Previously, in edition 232 of BC Disease News (here), we analysed the High Court decision of Kimathi & Ors v The Foreign and Commonwealth Office  EWHC 1305 (QB), in which Mr. Justice Stewart concluded that:
‘... anything short of a recognised psychiatric condition cannot amount to a personal injury’.
Thus, for ‘fear’ alone to constitute actionable injury in the jurisdiction of England and Wales, it cannot not be ‘background fear’, nor can it be ‘fear’ that gives rise to ‘physiological changes’ which are de minimis non curat lex. Italy has adopted a similar position on the subject of ‘fear’, ‘emotional distress’, or ‘anxiety’ (of injury).
As Casals (2010) discussed:
‘Compensating for mere anxiety which does not amount to a medically assessed disease entails the moral hazard of compensating for fake and unworthy claims’.[i]
In spite of this spillover risk, the law in Spain dictates that damages for anxiety should be recoverable per se if it is ‘real, effective and certain’.[ii] For example, a Spanish claimant, who had been erroneously diagnosed with AIDS, was compensated for ‘fear’ of developing the condition.[iii]
‘Anxiety’ is also treated differently in France.
Not only are damages for ‘anxiety’ accessible under the national asbestos compensation fund (FIVA), established by the Government in 2000,[iv] but are also approved by a host of civil judgments.
In a landmark judgment, delivered on 11 May 2010, the Social Chamber of the French Supreme Court ruled for the first time that employees, who were permanently concerned that they would develop an asbestos-related disease in future, would be compensated for so-called ‘anxiety damage’, provided that they could satisfy a set of strictly-defined criteria.
The Law of 23 December 1998 allowed workers in a list of establishments (of which there were over 900 sites) to take early retirement if they had been exposed to asbestos (ACAATA, or allocation de cessation anticipée d'activité des travailleurs de l'amiante), even without a diagnosed occupational disease.[v]
Claimant success, on the back of the 2010 ruling, was dependent upon the alleged occupational exposure taking place during a specific time period on any 1 of these French Government-listed sites (the majority of which were engaged in asbestos processing and shipbuilding), which:
- Used asbestos as a raw material or as insulation; and
- Exposed a significant number of employees.
Almost a decade later, the scope of this principle was expanded. On 5 April 2019, the Plenary Assembly of the Supreme Court (the highest and most respected Bench) removed the strict criteria that had been established in 2010, and opened up ‘anxiety damage’ claims to all workers who had been in contact with asbestos in the course of employment in France (including those not on the Government list), but had not sustained physical injuries.[vi]
Establishing that a defendant employer has breached its duty of care in these cases is a rebuttable presumption, i.e. an employer can be exonerated from liability if it can show that the necessary health and safety measures were implemented. Further, the onus is on the claimant to prove that they were significantly exposed to asbestos dust, resulting in ‘anxiety damage’.
Compiegne Labour Court followed the April 2019 ruling in June, compensating 130 employees of a specialized glass manufacturing and processing factory.[vii]
The Court found that the claimants had been ‘substantially exposed to the inhalation of asbestos fibres ... subsequent to a breach of the contractual obligation of safety provoked by their employer’, which resulted in ‘psychological harm’.
Most recently, the French Supreme Court, in a judgment dated 11 September 2019, extended the decade-long ‘anxiety damage’ principle once more.[viii]
Although the judgment was made in relation to mining workers, the wording was ‘broad’ and implies that any employee, who can adduce evidence of workplace exposure to a ‘harmful or toxic substance’ that comes with a ‘high risk’ of contracting a ‘serious disease’, can advance a claim for ‘anxiety damage’.
Who would qualify as having been exposed to ‘harmful or toxic substances’?
If ‘harmful or toxic substances’ are defined as those substances protected by the European Regulation on Classification, Labelling, and Packaging of Substances (CLP), then French employees exposed to some 4,000 substances may now be entitled to ‘anxiety’ compensation payment.
Of course, ‘fear’ of harm requires knowledge of the attribution between exposure and injury, meaning that the duration of anxiety will begin when the limitation clock starts ticking and last for a maximum of 5-years. This is the French equivalent of the 3-year limitation period for personal injuries, in the UK (subject to s.33 of the Limitation Act 1980).
