Text of talk given by Anthony Coombes during November 2002 on a visit to Australia

27th November, 2002

"Throughout history, men, seeking their own ends, have employed bad law as a means to exploit their fellow men" Stephen Mulholland, South African businessman.

"Asbestos fibre is like a fish hook. Once it gets stuck in your lungs it cannot be taken out." Hezekial Manailana, vice chairman of the Mafefe Asbestos Committee.

The Cape plc case

In 1998, 5 South African asbestos disease victims of British multinational Cape plc were given permission by British Courts to bring their case in England. By early 1999, two thousand others had also begun court action in Britain. The increase in numbers led to all the cases being halted in England in July 1999, including the original 5. The reason was that whereas 5 South African cases about the responsibility of a British company could be heard in London, 2000 made the connections with South Africa much stronger and made South Africa the appropriate place to bring these cases. Our Court of Appeal confirmed this decision in November 1999. However, in June 2000 the Law Lords, our highest Appeal Court, decided all the cases should go ahead in Britain because all the evidence showed that if the cases were sent to South Africa, they would not be taken up by lawyers there, and would get nowhere. A Group Action began in London and a Judge was put in charge of managing the case. The number quickly grew to 7,500 by the time registration was stopped in August 2001. I represent one third of these clients.

The issues in the Cape case

(1) Whether South African asbestos disease victims were entitled to bring a court action in England against a British company. Cape spent several million pounds fighting this issue. It went twice to the Court of Appeal and twice to the Law Lords, our Highest Appeal Court. This process took 4 years. It came down to one issue - whether if the case was halted in London because Johannesburg or another SA court was a more convenient place to deal with it, it would ever go ahead in SA. South Africa was the natural forum because the clients and many witnesses lived there, the mines were there, and many of the documents were there. Cape was so desperate to demonstrate that the action could be brought in South Africa that it approached a lawyer there (Professor David Unterhalter) and asked him what it would cost them to fund him to bring an action against itself. Being a Professor, he saw the conflict of interest and declined the offer.

Cape wanted the cases halted in England and sent to South Africa because (1) it knew that South African attorneys could not take on anything this big; and (2) if the victims won the case, the living claimants would get perhaps one fifth of the compensation likely to be awarded in England, and the majority of fatal claims would be completely worthless under South African law.

The cases were allowed to go ahead in England because the Law Lords decided in June 2000 that South African attorneys there would never take them on. There was no legal aid in SA, no Unions with money to fund the cases, no law firms big enough to do the case. The British Government underwrote the cost of these cases in Britain through legal aid. It did this because Cape plc is a British company. It was willing to fund a case that tested whether British courts had jurisdiction to hear this type of case, and then tested the liability of parent companies for the acts of their subsidiaries.

(2) Whether a multinational holding company based in England is liable for things done or not done in Africa as part of the process of bringing a dangerous product into its worldwide manufacturing operations. This issue has not been decided. There have been several cases settled in Britain involving this issue, but the courts have not yet ruled on it. This is the most important part of the case. Up to 1948, Cape ran its Northern Cape operations directly from London. Any decision making it necessary to spend more than £30 had to be made in London. In 1948, Cape set up a SA holding company, Cape Asbestos South Africa Pty Ltd (CASAP) and a SA mining company Cape Blue Mines that operated in the Northern Cape. Since 1925 it had had subsidiaries EGNEP and AMOSA operating in the Northern Transvaal. But its directors in London, Newton, Riley, Hodgson, Gaze, Higham, Dent, MacKeurtan, and others, were also directors of the SA subsidiaries, retained detailed control of operations in SA, and knew more than anyone in SA about the health risks of asbestos. Dr. Richard Gaze was later to die of mesothelioma. Cape itself was part of a larger empire, with at various times Central Mining, Anglo American, and Charter Consolidated having degrees of control. Cape formed partnerships for example with James Hardie in Sydney, manufacturing caposite (Caposite - contraction of Cape and Amosite) pipes and slabs in Sydney. Cape sold its SA operations in 1979. Geoffrey Higham, one its directors said: "Asbestos was getting a very bad name, very sadly and unjustifiably, because it's a very useful material, and it's interesting to offset the number of people whose health has been changed by the number of people whose lives have been saved by asbestos, which tends to be overlooked." In fact, black labour costs had also risen, there were technical mining problems as it got harder to reach the best ore, and they were worried about the SA political situation. Justin Mackeurtan a South African born old-Etonian, was a director of the British and SA companies from the early 60s and never accepted that asbestos causes mesothelioma, even 30 years after he left Cape. One of the most dubious episodes in the history of the asbestos industry and therefore of Cape was the survey funded by Cape and T&N Ltd in 1960-61 about the link between asbestos and mesothelioma by the Pneumoconiosis Research Unit (PRU) in SA following research by Dr Chris Wagner, who had identified the disease during his work at Kimberley in the Northern Cape. The preliminary results of this survey were accordingly edited and its publication limited to a very small group of people and in 1962 the asbestos industry ended the survey. There is some evidence that doctors and scientists involved in the study were subjected to intimidation by the asbestos industry.

(3) Which system of law applies to the case, and what scale of compensation would the victims be awarded? The position taken by Cape in defending the action was that work conditions had to be judged by standards in Africa, or the third world generally, not by British standards. (1) Cape was insistent for 4 years that the cases should be heard in South Africa not only because it knew that it was virtually certain the cases would never be brought there, but even if they did reach court, damages would be a fraction of British levels of compensation.

(4) Would the cases be lost because of delay in bringing them? South African law provides that legal action must be started within 3 years of knowledge of injury, but very few of our clients had any access to any form of legal advice, and the majority of them had never even heard of Cape plc in Britain. We were confident that the claims would not be defeated by delay, except in the sense that by the time they got to court after several years of litigation in which Cape ran up legal bills of millions of pounds, it would not have the money to compensate the asbestos victims.

John Pickering and Partners' involvement

I represent one third of the group (just under 2500 clients) and have been working on this case since 1998. My firm was invited to represent these clients by South African attorneys (who have since dropped out of the case). We have worked closely for nearly 2 years with another British solicitor, Richard Meeran, who represents the other two thirds of the group. He started research on this case as long ago as 1994. Our practice is based on asbestos work in Britain. We have sued Cape and its British subsidiaries for factory workers and laggers hundreds of times.

South African law protects employers there from being sued directly. Their only legal remedy was against the parent company in Britain. The employer immunity point remains to be tested in South Africa.

