SPECIAL REPORT□ WORK-RELATED CANCERS Putting industry offenders in the dock II to about crime industrial what to to and believe tackle also be was thought applied needs crime done road that what was done to tackle road crimealso needs to be thought about and applied to industrial crime JEAN-PAUL TEISSONNIÈRE is alawyer who has been fighting for asbestos workers for more than adecade. INTERVIEW by Denis Grégoire This interview was initially published in the HESA Newsletter, published by the European Trade Union Institute. Jean-Paul asbestos France'sextensive workers Teissonnière for body more has ofasbestos been than fighting a case decade. law for Jean-Paul asbestosworkersformore thana decade. France'sextensive bodyofasbestoscase law owes muchto hisgrit. It is hisefforts thathave finallywon many victimsand theirfamilies decentcompensation. Butbecauseno amount of money caneverrestore a lifecutshort, andtosee that themainculprits inthetragedy no longer get off scot-free, theParisian lawyer isnowaiming to takethefight intothecriminal justicearena. Min a call toactionon occupational cancers launchedin October 2007,youdemandthat employers' criminal liability begiven full recognition. Thisisa newdeparture fromthe civilclaims fordamagesusuallybrought for asbestos-related diseases. .. The compensation approachcan onlygo so far, as theasbestoscases showed.Thesocialsecurity systemand individualinsurancesystemshave socialisedoccupationalhazardsin a way that seemsextremely perverse tome,inthesensethat socialising theriskhastakenaccountability away from theindustry players. Ifthehorrors ofmedical catastrophes likeasbestosare cushioned, as it were,by insuranceprovision, so thatthose responsible areuntouched bytheconsequences, other industrial tragedies willhappen. So, I think thatthevictims need to be assured ofprompt compensation, whileatthesametime thecourts keepworking to identify liability. The upshotshouldbe bothtolaythefinancial consequencesofthedisaster atthedoorofthosemainlyresponsible , and to getcriminal penalties that serveas an objectlesson. The asbestosaffair produceda long string of claimsfordamagesinFrancefrom 1995.Theend resultwas that,in 2002,the SupremeCourtof Appealgavea muchstricter ruling on employer's liability. In Frenchlaw,an employer now has a 'strict dutyto ensuresafety' of his employees. Thereis no doubt thatbig strideshave been made as regardscompensation forvictims. But we stillhavenotgotthecriminal penalties, and, especially,social securityhas cushioned the worstofthecrisis. On topofthat, theplainfact isthat thechief culprits behindtheasbestoscontamination aredoingpretty wellfinancially today. MAreprosecutions theonlywaytogetrecognitionoftheharmcaused ? The criminal liability provisions of employment lawservetwopurposes: one istogivevictims the sensethatjusticehas been done; theotheris to improve prevention. Ifthere isno criminal penaltyand no financial cost,itis as ifnothing had happened.Butsomething did happen,whichis anabsolutely horrendous tragedy for hundreds of thousands ofworkers. So everycriminal liability avenuehastobe explored tosee that thoseguilty ofgrossnegligence paythefinancial costofit. I amtempted todrawa parallel withroadsafety . After yearsofcomplacency, itwas realised that cracking downontraffic offences hadmanaged to halve the numberof road accidentvictims in France.I believethatwhatwas done to tackle road crimealso needs to be thought aboutand appliedtoindustrial crime, becausethere isa real form ofindustrial crime thathas tobe dealtwith through thecriminal law.Especially as,unlike drivingoffences , whichare moreabout stupidity thangreed,industrial offences areoften motivated by objective financial reasonsthatwillimpel industrialists tobe dismissive ofsafety rules. MAlstom PowerBoilers wasfoundguilty ofhavingexposeditsworkers toasbestos after itwas bannedinFrance.What consequences will this first victory inthecriminal courts have? In theAlstom case,theprosecution was brought for'criminal endangerment of life'.Thiswas a case of asbestos stripping in breach of the asbestosremovalregulations after the asbestos ban was brought in. The good thingaboutthe Alstom case was nothaving towaituntil people contracted thedisease,otherwise itwould have been a matterof waitingthirty years,which wouldhavemadetheprosecutions utterly pointless because Alstom in itsthenform willprobablyhave ceased to existthirty yearshence.The directors/officers willeither be retired oralready dead. Prosecuting for'criminal endangerment of life'without awaiting the consequencesof that endangerment madethecriminal lawimmediately effective by punishing thosewho stillheld responsibilities inthecompany. The secondimportant thing is that we brought a civilclassactionforall theworkshop employees linkedto thecriminal proceedings. Thiswas 150workers who havenotfallen illbutwhowe asked the courtto consideras victims because they wouldspendthenextforty yearsliving with thefearofdeveloping pleuralcarcinoma orlung cancer. The Lillecourt returned a remarkable decision, finding thatthoseexposed were injured parties eventhough notill. Thiscase marks a newcriminal law approachto prevention, not through prosecutionsfor manslaughter but 'criminal endangerment oflife', whichenablesthecriminal law toswingintoactionimmediately theoffence is committed. ■So, does thislegalconceptof'criminal endangerment oflife'open thedoortoother legal actionsfornon-asbestos-related occupational cancers? The bigquestionthatoccupational cancersraise INTERNATIONAL union rights Pa9e 18 Volume 16lssue 1 2009 SPECIAL REPORT□ WORK-RELATED CANCERS fora lawyeris, 'how do you make the causal link?'. By definition, a canceroustumour never contains the lesionprofile of the causal agent. You can analysethecellsof a tumour, butyou willneverfind a traceofwhatitwas thatcaused it.So, inmatters likethis, modern sciencehas to argueon probabilities. Butthelegal institutions of all Europeancountries, withtheodd exception ,arguein terms of certainties: you have to...