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The 4th panel recognized both the objective and subjective liability of the company, since there was no provision of adequate protection to the worker.

From the Editors

 

Tuesday, October 22, 2024

 

Updated at 10:10

 

 

The 2nd Region TRT increased to R$1 million the compensation for moral damages to be paid by Eternit to a former employee diagnosed with lung cancer due to prolonged exposure to asbestos.

 

The  decision was taken unanimously by the 4th panel of the court, which recognized both the objective and subjective liability of the company, considering that it did not offer adequate protection to the worker.

 

Employee to receive R$1 million for cancer caused by asbestos. 

Understand the case

The plaintiff worked at the company for over 20 years in direct contact with asbestos, a substance that is highly harmful to health. During this period, he developed pleural mesothelioma, a form of cancer that affects the lining of the lungs and has a low survival rate.

 

The cancer was discovered in 2023, but since 2017, the worker had already had illnesses related to exposure to asbestos at work.

 

The worker underwent a pleurotomy, but the disease had already caused irreversible damage, requiring ongoing medical treatment and regular monitoring.

 

The company, in its defense, claimed that there was insufficient evidence that the former employee had developed the disease as a result of the activities performed at Eternit.

 

Furthermore, he stated that the diagnosis was made many years after the end of the employment contract and that, therefore, the statute of limitations should apply.

 

Court decision

 

The case rapporteur, Judge Paulo  highlighted that the company, in addition to not providing adequate protection, exposed the worker to a risky activity, thus justifying the application of art. 927 of the Civil Code, which deals with objective liability in risk situations.

 

The activity is risky, according to the sole paragraph of article 927 of the Civil Code, generating the right to the aforementioned compensation, objectively.

 

He also highlighted the employer's failure to adopt effective protective measures against the carcinogen, which resulted in serious negligence on the part of the company.

 

Regarding the argument that the illness was diagnosed long after the end of the contract,  the rapporteur rejected this argument, considering that the author only became fully aware of the extent of his injury after the medical report.

 

The claimant did not yet have unequivocal knowledge of the disease, nor the exact extent of its effects, so there is no talk of prescription in these proceedings.

 

The reporting judge also highlighted the emotional impact on the author, who lives with an irreversible disease and the uncertainty about his quality of life.

 

With it [the compensation] it is possible to buy many things, watches, computers and even some cars. Unfortunately, however, neither this nor any other compensation will be able to give the claimant a life with functioning lungs. 

In addition to increasing the compensation for moral damages from R$600,000 to R$1 million, the court also upheld the ruling to pay a monthly pension for life, maintain the worker's health plan and reimburse medical expenses.

 

 

Case :  1001475-04.2023.5.02.0384

 

link: https://www.migalhas.com.br/quentes/418074/empregado-recebera-r-1-mi-por-cancer-causado-por-exposicao-a-amianto