Occupational Diseases Arising from Silicosis

occupational illness, disability, and CIVIL LIABILITY and criminal liability OF MARBLE WORKERS IN CASES OF SILICOSIS:

Written by Josep Conesa

Employment and insolvency lawyer

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New court rulings related to occupational illness caused by silicosis are emerging on a daily basis. These cases stem from the use of quartz composite materials that became widespread in the marble and stone industry in recent years.

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We reproduce below a recent ruling handed down by Criminal Court No. 2 of Huelva, as reported by the digital newspaper Nuevo Diario, in which the following individuals were convicted on criminal charges:

• the directors of the marble company:
  • J.M.R. (the father)
  • J.M.M. (the son, appointed at a later date)
• the Occupational Health and Safety Technician (D.M.G.)
• the doctor responsible for health surveillance (F.J.L.)

Working conditions involving 97% free crystalline silica in the air had never previously been encountered, simply because quartz composite materials had never been used before. A further complication is that, in many cases, civil liability insurance policies do not cover occupational illnesses.

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Changes to the exposure limits for respirable dust and crystalline silica

It is remarkable that neither the courts nor the legislature have been willing to acknowledge that silicosis has been caused by the failure of quartz agglomerate manufacturers to provide adequate information. The legal exposure limit itself had to be revised in 2021 owing to the damage the product was causing — but what about all the years of inhalation exposure from 1995, when the product first appeared on the market, up until 2021, when the limit was finally changed? 

The table below sets out the limit values in Spain for respirable dust and crystalline silica (including cristobalite and free quartz, which share the same limit) at the key legislative milestones:

• Respirable dust: Royal Decree 374/2001 (transposing Directives 98/24/EC and 2000/39/EC) established in 2001 a daily exposure limit value of 5 mg/m³ for the respirable fraction of dust (Spanish Official Gazette (BOE).es).
• Crystalline silica (free quartz, cristobalite, etc.): this was not regulated under RD 665/1997 until Royal Decree 1154/2020 (22 December 2020) incorporated it, setting a transitional limit of 0.1 mg/m³ (entering into force approximately February 2021) until 31 December 2021, and a definitive limit of 0.05 mg/m³ from 1 January 2022 (Spanish Official Gazette (BOE).es).

A CASE OF CRIMINAL LIABILITY IN THE STONE-CUTTING INDUSTRY:

This is an issue that warrants serious attention, as the courts have gone so far as to convict stone-cutting companies in circumstances where the manufacturer's liability ought also to have been considered. See the following ruling:

ruling

These proceedings — ordinary criminal proceedings for certain offences, case no. 357/18, referred from Examining Court no. 4 of Huelva — were brought before this Court on charges of OFFENCES AGAINST WORKERS' RIGHTS, MANSLAUGHTER BY NEGLIGENCE and NEGLIGENT BODILY HARM against J. M. R, ID no. XXXXXX, born xxxx; J. M. M, ID no. xxxxx, born xxxx; D. M. G, ID no. XXXXX, born xxxxx; and F. J. L. de H, ID no. XXXXX, born xxxxx. The Public Prosecutor and the aforementioned defendants — represented by Procuradores Messrs. ......... .............. and defended by Counsel Messrs. ........................... — are parties to the proceedings, as are OTHERS, acting as private prosecutors, represented by Procurador Mr. ....... and defended by Counsel Mr. ..............; MARMOLERIA O, as civilly liable subsidiary party, represented by Procuradora Ms. .......... and defended by Counsel Mr. .................. ; and AX SEGUROS, as liable

STATEMENT OF FACTS
FIRST: The parties were duly summoned to oral trial, which took place on the date indicated, with the outcome recorded in the minutes drawn up for that purpose. The Public Prosecutor and the above-named defendants appeared, represented by their respective counsel as listed above.

