An Analysis of the Decision on the Case of Cadmium Intoxicated Workers in GP (Chaoba) Battery Factories made by the Courts in Huizhou
October 9, 2006
In 2005, two groups1 of GP workers, one after another, filed a case against their employer for his dereliction of duty during working hours and claimed compensation from the employer. The dereliction caused many workers infected with excessive level of cadmium and some even with cadmium intoxication. There were irrefutable evidences which may prove that GP Chaoba and Xianjin had violated health rights of the workers since Huizhou municipal government had fined GP Battery RMB 160,000 on September 3, 2004 for its failure to comply with the Occupational Disease Law. Meanwhile, it was also irrefutable that the negligence of the employer caused the workers losing money, physical and mental health. Therefore, the workers’ claim of civil compensation is reasonable indeed. It is unjust for Court of Huizhou to dismiss their claims.
Huizhou Court Deliberately Ignores Evidence Presented by Workers
On August 18, 2006, the Huizhou Intermediate Court dismissed an appeal from Xiang Zhiqing (向智清), a female ex-GP worker, and remained the original decision made in 2005 so that the plaintiff has no right to claim compensation from Chaoba. The reason for the decision was that “the extent of cadmium exposure of the plaintiff does not violate the standard of cadmium intoxication enacted by the state and she was not confirmed to suffer from occupational disease …which thus cannot be judged as work-related injury”. However, in fact, dating back to February 27, 2006 Guangdong Hospital for Treatment and Prevention of Occupational Diseases had confirmed that Xiang suffered from occupational chronic low-grade cadmium intoxication Huizhou Intermediate Court completely the evidence provided by Xiang. Second, the decision pointed out that the plaintiff “failed to provide any work-related injury certificate issued by Department of Labor and Social Security Authority”. This is true indeed. But why the plaintiff failed to provide the so-called work-related injury certificate? Because Huizhou Labor Bureau refused her request due to her failure to provide “existing” labor relation certification. The reason of rejection is ridiculous. According to legal provisions, if an applicant could prove the fact that he/she got the occupational disease during the employment period, he/she is entitled to apply for work-related injury confirmation and claim compensation from his/her employer. The applicant doesn’t have to provide the so-called “existing” labor relation certification. Therefore, we can conclude that Huizhou Labor Bureau explicitly sided with the employer. However, Huizhou Intermediate Court not only failed to find out the fact, but also took disadvantage of the plaintiff and deliberately ignored the evidence presented by her.
The Decision Made by the Huizhou Intermediate Court Is Weak
In 2005, the first group of the workers sued GP Chaoba/Xianjin to court for the cadmium over-exposure and claimed the defendant to compensate each worker RMB 150,000 as medical treatment expenses, and RMB 100,000 as compensation of mental losses. As to the compensation of mental losses, Huicheng District Court of Huizhou acknowledged “to some extent, the workers were mentally hurt, but it did not render serious results”; therefore, the court dismissed the workers’ claim. Later, the Huizhou Intermediate Court repeated the same opinion concerning workers’ appeal. However, what evidence could support the courts to make a decision that “it does not render serious (mental) results”. The decisions did not give any explanation about this opinion. On one hand, the appealing workers provided plenty of evidences to prove the fact that they were suffering from serious mental losses – cadmium over-exposure rendered them physical pains, anxiety and other relevant problems including some women workers are too worried to get pregnant because there are cases that children of workers with excessive cadmium were born handicapped; some women workers were divorced by their husband or abandoned by their boyfriends because of their sick body caused by Cadmium. On the other hand, the Court insisted that the appealing workers did not suffer from mental losses without providing any evidence.
