The work related accidents consist a serious risk both for the employee – leads to damage to his health and inability to use his workforce to its full potential, and for the employer – as a result of its occurrence, he is obliged to pay compensation for tangible and intangible damages suffered by the injured employee. According to the case law of the Bulgarian court, the compensation may be reduced if the injured employee has contributed to his injury by gross negligence.
This is exactly the case that the Supreme Court of Cassation ruled in its decision last week[1] [1].
In 2018, a worker in a Bulgarian company operating in the field of coal mining was pinned by the mechanical cover of a wagon when unloading the coal contained in it. As a result of the work accident, the worker died. His heirs – his wife and daughter, filed claims for compensation for non-pecuniary damages in the total amount of BGN 170,000. In the Regional Court’s ruling, the amount of compensation awarded was reduced by 60% due to complicity on the part of the deceased worker in the event of gross negligence. The Appellate Court did not share the findings of complicity and ordered the employer to pay compensation in the amount originally claimed.
The Supreme Court of Cassation found that there was indeed complicity in the gross negligence committed by the deceased worker, expressed in a lack of elementary diligence and attention and disregard for basic technological and safety rules. In this case, it was established that the injured employee had violated the rules of occupational safety established by the employer in the Instruction for safe work and which were explained to him by the briefing conducted before the start of his shift. In particular, instead of unloading the remaining coal in the car from a safe distance with the help of the respective device, he used the risky way by entering between the wagon and the hood, as this made it easier to unload. The latter was a common practice in the company, as the workers had to comply with the productivity norms and everyone wanted to unload quickly, violating the rules of labor safety. Standing under the open hood of the wagon, which, given its volume and weight, could press hard on him when closed abruptly, the worker was aware of the harmful effects, but thought that this would not happen, and he hoped, that if such a problem occurs, he will be able to prevent it.
Due to the fact that the injured employee put himself in a situation of increased risk to his life and health and showed gross negligence, the Supreme Court reduced the compensation due by the employer by 20% (to BGN 136,000 in total) and after deducting the received from each of the heirs of the deceased insurance compensation (BGN 19,320) has ruled that the employer should pay compensation for non-pecuniary damages as a result of the accident at work in the total amount of BGN 97,360.
Based on the analysis above, the following conclusion can be drawn:
- In the case of an accident at work, there is complicity when the worker performs the work without the necessary diligence and attention and in violation of the technological rules and safety rules.
- Reduction of the employer’s liability can occur only in complicity in gross negligence – lack of basic diligence and attention and neglect of basic technological rules and safety rules.
- Gross negligence is also present when the employee was aware that the harmful consequences could occur, he foresaw the abstract possibility of causing the damage, but he thought that he was able to prevent them.
- Complicity in gross negligence has its degrees, which in accordance with the objective ratio of the contribution to the accident at work in view of all the specific facts and circumstances are the criteria for reducing the compensation.
[1] [2] Decision №45/08.04.2021, c.c №1580/2020, III CD of the BSC