SECOND: The Public Prosecutor, in the written charge submitted to the investigating court, classified the acts as constituting offences against workers' rights, negligent homicide and negligently caused injury, as provided for and punishable under Articles 316, 142.1 and 152.1.2º of the Spanish Criminal Code (Spanish Criminal Code), attributing criminal responsibility for those offences to the defendants, finding no circumstances modifying criminal liability, and requesting the imposition of the corresponding penalties and payment of costs. The Prosecutor further sought compensation for the injured parties in the amounts specified, declaring Marmolería O to be subsidiarily liable as a civil party and Ax Seguros to be directly liable as a civil party.
The private prosecution charged the first two defendants with the same offences, requested the compensation amounts it specified, and sought a declaration of civil liability on the same terms as the public prosecution.

THIRD: Defence counsel requested full acquittal of the defendants.

FOURTH: At the oral trial hearing, the prosecuting parties considered that the mitigating circumstances of undue delay and repair of harm under Articles 21.21.6 and 212.4 of the Spanish Criminal Code were applicable, and requested a sentence of one year and three months' imprisonment for each defendant, withdrawing the civil liability claims due to the injured parties' waiver thereof, save in respect of the Heirs of Mr ............., who reserved their civil law claims.
The defendants and their counsel expressed their conformity with the charges and the penalties requested by the prosecuting parties.

ESTABLISHED FACTS
FIRST: The company MARMOLERA O S.L. (limited liability company) was incorporated on 30/12/1987 as a family-run marble company engaged in the manufacture of kitchen and bathroom worktops through the processing of natural stone (marble, sandstone and granite), subsequently incorporating — at a date not precisely determined but prior to 2004 — the processing of engineered stone, quartz composites, specifically "Silestone".
From the time of incorporation until 1994, the defendant J. M. R., of legal age and with no prior criminal record, held the position of managing director and director único of the company. From that date onwards, he formally severed his ties with the company, delegating its management to his son, the defendant J.M.M.; however, he retained and shared with his son executive authority and decision-making power, as well as day-to-day operational management of the company in the course of its marble processing activities.

The accused J. M. M, an adult with no prior criminal record, acted as Chief Executive Officer of the company from 1994 and as sole director from 2002.
The accused D. M. G, an adult with no prior criminal record, acted as Occupational Risk Prevention Technician for Prevention Society F, assigned to company MARMOLERTA O from May 2004, when a contract was entered into between them covering the company's preventive activities across all four modalities.

The accused F. J. L. de H, an adult with no prior criminal record, acted as F's company doctor for the company from 2004 to 2009.

SECOND: No occupational risk prevention activity had been organised at company MARMOLERA O until September 2002, when the first risk assessment was drawn up by the M MUTUA Prevention Service. On 1 April 2004, the contract entered into between the marble company and Prevention Society F came into force, covering all four modalities of preventive activity. Among the specific conditions, in relation to the industrial hygiene modality, Service F assumed responsibility for providing advice and support to the contracting company for risk assessment and planning; determination of priorities regarding preventive measures, with industrial hygiene expressly covering chemical agents such as silica as well as the analysis of environmental samples for the identification of chemical agents and other functions to which we will refer later. Despite this, from the time the contract came into force until 2009, the Fremap prevention service limited itself to carrying out general dust measurements without performing specific silica dust measurements capable of establishing the levels of silica to which workers were exposed at each workstation. The first measurements taken showed levels exceeding the permitted limit value by 350% (on 11.09.09 at the kitchen unit operative workstation), 170% above the permitted limit value (on 30.10.09 at the manual saw-cutting operative workstation), and 200% above the permitted limit value (on 22.02.11 at the kitchen unit operator workstation).

As regards the health surveillance modality, the contract between the marble company and F included initial and periodic health monitoring of workers, and it was specifically stipulated that the relevant specific protocols and other available means would be applied with respect to the risk factors to which the employee was exposed. Health examinations were also to include complementary studies based on the risks inherent to the work. Despite this, the pneumoconiosis (silicosis) health surveillance protocols were not applied until 2009, with the result that the medical service of Prevention Society F did not carry out chest X-rays on its workers.

Across all four prevention arrangements, information and training on the specific risks that each role posed to the employee was agreed upon.

