An accident in the workplace is of course something you, as an employer, would rather prevent. Yet it sometimes happens. And then the question quickly arises: am I, as an employer, liable for the damage?
This article briefly explains when that is the case, and gives a few practical examples.
The employer’s duty of care
The law (article 7:658 of the Dutch Civil Code) states that an employer must ensure a safe working environment and take those measures, and give those instructions, that are reasonably necessary to prevent accidents. We call this the duty of care.
This applies not only to the employer’s own employees, but also, for example, to temporary agency workers and hired-in staff.
If an employee has an accident, the employee must first prove that they suffered damage in the course of performing their work.
For damage sustained at work, the employer is liable, unless the employer can prove:
- that it has complied with its duty of care, or
- that the damage is to a significant extent the result of intent or deliberate recklessness on the part of the employee
Whether the duty of care has been met depends on the circumstances of the case, such as the nature of the work, the risks involved, and the feasibility of safety measures.
Below are two examples, one in which the employer was found liable and one in which it was not.
Recent examples from practice
The Overijssel District Court recently ruled that the employer had breached its duty of care.
What was at issue?
An employee was injured while working on a construction site, presumably by tripping over reinforcement steel. He reported sick and claimed damages from his employer.
The court established that the employer had breached its duty of care by not keeping the walkway clear, in violation of its own safety regulations.
The court also considered it plausible that the employee took a shorter route and tripped as a result, which carries foreseeable risks of injury.
Since the causal link was sufficiently plausible and the employer provided no evidence to the contrary, the court ruled that the employer is liable for the accident and the resulting damage.
That the duty of care is not always breached is shown by the following ruling of the The Hague Court of Appeal.
This case concerned a female employee who fell over a pallet while carrying out her work. She held the hiring company liable for the damage she suffered as a result.
The subdistrict court rejected the claim for damages. The employee appealed. The Court of Appeal ruled that, although the injury occurred during work, the hiring company is not liable. This is because the duty of care had been met.
According to the Court of Appeal, the work and the working conditions were not dangerous in nature. The presence of a pallet at a fixed location by the production line was not regarded as a dangerous situation, partly because there was enough space to walk around it and the pallet was clearly visible. According to the Court of Appeal, adding extra markings or fencing would not have prevented the accident and could even have brought extra risks. The Court of Appeal therefore also rejected the employee’s claim.
In conclusion
As an employer, you would do well to take your duty of care seriously.
Would you like to know what measures you can take, not only to prevent accidents but also to limit or exclude legal liability? The corporate lawyers at The Legal Company are happy to help. Contact us directly by emailing info@thelegalcompany.nl or calling 020-345 0152.
