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Partner Sylvie Gallage-Alwis examines the law surrounding the “fear” or “anxiety” of developing a disease in the future, as it is recognised in France in the scope of the asbestos-related litigation.
This article has been published in Lawyer Monthly, 29 May 2019, and LJA, 30 May 2019. These can be read here and here respectively.
On 11 May 2010, the Social Chamber of the French Supreme Court ruled that people who have worked on sites where asbestos was used either as raw material or for insulation purposes can obtain damages for their anxiety to potentially develop a disease in the future. The people who could file such a claim were, however, strictly defined. They had to be employees during a specific period on one of the sites listed by the French Government as fulfilling two conditions: they used asbestos as raw material or as insulation and a significant number of employees on the site were exposed. More than 900 sites are listed by the Government and all employees, whatever their position, could become plaintiffs. Hence, some companies have faced thousands of claims for damages with Courts, granting between €5,000 and €15,000 per case.
This case law has been highly criticised, with companies complaining about the fact that it led to a specific legal regime whereby employers were automatically condemned due to presumptions of breach by the company of its safety obligations, of a causal link and of anxiety felt by the employees. It went as far as the Supreme Court ruling that the employees do not have to prove their real exposure or their anxiety, considering that anyone who believes, rightly or wrongly, that they could have been exposed to asbestos is anxious. Companies also criticised the fact that all employees of a “listed site” could be equally compensated, even the administrative staff who were never exposed to asbestos. More generally, companies denounced the opening of Pandora’s box with plaintiffs not making any kind of effort to justify their claims and being nonetheless compensated.
“This case law has been highly criticised, with companies complaining about the fact that it led to a specific legal regime whereby employers were automatically condemned due to presumptions of breach by the company of its safety obligations, of a causal link and of anxiety felt by the employees.”
The other type of criticism came from people who were exposed to asbestos but on sites that are not on the Government’s list. They raised the point that this “listing” requirement creates a situation where non-exposed people of listed sites (e.g. administrative staff) are compensated while people who actually handled asbestos on non-listed sites are not compensated.
Both sides of the coin have been heard in some way. On 5 April 2019, the Plenary Assembly of the Supreme Court (the highest and most respected Bench) implemented a major change by creating the possibility to obtain compensation for anxiety for all employees who can prove exposure to asbestos, wherever they worked. There is, therefore, no more limitation of the pool of plaintiffs. The Supreme Court has tried to control this change by stating that there should no longer be any presumption against companies, with the latter being able to demonstrate that they have complied with their obligations. The Court also states that plaintiffs should now be asked to prove their anxiety.
The future will tell if a new Pandora’s box is being opened. This will all depend on how the lower Courts will understand this new case law, knowing that French Labour Courts tend to favour employees especially when it comes to large-scale heath issues. This being said, not only should this decision rejuvenate asbestos litigation, but could be the starting point of cases linked to exposure to any kind of substances suspected of being hazardous. The French plaintiffs’ Bar is already active in trying to have risks linked to exposure to pesticides, chromium, electromagnetic wave, etc. recognised and compensated. Manufacturers should prepare and gather evidence of compliance to regulation and of lack of scientific certainty.
