Historic Victory for Belgian Asbestos Victims
In a David and Goliath legal battle in Brussels, David won. In this case, David was Eric Jonckheere, President of the Belgian Association of Asbestos Victims (ABEVA), retired pilot, mesothelioma patient and member of a 7-person family which has been decimated by the signature cancer associated with asbestos: mesothelioma.1 On November 27, 2023, a Flemish-speaking court of the first instance convicted Eternit, a former asbestos conglomerate, of intentional wrongdoing, deliberate misconduct, systematic manipulation and deliberate distortion of the facts.2 Eternit had operated the asbestos-cement factory in Erics home town of Kappelle-op-den-Bois, in central Flanders where Erics father had worked at an industrial complex very near to the house where the family lived.
The Court agreed with arguments presented by Mr Jonckheeres lawyers Jan Fermon and Quentin Marissal, finding that:
According to the 22-page ruling, Eternit had known since the 1960s of the asbestos health hazard but nevertheless continued: to operate its factory in identically the same way for decades, without taking the slightest protective measures 3 If this verdict stands, the finding that Eternit had engaged in a campaign to downplay the serious hazard posed by the manufacture and use of its products, lobby against government action and suppress the release of damaging information could have global implications.4
Having scrutinized the evidence regarding the companys behaviour, the Brussels Court did not hold back:
It is common ground that the defendant wrongly participated in the efforts made by the asbestos industry to systematically minimise and conceal the danger posed by asbestos, and in so doing, inter alia, to sabotage legislative initiatives to protect public health. In view of the knowledge which it had of the enormous danger posed by asbestos in reality, that conduct can only be classified as fraud.5
Commenting on the November 27, 2023 decision and Eternit has already announced it will appeal6 Eric Jonckheere said that the verdict: sheds new light on the interpretation of deliberate misconduct From the moment you use dangerous products, continue to market them and conceal their proven harmful nature, you commit an intentional fault.
The fact that the company has been convicted of deliberate misconduct opens the gateway for action by asbestos claimants who had accepted compensation from the Belgian Asbestos Fund;7 in return for these payments which are awarded fairly promptly but at much lower levels than court-awarded damages the Funds applicants are obliged to waive the right to sue third parties.8 The only exception to the civil immunity tortfeasors enjoy is if a claimant can prove that an intentional fault had been committed.9 The Court was categorical that this had, in fact, been the case.
Former Kapelle-op-den-Bos resident Marijke Van Buggenhout, whose father had also worked for Eternit and has contracted mesothelioma, believes that:
It is a very symbolic ruling. It shows that the asbestos fund does not mean that Eternit remains completely untouchable, but instead that there is still a possibility to seek vindication in a way This will encourage others to consider taking on a legal case. We are also looking into whether we can sue on the same grounds. The main aim is to get the fact that Eternit is at fault on paper as often as possible.
Ms Van Buggenhout agrees with Eric Jonckheere and ABEVA that the polluter Eternit should pay for its wrongdoing. We should not, she told the Brussels Times expect the government and taxpayers to pay for the damage caused by a company.10
As of now, the Asbestos Fund is still being supported by the State, employers contributions and social security contributions for the self-employed. Before the Fund was set up in 2007, Eternit paid workers who contracted asbestos-related diseases 40,000 (US$43,175) each. Nowadays, Eternit makes an annual contribution to the Asbestos Fund of 9,000 (US$9,700). Eric Jonckheere and ABEVA have publicly called for a radical reassessment of the operations of the Asbestos Fund and a public dialogue on the eradication of asbestos from the built environment.
For decades Eternit has succeeded in flying under the radar. Other once-upon-a-time asbestos giants like Johns Manville (US), Cape Asbestos (UK), James Hardie (Australia), Nichias (Japan), Uralita (Spain) have become bywords for corporate malfeasance due to public knowledge about their disregard for the safety of workers, consumers and members of the public. Eternit not so much. High-profile lawsuits brought by asbestos victims in the US, UK, Australia and Spain, have not only exposed the dirty linen of these companies but also cost them billions of dollars. Until now, Eternit has remained solvent thanks to Belgiums hostile legal climate and the protection afforded to it by the Asbestos Fund. The Eternit/Etex brand, though somewhat tarnished, remains afloat unlike that of some of its former allies.
Eric Jonckheere has always said that his motivation for bringing this case was to reveal the crimes committed by Eternit, its directors, managers and main shareholders: the Emsens family. Where the biblical David had his slingshot, the David of 2023 had writs, affidavits and legal documents. Erics actions honor the memory of his father Pierre, his mother Françoise and his brothers: Pierre-Paul and Stéphane, all of whom died from mesothelioma. By exposing Eternits fraud and deliberate misconduct, a path has been cleared for asbestos victims in Belgium and elsewhere to hold the company to account. Justice has long been denied; it must no longer be delayed.
December 7, 2023
1 Kazan-Allen, L. A Man on a Mission. April 28, 2023.
2 Walker, L. Cancer through asbestos: Court convicts Eternit of intentional wrongdoing. December 4, 2023.
3 Amiante: un jugement historique donne raison à Eric Jonckheere et condamne Eternit pour sa faute intentionnelle [Asbestos: a historic judgment rules in favor of Eric Jonckheere and condemns Eternit for its intentional fault]. December 4, 2023.
Flemish language judgment of the case:
4 Throughout the 20th century, the Belgian Eternit company had worldwide asbestos-producing and using operations in Africa, Asia, Europe, North and South America.
Also see: Organization Chart of the Eternit Group worldwide. Date unknown (1990s?).
Walker, L. Cancer through asbestos: Court convicts Eternit of intentional wrongdoing. December 4, 2023.
5 "Gevaar verdoezeld": rechtbank oordeelt dat asbestmaker Eternit opzettelijk fout maakte en zo kanker veroorzaakte bij Eric Jonckheere. [Danger concealed: court rules that asbestos maker Eternit deliberately made a mistake and thus caused cancer in Eric Jonckheere]. December 4, 2023.
6 Présence damiante: la société Eternit aurait commis une faute "intentionnelle" dans la gestion de son usine [Presence of asbestos: Eternit allegedly committed an "intentional" fault in the management of its factory].
7The National Asbestos Fund was set up in 2007.
8 Families who have been affected by asbestos cancer call these payments hush money.
9Kazan-Allen, L. Belgian Asbestos Fund. March 8, 2007.
10 Walker, L. Cancer through asbestos: Court convicts Eternit of intentional wrongdoing. December 4, 2023.