Exclusion of entrepreneurial liability

Exclusion of contractor liability

– Accident at work

Accident at work, § 104 para. 1 sentence 1 SGB VII, exclusion of employer’s liability, double intent, employers’ liability insurance association

In a ruling dated August 25, 2015, the Cologne Labour Court – case no. 12 Ca 9961 / 14 – had to decide on the question of whether gross negligence or intent was present with regard to compliance with occupational health and safety regulations in relation to an injury suffered by an employee during the performance of his work (occupational accident).

The claim was dismissed on the grounds that the plaintiff was unable to prove that the defendant entrepreneur had acted with intent in accepting an accident at work and that the damage had occurred.

Facts of the case

The parties are in dispute as to whether the defendants are obliged to pay the plaintiff damages and compensation for pain and suffering in respect of the injuries he suffered as a result of an accident at work in early 2011.

The plaintiff is an artist. He maintains a studio with an apartment on the farm operated by the defendant. Among other things, he produces sculptures from wood and owns protective equipment. The defendant runs an agricultural business on the farm with one permanent employee and occasional temporary workers. The two defendants process wood in the form of a GbR called E. u. H.. The GbR itself does not employ any workers. At times when there is no agricultural work to be done, the employees of the agricultural business carry out wood splitting work for the defendants (GbR).

In January 2011, the defendant offered to employ the plaintiff as a temporary worker on the farm on the basis of a mini-job and registered him with the relevant statutory accident insurance. The plaintiff had already carried out the wood splitting work described below for several consecutive days before the accident occurred.

Log splitting work is carried out as follows: An employee places a log on the log splitting machine using a gripper arm. The task of another employee is then to switch on the hydraulic ram on the log splitting machine by means of a remote control operated by him, so that wood is pushed through the hydraulic ram in the direction of the log splitter. The hydraulic ram presses the log against the fixed splitting knife. If a log does not run straight towards the splitter, the other employee must press against the side of the log using an iron bar to correct the log’s course.

On the day of the accident, an accident occurred while the plaintiff was working in the yard area on the wood splitting machine available there, in which the plaintiff’s left arm was caught in the hydraulic wood splitter. The wood splitting machine was equipped with a remote control that set it in motion. The remote control had a so-called dead man’s switch, i.e. the movement was stopped immediately as soon as the button on the remote control was released. The control buttons for forward and backward stamps were not marked; there was no protection against unintentional operation. This remote control, which was in the plaintiff’s possession at the time of the accident, was supplied with the log splitter when it was purchased.

His left hand was severed in the accident and was reattached after several surgical interventions. The plaintiff was hospitalized for several months and continues to receive medical treatment; for details, please refer to the content of the statement of claim. He continues to suffer from constant pain in his left hand and has had psychological problems since the accident. The plaintiff was recognized as a severely disabled person with a degree of 80. He receives a monthly pension of EUR 837.51 from the employers’ liability insurance association.

The district government issued a statement on the accident. It was determined that the defendant had fulfilled the basic obligations of a small company in accordance with § 3 para. 1 and 2 ArbSchG; the last company audit took place at the beginning of 2011. The risk assessment in accordance with §§ 5, 6 ArbSchG was also carried out. According to the statement of the defendant and his permanent employee, the instruction according to § 12 para. 1 ArbSvhG had also taken place. However, the radio control in general and the defective hand-held transmitter in particular did not comply with the minimum requirements for work equipment pursuant to § 4 BetrSichV. In summary, the main cause of the accident was a defective machine. The district government also noted that the plaintiff’s arm was initially only slightly trapped. He had inadvertently pressed the button for forward movement when attempting to retract the plunger.

After the accident, the wood-processing business was retroactively registered with the agricultural employers “liability insurance association as a secondary business. At the end of 2012, the agricultural employers” liability insurance association recognized the accident as an occupational accident within the meaning of § 8 SGB VII. § Section 8 SGB VII; this decision is final.

The plaintiff claims that the accident was caused intentionally by the defendants, as they had at least accepted his injury. Among other things, the splitting device was not properly secured, the work area was unsafe and too narrow at the time of the accident, protective clothing was not provided and his emergency medical treatment was not satisfactory. He had stumbled while trying to duck in front of a tree trunk swung by the witness B. using a crane, and his left arm had been caught in the splitting machine. As he was unable to free himself, he used a remote control to move the ram back on the sledge so that he could free his jammed arm, while the severed hand fell to the ground. The liability privilege did not apply because the GbR was not registered with the employers’ liability insurance association; moreover, the provision was unconstitutional. The GbR’s equipment had never been inspected by the BG because the defendant had shied away from the costs. He had not taken care of him after the accident, but had only tried to influence his testimony.