A government compensation scheme in South Africa pays small amounts to workers certified as having asbestos related disease. It is a slow and cumbersome system run by the Medical Bureau of Occupational Disease (MBOD) and the Compensation Commissioner of Occupational Disease (CCOD), under funded, and not very well respected. The invariable practice in South Africa was that employers dismissed a worker as soon as he developed symptoms of occupational disease. The state system means that certification at second degree means a worker will not qualify for a Certificate of Fitness for employment at any mine or works.

Our clients

Cape operated in 2 areas: the blue asbestos fields west of Kimberley in the Northern Cape, where Drs Wagner, Sleggs and Marchand discovered mesothelioma working in Kimberley from 1956 onwards. Up to that point the diagnosis had been tubercular pleurisy; and the brown asbestos mines in Mpumalanga and Northern Province (renamed by the provincial government as Limpopo Province - Limpopo is the river that borders South Africa, Zimbabwe and Botswana).

Exports of blue asbestos and brown asbestos from South Africa peaked in 1977, when it exported 380 000 tons of asbestos. At its height in the 1970s the South African asbestos mining industry employed 20 000 asbestos miners.

Blue asbestos, the Northern Cape

The vast majority of blue asbestos or crocidolite came from the Northern Cape in South Africa. The Wittenoom mine in Western Australia from 1944 to 1966 when it closed, produced 3% of the world production of blue asbestos. South Africa produced the rest.

Many of our clients in the Northern Cape live in and around a town called Prieska. This is in the karoo, flat scrubland with the Asbestos Mountains in the distance. The clients are mixed race, "coloured" under the apartheid system, followed in numbers by black and some white clients. They speak Afrikaans. The blue asbestos seams stretch 50km wide and 400 in length north towards the Botswana border, where Cape's biggest crocidolite mine Pomfret was situated. Ironically, there are only a handful of Pomfret workers in the case. Cape began in Prieska in 1893 as an offshoot of De Beers diamond mining operation in Kimberley. It pulled out of the area in 1979. Cape's biggest mine in the Prieska area was at Koegas 40 kms north of Prieska.

In Prieska, Cape had a succession of 3 mills, the most recent one situated at the corner of Conan Street and Asbestos Street in the centre of town. It had an extraction system, which vented the dust at the school next to it, and at people's houses and businesses, such as Marius Smith's. He died of mesothelioma. It was so dusty in Prieska that residents who never worked with asbestos developed severe asbestosis and died from it. Asbestosis caused by environmental pollution is unheard of in Britain. A client, Martin Sawall worked on a largely voluntary basis for the asbestos disease victims in Prieska, after retiring as a schoolteacher. He told us: "As a teacher in Prieska Primary School from 1960 onwards I taught all subjects. I taught Afrikaans, History, Geography and Mathematics. I have never, apart from working at the school, come into contact with asbestos at work. Dust from Prieska Mill and dumps contaminated the school and my house. At my grandmother's house at Andries Pretorius Street (resident here 1943 to 1949), we lived about 150 metres from the mill, north east of the mill. When I came back to Prieska in 1960 the mill was still going, and in 1966 when I got my own house it was still going then. I visited my cousin Hermanus Pieterse at the mill on 2 or 3 occasions to bring him lunch. This was when I was teaching. The dumps were eventually levelled off and a private company came in to level them. They tried to grow grass, which did not grow very well because the asbestos seeped through. Cape had gone by this time. I don't know who did the levelling or why. In the 1980s they started to rehabilitate the area. When it was operating, lots of dust was emitted from the mill and from the dumps next to the mill. In town, there was one big dump that I can recall. The dump was west of the mill. It was within the perimeter of the mill. I played on the dump as a child and rode on the coco pans. Coco pans were used at the mill, and are trucks with 4 wheels. They loaded debris onto the coco pans and pushed them by hand to the dumps. The dumps were not fenced off on the western side, so you could easily get in. I used to pass the dumps going to the church. The road the church was on is now called Mans Street. I used to get an accumulation of dust in my house. The house had to be dusted frequently. There was asbestos fibre and dust in the cavity between the ceiling and the roof." Martin Sawall died of asbestosis recently.

Another client Koos van Heerden also got asbestosis without ever working with it. He said: " From 1974-83 I worked as an insurance broker for Old Mutual Insurance Company at Koegas Mine and Cape Blue Mill (Prieska). Even though I was in fact employed by Old Mutual I worked exclusively with Cape Mines employees and attended to their insurance needs. This arrangement was approved by the mine management of Cape Mines. I visited Koegas Mine selling life insurance for Old Mutual. The manager, Schalk Lubbe, gave me permission to talk to people at work. I visited once a week over a 9-year period 1974-83. I stayed all day. Sometimes I would even have to consult with the employees on top of asbestos heaps. I also used to go into the Cape Blue Mine Mill in Prieska and consult with employees there at their workstations. The mill was the dustiest place. When I came out of the mill I was always covered in asbestos. I was never warned it was dangerous to visit the mine. For the black workers we had a mutual group life insurance scheme. When they died in South Africa, Old Mutual paid benefits to their families in other countries. (2) The mine manager's wife died of asbestos disease. (3) Mr Lubbe lives in Springbok and I talk to him regularly. A crusher operated in the mill and asbestos stone came down from the top into the mill and was ground. They blasted the asbestos from the stone with air into a pipe where it accumulated and was fed into hessian/jute bags. They worked fast. The bags were stacked in the mills and were loaded onto lorries where it was taken to Draghounder, the railway siding about 70 kilometres from Prieska. From there it was taken by rail overseas. Schalk Lubbe was in charge of the mill. He was the mine secretary. The accommodation for the workers, the compounds, were about 500 metres from the mine. The "B" compound was a compound for black people. This was the compound closest to the mine. The white workers, managers and so on, lived in living quarters about 1 kilometre plus from the mine. I was never offered a mask, and I just didn't appreciate I was in any danger. I was never given a mask to wear either at the Koegas Mine or at the mill in Prieska. There were no warning signs of the adverse effects of asbestos at the mines or at the mill. All of my customers were Cape employees. The insurance premiums were deducted from their salary. I have lived in Prieska all my life, but going to Koegas Mine is the only industrial asbestos exposure I had. Even outside on the mine surface and on the roads surrounding the mine, it was very dusty. Asbestos rock was dumped on the roads and building was carried out with asbestos materials. It is a very dry area, with sometimes a strong westerly wind. The asbestos dust could easily be seen with the naked eye in the mill at Koegas as well as in Prieska itself when the wind blew. Even when a car drove past you would see the asbestos dust fly up. Asbestos rocks and tailings were dumped on roads and sports fields. Open lorries drove through town carrying asbestos." Koos van Heerden also died of asbestosis recently. From his mid 50s he was confined to an old people's home in Prieska, entirely dependent on domiciliary oxygen.

