In the late 1960s, the authoritarian government of Chiang Kai-shek invited the US firm Radio Corporation of America (RCA) to transfer part of its television manufacturing process to Taiwan. For the company, which had already invested in Mexico, the object of the exercise was to cut production costs and to benefit from a young, docile and well-trained workforce, mainly comprising women. As for the Taiwanese regime, its interest lay in technology transfer as a means of developing the country’s industries.
Twenty years later, the gambit had paid off for both parties. The factories located on the island had yielded the anticipated profits and built the foundations of an electronics industry that continues to make the island’s fortune. Today, the global dominance of companies such as TSMC and UMC in the semiconductor market constitutes both a rich source of revenue and a geopolitical asset for Taiwan, faced as it is with the threat of a Chinese invasion.
But in 1992, when Taiwan was embarking on the road to democracy, RCA shut its factories on the island to transfer production to China, where wage levels were even lower. Two years later in Taiwan, around the site of the company’s main factory at Taoyuan, near the capital Taipei, the soils and groundwater were found to be heavily polluted by toxic substances such as the solvent trichloroethylene. Shortly afterwards, the workers discovered that several of their number had been diagnosed with cancers.
A long battle for recognition
With the assistance of the Taiwan Association for Victims of Occupational Injuries (TAVOI), the mainly female RCA workers established that more than 1,500 people who had worked in the factory in the 1970s and 1980s had contracted a cancer, from which several hundred of them had already died. The Association also identified other health problems, particularly an abnormally high rate of miscarriages. Some former male employees of RCA Taiwan had also been diagnosed with cancers.
After deciding to start a class action, the first hurdle for the workers was the need to identify the numerous chemical substances to which they had been exposed. Any attempt to obtain recognition of the occupational origin of a disease by insurers within the various public and private insurance systems is always going to be difficult. Far from standing up for workers’ health, the tendency in most proceedings is to seek to play down the inherent risks in workplaces, with company lawyers resorting to all sorts of fallacious arguments to exonerate their clients.
In the case of RCA, investigations were even further complicated by the fact that the company had not left any records, thanks to a mysterious fire that broke out in 1994. And to crown everything, the company had changed hands and names several times in the space of only a few years. In 1986, RCA was bought by the US group General Electric, which then offloaded it in 1988 to the French group Thomson-CSF, which is now Technicolor.
However, even if companies try to erase the memory of working conditions, the polluted soil provides a lasting legacy.
The women and those assisting them – scientists, lawyers and campaigners – finally managed to identify the substances to which they had been exposed, using labour inspectorate reports and various documents that revealed the gravity of the subsoil pollution at the factory site. It also emerged that the management had not only been aware of the pollution but had also deliberately concealed the relevant information when the site was resold in 1992.
Thanks to this documentation, supplemented by the workers’ testimonies and the assistance of experts, the counsels for the plaintiffs succeeded in identifying a total of 31 toxic substances that had been used in the RCA factories. Foremost among these were organic solvents such as trichloroethylene and other carcinogens such as benzene. The investigations, moreover, showed that the workers were exposed to these substances with no more protection than ineffective paper masks in premises with very poor ventilation or even no protection at all and with no medical monitoring. The receptacles containing the substances were not labelled, and the air inside the premises was heavy with solvent and soldering fumes.
Even more damning, the investigations established that, in a bid to save money, the factory management had been pumping water from the polluted groundwater table to meet the workers’ needs. Most of the women were accommodated on-site and were drinking this contaminated water and using it daily for food preparation and personal hygiene. Drillings were to show that this water contained concentrations of trichloroethylene more than a thousand times the permitted level for drinking water. The workers were thus being poisoned by having to handle solvents and other chemical substances as well as by drinking water contaminated by those same substances. The factory management, for their part, were supplied with bottled water.
How is causality demonstrated?
This case involves a wide range of chemical substances and diseases, including various forms of cancer. Apart from rare exceptions such as pleural mesothelioma, which results from exposure to asbestos, cancers are often caused by multiple factors. This means that, even if it can be demonstrated that the number of cancer cases among workers is higher than normal, victims will generally find it extremely difficult to prove conclusively that there is a causal link between their working conditions and their state of health. They are asked to do the impossible, namely to prove ‘beyond reasonable doubt’ that their disease was caused by a substance that was present in their working environment and not by other forms of exposure encountered in their private lives.
In a judgment delivered in April 2015, the court of first instance held that the burden of proof placed on victims could only result in a denial of justice. It would be enough, the court found, for the plaintiffs to demonstrate that, on the basis of existing medical knowledge, the decisions taken by their former employer, particularly the requirement for them to use organic solvents without adequate protection, had served to increase the risks to their health.
In its judgment, the court ruled that, in the light of the existing epidemiological and toxicological studies, it was reasonable to conclude that the plaintiffs’ illnesses were linked to at least four of the toxic substances at issue. Encouraged by this decision, a second group of women, comprising some 1,100 ex-workers, brought another lawsuit.
But some important issues were disregarded, compelling the first group to lodge an appeal. First of all, the court had not taken into account the aggravating effect of a toxic cocktail of more than 30 substances to which workers had been exposed, which had contributed to its rejection of the action brought by 70 plaintiffs. Moreover, the court ruled out liability of the parent company, the American General Electric Company.
As was made evident in Italy in the proceedings against the asbestos giant Eternit, company bosses sometimes take refuge behind a corporate veil. A complex assemblage of shell companies and cross-shareholdings serves to camouflage the financial involvement of particular players without breaking the law and to forearm them against any subsequent accusation.
