Civil servant personal injury and government (municipality) liability

Supreme Court 30 October 2009

The Supreme Court recently handed down an important judgment, concerning a civil servant (mechanic/welder) who was in temporary service with the Cleaning and Harbour Service of the municipality of Utrecht. In 2000, during a work break, he was sitting in a room designated for that purpose for staff with a colleague. While the official was slumped on a chair, his colleague stood behind him and grabbed him from behind, applying a handhold. The chair on which the official was sitting was then tipped backwards, causing the chair to stand on two legs for some time, leaving the official's full weight on his neck hanging in his colleague's arms. The official went to hospital, and he subsequently called in sick. He remained unfit for work until the end of his temporary appointment. The official held both his colleague and the municipality liable for the damages he suffered. The municipality rejected this liability, whereupon the official sued the municipality in civil court.

The Utrecht District Court ruled that the municipality was liable for this action by its subordinate under Section 6:170 of the Civil Code. To this end, the court considered that the connection between the assigned work and the faulty conduct required by law for this employer's liability must be interpreted broadly. In this case, the court considered relevant:

• that the seizure took place within the municipality's 'working atmosphere', namely during a break in an area set up by the municipality for that purpose;
• that, in the view of the colleague in question and the municipality, the grab took place in the work situation because, according to them, there was collegial frolicking;
• that there is a certain connection between the working atmosphere and the reason why the colleague applied a hold, since it is established that, at the time he applied the hold, the colleague said, "If dad says you're staying put, do so too" and "Do you have another boss or something" by which he was referring to a privileged position to be occupied by him vis-à-vis the official given his seniority;
• that the hold was applied in a working environment in which a collegial romp was considered normal.

The municipality appealed. The Amsterdam Court of Appeal held that the legally required link between the error and the assigned work could not be assumed. According to the court, it cannot be said that the colleague was ordered to perform a particular task that objectively - i.e. according to statistical rules of experience - increased the likelihood of the colleague's error, so the municipality is not liable.

Against this, the civil servant filed an appeal in cassation. According to the Supreme Court, in applying Section 6:170 of the Civil Code, the court of appeal wrongly limited itself to the question of whether the likelihood of the mistake was increased by an order to the employee to perform a "certain task". When determining the connection between fault and work, all relevant circumstances must be examined, and the court should therefore have assessed whether the other circumstances mentioned by the court, meant that there was an increased likelihood of the fault made by him as an employee of the municipality due to the performance of his task. The Supreme Court referred the case back to the Hague Court of Appeal for reassessment.

Tip: The Supreme Court widens the employer's strict liability for mistakes made by his subordinate. The employer is therefore all the more well advised to keep a hand on 'wrong' behaviour of staff towards each other in the workplace.