Employer's Liability for Traffic Accidents
A discussion of Supreme Court 12 December 2008, LJN:
BD3129
Employer's Liability for Traffic Accidents Pursuant to
Dutch Law
Pursuant to Section 7:658 of the Dutch Civil Code
("BW") the employer is obliged to ensure the safety of
the working environment of the employee and the employer must
organize the work in such a manner that the employee is protected
against work-related safety risks. According to the Supreme Court,
this duty of care is closely connected to the control the employer
has over the place of work. Because work-related traffic accidents
usually occur outside the working area and therefore fall outside
the range of control of the employer, it is seldom assumed with
respect to these accidents that the employer has violated his duty
of care pursuant to Section 7:658 of the BW. However, in such
situations the concept of 'good employment practice'
proceeding from Section 7:611 of the BW may give space to assume
liability of the employer after all. This actually occurred in the
present case.
The Facts in the Judgment
An employee engaged in home care travels to the various
home-care addresses by bicycle. In January 2003, when cycling from
one address to the other, she took a fall due to a slippery public
road, as a result of which she suffered a serious tibia fracture.
The employee was not insured for this kind of damage and claimed
damages from the employer. The Subdistrict Court and the Court of
Appeal awarded the claims. The Court of Appeal considered in this
respect that, although the cycling took place within the
performance of the work, this did not fall within the field of
authority of the employer and therefore was not governed by Section
7:658 of the BW. Nevertheless, according to the Court of Appeal, as
a good employer the employer should have in this case taken
adequate measures with regard to traffic accidents of his employees
or should have warned the employees explicitly that such a measure
did not exist and that they were deemed to take their own measures.
The Court of Appeal concluded that the employer had failed to do
so. Eventually, the employer lodged an appeal in cassation against
the appellate court's judgment.
The Ruling of the
Supreme Court on the Employer's Liability for Traffic Accidents
Already in February 2008 the Supreme Court rendered two
judgments with respect to the employers' obligation to insure
its employees with regard to possible traffic accidents experienced
in the course of work as a result of driving a motorized vehicle
(Supreme Court 1 February 2008, JAR 2008/56 and
JAR 2008/57). In these judgments the Supreme Court ruled
that, based on good employment practices, the employer has the duty
to ensure that these employees are properly insured. According to
the Supreme Court, the risks to which the employee is exposed in
traffic as a driver of a motorized vehicle can be easily insured
against affordable premiums. What a proper insurance
precisely amounts to, depends on the situation, particularly on the
insurance possibilities existing at that time - in which regard it
is also important whether the insurance can be obtained against a
premium the payment of which can reasonably be required - and the
prevailing social opinions regarding the question what amount of
damage such a proper insurance should provide coverage for. In any
case, the insurance taken out does not have to provide coverage for
damage which is the result of wilful intent or deliberate
recklessness on the part of the employee, according to the Supreme
Court.
The present case concerns an employee who has suffered damage
due to a bicycle accident. The Supreme Court ruled in this respect
that there is no justification for making a distinction between
employees who participate in traffic with a motorized vehicle and
employees who participate in traffic with a different vehicle, such
as a bicycle, or by foot. After all, the risk of damage as a
consequence of a traffic accident also applies to cyclists and
pedestrians. As a result, on the basis of good employment practices
an employer is obligated to ensure a proper insurance for employees
who, in relation to their work, participate in traffic as cyclists
or pedestrians. Likewise, these risks can be easily insured against
affordable premiums. With respect to the question what a proper
insurance precisely amounts to, the Supreme Court once again does
not provide a more detailed specification but refers to the
above-mentioned judgments issued 1 February 2008.
Tips
- It is clear from this judgment that in the framework of
good employment practices, the employer has the duty to ensure
a proper insurance for both employees who, in relation to their
work, participate in motorized traffic as employees who in this
regard participate in traffic by bicycle or on foot.
- What a 'proper insurance' precisely amounts to
within this framework depends on the situation at hand and the
insurance possibilities existing at the time involved. It does
appear from the Supreme Court's ruling of 1 February 2008
that the mere fact that an insurance meets the requirements set
by an applicable collective bargaining agreement does not
suffice to conclude that the requirement of a proper insurance
has been met.
- If the employee uses his own transport, the above-mentioned
obligation of care can be met by financially enabling the
employee to take out a proper insurance, provided that the
existence of this agreement is sufficiently clear to both
parties. It is therefore recommended to properly set out such
an agreement in an employment agreement.