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24 AWEMainta .com
INTERN A TION AL
The Court of Amsterdam:
recently had to determine if an employee
had fulfilled its obligation to provide a safe
workplace and working conditions pursuant
to article 7:658 of the Civil Code of the
Netherlands (Aruba has a similar provision in
its Civil Code), this because of an employee sustaining an
eye injury caused by an exploding confetti canon during
work.
The employer argued that it is generally known that the
explosion mechanism of a confetti canon is activated by
turning the tube with both hands in opposite directions and
that it did not need to point out this risk to its employees.
The court did not share this opinion.
How a confetti canon can be detonated is not a fact of general
knowledge but can be understood in a relatively simple
manner by reading the instructions on the packaging. A
customer who buys such an object can be expected to read
the instructions on the packaging before using the confetti
gun.
However, an employee whose task it is to tidy up the
multitude of ever-changing products the employer sells,
may not be expected to always study the packaging before
moving an article.
The employer further argued that the accident should be
regarded as an unfortunate concurrence of circumstances,
so that the employer could not reasonably be required to
take measures to prevent it.
This defense was also rejected. The activities of the
employee included sorting the products on the shelves and
taking away broken products. Under these circumstances it
was to be expected that the employee would superficially
examine the confetti canon to assess whether it could be
put back on the shelf.
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That an employee, during a superficial
examination of the confetti canon, makes such
a movement that it unintentionally explodes, is
extremely unfortunate, but not so improbable
that the employer cannot reasonably be
required to take measures to prevent such an
accident.
In this respect the fact that the camera images do not show
that the employee consciously made a turning movement
with her hands and that, on the contrary, little seemed to
be needed to make the confetti canon explode, is taken into
consideration.
The employer also argued that it has thousands of articles
on its shelves and that the confetti cannon is only one of
these products. The court considered the following in this
respect. The employer chose to have a very diverse and
constantly changing range of shops.
The fact that the employer subsequently finds it impractical
to instruct its employees on the danger of a single product
among the multitude of articles on its shelves is within its
sphere of risk and does not relieve it of its responsibility as
an employer to provide a safe working environment where
accidents such as this cannot occur. The court found that
the employer breached its duty and is liable.
ECLI:NL:RBAMS:2021:4091
Photo: Unsplash
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