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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 December 23, 1998, allowed employees who were particularly exposed to asbestos to benefit from early retirement even if they had not developed an occupational disease related to this exposure. The required condition was having worked in an establishment mentioned in Article 41 of this Law. Employees who met the conditions required by this Law were also able to claim damages for anxiety-related harm, which is linked to having been exposed to this particularly toxic material. Indeed, the moral harm suffered by an employee from the risk of developing an illness caused by their asbestos exposure consists solely of anxiety-related harm, the compensation for which covers all the psychological distress resulting from the knowledge of such a risk. But the Plenary Assembly of the Court of Cassation, in its ruling of April 5, 2019, went even further, since now even employees who do not meet the condition set forth in the aforementioned Article 41 can hope obtain compensation for their anxiety damages when they have been exposed to asbestosThis ruling represents a significant step forward in increasing the employer's liability, as they have a strict obligation to ensure the safety of their employees. It is worth noting that both the Social Chamber and the Criminal Chamber of the Court of Cassation are tending to toughen their decisions regarding employers.As an example, the Criminal Chamber upheld a judgment dated April 19, 2017 (No. 16-80695) rendered by a Court of Appeal which had found a company working on a construction site guilty of endangering the lives of others. The company had been identified and acknowledged as being at risk of inhaling asbestos fibers. After noting that the defendants had deliberately violated the specific obligations that should have been 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 Penal Code, which states that "the act of directly exposing another person to an immediate risk of death or injury to the life of another person is a criminal offense." nature "To cause mutilation or permanent disability through the manifestly deliberate violation of a specific safety or precautionary obligation imposed by law or regulation is punishable by one year of imprisonment and a fine of €15,000." The judges thus established the direct causal link between the employer's failings and the resulting pathology. It can be deduced from this text that exposing employees to the risk of asbestos or chemical hazards constitutes a particularly serious offense, sufficiently serious for the judges to convict the employer not only criminally but also civilly, in the context of an action for recognition of inexcusable negligence. This case law is consistent with a hardening of the judges' position regarding occupational risks, whether these risks are related to asbestos, chemicals, or psychosocial hazards. Prevention remains the most appropriate response to avoid any disputes with employees. Employers, I invite you to contact me to fully understand the prevention obligations that weigh on you and to avoid civil and/or criminal action being taken against you and your company.
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