Judgment in occupational matter

On 8 February 2021, the court in Herning acquitted a slaughterhouse of liability in connection with a shoulder injury that an employee sustained while handling an anaesthetized pig.

BS-54856/2019-HER, J vs. S A/S

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Judgment of 8 February 2021

On 8 February 2021, the court in Herning acquitted a slaughterhouse of liability in connection with a shoulder injury that an employee sustained while handling an anaesthetized pig. See the anonymized judgment here.

The employee in question was engaged with suspension of pigs, anaesthetized with carbon dioxide. In connection with this, the pig made a so-called reflex kick, whereby the employee received a pull in the arm and an injury in the shoulder. The suspension took place before the pig was stuck and bled, which is why the pig was alive at the time, but anaesthetized.

The employee filed a claim against the slaughterhouse, claiming that the procedure for anaesthetizing the pig in question was not proper. It was an organic pig/free-range pig, and it was the view that such a pig was more dangerous to handle than conventional pigs. In addition, it was the view that the anesthesia procedure for that type of pig was not proper.

It is common knowledge that anesthetized pigs can make reflex kicks. The slaughterhouse had therefore entered into a dialogue with the employees, and had tried to readjust the process. In connection to this, more frequent filter changes had been introduced at the anesthetic system, just as attempts had been made to increase the amount of carbon dioxide. However, none of these measures had worked.

The court acquitted the slaughterhouse and noted that no technical inspection of the anesthesia system had been carried out, which is why it was assumed that the system was in legal and sound condition.

It was further assumed that the slaughterhouse's own safety and control measures had been complied with. The court noted that the change in the procedure for changing filters had had no documentable effect on the number of reflex kicks and the number of occupational injuries. The court further noted that there was no scientific evidence that organic/free-range pigs behaved differently from conventional pigs.

Since the employee was specially trained to carry out the killing of pigs, and had extensive experience in this, the court did not find that the slaughterhouse had acted in a way that incurred liability. In connection to this, it was emphasized that there was no documentation that the filter had not been changed as needed, just as the employees themselves had the opportunity to regulate the speed of the gondola that drove the pigs into the grave with carbon dioxide.

Kennedys remarks

There are few judgments on occupational injuries in connection with the handling of animals, including FED 2010.124, where the employer was imposed liability, and FED 2006.159, where the employer was acquitted.

The judgments are an expression of a concrete assessment, where it is recognized that it can be dangerous to work with animals, but that an employer also for this reason cannot instruct himself out of all situations. In the present case, it was an anaesthetized pig who performed a reflex kick, which was a known reaction. Once the employer had ensured that the handling was proper and that the employee was well-trained, there was no basis for liability in connection with the accident. Nor even if there had been similar accidents in the past.

It could not lead to a basis of liability that the employer had entered into a dialogue with the employees in order to remedy the problem. In this, there was no acknowledgment of this being a work environment problem that could and should have been solved at an earlier stage. The employer thus has a right to try to remedy problems in the production without this necessarily leading to a liability. This also applies to the procedure around filter change. When there was no documentable effect of the filter change, the change of procedure could not lead to a basis for liability either.

It is not yet known whether the case will be appealed.

The matter was preceded on behalf of the slaughterhouse by Thomas Arleth, Associate, Kennedys Law.