World Asbestos Report News

Judgment of 3 March 2010 DISTRICT COURT OF THE HAGUE

DISTRICT COURT OF THE HAGUE Civil Law Section, Case Number: 333691 / HA ZA 09-1002
Judgment of 3 March 2010 in the case of Cornelis Jacobus LANGEZAAL, residing in Leiden, the Netherlands, claimant, lawyer: R.F. Ruers, LLM, versus ETERNIT FABRIEKEN B.V., a private limited company with its registered office in Goor, municipality of Hof van Twente, the Netherlands, defendant, lawyer: W.P. den Hertog, LLM, The parties shall hereinafter be referred to as Langezaal and Eternit.

The Proceedings

  1. The course of the proceedings is evidenced by:
    • the interlocutory judgment of 8 July 2009, in which a post-defence hearing was set,
    • the official record of this hearing of 25 January 2010.
  2. Finally, a date for judgment was set.

The Facts

  1. Eternit was founded in Goor in around 1937 as a producer and supplier of asbestos-containing construction material. Eternit was aware at that time that exposure to asbestos entailed the risk of contracting the lung disease asbestosis, which was often fatal. In subsequent years, the added risk of lung cancer became known. In 1956, an Eternit employee was diagnosed as having asbestosis and, at the end of the 1980s, mesothelioma was diagnosed in a former employee.
  2. The most frequently used types of asbestos are blue asbestos (crocidolite), brown asbestos (amosite), which both belong to the amphibole type of asbestos, and white asbestos (chrysotile).
  3. Because asbestos is an economical, easily processed and fire-resistant raw material, the use of asbestos-containing material in construction became widespread particularly after the Second World War. At the time, Eternit supplied sheet materials and, from 1953, also asbestos cement pipes to users. The foregoing products bore the company's name. White asbestos was used in the manufacture of the sheet material, while blue asbestos was used in the manufacture of the pipes.
  4. With a short interruption to complete his compulsory military service, Langezaal, born on 9 July 1940, was employed as a carpenter by Aannemingsbedrijf J. van Riet BV (hereinafter: Van Riet) in Leiden from August 1956 to December 1967. Langezaal was employed in the same capacity by Bouwbedrijf Oorschot & Van den Born (hereinafter: Oorschot) in Nieuwerkerk a/d IJssel, the Netherlands, from December 1967 to February 1968. Van Riet was dissolved on 1 February 1999 and Oorschot was dissolved on 19 July 1999.
  5. During his time as a Van Riet employee, Langezaal performed professional activities that frequently involved the working and processing of asbestos-containing material, as a result of which he was exposed to the asbestos fibres and dust thus released. The same applied to Langezaal's period as an employee of Oorschot.
  6. During the time that Langezaal was working as a Van Riet employee, the company Gebr. Kruyt was also based in Leiden. This company was an Eternit dealer and sold asbestos-containing Eternit products.
  7. On 6 December 2007, Langezaal was diagnosed as having mesothelioma in the form of pulmonary cancer. This diagnosis was confirmed by the Dutch Mesothelioma Panel (NMP) in a letter of 11 January 2008.
  8. On 13 December 2007, Langezaal contacted the Institute for Asbestos Victims (IAS) to secure mediation services. After this institute established that the aforementioned employers of Langezaal had since been dissolved, it informed Langezaal by letter of 8 February 2008 that it was discontinuing its mediation services in the matter. By letter of 14 February 2008, Langezaal was granted an advance payment of €17,050 pursuant to the Asbestos Victims (Compensation Payments) Regulations.
  9. In March 2008, Langezaal contacted SRK, his legal expenses insurer, which then launched its own investigation into Van Riet. By letter of 8 September 2008, SRK informed Langezaal of the dissolution of this company. In December 2008, Langezaal contacted Ruers, a lawyer. Ruers held Eternit liable on 8 January 2009. Eternit rejected liability.
  10. In the Netherlands, the health hazards associated with processing asbestos-containing material were referred to in the Safety Decree of 1938. Pursuant to legal regulations pertaining to the prevention and combating of silicosis and other forms of pneumoconiosis, asbestosis was recognised as an occupational disease in 1949. The Asbestos (Commodities Act) Decree of 18 July 1982, which was further elaborated in the Labelling Decree of 17 July 1984, made it compulsory from that time on for all asbestos-containing products to feature stickers indicating the presence of asbestos and a warning referring to the precautionary measures to be taken when working and processing such products. From 1979, Eternit placed stickers on its products of its own volition.
