Work accidents: prevention is better than compensation. By Paola Gobbi and Marilena Cartabia In a recent ruling, dated October 8, 2018, the Court of Cassation has stated again on a matter of utmost importance, the occupational accident regulation and, in particular, the employer’s safety requirements. The case was filed by a newly hired employee, injured during her first day of work: indeed, her forearm, stuck in a machine, was seriously injured due to a malfunctioning of the emergency shutdown system. The employee then filed a case claiming (non-economic) damages, but all her claims were rejected on the grounds that she did not prove her employer’s failure in fulfilling its safety obligations. However, such decision was “overturned” by the Court of Cassation (ruling no. 24741/2018), which remarked that the lower courts’ judgments were not in line with the principles regulating injury liability for workplace damages. The Court affirmed that the employer’s primary obligation is to adopt every protective measure necessary to safeguard employees’ integrity and to prevent injuries, according to the characteristics of the job activity and to the state of the art. Furthermore, the employer shall verify and monitor that the employees use the provided safety device, know how to perform their job activities and know the relevant security measures. Lastly, the employer has an obligation to inform and train the employees on the job activities’ risk, especially when they are professionally inexpert (as apprentices or young employees). As regards to the burden of proof, the Court of Cassation stated that the injured employee shall demonstrate that the injury occurred during the working activity and that the damage was due to the employer’s violation of its safety obligations. On the other hand, the employer, to avoid to be held liable in Court, shall prove both the fulfillment of its safety obligations and the employee’s abnormal behavior (so-called elective-risk). In short, proving the employee’s negligence, inattention or incompetence in performing his job is not enough to exclude the employer’s liability for the employee’s injuries, since, in all these cases, the employer still has a monitoring obligation: therefore, the employer shall prove that the employee’s behavior was so unpredictable to exceed the assigned directives. Employers should bear in mind the importance of fulfilling their safety obligations, which might allow them to reject the employees’ claims in future lawsuit. In short… Better not gambling with workers’ health, mostly when the safety in the workplace is at stake.
