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Only Rossing can be liable says Rio Tinto
GREG DROPKIN IN LONDON
RIO Tinto pressed their demand for the High Court in London to throw out Eddie Connelly's cancer compensation claim as the hearing continued on Wednesday.
Michael Spencer QC elaborated on arguments that Rio Tinto owed no "duty of care" to employees of Rossing Uranium.
Spencer asserted that because Connelly cannot sue Rossing, he had instead manufactured the very same allegations against London-based companies. In reality, this was a claim for employer's liability but directed against the wrong defendants.
The QC argued that Connelly's team wished to "lift the corporate veil" separating Rio Tinto from Rossing Uranium, as if the mine were only a sham company while London took all relevant decisions. He quoted legal authorities to demonstrate the veil could only be lifted in the most exceptional cases.
When Brian Leveson QC finally got a chance to speak for Connelly in the afternoon, he denied any intention to lift the veil or argue that Rossing is a sham. But RTZ took crucial decisions affecting health and safety issues through their employees, he argued.
Spencer insisted that RTZ didn't employ anyone at all. Leveson pointed out that the legal concept of employment includes control, not just the payment of wages.
Companies are responsible for the actions of their employees. Various named individuals, and others yet to be identified, controlled Connelly's working conditions at Rossing. They implemented policies on health, safety and production levels, and supervised protection at the mine. Their employers in London could be held liable for any acts or omissions, Leveson contended.
Spencer retorted that insofar as employees of London companies were responsible for anything at the mine they were under the control of Rossing and it was Rossing who was "vicariously liable" for their actions, not Rio Tinto.
Connelly intends to challenge the claim that staff such as Rossing Chairman and Chief Executive Ronnie Walker "remained under the direction and control
of Rossing for all their activities", when his case comes to a full trial.
Judge Wright identified this argument as a central issue. He was not assessing the merits of the allegations, but only considering whether Connelly's case as pleaded constitutes a valid cause of action.
Leveson pointed out that no less than 13 judges in the High Court, Court of Appeal, and House of Lords had looked at this case and none of them had suggested the claim was intrinsically defective in law.
He quoted a recent Court of Appeal judgement in which South African workers and residents exposed to asbestos dust claim damages from the British
company Cape. The Court ruled that it is a "substantial question of law" whether a parent company has a duty of care in relation to its control over and advice given to a subsidiary. The issue could not be dismissed out of hand. The hearing continues.
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