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The extension of compensation for anxiety-related harm
According to a judgment of the Plenary Assembly of 5 April 2019, Plenary Assembly, n°18-17442, Published in the bulletin As a reminder, Law 98-1194 of 23 December 1998 allowed employees who had been particularly exposed to asbestos to benefit from early retirement even though they had not developed an occupational disease linked to this exposure. The condition was to have worked in an establishment mentioned in Article 41 of the Act. The employees, who met the conditions required by this law, were also able to claim damages for anxiety, which is linked to the fact of having been exposed to this particularly toxic material. Indeed, the moral prejudice resulting for an employee from the risk of developing a disease induced by his or her exposure to asbestos is constituted solely by the prejudice of anxiety, the compensation for which compensates all the psychological disorders resulting from the knowledge of such a risk. However, the Plenary Assembly of the Court of Cassation, in its decision of 5 April 2019, went even further, since from now on, even employees who do not meet the condition set out in the aforementioned Article 41 can hope to obtain compensation for their anxiety loss if they have been exposed to asbestos. This judgment constitutes a very interesting advance in the increase of the liability of the employer, who is obliged to fulfil his obligation of safety of result towards his employees. It should be noted that both the Social Division and the Criminal Division of the Court of Cassation are tending to harden their decision with regard to employers.By way of example, the Criminal Division upheld a decision dated 19 April 2017 (no. 16-80695) handed down by a Court of Appeal which had found the company working on a site where the risk of inhaling asbestos fibres had been identified and recognised guilty of endangering the lives of others.
After noting that the defendants had deliberately violated the specific obligations that had to be implemented, the Court affirmed that this violation directly and immediately exposed others to a risk of death, mutilation and permanent disability due to the certain risk of developing lung or pleural cancer, and fell within the scope of Article 223-1 of the Criminal Code, which states that "the act of directly exposing another person to an immediate risk of death or injury from asbestos fibres is a criminal offence". nature to cause permanent mutilation or infirmity by the manifestly deliberate breach of a specific safety or prudence obligation imposed by law or regulation is punishable by one year's imprisonment and a fine of 15,000 euros".
The judges thus established a direct causal link between the employer's failings and the pathology that occurred.
It can be deduced from this text that exposing employees to the risk of asbestos or chemical hazards constitutes a particularly serious offence, which is sufficiently serious for the courts to convict the employer both criminally and civilly, in the context of an action for recognition of his inexcusable fault.
This case law is in line with the hardening of the position of the Courts in matters of occupational risks, whether these risks are linked to asbestos, chemical products or psycho-social risks.
Prevention is the best way to avoid disputes with employees.
Employers, I invite you to contact me to find out more about your prevention obligations and avoid civil and/or criminal proceedings being brought against you and your company.
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