Occupational injuries: Employer liability is not automatic

The Court of Cassation, with its ordinance no. 10404 of 1 June 2020, in line with a consolidated orientation, expressed the principle based on which Inial’s recognition of an occupational injury or disease does not automatically lead to the employer’s liability for the damages suffered by the employee.

Facts of the case

An employer of a transport company sued in order to obtain compensation for personal injury caused by a pathology (afantrite) he had, contracted – according to him – due to the employer’s breach of the safety obligation established by art. 2087 of the Civil Code.

The territorially competent Appeal Court, in confirming the first instance ruling rejecting the presented appeal, underlined that the worker had omitted to provide proof of the alleged breach while the defendant company had proven “to have complied in time with all of the legal requirements related to occupational safety”.

The worker appealed to the Court of Cassation relying on two motives that the company challenged with a counterclaim.

The Supreme Court of Cassation’s decision

In formulating its decision, the Court of Cassation first noted that (i) the entrepreneur’s liability for failure to adopt suitable measures to protect the physical integrity of the employee is based on specific laws, and if they are not available, on the general provisions as per art. 2087 of the Civil Code. These provisions constitute the final regulations of the accident prevention system that can be extended to situations and cases not yet expressly considered and assessed by the law at the time it was created.

However, according to the Cassation judges, this does not amount to liability every time an occupational disease is diagnosed in a worker. In the presence of such circumstances, the worker has the onus of proving the fact that constitutes the employer’s breach and the material causal nexus between the breach and injury.

In the case in hand, according to the Court of Cassation, the worker did not provide proof of the employer’s alleged breach and, actually, his employer company demonstrated to have complied with all of the legal obligations regarding safety.

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The Court of Cassation’s decision in question is in line with the recent circulars 13 and 22 issued by INAIL on 3 April 2020 and 20 May respectively related to equating Covid-19 contagion with cases of occupational injuries.

But there is more. The decision is also consistent with the regulations as per art. 29 bis by Law no. 40 of 5 June 2020 converting the Liquidity Decree, concerning employer obligations for protection against contagion from Covid-19.

The article states that, in order to protect against the risk of Covid-19 contagion, employers shall comply with the obligation as per art. 2087 of the Civil Code through (i) application of the provisions contained in the joint protocol which regulates measures to combat and contain the spread of Covid-19 in the workplace, signed on 24 April 2020 by the Government and social partners as subsequently amended and supplemented, and in other protocols and guidelines referred to in art. 1, paragraph 14, of Decree Law no. 33 of 16 May 2020, and also by (ii) adopting and maintaining in force the measures provided for therein.

If the aforementioned provisions do not apply, according to the above legislation, the relevant measures will be those contained in the sector protocols or agreements entered into by the trade unions and employers’ organisations that are comparatively more representative at national level.

Other related insights:

• The members of the Board of Directors are always liable in the event of an accident, unless there a formal deed of proxy which cannot be substituted by de facto proxy
• New guidelines of the European Agency for Safety and Health at Work to face the covid-19 emergency in the workplace