Employer not liable for fatal accident despite penalty from Labour Inspectorate

In cases involving work-related accidents an employer is quickly deemed to be liable. However, the subdistrict court in Middelburg recently ruled that an employer was not liable for a fatal accident as he had not been negligent in respect of his duty of care. This was despite a penalty having been imposed by the Labour Inspectorate in respect of the selfsame accident.

Legal character
The law requires an employer to take such steps and provide instructions as are reasonably required in order to prevent an employee from suffering injury in the course of their working activities. This duty of care does not extend to providing absolute guarantees, however. Consequently, the employer is not liable if he has fulfilled these obligations or if he can show that an injury is in large part a result of deliberate intent or willful misconduct on the part of the employee. The question is how far the duty of care extends in the event of a work-related accident. What precisely can be expected of an employer? Legislators have no concrete answer to this question and interpreting the duty of care has been left to the courts. Case law indicates that heavy demands are imposed on the employer's duty of care. There is no rapid acceptance that an employer has met all of his responsibilities. Past experience shows that the employer will be held accountable unless the employee has been careless.

The accident
The case in question concerned the following. The employer - an agricultural firm - regularly held so-called 'toolbox meetings' where the safe use of equipment was discussed. Three months prior to the accident, the employee in question had led such a meeting. During this session, he had highlighted the importance of using safety supports. A few months later, the same employee was required to crawl under the hopper of a machine. No safety supports had been fitted to the machine, nor had the employer ensured they were in place. Precisely at the moment that the employee lay under the fully loaded hopper it fell on his head. The employee died as a result.

Labour Inspectorate
It is undisputed that had the safety supports been in place the fatality would not have occurred. According to the Labour Inspectorate, the employer is nonetheless not at fault. Moreover, the employee should and was in a position to ensure that measures had been taken whereby work on the machine could have been conducted safely. As a result of this, the Labour Inspectorate imposed a penalty on the employer under the terms of the Working Conditions Act.

Subdistrict Court
The family of the deceased claimed that the employer is liable. The view of the subdistrict court is that in spite of the Labour Inspectorate's opinion that the requirements of the Working Conditions Act had not been adhered to, it has not been established that the employer has been negligent with regard to his duty of care. The subdistrict court stressed that the employee in question was not only experienced and trained but that shortly before, during a toolbox meeting, he had himself drawn attention to the use of safety supports. Based on this, the employer would have concluded that the employee in question would use or fit safety supports even if the employer had not done so himself. Given these circumstances, Middelburg subdistrict court found that the employer had not been negligent in discharging his duty of care. As a result, the compensation claim should therefore be denied.

Conclusion
The fact that there had been a breach of the Working Conditions Act did not automatically lead to the employer being found liable for having failed in his duty of care. The Supreme Court has repeatedly emphasised that when an employee is injured in the course of conducting working activities it should not automatically be assumed that the employer has failed in the discharge of his duty of care. High demands are placed on employers with regard to this issue partly because the employer is deemed to be the primary party to prevent or limit risks in the workplace. For this reason we do not consider that the judgement by Middleburg subdistrict court will have significant consequences. Employers are required to ensure a safe working environment even in situations involving experienced and well-trained employees. In our opinion, however, the employer in this case could and should have fitted safety supports at little cost and through relatively little intervention that would have prevented this accident from occurring.