When we were negotiating the criteria for payment of environmental asbestos disease victims, Cape's lawyers wanted the entitlement of environmental asbestos disease victims defining very tightly, by reference to distance from the source of pollution. This was basically impossible in Prieska. I went to Professor Neil White, an occupational health expert and chest physician at University of Cape Town Lung Institute. He wrote:

"You ask my opinion about the risk of environmental ARD in Prieska... whether I would accept the proposition that anyone who lived in Prieska, unless for a very short time, was at risk of some form of asbestos related disease at the time that Cape Plc operated an asbestos mill in the town and afterwards...In short my answer...is yes, it is my opinion that environmental exposures to asbestos of persons not working in the Cape Plc mill were sufficient to cause any one, or any combination of the asbestos related diseases in residents of the town, and that these exposures were such that they could have contributed materially to any asbestos related diseases that developed among residents who also worked in another company's asbestos mine.

I have personally visited Prieska on 2 occasions...1981... and 1999. During my first visit to Prieska I met the local GP Dr Pickard and his wife. ...Mrs Pickard gave graphic descriptions of what the town had been like whilst the mill was in operation. From far it could be seen that there was a blue cloud of dust, which on still days hovered over the town. This blue dust was dust emanating from the mill. She described how balls of fibre would accumulate on all flat surfaces of her house and other houses. If one ventured into the ceiling wads of fibre could be found to have settled on the ceiling boards over the years. Dust emanating from the mill was a constant domestic nuisance in the town.

I have been informed that asbestos was for example used in the school athletics ground at the high jump pitch. It was also apparently used on the "greens" of the golf course in the town where rolled fibre provided a better golfing surface than grass.

Asbestos tailings were widely used to repair roads. Most of the roads in this district are not hardened and require constant repair. Asbestos tailings apparently made a convenient substitute for other materials for road repairs. This practice was still being carried out in 1981 and I have photographic evidence of this. (4) Asbestos tailings were also widely used in making bricks for building. Unfortunately this has been quite a widespread practice in all of the asbestos mining districts of South Africa. Today many public buildings are constructed with asbestos cement blocks. This is the case in Prieska...

Asbestos cement building blocks are a highly undesirable domestic contaminant. Such bricks slowly deteriorate over the years and, unless meticulously enclosed, constitute a source of ongoing asbestos exposure for the residents. In general such building material was used in sub-economic housing areas where maintenance tends to be least meticulous. As far as I am aware there has not been a program of domestic asbestos remediation in Prieska.

When I visited Prieska in 1981 the site for the mill had not been environmentally rehabilitated. (5) When I visited in 1999 there had been rehabilitation. The buildings had been demolished and the area was fenced off. New soil had been laid down and an Acacia and Aloe garden had been planted. The nearest mine dumps to the town that I am aware of are on the other side of the Orange River, less than 2 kilometres from the town. These dumps stood entirely open to the weather in 1981 and have now had some environmental remediation done.

...Subsequently I am not aware of any detailed analysis of the persistence of crocidolite in the Prieska environment. I would be most interested to know the results of such a study. Since this mineral is virtually indestructible there is a strong possibility of its continuing persistence.

...During the years of the mill's operation in the town, long term residents of the town who were not employed in asbestos mining or milling could acquire a sufficient dose of asbestos by inhalation through environmental contamination to develop interstitial pulmonary fibrosis or asbestos. Although this finding seems to have been relatively unusual it definitely occurred...

Lesser exposures would have been required to have been responsible for cases of mesothelioma, asbestos related pleural plaques and diffuse pleural thickening as has been documented in the various studies of the town's population.

...What is clear is that the asbestos milling operation in Prieska was responsible for causing continuous heavy environmental asbestos pollution for a period of about 50 years. This pollution affected the whole town and its environment.

...Asbestos milling is far more hazardous than asbestos mining. Although asbestos mining does involve exposure to asbestos the major risks associated with mining crocidolite began with processing the ore. This began with cobbing where rock and asbestos were separated, usually with a hammer. Following cobbing the bags of separated asbestos were sent for milling where risks of exposure were potentially the highest."

A client Anna Hite whose husband Arthur died of mesothelioma as a result of work on the Railway transporting the asbestos from the mine, told us: "you could write your name in the dust on the window sills and when the wind blew the dust looked like shining blossoms floating in the air." Her husband worked for South African Railways 1938-75 as a stoker based at Prieska station and then train driver. She told us there were "asbestos bags all over Prieska station. The dust was 3" thick. Truckloads of asbestos were loaded onto trains & transported away. Most of the train drivers have already died of mesothelioma."

The nearest big Cape mine was at Koegas/Westerburg, and it closed in 1979. Mr Louis Westerhuizen told us: "I don't remember any warning signs, except for a sign at the front gate saying "No Unions allowed"."

Louraine Meerholz's husband died of mesothelioma. He didn't work with asbestos but used to play bowls in Prieska and Koegas. She told us that when they went to play bowls at Koegas their white clothes were always covered in blue/grey dust, that the air was greyish and when they got back to their parked car it would be covered in dust.

At another nearby Cape mine called Keikamspoort, a client Mrs Horn began work as a child of 14 and used to sweep up. The local GP, Dr Deon Smith, told us: "it was expected of them as children to process the crude asbestos & they were paid with sweets." She worked full time 10 hrs a day until 1973. She crushed asbestos. She worked outside the mine. Her hair and clothes were covered in asbestos. She had to sweep the ground clean daily with a grass broom. It was very dry & dusty.

Another client Chrisjam Bosch worked at Koegas for 10 years until 1972, as did everyone else in the household. For 3 years as a child he went into the mine taking food to his parents and used to play on heaps of asbestos waste.

A study made of the impact of mesothelioma in the Prieska district (population 14 000) followed the group born between 1932 and 1936. 15 per 1000 people died of mesothelioma, but this was for whites only. Men and women were equally affected. 25 per 1000 died of lung cancer. If they had been able to follow a black or mixed race group, the figures would have been a lot higher.

