Worker falls two metres into culvert during mowing operation

Kantonrechter te Gouda dated 8 November 2014.

Facts
In this case, an employee held his employer liable for a accident that happened to him while performing his work. The employer is engaged in the construction and maintenance of green spaces and provides infrastructure for recreational projects. The employee holds the position of cultural technical worker: he is engaged in pruning, cutting and mowing all kinds of green spaces.

In the autumn of 2008, the employee was working in the Rotterdam port area, where he had to use a brush cutter to clear a number of ditches and their culverts of overgrowth to make them visible so that mowers and tractors could continue cutting. While the employee spent a long time looking for a culvert that he could not find, he suddenly fell through the reeds. With brushcutter and all, he fell into a two-metre-deep culvert and landed hard on a concrete edge. As a result of his fall, the employee sustained serious injuries to his left ankle. There was splintered cartilage and loose bone in the ankle.

In the execution of the work?
The employer disputes that the employee allegedly fell while working. For example, according to it, the accident had not been reported, the employee would not have had a wet suit, he would have driven himself home, and the brushcutter and hearing protection would not have been broken.

The subdistrict court did not go along with the employer's story, and held that the employee had sufficiently proved that the injury happened during work. To this end, the subdistrict court ruled as follows:

• a colleague stated that the employee had sustained a wet suit on the day in question;
• the employee had gone home to change his clothes when he would not have had to do so if he had not had a wet suit;
• According to the subdistrict court, the fact that the employee did not report the accident does not mean that the accident did not occur;
• the employee sought hospital treatment for the ankle injury on the evening of the accident day;
• the employee stated at the hospital that he had fallen into a pit that afternoon;
• the severity of the injury makes it plausible that the employee fell on the concrete edge of the culvert;

the so-called "Declaration of Injury" form that the employee submitted to the employer shows that the employer accepted the employee's declaration, until the moment the employer was held liable.

Breach of duty of care
The subdistrict court then ruled that the employer had not fulfilled its duty of care for the employee's safety. The employer failed to prove that it gave the employee the (regularly repeated) instruction that in case of doubt about the location of a culvert, for example, he should stop working and contact had to contact his foreman or manager. All in all, it leads to the conclusion that the employer is liable for the accident and for the resulting damages.

Tip: The division of the burden of proposition and proof in this type of case, is decisive. Secure expert assistance in good time. This case was handled by ArbeidsletselAdvocaten.