  11. In 1958, three mesothelioma cases were discussed in a meeting of the Dutch Association of Forensic Pathologists. Mesothelioma is a rare form of cancer. Its symptoms take a long time to appear and it is ultimately fatal. The experts who participated in this meeting were not aware of the relationship between mesothelioma and exposure to asbestos. That relationship was established in 1960 in a widely disseminated publication of J.C. Wagner et al. based on his research into exposure to asbestos in crocidolite mines in South Africa. Regarding white asbestos, his article states: 'Cartier (1952) mentioned two cases of diffuse mesothelioma from a Canadian chrysotile mine…. Unfortunately no indication is given in the literature regarding the type of asbestos to which the majority of recorded cases of carcinoma were exposed. However, discussion with management and medical officers of two of the factories, in which the majority of the cases reported in Britain were employed, suggests that most of these workers were handling chrysotile asbestos (Wagner, 1958).' Further on in his article, Wagner states: 'Our findings suggest that mesothelioma occurs 20 to 40 years or more after exposure to dust.'
  12. On the recommendation of the Commission of the European Economic Community, the 'European list of occupational diseases' was published in 1962. The list specifies the three asbestos types referred to above and the fact that, for a number of years already, attention had been drawn to mesothelioma in individuals who had been exposed to asbestos. Under the heading 'Sources of hazard', the following is stated in the summary: '…the manufacture and processing of asbestos cement products ("Eternit", for example)…(sawing, drilling, milling and polishing)….'
  13. The First International Asbestos Conference was held in New York in 1964. Its recommendations were published in trade journals in 1965. In addition to questioning the opinion of scientists that the connection between exposure to asbestos and mesothelioma was sufficiently established, the recommendations also expressed doubt as to whether the most commonly used asbestos type, chrysotile, was indeed carcinogenic, as well as the hope that the asbestos risk could be resolved by stimulating the use of white asbestos rather than blue asbestos. In a report of the Second International Asbestos Conference held in Dresden in April 1968, however, Professor R.L. Zielhuis stated that this hope had since vanished in many countries as a result of experimental and epidemiological research carried out in the intervening period. The Public Health Risks of Exposure to Asbestos report of 1977 by the same professor states: 'There is a general agreement that the risk of mesothelioma is fibre related in the order crocidolite > amosite > chrysotile…but the magnitude of the difference between the various types of asbestos is not well established.'
  14. In their 1988 publication Asbest, het inzicht in de schadelijke gevolgen in de periode 1930-1969 in Nederland (Asbestos: Understanding its Harmful Consequences in the Period 1930-1969 in the Netherlands), Swuste et al. noted that 'Following the first International Asbestos Conference held in New York in 1964, far more is being published by Dutch medical professionals on the health risks of asbestos than had previously been the case. In the five years between 1964 and 1969, twelve articles were published that appeared not only in the Nederlands Tijdschrift voor Geneeskunde (Dutch Journal of Medicine) but also in the Tijdschrift voor Sociale Geneeskunde (Dutch Journal of Social Medicine), and even in the Annals of Occupational Hygiene…. In no publication is the link between exposure to asbestos and the occurrence of asbestosis, lung cancer and mesothelioma…called into question.' In a 1965 publication, British scientist Muriel L. Newhouse drew attention to mesothelioma contracted by individuals through indirect exposure to asbestos in the domestic settings of workers in the blue or white asbestos-processing industry. The Lancet of 5 March 1966 states: 'A possibly important clue to prevention was uncovered by Wagner in South Africa, where, after showing an association between mesothelial tumours and exposure to the crocidolite form of asbestos, he and his colleagues were unable to find any tumours in those exposed only to the amosite or chrysotile types of fibre…. The many new cases lately reported in the United Kingdom have contributed little to solving this part of the problem…. But the occurrence of these tumours here and in other countries has confirmed that the risk is not peculiar to the crocidolite mining areas of South Africa. Mesothelial tumours have been seen in a few individuals apparently exposed only to chrysotile in the United States and Canada.' On 4 March 1967, Dr J. Snijder published his recommendation in the Nederlands Tijdschrift voor Geneeskunde under the title 'Clinical Lessons', in which he stated: '…the data available up to the present time indicates that the probability of bronchial carcinomas occurring is not tied to a certain type of asbestos, whereas there are indications that a single asbestos type, namely crocidolite, could constitute a particular risk with respect to the occurrence of mesotheliomas.'