THIRD: The company's workforce consisted, for the greater part of its operation, of the following employees: ............. from 03.04.88; ............. from 06.07.88; ............. from 19.01.88; ............. from 28.12.93; ............. from 28.12.93; ............. from 05.08.97; ............. from 10.05.00; ............. from 21.06.02; and ............. from 17.09.02. All of them carried out both the installation of worktops at residential premises and cutting, drilling, polishing and sanding of marble, granite and Silestone worktops at the marble workshop's first premises located at Calle Bollullos del Condado nº 6, Huelva, and, from 2004 onwards, at further premises at Calle Crist............. nº 15 in the same city.

FOURTH: All materials handled by these workers contain silicon dioxide — that is, quartz or free crystalline silica — in varying percentages: up to 5% in the case of marble, up to 30% in the case of granite, and between 70% and 90% in the case of quartz conglomerate composites (Silestone). As a result, the activities that formed the day-to-day work of all members of the workforce — namely cutting, sanding, carving and polishing these silica-containing materials — involved the release of particles into the working environment which, if sufficiently small, could be inhaled and penetrate deep into the lungs (respirable crystalline silica particles).

The marble company did not, in either of the two workshops in which it operated over more than 20 years, put in place any mechanisms to control the generation and emission of dust. The vast majority of tasks carried out by the workforce were dry-process operations using cutting, calibrating, polishing and sanding machinery that did not incorporate water-feed systems that would have allowed all workers to carry out their work using wet methods. Similarly, at the residential premises where worktops were installed, only dry-process machines were used. It was not until 2008 that a single wet-process machine was installed in the second workshop, and this was rotated among the workforce. At no point throughout the entire period of the company's operation was the exclusive use of wet-process tools ever implemented.

The two workshops where the workforce regularly carried out the tasks described were not equipped with adequate ventilation systems. They relied solely on general ventilation through doors or windows, which did not prevent air from circulating together with suspended silica particles. Furthermore, both workshops lacked localised extraction ventilation or dilution systems in dust-generating areas until 2010, when an extraction machine was acquired for use in the second workshop — though its use was never systematically implemented across the company.

No wet-cleaning procedure (hosing down) or filtered vacuum cleaning of the premises, machinery, or workers' clothing was ever established. Workers were left to clean their own work clothes at home. Smoking was not prohibited in either workshop, meaning that those employees who smoked did so at their respective workstations.

The stone workshop employees habitually carried out their work without any personal protective equipment (PPE) for the respiratory tract — in particular, FFP3 masks. The company only occasionally provided FFP2, P1 paper or cloth masks without filters, which were reused by workers who would even wash them at home. In no case was the use of such masks made compulsory within the workshop, and they were never worn by fitters working at private premises. The company never supplied workers with protective clothing capable of preventing the penetration of solid particles, nor did it provide any specific training or information regarding the risk of developing silicosis associated with working with natural stone or quartz composite materials, or the preventive measures available to avoid it.

As a result of the prolonged exposure to silica dust arising from performing their work under the conditions described, all members of the workforce contracted silicosis. All affected workers had participated in the cutting, polishing, carving, drilling, sanding, and installation of worktops at private premises, meaning that their exposure to silica dust released during those tasks was habitual over a period of years.

FIFTH: Silicosis is a pneumoconiosis caused by the inhalation of crystalline silica and is classified as an occupational illness under Annex 1 of Royal Decree 1299/2006 of 10 November. For a diagnosis of silicosis to be established, it is considered sufficient for there to be a work history of adequate exposure to crystalline silica and a latency period that varies depending on the extent of that exposure. As a pulmonary disease, the risk of contracting silicosis is directly related to the cumulative amount of crystalline silica inhaled over the course of a working life. A diagnosis additionally requires the presence of typical clinical manifestations, respiratory function findings, and radiological indicators, together with the exclusion of other causes of diffuse interstitial lung disease. All workers, with the exception of ............. (who was only temporarily and occasionally exposed to the risk), met the diagnostic criteria for silicosis and the occupational illness they suffered, with the following consequences:

1. .............., born 21.02.60, held positions at the company as a first-grade skilled worker from 03.04.88. He was diagnosed with pneumoconiosis — marble employee silicosis — in November 2009, was granted a declaration of Total Permanent Disability in February 2010 and Absolute Permanent Disability in December of the same year; he died on 30.09.11 as a result of pulmonary silicosis secondary to occupational exposure to silica dust.

