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Judge ponders Rossing time factor
GREG DROPKIN
RIO Tinto's bid to stop the cancer compensation claim of former Rossing worker Eddie Connelly had a mixed reception in the London High Court on Monday.
The company is now seeking to prove Connelly knew he could sue Rio Tinto back in the 1980s, meaning his case was already far past the three-year time limit when he started court proceedings in September 1994.
Connelly says his case is not time-barred under English law because until his current solicitors took up the case in 1993, neither he nor his former lawyers knew he could hold London-based companies responsible for failing to ensure his safe working conditions at Rossing in Namibia.
Rio Tinto's counsel Michael Spencer QC told the court that Connelly must have contemplated the current approach when his former solicitor in Scotland, a certain Mr Bonnington, wrote to RTZ Services back in 1988.
Connelly says he thought RTZ Services was his employer because they wrote to him when he left the mine. Bonnington contacted them to attempt an employer's liability claim and when informed that Rossing was the employer, he did not pursue RTZ Services.
Spencer insisted that Bonnington, and by implication Connelly himself, knew that Rossing was his employer and an RTZ subsidiary. But if Connelly thought he was employed by RTZ Services he must have considered RTZ Services as responsible for the activities of other employees who supervised him in Namibia, just as in the current claim.
Judge Michael Wright observed there was no evidence Bonnington held such views.
Brian Leveson QC asked why Rio Tinto had not called Bonnington as a witness if they wished to question the account given in his affidavit? Also, unless Bonnington understood Connelly could sue Rio Tinto, Connelly himself could not have known. Given his medical condition, Connelly was in no position to query Bonnington's conclusions and the Scottish solicitor had taken a reasonable approach at the time.
Spencer insisted Connelly could not expect time to stop running just because he engaged new solicitors who took a different approach to the case or named new companies within the overall group. Judge Wright recognised the force of his argument.
Under English law the Judge can exercise discretion by weighing up the hardship to Connelly if his case is time-barred, against the hardship to Rio Tinto if it proceeds.
Spencer said that with the passage of time since 1977, witnesses' memories had faded and evidence of former conditions was much weaker than if the case had been brought in good time. It was now harder and harder for Connelly to prove his claim. Rio Tinto would suffer a greater prejudice if forced to expend considerable sums defending itself against such a weak case, while Connelly could continue to use Legal Aid.
Leveson asked why Rio Tinto had spent three years in expensive litigation seeking to prevent the case being heard in London if they were worried about costs? Connelly's counsel also pointed out that key trial evidence would come from documents rather than witnesses' memories.
Spencer insisted that the court could not assume Rio Tinto would have access to documents from another company in the group.
Judge Wright wondered if Rossing would actually prevent Rio Tinto obtaining documents, since the parent company had already produced evidence from the mine. "I have to take a realistic view of this," the Judge observed.
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