Tiger Brands offers first settlement in deadly listeriosis outbreak case – The Mail & Guardian

The outbreak of listeriosis seven years ago was one of the largest in the world. (File photo)

South Africa’s largest food producer, Tiger Brands, has agreed to settle claims from certain groups in the listeriosis class-action lawsuit, seven years after the country experienced the world’s deadliest listeriosis outbreak.

The 2017-18 outbreak caused 218 deaths out of more than 1 000 infections as a result of people consuming contaminated processed food products — mainly polony cold meat and vienna sausages — which were produced at the Tiger Brands facility in Polokwane and distributed from its Germiston facility. 

On Monday, Tiger Brands confirmed that attorneys representing its lead reinsurer QBE Insurance Group Limited had presented a settlement offer to the plaintiffs’ attorneys as “part of a roadmap to a possible overall resolution of the listeriosis class action”.

“The lead reinsurer, having primary conduct of the defence of the class action against Tiger Brands, has with Tiger Brands’ support and agreement authorised the insurers’ attorneys to make settlement offers to specific named persons,” the company said in a statement. 

It said these were members of classes of claimants who suffered damage as a result of listeriosis caused by genotype L1-SL6-ST6-CT4148 of listeria monocytogenes (ST6) — the outbreak strain. 

These are claimants who contracted (or whose mothers contracted) listeriosis caused by ST6; claimants whose legal breadwinners, on whom they were legally dependent, died of listeriosis caused by ST6 and claimants whose legal dependents, who were in their care, contracted listeriosis caused by ST6.

The settlement offer, made on 25 April, includes an undertaking to pay the claimants’ proven or agreed compensatory damages in terms of section 61 of the Consumer Protection Act. “The offer is subject to certain conditions and has been made without admission of liability and in full and final settlement of the claims of the claimants.”

The listeriosis class-action attorneys said in a statement that they welcomed Tiger Brands’ “effective admission of liability for the world’s deadliest listeriosis outbreak in 2017-18, which claimed the lives of over 200 people, primarily children, and impacted more than 1 000 South Africans”.

Two law firms, Richard Spoor Inc. Attorneys and LHL Attorneys are the class attorneys. 

The attorneys commended Tiger Brands, its shareholders and insurers for agreeing to compensate victims, saying: “This reflects a positive move towards corporate accountability, responsible citizenship and justice for victims.

“The current proposal provides for full compensation to claimants for all proven damages, subject to a settlement mechanism that still needs to be finalised including how individual damages will be assessed and how claimants will be categorised under the settlement structure.”

The development is a breakthrough because it is the first settlement offer made since the class-action was certified in December 2018, Nilesthra Padayachee, a director of Richard Spoor Inc. Attorneys, told the Mail & Guardian.

“Even though the settlement … refers to a group of individuals, we are really hoping to achieve an overall settlement that will encompass all class members,” she said.

“It is the initial settlement offer, so there will be a greater conversation between us and the defendants. We are in the process of arranging a meeting with our class representatives to also canvas the offer with them. 

“But we do welcome it as a great first step. Essentially, what we need to do is decide between us on the settlement mechanism that will be created to finally be able to compensate the claimants.”

Tjaart Kruger, the chief executive of Tiger Brands, said the announcement represented an important milestone and followed on measures already taken in February to offer interim relief in the form of advance payments to identified claimants with urgent medical needs.

“It also demonstrates our commitment to continue to work closely with our insurers and their appointed attorneys to explore a resolution of the entire class action,” Kruger said. 

Tiger Brands said it and the insurers’ attorneys were engaging with the plaintiffs’ attorneys to ensure timely implementation of the offer and settlement of proven or agreed compensatory damages as soon as possible. 

“The next step to give effect to the settlement offer is for the offer to be conveyed by the plaintiffs’ attorneys to those claimants who qualify and then for the damages of those claimants who accept the offer to be quantified.” 

It is expected that the process to present the offer to these qualifying claimants will take several weeks and that arrangements to quantify their damages will follow over the ensuing weeks.

The class action, which is being managed in two stages, is still at the first stage during which liability is to be determined by the court. 

“Only if Tiger Brands is found to be liable will the issue of causation arise, in the second stage of the class action, as well as an assessment of compensation payable to qualifying claimants for damages suffered,” it said

The listeriosis class attorneys said Tiger Brands’ decision to settle claims was based on the “incredible investigative work of the National Institute of Communicable Diseases (NICD), under the direction of Health Minister Aaron Motsoaledi”. 

“Their scientific investigation, which conclusively traced the outbreak to Tiger Brands’ Polokwane facility, has been internationally peer-reviewed and praised. These findings have since been confirmed by world-renowned epidemiologists, including Tiger Brands’ own experts.”

Padaychee concurred. “The NICD’s investigation has yielded the evidence that Tiger Brands’ own experts have reviewed now and it’s on the basis of that that we believe this offer was made.”

Before any settlement can be finalised, it must be presented to the high court, which will determine its fairness as the ultimate guardian of class member interests. While this process will require time, the listeriosis class attorneys are confident that “Tiger Brands’ renewed and demonstrable commitment to the victims will ultimately lead to a comprehensive resolution of all claims”.

While this is a significant breakthrough, serious challenges remain, they added. 

“Many victims of the outbreak have not yet come forward and therefore have not yet been identified or located,” they said, noting that Motsoaledi had requested a full update and had “shown his commitment” to assisting with providing department of health records to help confirm and trace victims.

The health department welcomed the decision by Tiger Brands to finally settle the listeriosis class action “to bring this lengthy legal matter to finality and closure to the affected families whose loved ones succumbed to this deadly, but preventable and treatable, disease”. 

It acknowledged the roles of all parties involved including the NICD, Tiger Brands, Richard Spoor Inc and LHL Attorneys “who put the sufferings of the victims and their families at the centre stage during a protracted legal process”. 

The NICD is providing the medical records to enable decision-making in the process during the investigation of the outbreak. 

“The department is also appealing to those with enough evidence suggesting a causal link between the outbreak of listeriosis and the loss of their loved ones, to come forward so that their clinical records can be accessed for assessment to establish if indeed they have valid claims eligible for settlement, and also to find lasting closure after grief.” 

Listeriosis is a serious, but treatable, disease caused by the bacterium Listeria monocytogenes. 

“The bacteria is widely distributed in nature and can be found in soil, water and vegetation. Animal products and fresh produce such as fruits and vegetables can be contaminated from these sources. 

“The outbreak highlighted the importance of consistent and strict adherence with food safety practices in the processing and handling of ready-to-eat foods, especially for mass supply,” the department added.