2. .............., born 17.10.64, cutting operative from 06.07.88, died on 9.02.11 as a result of pulmonary silicosis secondary to occupational exposure to silica dust, which had been diagnosed in December 2009; he had been declared Totally Permanently Disabled from February 2010.

3. ..................., born 19.07.71, cutting operative, was diagnosed in November 2009 with pneumoconiosis — marble employee silicosis — and silicosis at the stage of progressive massive fibrosis. From that date he was found to be incapable of carrying out his usual occupational activities; he holds a declaration of Absolute Permanent Disability on grounds of occupational illness from March 2012. Antonio suffers from simple silicosis with a moderate reduction in alveolar diffusion capacity and is restricted from performing activities requiring sustained moderate physical exertion, with avoidance of exposure to inorganic dust (1–10 points).

4. ............, born 21.06.69, cutting operator from 28.12.93, was diagnosed with pneumoconiosis, marble employee silicosis, on 18.10.10, and has been on temporary disability (IT) leave since that date, having been declared in a state of Total Permanent Disability from May 2011. He suffers from simple silicosis with a slight reduction in alveolar diffusion capacity, and is restricted from carrying out activities requiring sustained moderate physical exertion, with avoidance of exposure to inorganic dust (1–10 points).

5. .................., born 28.09.67, cutting operator from 17.09.02, was diagnosed with pneumoconiosis, marble employee silicosis, on 28.10.09, and was unfit to perform his usual occupational duties from that date until 22.10.10, and again from 15.02.11 until 08.08.11, before being declared in a state of Total Permanent Disability on 05.01.12. He suffers from simple silicosis with a slight reduction in alveolar diffusion capacity, and is restricted from carrying out activities requiring sustained moderate physical exertion, with avoidance of exposure to inorganic dust (1–10 points).

6..................., born 20.02.80, cutting operator from 10.05.00, was diagnosed with pneumoconiosis, marble employee silicosis, on 26.11.10, and was unfit to perform his usual occupational duties from that date until 08.01.12, when he was declared in a state of Total Permanent Disability. He suffers from simple silicosis with a slight reduction in alveolar diffusion capacity, and is restricted from carrying out activities requiring sustained moderate physical exertion, with avoidance of exposure to inorganic dust (1–10 points).

7. ................., born 12.06.70, cutting operator from 28.12.93, was diagnosed with pneumoconiosis, marble employee silicosis, on 05.09.11, and was unfit to perform his usual occupational duties from that date until 24.01.12, when he was declared in a state of Total Permanent Disability. He suffers from simple silicosis with a slight reduction in alveolar diffusion capacity, and is restricted from carrying out activities requiring significant and sustained physical exertion (1–10 points).

8. .................., born 21.12.71, cutting operator from 05.08.97, was diagnosed with pneumoconiosis, marble employee silicosis, on 13.11.09, and was unfit to perform his usual occupational duties from that date until 10.09.10, and again from 18.02.11 until he was declared in a state of Total Permanent Disability on 29.02.12. He suffers from pneumoconiosis, marble employee silicosis, with a slight reduction in alveolar diffusion capacity, and is restricted from carrying out activities requiring significant and sustained physical exertion (1–10 points).

9. .................., born on 31.03.53, cutting operator since 19.01.88; was diagnosed with pneumoconiosis — silicosis caused by marble dust — on 13.03.12, and was unfit for his usual occupations from that date until 27.03.12, when he was declared to have total permanent disability (IPT). Rafael suffers from pneumoconiosis, acute silicosis with functional limitations preventing activities requiring significant and sustained physical exertion (1–10 points).

