Mechanic road accident victim due to own fault: (also) hiring employer liable in the absence of adequate insurance

Supreme Court 9 July 2010

Van der Hoeven, an employee employed by Vonk Montage B.V., was lent to Licotec B.V. to perform assembly work on the Amsterdam Arena. The employee, together with three employees, drove daily from the place of business of the hiring employer Licotec to Amsterdam in a van provided by Licotec. As driver of the van, the employee's own steering error caused him to skid and overturn, as a result of which he suffered back injuries. The personal injury of the employee - unlike the personal injury of his three colleagues - was not covered by the van's WAM insurance. The employee sued both his own 'formal' employer and the hiring 'material' employer for compensation for his damages. In the case against his employer Vonk, this led to the Supreme Court's so-called Arena judgment of 12 January 2001: on the basis of good employment practice, the Supreme Court ruled that the employer for these uninsured damages liable. Based on this ruling, employers have been forced in recent years to take out adequate indemnity passenger insurance for staff who use a car in traffic for work purposes.

In these proceedings against the hirer Licotec, the employee based his claim on the fact that the hirer as 'material employer' (also) failed to fulfil its duty of care. It allowed the employee to drive the van after a long working day, during which the maximum working hours had been exceeded, and exposed him to the risks of traffic. According to the employee, the hirer should have taken out appropriate indemnity insurance for employees who engage in motorised traffic for their job. The court agreed and upheld the claim and ordered the hirer to pay 50% of the damages. The court upheld the verdict and the Supreme Court upheld this judgment in its July 9 judgment.

This appears to be the first ruling in which the Supreme Court also names a duty of insurance as a duty of care for the hiring employer, in case of non-compliance of which this hirer is liable for damages incurred by the employee during his work in traffic.

Tip (in addition to last time's Injury News): when an employee is injured in traffic, always also check whether the hiring employer has taken out proper insurance. Work injury: so really a profession in its own right!