ZZP-er suffers serious accident while working. Client liable for personal injury

Supreme Court 23 March 2012.

The ZZP-er had been engaged by Allspan B.V., a company engaged in processing residual wood. The ZZP-er was performing repairs on wood processing machines. While performing his duties, he climbed on a machine and fell into the machine. He stood on a part of the machine that was not suitable for this purpose, probably because a warning was not easily visible due to the dusty environment. The consequences for the self-employed worker were dire: his leg above the knee was amputated. He had not insured himself for disability.

The ZZP-er holds his client liable under employers' liability pursuant to section 7:658(4) of the Civil Code. The premise of this section is that the employer can be held liable not only for his own employees, but under certain conditions also for persons performing work that can be equated to that of his own employees. The classic example is the temporary worker.

The question the Supreme Court had to answer in the present case was whether the duty of care an employer has to observe towards his (hired) employees also applies to the legal relationship between client and ZZP-er. According to the Supreme Court, important factors in this respect include the actual (i.e. not legal) (authority) relationship between the parties, the nature of the work performed, as well as the extent to which the client has influence over the ZZP-er's working conditions and the related safety risks. The less own control the ZZP-er has over his work and working conditions, the more the ZZP-er resembles his client's 'ordinary' employee, the sooner Section 7:658 (4) of the Dutch Civil Code will apply. Thus, the Supreme Court here concluded that the ZZP-er was on a par with an ordinary employee of Allspan.

The Supreme Court further ruled that application of Section 7:658(4) of the Civil Code also requires that the work took place "in the exercise of the profession or business" of the person on whose instructions the work was performed. Strictly speaking, the activities of this ZZP-er - repairs to the wood processing machine - were not part of the client's "core business", but the Supreme Court ruled that the term "core business" should not be interpreted too narrowly. This is also the case if, given the way in which the client wishes to carry out its business, the work is actually part of its operations. Therefore, the 'core business' here also includes repairs to the wood processing machine.

The Supreme Court concluded that statutory employer liability also applied to this ZZP-er in this case. With this ruling, the Supreme Court broadens the possibilities of employer liability for ZZP-ers. This does not mean that every client can be held liable for damages suffered by a ZZP-er. The extension introduced by the Supreme Court mainly concerns ZZP-ers who work more or less like an ordinary employee, for example, a ZZP-er who works for one client for a long time and who also performs the same kind of work as employees within the client itself.

Tip: Employer liability for a ZZP-er has become real as a result of this judgment. A client would do well to observe the same duty of care towards ZZP-ers as towards its own employees. In this context, it is important to note that the Working Conditions Decree will also apply to ZZP-ers as of 1 July 2012.