I am aware of entire families having died of mesothelioma in the Prieska district. Everyone there has been affected in some way by it. Neil White concludes in a recent article that "there has been significant under detection and under reporting of mesothelioma, particularly in blacks in South Africa; that the incidence of malignant mesothelioma in South Africa is comparable with the highest figures found anywhere else in the world, with indications that it is probably higher; and that the country is still on the upward slope of the 'epidemic.' " (7)

Brown Asbestos, the Northern Province and Mpumalanga

The word Amosite comes from "Asbestos Mines of South Africa", or AMOSA for short, which became one of Cape's subsidiaries and operated around Penge in what was then the Northern Transvaal, until 1979. GEFCO, a South African company, and its parent GENCOR, continued to run Penge from 1981 until 1992. Another Cape subsidiary was called EGNEP. By the 1950s, Cape, through its subsidiaries CASAP, AMOSA and EGNEP was running mines at Penge, Weltevreden and Kromellenboog employing 5000+ people. By 1963, Penge alone had 6500 black workers. The clients in this area are nearly all black Africans and speak Northern Sotho. Many speak a miners' language called Fanakalo. This language developed because of the migrant nature of the mining labour force, so that miners from all regions and other African countries could communicate with each other.

Mr Frederik Welthagen worked at Penge from 1975-77 and again 1984-87. He told us:

"Penge, the town itself, was situated at the bottom of the mountains, what I mean is that it had mountains all around. When coming from Lydenberg after shopping you could take your car out of gear, switch it off and free wheel the last 15 kilometres into town. The result was that as the trucks did their asbestos transport there was always a silver asbestos cloud hanging over Penge. The trees at your home were always whitish silver and had to be hosed down so that they could become green again. We had asbestos dust everywhere; when you drank a glass of water you had to be quick or you would find dust in it. In the 70s we had to work up to 12 hours a day to boost production. In 1987 we were retrenched and left for the gold mines. To come to the point, 8 years after leaving Penge mine in 1995 I started coughing and was short of breath. I went from doctor to doctor. I have gone from bad to worse, no medication could help me. It is now the beginning of 1999 and I know I will not last the year out. The main aspect is - Why were we never told about the dangers of asbestos and why did the mine bosses still send us underground to do the mining? I will never forget that at the "waiting places" underground there were fluorescent lights. These lasted for years, then one day we had a power failure and you could see the dust in your battery light (miners lamp) so thick that you could cut it with a knife."

One of our clients Mrs Boshego worked at Egnep mine as a stone crusher 1949-51, crushing asbestos rock with a hammer and scraping off the fibre, collecting it in bags. She worked on the surface 10 hours a day in a shelter which was "always filled with brown dust" she was not given a mask. She "was so covered in dust I was unrecognisable before washing." She lived 5 minutes from the mine in a shack built of cardboard and sacks. Dust blew in from the plant, and blankets were covered in dust.

Another client, Mrs Matlawa, worked on Egnep asbestos mine from 1945 to 1955 as a stone crusher. "This meant I had to break the stone up with a hammer and scrape off the asbestos fibres with my bare hands. These fibres were then processed further. You could actually see the asbestos fibres in the air around you. It made me cough and sneeze.... I lived in a shack, which I built myself. At home you still found asbestos dust everywhere. Sometimes you could see it on the food you ate. The shacks had no windows to close out the dust so when the wind blew it would fly into the shacks, covering everything. By the end of my shift I was covered in asbestos dust..."

Brenda Brits worked as a nursing sister at Penge mine hospital between 1968 and 1971. Wind blown dust and fibre settled in the hospital, and the patients' clothes were covered in asbestos dust. She lived in a mine house 30 minutes walk from the mine itself. "When production levels were high or it was windy, dust from the mill descended on the residential area like a dark cloud. I could see fibres in the air. Clothes on the wash line were covered in dust before they dried."

Mr. Mabelane worked at Penge 1955-88 as a packer on the surface near the mill, he received and processed fibre from the mill and put it in sacks, compacting the fibre with an iron stamper and sealed the sacks. He also worked as a lasher underground loading loose rocks onto locomotives using a shovel. He wore his ordinary clothes, and had no mask and his nostrils were always blocked. He inhaled dust for the duration of his 9-hour shifts, 6 days a week.

Mr Mafokane died during the progress of the case. He had told us that he worked at Penge 1942-1978 as a locomotive pusher underground and then as a packer on the surface, compacting fibre into bags, and spent 1 hour each shift in the dust room. "This room contained empty bags which the employees had to shake out so they could be re used."

Ms Malepe worked as a packer at Penge 1948-51 in a "big closed shelter above ground. I had to stamp the asbestos fibre into sacks. The process of compacting the asbestos would cause clouds of asbestos dust to be thrown up into my face and I would be forced to inhale it. We were never issued with protective masks and had to work with the asbestos with our bare hands. I was never provided with work clothes. I used my own clothes and wore the same ones six days on the run, often sleeping in my clothes and breathing in the dust at night contaminating the bed." (She slept in the mine compound.)

Child Labour

Child labour was very common in both the blue and brown asbestos fields. Another client, Mr Piet Speelman, born on 6th August 1929, told us: "My mother and father worked at Koegas. My mother was a domestic worker at the white people's houses. My father used to transport asbestos fibre with a donkey cart from Blackridge to Koegas and to Draghoender and back. I did not have the opportunity of school as my mother put me in a job at an early age. My father passed away by then and there was no one to help. I was 3 yrs old when my father passed away. I do remember asbestos dust present in our homes. The dust would infiltrate between the holes in the roof and you could see it resting on the beams. The dust settled on everything and it couldn't be stopped. Especially during the wind blowing westerly. When we slept we would be covered in the dust when we awoke. I commenced employment at about age 9 in 1938. My first job was sorting and I also had to clean the area where the stamping was going on for the next person to come and work. Men would push cocopans up from the tunnel and the cocopan was unloaded about 40 metres away and I would collect the rocks in a barrow and take them to the place where I worked. Tipping the cocopans and unloading the barrow created dust. I worked in front of the tunnel opening about 200 yards from the mill. There were many many people, many women, I estimate about 30 or 40. They were also sorting and stamping. I worked at the same place everyday. When I was sorting I used a 2-pound hammer to chop the stone to separate the rock from the fibre. To sort you put the rock to one side and fibre is put in a drum. It was then given to the stampers who stamped the fibres. I was never given a mask either as a child or as a young man. I also took the waste to the dump. I then sorted the fibre again and put it in bags and loaded the sacks in a pile. The sacks would then be taken to the mill. The lorries would come every second day to the tunnel and I would load the asbestos sacks onto the lorry. It would be driven to the mill and the machines ground the fibre, put it in different sacks and brought it to Prieska. The sacks were made from linen. Later in the years they used plastic bags, like the plastic we use today. That came much much later. I think they changed it to plastic sacks because the "goyang" sacks used to create a lot of dust. When you put this sack down with force it would release the dust through the pores of the bag. You were covered in blue dust -it was all over you. Our clothes were full of dust. I worked at this job until I was 13 years old (1942) then I went to Koegas mill for 3 months. At the mill I worked outside close to the mill. I loaded fine fibre from the ground with a spade onto the truck. The truck would take it to a machine and then it would be tipped into a machine for finer sifting. While the truck went away we rested until the next truck came back for reloading. The truck went over and back about 6 times a day. This was a very dusty job. I was not provided with a mask. I wore a handkerchief but this didn't help much, the dust still got in my eyes, nose and mouth. The first time I went underground I worked 2 years -until the mine closed. I was promoted working underground however I was still not given a mask. The dust affected me even more and this is where my coughing derived from. I undertook training for 3 weeks and I learned about opening and closing the shaft. I did not do drilling for long, really only to get the experience. My job underground was moving the cocopans. The tunnel was very steep. When you walked to the top of the tunnel your legs were numb. I worked from 6am to 3pm with no lunch break. I ate when I had a chance. A drilling machine drilled in the mountain. A worker would go and light the dynamite -they called them "picanins". At 3pm everyone knocks off and the picanins would come and light the dynamite. After the explosions all the rocks would be loose. The workers would return the next day when the dust had settled. All my friends that worked with me at Koegas have passed away, even my cousin who worked with me has died. My younger cousins have also passed away - all from lung diseases. Three years ago my cousin that was promoted with me passed away from mine dust."