2.15. Under the heading 'Carcinogenic Substances', the Health and Safety Inspectorate's 1966 annual report states: 'At the end of the year under review, the occupational health community was again starkly reminded of the possible connection between the inhalation of asbestos dust and the occurrence of mesothelioma.'

2.16. In a ruling of 27 February 2007 of the District Court of Arnhem, the Netherlands, in a case in which Eternit was summoned as a party, the court's considerations included, among other things, the following: 'The matters addressed in the foregoing ... indicate that it [Eternit; addition of the court] was aware, already well before 1967, of the latest scientific and technical knowledge at the time pertaining to the risks associated with asbestos, and that it took measures to ensure that it was comprehensively apprised of the matter. In this connection, Eternit's director, C. Doevelaar, stated on its behalf during a court session that, in 1967, Eternit employed its own scientists who focused on the issue of asbestos and health, as well as a doctor who monitored the health of the company's employees in relation to asbestos and, within the framework of this activity, frequently attended conferences and other meetings on the issue.' At that court session, Eternit did not dispute that it had been represented at the First International Asbestos Conference in 1964. Eternit accepted this court ruling.

2.17. In 1969, Dr J. Stumphius, at the time a company doctor at De Schelde in Vlissingen, the Netherlands, obtained a PhD for research on the medical consequences of exposure to asbestos. His doctoral thesis, Asbest in een bedrijfsbevolking (Asbestos in an Industrial Population), in which he described a series of 25 mesothelioma cases, drew widespread attention to the real risks of exposure to asbestos during the manufacture, assembly and disassembly of asbestos-containing products in the course of which large quantities of asbestos were released. During a meeting of the Royal Institution of Engineers in the Netherlands (KIVI) held on 17 December 1969 in which Stumphius gave a lecture in the presence of, among others, J.G. Bijleveld, director of Eternit, his answers to questions included the following: 'The most commonly used types of asbestos – chrysotile, amosite and crocidolite – can be considered triggers of asbestosis or mesothelioma…. As stated earlier, the risk of asbestos is in loose, floating fibres, which occur to a pronounced degree in insulation work involving asbestos. In bonded form, such as in the case of asbestos cement materials, there is no risk unless the asbestos in such materials is released as a result of processing…. The only established fact is the causal relationship between asbestos inhalation and asbestosis or…mesothelioma. Nothing is known for sure about potentiating factors such as carcinogens and the constitution of an individual patient, nor about maximum acceptable concentrations of asbestos fibres in the atmosphere. It is the case, however, that the quantities of asbestos inhaled are considerably less in diffuse mesothelioma than in asbestosis…. Asbestos should be considered a hazardous material.'

2.18. In December 1971, Professor A. Gyselen, lung specialist and at the time Eternit adviser, gave a lecture of which the summary was published. Among other things, it states: '... People believed that crocidolite was the primary causal factor, and it does indeed seem that this type of asbestos is more dangerous in this respect. However, cases of mesothelioma have also been recorded following contact with only chrysotile. Mc Donald, for that matter, recorded 165 cases of mesothelioma in Canada, where only chrysotile is mined…'

2.19. The first official Dutch government publication, the Health and Safety Inspectorate's Werken met Asbest (Working with Asbestos), was published in 1971. This brochure states that asbestos dust can spread through the use of, among other things, asbestos cement sheets such as those produced and supplied by Eternit, especially in cases where asbestos-containing products are mechanically processed in terms of, for example, the sawing and scouring of asbestos cement and the sawing of insulation plates. The document furthermore reports strong indications that asbestos plays a part in the occurrence of mesothelioma. According to this brochure, however, abandoning the use of asbestos altogether would not be a socially feasible option, and it notes that 'the role of the most commonly used type of asbestos, chrysotile, is probably minor' in causing this disease.

2.20. Gevaren van asbest (Dangers of Asbestos), a brochure published by the Joint Administration Office (GAK) in 1971, states: '…mesothelioma can also occur in the case of short or less intensive exposure. Until recently, this form of cancer was considered rare, though an increasing number of cases are now being recorded… Symptoms of asbestosis already appear after a few years, whereas those of mesothelioma often manifest themselves only after 20 to 40 years.' As a practical preventative step, the brochure mentions due observance of occupational hygiene measures when processing asbestos-containing materials in order to prevent asbestos dust from floating freely in the workplace (e.g. the use of masks and dust extractors).

