CLICK to return to story index Ex-Rossing man wins on key points
GREG DROPKIN IN LONDON
AN English High Court Judge has dismissed two key legal arguments by multinational Rio Tinto, which is attempting to "strike out" former Rossing worker Eddie Connelly's cancer compensation claim .
In arguing for a "strike-out", the company planned to present a scientific opinion discounting any link between radiation and throat cancer.
Connelly's counsel Brian Leveson QC was expected to demand that such evidence be postponed to a full trial, with cross-examination of witnesses and discovery of all relevant company documents.
However, Judge Michael Wright made Leveson's point himself. Having already heard two days' argument on whether London-based companies owed a "duty of care" to Rossing employees, he dismissed both wings of Rio Tinto's attempt to "strike out" Connelly's claim.
The hearing then turned to whether Connelly can proceed 12 years after his cancer diagnosis. He has been tied up in court since 1994.
The question is whether by September 1991, three years before he issued proceedings in this case, Connelly knew he could claim against the London companies. If so, his case might be time-expired.
Connelly nearly died on the operating table in 1986. He received the last rites three times. He spent a year learning to talk by belching air through his windpipe. His surgeon advised his cancer might be work related, and in 1987 he consulted local solicitors.
The Scottish lawyers contacted RTZ Services, who wrote to Connelly when he left Namibia. The lawyers only considered a claim against the employer, which turned out to be Rossing.
In Namibia the Workmen's Compensation Act stops an employee suing the employer. The lawyers reckoned Connelly could not sue in Scotland. He claimed for Workmen's Compensation in Namibia.
The Commissioner responsible in Namibia finally rejected the claim in 1992. The Legal Assistance Centre in Windhoek then referred Connelly to the London solicitors - Leigh Day & Co - who drew up the current case.
Judge Wright must consider English law, with its three-year time limit on bringing claims. But he can exercise discretion and balance the hardship to Connelly if his claim is barred, against the hardship to Rio Tinto if it proceeds.
Wright may also have to apply Namibian law which has a three-year time limit but no discretion.
Wright could ignore laws applied in Namibia before independence as the entire South African occupation including its laws was declared illegal under international law in 1971.
In any case, two experts from the Cape Town Bar both told Judge Wright on Friday that the South African Prescription Act (1969) does not stop Connelly's claim.
Senior counsel Peter Hodes appeared for Rio Tinto. He agreed with Brian Leveson that "if the legal representative does not have knowledge (even if he should have acquired it by enquiries he could have made), the creditor could not have ascertained the facts by asking; he is not deemed to have knowledge." This means that before contacting his current solicitors Connelly did not know he could sue Rio Tinto, even if his Scottish solicitors could have discovered it, and therefore time did not begin to run against him in Namibia under the Act.
Jeremy Gauntlett practises in Cape Town and Windhoek and serves as an Acting Judge on the South African Supreme Court.
He took Judge Wright through the details of several relevant South African cases, insisting that a "creditor" must know both the identity of his "debtor" and the essential basis of his specific claim before time could begin to run against him under the Act.
Rio Tinto's counsel Brian Doctor, himself a South African senior counsel, attempted unsuccessfully to persuade Gauntlett he had misunderstood aspects of the South African cases and confused Connelly's claim with another case involving workers at an asbestos mine in South Africa.
The case is continuing.
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November 23, 1998
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