The Court of Appeal in Arnhem-Leeuwarden had to render a decision in a case whereby an employee sank through a plaster ceiling.
The employee argued that no reasonable instructions that were required form a safety point of view were given by the employer.
The Court of Appeal found that the employer had not claimed that it verbally instructed the carpenters to secure themselves if they were to work from above (overhands or from the plaster ceiling), while this securing was also necessary from a safety perspective in the vision of the employer. The employer only argued that with respect to the securing, no verbal instruction was necessary because the meeting reports that have been brought into the proceedings show that the employee had been instructed before how to work at heights, namely with the use of a harness and shackling.
In the opinion of the Court of Appeal, however, this general instruction during the meetings is insufficient. The answer to the question as to which instructions the employer must give depends on the circumstances of the case, including the nature of the work, the chance that an accident will occur, the severity of the consequences of an accident and the degree of objectionability of the safety measures to be taken. Depending on these circumstances, the employer is not only obliged to give instructions geared to the hazards but must also ensure that they are observed. In doing so, the employer must take into account the fact that employees sometimes fail to exercise the caution that is advisable to prevent accidents.
In this case, there was a serious risk of a three-meter fall, with a high risk of serious injury as a result. Because the risk of a fall when working from the concrete edge or from the plaster ceiling (even if it had been underpinned) was considerable, the possible consequences of a fall were very great, these risks were known to the employer, and it should also have been aware that the carpenters would not go and get a harness of their own accord and strap themselves in, the employer should have given a verbal instruction to do so. This would not have been at all objectionable to her because the chief engineer was talking to the carpenters anyway about filling this particular opening. This verbal instruction was all the more appropriate because this was the only opening that could not (completely) be filled using a rolling scaffold. In addition, an instruction tailored to the situation concerning the use of a safety harness was all the more necessary in this case because, as the employee has undisputedly stated before the Laboure Inspectorate and as argued in the initiating petition, there was no possibility to attach the safety harness on site. By relying on general instructions from a meeting about working safely at heights, the employer did not provide the instructions as reasonably necessary to prevent the employee from suffering damage in the performance of his work.
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