Introduction

More and more employees are holding their employer liable for damage sustained in the course of their job. Damage can be sustained in different situations: on the workfloor or during a staff outing, but also in traffic that employees participate in within the context of their job. Some important judgments have been rendered in recent years, particularly in relation to the third of these situations. In this newsflash we take a closer look at the employer’s liability when an employee is involved in a traffic accident. Just how far does this liability extend?

Legal basis

Article 7:658 of the Dutch Civil Code forms the legal basis for the employer’s liability. It states that the employer is liable for damage that employees sustain while doing their job. The article is based on the principle that an employer is liable for such damage unless he can show that he has fulfilled his duty of care or that the damage is the result of intent or wilful recklessness on the part of the employee. In addition, an employee can hold his employer liable on the grounds of good employment practices as laid down in Article 7:611 of the Dutch Civil Code.

Employees involved in traffic accidents

In recent years the courts have decided the extent of the employer’s liability when an employee sustains damage from a traffic accident.

The Supreme Court of the Netherlands had already ruled in February 2008 that employers are obliged to take out proper insurance against damage that employees might sustain as a result of a traffic accident in which they were driving a motorised vehicle in the course of their job. In this context a motorised vehicle is regarded as a risk object, which places the employer under a special obligation to take out proper insurance. The idea behind this judgment is that an employer has hardly any control over what happens when an employee participates in traffic, and accordingly, liability on the grounds of Article 7:658 of the Dutch Civil Code can seldom be invoked for accidents that occur on the road.

In the judgment of December 2008 on Maatzorg/van der Graaf, the Supreme Court extended the employer’s liability from (i) employees who become the victim of a traffic accident when driving a motorised vehicle to include (ii) employees who sustain damage as cyclists or pedestrians as a result of an accident involving a motorised vehicle or (iii) employees who sustain damage as cyclists as a result of a one-sided cycling accident. Any employer who fails to take out proper insurance will be liable for any damage that an employee sustains as the result of a traffic accident.

TNT and Rooyse Wissel

In two judgments on 11 November 2011 the Supreme Court again considered the extent of the employer’s insurance obligation with regard to employees who suffer traffic accidents. The first judgment of 11 November 2011 (TNT Post) centred on the question whether employers should also be obliged under Article 7:611 of the Dutch Civil Code to take out insurance against one-sided pedestrian accidents. The case concerned a postman who had slipped and fallen when delivering the mail.

In the second judgment the Supreme Court rendered on 11 November 2011, the central question was whether the insurance obligation for traffic accidents similarly applies to accidents on the workfloor. This case concerned a sociotherapist who had suffered injury after being assaulted by a patient in a forensic psychiatric clinic.

In neither of these judgments was the Supreme Court prepared to extend the employer’s insurance obligation for accidents suffered by employees any further than had been accepted in earlier cases. In the TNT case the Supreme Court confirmed that the previously decided insurance obligation applied only to damage sustained by employees in the traffic accident categories referred to above in (i), (ii) and (iii) and therefore not to one-sided pedestrian accidents.

In the case of the sociotherapist the Supreme Court decided that the accident did not fall under the employer’s liability as understood by Article 7:611 of the Dutch Civil Code.

Commuting

Damage sustained by an employee while travelling between home and work falls, in principle, into the ‘private’ category, and the employer will not be held liable for any damage. There is, however, one exception: if the traffic can be equated with the traffic that the employee encounters as a result of the obligations in his employment contract and within the context of his job description, the employer can still be held liable on the grounds of good employment practices. Again, the employer is not liable in the event of intent or wilful recklessness on the part of the employee.

Practical support

The above judgments of 2008 and 2011 are of great importance in practice because they set clear boundaries for the insurance obligation under Article 7:611 of the Dutch Civil Code. Basically, the insurance obligation applies only to traffic accidents in which an employee becomes involved in the course of his work, with the exception of a one-sided pedestrian accident. In special cases the insurance obligation can also apply to employees who suffer an accident while commuting. In view of the farreaching liability of employers regarding employees who are the victims of traffic accidents, it is important that employers check out whether they have this kind of insurance cover. According to the Supreme Court, employers can opt for an alternative by providing employees with the financial means to take out ‘proper insurance’ for themselves, provided the conditions are clearly understood by both parties.