Judgment in occupational injury case

On 25 February 2021, the Court in Viborg acquitted an employer of liability for a rollover accident with a forestry machine.

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Judgment in occupational injury case

On 25 February 2021, the Court in Viborg acquitted an employer of liability for a rollover accident with a forestry machine. The anonymized verdict (in Danish) can be viewed here.

The employee in question was engaged in driving a so-called wood chip driver, which is an off-road forestry machine that belongs to a wood chipper.

In connection with the removal of a load of wood chips, the machine overturned on a forest road. The employee was not wearing a seat belt and was thrown out of the machine and trapped under it.

The accident was serious, but the employee was released from the machine and first aid was provided. The police and the Danish Working Environment Authority subsequently investigated the accident. It was not possible to find an explanation for why the machine was overturned.

It was stated in the instructions for use of the wood chip driver that a seat belt should be used in connection with the drive. The Danish Working Environment Authority therefore issued an order to the employer that he should instruct the employees on the use of seat belts. Previously, no such instruction had been given.

The employee brought an action against the employer, claiming that he had not received the necessary training and instruction in operating the machine in question. He further argued that the employer should have instructed him to wear a seat belt.

During the presentation of evidence, it emerged that the employee at the time of the accident was 57 years old and had a driving license for all vehicles, except for motorcycles with sidecars.

For a period, he had been self-employed and used various construction machines, including backhoes and front loaders.

Further, it emerged that it was the employee's son, who was employed by the company, who had requested to have his father as a colleague. In this connection, the employer had left the training to the son and to two additional colleagues who had previously driven the wood chip driver in question. In addition, the employer had conducted ongoing inspections and felt comfortable with the way the employee operated the machine.

The accident happened after the employee had been employed for approx. two months. The employee himself could not remember anything from the accident, nor had any of the interrogated witnesses any idea of the cause of the accident.

The court acquitted the employer on the grounds that the cause of the accident had not been clarified. When no cause for the accident had been found, it was not possible to establish a basis for liability, which is why the employer had to be acquitted.

Kennedys’ comments:

The case contained several points of dispute, including the question of the initial instruction and training, the instruction regarding the use of a seat belt, tort law relevant own fault and the calculation of the claim for compensation. However, the acquittal already took place on the evidence of the circumstances surrounding the accident.

The judgment emphasizes that all parts of the general conditions of compensation must be met. It is the injured party who bears the burden of proof for the facts surrounding the accident, and if these circumstances cannot be proved, no liability can be established. Although in this case there was a serious accident, there was no relief of evidence, which is otherwise often asserted by the injured parties.

It is worth noting that the court did not allow itself to be influenced by the order issued by the Danish Working Environment Authority regarding the use of seat belts. The court notes that the lack of use of the seat belt only had an effect on the extent of the accident, and did not have an effect on the cause of the accident. The order could therefore not support the employee's view of a basis for liability.

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

The case was brought before the court on behalf of the employer by Associate Thomas Arleth.