Liability for a Workplace Accident: These Are Your Rights as an Employee
A fall from a ladder, entrapment by a machine, or slipping on a slippery floor: workplace accidents occur daily on the Dutch work floor. The consequences can be enormous, ranging from a few days of absence due to illness to permanent injury. If you sustain an injury during the course of your work, the question quickly arises: who is liable? In this article we explain clearly when your employer is liable for an occupational accident, which damages you can claim and how you safeguard your rights as an employee.
The statutory duty of care of the employer
Dutch legislation imposes a far-reaching responsibility on employers for the safety of their employees. This duty of care is laid down in article 7:658 Dutch Civil Code (BW), which stipulates that the employer is obliged "de lokalen, werktuigen en gereedschappen waarin of waarmee hij de arbeid doet verrichten, op zodanige wijze in te richten en te onderhouden alsmede voor het verrichten van de arbeid zodanige maatregelen te treffen en aanwijzingen te verstrekken als redelijkerwijs nodig is" to protect employees against damage.
This duty of care is broad and strict. It concerns not only the physical work environment, but also:
- Safe machines and tools
- Adequate instructions and training
- Protective clothing and safety equipment
- Warnings for dangerous situations
- Supervision of Compliance with Safety Regulations
- Prevention of Overload and Work Pressure
Important to know: the employer must not only take measures, but these must also be reasonably sufficient. The court subsequently assesses whether the employer has done enough to prevent the accident.
When is the employer liable?
In the event of a workplace accident, a heavy burden of proof rests on the employer. As an employee, you do not have to prove that your employer has acted wrongfully. Instead, the employer must demonstrate that he has fulfilled his duty of care. This is also known as the "reversed burden of proof".
The employer is liable when:
- There is a shortcoming in the duty of care- The employer has not taken all reasonable measures to prevent the accident
- The accident occurs during the performance of the work activities.- It is not necessary for the employee to be on the employer's premises; the duty of care also applies during work-related activities elsewhere.
- There exists a causal link / causation- The injury must be a direct consequence of the breach
The employer can only avoid liability by proving that he has fully fulfilled his duty of care, or that there was intent or willful recklessness on your part. The latter constitutes a high threshold and rarely occurs.
Practical Examples of Employer Liability
Arslan & Arslan Advocaten regularly assists employees who have sustained personal injury as a result of workplace accidents. Common situations in which the employer is held liable:
- Fall IncidentsNo or insufficient fall protection during work at height, slippery or unsafe floors without warning
- Machine AccidentDefective maintenance, missing or defective safeguards, no adequate instruction
- Lifting accidentsNo lifting aids available, insufficient training in lifting techniques
- Traffic AccidentsUse of unsafe company vehicles, driving under time pressure without sufficient rest periods
- Burn-out and OverstrainStructural Overload Without Employer Intervention
What damages can you claim as an employee?
If you have sustained personal injury as a result of a workplace accident for which your employer is liable, you are entitled to compensation for various heads of damage. The total damages consist of material and immaterial damage.
Material damage
Material damage comprises all financial losses that you suffer as a result of the accident:
Medical costsAll medical expenses not covered by your health insurance, such as the deductible, physiotherapy exceeding the reimbursement limit, medical aids, adapted clothing and travel costs to healthcare providers.
Loss of incomeIf, as a result of the accident, you are (temporarily) unable to work, you are entitled to compensation for loss of income. Furthermore, if after the accident you are able to work less or must accept a lower-paid position, this difference qualifies for compensation.
Household helpIf, as a result of your injury, you are no longer able to manage your household yourself, you may claim the costs of domestic assistance, or, where family members or friends provide help, compensation for their time.
Travel expensesAll additional travel expenses incurred as a result of the accident, such as increased taxi use or accompaniment during transport.
Other costsConsider reimbursement of study costs if retraining is required, costs for adapted housing or a car, or costs of guidance in connection with labour reintegration.
Non-pecuniary damage: damages for pain and suffering (smartengeld)
In addition to the financial damage, you are entitled to damages for pain and suffering (smartengeld). This is a sum of money as compensation for the mental and physical suffering you have experienced. The amount of the damages for pain and suffering (smartengeld) depends on:
- The severity and nature of the injury
- The duration of the recovery
- Permanent complaints or invalidity
- Impact on Your Daily Life and Future
- Psychological consequences such as anxiety, depression or PTSD
There are no fixed tables for damages for pain and suffering (smartengeld), but previous case law provides indications. In the case of a whiplash injury without permanent complaints, this can amount to several thousand euros, whereas in the case of permanent serious injury, amounts can rise to tens of thousands or even hundreds of thousands of euros.
The Role of the Labour Inspectorate and Other Parties
In the event of a serious workplace accident, the Arbeidsinspectie may conduct an investigation. Their report may constitute valuable evidence in a liability procedure. The inspectorate assesses whether the employer has complied with the Arbeidsomstandighedenwet and may impose fines.