Does the academic literature suggest that France is moving in the right direction on this issue?
Not so long ago, Njoya et al (2017)[ix] conducted a large-scale study on the psychological effects of asbestos exposure among exposed individuals, on the assumption that too little attention was being paid to the issue.
‘Probable anxiety’ and ‘probable depression’, among the 2,210 asbestos-exposed participants, was 19.7% and 9.9%, respectively.
Firstly, the results confirmed that this was a ‘sizeable’ proportion of the group. Secondly, that self-assessed intensity of exposure to asbestos was ‘associated’ with increased odds of developing anxious and depressive symptoms. Thirdly, that asbestos-risk perception and self-perception of asbestos-related disease risk were both ‘strongly associated’ with the prospect of suffering anxious and depressive symptoms.
Ultimately, risk perception was identified as being a ‘crucial factor’ in affecting attitudes towards human health.
Only time will tell whether the law in England and Wales will ever gravitate towards allowing compensation to be awarded to claimants with ‘anxiety’, in the absence of physical injuries.
[i] Miquel Martín Casals, The Development of Liability in Relation to Technological Change (2010 Cambridge University Press) Volume 4, pp. 36-37. <https://books.google.co.uk/books?id=kWc3BAAAQBAJ&pg=PA131&lpg=PA131&dq=french+supreme+court+asbestos+anxiety&source=bl&ots=g7JsoeJaRB&sig=ACfU3U1KQ6N_amzYpzy4Mh3350eq4OYvdw&hl=en&sa=X&ved=2ahUKEwitv52bjefkAhUCShUIHUpOASQ4FBDoATAAegQICRAB#v=onepage&q=french%20supreme%20court%20asbestos%20anxiety&f=false> accessed 24 September 2019.
[ii] Sonia Ramos González, Joan Carles Seuba Torreblanca, Alvaro Luna Yerga, Falsos positivos. Falsos positivos: La responsabilidad civil derivada del diagnóstico erróneo de enfermedades (InDret 3/2002). <http://www.indret.com/pdf/091_es.pdf> accessed 24 September 2019.
[iii] Jordi Ribot and Albert Ruda, Spain European Tort Law 2008, pp.383-409 <https://www.researchgate.net/publication/299746190_Spain> accessed 24 September 2019.
[iv] Laurie Kazan-Allen, ‘International Asbestos Conference for Fair and Equal Compensation for all Asbestos Victims and their Families’ (International Ban Asbestos Secretariat) <https://ibasecretariat.org/lka_yokohama_conf_rep.php> accessed 24 September 2019.
[v] Ius Laboris, ‘France - Workers exposed to asbestos can claim compensation for anxiety damage if they can prove exposure and resulting anxiety’ (10 April 2019 Lexology) <https://www.lexology.com/library/detail.aspx?g=ec24f1b3-b2d5-4762-9a6e-a1be5b220370> accessed 24 September 2019.
[vi] ‘France: Any Employee Exposed to Asbestos Can Now Claim an Anxiety Harm If They Can Prove It’ (27 April 2019 L&E Global) <https://knowledge.leglobal.org/france-any-employee-exposed-to-asbestos-can-now-claim-an-anxiety-harm-if-they-can-prove-it/> accessed 24 September 2019.
[vii] French court orders Saint-Gobain to pay compensation to Oise workers’ (12 June 2019 Industriall Union) <http://www.industriall-union.org/french-court-orders-saint-gobain-to-pay-compensation-to-oise-workers> accessed 23 September 2019.
[viii] Françoise S. Labrousse, Emmanuelle Rivez-Domont, Elodie Simon and Gabriel Ferran, ‘Anxiety From Asbestos Exposure: French Compensation Model Extended to Other Toxic Substances’ (September 2019 Jones Day) <https://www.jonesday.com/en/insights/2019/09/anxiety-from-asbestos-exposure> accessed 23 September 2019.
[ix] Ibrahim Mounchetrou Njoya et al., Anxious and depressive symptoms in the French Asbestos-Related Diseases Cohort: risk factors and self-perception of risk. Eur J Public Health. 2017 Apr 1;27(2):359-366. <https://academic.oup.com/eurpub/article-pdf/27/2/359/14112696/ckw106.pdf> accessed 23 September 2019.