In the RCA case, between July 1998 and January 1999 the company and its parent companies had transferred €112 million to France and other countries in order to ensure its insolvency in the event of court proceedings. In its judgment, the court of first instance emphasised the need to prevent shareholders from evading their liability by abusing the company’s status as a legal entity so as to create a situation in which its creditors were left with no means of recourse.
For this reason, along with RCA, the French Technicolor company was also found to be liable and ordered to pay. Misled by the defence, the court of first instance had exempted General Electric from that liability. The court of appeal, however, found that, while General Electric had not bought RCA until 1986, the former was none the less responsible for the liabilities incurred by RCA Taiwan since its creation in 1968. Lastly, RCA and its parent companies, General Electrics and Technicolor (alias Thomson Electronics), as well as Thomson Bermuda – a shell company in a tax haven – were all declared to be ‘jointly and severally liable’.
Statute of limitation
Another way for a company to evade its liability is to invoke the expiry of the limitation period between the outbreak of a disease and the judicial action. This manoeuvre is certainly a convenient option, because the symptoms of the diseases in question may not occur until 10, 20 or 30 years after exposure. In Italy, the defendant in the Eternit case was acquitted on those grounds in November 2014, when the Supreme Court in Rome ruled that the limitation period had begun on the date on which the factory had closed and not on the date on which the symptoms had appeared, as the court in Turin had ruled.
In the RCA case, by contrast, the court held that the limitation period of only two years could not begin until the time when the victims had been informed of their exposure to toxic substances and of the possible impact on their health, as well as of the right to seek compensation and the procedure to be followed.
The limitation period thus began when the experts testified to the court, providing victims for the first time with a scientific opinion on the possible link between their past employment and their present illnesses.
Until then, ‘the plaintiffs had no way of knowing whether the unlawful acts committed by the defendant RCA constituted industrial damage to public health’*. This decision reset the clock by ruling that the statute of limitation must not be used as a stratagem to enable employers to evade liability.
This point is crucial because, in most of these cases, time is not on the victims’ side – not only because the defendants are banking on the erosion, deliberate or otherwise, of evidence and the lapsing of the legal limitation periods, but also because the victims’ life expectancy will be all the shorter if their exposure was prolonged and intense.
The daily lives of the exposed workers are therefore plagued by uncertainty. Those who have not been stricken with cancer live in fear of its occurrence or of seeing their workmates die off one by one. They forever wonder who will be next. As for those who have already contracted cancer, they worry about their offspring. Some plaintiffs suffering from cervical or ovarian cancer have seen their daughters and even their granddaughters contract ovarian endometrioma, a disease which, if not fatal, is still very incapacitating.
In October 2017, Taipei High Court confirmed the rejection of the defence’s reliance on the limitation period, and its judgment now recognised the liability of all defendants, including General Electric. More victims were recognised, and the amount of the compensation payments was slightly increased. Lastly, and very importantly, the judgment now took account of 31 chemical substances and of their health impact, but the companies lodged an appeal on points of law.
In August 2018, the Supreme Court of Taiwan confirmed the appellate judgment on the causal link between exposure to the toxic substances and the most serious conditions such as the cancers. The court also reaffirmed the liability of all the parent companies, even finding that, in the instant case, hiding behind a corporate veil was an ‘abuse of rights’. After 16 years of judicial wrangling, that first decision was very good news, but only for half of the plaintiffs, because the case was remanded back to the High Court for a ruling on the others, who had also been exposed to the toxic cocktail but had not, or at least not yet, contracted cancer or any other serious illness. In March 2020, the High Court ultimately rejected the claim of causality, and an appeal to the Supreme Court on points of law is pending once again.
In the meantime, in December 2019, the second group of some 1,100 plaintiffs won their case at first instance on the main points at issue, and the amount of compensation was further increased to an average of about €70,000 per plaintiff. In an unprecedented ruling, which took account of the potential genotoxic effects that can cause irreversible DNA damage, the court also recognised a right to damages for anxiety for those plaintiffs who have not, or not yet, contracted cancers or other serious illnesses.
Compensation for anxiety
On 11 March 2022, the Supreme Court ruled once again on the case of the female workers who had not yet contracted cancer, but this time it approached the matter from an entirely different perspective. ‘The right to health’, the court held, ‘protects not only the physical and psychological integrity of individuals but also encompasses their personal autonomy and dignity, the tranquillity of their mind or emotions and other factors affecting their mental health’*.
The court then made the point that the plaintiffs, like their workmates who were suffering from a cancer or other illness, had also been “exposed to an environment contaminated by toxic chemical substances that exceeded the legal limit”* and that they therefore had every reason to fear comparable harm. “That risk is felt psychologically and is reflected in negative emotions such as fear and anxiety.”* In other words, those workers were subject to anxiety that merited compensation.
The Supreme Court preferred to remand the case back to the High Court to rule on the compensation, but its verdict augurs well for the final outcome of the whole proceedings, and it is to be hoped that the judgment will serve as a landmark for similar cases in other countries.
In the face of the highly complex challenge of establishing epidemiological and legal proof, the victims’ commitment has sustained the struggle over a long period of time, involving a core group of plaintiffs in the preparatory meetings with lawyers, volunteer experts and the TAVOI activists. The plaintiffs have played a key role in collecting information and, where necessary, in easing tensions within their ranks, arising especially from slowness in the proceedings and in the payment of compensation. They have already used some of the financial compensation paid by the respondents to establish an aid fund for victims of similar disasters.
*Based on author’s own French translation from the original Chinese.
This article was originally published in the European Trade Union Institute magazine, HesaMag (issue 26, published January 2023).