Civil Cassation, Section Lav., 03 January 2017, n. 47 - Asbestos, tumor pathology and death. Causal link

President: DI CERBO VINCENZO Speaker: SPENA FRANCESCA Publication date: 03/01/2017

Done

With an appeal to the Court of Latina BF and QM, in their own right and QQ heirs, already a worker of GI spa, they acted against the employer company to ascertain its responsibility for the tumor pathology that had determined the death of the worker and for the condemnation of damages, patrimonial and non-patrimonial, own law and hereditary law.
The Labor Judge - with sentence of 9.2.2003 (nr. 2882/03) - rejected the application for the deemed limitation of the rights activated.
The Court of Appeal of Rome - with judgment of 30.9.2009-26.1.2010 (nr. 6831/2009) - rejected the main appeal proposed by the original recurring parties as well as the incidental appeal of the company GI spa.
The Territorial Court stated that it had carried out medical-legal advice for the identification:
- on the one hand, the date on which the prescription begins, to be fixed at the time of onset of the disease;
- on the other, the existence of the etiological link between work activity and illness.
On the first point, the thesis of the applicants, according to which it had to be considered for the initial calculation of the prescription for the year 1995, the year of the onset of secondary tumor pathologies, had to be rejected, as the advice carried out and the health documentation in the records attested that these were not autonomous pathologies but an aggravation of the original pathology, diagnosed since 1986.
However, for damages caused by the heirs, the dies a quo of the prescription coincided with the date of death of the deceased, 22.4.1998; therefore, the five-year limitation period had not expired on the date of notification of the appeal, in October 2002.
From this point of view, the ascertainment of the causal link between the work activity and the pathology was arranged, which had to be guided by the principle of equivalence of the causes enshrined in article 41 of the criminal code.
The technical consultant had concluded that the death of Q. was attributable to neoplastic disease (leiomyosarcoma) of the left femoral vein, with lung, liver and local progression but that for this tumor form there was no certainty on the relationship of causal derivation with respect to exposure to substances noxious certain.
The consultant had also assessed the elements suggested by the party consultant to affirm the work origin of the pathology and in particular the possible causal action of carbon black or black carbon based on experimental research conducted on animals with subcutaneous administration; had highlighted the automatic non-traceability of the same studies to humans and, in any case, the improbability of subcutaneous penetration of the offending agent, for the protection provided by the skin and work clothes. Scientific studies had also been examined and the outcome of the CTU had concluded by confining to the area of ​​mere "possibility" the hypothesis of a causal relationship between work activity and the pathology determining death.
The Court of Merit rejected the further questions raised regarding the consultancy both of a procedural order - (for failure to comply with the filing deadline, the contradictory having been carried out anyway) - and, from a merit profile, for the failure to consider asbestos, being a profile assessed by the ctu and considered not decisive in identifying the causal link.
Finally, even in the penal center, after having carried out an in-depth analysis of the working environment, the experts included Q. in the group of cases for which it was not possible to prove a correlation between the working activity and the pathology.
The incidental appeal was to be rejected both in terms of costs and to the alleged functional incompetence of the labor judge.
BF and QM use the cassation of the sentence, articulating five reasons.
The GI spa company resists with a counter-appeal.
The parties filed a brief.