SIXTH: The outcome could have been avoided if, in order to neutralise the foreseeable, serious and imminent risk of contracting the occupational illness, the following preventive measures had been adopted: by effectively integrating preventive activity into the company from the outset of its operations, through an adequate risk assessment involving measurements of respirable silica dust capable of evidencing the silica exposure levels to which workers were subjected at each workstation throughout their working hours.

By adopting collective protective measures aimed at controlling dust emissions — eliminating or reducing them — consisting of carrying out all mechanised work using wet methods and using low-speed portable machinery. By implementing localised dust extraction systems at source to prevent or reduce the dispersal of dust in the working environment, through the use of wet methods or suction-based cleaning of equipment and work clothing; and by providing individual respiratory protective equipment, specifically through the continuous use of FFP3 masks.

SEVENTH: The accused J. M. R., sole manager and administrator of the company MARMOLERA O S.L. until 1994, who held full powers of organisation and management shared from that point onwards and throughout the entire life of the company with his son Joaquín Moreno Molina — appointed Chief Executive Officer of the company in 1994 and director from 2002 — failed to comply with the most basic duties of care imposed on them by health and safety legislation. They did so by wholly neglecting their obligation to plan preventive activity within the company, including prior assessment of the risks associated with each workstation, until 2004, and by failing to implement collective protective measures on a general basis adequate to prevent or minimise the risk of workers contracting silicosis. Specifically, they permitted all their workers to work under conditions of continuous exposure to large quantities of respirable silica dust particles generated during the cutting, polishing and sanding of marble, granite and quartz composite materials, through the widespread use of dry-process machinery, without installing localised suction-based dust extraction systems in the workplace, without implementing any practice of cleaning equipment and workers' clothing using wet or suction methods, and without consistently providing individual respiratory protective equipment such as FFP3 masks or prohibiting work without such equipment. On the contrary, they permitted the continuous generation of and exposure to silica dust among their workforce over the course of many years.

As those responsible for all of these omissions, the accused thereby contributed to generating the serious and highly probable risk of contracting the occupational illness of silicosis, which materialised in nine workers being diagnosed with this occupational illness, two of whom died as a result.

EIGHTH: The accused Mr M. G., Occupational Risk Prevention Technician at Prevention Company F, assigned to company Marmolería O, failed to fulfil the most basic duties of care imposed on him by occupational risk prevention legislation, in relation to his direct responsibility for developing and carrying out risk assessment activities, by wholly omitting his contractual obligation to conduct environmental sampling for the determination of chemical agents.

From the entry into force of the contract in April 2004 until 2009, the accused limited himself to taking general dust measurements without conducting specific measurements of silica dust that could have established the levels of silica to which workers were exposed at each workstation. As a result, the risk was not identified until 2009, by which time the workers had already contracted the disease, when the first measurements were taken and found to exceed the minimum admissible values. By failing to identify and determine the risk of inhaling silica dust, the accused omitted to plan robust preventive measures to prevent the generation of silica dust at each of the assessed workstations and to prevent workers from being exposed to the particles released into the air. Furthermore, by omitting silica dust measurements, the accused failed in his obligation to provide the occupational health surveillance service with data on the risk of contracting the disease to which the employee was exposed — workers who were never subjected to the only medical test available to prevent and detect it, namely the chest X-ray. The accused also omitted his obligation to provide specific training and information on the risk of contracting silicosis from working with natural stone or quartz composite materials, or on the preventive measures to be taken to avoid it.

As the person responsible for all of these omissions, the accused thereby contributed to generating the serious and highly probable risk of contracting the occupational illness of silicosis, which materialised in nine workers being diagnosed with this occupational illness, two of whom died as a result.

NINTH: The defendant F. J. L de H, a physician employed by the Prevention Society F on behalf of the company from 2004 to 2009, was responsible for monitoring the health of the marble company's workforce. He never carried out chest X-rays on those workers — the only medically and ethically appropriate test for preventing and detecting silicosis — thereby failing to fulfil his contractual obligations to the company and failing to apply the pneumoconiosis (silicosis) health surveillance protocols. By omitting this duty to subject workers to early-detection medical testing, he causally contributed to the worsening of their symptoms and thereby directly contributed to the increased risk of contracting the occupational illness of silicosis suffered by nine of his workers, two of whom died as a result.

