For more than sixteen years I have been assisting transportation companies when they are faced with the consequences of a violent, sometimes fatal, accident. Such cases are always a rollercoaster of emotions. Naturally, as a professional, you approach such a case from a business legal perspective. After all, that is what is expected of you as a lawyer. But that legal side is usually overshadowed by the emotional and personal side of it. Especially in a fatal accident. The intense emotions in the courtroom do not lie. The grief and loss of the driver still felt at the company. And always that same question. How on earth could this have happened?

Against this background, there are numerous legal issues for companies. Not only are there all kinds of financial consequences, such as a request for compensation from the surviving relatives or a fine from the Dutch Labor Inspectorate; a serious accident with (fatal) injuries will usually also lead to a criminal investigation. This can even result in a criminal conviction for the company and the supervisor with fines, work or even prison sentences. With an entry in the judicial documentation, the certificate of good conduct may also be in jeopardy.

The legislation at issue here is the Working Conditions Act and the Occupational Health and Safety Decree. The Act provides the "general framework," the Occupational Health and Safety Decree regulates regulations in detail. And through the Economic Offenses Act, these regulations are criminally enforced. When asking whether the Occupational Health and Safety Act has been violated, there are at least three recurring points.

First, it involves the "risk inventory & assessment. This involves the company mapping out the high-risk activities that personnel may encounter. The question of how detailed this should be is subject to debate and depends on the case. However, for life-threatening activities, it is generally required that the risks and how to combat them are explicitly addressed. This is therefore a matter of written policy: what danger does the company recognize and how must it be countered? Experience shows that the courts look at this strictly.

The Labor Inspectorate then examines the extent to which sufficient information and instructions have been given to personnel. Usually, the widely known "VCA training" is used, which includes basic elements of hazard recognition. For specific activities and risks, however, this may be insufficient and more focused instruction is required.

Finally, there is the issue, whether sufficient supervision was provided by the company when dangerous work was done. What is increasingly coming to the fore in court decisions is that the employer's duty of care includes protecting employees from their own mistakes and carelessness. Meanwhile, this duty of care also seems to extend to the errors and carelessness of third parties. The question then is where the boundary of a "reasonable" duty of care ends. An employer may be required to make the necessary effort to ensure the safety of his employees. However, this should not result in a form of "strict liability" as now often happens. In a legal battle, however understandable, emotions should never prevail.

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