Lawyer for the law of asbestos victims, case law and court decisions
A disease is considered to be of occupational origin if: "it is the direct consequence of the exposure of a worker to a chemical or biological risk or results from the conditions in which he carries out his professional activity".
In this case the victim of the latter does not have to provide proof that this disease was contracted in the workplace, because it benefits from what is called: "a presumption of accountability".
This year, we see an increase in complaints filed by victims against their employees and supported by a number of lawyers who have appealed to the Social Security Tribunal (TASS).
These complaints are based on: inexcusable fault, a concept found in Article L452-1 of the Social Security Code.
The inexcusable fault was defined by the court of cassation in a judgment of July 15, 1941:
"It must be understood" as a fault of exceptional gravity, deriving from a voluntary act or omission, from the awareness of the danger that its author must have, from the absence of any justifying cause and distinguishing by the defect of an intentional element from the intentional fault ".
Years later, the notion of inexcusable fault will be redefined by a series of judgments handed down on February 28, 2002: it is about the failure on the part of the employer, of its obligation of security of result which exists under the employment contract binding him to his employee:
"The employer did not take the necessary measures to avoid, or even limit, the exposure of employees to asbestos, although he was or should have been aware of it".
On the other hand, these judgments mention on numerous occasions article L230-2 of the labor code, with the sole aim of insisting on the general obligation of safety which weighs on the employer, and, of making it one of the essential criteria characterizing inexcusable fault.
On the other hand, it has been shown very clearly that there has already been a regulation and an obligation of security of result for a long time to be borne by the employer. It is clear that the latter could not therefore ignore these elements.
It is appalling to observe that many employers have never effectively put these safety rules in place.
This series of judgments of February 28, 2002 also highlights the fact that since 1945 there has already been a table, Table No. 30 listing all respiratory diseases linked to asbestos. The latter being supplemented as and when new pathologies appear following exposure to asbestos fibers.
This further confirms the fact that employers could not ignore the dangers of asbestos. This thesis has already been devoted to numerous judgments which are the consecration of the relentlessness of lawyers acting for victims of asbestos: C.cass., Soc., December 3, 1992, BESSE c 1 S.N.C.F; C.civ. 2nd, March 8, 2005, X ... c 1 RHODIA. Or by the judgment of the Cass Soc., July 15, 1999, Kannouche, appeal n ° 97-21219.
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