Thought leadership from our experts

Q&A with Sylvie Gallage-Alwis

What is the most challenging case you have worked on and what makes it unique?

Under French Law, and more specifically the French Social Security Code, "when an [occupational] accident is caused by the gross negligence of the employer […], the victim or his/her beneficiaries are entitled to obtain additional compensation […]. In such cases, employees can […] obtain compensation for their non-economic loss, such as the loss caused by physical and moral pain, their aesthetic loss and loss of enjoyment or losses resulting from the loss or reduction of professional promotion opportunities".

Gross negligence is defined as a serious fault. This means that, in theory, the claimant should prove a deliberate act or omission of the company, the company's awareness of the danger and the absence of any justification for not taking any steps. However, since judgments dated 28 February 2002, the French Supreme Court has reversed the burden of proof and placed it on the company, which is now the party that has to prove that it (i) was not aware of the danger to which the employee was exposed and (ii) took the necessary measures to protect him/her. Since these judgments rendered in the scope of asbestos-related diseases, all companies that have used asbestos in their manufacturing process have been condemned to pay damages to former and current employees. Indeed, lower Courts, encouraged by the French Supreme Court, have made it even more difficult for companies to defend themselves over the years. Indeed, all companies are deemed to have been aware since at least the 1950s of the dangers linked to asbestos and "simply" complying with past regulations has been ruled to be insufficient. Courts are now asking companies to demonstrate that they went beyond what the law required back when asbestos was still legal.

I was asked by one of our automotive clients to take over the management of their portfolio of gross negligence cases in which it has been involved in the past years and where it has always automatically been condemned. There was, therefore, a strong precedent against this company (over 100 judgments against it). By thinking outside the box, we have managed to have Courts rule that this company has not acted with gross negligence when using asbestos in its manufacturing process. As a consequence, this company is one of the very rare ones to be exonerated in France in asbestos-related cases.

This new case law was achieved through several steps. Indeed, Courts are very reluctant in France to rule that companies rightly used asbestos (even when it was legal to do so). I have therefore started asking Courts to rule that the claimants were not filing strong enough evidence against the company, with which they have agreed. I then tried to demonstrate that not only were the claimants not filing sufficient evidence, our client was filing evidence showing that it took steps to protect its employees. This has led to a positive outcome: by asking labour-law driven Courts to apply product liability concepts and civil procedure rules, case law has changed. 

What was the most significant development in your practice area in the past 12 months?

The two most significant developments in the Litigation practice in France these past 12 months are worrying for companies.

Firstly, the new consumer law of 17 March 2014 has introduced class actions (under the name of group actions) in French Law. Such enactment is the result of a long legislative process and many discussions regarding the format, the scope and the usefulness of a French-style class action. This system is an opt-in system and is, for now, limited to material damages only (although discussions are pending on extending this system to life science, environmental or discrimination cases). The French class action is available to consumers who have suffered a loss resulting from a contract entered into with a professional or as a result of an anti-competitive conduct. Since its entry into force, on 1 October 2014, four class actions have been launched: one against one of the biggest property management firms, one against one of the leading French insurance companies and two against two social lessors. In a study published in March 2015, it was revealed that 91% of French people are favourable to class actions and ready to take part in one.

Secondly, in cases relating to the exposure to asbestos, whether this exposure is direct or environmental, the French Supreme Court's recent decisions have been interpreted by some as introducing an automatic indemnity to claimants alleging that they suffer from anxiety relating to the development of an asbestos-related disease in the future. Indeed, case law shows that an increasing number of Courts consider that claimants do not have to demonstrate a fault of the company in its use of asbestos, an actual damage (most of the claimants are not ill) or a causal link. Claimants simply have to demonstrate that they worked on a site which has been listed by the French Government as having used asbestos at some point. A pure administrative listing therefore becomes sufficient evidence to obtain compensation even if the Cour des Comptes (French Public Audit Court) warned, in February 2014, that some sites had been listed by the French Government even if less than 4% of the employees had actually been exposed to asbestos. So far, this case law has been contained to the field of asbestos and has not spread to other areas. Such drift needs to be closely monitored to prevent a "French tort crisis".

How is the change in the regulatory framework affecting your industry?

France has become more and more challenging for manufacturers. This is notably because of an increase in the number of warnings against potentially hazardous substances to human health and environment in consumer products or the workplace. The French public has been targeted by a significant number of headlines that draw attention to scientific reports condemning substances. Media reports have linked alleged dangers to pesticides, diesel particles, GMO, asphalt, phtalates, cadnium or bisphenol A, among others.

These warnings are often followed by regulation limiting or prohibiting the said substances, often on the sole ground of reassuring the public opinion without looking at whether or not valid substitutes exist. Pursuant to the so-called "precautionary principle", French authorities have therefore become too proactive, while they have been under attack in the past for not taking measures quickly enough.

The result is an increasing regulatory burden which can sometimes be fairly unpredictable and an increasing liability linked to the use of these substances.

Historically, product liability arose by case law based on the general law of obligations, in particular, civil tort liability. Liability implied a fault of the manufacturer in the design or manufacture of a product, a loss (usually bodily injury) and a causal link between the fault and the alleged loss. The purpose of liability was to compensate the user for the loss sustained due to the latter's exposure by the manufacturer of an established danger.

The impact of the increase in regulation is that case law has progressively led to a regime of purely objective (strict) liability through the disappearance of the concept of fault, the dilution of the causal link and an overly favourable regime for claimants concerning the demonstration of their alleged damage. As such, exposure to a substance which is regulated (even if the regulation is complied with - e.g. in terms of thresholds) becomes sufficient to obtain compensation.

In addition, increasing regulation leads to increasing criminal exposure. Indeed, in France, breach of a regulation (even if it has no direct safety consequence) leads to criminal liability.

What advice would you give to a young aspiring lawyer interested in getting into your practice area?

Litigation is a growing area on the Paris market, which is still divided between international and domestic practices with different rate structures. Transnational litigation is in particular on the rise in Paris and there is a tendency to some sort of "Americanization" of French litigation practices.

A young lawyer should therefore first start determining in which kind of structure he/she would like to work in. Whatever the choice, he/she should then always put clients first. One of the best advice I got in my career comes from my partner, who told me that each client should feel like it is the only client of the firm. Being pragmatic, solutions-oriented and responsive (whatever the time difference), being passionate, being aware of the business model of the client, being interested in the culture and the strategy of the client, in how the client likes the legal advice to be delivered, are key. Outside Counsel should know the way the client works/thinks as well as the client. In addition, we should not forget that clients are human beings and that they also have personal interests amongst which, most of the time, there is one you also share. Personal involvement is therefore always an asset provided it is genuine.

Another advice for a young lawyer is to always be curious and keep track of the developments in your sector. This will allow you to do useful business development and to demonstrate to your clients or prospects that you know what you are talking about. Since the beginning of my career, I have been publishing an average of 40 articles per year. These articles have opened the door to invitations to speak at conferences but have also attracted a number of companies to become clients as companies are increasingly seeking highly specialised lawyers. This is just like planting seeds. You may never know which one will flourish, but there is a strong probability that at least one will.