Compensation Funds, Trials and the Meaning of Claims: The Example of Asbestos-Related Illness Compensation in France
| Author | Héloïse Pillayre |
| Published date | 01 April 2021 |
| Date | 01 April 2021 |
| DOI | http://doi.org/10.1177/0964663920934187 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2021, Vol. 30(2) 180–202
Compensation Funds,
ª The Author(s) 2020
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DOI: 10.1177/0964663920934187
Claims: The Example of
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Asbestos-Related Illness
Compensation in France
H ´eloı¨se Pillayre
Wits Institute for Social and Economic Research, University of the
Witwatersrand, South Africa
Abstract
In France, occupational exposure related to asbestos has been responsible for nearly
200,000 deaths, leading to a massive scandal in the 1990s. In this article, I report the
results of a qualitative empirical study, based on 50 interviews with victims, of how those
affected by asbestos exposure interacted with two types of compensation mechanism: a
compensation fund – a public administrative system subsidized by employers’ taxes – and
the courts. Several scholars have asserted that, given that the employers are not judged
to be guilty in this instance, compensation through such funds does not carry any moral
meaning. In contrast to these arguments, I show that victims attribute a diversity of
normative meanings to these mechanisms. The analysis highlights, in particular, how
three factors affect the ability of victims to attribute normative meanings to compen-
sation processes: the career paths of the victims; the trust of victims in their employer;
and the type of legal intermediaries they meet – namely, doctors or victims’ associations.
The article encourages scholars to analyze the role of these legal intermediaries in order
to understand how victims make sense of a particularly complex public health scandal.
Keywords
asbestos, compensation fund, france, occupational health, trial, victims
Corresponding author:
H´eloı¨se Pillayre, University of the Witwatersrand, Johannesburg, South Africa.
Email: heloise.pillayre@gmail.com
Pillayre
181
Introduction
Occupational exposure related to asbestos, a product used extensively in numerous
industries throughout the 20th century, has caused thousands of deaths all over the world
(Kazan-Allen, 2005). In France, asbestos has been responsible for nearly 200,000 deaths
(D´eriot and Godefroy, 2005). In the 1990s, after researchers discovered asbestos in a
Parisian university and established links with affected workers, a powerful victims’
association, the Andeva (Association Nationale des Victimes de l’Amiante – National
Association of Asbestos Victims), was created, which now has a membership of 20,000
individuals affected by asbestos. With this association’s help, thousands of victims have
entered into lawsuits against their employers to seek compensation. As a result of these
legal proceedings, asbestos became a highly publicized issue in France (Henry, 2007).
The strong public moral indignation that resulted put pressure on the government to find
an alternative solution to compensate victims. In response, the government established a
compensation fund – an administrative mechanism subsidized by employers’ taxes
(Viney, 1998) – known as the Fiva (Fonds d’Indemnisation des Victimes de l’Amiante
– the Compensation Fund for Asbestos Victims). This solution, however, has been
controversial. The Fiva was created by the government to avoid flooding the courts with
thousands of victims and has therefore been criticized as a ‘compensation system without
guilty parties’. Some authors believe the Fund does not actually uphold the rights of
victims because the money they receive does not carry any moral meaning: it is not paid
by an employer that has been judged guilty of contamination (Th´ebaud-Mony, 2003,
Hardy-H´emery, 2009). Against this general argument that monetization through an
administrative scheme necessarily implies a loss of the normative meaning of such
claims, I will show how the ability of victims to attribute normative meanings to com-
pensation processes does not depend on the structure of the mechanisms – whether it be a
trial or compensation fund – but on three interrelated facts: the career paths of victims;
the trust of victims in their employer; and the type of legal intermediaries they meet,
namely doctors or victims’ associations. On the basis of an analysis of 50 interviews with
victims who obtained compensation for an asbestos-related illness, I highlight the diver-
sity of these normative meanings and show how they are not necessarily related to a
willingness to blame the employer.
The question of which mechanisms are appropriate when seeking justice for asbes-
tos victims in particular, and mass torts victims in general, is not specific to France.
