Work in the presence of asbestos : the Court of cassation sinks the nail

The Court of cassation rendered, on April 19, a stop recalling the general obligation of safety and profit of the company in relation to work in the presence of asbestos.
A decision “not surprising, but which has the merit to be exemplary”. It is as well as Farouk Benouniche, a lawyer at the firm of Michel Ledoux and associates, calls a judgment of 19 April, of the Court of cassation. The company Vinci construction terrassement had been sentenced in a judgment confirmed by appeal, to the endangering of the lives of others, and the Court has validated this conviction. “Here we have a case of concrete application of the criminal law in the risk asbestos in the CONSTRUCTION industry”, analysis also Farouk Benouniche.


The site complained of took place in the neighbourhood of the Annonciade, Bastia (Corsica), in 2012. “The construction of earthworks at issue was the peculiarity of wear of the rocks and land naturally amiantifères, known and identified prior to acceptance of the market,” notes the Court in its judgment. However, various shortcomings, putting them visibly in danger the lives of others, have been recorded in August-September 2012 (non-recovery of parts of the land that contain asbestos, installation of a net green is not of a nature to confine the asbestos fibers in the workplace, etc).


“This judgment proves that we have drawn the consequences of the first scandal of the asbestos”


The appeal of the company was focused on the idea that asbestos poses a risk to a delayed effect, potential cancer that can occur up to 40 years after exposure. Therefore, there would not, she is of immediate danger to the lives of others. However, according to the Court, “it is enough that the risk of damage to which was exposed the victim has been certain and it is not necessary that the risk will be realized in an effective manner for the offence may be restrained.”


“In the case of endangering the life of others, it is the immediacy of the risk that is referred to, and not the immediacy of the development of the pathology,”observes the lawyer Farouk Benouniche. “Even if the threshold of 5 fibres per litre was observed on the site, the company would have had to implement significant measures. However, the Court found that what had been put in place there was no effectiveness in terms of collective protection. The company has thus, according to the judgment, violated its general safety requirement and result.” Thus, even if the threshold of 5f/L is not exceeded, it is appropriate to apply the protection measures provided for in sub-section 4 (work in the presence of asbestos).


“This judgment proves that we have learned the lessons of the first scandal of the asbestos, prior to 1996. We are today, in some way, in the second scandal, namely, the management of asbestos in place”, concludes Farouk Benouniche.

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