The fact that the asbestos mining industry relied heavily on the work of women and children was suppressed. Shareholders in Britain might have disapproved. Mr Leslie McClure, Cape's manager in the Northern Transvaal, wrote in September 1940: "These young natives generally work from 3 to 6 months with us and during that time acquire some idea of work, pushing a barrow, handling a fork, sorting asbestos. Generally, when the time comes to leave, they go home much better individuals both physically and mentally than when they started work." (8) The employment of children, particularly in asbestos mills, went on as late as the 1970s, and there is some evidence that it went on into the 1980s. As for women, under apartheid, work in the asbestos mines or mills at least allowed them to live with their husbands and children, which would not have been possible otherwise.

These jobs were often the only jobs our clients ever had, even if the job lasted just a few years. Medical care in this area is more basic than in the Northern Cape, which is almost "middle class" by comparison. One of the statistics used repeatedly by Cape in the forum arguments was that the average annual income in the Northern Province was £72 per year. The point being made was that it would be outrageous if these people were awarded British levels of damages. A lot of the people look malnourished. Open air meetings that we have with clients and community representatives begin with a hymn or a prayer or both, and end with a prayer. I found out they were also praying for us, their visitors, that we wouldn't have a car accident.

The incidence of mesothelioma in the brown asbestos fields of the Northern Province is much lower than in the Cape, where blue asbestos was minded and milled. It is definitely under diagnosed. Medical facilities are very basic so the disease is not diagnosed. Many people who would later develop mesothelioma die in their 50s of other causes. Many workers were migrants, who have returned to other countries and whose health would be impossible to trace. They die of diseases like TB, and hypertension. Many die of "natural causes," a description that reflects the lack of medical facilities in this area.

Although the vast majority of our clients are poor black or mixed race, asbestos hit the white management as well. Susan Swinney died of mesothelioma in September 2001 aged 61. Her father was the managing director of Cape asbestos factory at Benoni near Johannesburg for 18 years. As children she and her sister often accompanied their parents on visits to Cape Asbestos mines at Penge, Kuruman and Pomfret. She went with her father to the Benoni factory on Saturdays. She remembered "asbestos fibres shining in the sun's rays coming through the factory windows".

The Agreement

In December 2001, the company being sued, Cape plc, agreed to set up a Trust (9) to compensate existing and future asbestos disease victims. Cape undertook, with the help of an insurance company (which cannot be named), to pay £11 million by 30th June 2002 and a balance of £10 million over the next 10 years, a total of £21 million, plus a contribution to the costs of bringing the case. The British Legal Aid Board (now Legal Services Commission) also agreed to contribute to the costs of bringing the case, in the interests of achieving this settlement. The $A 52 million was designed to compensate all present and future asbestos disease victims who could prove they were exposed by Cape and that they had asbestos disease. This embraced workers and residents. The levels of compensation were agreed at modest amounts in British terms. The amounts were meaningful for the victims. Many of our clients live on about $A1200 a year. The dilemma we had was that if the case went to trial the claimants would very likely have received nothing. We did not believe that Cape plc could survive a trial. Neither could we guarantee success. There had been no similar case in Britain establishing the direct liability of a parent company. The settlement was the best compromise possible, based on what Cape told us they could afford to pay, and what our own researches told us they could afford to pay. Individual payments were influenced by the inherent uncertainty about how many new victims would come forward and over what period of time; it was £5250 for mesothelioma, £3250 for asbestosis, £1600 for pleural thickening, and £700 for plaques. Victims could return to the Trust for more compensation if they developed mesothelioma or lung cancer in the future. Capital had to be preserved in the Trust so that it did not run out of money for at least 11 years. In return for the £21 million, our clients had to undertake not to sue any other asbestos employers or manufacturers in South Africa. Cape wanted "finality", and knew other companies that these clients might sue would join them into further court actions. Cape also insisted on the South African government's agreement that it would not sue Cape for the cost of rehabilitating the former mines and dumps. Cape also insisted that the 2 British firms involved in the case undertook not to act again against Cape on behalf of SA victims, and that we destroyed all the documentation obtained in the case. We were willing to make all these concessions, and so was the South African government, and the clients would have agreed not to bring actions against other companies. It was a very detailed agreement, negotiated over many weeks. But it was only an Agreement. Cape would not submit to a Judgment, and we could not make them do this. We were assured by Cape's Chairman it would certainly have the money by June 2002, and possibly by March 2002.

From December 2001 onwards, a lot of work was done (for free by us and by Trustees) to implement the Agreement. Trustees were found, including Cyril Ramaphosa, Dr Ndele, head of the Medical Bureau for Occupational Diseases, Sarah Leigh, Dr Sophie Kisting of Cape Town University, Crosby Moni of the South African National Union of Mineworkers. Staff were lined up and offices earmarked for the Trust operations. The objects of the Trust, described in the Agreement, were "to promote the communal or group interests of the claimants and any future applicants suffering from asbestos related disease in South Africa or their dependants or estates as a result of exposure to asbestos in relation to Cape operations." Trustees held meetings, and Trust documentation was prepared. Banks were found to administer payments. We and our colleagues "processed" 7000 sets of medical and work records to establish the entitlement in principle of clients to payments from the Trust, the amounts of those payments, and any appropriate "discounts." Discounts of 33% had been agreed for cases that had always been fatal cases. Under South African law, those claims would not have been possible to bring. Under South African law, the claim for pain and suffering does not survive the death of the victim, unless a court action has been started and a defence served by the death. A general discount of 25% was agreed for clients who had exposure to asbestos dust other than with Cape plc. We spent several thousand hours unpaid calculating individual clients' entitlements. We also communicated the details of the settlement to all our clients in writing and at public meetings and dealt with their questions.

