Employer acquitted of liability – workplace, person to be charged, instructions and supervision was at issue
Holst, Advokater | View firm profile
On 5 July 2019, one of the Danish district courts (the District Court of Herning) found that a master painter was liable for compensation in connection with an injury accident caused when an apprentice fell off a balcony and suffered severe head injuries.
On 15 January 2021, the High Court of Western Denmark reversed this judgment and acquitted the master painter.
Details of the case were that the painting business was to perform paint works in connection with the construction of a new office building. The tasks of the master painter were carefully described in the subcontract agreement with the Employer. The contract was awarded on a trade-by-trade basis; hence there were several other Contractors on site at the same time.
A few weeks before the accident, the master painter had entered into an agreement with the municipality to take on the person who became injured as an apprentice for a while. The apprentice was to follow two experienced, skilled painters, which was also the case on the day of the injury where the painters were to perform spray filling work. The work was carried out on the second floor. Connected to the second floor was a balcony where the painters were not to perform any work. At the time of the injury, the balcony was not completely finished, and consequently, a temporary wooden railing had been fastened by the Contractor who was also to mount the final steel railing as part of the Contractor’s agreement with the Employer.
On the day before the accident, the master painter had visited the site in order to check on the work progress and clarify if there were any problems. The master painter then saw that access from the second floor to the balcony (a door/door opening) had been blocked by two boards.
On the day of the accident, the two skilled painters and the apprentice wanted to take a break after some hours of spray filling. They chose to go out onto the balcony, which at this time was not blocked by boards in the door opening, hence there was free access to the balcony, contrary to what the master painter had seen the day before.
The two skilled painters stayed close to the wall front of the building, whereas the apprentice at his own initiative continued forward to the temporary railing, which he sat upon or leaned against and thereby affected the railing vertically, resulting in its collapse. The apprentice fell 3 meters to the ground, a concrete floor. The Danish Working Environment Authority issued an immediate improvement notice on the master painter, although it was not him who had put up the temporary railing, which the Authority was informed about.
The main argument in the judgment delivered by the district court was that the balcony in the opinion of the court was a part of the workplace, and thus the master painter should have ensured that the place was adequately organised.
Since the Authority found that the railing had not been made completely and adequately in terms of safety, it was not difficult for the district court to ascribe liability to the master painter. The district court also reasoned the judgment by referring to the two skilled painters who in the court’s opinion had not made adequate efforts for warning the apprentice that the temporary railing would not give the same protection against collapse as a permanent railing would do. The court did not find that there was any basis for reducing liability on the grounds of contributory negligence.
As stated, the Danish High Court reversed the judgment and ruled in favour of the master painter. The High Court took into account that according to the subcontract agreement, the master painter’s works did not comprise any works on the balcony, and the High Court attached importance to the fact that it was not the painting business that had mounted the temporary railing. Furthermore, the Court did not find that the defects of the temporary railing were that obvious that the master painter during his general supervision ought to have established the defects before the accident happened.
Hence, the Danish High Court did not find that the master painter should be liable for compensation in consequence of the temporary railing not being adequately secure.
The High Court also attached importance to the fact that the painting business did not have reason to believe that there should be any “such risk” if being on the balcony that the employees should have been instructed about not stepping out onto the balcony during breaks, although breaks should be taken at the site accommodation/on-site huts.
It is very satisfactory that the High Court on the basis of these grounds has decided to acquit the master painter of liability. In particular, I emphasize that although the Working Environment Authority had issued an immediate improvement notice on the master painter, the High Court attached importance to the fact that the balcony could not be regarded a workplace, for which the master painter should be responsible. The opposite would be a case where an employer is responsible for organising a workplace although such is not part of the employer’s task or service, and in such case a significant increase in the basis for liability would be at issue, tendering towards no-fault liability.
Please note that the Contractor who had mounted the temporary wooden railing was not involved in the proceedings by the injured apprentice, but notice was served on the Contractor by the master painter.
It is furthermore satisfactory that the High Court also did not find that there was any basis for liability in consequence of lacking/inadequate instructions or supervision. The grounds set out by the High Court could be interpreted in such way that the Court did not find that there can be any requirements for instructing an adult about the need for being careful when stepping out onto a balcony at great height fenced off by only a railing, which clearly appears as temporary and hence not permanent.
Questions about the case may be directed to me.
The whole judgment delivered by the High Court of Western Denmark is available here (in Danish):
Jacob Fenger, Partner
M, +45 3010 2227