An employee with a municipal technical administration emptying dustbins in a pedestrian street drove around in an electric vehicle. In connection with the usual emptying, the employee placed the vehicle apparently without activating the handbrake or the other safety systems in the vehicle.
The video surveillance at the scene established that the employee, who was standing outside the vehicle, reached into the vehicle presumably to move a box with plastic bags and this apparently resulted in the speeder being activated, putting the vehicle in motion hitting a pedestrian, who died.
During the investigation of the matter, it was established that the vehicle had certain defects, including a seat switch. The investigation also established that the vehicle could not run by itself, but the speeder had to be activated, and that the hand break or the other safety system had not been activated.
The prosecution service filed charges against the employee claiming violation of the Road Traffic Act, including, in particular, the provision on the driver's obligation to ensure that a vehicle when parked cannot be put into motion (section 28 of the Road Traffic Act) and claiming involuntary manslaughter.
The municipality was charged with violation of the Road Traffic Act in relation to the vehicle's defects and of the Working Environment Act in relation to the employee's conduct and was charged with involuntary manslaughter.
THE LEGAL FRAMEWORK
Section 27 of the Criminal Code contains authority to hold an employer, including a legal person such as a municipality, liable under the Criminal Code for an employee's violation of special legislation, e.g. the Working Environment Act, the Road Traffic Act ,etc.
Case law has developed a relatively strict standard for criminal liability with the result that the company's liability in relation to violation of special legislation is relatively strict.
Section 306 was included in the Criminal Code later on and was going to be a parallel provision according to which an employer, including a municipality, could be convicted of violation of the Criminal Code in case of en employee's negligent conduct or the employer's own conduct.
It is important to note that it is provided directly from the legislative history behind both section 27 of the Criminal Code (on the employer's liability for violation of special legislation) and section 306 of the Criminal Code (on the employer's liability for an employee's violation of the Criminal Code) that the employer's liability is not to apply in general if the employee violates specific standards of conduct (e.g. in the Road Traffic Act), aimed only at the employee.
In this case, the municipality submitted that the standard of conduct violated by the employee and resulting in the involuntary manslaughter was a standard of conduct aimed only at the employee (the driver), and the municipality could therefore not be subject to criminal liability in relation to the charge of involuntary manslaughter.
THE RULINGS OF THE DISTRICT COURT AND THE HIGH COURT
Both the district court and the high court convicted the employee for violation of the Road Traffic Act and involuntary manslaughter, whereas the municipality was acquitted of involuntary manslaughter by both instances, but convicted of violation of the Road Traffic Act and the Working Environment Act after the municipality's own guilty plea.
The Eastern High Court convicted the employee and acquitted the municipality on the following grounds:
"Also according to the evidence produced before the High Court, the [employee] is convicted of violation of section 3(1) of the Road Traffic Act, cf. section 28(4) first sentence and section 67(3) (offence 1) on the grounds stated by the District Court ... It is further taken into account that he left the vehicle without turning off the engine. ... Notwithstanding the fact that the evidence has proved inappropriate control, maintenance and service of the [municipality's] electrical vehicles at the time resulting in gross defects in the vehicles, including defects in the seat switch of the car in question, and insufficient training, instruction and follow-up vis-á-vis the employees' use of the vehicles in a safe manner, [a majority] finds that, in the present circumstances where the cause of the accident has been determined, as is the case here, there is no basis for claiming criminal liability vis-à-vis the [municipality] under section 3(1) of the Road Traffic Act and section 28(4), first sentence and section 241 of the Criminal Code."
With the ruling, the High Court thus maintains the exception to the employer's criminal liability under the Criminal Code as provided in the legislative history behind the code.
The ruling is in line with at least two other examples in case law, including a legal action concerning violation of the water supply legislation and the legal action concerning Præstø Efterskole. Both legal proceedings concerned the possibility of holding the employer liable for violation of the Criminal Code. In both legal proceedings, one or more employees did not only violate a specific standard relating to the employees' own conduct, but also general standards of conduct irrespective of the fact that the courts chose not to rule on violation of the Criminal Code in relation to the employer's liability.
It is therefore presumably correct to sum up case law stating that the courts are reluctant to rule on violation of the Criminal Code in relation to the employer's liability as the traditional distinction between serious criminal violation compared to the more regulatory violation of special legislation implies that the courts require fulfilment of quite special conditions in order for an employer to be held liable for violation of the Criminal Code as a consequence of an employee's conduct.