Agreement broken

In June 2002, Cape failed to pay the £11 million. They asked for more time to pay. They then asked for even more time to pay. On 15th October, we went back to Court. Cape has said it remains "committed to the settlement", but to date it has not paid a penny. It has made various revised proposals of payment over a longer time, but to us now it appears to be backing away completely from the Agreement hammered out in December 2001.

The Judge ordered that the case should go on, and gave us permission to add a South African Company, Gencor Limited, and Cape's parent company, Charter, as defendants in the case. Gencor has been added because another South African company, GEFCO, took over the asbestos mines when Cape pulled out of South Africa. Gencor was GEFCO's parent. Penge Mine was sold by Cape in 1979 to Transvaal Consolidated Land & Exploration and then in 1981 to the Griqualand Exploration and Finance Company (GEFCO). Many of our clients had worked for GEFCO before and after 1979. GEFCO itself is not worth bringing legal action against, and South African law gives the employer immunity. But its parent company, GENCOR, has substantial assets, and controlled GEFCO in much the same way that Cape controlled its subsidiaries in South Africa. Seeing action coming against it, not just from the Cape victims, but many other former employees and residents, GENCOR closed its office in Britain, and proceeded with its plan to "unbundle", or get rid of its only remaining assets, its shares in a company called Impala Platinum. (IMPLATS). South African attorneys have applied to the Johannesburg court to stop this happening, and we have joined in that case on behalf of our clients. That hearing was due to begin on 19th November.

Cape has compensated 4 Italians who worked at Cape's Turin factory Capamianto, whose cases were settled in the same discussions as those involving the African cases in December 2001. Cape continues to compensate British victims, who are in a position to obtain a judgment against the company. The company is sheltering behind its overdraft.

A dilemma

If the Company folds, not only will the South African current and future victims lose compensation, but future British victims will go uncompensated. It is in the interests of the victims that the company survives. The company knows this, and uses this fact to delay or avoid payment of agreed sums.

Safety nets

We have safety nets in Britain (the Pneumoconiosis etc (Workers' Compensation) Act 1979 Act and industrial injuries benefit). The Act pays a small fraction of court awards, on average one fifth. Industrial injuries benefit pays a small pension. Neither safety net is there for the South African clients.

White asbestos, Msauli, South Africa/Swaziland border, and T& N Ltd Swaziland

Richard Spoor, a South African attorney based in Nelspruit, is trying to obtain compensation for asbestos workers at South Africa's last remaining asbestos mine, Msauli, on the SA/Swaziland border. I went to a meeting with him there to meet these workers. He has links with the South African NUM but they don't have the funds to support the litigation, and he is relying on foreign support to do this at all. He has been trying to stop the parent company Gencor Ltd "unbundling" and we have joined in his application in the court in Johannesburg to stop this happening, because many of our Cape clients also have Gencor exposure. If Cape defaults completely, Gencor may be the only source of compensation for them.

T&N Ltd (formerly Turner & Newall) ran a chrysotile mine at Havelock or Bulembu from 1938 until the mid 1980s. Between 1951 and 1954 crocidolite fibre was brought from a nearby mine (Bute) and limpet spray fibre was manufactured there. This was used for spraying railway carriages in South Africa. An aerial runway carried the asbestos to a railhead at Barberton in South Africa, and from there to Maputo in Mozambique. Many of the workforce developed asbestosis, pleural disease or plaques.

In 1976, Dr H.C. Lewinsohn visited the mine from Turner & Newall in Manchester, and reported back to Harry Hardie, Board Member in England:

"I was in two minds as to whether I should enter the grading mill without the protection of a positive pressure respirator. Going through the mill to the storage shed and then through the shed climbing over piles of fibre was frightening. The operative sitting in a glass box and operating the scoop which feeds fibre to the conveyor was covered in fibre. I was astonished to see a man poking at a blocked screw conveyor and creating clouds of dust all about him." (10)

A study of 273 workers at Havelock in 1979 showed that 39 had asbestosis and a number had suspected asbestosis.

The workers lived in houses a stone's throw from the mine. It is actually a beautiful setting, and was known as the Switzerland of Africa.

We began an action against Turner & Newall on the same basis as the Cape case, direct parent company liability. Based on the documents we saw, the case was at least as strong as the Cape plc action. We actually thought T&N Ltd was in a better position than Cape to compensate these victims.

T&N/Federal Mogul Bankruptcy

The court action was halted in October 2001 when T&N, and its U.S. parent company Federal Mogul, went into Administration and Chapter 11 Bankruptcy. This halts all pending actions and prevents new ones. It is completely unpredictable whether any of these people will be compensated in the future, or how much they might get. T&N faces claims from approximately 200,000 U.S. plaintiffs.

I went recently to Charleston, South Carolina, to meet some of the attorneys acting for plaintiffs there who have a stake in the Bankruptcy proceedings. The impression I came away with was that this process could literally go on forever. A Chapter 11 Bankruptcy in the U.S. entails the employment of an army of lawyers and other professionals, who are allowed to bill the company in bankruptcy on a monthly basis, and whose bills are assessed by someone who gets a percentage of the total allowed. The longer the process goes on, the less money will remain in the company to compensate the asbestos disease victims. The asbestos disease solicitors I have worked with on this matter in Britain are powerless to change the course of this leviathan, because there are so many American victims. It has to be said that most of the American victims have symptomless pleural plaques, as we understand the situation. There are 500 ex T&N employee asbestos disease victims and their families in Britain, with pending cases. Their cases could have been settled in full for between a quarter and a third of the money that has gone to accountants and lawyers in the first year of the Bankruptcy. I have been told that the costs of the Bankruptcy in the U.S. alone are running at US$ 75 million a year.