The plaintiff has filed the following motions:

The defendants are ordered to pay the plaintiff reasonable damages for pain and suffering to be determined by the court, together with interest at a rate of 5 percentage points above the base rate of interest from the pendency of the action,
It is established that the defendant must also compensate the plaintiff for the future non-material damages incurred by him.
The defendants are ordered to pay the plaintiff loss of earnings damages of € 20,985.50 for 2011 plus interest of 5 percentage points above the base interest rate since the pendency of the action.
It is established that the defendants must also compensate the plaintiff for the loss of earnings incurred by him for the period from 01.01.2012.

The defendants have requested that the action be dismissed. The defendant relies on the descriptions of the witness B., which also underlie the findings of the employers’ liability insurance association and the investigations of the criminal prosecution authorities, according to which the plaintiff, in violation of the work instructions, must obviously have tried to place the tree trunk in the middle in front of the blade with his hands without an iron bar and in doing so moved his hand into the danger zone himself, whereby his left hand got caught between the log splitter and the piece of wood. He then – according to his own statement – continued to move the machine himself using the remote control, although his hand was already partially trapped. The plaintiff had been instructed in the work processes; in any case, there had been strict instructions not to reach into the machine with his hands. The device had been purchased with radio control. The course of the accident described by the plaintiff was technically impossible, as the machine could only have started up if the plaintiff had controlled it with the radio control. First aid had been provided; an attempt to manipulate the plaintiff’s statement was denied.

Please refer to the exchanged written submissions together with the annexes and the content of the minutes of the hearing for further details.

Reasons for the decision

The complaint is unfounded.

I. The defendants are not liable to the plaintiff for damages for pain and suffering pursuant to §§ 823, 847 BGB or for compensation for damages pursuant to $$ 823, 253 GB, as their obligation to pay compensation is excluded pursuant to § 104 para. 1 sentence 1 SGB VII.

According to § 104 Para. 1 SGB VII, employers are only obliged to compensate accident insured persons working for their company for personal injury if they have caused the insured event intentionally or in a manner insured under § 8 Para. 2 No. 1- 4 SGB VII. The standard refers to all grounds for liability under civil law, including strict liability, e.g. in accordance with the provisions of the Road Traffic Act (see BAG, 19.08.2004 – 8 AZR 349/03 -, Juris).
a.The accident was suffered by the claimant during an insured activity. It was an occupational accident that was recognized by the accident insurance institution at the end of 2012 (§8 SGB VII).
b.The exclusion of liability only does not apply in the event of the employer intentionally causing the accident at work (§ 104 SGB VII). In any case, the defendant had an obligation under the employment contract resulting from § 618 para. 1 BGB to regulate the service to be performed by the plaintiff under his instructions in such a way that the plaintiff was protected against risks to life and health to the extent permitted by the nature of the service (see BAG 28.04.2011 – 8 AZR 769/09, Juris). However, there are no justified indications for the plaintiff’s assumption that the defendants accepted the accident and the personal injury.

aa. Even after the entry into force of §§ 104 ff. SGB VII, the limitation of liability of the company only ceases to apply due to intent if the injuring party intended the accident at work or approved of it in the event that it occurred. According to this, it is not sufficient for the exclusion of liability to be waived that a certain action that caused the accident was intentional and approved if the accident itself was not intentional and not approved. Intent in this sense is the knowledge and intention of the unlawful outcome. The person acting must foresee the outcome and have included it in their will. The prerequisite for the existence of intent, in contrast to conscious negligence, is that it is not only necessary to see the possible outcome or that the person concerned is indifferent as to whether such an outcome occurs (“… nothing will happen”). Rather, what is required in the sense of conditional intent is that the possible outcome in the form of the personal injury that occurs is also approved of, or at least accepted, in the event of its occurrence (BAG 08.12.1970 – 1 AZR 81/70, AP No. 4 to § 636 RVO; ErfK/Rolfs, SGB VII, § 104 Rn 12). The success does not necessarily have to be desired or intended. The intent must include not only the act of injury, but also the result of the injury. The insured event has only occurred when the act of injury has also led to damage, i.e. to the result of the injury. In addition, the statutory regulation only requires insurance cover to be denied if the exemption from liability associated with the accident insurance cover no longer appears acceptable (BAG 19.08.2004 – 8 AZR 439/03, Juris). A breach of accident prevention regulations alone does not indicate intentional conduct. According to the case law of the Federal Labor Court, it is prohibited to treat the intentional breach of duty of an injuring party with an unintentional consequence of an accident in the same way as an intentional occupational accident within the meaning of § 104 SBG VII. § Section 104 SBG VII. This already follows from the different degree of injustice. The person who deliberately disregards a protective provision in favor of the employee usually does not want the employee to be injured and have an accident at work, but hopes that the employee will not have an accident. The weight of his breach of law is less than in the other case in which someone – with or without a breach of duty – accepts the accident of another person (BAG 27.06.1975 – 3 AZR 457/74). This case law on the intentional causation of an accident at work within the meaning of § 636 para. 1 sentence 1 RVO, which has expired, is applicable to the intentional causation of an insured event within the meaning of §§ 104 et seq. §§ 104 f. RVO, because the content of the statutory regulation has not changed (BAG 19.02.2009 – 8 AZR 188/08, Juris). The view that “indifference to an outcome that cannot be considered improbable” is sufficient to affirm conditional intent does not correspond to the case law, which requires that the tortfeasor – also – approved the occurrence of the accident in order to assume intent (BAG 19.02.2009 – 8 AZR 188/08, Juris; BAG 20.10.2002 – 8 AZR 103/02, Juris; BGH 11.02.2003 – VI ZR 34/02, Juris).

