TWO NEW RULINGS ON EMPLOYER LIABILITY - ROUTINE WORK - EXPERIENCED EMPLOYEES
TWO RECENT RULINGS ILLUSTRATE THAT THERE ARE LIMITS TO HOW FAR EMPLOYER LIABILITY EXTENDS, EVEN IF A TASK HAS NOT BEEN PERFORMED OPTIMALLY AND EVEN IF THE INJURY COULD HAVE BEEN AVOIDED. THIS IS ESPECIALLY TRUE IN CASES WHERE THE WORK-RELATED INJURY OCCURS IN CONNECTION WITH ROUTINE WORK AND/OR WORK PERFORMED BY EXPERIENCED EMPLOYEES.
These are specific cases, but it's worth noting the following:
In both judgments, the court explicitly refers to the fact that these were experienced employees and that the injury occurred in connection with the performance of work that the injured party had extensive experience with and which was routine work for him.
In accordance with published case law, these are thus essential factors when assessing whether an employer1 can be held liable for damages.
Both rulings also clearly illustrate that the injured party has the burden of proving that negligent errors have been committed in connection with the performance of the work task - either by an employer or an employee for whom the employer is liable - and this burden of proof is just as heavy in a work injury case of this nature as in any other compensation case. Clearly, there has been no evidentiary relief in either case.
It should also be noted that in one of the judgments, the court expressly emphasizes - as one of several factors - that the accident, which was reported to the Danish Working Environment Authority, did not give rise to any kind of reaction from the Authority.
Both cases can also be taken as an expression of the fact that even if the work in isolation contains some obvious hazards, this is not decisive when the employees in question have knowledge and experience of how to perform the work safely, and where the work is considered routine work for a person with the relevant skills.
Finally, the two judgments can be taken as an indication that there is considerable leeway in tort law for accidental injuries for which no one can be held liable.
Of course, I will be happy to answer any questions you may have about the judgments.