A small private result

I had another smaller South African case this year, involving 20 clients, which did settle, and in which the company did pay reasonable compensation to our clients, better than that offered to Cape victims, and the cheque didn't bounce, so the clients got their money. I can't name the company because of confidentiality imposed by the company in the settlement. The clients were laggers, roofers, and limpet sprayers. Most of the limpet sprayers developed serious asbestos related disease, and several died of mesothelioma.

A bigger result: Matthews, Fox and Fairchild, Law Lords decision May 2002

John Pickering and Partners acted for Mrs Doreen Fox and Mr Edwin Matthews, two of the three appellants in the House of Lords decision of 16 May 2002, which restores the rights of most asbestos cancer victims to be compensated through the court system.

In December 2001, The Court of Appeal had decided in these cases that where a mesothelioma sufferer had worked with asbestos for two or more employers, he or his widow would not recover damages, because it could not be proved in which employment the fatal fibre or fibres that might have triggered the cancer had been inhaled.

In January 2002, the House of Lords gave permission to appeal to Mr Matthews and Mrs Fox, and later to another appellant, Mrs Fairchild. A hearing date was fixed on 22 April 2002.

In April 2002, shortly before the hearing, the Association of British Insurers (ABI) approached the Association of Personal Injury Lawyers (APIL) and the Trades Union Congress (TUC), with a draft scheme for all mesothelioma victims. This provided for compensation on a proportionate or time-exposed basis. It would have resulted in much lower compensation payments than had been given to victims prior to the Court of Appeal decision. The victims would still have to prove fault in the normal way. It was proposed that compensation would be "discounted appropriately to reflect early payment, simplified procedure, and the elimination/reduction of legal risk." The scheme further provided for fixed or otherwise limited costs. It was not said who would assess proof, damages or costs. APIL took soundings from a specialist group already formed, and told the ABI that it would not recommend the scheme to its members.

With the Appeal before the Law Lords still fixed on 22 April, insurers then made offers in full settlement of their claims to the 3 victims days before the appeal. Each offer was conditional upon all three offers being accepted. The insurers also stipulated that if the House of Lords ordered that the Appeals should continue in spite of the offers being accepted, then the offers were immediately withdrawn. The terms of the offers had to be kept confidential. The appellants were given approximately 24 hours to decide. One of our clients, Mrs Doreen Fox, rejected the offer. Although she was offered £115,000, a large amount of money for a widow living on benefits, she knew that the result of the offers being accepted would be the continuation of the law as laid down by the Court of Appeal. This would mean that the majority of mesothelioma and asbestos cancer victims in the future would not be compensated at all, unless the scheme proposed by the ABI was introduced, and if that was introduced, compensation would be much less than now. The other two clients had similar reservations about accepting the offers made to them in these circumstances.

At the same time, or shortly before offering compensation, solicitors newly instructed by the ABI filed an unsigned Petition at the Judicial Office of the House of Lords. It said, "the present appeals will be settled by the payment of damages and costs. There will be no dispute left for decision by the House." This Petition asked that the three appeals should be "withdrawn by consent, or directions given."

The court staff was told that there was no possibility that the Appeals would proceed. Based on that information, the House of Lords withdrew the Appeals from the list on 22 April, and brought forward another case to be heard. We, as the lawyers for the appellants, knew nothing about this, and only found out after the Appeals had been removed from the list. We protested through counsel, but it was unfortunately too late to restore the full hearing. It was arranged that a short hearing would take place on 22 April to discuss what had happened, and decide whether the appeals could proceed.

It became clear to us that the intentions of the insurers, co-ordinated by the ABI, were (1) to prevent the House of Lords from hearing the Appeals at all; (2) to retain the benefit of the Court of Appeal decision for all future cases; (3) to force through a scheme for mesothelioma victims against the background of the Court of Appeal decision remaining good law, providing for proportionate or time-exposed liability, further discounts on damages, and fixed or limited costs. There was a substantial risk that this strategy would succeed, because the ABI had succeeded in removing the Appeals from the list for hearing on 22 April.

A hearing took place on the morning of 22 April. Sir Sydney Kentridge QC represented the appellants. Sir Sydney is a living legend and already part of legal history. He was one of Nelson Mandela's defence team in 1961 and represented the family in the Steve Biko inquest, later moving to practice in London.

Sir Sydney told their Lordships about the misleading assurance given to the Court that all three cases would be settled. At the time this assurance was given, offers had not been accepted. In at least one case, no offer had been made. He called this "a sordid attempt to manipulate the judicial process." Their Lordships seemed to accept this description. Lord Bingham, who chaired the panel, observed: "All their Lordships well understand why you wish to express the dismay that you feel at the terrible events that you have just described. I think that you can take it that we all share that sense of dismay." Lord Hoffmann said; "It is one thing to tell the House that an offer is being made which will render the substance moot, and to ask the House in its discretion to dismiss the hearing. It is another thing to tell the House that the Appeal has been settled."

Lord Brennan QC, for the ABI, submitted that the three appeals, whether or not the offers were accepted, could not proceed. He relied upon a case of Sun Life Assurance Co of Canada v Jervis (1944) 1 All ER 469, in which it was decided that it would not be a proper exercise of the authority of the House of Lords hearing appeals of a purely academic nature which would not affect the respondent (in this case the insurers) in any way. He also relied on a later case Ainsbury v Millington (1987) 1 All ER 930 in which Lord Bridge said that this limit on discretion would not apply to proceedings instituted specifically as a test case. He contended that these three appeals were not test cases, because they had not been designated as test cases. He argued that although their Lordships had discretion to hear a public law case, even if there was no practical effect on the individual parties, these asbestos cancer cases were private law cases, in which the insurers' offer of full damages and costs meant that there was nothing in reality left to be decided. The ABI therefore submitted that the House of Lords had no discretion to hear these three appeals.

The Law Lords disagreed. Although their Lordships did not give reasons for their decision to allow the three appeals to proceed in spite of the offers in settlement, Lord Bingham stated: "Their Lordships regard the course of events over the last few days as highly regrettable. We are however in no doubt at all that the appeal hearings should proceed." We speculate that it must have been important that Mrs Fox had rejected the offer made to her, but also that the cases were test cases in any true meaning of the words, and that they raised an important matter of law that the public interest demanded should be clarified.

Had it not been for the courage and principle of Mrs Doreen Fox in rejecting the money offered to her, there must have been a serious risk that these Appeals would not have proceeded, and that the Court of Appeal decision would have remained intact. The entitlement of hundreds of current asbestos cancer victims to compensation through the court system, and the entitlement of thousands of future victims, would have been ended. Mrs Fox cannot be praised too highly for her courage and for her principled decision.