Right

1. With the first plea the applicants have submitted, pursuant to article 360 ​​no. 3 and nr. 5 cpc., Violation and false application of articles 416 and 436 et seq. cpc and article 132 nr 4 cpc.
They stated that the respondent company had not fulfilled the burden of taking a specific position on the facts of the case so that they had to be considered recognized.
The plea is inadmissible, as it is inconsistent with the contents of the contested judgment.
The appeal by cassation is a means of appeal with restricted criticism, the object of which is limited, on the one hand, by the precise provisions of the sentence, on the other by specific grounds for appeal; from this follows the inadmissibility of any complaint based on a reconstruction of the fact other than that accepted in the judgment and, more generally, on provisions not found in the decision.
In the case in point, the Territorial Court did not consider a lack of proof of the exposure of the worker to a harmful working environment but stated that there was no scientific evidence of the derivation of the specific tumor pathology contracted by the worker and causing the death (leiomyosarcoma of the left femoral vein ) from the working environment described in the appeal (although documented by the acts of the case and the evidence acquired in the criminal trial against the managers of the defendant company). 
The judgment was therefore based on medico-legal assessments with respect to which the lack of dispute of the generic risk deriving from the work environment is not relevant.
2. With the second plea the applicants have denounced:
- pursuant to article 360 ​​no. 3 of the Code of Civil Procedure, violation and false application of Article 41 of the Italian Criminal Code in correlation with Articles 1218,1223,1453 and 2087 of the Italian Civil Code. and 2043, 2087,2059 cc.
- pursuant to article 360 ​​no. 5 of the Code of Civil Procedure, violation and false application of articles 111 C. and 132 nr. 4 of the Code of Civil Procedure.
- pursuant to article 360 ​​no. 3 and 5 of the Code of Civil Procedure, violation and false application of articles 2,4,3,35,26, and 41 co.2 Const.
- pursuant to article 360 ​​no. 3 of the Code of Civil Procedure, violation and false application of articles 191 et seq., 421,437,115,116 of the Italian Code of Civil Procedure and 2697 of the Italian Civil Code.
- pursuant to article 360 ​​no. 3 and 5 of the Code of Civil Procedure, violation and false application of articles 19,21,69 of Presidential Decree 303/1956 as well as 377 and 385 of Presidential Decree 547/1955, 2,3,4,29,30,31,32,35,36,41 co. 2 Const.
The reason relates to the conclusions reached by the technical consultant appointed in the grade of appeal at the point of lack of a direct relationship, according to a certainty or probability criterion, between the work activity and the pathology.
The plaintiffs criticize the non-examination by the ctu of the risk deriving from the exposure of the worker to asbestos (risk ascertained in the judgment of the Court of Latina that had recognized the relative contributory benefits) and other carcinogenic factors; they transcribe the notes sent to the ctu by the consultant of the party - almost entirely reported in the authorized filed notes - and denounce a contrast of the sentence encumbered with respect to the criminal conviction sentence rendered by the Court of Latina in the judgment against the administrators of GI spa.
They assume that they have provided all the scientific evidence from which the at least concausal and accelerating link between the work environment and the pathology contracted resulted, due to the morbid risks (mesotheliomas affecting the serous membranes and other organs) deriving from exposure to the 'asbestos.
3. The third reason denounces violation and false application pursuant to article 360 ​​nr. 3 cpc:
- of articles 1218,1223,1453,2087,2043,2087 cc, 589 and 590 cp 2089 cc
- of articles 2,32, 29,30,31 of the Constitution in relation to articles 40 and 41 of the criminal code.
pursuant to article 360 ​​nr. 5 of the Code of Civil Procedure: of articles 111 of the Constitution and 132 of n. 4 of the Code of Civil Procedure
pursuant to article 360 ​​nr. 3 of the Code of Civil Procedure: articles 191 et seq. 421,437, 115, 116 cpc and 2697 cc.
pursuant to articles 360 nr3 and nr.5 cpc:
- articles 19,21,69 Presidential Decree 303/1956
- Articles 377 and 385 Presidential Decree 547/55
- Articles 2,3,4,29,30,31,32,35,36,41 co2 Const.
The recurring parties assume that they have also exercised the hereditary contractual action, attaching the breach of the employer to the obligation of protection pursuant to article 2087 of the civil code. that to the specific obligations provided for by Presidential Decree 303/56 in case of worker exposure to dust.
