24 May 2022 Work accident: when is the employer liable?
Today's column deals with a difference of opinion between employer and employee as to who is liable for the damage suffered by the employee as a result of a fall during the performance of his duties. Litigation is underway. What did the subdistrict court and the court of appeal think?
Employee worked for employer as a temporary employee in the 'sheet metal works' department. On 28 June 2016, the head of the sheet metal work department instructed the employee to deposit a thin steel plate in the waste container provided for that purpose. While performing this task, the employee fell and broke his leg.
No accident report was made of the accident. The employer rejected liability.
In the opinion of the subdistrict court, it is an established fact that on 28 June 2016 the employee sustained injury to his leg when, while working for the employer, he threw a steel plate into the container. The employer has not shown that it has fulfilled its duty of care, more specifically, that it has not shown that it has taken such measures and provided such instructions as are reasonably necessary to prevent the employee from suffering damage in the performance of his work (the present).
The subdistrict court ruled that the employer was liable for the damage suffered by the employee as a result of the accident that happened to him while performing his work for the employer on 28 June 2016.
The employer lodged an appeal.
The court of appeal considers that the circumstances of the accident cannot be determined with a reasonable degree of certainty. The Court of Appeal expressly took into account that the employer provided this evidence years after the accident, while more recent memories could have been used, for example, by means of an accident report or by recording statements earlier.
According to the court of appeal, it depends on the circumstances of the case which safety measures can be demanded of the employer and in which way he should instruct the employee. In this respect it is important that the law does not intend to create an absolute guarantee for the protection of the employee against danger, as rightly argued by the employer. With regard to these circumstances, the court of appeal considers that the employer has not argued anything about the content of the RI&Es and the vgm instructions.
From the mere fact that RI&Es have been held, safety documents have been drawn up and toolbox meetings have been held, for example, the Court cannot conclude that within the employer, during the period in question, attention was paid to the disposal of waste in containers, while at the same time it is argued that this is routine work within the company. Contrary to the employer's argument, the Court of Appeal does not consider the assigned work to be of such a nature that this work can occur in everyone's daily life.
It is not part of daily life to throw waste of this size and weight far above someone's head (at a height of at least two metres) into a container, according to the Court. In addition, it has not been stated or demonstrated that the employee was guilty of deliberate intent or conscious recklessness.
The Court of Appeal considered that it was the employer's responsibility to provide the employee with insight into what constitutes "stupid actions" when carrying out (routine) work and how to avoid them. The court upheld the verdict and found the employer liable for the consequences of the industrial accident.
You can read the full judgment here.
Would you like to know more about this judgment or about the rules that apply to occupational accidents? For example, what does an employer's duty of care entail? The lawyers at SPEE advocaten & mediation will be happy to assist you.