The complaint obligation in work accidents

The complaint obligation in work accidents

You don’t expect it, but an accident can happen anywhere, including a work accident. Such an accident can have far-reaching negative consequences for the victim. This includes, for example, losing your job (after prolonged illness) and therefore also your salary.

In such a case, it is nice if you can claim your damage from the employer or their insurer. It will have to be investigated whether the employer is to blame for the accident and therefore whether he is liable for it. The employer has a duty of care.

The employer’s duty of care is regulated by law in Article 7:658 Dutch Civil Code and, in short, means that the employer is obliged to protect the safety and health of his employees. This duty of care has a broad scope, so it is not quickly assumed that it has been met.

The employee who has been involved in a work accident must ensure that he/she complains to the employer about the accident that happened to him/her in a timely manner. This prevents the risk of losing the right to compensation. This timely complaining is also known as the “complaint obligation”.

The complaint obligation is regulated in Article 6:89 Dutch Civil Code and means that one must complain within a reasonable time. In 2013, the Supreme Court ruled that this article applies to “all contracts”.[1] This means that the complaint obligation also applies to the employment contract.

In case law, there are both rulings from judges who honor the employer’s appeal to the complaint obligation[2] as well as rulings in which judges sweep an appeal to the complaint obligation from the table.[3] In the case of work accidents, therefore, the complaint obligation is used with varying success. This underscores the importance of complaining to the employer in a timely manner after a work accident.

Have you been involved in a work accident? Do you want to know more about the possibilities to claim your damage from the (liable) counterparty?

Then please contact Elfi Personal Injury Attorney without obligation.

[1] HR 8 February 2013, NJ 2014/497 (Van de Steeg/Rabobank).

[2] Ktr. Den Haag 17 April 2013, JAR 2013/114.

[3] Rb. Rotterdam 4 December 2019, ECLI:NL:RBROT:2019:10249.

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