2.21. Between 1 January 1969 and 31 December 1981, Dr H.T. Planteydt, a forensic pathologist, maintained the so-called Mesothelioma Register, in which he recorded and investigated 725 cases of mesothelioma. Regarding this disease, he wrote the following in the Chemie en Techniek (Chemistry and Technology) journal of March 1975: 'Of the different asbestos types, crocidolite in particular is considered to be a cause of mesothelioma, although cases of the disease have also been recorded following exposure to chrysotile.' Planteydt also worked on the Zielhuis report of 1977 referred to above.

2.22. In a legal case of which Eternit apprised itself, Dr A. Burdorf, epidemiologist and certified occupational hygienist, reported in 2001 as follows: 'In conclusion, it can be said that at the beginning of the 1980s it was regularly asserted in the scientific literature that exposure to chrysotile could not cause mesothelioma. At the time, a number of Dutch advisory bodies [working group of experts of the national MAC committee, WGD, 1984, and the Health Council of the Netherlands, 1988; addition of the court] adopted this viewpoint. In the past ten years, however, these advisory bodies have revised their assessments and brought them into line with the international consensus that exposure to chrysotile can lead to the occurrence of pleural mesothelioma. Differences in the carcinogenicity of asbestos types do not warrant the conclusion that there is no risk with respect to chrysotile. At the present time, there are no national or international authorities or advisory bodies that assert that exposure to chrysotile will not lead to the occurrence of mesothelioma. This is not a point of discussion in government policy in the Netherlands; chrysotile is included in the list of carcinogenic substances with mesothelioma and lung cancer as potential health-related effects. The carcinogenicity of chrysotile is not doubted either within the scientific community. The only exceptions in this regard are undoubtedly asbestos producing countries like Canada and South Africa.'

2.23. Due to a change in the Asbestos (Working Conditions Act) Decree, a total ban on all types of asbestos came into force in the Netherlands on 1 July 1993.

2.24. The Health Council of the Netherlands report of 1998 states: 'A relationship with past exposure to asbestos can be established among 80 to 87 percent of patients with malignant mesothelioma. No other plausible cause can be postulated in the remaining cases of malignant mesothelioma. Epidemiological research into the link between exposure to asbestos and the probability of malignant mesothelioma has shown that there is insufficient indication for the adoption of a threshold level. Brief exposure or regular exposure to low concentrations is enough to increase that probability.'

Action, grounds of the action and defence

  1. Langezaal asks that the court:
    1. declare by law that Eternit acted unlawfully towards Langezaal and is therefore liable to pay him compensation;
    2. order Eternit to pay Langezaal for the non-material damage suffered by the latter, estimated at EUR 55,000;
    3. order Eternit to pay Langezaal for the material damage suffered by the latter, the amount owed to be further assessed by the court and settled in accordance with the law;
    4. order Eternit to pay Langezaal the extrajudicial costs incurred by the latter in the amount of EUR 1,215.61;
    the foregoing orders to be provisionally enforceable to the greatest extent possible and to include interest and charges.
  2. Langezaal bases his request to the court on the following assertions. During his time as an employee at Van Riet, he was exposed to asbestos dust and fibres during the working and processing of asbestos-containing materials produced and supplied by Eternit. Eternit acted unlawfully towards Langezaal in that, during the period referred to, it failed to protect or warn users of its asbestos-containing products against the serious health risks associated with such use – risks that Eternit was aware of or could have been aware of at the time. According to Langezaal, while working as a carpenter, he was also exposed to the asbestos of Eternit at the company Gebr. Kruyt in Leiden, which at the time was an Eternit dealer. In the performance of his professional duties for Van Riet, he regularly went to Gebr. Kruyt to pick up asbestos cement sheets, which, as evidenced by the stickers they featured, originated from Eternit. This Eternit material was also processed at Gebr. Kruyt, during which considerable quantities of asbestos dust were released without any kind of preventative measure being taken or warning being issued. Langezaal contends that this exposure to asbestos dust and fibres through products that originated from Eternit is the likely cause of the mesothelioma he has been diagnosed with and that therefore Eternit is liable for the damage that he has suffered.
  3. Eternit put up a reasoned defence. To the extent necessary for its assessment of the facts, the court shall deal with the assertions of the parties in the following.

