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Silicosis as a work-related accident or occupational illness: damages and liability:
Silicosis is one of the best-known occupational diseases. In developing countries, it currently tops the list of work-related respiratory conditions.
Written by Josep Conesa
Employment and insolvency lawyer
Silicosis is a form of pneumoconiosis caused by the inhalation of silica dust particles. Pneumoconiosis refers to a disease resulting from the accumulation of dust in the lungs and the pathological reaction it triggers — particularly fibrotic changes.
It is therefore an irreversible pulmonary fibrotic disease, recognised as a disabling occupational illness in many countries. It is particularly prevalent in industries related to mining, metallurgy, foundry work, and sectors involving chemicals, paints, ceramics, marble, stained glass, insulators, polishing compounds, pipework, thermal insulation, masonry and construction.
What can a lawyer claim on behalf of a silicosis sufferer?
- A disability pension: covering total incapacity for the usual occupation, absolute incapacity, or severe disability.
- A pension increase of up to 50%: through the benefits surcharge mechanism.
- Damages: up to €300,000 or more, depending on severity.
- A penalty against the company.
- Criminal liability: criminal sanctions against the company.
Find out how to make a claim or mount a defence here
Types of silicosis:
Depending on the level of crystalline silica exposure, there are three types of silicosis:
Chronic silicosis: this results from prolonged exposure (more than 20 years) to low concentrations of silica dust. The dust causes inflammation in the lungs and the lymph nodes of the chest. This condition can cause breathing difficulties and is the most common form of silicosis.
Accelerated silicosis: this develops following exposure to higher concentrations of silica over a shorter period (5 to 15 years). Lung inflammation and symptoms progress more rapidly than in simple silicosis.
Acute silicosis: this results from exposure to very high concentrations of silica over a short period of time. The lungs become severely inflamed and may fill with fluid, causing serious respiratory distress and a drop in blood oxygen levels.
Other conditions may also develop, including lung cancer, chronic obstructive pulmonary disease (COPD), and tuberculosis. Associated symptoms include: fever, weight loss, night sweats, chest pain, and respiratory failure.
Factors contributing to the onset or development of pneumoconiosis:
This type of disease does not lend itself to generalisation. Several factors will shape the development of pneumoconiosis and the time it takes to appear (the latency period). These include:
- Dust-related factors (physicochemical characteristics, such as particle shape and size, composition, etc.)
- Exposure factors: intensity, duration, and hygiene measures adopted.
- Individual factors: the person's immune response, medical history, toxic habits, and the condition of their airways.
It is almost impossible to determine with certainty when the "silent" phase of the disease began, as it cannot be diagnosed until it becomes clinically apparent. Each case must therefore be assessed individually.
Prevention:
The only way to prevent this disease is through control of respirable dust and early diagnosis, as well as embedding prevention at every level of the company, through measures such as:
– Monitoring workers' exposure to silica dust.
– Using technical control measures such as localised ventilation systems and isolation booths.
– Training workers on the health effects of silica dust.
– Dampening work surfaces before cleaning them, using vacuum cleaners or sweeping with wet surfaces.
– Always using appropriate personal protective equipment (PPE).
– Washing thoroughly and changing into clean clothing before leaving the workplace.
Even so, the reality speaks for itself. There are sectors where occupational risk prevention arrives too late and falls short.
In the stone-working sector, for example, it is clear that not everyone was aware that Silestone could cause such harm. External Occupational Risk Prevention Services had not assessed the risk, had not recommended any preventive measures or appropriate protective equipment, and the Occupational Health Surveillance Service had not carried out the necessary checks or medical assessments.
Legal consequences:
Damages claim:
The outlook for businesses in this sector — typically small, fragmented operations, many of which are self-employed individuals — is far from encouraging. They are personally liable for any harm caused in the course of their economic activity, with both their current and future assets at risk. In other words, a public liability insurance policy will only cover so much; beyond that limit, the self-employed individual bears full personal liability.
It is therefore advisable to bring claims against all companies for which the employee provided services.
