28 April 2022 marks the beginning of the trial against Eternit. The plaintiff Mr. Eric Jonckheere is suing the company, holding it civilly liable for exposing not only its workers to asbestos, but also those living near to the factory. Although this lawsuit follows other court decisions involving Eternit, the strategy adopted could have consequences for the whole process of compensating asbestos victims in Belgium.
Eric Jonckheere is suffering from mesothelioma, a serious disease of which the only known cause is asbestos. He is the fifth member of his family to suffer from this disease, the other four having died. Not only did Eric's father work for Eternit, but his whole family lived in the vicinity of the factory, whose responsibility for playing down the dangers associated with asbestos and failing to take appropriate countermeasures has already been recognised by Belgian courts.
As things stand in Belgium, victims of environmental or household exposure to asbestos have two possibilities to obtain compensation. The first is to file a claim with the Asbestos Victims Compensation Fund (created in 2007, its French acronym is AFA (Asbest Fonds Amiante)), which provides rapid and lump-sum compensation for victims of several diseases caused by asbestos. However, anyone using this fund is forced to waive the second route to compensation: legal recourse (Art 125 of the Law of 27 December 2006). Such recourse not only make it possible to obtain additional compensation – the amount awarded by the AFA is capped – but also to establish the liability of any company exposing the local population to asbestos. The one exception allowing victims to benefit from AFA compensation and yet retain their right to sue is to establish proof of intentional fault (Art 125, § 2) on the part of the entity responsible for the damage, in this case Eternit.
The inability to sue for corporate liability for occupational victims of asbestos stems from a more general provision preventing any victim of an occupational disease from seeking compensation on the basis of employer liability. Belgium is the only country in Europe not holding employers liable for not complying with their prevention obligation. This exclusion from common civil liability law has been extended to cover environmental risk – for the sole case of exposure to asbestos. In all other cases, the courts apply the “polluter pays” principle.
The one particular feature of the case brought by Mr Eric Jonckheere is that it could change the existing jurisprudence on “intentional fault”. Intent may be demonstrated by continued (risk of) exposure after a public authority has issued an injunction to cease such exposure. However, while it is not necessary to prove that the company was intentionally exposed its workers or the local population, it is imperative that a public authority has intervened in writing – something that is very rare.
In France, the conditions for determining the inexcusable fault of an employer are more “flexible”. Until the extension of the principle of inexcusable fault, French employers benefited from an exception to common law similar to that existing in Belgium. However, French jurisprudence, in particular since the rulings of 28 February 2002 (known as the “asbestos” rulings of the Court of Cassation) considers that inexcusable fault makes it possible to obtain additional compensation when an employer is found not to have upheld his safety obligation towards a worker (the so-called “obligation of result”), and yet to have been aware – knowingly or unknowingly – of the danger to which the workers were exposed. Awareness of the risk can be based on previous accidents but also on scientific advances, though it should be remembered that the dangers associated with asbestos have been known since the 1970s.
A similar evolution in Belgian jurisprudence would allow asbestos companies to be held liable for their actions. The current system, including the conditions for financing the AFA, allows asbestos-using companies to benefit from cut-price legal immunity. Indeed, all companies – both private and public – contribute to the fund, regardless of their sector, the prevention policy implemented, or even whether they even use asbestos in their operations. This system offers absolutely no encouragement to companies to adopt an efficient and adapted risk prevention approach, instead contributing to discharging asbestos companies of their responsibilities. In view of the fact that the European Parliament has recently called for the creation of a strategy to completely eliminate asbestos, the time might have arrived to give victims the legal means to defend themselves, and to actively encourage the companies concerned to change their prevention methods.