and dying”.
Meeran’s Anglo-Indian heritage roots in South Africa, along with his experience of growing up in the UK in a time when, as Kinley notes, “racism was rife”, meant this case – despite the legal odds stacked against it – had immediate appeal.
The complexity of the legal case cannot be understated. Thorny questions included where and when to file it, how many potential plaintiffs there would be and how to find them. There were sky-high stacks of documents to sort through, including expert medical findings.
It was also unprecedented. The idea that a UK company should be responsible for the working conditions of its subsidiary in South Africa was considered by many at the time, including the company in question, to be preposterous.
Thousands of plaintiffs
The case formally began in 1997 and concluded (via settlement) in 2004. The plaintiffs were mostly former miners or relatives of deceased miners employed at or living near Cape Plc’s asbestos mines in the Northern Cape and Limpopo provinces in South Africa.
Initially, the case was filed on behalf of six plaintiffs including a female secretary at one of the mines, several male miners, wives of deceased miners, and a domestic servant who worked for one of the mine managers, washing his work clothes daily.
Ultimately, this case expanded to include 7,500 plaintiffs. One thousand of those did not live to see its conclusion.
Racism lies at the heart of this story. It is no coincidence that those most deeply affected by the corporation’s neglect were black and coloured peoples (to use the terms of the time and of the book). Still, the initial group of plaintiffs was a deliberately chosen racially diverse group.
Negligence was at the heart of the case. A significant number of plaintiffs had been employed in the mines without any protection from asbestos dust. Dust from the mines also invaded nearby communities. The claim thus encompassed both occupational and environmental exposure.
To prove negligence, there are three key elements to establish. The first is that a duty of care is owed by the defendant to the plaintiff; the second that the duty was breached; and finally, proof of damage suffered because of that breach.
The challenge of the legal team was to show Cape Plc knew of the health hazards posed by asbestos mining and failed to protect the workers and the surrounding impacted communities from this deadly dust.
The case was brought in the UK courts. The first three years was spent just arguing jurisdiction; that is, was the UK an appropriate place to hear a case that involved South African workers?
Through dogged persistence and a real David versus Goliath battle, Meeran was ultimately able to garner evidence that Cape Plc was aware of the significant health risks associated with asbestos exposure. It had deliberately concealed this knowledge to protect its bottom line.
The South African government had intervened in support of the plaintiffs, with the courts ultimately deciding in the plaintiffs’ favour. This was hugely significant. The case would simply have floundered in South Africa due to a lack of legal aid for the plaintiffs and limited capacity for the courts to hear the claim.
Kinley’s masterful telling of this tale makes the complex legal topics accessible, but most importantly, brings to life the stories of the many and varied victims of Cape Plc.
It sets the scene for a gradual unfolding of how a corruption of science and politics, a lack of legal scruples and a unscrupulous company
sustained a pernicious industry and perpetuated the death and suffering of thousands of the country’s poorest and most marginalised communities.
The Cape Plc case is significant because it represents the first time globally an injured employee of a subsidiary company established their employer’s parent company owed them a duty of care. It’s one of those “bread and butter” cases all upcoming business and human rights lawyers now study.
Caple Plc initally agreed to a £21 million settlement. However, this was later revised down because of Cape’s precarious financial position. Utimately it paid £7.5 million, alongside a £35 million trust established by Gencor, a South African company which took over some of Cape’s asbestos operations.
The case provided the impetus for establishing innovative legal pathways to hold corporations responsible for human rights wrongs at a time when impunity was more common than accountability.
It settled seven years before the UN adopted its Guiding Principles on Business and Human Rights. These established that all corporations, no matter where they operate, are expected to respect human rights and victims must have access to effective remedy. Such a concept is now relatively mainstream but there remain significant gaps between expectations as to how a corporation should behave and holding them legally accountable when they do not.
Today, the global construction industry – like apparel, electronics, agriculture and many others – is sustained by low wages, lax regulation and a persistent failure to take meaningful corrective action to remedy human rights abuses. The global economy links individual workers with large and small companies across national, political and cultural boundaries.
In some (relatively rare) cases, there is legal accountability for wrongdoing, but the prevalence of substandard working conditions remains a global problem. At least in the case of asbestos, business as usual (regardless of the cost) is no longer an option.
Justine Nolan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
