A lot of people are injured at work each year. Below, we will focus on the employer’s liability for industrial injuries.
Firstly, there are seven important rules to remember in relation to industrial injuries and assessment of liability:
An industrial injury is either an injury caused by an accident or an illness/medical condition caused by the work or the conditions under which the work has been carried out (industrial disease).
The employer must report an industrial injury to the Labour market fund for occupational diseases (AES), and if the injury is recognised by AES as a recoverable industrial injury under the Industrial Injury Insurance Act, the injured employee will receive payment for a number of insurance items under the Industrial Injury Insurance Act - irrespective of whether the employer is responsible for the accident or the industrial disease.
There are great differences between the insurance items covered under the Industrial Injury Insurance Act and the items which the injured employee may claim from a liable employer and which are therefore covered under the Liability in Damages Act.
The difference between claims for damages under the Industrial Injury Insurance Act and claims for damages under the Liability in Damages Act is called a differential claim. A differential claim cannot be raised by the injured employee until it has been decided which damages the employee will receive under the Industrial Injury Insurance Act.
There is no connection or sign of equation between an industrial injury recognised by the Labour market fund for occupational diseases and the employer’s liability for the claims which an injured employee may calculate under the Liability in Damages Act. There is therefore no automatics between a recognised industrial injury and the fact that the employer is liable in damages for differential claims.
An employer is liable in damages for an industrial injury only if it can be proved that the employer has acted in an actionable manner vis-á-vis the injured employee, and that the injured employee has suffered an injury which is linked as a causal connection with the accident or the work situation which the injured employee has been exposed to for a period.
Due to the requirement for authority, a public employer - as opposed to a private employer - may not pay damages to an injured employee based on ex gratia views. A specific assessment has to be made, and liability in damages may be recognised only in the situation where it is assessed that there is a reasonable basis for the employer to be liable in damages.
Physical industrial injuries - assessment of liability
It is a myth (or misunderstanding) that strict liability in damages applies to an employer if the employee is injured due to the physical working environment.
A review of more than 30 years' case law shows that the employer’s liability will only be subject to a more strict assessment by the courts if the industrial injury has taken place due to the performance of dangerous work - work which is in itself generally considered dangerous (e.g. with a dangerous machine) or if accidents have happened or almost happened while performing the work.
A decisive question is whether the employer or the employee for which the employer is liable has departed from a recognised or usual pattern of behaviour due to his/her actions or omissions and this has caused the industrial injury. If so, the employer is presumably liable in damages.
The question whether an action or omission has resulted in the employer or employee having acted in an actionable manner depends first of all on whether the rules or guidelines concerning the performance of the work or the workplace’s fitting up etc. have been specifically violated.
Particularly important factors
All other types of physical industrial injuries must be assessed based on a number of factors which are often described as decisive factors:
- The injured employee’s education - if he/she has special training (e.g. employee-to-employee training or apprenticeship) to perform the work, it takes more to become liable compared to an injured employee who has not had any special training.
- The injured employee’s experience/age - if he/she has long experience performing the work, and if he/she is not quite young, it takes more to become liable. Complicated/uncomplicated work process - if the work process is complicated, it is more likely that liability will be incurred compared to an uncomplicated work process.
- Usual or unusual work process - if the injury has occurred during a work process which the employee often performs, it is less in likely that liability will be incurred than if the injury has occurred while performing usual work.
- Expected/unexpected problems arising when performing the work - if something expected happens while performing the work, it is less likely that liability will be incurred than if what causes the industrial injury is an unexpected problem.
If an industrial injury is recognised by the Labour market fund for occupational diseases, the industrial injury may trigger a number of requirements under the Industrial Injury Insurance Act, of which some may be covered by the Liability in Damages Act. That cover will be relevant only if there is a differential claim, or if the industrial injury is not recognised by the Labour market fund for occupational diseases as the statutory insurance system is the primary system, and you have to apply to this system first.
Assessment of liability
When assessing whether an employer has provided sufficient instruction, carried out the required supervision, has planned and arranged the work appropriately, these particularly important factors may be used as a check list to assess whether the public employer has acted in an actionable manner in connection with the industrial injury.
If this assessment results in liability not being recognised, the injured employee’s differential claim must be rejected. If the assessment shows that liability in damages may be recognised, it must be assessed whether the claims for damages made have causal connection with the injury, including whether it is due to other pre-existing sufferings that the claim for damages has been calculated as done. When making this assessment, a public employer must also make a specific assessment as to whether the claims for damages have been calculated correctly.