In our previous newsletter we discussed the liability of employers for injury suffered by an employee during a staff event. In this edition, we address the liability of an employer in the event that an employee is involved in a road traffic accident. In doing so we will discuss, among other things, a number of recent Supreme Court judgments.
An examination of case law in this area shows that employers are often held liable for injury to an employee resulting from a traffic accident, in any event where the accident occurs during work travel. In the case of injury suffered during travel between the employee's home and workplace, the employer will only be held liable under certain circumstances, namely where the journey itself was undertaken as part of the performance by the employee of his/her work. A well-known example is that of the ambulance staff member who takes an ambulance home in connection with an overnight standby shift and, in the morning, is involved in an accident when driving the ambulance back to the employer's premises at the end of the shift. In determining whether the employer is liable, it is irrelevant whether the employee was using a motorised or non-motorised vehicle, or even travelling on foot, at the time of the accident.
In recent case law it has been established that the employer has a duty to ensure "appropriate insurance" for employees who could be involved in a traffic accident in the course of the performance of their work. The question as to what constitutes appropriate insurance must be determined on a case-by-case basis, taking into account all the relevant circumstances. One factor that plays a role in this regard is prevailing social opinion as to which forms of damage should be insured. Also of relevance is whether the risk in question can be insured at reasonable cost (the premium costs). The insurance need not cover intentional conduct or wilful recklessness on the part of the employee.
Lastly, the employer must also take into account employees who use their own cars in the performance of their work. The employer can fulfil his obligation to act as a "good employer" by financially putting such employees in a position to take out appropriate insurance.
Statutory framework: Articles 7:658 and 7:611 Dutch Civil Code
The liability of employers in respect of traffic accidents is based on Articles 7:658 and 7:611 of the Dutch Civil Code ("DCC"). From Art. 7:658 DCC it follows that an employer can in principle be held liable for injury suffered by an employee in the course of the performance of his/her work. The purpose of this rule is not to provide an absolute guarantee for the protection of employees against the danger of work-related accidents, but to impose a duty of care on the employer. In the case of injury suffered as the result of a traffic accident, it can be disputed whether such injury was suffered in the course of the performance by the employee of his/her work and whether the employer has failed to fulfil his/its duty of care, given that the employer, in most cases, does not have any control over what happens on public roads. The situation will be otherwise if, for example, the employer has provided the employee with a defective vehicle, or has caused the employee to travel in a risky place or at a risky time where this was avoidable. For the above reasons, Art. 7:658 DCC is of limited significance in the case of traffic accidents. In practice, it appears that employees who rely on Article 7:611 DCC (which requires the employer and employee to act as, respectively, a "good employer" and a "good employee") have been more successful in their claims.
We will begin by addressing accidents that occur during work travel. "Work travel" can be described as travel undertaken by the employee in the course of the performance of his/her work. Although the Supreme Court has on several occasions ruled that the employer is not always liable and, where liable, does not always have unlimited liability in respect of injury suffered by an employee during work travel, it can be concluded that employers are often ordered to compensate the employee to a large extent. The first judgment discussed below shows that failure to wear a safety belt does not necessarily constitute wilful recklessness on the part of the employee. The second judgment shows that even where personal accident and/or passenger insurance has been taken out, the employer can be ordered to compensate the employee for all or part of the remaining damage.
Personal injury due to failure to use a safety belt
In a case decided by the Supreme Court on 1 February 2008, an employee had to give presentations at the offices of different businesses as part of his work. While driving his own car to one such business the employee was involved in a traffic accident, as a result of which he suffered a whiplash trauma. He was not wearing a safety belt at the time. In its judgment, the Supreme Court first stated that Article 7:611 DCC (the duty to act as a "good employer"/"good employee") does not give rise to unlimited liability on the part of the employer for injury suffered by the employee. Therefore, an employer cannot be held liable for all of the damage (or remaining damage). The employer is required to ensure that there is appropriate insurance for employees who, in the course of performing their work, could be involved in a traffic accident. The insurance need not cover intentional conduct or wilful recklessness on the part of the employee, however. The Supreme Court ruled that, in this case, the fact that the employee consciously chose not to wear a safety belt did not constitute wilful recklessness. For wilful recklessness to exist, the relevant conduct must be sufficiently dangerous that, in conjunction with a considerable chance that the danger would materialise, the employee should have desisted from that conduct.