Lawyers have illustrated the considerable challenges that ‘mass torts’ – characterized
by a large number of claimants, wide geographic dispersion, a long/similar latency
period of the illness, and similar factual patterns – present to courts in different
countries (Nagareda, 2008). Courts have problems dealing with the numbers of parti-
cipants; they face difficulties assessing causality between conduct and physical harm;
the trials are perceived as very slow, inequitable and costly; and a large amount of the
money intended for those affected ends up being spent on lawyers. Asbestos litigation,
in particular, has been criticized for being overly expensive (Behrens, 2002; Hensler
et al., 1985; Hensler et al., 2005; Kakalik et al., 1984). In this context, many advocates
of alternative forms of restitution for those engaged in such mass torts have explored
the solution of administrative schemes such as compensation funds (Ost, 1995), of
182
Social & Legal Studies 30(2)
which the French fund for asbestos is one example. Some lawyers, however, have
raised the question of whether such administrative mechanisms can really secure the
rights of the victims (Floering, 2002). Many sociologists have also raised the question
of an absence of justice with regard to administrative systems of compensation, espe-
cially with regard to occupational illnesses and accidents. Indeed, the world of occu-
pational health is traditionally characterized by an important monetization of such
claims: in France, most occupational illnesses and accidents are under the purview
of the Social Security system, and very few victims are compensated through the courts
(Henry, Jouzel, 2008). Marxist and Foucauldian scholars often argue that this system is
unfair in that money is given to victims to prevent them from blaming their employers
and engaging in lawsuits against them (Barnetson, 2010; Duncan, 2003). Their argu-
ment is similar to that used by French sociologists (noted above) who have criticized
the creation of the Fiva for its inability to deliver justice for victims: the money
awarded is perceived as preventing those affected from making sense of what hap-
pened to them and does not allow them to develop normative meanings with respect to
the compensation process.
The main problem with these analyses, however, is that they raise questions about the
fairness of compensation mechanisms without giving any consideration to the ways in
which the injured parties themselves come into contact with them. Analyses in Legal
Consciousness Studies show that the way people make use of a legal mechanism can
differ considerably from how those responsible for its origin envisaged it. Several
articles have explored the role of the cultural and moral backgrounds of claimants (Merry
and Silbey, 1984; Merry, 1986) in shaping how they experience the courts. The work of
Felstiner et al. (1981) has shown that the use of different mechanisms changes the
essence of the grievance and the nature of what individuals seek to compensate through
these mechanisms. Their work constitutes a useful analytical tool with which to under-
stand how victims interact with various aspects of the legal system. The work of Talesh
and P´elisse on ‘Legal Intermediaries’ (Talesh and P´elisse, 2018) shows how different
legal and nonlegal actors can contribute to changes in the meaning of the law. They argue
that ‘legal intermediaries are the key actors on the chain between law and social change’.
According to the authors, the role of these legal and nonlegal actors is becoming more
important in our increasingly complex societies. The arguments presented in this paper
will show how these intermediaries fundamentally influence the manner in which vic-
tims make sense of compensation mechanisms and attribute normative meanings to the
money they receive.
This research was also inspired by previous sociological work on compensation
funds. The central idea of these studies is that the aim of funds is not fixed in advance,
but rather it emerges as the result of claimants’ normative work when they try to make
sense of this type of mechanism. For example, Adriana Petryna has shown how the
compensation fund set up after the Chernobyl explosion has been used by victims as a
welfare system that gives them access to ‘biological citizenship’ (Petryna, 2006). Nico-
las Dodier and Janine Barbot analyze the diversity of ‘normative repertoires’ of those
compensated by the fund set up after the French case involving a tainted human growth
hormone which affected numerous children (Barbot and Dodier, 2014). The specific
question of choosing between compensation funds and judicial proceedings was raised
Pillayre
183
with respect to compensation for damage caused by the September 11 attacks in the
United States. Gillian Hadfield has demonstrated that the choice in favor of judicial
proceedings rather than opting for a compensation fund arises from a desire on the part of
the...
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