Ruling dated 30 June 2022 from the District Court of Odense

For dansk venligst ændre sprog øverst til venstre i den grønne boks. 

Ruling dated 30 June 2022 from the District Court of Odense.

The case concerned an accident that took place in 2014. The plaintiff was employed in a construction company, where he amongst other things drove an excavator. He and his colleague worked by an excavation, which suddenly collapsed. The colleague was in the excavation when this happened, and the colleague therefore got buried in dirt up to his face.

The plaintiff was located in the excavator, when the excavation collapsed, and the plaintiff did not see the accident take place. He discovered what had happened, when he turned the excavator around facing the excavation. After this, the plaintiff hurried to help his colleague, and the plaintiff dug his colleague free from the dirt and called for help. Subsequently, the plaintiff developed psychological symptoms corresponding to PTSD and claimed compensation for this. The employer’s insurance company acknowledged the plaintiff’s colleague’s claim for compensation and paid him full compensation.

The plaintiff’s claim was dismissed on the basis that the plaintiff was not included in the group of people that could be entitled to compensation. Hereafter, the plaintiff issued a writ against the employer. The pre-trial stage ended with the main proceeding concerning the basis of liability.

During the testimonies, it came out that the plaintiff had been employed in the construction company for only four days, when the accident took place. The plaintiff testified that he saw the accident happen and that he immediately started helping his colleague while he called 112. Afterwards, he had help from another colleague. The injured colleague testified that the accident crushed his pelvis and afterwards led to chronic pain. Today, he was revalidated and had another job. The other colleague testified that the accident had been brought to his attention when the plaintiff had alarmed him by using the horn of the excavator. He then helped the plaintiff dig out the injured colleague and call 112. During this course of action, the injured colleague appeared conscious and calm.

The plaintiff claimed that the Danish Working Environment Authority had voiced criticism following the accident and that the employer had incurred liability. Referring to UfR 2014.2374H, the plaintiff claimed that the requirements for being included in the group of people entitled to compensation were met. The Supreme Court ruling of 19 August 2021 (UfR 2021.4845H) could not change this.

The employer retained, as defendant, that the plaintiff was not included in the group of people entitled to compensation. This followed from both legal literature and case law, most recently from the Supreme Court ruling of 19 August 2021 (UfR 2021.4845H).

The District Court of Odense dismissed the plaintiff’s claim and acquitted the employer.

Firstly, the Court ruled that the employer had acted actionable. Secondly, the Court noted that it could not take the view that the plaintiff saw the accident take place, as this did not align with the plaintiff’s explanation made in the work injury case. Hereafter, the Court took the view that the plaintiff did not see his colleague until he turned around in the excavator, and at this point in time the colleague was already buried in dirt up to his nose. Furthermore, the Court took the view that the plaintiff quickly was help by another colleague, and therefore the plaintiff was not alone with the entire responsibility for the rescue of the injured colleague.

Following this, the Court concluded that the plaintiff was not in danger himself or involved in the accident. Furthermore, the Court concluded that the plaintiff was not closely related to the injured colleague. In spite of the sequence of events, the severeness of the accident and the consequences for the plaintiff, there was no basis for derogating from the fundamental basis that only the directly injured person could be entitled to compensation.

The anonymised ruling can be read here.

Kennedy’s Comments

Firstly, it shall be noted that the Court in its reasoning took the view that the causal connection was not disputed. This is not correct, and a mistake that probably had sneaked in from the reasoning in UfR 2021.4845H. Additionally, it should be noted that the judgment in UfR 2021.4845H had not been delivered yet, when the writ in this case was issued.

The ruling illustrates that case law concerning who is entitled to compensation is hard and clear. If you are not directly injured, you are not entitled to compensation unless you are closely related to the injured or in danger when the accident occurred. Furthermore, the other compensation conditions must be fulfilled.
It is not known if the ruling will be appealed.

The employer was represented by Trainee Solicitor Karoline Ulnits to whom additional questions may be forwarded.