The Assessment

  1. As has also been confirmed by Eternit, the present case concerns the question as to whether Langezaal was exposed to material of Eternit that Eternit knew or could have known, as Langezaal asserts, was carcinogenic, asbestos-containing material during the period between 1956 to 1967. Langezaal refers in this regard to the sheet material containing chrysotile asbestos (white asbestos) that Eternit produced and supplied at that time.

The question of liability

4.2. It has been established between the parties that, in the period from 1956 until the end of 1967, carpenters practised one of the most high-risk professions in relation to mesothelioma due to the working and processing of asbestos-containing sheet material that was widely used in construction at the time, and that it was no different for Langezaal during the time that he was working as a carpenter for Van Riet. It has furthermore been established between the parties that Langezaal was not aware of the health-related risks associated with such work and that Eternit at the time did not recommend any preventative measures or issue any kind of warning to its customers and third-party users with respect to these health-related risks associated with the release of asbestos dust in the processing of the asbestos-containing material it produced and supplied.

4.3. First of all, Eternit contends that Langezaal was not exposed to asbestos dust originating from its sheet material in the period referred to. The court rejects this contention. In this connection, Langezaal invokes witness evidence submitted to the court by two individuals who were fellow carpenters at the time. Both state that, in the period referred to, they, together with Langezaal, frequently worked and processed asbestos sheets of Eternit without any protective measures being taken or warning being issued about the asbestos dust released during such activity and that this sheet material was picked up from Gebr. Kruyt, where likewise no protective measures were taken in the industrial space full of asbestos dust. During a provisional examination of witnesses initiated by Langezaal, one of them confirmed the evidence submitted with the addition that the sheet material picked up from Gebr. Kruyt featured stickers bearing the name Eternit. Langezaal also confirmed the evidence he had submitted as a witness to the Institute for Asbestos Victims in December 2007. In this regard, he noted in addition that it was always very dusty at Gebr. Kruyt: 'The whole place was covered by asbestos dust and, after going there, he was also covered by this asbestos dust.' The unfounded contention of Eternit, which is known to have supplied Gebr. Kruyt, cannot be upheld. Hence, it has been established that, during the time that he was employed as a carpenter by Van Riet, Langezaal regularly came into contact with asbestos dust originating from asbestos cement sheets produced and supplied by Eternit.

4.4. During the court session, Eternit acknowledged that white asbestos too is now considered to be carcinogenic and that, prior to the Wagner report of 1960 that established the connection between asbestos and mesothelioma, it did not in that respect make a distinction between white and blue asbestos. Eternit contends that, until the end of 1967, its understanding was that the white asbestos used in its sheet material was considered to be non-carcinogenic and that therefore it was not obliged to issue any warnings. Also in this respect, the court cannot agree with Eternit's line of reasoning and, in this connection, takes the following into account.

4.5. It is correct, as Eternit asserts, that scientific knowledge about the connection between mesothelioma and white asbestos was still in its infancy until the end of 1967. If the court has properly understood Eternit, however, in its defence Eternit is relying mainly on statements made during the First International Asbestos Conference held in 1964. Insofar as Eternit has in these proceedings denied to have been present at the authoritative conference referred to, the court deems the foregoing contention to be implausible. In 2007, as evidenced by the grounds of the court's judgment at the time, Eternit's lawyer did not deny the company's presence. Furthermore, Eternit's presence at what it also considered to be an obviously authoritative conference is consistent with the statements made by its director, Doevelaar, in those same proceedings – statements that Eternit has also at the present time not denied. As evidenced by Zielhuis' report of August 1968 published in the Nederlands Tijdschrift voor Geneeskunde, doubt was also expressed at this conference as to whether the most commonly used type of asbestos, chrysotile, was carcinogenic and the possibility of replacing the carcinogenic blue and brown types of asbestos with the white type was considered.

4.6. Even if it were accepted that Eternit concurred with the doubt expressed in 1964, it could not and should not have concluded on that basis that white asbestos was not carcinogenic. After all, as evidenced by the undisputed statements of its own director, Doevelaar, the company was well aware of the latest scientific and technical knowledge at the time in national and international terms, as well as with respect to occupational health. Wagner could not identify the connection between white asbestos and mesothelioma but there is no evidence to suggest that his failure to find conclusive evidence in this regard led him to conclude that white asbestos was not carcinogenic. That it was indeed carcinogenic must have been known to Eternit at the time. In this regard, the court refers to the 'European list of occupational diseases' of 1962, which specifically mentions Eternit, and to the publications in the Netherlands between 1964 and 1969 reported by the aforementioned Swuste, the publication of Newhouse and the Lancet of 1965 and the 1967 'Clinical Lessons' of Snijder, in which, far from being excluded as a possibility, a connection between mesothelioma and white asbestos was deemed to exist. It is correct, however, that there were indications that the use of blue asbestos posed a greater health risk than the use of white asbestos, which, as evidenced by Zielhuis' 1977 report, was the generally accepted opinion at the time.