How can a disability pension be increased by up to 50%?
There is also the well-known Social Security benefit surcharge (which increases the employee's pension by between 30% and 50%), the cost of which is not covered by the insurer (as it cannot be insured against) and which Social Security will require the company (whether a company or an individual) to pay in a single lump sum — calculated by reference to the employee's life expectancy.
In any event, Social Security will assume responsibility for making the surcharge payments.
Calculate your potential benefit surcharge now using the link below:
CALCULATE THE SOCIAL SECURITY BENEFIT SURCHARGE
HOW SHOULD I MAKE A CLAIM IF I AM AN employee?
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How should a company approach all of this?
At Conesa Legal, we provide legal advice and preventive counsel in workplace accident matters, drawing on our extensive experience defending clients in court. Over the years, we have identified two significant issues that arise in connection with the benefit surcharge:
1.) The surcharge is accompanied by an administrative penalty. The issue is not usually the amount of the penalty itself, which tends to be modest. The problem arises when the company pays it without challenging it, mistakenly assuming that the surcharge notice and the administrative penalty are one and the same thing. Acting on that assumption, companies very often fail to contest the surcharge and allow the deadline to do so to lapse. The consequence is serious: Social Security subsequently capitalises the surcharge and demands payment of the full amount in one go — which can be a very significant sum.
2.) The second problem we face is that current case law still upholds this mechanism in Spain. In our view, it can be challenged. There are grounds to argue that the surcharge is an obsolete, pre-constitutional and void legal instrument. To set out that argument in full here would take too long, but there is sufficient legal reasoning to support a strong claim and to lodge appeals on solid legal foundations.
However, these are not the only serious risks facing the company. As noted above, it will also be exposed to claims for damages and losses that the employee may bring through employment law proceedings, or even through criminal proceedings.
In criminal proceedings, the statute of limitations on criminal offences has played an important role in acquitting some companies in the sector (since symptoms of the disease can appear late). There is also some case law acquitting companies on the grounds that the risk of silicosis from handling Silestone was an emerging risk that was not known at the time.
Even so, claims for damages and losses can equally be pursued through employment law proceedings. The key issue will then be, as noted above, reviewing the insurance policy coverage. It may not provide sufficient cover, or there may be a sub-limit per victim. Insurers may also now identify the risk and seek to withdraw cover or increase premiums accordingly.
Is there any solution, then, after so many legal battles have already been fought? What happens if all the claims are lost?
The truth is that there are always further actions the company can pursue, provided it still has the will and the resources to do so.
The first step would be to conduct a case-by-case review to assess whether there are grounds to bring a claim against the occupational risk prevention service. That is to say, the company engaged a service to identify workplace risks and monitor employee health — a function it failed to perform. This will need to be examined carefully, as that service provider will also hold a civil liability insurance policy.
The second step is to consider whether there are grounds to bring a claim against the company that manufactured the material. When a product is manufactured — in this case a registered trademark product — the manufacturer is obliged to provide information about the risks involved in handling it. From what is known, in this sector, there was insufficient information provided regarding the risks associated with working with that material.
How Should I Deal With All of This?
I recall a case where, for the reasons explained above, the company missed the deadline to challenge the surcharge arising from an occupational illness. By the time the Social Security issued the quantified surcharge, it had reached €127,000 — an amount the company was unable to pay. It was a relatively small company operating in a sector that had seen its margins eroded for years.
We took what might seem like the worst possible course of action — yet in certain situations it is entirely necessary: we had to file for insolvency proceedings.
Faced with this kind of situation, it is strongly advisable to carry out a workplace health and safety compliance audit (check-list), so that from a legal standpoint everything is properly documented and you are well positioned to mount a defence.
We invite you to click on the link below to share your documents with us and commission a legal audit — the best way to prevent and defend against what could become a work-related accident or occupational illness claim in your company: CHECK-LIST — WORKPLACE HEALTH AND SAFETY COMPLIANCE AUDIT
If you have any questions, please do not hesitate to get in touch.
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