This could be a turning point in the series of the asbestos. “A Pandora’s box,” judge Master Joumana Frangié Moukanas, of the law firm Flichy Grangé Avocats. This Friday, the Court of cassation had to decide on the enlargement or not of the “prejudice of anxiety” to all workers of the asbestos, i.e. a very large number of employees currently lack the ability to rely on them. But the decision will ultimately be made on the 5th of April next, a-t-on learned at the end of the afternoon.
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During oral arguments, solicitor general, as counsel for the various parties have all called for a reversal of case-law, that is to say, a return to the application of the common law of contractual and civil liability. In practical terms, this prejudice of anxiety should be extended to all workers who have been exposed to asbestos, to the extent that they can prove, as was the case between 2010 and 2015.
But what is this prejudice of anxiety? It is a sum of between 4000 and 15,000 euros has to pay a company “classified asbestos” according to the official list established by a by-law to any employee requesting it before the Council of prud’hommes. Currently, any person working in these companies has the right to do, and this in an unconditional way: the mere fact of there work proves the damage, there was no evidence to provide. In parallel, any employee working in an institution not classified as asbestos has, since 2015, no law on this prejudice, even though it would prove to have anxiety because of the asbestos.
“anxiety is the result of any activity of occupation. You should report any objective evidence of the existence of an anxiety.”
This prejudice of anxiety, introduced in 2010 by the judgment of case law, aims to compensate people who would be anxious at the idea of see diagnose cancer due to significant exposure to asbestos. “Not to be confused with a sick person,” holds qualified Joumana Frangié Moukanas, “anxiety is a result of any activity of occupation ; each individual does not live in the same way. It is thus necessary to relate the objective evidence of the existence of an anxiety”. Generally, this prejudice applies in a few situations, and must be studied on a case-by-case basis.
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“This concept of prejudice of anxiety stems from the time of HIV and could apply to hiv-infected persons”, says Joumana Frangié Moukanas. Subsequently, several cases of injury anxiety have been validated. In 2010, a host agent posted in a bus station had won the case, proving that he felt “insecurity,” and has thus proven his anxiety. The lawyer Elizabeth Leroux of the law firm TTLA to the origin of this concept of harm to asbestos workers, also mentions “the case of employees exposed to vapors of chromium that has proven that they were anxious to trigger a cancer.”
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Specificity of asbestos –
The issue of asbestos, however, is special. In question, “the very significant number of workers exposed,” details Joumana Frangié Moukanas. Indeed, at the time of the judgment of the Court of cassation, 2010, all asbestos workers were likely to get this injury, if they are able to prove their anxiety, through psychologists, certificates of physicians or other miscellaneous documents. But given the profusion of applications, the Court of cassation has been in the obligation to limit in 2015 the access to this prejudice. “This could put businesses into bankruptcy, it was a significant risk for employers,” explains Joumana Frangié Moukanas. Elizabeth Leroux, meanwhile, opposed the argument: “this was absolutely not a risk for businesses”.
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At the origin, this prejudice has been requested to offset the shortfall in the asbestos workers. In effect, the act has since December 23, 1998 that all workers of establishments “classified asbestos” has the right to an early retirement pension as early as age 50, but paid only at 65% of salary. “The workers wanted to counterbalance this disadvantage by finding this prejudice of anxiety”, develops Joumana Fragié Moukanas.
To Elizabeth Leroux, “the 2010 decision was fair and equal. This is not because a worker is not an employee of an establishment “classified asbestos” that he has not been exposed”. The lawyer cites in particular the workers in EDF – including the decision of the Paris Court of appeal in march 2018 is the origin of the appointment of cassation of today – which have a specific regime and that the classification of “asbestos” may not be effective. “However, the thermal power plants in question in which worked for these employees were clearly riddled with asbestos”. Similarly, Elizabeth Leroux advocates for the “workers sub-contracted workers, who do not have the right to the same plan and who are exposed to the same.”
The lawyer defends “the same justice for everyone”, so a return at the stop of 2010. “It is difficult to prove this prejudice of anxiety, which limits things. But this might give the possibility to everybody to defend themselves”. Joumana Frangié Moukanas has a different view of things. “If you go back to the stop of 2010, this could pave the way, why not, to the generalization of the prejudice of anxiety for a lot of other risks, in addition to expanding the fields of application of this damage to facilities not classified”. See you April 5th.