4.7. During the court session, Langezaal's lawyer explained that the doubt expressed during the conference in New York in 1964 as to whether white asbestos was carcinogenic was propagated by countries that produced white asbestos such as Canada and that, although the Canadian lobby initially appeared to gain ground in subsequent years, its position was ultimately rejected by the international community, including the Netherlands. This view was confirmed by Burdorf in his expert report published in 2001. Burdorf points out that, at the beginning of the 1980s, it was regularly asserted even in the scientific literature that exposure to chrysotile could not cause mesothelioma. If Eternit is referring to these views in support of its contention that it was unaware until the end of 1967, that support cannot be deemed valid for reasons having to do with chronology. After all, Eternit has failed to provide a sufficiently convincing argument that the foregoing view, which was indeed expressed around 1980, was the generally accepted one in the reference period. In this connection, the court notes that Zielhuis had already observed in his report on the Second International Asbestos Conference held in April 1968 that the hope still fostered in 1964 in favour of white asbestos had in the intervening period entirely vanished as a result of further scientific insights. Furthermore, Eternit's own adviser, Gyselen, already indicated in 1971 that he did not share the Canadian viewpoint at all. Due to the risk of hindsight bias, Eternit does not deem relevant information dating from after 1967 as admissible to refute its assertion that it was unaware in the reference period. That risk does not apply in the present matter, however, because that information, as considered above, reveals hard, established facts dating from before 1968 that indicate that Eternit must have been aware – and indeed was aware – in the 1960s that white asbestos was also to be considered a carcinogen and that its processing therefore entailed risks to health. The fact that Eternit's current company doctor, Dr J. van Cleemput, apparently thinks otherwise does not alter the foregoing point.

4.8. From that moment on, a higher standard of care applied to Eternit as a producer and supplier of this sheet material. Viewed in this light, the question as to whether Eternit acted unlawfully towards Langezaal must be answered in the affirmative, since, despite its awareness of the serious risks to the health of third parties, it failed, as did its own dealer Gebr. Kruyt and Langezaal's employer Van Riet, to at least affix a warning against those risks to its asbestos cement sheets or otherwise take safety measures, or cause such measures to be taken, for the benefit of third parties.

4.9. To the extent that Eternit continues to maintain that it is not established that Langezaal's asbestos contamination was the result of its sheet material because Langezaal also frequently came into contact with asbestos-containing material of other parties at Van Riet and Oorschot, the court disregards that assertion. It is sufficient in this connection that Langezaal's mesothelioma could be the result of Eternit's failure to take certain action. That failure is evidenced by the foregoing.

4.10. Furthermore, Eternit argues unconvincingly that even if it had issued warnings to third parties, such warnings would have fallen on deaf ears due to the high level of societal acceptance of asbestos in the construction industry. It is no longer possible to determine whether this would indeed have been the effect. Eternit bears the risk in this respect because it had been in a position to take preventative measures without undue difficulty but, for reasons of its own, did not do so in the reference period. What is striking in this connection is that, in its own words, Eternit did take precautionary and safety measures in the period in question with a view to protecting the health of its own employees. It denied these measures, however, to an employer like Van Riet and its own dealer Gebr. Kruyt.

4.11. Based on all of the foregoing considerations, the conclusion is that Eternit is liable towards Langezaal for the damage he has suffered as a result of its unlawful actions.

The question of prescription through lapse of time

4.12. Finally, Eternit invokes the prescription of Langezaal's claim against through lapse of time. It is established that Langezaal's exposure to Eternit's asbestos-containing material ended in December 1967. Notice with respect to Eternit's liability dates from 8 January 2009 and the subsequent summons of 5 March 2009. The absolute time limit as laid down in Section 3:310 of the Dutch Civil Code has therefore lapsed. Eternit maintains that its reliance on prescription through lapse of time is acceptable according to the principles of reasonableness and fairness. The court shares Langezaal's opinion, however, that Eternit's position is untenable in the case of the claimant. With due observance of the points of view developed by the Supreme Court in this respect, the court takes the following into consideration in this matter.