They added that even in the event of exclusion of the causal link between the employer's defaulting conduct and biological damage, compensation for other items of non-pecuniary and pecuniary damage could not be denied since the exposure to asbestos dust determined for itself an injury to the worker person.
His family members had also suffered non-pecuniary damage of their own.
4. With the fourth plea the applicants have alleged violation and false application pursuant to article 360 ​​nr 3 of the cpc: of articles 191 and following, 421,437,115,116 cpc, 2697 cc
pursuant to article 360 ​​nr. 5 of the Code of Civil Procedure: of articles 111 of the Constitution and 132 of n. 4 of the Code of Civil Procedure
pursuant to Article 360 ​​No. 3 and No. 5 of the Code of Civil Procedure: the rules referred to in the first three reasons
pursuant to article 360 ​​nr. 3 of the Code of Civil Procedure: articles 191 et seq. 421,437, 115, 116 cpc and 2697 cc.
pursuant to articles 360 nr3 and nr.5 cpc:
- articles 19,21,69 Presidential Decree 303/1956
- Articles 377 and 385 Presidential Decree 547/55
- Articles 2,3,4,29,30,31,32,35,36,41 co2 Const.
- Articles 40 and 41 of the Criminal Code in relation to generic and specific rules on safety in the workplace
- Article 75 of the Italian Criminal Code
The applicants assumed that it was the employer who had to prove the intervention of a factor unrelated to the work activity per se sufficient to determine the event, having proved that the employer had failed.
They also deduced that the criminal sentence was not enforceable to them, since they remained extraneous to the criminal judgment, in which the charge against the officers of the GI did not concern the offense caused to their relative.
They complained about the lack of motivation of the sentence for the failure to evaluate the documents and documents acquired and also criticized the judge's failure to activate the investigative powers of the office and the rejection without specific reason of the preliminary requests.
The reasons from number 2 to number 4, which can be jointly examined as they lend themselves to similar assessments, are unfounded.
The judge of the merit affirmed as to the risk deriving from the exposure to asbestos that the ctu had not identified "scientific and statistical studies that link him to the soft tissue sarcoma from which the Q was hit".
This motivation is not affected by the defect of violation of the law, in particular from the point of view of the violation of article 41 of the Italian Criminal Code, in connection with the civil regulations governing the causal relationship in damage actions (articles 1223,1226,1227,2056, 40 cc). The applicability for the purposes of civil liability, in verifying the causal link between the unlawful conduct and the damage, of the principles laid down in Articles 41 and 11 of the penal code (the so-called conditio sine qua non theory). An event is therefore to be considered caused by another if, without prejudice to the other conditions, the first in the absence of the second would not have occurred hic et nunc or in terms of time and in the precise circumstances in which it occurred (in terms: Cass civ. SU 01/2008/576, n. 11, where a correction of the rigor of the aforementioned causal criterion in the principle of "causal regularity" is identified). From an evidentiary point of view, the determination of the causal link must be made on the basis of the best scientific knowledge available; where, however, they do not allow absolute certainty of the causal derivation, the rule of judgment changes substantially in the criminal and civil proceedings: in the former, the rule of proof "beyond reasonable doubt" applies (see Criminal Cassation SU 2002 September 30328, n. XNUMX) while in the second the rule of preponderance of evidence or "of the most probable that not" applies.
With the further clarification that the standard of cd. "probabilistic certainty" of civil matters "cannot be anchored exclusively to the quantitative - statistical determination of the frequencies of classes of events (so-called quantitative or pascalian probability), which could also be missing or inconsistent, but must be verified by referring the degree of foundation to the scope of the elements of confirmation (and at the same time of exclusion of other possible alternatives) available in relation to the concrete case (so-called logical or Baconian probability) "(thus Civil Cassation, Section un., sentence cit.)
The contested sentence did not disregard the indicated principles of law since it required confirmation, according to the best scientific knowledge and in terms of probability, of the hypothesis of the derivation of the specific tumor pathology affecting the Q. from exposure to asbestos.
The additional and multiple rules of law referred to in the heading of the three grounds, relating to the protection obligations of the employer and the constitutional protection of the fundamental rights of the person, do not appear relevant to the contents of the contested decision, which is based on the lack of proof not of the illicit conduct but of the causal relationship between the illicit fact and the damage. 
