The Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Saint Eustatius and Saba recently found that insufficient safety precautions were taken to prevent a fall of a teacher at school.
The question is whether the employer complied with its obligation to take measures reasonably necessary to prevent an employee from suffering harm. The answer to the question of what measures the employer must take depends on the circumstances of the case, including the nature of the work, the likelihood that an accident will occur, the severity that the consequences of an accident may have and the degree of objectionability of the safety measures to be taken.
A teacher had fallen down in the schoolyard before the start of class, when she wanted to go to the school leader’s room to discuss something with him (hereinafter: the accident). Many children were already present at that time partly because of the test to be taken on that day. At the time of the accident, lessons were not yet in progress; the children from all four adjacent classes (an estimated 80 children, according to the teacher) were still outside with their bags where they had gathered on and in front of the ‘pavement’ on which the four classrooms are located. Standing against the wall was a student who approached the teacher to ask her something about the test. Just before the little threshold near a wall, the bag (on wheels) of the pupil in question was lying on the ground, and in walking, the teacher got her foot caught in the loop of that bag and fell down, when she tried to free her foot from that loop or handle. In doing so, she lost her balance and first tilted backwards slightly before landing face-first against a wall.
The presence on the ground in the schoolyard of (a certain quantity of) bags, with loops and handles attached to them – irrespective of whether pupils are sitting by those bags or are playing further away – is, in the Court’s opinion and contrary to the employer’s argument, not a home, garden and kitchen situation. The presence of a significant amount of bags on the schoolyard ground creates a potentially dangerous situation that could lead to damage with far-reaching consequences. The employer had argued that it is the rule at the school that children keep their bags with them before school and/or stay with their bags. When asked, the employer stated that this rule is not in writing; nor has it been shown that the employer has given clear instructions to teachers to ensure that this rule is observed. But even if that were the case, in the Court of Appeal’s view this is not sufficient in the circumstances to prevent the danger of falling. After all, it is a fact of common knowledge that children of this age (7 to 10) will not always be inclined to abide by such a rule and so, in the absence of other measures, there will always be some bags on the ground. That the employer took other measures or provided instructions to prevent the teacher from falling over the bags has not been argued by her even on appeal.
In the Court’s opinion, the employer could have taken measures in a simple way to prevent this particular danger as much as reasonably possible, for example by placing shelves/cabinets against the walls next to the classrooms or attaching hooks in which or from which pupils could put or hang their bags. In the first instance, the teacher also argued this, referring to a photograph taken at another school falling under the employer, showing hooks on a wall with school bags attached. The employer did not dispute any of this, arguing only that it entails an investment, when it is common knowledge that education is underfunded. By not taking measures, while the employer has not argued sufficiently to assume that this was not possible, the employer has failed to fulfil its duty of care under section 7:658(1) of the Civil Code of Aruba. It is thus liable for the damage suffered and to be suffered by the teacher as a result of the accident.
There was no evidence of intent or deliberate recklessness on the part of the teacher in this case. The mere fact that the teacher was wearing flip-flops is insufficient for that conclusion. There is no room for a ‘own fault’ defense in these proceedings. After all, since the damage is suffered within an employment relationship and it is the employer who, in the first instance, determines the working conditions, the fairness referred to in article 6:101(1) of the Civil Code demands that any fault on the part of the employee that does not consist of intent or deliberate recklessness be borne by the employer (ECLI:NL:HR:2001:AD3985).
Source: ECLI:NL:OGHACMB:2024:288
Photo:Alex Moliski on Unsplash
Recent Comments