ASBESTOS-RELATED PERSONAL INJURY: WHAT ABOUT LIABILITY WHERE THERE ARE SEVERAL EMPLOYERS?

Asbestos-related personal injury

Employee exposure to asbestos is obviously highly regulated.

The main objective is to limit or even eliminate asbestos-related damage. To achieve this, preventive measures have been stepped up.

The law sets out the conditions and rules for protecting employees assigned to asbestos containment and removal work.

In particular, the employer must estimate the level of dust corresponding to each work process, and then classify them according to the standards set by the Labour Code. This information must be recorded in the DUERP (document unique d'évaluation des risques professionnels).

Statement of facts (Asbestos-related personal injury) :

In this case, a pension and occupational health insurance fund:

- attributed an occupational disease

- resulting from the inhalation of asbestos dust on behalf of his last employer.

The latter lodges an appeal with the pricing court, requesting :

- the withdrawal from this account of expenditure relating to the occupational disease

- and the entry of this expenditure in the special account pursuant to article 2, 4°, of the decree of 16 October 1995.

But in law, a person who claims the performance of an obligation must prove it. And, conversely, the person who claims to be discharged must justify the payment or the fact that produced the extinction of the obligation.

In law (asbestos-related personal injury) :

Under the terms of Article D. 242-6-1 of the Social Security Codethe contribution rate :

- due in respect of accidents at work and occupational diseases

- is determined by establishment.

The article D. 242-6-4 of the same code provides that :

- all the expenses that make up the value of the risk are taken into account by the pension and social security insurance funds. health at work

- as soon as these expenses have been communicated to them by the primary health insurance funds,

- without prejudice to the application of subsequent court rulings.

This means that only expenses incurred as a result of accidents or illnesses recognised as work-related are taken into account in the value of the risk.

Next article D. 242-6-5D. 242-6-7, the expenses incurred by the health insurance funds as a result of the assumption of responsibility for occupational diseases diagnosed or contracted under conditions laid down by order of the Minister for Social Security and the Minister for the Budget are not included in the value of the risk but are entered in a special account.

Under the terms of Article D. 242-6-5 of the same code, are entered in the special account :

- expenses relating to occupational diseases diagnosed or contracted. This applies when the victim of an occupational disease has been successively exposed to the risk in several establishments of different companies,

- without it being possible to determine the one in which exposure to the risk caused the disease.

Procedure:

It should be remembered that an occupational disease is presumed to have been contracted in the service of the last employer where the victim was exposed to the risk. This applies before the disease is diagnosed by a doctor, unless the employer can prove otherwise.

Consequently, it is up to the employer who requests that the expenses relating to this illness be entered in the special account pursuant to article 2, 4°, of the decree of 16 October 1995 to prove that the illness declared by the victim is attributable to the working conditions in the establishments of the different companies that employed her, without it being possible to determine the company in which exposure to the risk caused the illness.

Under the terms of two rulings (Cass. 2^e civ. 17 March 2022, no. 20-19294and Cass. 2^e civ. 17 March 2022, no. 20-19293), the Cour de cassation held that :

- if an occupational disease is not attributable to the employer but was not contracted in the course of his employment, the decision to cover the disease will not be enforced against the employer

- and that, however, the employer may contest this imputability if his inexcusable fault is sought or if the financial consequences of the illness are entered in his accident at work and occupational illness account.

Thus, without prejudice to a request for registration in the special account, the employer may request the withdrawal from his account of expenses relating to an occupational disease when the victim was not exposed to the risk in the course of his employment.

The Caisse d'assurance retraite et de la santé au travail (occupational health and pension insurance fund) is responsible for any disputes before the tribunal de la tarification :

- who booked the expenses to the employer's account,

- provide proof that the victim was exposed to the risk at his or her home.

Solution adopted by the Cour de cassation :

Consequently, a court of appeal which, in dismissing the employer's action, states that :

- The latter claims that the victim could not have been exposed to asbestos in his home because she worked for him from 2005, well after the ban on the use of asbestos,

– however, the company does not justify having contested the assumption of responsibility for the pathology

-. whereas exposure is presumed in these proceedings.

Cass. 2nd civ., 1st Dec. 2022, no. 21-11252