12 Jul 2022 Is Hema liable as employer for a regular household accident?
An accident can happen at any time, even in the workplace. A Hema sales assistant experienced this when a cake plate fell from her hands and caused injury. The question now is: is Hema liable for this as an employer?
On Saturday 20 December 2014, a Hema sales employee (employed since 1985) dropped an empty pastry plate (from the pastry showcase) on her foot, resulting in permanent injuries. She believes that Hema is liable for that accident pursuant to Section 7:658 of the Dutch Civil Code and must therefore compensate her damages. The retail company saw this differently.
Judgment of the Subdistrict Court
The Subdistrict Court first outlined the legal framework: the starting point of Section 7:658 (2) of the BW is that Hema is liable towards the employee for the damage she suffered as a result of the industrial accident, unless Hema proves that it has fulfilled its legal duty of care.
Next, the Subdistrict Court ruled that, however unpleasant this may be for the employee, this had been a so-called 'home, garden and kitchen accident'. The employee rightly remarked that she did not walk with cake plates at home, but according to the Subdistrict Court, such an accident need not necessarily take place in and around the house. Letting a cake plate slip out of your hands at work is comparable to letting a tray with coffee or a hot oven dish fall out of your hands at home. The cake plate at issue in this case is made of metal, weighs 1.7 kg and measures 29.5 by 69.5. The plate has (sharp) edges but it does not appear that these are razor-sharp or dangerous. A cake plate is therefore not a dangerous object in itself. Nor does the employee claim that the pastry plate is a clumsy object with which she has always had problems. Nor can she explain why the pastry plate fell out of her hands at that precise moment. There probably is no such explanation. The pastry plate 'just' fell out of her hands, just as house, garden and kitchen accidents 'just' happen, however unpleasant they may be, sometimes resulting in damage.
If the slipping of a cake plate (which is not dangerous in itself) is an incidental risk, Hema cannot and should not be expected to take measures to prevent it. This would be different if it is a structural risk, i.e. if there is a structural risk of injury and damage when working with pastry plates. However, it does not appear that there is a structural risk of injury and damage when working with these plates. Hema argues that an incident like this has not occurred before (nor since), and the employee does not mention any other incidents with pastry plates in her almost 40 years at Hema.
According to the employee, Hema should and could have taken all kinds of measures to prevent the incident, or at least the damage: providing and requiring safety or work shoes, using plastic pastry plates without sharp corners, requiring gloves and giving instructions. The Subdistrict Court indicated that these measures could probably have prevented the damage of the employee, but the measures to be expected from Hema should be in proportion to the danger that they prevent. The measures mentioned by the employee are comprehensive, and with many employees also costly. It is not reasonable to expect Hema to take such measures to prevent something that never actually happens (damage caused by a falling cake plate).
The consideration of the Subdistrict Court about the almost 40-year-long employment of this employee and the fact that she continued to work after the accident is remarkable: "Whether Hema sees in this loyalty and in the unfortunate nature of the incident (without obligation) a reason to (financially) compensate the employee, is for Hema to determine. However, in view of the above, the Subdistrict Court is of the opinion that Hema is not liable for what happened on 20 December 2014. There is therefore no obligation on Hema to pay for the employee's damage. The request is therefore rejected. Of course, the fact that there is no such duty does not alter the fact that it is clear that the incident was (was) an extremely unpleasant issue for the employee. Incidentally, it is true that the employee will receive a (small) payment from Hema's accident insurance in connection with the accident."
You can read the judgment here.
All in all, a legally correct but also humane judgment, in our opinion. Are you an employee or employer and do you have questions about employer liability? Our employment law team is ready to assist you.