The Courts in Huizhou Do Not Comply with the Relevant Provisions of the General Principles of the Civil Law
The courts in Huizhou dismissed the workers’ claim to Gold Peak Industries (Holdings) Limited for RMB 150,000 as medical compensation because the courts understand that “the extent of cadmium exposure of the plaintiff does not violate the standard of cadmium intoxication enacted by the state and she was not confirmed to suffer from occupational disease …which thus cannot be judged as work-related injury”. However the courts have ignored the fact that the relevant laws related to occupational diseases are entirely new. They were only recently enacted by the state and the Law of Prevention and Treatment of Occupational Disease of the People’s Republic of China was not enacted until 2002 and therefore it has many flaws. The recently enacted laws do not realize the difference between cadmium intoxication and other hazardous chemicals, which is that the first symptoms of cadmium intoxication usually appear in a few years and the victims do not recognize its serious harm to their bodies until many years later. Once cadmium enters the body, it will take several decades to discharge them out of the body. During this period, the victims will suffer from chronic weakening of health and some will be tortured by serious pathological changes of organs in a few decades. However, by that time it will be too late to claim economic compensation from the employer because the factory might have been closed down or the relevant evidences might have disappeared with elapse of the time. Nevertheless, the relevant laws ignore the above attributes. On such condition, the courts not only should abide by the Law of Prevention and Treatment of Occupational Disease, but also should comply with the General Principles of the Civil Law when they made a decision. According to Article 119 of the Civil Law, “Anyone who infringes upon a citizen's body and causes him/her physical injury shall pay for his/her medical expenses and his/her loss in income due to missed working time”, the above article should be complied with when the courts in Huizhou made their decisions. Now that the workers hold the evidences of cadmium over-exposure (even though they are not cadmium intoxicated), the courts should identify the fact that workers’ heath rights have been violated by GP, and then rationally dealt with this case in compliance with the relevant provisions of the General Principles of the Civil Law. Moreover, Article 48 of Safe Production Law states that “workers who suffer from injures in production accidents shall be entitled to claim compensations from both the work-related injury social insurance and the company according to the Civil Law. Obviously, the courts did not comply with the relevant provisions of Safe Production Law and the General Principles of the Civil Law when they made a verdict.
Whether the decision made by the court is just or not depends upon the reliability of certificates provided by the medical institution concerned. The court insisted that the 309 appealing workers had excessive cadmium but not cadmium intoxication, and “the extent of cadmium exposure of the plaintiff does not violate the standard of cadmium intoxication enacted by the state and workers were not confirmed to suffer from occupational disease …which cannot be judged as work-related injury”. We have pointed out that the appealing worker, Xiang Zhiqing (向智清), brought the occupational disease certificate afterward. However, the court still refused to support her appeal, let alone the others who were only diagnosed as cadmium over-exposure. Most of workers suspect the authenticity of the certificates because from the very beginning the reactions of Huizhou Hygiene and Disease Control Centre and Guangzhou Hospital for Treatment and Prevention of Occupational Diseases render the workers to suspect that they sided with Huizhou municipality and GP, and they colluded to cover-up the truth. After the disclosure of the incident of cadmium intoxication in 2004, workers concerned found that the level of cadmium exposure reported in physical examination paid by the workers is often higher than the figure in physical examination paid by GP. The two examinations were conducted by the same hospital but turned out with completely different diagnosis outcome. How can a diagnosis like this convince the public? Mr. Chen Jiabin, the director of ward department of Guangdong Hospital for Treatment and Prevention of Occupational Diseases, openly sided with GP and defended for GP in an interview with the media. Without giving any proof, he claimed that the cadmium infection was caused by bad hygienic habits of the workers. How can the workers be convinced of the impartiality of the Hospital?
The Explicit Collusion
Between Local Government Officials and Private Investors
At the very start of the incident, Huizhou municipal government has been explicitly on the side of Gold Peak Industries (Holdings) Limited. The local government kept harassing workers. Some plainclothes found out the dwelling places of worker representatives and urged local police to force them to leave Huizhou, So as to make workers left with no leaders. Huizhou Health Supervision Institute had threatened worker representatives that if they made troubles once again, they would be wiped away from this world or got killed by contrived traffic accidents. They stigmatized workers fighting for their legitimate rights as trouble-making. In fact, at the beginning of the incident, the Special Team was sent to the two GP plants to suppress workers’ resistance. On September 3, 2004, the Huizhou municipal government and GP Battery collectively issued warnings toward workers. They forbade the workers to petition Beijing authority again, and if they did or they “make unreasonable trouble” again they would face criminal charges. The acts of Huizhou municipal government and GP Battery have seriously violated human rights of the workers. It is no surprise that different departments of Huizhou municipal government including Labor Bureau and Heath Supervision Institute kept creating difficulties for the workers here and there. The case of Xiang Zhiqing is a vivid example that the Labor Bureau kept blocking her from applying for work-related injury certificate. As far as the courts are concerned, considering the fact that there is no actual judicial independence in China and the two courts had never displayed judicial justice throughout the GP Cadmium incident, the decision inevitably bears many doubts and flaws.