Taxi driver hit by train
Also on 1 February 2008, the Supreme Court ruled on an accident involving an employee working as a taxi driver. During the performance of his work, the employee was hit by a train while driving a taxi across an unguarded railway crossing, as a result of which he suffered serious injuries. His employment contract was governed by the taxi transport collective labour agreement. Pursuant to this agreement, employers were required to take out accident insurance for their employees, which the employer had done in this case. In addition, the employer had taken out passenger insurance for its employees. However, the injury suffered by the employee was only partly covered by the relevant insurance policies. Based on, among other things, this circumstance, the Supreme Court ruled that although the employer was in compliance with the collective labour agreement, this did not automatically mean that the insurance was appropriate.
Travel between home & work
A different situation arises if the employee suffers injury as a result of a traffic accident during travel from home to his/her workplace, or vice versa. In principle such travel falls in the private sphere, and consequently the employer is not considered liable for any injury that occurs. However, there is an exception to this rule: if the journey in question can be equated with travel undertaken pursuant to the employee's obligations under his/her employment contract and in the course of the performance of his/her work, the employer can nevertheless be held liable in connection with his duty to act as a "good employer". Here too, an employer cannot be held liable if there has been intentional conduct or wilful recklessness on the part of the employee. The following case is an example of an employer's liability in respect of travel between home and work.
Accident while driving an ambulance
In a case decided by the Supreme Court on 19 December 2008, an ambulance staff member was involved in a traffic accident while driving an ambulance owned by the employer. At the time the accident occurred, the employee was authorised to have the ambulance as he was on standby duty, meaning that he had to be reachable at all times and had to take the ambulance to the site of an emergency as soon as possible if he received a call. In order to expedite his response to such calls, the employee had taken the ambulance home with him after finishing his usual work. This would save time if he was called out, as he would not first have to go to the employer's garage to pick up the ambulance. The employer had given its permission for this. The next morning, the employee was involved in a traffic accident while driving the ambulance from his home to his workplace (i.e. not in response to a call). In other words, the accident occurred during normal travel from home to the workplace. The Supreme Court ruled that this situation should nevertheless be considered as travel undertaken pursuant to the employee's obligations under his employment contract and in the course of the performance of his work. The employer could therefore be held liable for the injury suffered by the employee. The court reached this conclusion based on the fact that the employee had been on standby duty and therefore had to be reachable at all times. Also of relevance was the fact that the employee had legitimately been using the ambulance and that, by taking the ambulance home with him, he had avoided a loss of time in the event of an emergency. According to the Supreme Court, it did not detract from the above that, at the time the accident occurred, the employee was travelling from home to his workplace to begin his usual work as a warehouse manager, and not in response to an emergency call.
Motorised and non-motorised vehicles
The Supreme Court has on several occasions rendered judgments on the liability of an employer regarding injury suffered by an employee as a result of an accident while driving a motorised vehicle. On 12 December 2008, the court for the first time ruled that, for the purposes of an employer's liability, it did not matter whether the employee was travelling by car, by bicycle or on foot. Pursuant to the duty to act as a "good employer", an employer is required to take out insurance also in respect of injury suffered by the employee during travel using a non-motorised vehicle. However, in its judgment the Supreme Court did not express an opinion on what constitutes appropriate insurance in such a situation. The case in which the judgment was rendered was as follows.
Fall with bicycle due to slippery road
As a home care helper, the employee was required to visit the homes of the relevant individuals. While cycling from the home of one such individual to that of another, she sustained a fall due to slipperiness on the road. She was not insured against the injury she suffered as a result of this accident. The Supreme Court ruled that the employer was liable because it was under a duty, pursuant to Article 7:611 DCC, to act as a "good employer" and was consequently required to take out appropriate insurance for its employees. The court ruled that it makes no difference in this regard whether an employee is driving a car or riding a bicycle. The obligation to ensure appropriate insurance also applies in the event that an employee is, for example, injured in a traffic accident involving a vehicle while travelling on foot. The Supreme Court pointed out that it was perfectly feasible to take out insurance, at affordable premiums, against injury suffered by employees travelling by bicycle or on foot in the performance of their work. For this reason, the employer is required to insure such risks.
If you have any questions based on this article, please do not hesitate to contact us. We will of course inform you of any new developments in the relevant case law.