ITA 
Published on Sole24Ore – NT Lavoro – on 30/05/2022.
An action for damages arising from a professional illness is time-barred from the time at which the employee or his heirs can reasonably be deemed to have perceived the illness as unfair damage resulting from unlawful conduct of the employer. It must be done using ordinary diligence and on the basis of scientific knowledge of the time.
Thus, the Court of Cassation with its judgment no. 13806 of 19 May 2023.
In the specific case, the Court of first instance and the Court of appeal had rejected the employee’s heirs claim for the biological damage resulting from the occupational disease, on the ground that the period of limitations had exiperd. The heirs’ claim was for compensation for the biological damage resulting from the occupational disease contracted by the deceased (i.e. iure hereditatis) and for the pecuniary and non-pecuniary damage suffered by them (i.e. iure proprio).
The Court of first instance had identified the day from which the period of limitations began as the date of publication (1990) of a technical report of the Local Health Authority which certified the presence, within the plants, of carcinogenic substances, the obsolescence of the plants, the lack of smoke suction devices at the source, the high quantity of asbestos fibres and the concentration of fine dust.
The Court of Appeal confirmed the judgment of the Court of First Instance noting that, at least since the entry into force of Legislative Decree 277/1991, which provided for precautions for employees exposed to asbestos, objective diligence would have required that the relatives should also perceive the illness as a consequence of the employer’s conduct.
The heirs appealed to the Court of Cassation, complaining of the violation of Article 2935 of the Civil Code, for having the judges identified the starting point of limitation period without taking into account the specific scientific knowledge, since at the date of publication of Legislative Decree 277/1991 medical science had not yet linked the worker’s illness to exposure to asbestos.
The Court of Cassation, hearing the issue, upheld the appeal and provided an analysis of the case-law principles on the subject.
In particular, the Supreme Court recalls that in these cases, the limitation period runs from the time when one or more concurrent facts provide certainty of the employee’s knowledge of the morbid condition, its occupational aetiology and the attainment of the minimum indemnifiable measure.
The Supreme Court also refer to judgment no. 576/2008 in which the United Sections pegged the commencement of the statute of limitations to two objective parameters: the injured party’s ordinary diligence and the level of scientific knowledge at the time, both of which are subject to the assessment of the judge of merit.
The conclusion of the legitimacy case-law is that «The limitation period runs not from the day on which the third party brought about the causative change of the harm or from the time when the illness became manifest externally, but from the day on which it was perceived or could be perceived as unfair harm resulting from the conduct of the third party, using ordinary diligence and taking into account the spread of scientific knowledge».
In the specific case, the Cassation recalls that the above mentioned principles have also been confirmed for survivors. For the heirs, it is indispensable that “the death of the insured and the knowledge or awareness by the survivors of the occupational aetiology of the death, which may not coincide with the death, but be attained only after it" (Court of Cassation no. 2002/2005) for the limitation period to start running.
In the Court’s view, the judges of merit committed an error of assumption and misapplication of Article 2935 of the Civil Code. In fact, the judges had linked the knowability of the disease to the entry into force of Legislative Decree 277/1991, which, in reality, neither proves the heirs’ knowledge or knowability of the disease nor provides any significant evidence of scientific knowledge at the time.