Asbestos exposure and compensation to family members, non-pecuniary damage suffered by workers considered (Andrea Di Nino, Sintesi – Ordine dei Consulenti del Lavoro, August 2022)

31 August 2022

With ruling no. 19623 of 17 June 2022, the Court of Cassation decided on compensation for personal injury and non-pecuniary damage caused by a worker’s prolonged exposure to asbestos. The heirs of a worker who died due to an illness associated with exposure to toxic material, complained about the employer’s liability under Art. 2087 of the Italian Civil Code for not having implemented the necessary prevention and protection measures in the workplace.

This case showed that the worker was subject to two different carcinogenic agents: smoking, as he was a habitual smoker who for years smoked 15-20 cigarettes a day, and asbestos exposure, as he worked as a welder.

When calculating the pecuniary damages, the Court of Cassation upheld the interpretation of the Court of Appeal, which, in the second instance, pointed out that there was a concurrence of harmful causes that resulted in a single and indivisible event. Considering a twofold causal factor, the Court decided to apply the principle of equivalence of concurrences under Articles 40 and 41 of the Italian Criminal Code, since it was impossible “to make a causal allocation between the two carcinogenic factors, equally responsible for causing the harmful event.”

Since it was impossible to make a correct causal allocation between the two carcinogenic factors, they must be held equally responsible for having caused the syndrome. This meant that party liability was unaffected, but damage calculation will be heavily  reduced compared to the family’s claim.

As the second ground of appeal, the heirs requested compensation for non-pecuniary damage, arguing that the worker was aware that he was exposed to a pathogen and that many colleagues got oncological severe illnesses, often leading to death. This caused uncertainty about his own life, worsening his quality of life and inducing him to undergo numerous and periodic medical check-ups. They claimed that this caused the worker to be concerned about falling ill and probably dying.

In the second instance, however, the Court of Appeal denied the heirs recognition of non-pecuniary damage due to a lack of non-pecuniary or existential damage, holding that rebuttable presumptions, were inapplicable and that the non-pecuniary damage had to be proven.

However, as already clarified by the Labour Section in ruling no. 24217 of 2017, the Supreme Court overturned the second instance decision, holding that ” damages resulting from the disruption of the everyday lifestyle can be compensated regardless of documented biological damage, when it refers to the impairment of the right to the normal conduct of life and the right to the free and full expression of one’s daily life habits. These are constitutionally guaranteed and supported by the European Convention on Human Rights, Art. 8. The Court stated that proof of the prejudice suffered can be provided by means of presumptions.”

It followed from this case law that biological damage due to a disruption of normal private life and constituting “an internal suffering of the person” took the form of “injury to inviolable personal rights, which were under constitutional protection.” If this was submitted and proved including by using presumptions, it would provide entitlement to compensation for damages.

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