Additionally, the company doctor often plays a role in establishing the medical consequences and guiding your reintegration. Proper documentation of your complaints and limitations by the company doctor strengthens your claim for damages.
Can you as an employee be personally liable?
This question occupies many employees, especially after an accident in which their own mistakes may have played a role. The answer is reassuring: article 7:661 Dutch Civil Code (BW) protects employees against liability for damage that they cause to the employer or third parties in the performance of their work. As an employee, you are only liable if there is intent or conscious recklessness.
Intentmeans that you intend to cause damage with premeditation (met voorbedachten rade).Conscious recklessnessis more than a mistake or clumsiness; it concerns situations in which one consciously takes a considerable and irresponsible risk, while also consciously accepting the chance of damage.
Examples where you may indeed be liable:
- You intentionally drive into a company vehicle.
- You deliberately disregard repeated safety warnings and operate a machine in a hazardous manner.
- You are stealing company assets
Examples where you are not liable:
- A mishap whereby you damage a valuable machine
- An error during your work as a result of which a client suffers damage
- Failure to comply with a safety regulation
This protection also applies if your conduct has contributed to your own injury. As long as there is no intent or deliberate recklessness, your employer shall in principle remain liable, even if, for example, you have forgotten to wear your safety goggles.
Step-by-Step Plan After a Workplace Accident
If you are involved in a work accident, these are the steps you must take:
1. Report the accident immediately
Report the accident immediately to your supervisor and ensure that it is officially recorded in the accident register. This is important evidence.
2. Seek medical assistance
Have your injury medically assessed and treated immediately. Always request a medical report or statement.
3. Document everything
Take photographs of the accident location, the equipment involved and your injuries. Collect names of witnesses. Keep all receipts and invoices of costs.
4. Keep a personal injury diary
Record daily your complaints, limitations and consequences for your daily life. This helps later in substantiating your damages for pain and suffering (smartengeld).
5. Seek legal assistance
In the event of personal injury resulting from a workplace accident, professional legal assistance is essential. Arslan & Arslan Advocaten can assist you in gathering evidence, substantiating your claim and conducting negotiations with the employer or its insurer.
6. Notify the employer in writing
Send a letter in which you hold the employer liable for the accident and the damage. Ask whether he is insured and with which insurer.
7. Do not commence reintegration prematurely
Be cautious about returning to work too soon. This may harm your recovery and your claim for damages. Always consult your treating physician first.
Insurance Aspects and the UWV
Many employers have a liability insurance (AVB) that covers damage from workplace accidents. The insurer then acts on behalf of the employer in the handling of your claim. Be alert: insurers have an interest in paying out as little as possible.
Additionally, you may receive a WIA benefit from the UWV if you become long-term incapacitated for work. This benefit is separate from your damages claim against the employer, but will be offset against your loss of earnings. A specialized personal injury lawyer ensures that this offset takes place correctly and that you do not lose any rights.
Limitation and timing
A claim for damages must be filed within five years after the accident, otherwise your claim will become time-barred. Nevertheless, it is advisable not to wait too long:
- Evidence can disappear or be diluted
- Witnesses may relocate or forget details.
- The employer can no longer inform its liability insurer
- Your financial problems can accumulate.
Therefore, start as soon as possible with documenting your damages and holding your employer liable.
The Added Value of Legal Assistance
In cases of personal injury resulting from a workplace accident, a great deal is at stake. Employers and their insurers employ experienced claims handlers who will critically evaluate your claim and frequently attempt to minimise it. Without legal assistance, you run the risk of:
- Insufficient damages
- Missed Heads of Damage
- Acceptance of a Final Proposal While Your Future Remains Uncertain
- Incorrect Set-Off with Social Security Benefits
- Limitation of your claim
Arslan & Arslan Advocaten has extensive experience with personal injury resulting from workplace accidents. We ensure the correct determination of all heads of damage, negotiate on your behalf with the employer and their insurer, and litigate if necessary. We often work on a no cure no pay basis, so you do not run any financial risk.
Conclusion: Protect your rights after a workplace accident
A workplace accident can drastically change your life. Fortunately, Dutch legislation offers employees strong protection. The employer bears an extensive duty of care and is liable for all damage you suffer in the event of a breach. As an employee, you can rarely be held liable yourself, unless there is intent or deliberate recklessness.
Have you sustained an injury as a result of a workplace accident? Then do not delay in taking action. Document everything carefully, hold your employer liable in a timely manner and engage professional legal assistance to safeguard your rights.
Questions about your situation?Contact Arslan & Arslan Advocaten by telephone on 070 4500 300 or visit https://letselschadeblog.nl for a no-obligation consultation about your options. We are happy to think along with you.
