MORR™ : An International Comparisons Review
Holland
Waterman (2002) comments on the current legal position of employers’ duty to manage road safety noting that,
“The Dutch law does not have any specific regulation concerning the liability of the employer for occupational road accidents as, until quite recently, it was commonly assumed that occupational road accidents did not come within the scope of the employers' liability (as the employer has no effective power to control the safety of the public road nor to instruct the traffic thereon). The same applies to road accidents which occur on the route to and from work. In the same vein, it was held that the liability of the employer was restricted to the traditional workplace and that it did not extend beyond his property or at the most, his sphere of influence. Particularly this last argument has come under heavy fire in the last two decades and as a result the boundaries of what may be considered to be 'the workplace' have widened considerably.”
An occupational road accident will not normally be considered to be caused by any fault of the employer and therefore not lead to liability on his part. The injured employee’s only recourse is through driver insurance if possible.
In 1997 the Dutch government proposed an extensive new law, 'Wet Verkeersongevallen', translates as the Traffic Accident Law, which was aimed at improving the chances of vulnerable road users recovering damages. Almost as an afterthought, it also included the introduction of risk liability of the employer for motorised employees who suffer occupational road accidents, which was referred to as art. 7:658a BW. This introduction was partly motivated by the argument that the employee is in a difficult position, as he cannot (in practice) claim damages from his employer and his employer is not legally obliged to take out insurance for him, while it is in practice difficult for the employee to insure himself against road accidents as a driver of a vehicle he does not own. Even if the employer pays for the most extensive insurance available ('Schade Inzittenden Verzekering' or SIV), it will only benefit passengers but not the driver, even though the driver/employee may be just as badly injured - or even worse - than his companions
Unfortunately the entire law proposal received so much criticism that is was rapidly withdrawn. The government announced its intention to come up with a revised version of the law, but it is a common feeling that this will take a long time. Professor Hartlief, an expert in liability law, pointed out that the introduction of a risk liability for employees on the public road, though welcome in its own right, was an unfair advantage in respect to the employees in the traditional workplace, who are subject only to fault liability. Also he drew attention to the unfair discrepancy this would create, namely that the law only envisioned the protection of motorised employees, but neglected that of other employees, e.g. those who travel by bicycle or on foot.
The proposal of the Wet Verkeersongevallen, even though it has been withdrawn, has had a rousing effect on Dutch lawyers, regarding future considerations on occupational road accidents. In the landmark case of Van der Hoeven v. Vonk Montage BV: the employer had provided transport by van for Mr Van der Hoeven and three colleagues, who were all to take the duty of chauffeur in turns. On the 23rd August 1995, after a long and physically tiring day of work, Van der Hoeven drove the van back to the premises of their employer from Amsterdam to Didam. For reasons unknown, the car crashed into the side-rail. The court finally ruled that the employer should pay damages to the defendant on the grounds that it was unfair to compensate the passengers and not the individual who happened to be driving at the time, rather than award damages on the grounds that the employee had become the victim of a risk that was incidental to his employment. Two developments from this are firstly the realisation that the legal position of workers who risk occupational road accidents leaves a lot to be desired and secondly, that the verdict of this legal case will open a floodgate of claims. This may prompt the government into some new action as well as help to define any view that the government may take on the matter. Waterman predicts that the introduction of a risk liability for occupational road accidents within the next ten years seems more likely than not and is certainly desirable.
|
RoSPA is a registered charity: Registered Charity No: 207823 Patron: Her Majesty the Queen RoSPA Head Office: Edgbaston Park, 353 Bristol Road, Edgbaston, Birmingham B5 7ST, UK |
 |