The hearing was re-listed quickly by their Lordships on 7th May. The panel on that day consisted of Lord Bingham, Lord Nicholls, Lord Hoffmann, Lord Hutton, and Lord Rodger. The hearing lasted 3 days.

Sir Sydney Kentridge, for the appellants, submitted that the cases were closely comparable to McGhee v National Coal Board 1973 1 WLR 1, and that justice required that the Appeals be allowed. The Respondents relied upon Lord Bridge's formulation in the case of Wilsher v Essex Health Authority 1988 AC 1074, to the effect that the McGhee decision "laid down no new principle of law." They argued that McGhee had to be explained in terms of a material contribution to a cumulative condition, and did not apply to an indivisible condition such as mesothelioma. Neither side suggested compensation based on time-exposed or proportionate liability. The Respondents' counsel described the cases as "all or nothing."

Within hours of the hearing ending, their Lordships announced that a decision would be given on 16 May 2002, and reasons would be given at a later date.

On 16 May 2002, the five Law Lords upheld the victims' appeals unanimously. If the Matthews/Fox/Fairchild case had gone the other way, it would have been the end of compensation through the legal system for nearly all mesothelioma victims. The Association of British Insurers' estimates the decision has cost their members £200m a year for the next 20 years.

The Law Lords decided that in industrial disease cases in which the agent (here asbestos) causing the injury was known, but the precise mechanism of how it causes the injury is not understood, then the doctors' approach of treating a material increase in risk as a material contribution to cause, is the correct one. The evidence in mesothelioma cases was that anyone who had worked with asbestos and experienced substantial exposure had their risk of contracting the disease increased by up to one thousand times.

They decided that the 1973 dermatitis case decided by their predecessors McGhee v National Coal Board had established a new legal principle: where a victim could not prove whether he had developed dermatitis because of the Coal Board's failure to provide showers which would have materially reduced the risk of dermatitis developing (failure to provide showers after work was negligent and would result in compensation), or whether it was because of conditions in the brick kiln where he worked (which were not in themselves negligent and would not result in compensation), it was enough for him to prove that the Coal Board had materially increased the risk that harm would be suffered. It is the same with mesothelioma: the disease is invariably caused by asbestos but little is known about the process in which healthy mesothelial cells are changed into malignant cells. It is thought to involve several stages, with asbestos acting in more than one stage. Medical science cannot (and probably never will) be able to identify where the "fatal" fibre or fibres were breathed in.

The Law Lords decided that a mesothelioma victim does not have to prove that he would not have developed mesothelioma but for breathing in asbestos from a particular job. He has only to prove that any asbestos exposure made a material increase to the risk of the disease happening.

Material means "more than minimal". "Minimal" means "less than material". As you can guess, the next battle in British courts for mesothelioma victims will be about the meanings of "minimal" and "material."

There will also be a case or cases fought, which will go back to the Law Lords eventually, about whether a particular employer is only liable to the extent that he increased the risk. If he is responsible for 10% of a man's lifetime work asbestos exposure, and therefore (it will be said) 10% of the overall risk, he pays 10% of the compensation bill. Insurers will run such a case, despite submissions made by their own QC to the Law Lords that mesothelioma is an "all or nothing" disease in terms of compensation.

Allied to these legal attacks, are moves by the insurers' representatives to abolish common law compensation for mesothelioma (and other industrial diseases) altogether. Even as we talk, discussions are underway, largely secret, to deal with the "problem." The insurance industry's job (which it is doing well) is to define the compensation of industrial disease victims as a problem for society, rather than a problem for the insurance industry. The American spectre of a litigation culture of massive awards and thousands of lawyer driven claims is held up as some sort of virus about to invade Britain. This is completely misleading. Levels of compensation for asbestos disease in Britain are lower than most other countries of equivalent economic status, a tiny fraction of American awards, and lower than Australian awards, and the numbers of people in Britain affected by asbestos disease are, thankfully, lower than in the United States.

Conclusion: the bigger picture

The avoidance of responsibility can be seen as part of a larger process in which asbestos companies are simply running out of money to compensate the sheer numbers of people they have injured. This is a situation created or made worse by their failure to buy any or any adequate insurance for their employees. Where there is insurance, the insurance industry has now roused itself to confront or bring onside politicians, union leaders, pressure groups and the media, with the aim of taking industrial disease compensation out of the legal system completely. This parallels battles that have taken place and continue to fester in Australia. The aim must be to resist attacks single mindedly if they are going to damage the interests of people who have simply gone to work in fairly normal jobs, and then in many cases had their lives ended prematurely in a manner almost calculated to cause maximum distress to them and their families.

We have to hold in our minds the images of the people whose lives have been ended or ruined by these diseases. My colleague John Pickering talked recently about a mesothelioma case he did for a client called Alice Jefferson against Cape Asbestos in Hebden Bridge Yorkshire 20 years ago. She had worked at their Acre Mill for a few months aged 17 and was going to die of mesothelioma at the age of 41. He visited her at home. She had left notes stuck on walls in her house to her children reminding them to do the various things they would have to do to keep the house and their lives in order, because she knew she would not be with them in 3 months. He was visibly moved by this memory 20 years after the event. It is people like Alice Jefferson we have to remember.

Footnotes

(1) Cape's Annual Report 1971 predicts this strategy: " It is of course true that unfavourable comparisons can be drawn with conditions in other countries but such comparisons are often superficial and it should be remembered that conditions are no worse and often considerably better than those in a number of countries in Africa and elsewhere in the world."

(2) Cape relied on migrant workers from other African countries including Malawi, Mozambique, Botswana, Namibia, and Swaziland.

(3) This is Rachel Lubbe, one of the original 5 claimants.

(4) This is more than 20 years after Wagner identified the environmental risks of mesothelioma associated with small amounts of blue asbestos.

(5) This is probably 15 years after Cape closed the mill site in about 1966.

(6) Reid and others, S Afr Med J 1990

(7) Neil White and Eric Bateman, Mesothelioma and exposure to Asbestos in South Africa1962-2000, Mesothelioma, edited by Robinson & Chahinian, 2002

(8) Quoted in "Asbestos Blues, Labour, Capital, physicians and the State in South Africa" by Jock McCullough.

(9) The Hendrik Afrika Trust, named after one of the clients. The name of the Group Action, which consists of just under 20 separate claim forms or writs, is Afrika and others v Cape plc

(10) Another letter in the T&N archive contains comments about their own medical officer Dr Lewinsohn that indicate a degree of anti Semitism apart from their apparent indifference towards black workers.

Anthony Coombs
John Pickering and Partners, Solicitors, Manchester