4.13. Langezaal is claiming compensation for material and non-material damage suffered that will currently benefit himself. It is established, as became clear in the court session, that Langezaal received an advance payment in the amount of EUR 17,050 from the general fund through the mediation of the Institute for Asbestos Victims. As indicated in the foregoing considerations, the court deems Eternit's failure to take certain action to be contrary to the higher standard of care applicable to it as a producer and supplier. In the present situation, awarding damages to Langezaal in spite of the lapse of the regular time limit is justified.

4.14. In addition, Eternit, aware of the long period of time it takes for symptoms of mesothelioma to appear, could take these kinds of claims instituted by parties other than its own employees into account even before the lapse of this time limit and, as it stated during the court session, has indeed done so since 2003. By means of its statement of defence and post-defence statement, Eternit indicated that it would be able to conduct a sound defence against Langezaal's claim in spite of the passage of time. Furthermore, it is established that Eternit has been unable for a long time to insure itself against the risk at issue in the present case. It is also established that Eternit maintains reserves to cover against claims such as those of Langezaal and it was not asserted, nor did it become apparent during the proceedings that Eternit would not be able to pay Langezaal's claim. Finally, it is clear that during the 15 months that passed between the time at which he was diagnosed and the service of the summons, Langezaal acted with the necessary expeditiousness in the preparation of his claim. He contacted the Institute for Asbestos Victims to secure mediation services and then made the obvious decision to proceed through his legal insurer SRK to explore possible legal actions against, in the first instance, his former employer. SRK subsequently referred Langezaal to his current lawyer, who, following initial contact with Langezaal in December 2008, notified Eternit that he was holding it liable on 8 January 2009 and, without delay following rejection of liability, instituted legal proceedings on 5 March 2009. With due observance also of all viewpoints discussed, the court does not deem this passage of time as being so long as to make it unacceptable, according to the principles of reasonableness and fairness, to dismiss Eternit's reliance on prescription through lapse of time. Reliance of prescription through lapse of time is therefore dismissed.

Damage

4.15. In the matter of the material damage, the existence of which Eternit does not dispute, the parties indicated that they wish in the first instance to determine this damage in joint consultation. Taking this wish into account, the court shall award the assessed damages with the exception of the statutory interest claimed on the amount in question, since Langezaal did not provide sufficient argument with respect to the commencement date.

4.16. In the matter of the claim for general damages, the court shall adhere to the standard amount of the Institute for Asbestos Victims, which is currently EUR 51,395. The court is assuming in this regard that, upon the award of the damages claimed by Langezaal in these legal proceedings, he shall be obliged to refund the advance payment of EUR 17,050 received, and that he shall indeed refund this amount. Langezaal is obliged to provide relevant information in that regard to Eternit. If Langezaal fails to provide such information, the right of claim shall be reduced by the advance payment amount. The general damages awarded in conformity with the currently applicable standard amount of the Institute for Asbestos Victims are in keeping with the amounts that Dutch courts determine in similar cases. Furthermore, the general damages awarded take into account the nature and seriousness of the disease contracted by Langezaal and all the consequences for him arising therefrom. The statutory interest on the amount in general damages awarded shall be allowable from the fourteenth day after the date of this judgment.

4.17. The outcome specified above means that Langezaal no longer has an interest in the declaratory decision requested. This request shall therefore be rejected.

Extrajudicial costs

4.18. This claim, disputed by Eternit, shall be rejected by the court as insufficiently substantiated, now that the court session has made clear that SRK paid these costs for Langezaal.

Costs of the proceedings

4.19. As the more unsuccessful party, Eternit shall be ordered to pay the costs of the proceedings. Costs incurred by Langezaal are estimated as follows:

summons EUR 85.98
standing charge 1,235.00
witness-related costs 25.00
lawyer's fee 3,576.00 (4 points x fee of EUR 894.00)
Total EUR 4,921.98

Decision

The Court

This judgment was passed by J.M. Willink, LLM, S.J. Hoekstra-van Vliet, LLM, and H.M. Boone, LLM, and pronounced in open court on 3 March 2010.

The Hague District Court
Issued as a true bailiff's copy / true copy
3 March 2010
The Registrar