Without prejudice to the correctness of the interpretation and application by the judge of the merits of the rules of law governed by the link of material causality, the denunciations of the defect of motivation ex article 360 ​​nr. 5 of the Code of Civil Procedure, on the other hand, relate to the factual opinion expressed in the contested judgment regarding the lack of evidence in the specific case (and according to the rules of law exactly reconstructed) of the causal link.
On this point, the appeal is inadmissible.
The reasons expose the defect of the motivation with the improper reference to the violation of the rules of law; they do not indicate any motivational passage of the sentence encumbered by the defect of contradictory and neither do they deduce the omitted consideration of specific elements of fact ritually acquired at the trial, which could have led to a different decision.
They merely affirm the carcinogenic efficacy of asbestos dust, acknowledging, moreover, the derivation from the aforementioned exposure of a different tumor pathology (mesothelioma) - rather than the specific tumor pathology (sarcoma) from which the worker was affected.
Therefore the reasons, rather than censoring the motivation of the sentence, urge this Court to make an inadmissible revision of the assessments of the judge of the merit, aimed at obtaining a new ruling on the fact, certainly unrelated to the nature and for the purposes of the cassation judgment .
The third plea is also inadmissible in so far as it assumes that, having proven that the employer has failed to fulfill his safety obligations, there can be no denial of the hereditary compensation for damages to the person of the worker other than biological damage.
In the first place, the circumstance of the statute of limitation of the action iure hereditario is preclusive, a ruling that has not been challenged here.
Furthermore, the ruling does not contain any ruling on damage to the deceased other than that resulting from the tumor disease so that it would have been the burden of the applicants - in order to avoid a ruling of inadmissibility of the ground of appeal for novelty of the factual issues post- specify, on the one hand, the items of damage - other than biological damage - attached in the degrees of merit, on the other indicate the act or procedural documents containing the aforementioned attachments.
The fourth plea is also inadmissible:
- in the part in which it declares that the employer is responsible for proving the intervention of a specific extra-working factor having an exclusive decisive effect on the worker's illness, for the foreclosure deriving from the declaration of prescription of the action exercised by today's applicants iure hereditary;
-in the part where it denounces the unjustified rejection of the preliminary requests and the non-official admission of further means of proof since- in violation of the specific fee
referred to in article 366 no. 6 of the Code of Civil Procedure - does not indicate the content of the non-admissible investigative means nor does it specify the times and the ways in which the related requests would have been brought to the evaluation of the judge of merit.
5. With the fifth plea the applicants have alleged violation and false application: pursuant to article 360 ​​nr 3 and nr 5 cpc: of articles 191 et seq., 424 co.3, 156 co. 3, 157 of the Code of Civil Procedure
pursuant to Article 360 ​​No. 3 of the Code of Civil Procedure: Articles 191 et seq., 421,437, 115,116 of the Italian Code of Civil Procedure, 2697 of the Italian Civil Code pursuant to Article 360 ​​No. 5 of the Italian Civil Code: of Article 132 No. 4 of the Italian Code of Civil Procedure and 111 of the Constitution pursuant to article 360 ​​nr 3 and nr 5 cpc:
- articles 19,21,69 Presidential Decree 303/1956
- Articles 377 and 385 Presidential Decree 547/55
- articles 2,3,4,29,30,31,32,35,36,41 co2 C.
The complaint relates to the rejection ruling of the exception of nullity of the technical advice, with respect to which the applicants assume "violation and false application of the rules referred to in article 156, III paragraph, cpc. And 157 cpc., With reference to the rule of referred to in Article 424, paragraph III, of the Italian Code of Civil Procedure ".
The reason is inadmissible due to the absolute lack of illustration of the reasons for the complaint, in violation of the prescription of article 366 nr. 4 of the Code of Civil Procedure.
The appeal must be definitively dismissed.
The expenses follow the losing order.

PQM

The Court dismisses the appeal. He sentenced the applicant to pay the costs, which he paid in € 100 for disbursements and € 10.000 for professional fees, plus 15% overheads and statutory accessories.
So decided In Rome, 20.9.2016