You have been in an accident on the way to work, what are your rights? Example: A teacher was riding on a public bicycle path on her way to work before school. She fell and broke her ankle joint. She holds her employer liable for the damage she suffers. This is a classic example of an accident while commuting.
Is your employer liable for an accident that happened on the way home from work?
First of all, it must be determined whether it concerns commuter traffic or work-work traffic.
What is work-work traffic?
That is when you have to go somewhere for work, for example, you are driving from the office to a meeting that takes place elsewhere.
What is commuter traffic?
That is when you are on your way to work from home.
Accident during work-work traffic
The employer is almost always liable for this. Here, the transportation is considered an integral part of the work duties. For example, if the employee is in traffic during working hours in the performance of their work. The examples below involve work-work traffic:
- The employee runs an errand at the local supermarket on behalf of his employer.
- The employee is a representative and drives across the country in his car.
- The employee takes the mail to the post office by bicycle
Employer must act as a ‘good employer’
In the above situations, the employer must, under Art. 7:611 of the Dutch Civil Code, act as a good employer and take out proper (SVI) insurance for these employees. If the employer fails to do this and the employee has an accident en route, he almost always has to compensate for the damage suffered by the employee.
Performance of the work
What can be included in the performance of the work is defined quite broadly. This follows from a judgment of March 18, 2005 (LJN: AR6669). This concerned a pilot who had a waiting period between the outward and return journey to Ivory Coast. During this waiting period, he got into a traffic accident in a taxi that left him incapacitated for work. The Supreme Court ruled that KLM was liable for the accident. According to the Supreme Court, the waiting time between flights must be regarded as a period that is related to the work performed by the pilot. Here, it was not important that the pilot could spend his ‘free’ time completely independently. In the above case, the pilot could fully claim his damage from his employer.
Accident during commuter traffic
This concerns traffic accidents while traveling to and from the workplace. As in the above-mentioned example of the teacher who has an accident on her way to her workplace. Liability for commuter traffic is more difficult to determine than liability for work-work traffic.
However, there are exceptions to this main rule:
- When colleagues carpool together and the driver causes an accident. In that case, the passengers can recover their damage from the driver’s liability insurance and the driver would then be left with his own damage. The judge did not find this reasonable.
- Another exception is when you still have to deliver something for the company during your commute. This might include taking mail to the post office or delivering a file to a client.
Equating with work
The Supreme Court decided on December 19, 2008 (LJN: BG7775) that in principle the employer is not liable towards the employee (under Art. 7:658 of the Dutch Civil Code: employer’s liability) for damage caused by an accident during commuter traffic because this is in the private sphere. He is also not liable under Art. 7:611 of the Dutch Civil Code (good employership). In this case, however, the employer could be held liable because the use of the ambulance for commuting to and from work, in this case, can be equated with the performance of the work assigned to the employee.
In short, there must always be a special circumstance whereby commuter traffic can be equated with the performance of the work. In the example mentioned in the first paragraph of this article, the employer cannot be held liable for the teacher’s damage.
If you are not sure whether you qualify for damage compensation, please contact us for advice. This advice is free and without any obligation. Fill in the contact form for free and non-binding personal injury advice.
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