bb. The course of the accident is disputed. The plaintiff’s version is based on the fact that he stumbled on an unsecured floor and in too narrow a working space and in doing so fell into the splitting machine, which then suddenly moved. Even if this version of the accident was assumed in favor of the plaintiff, the fact remains that the splitting machine only moved because the plaintiff controlled it using the remote control. According to the findings of the district government and the employers’ liability insurance association regarding the condition of the machine, it is not possible for the splitting machine to move independently without operating the remote control. The plaintiff was indisputably not instructed to adjust jammed tree trunks by hand. Even if the hydraulic splitter had been set in motion in violation of the minimum regulations for work equipment in accordance with § 4 BetrSichVO and any instructions from the manufacturer of the machine or operating instructions for its operation had been violated, there is no evidence that the occurrence of the accident was intended by the defendant (dolus directus) or in any case accepted with approval (dolus eventualis). The mere breach of existing duties of protection in favor of the employees entrusted with the operation of the splitting machine does not indicate intent with regard to causing an accident at work. (BAG 28.04.2011 – 8 AZR 769/09, Juris; LAG Cologne 03.08.2011 – 9 Sa 1469/10, Juris). That the defendant prepared the risk assessment associated with the remote control, according to which he had acted. It is at least logically comprehensible that the defendant believed that by using the remote control already supplied with the machine (and not specially purchased by him) he could even minimize possible hazards, as this made it possible to operate the splitting machine from a workplace further away from the hazardous area than would have been possible by operating the machine with a switch directly attached to it. It may also be that the floor under and around the machine was so untidy or “slippery” that the plaintiff slipped as a result. But even assuming this, it cannot be established that the defendants condoned the accident and did not just trust that everything would go well (gross negligence).

2. the constitutional objections raised by the plaintiff against the provision are not valid.

The §§ 636 ff. RVO, the predecessor provisions of §§ 104 SGB VII, have been the subject of constitutional review on several occasions in view of the fact that they also exclude the right to compensation for pain and suffering, although the statutory accident insurance does not compensate for immaterial damages. The Federal Constitutional Court has always rejected the applications for judicial review and constitutional complaints (BVerfG 07.11.1972 – 1BvL 4/71, Juris; BVerfG 08.02.2005 – 1 BvR 753/94, Juris). It stated that the compensation system of accident insurance was not less favorable overall than that of private law because, unlike the latter, it granted benefits even if the accident was not the fault of a third party and, on the other hand, contributory negligence on the part of the injured person did not lead to a reduction in benefits. In addition, §§ 93 Para. 2 No. 2a SGB VI and 57 SGB VII have further improved the situation of severely injured persons by no longer offsetting the accident pension in part against the reduced earning capacity pension or, if such a pension is not payable but the injured person is no longer able to pursue gainful employment as a result of the accident, by increasing it by 10%. This means that severely injured persons are now granted a benefit that goes beyond material compensation for damages and can therefore only be understood as compensation for the loss of intellectual property rights. In the lump-sum approach typical of social insurance law, the withdrawal of the claim for compensation for pain and suffering is thus at least partially compensated for by §§ 104 et seq. of SGB VII (cf. also ErfK-Rolfs, § 104 et seq. of SGB VII para. 2). Even after the reform of the law of obligations, the Federal Constitutional Court again reviewed and confirmed the constitutionality of these statutory provisions (BVerfG 27.02.2009 – 1 BvR 3505/08, Juris). This is evidently also followed by labor court case law (BAG 20.06.2013 – 8 AZR 471/12, Juris BAG 19.02.2009 – 8 AZR 188/08 -, Juris; LAG Cologne 03.08.2011 – 9 Sa 1469/10 – Juris; LAG Rhineland-Palatinate 08.01.2009 – 2 Sa 481/08, Juris; Hess LAG 12.08.2009 – 2 Sa 579/09, Juris). Despite the recognizable and extremely regrettable massive financial, psychological and physical consequences of the accident for the plaintiff, the Chamber saw no reason to deviate from this case law.

II The decision on costs follows from Section 91 (1) ZPO. The amount in dispute was determined in accordance with Section 61 (1) ArbGG in conjunction with Section 3 ZPO. The application under 1) was set at EUR 80,000.00, the application under 2) at the standard rate of EUR 5,000.00, the application under 3) at EUR 20,985.50 and the application for declaratory judgment under 4) at three times the amount of the application under 3) combined with a discount of 25%, i.e. EUR 47,217.37.

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