TENTH: The private prosecution has waived both criminal and civil actions against all defendants, having received satisfactory compensation prior to trial. The sole exception is the Heirs of ............., who reserved their right to bring proceedings before the appropriate court.

ELEVENTH: The handling of these proceedings, which were initiated by order of 10 August 2012, has been subject to undue delays disproportionate to the complexity of the case. Despite the number of claimants involved, all of them had given evidence before the court by January 2013 — the same year in which all forensic reports were issued. Specifically, undue delays occurred during the following periods: between the final claimant's statement on 08/01/13 and the court order of 12/12/13 transmitting the private prosecution's written submissions; between that order and the order of 18/05/14 directing that the suspects be formally questioned, which took place on 24/09/14; from the order of 07/10/14 transmitting documents to the parties until the order of 30/07/15; and from the issuance of the Preliminary Proceedings order of 06/04/16 until it became final by order of 30/11/17.

LEGAL GROUNDS

FIRST: The findings of fact set out above have been reached following a thorough and reasoned assessment of the evidence adduced at trial, in accordance with Article 741 of the Spanish Criminal Procedure Act.
Specifically: 1) Statements of the defendants. 2) Documentary evidence on the case file.

SECOND: Given the agreement of the parties, it is appropriate to issue a ruling in accordance with those terms.

THIRD: The legal requirements set out in Article 80 of the Spanish Criminal Code being satisfied, the execution of the custodial sentences imposed is hereby suspended for a period of two years, subject to the condition that no further offences are committed during the suspension period.

FOURTH: Costs are to be borne by the accused in equal shares of one quarter each, pursuant to Article 123 of the Spanish Criminal Code. Having regard to the provisions cited and related legislation.

RULING
I convict Mr M. G., Mr J. M. R. and Mr D. J. M. M. as perpetrators of one offence AGAINST WORKERS' RIGHTS under Article 316 of the Spanish Criminal Code, TWO OFFENCES OF NEGLIGENT HOMICIDE under Article 142.1 of the Spanish Criminal Code, and SEVEN OFFENCES OF NEGLIGENT BODILY HARM under Article 152.1.2º (all in ideal concurrence pursuant to Article 77.1 of the Spanish Criminal Code) in relation to Article 149 of the Spanish Criminal Code, with the mitigating circumstances of undue procedural delay under Article 21.6º and of reparation of harm under Article 21.5º of the Spanish Criminal Code, and sentence each of them to ONE YEAR AND THREE MONTHS' IMPRISONMENT, with the accessory penalty of special disqualification from the exercise of passive suffrage (the right to stand for election) for the duration of the sentence.
I convict the accused Mr F. J. L. H. as perpetrator of TWO OFFENCES OF NEGLIGENT HOMICIDE under Article 142.1 of the Spanish Criminal Code and SEVEN OFFENCES OF NEGLIGENT BODILY HARM under Article 152.1.2º of the Spanish Criminal Code (all in ideal concurrence pursuant to Article 77.1 of the Spanish Criminal Code), with the mitigating circumstances of undue procedural delay under Article 21.6º and of reparation of harm under Article 21.5º of the Spanish Criminal Code, and sentence him to
ONE YEAR AND THREE MONTHS' IMPRISONMENT, with the accessory penalty of special disqualification from the exercise of passive suffrage for the duration of the sentence.
The execution of the sentences imposed is hereby SUSPENDED for a period of two years, subject to the condition that no further offences are committed during the suspension period.
There are no grounds for a declaration of civil liability on the part of Marmolería O or Ax Seguros.
The civil actions that may arise from the facts that are the subject of these proceedings are reserved in favour of the Heirs of Mr .............
Each accused is ordered to pay one quarter of the costs incurred.
A certified copy of this decision shall be issued and attached to the proceedings. The parties are hereby informed that this decision is final.

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