ABSOLVED THE EMPLOYER FOR THE ACCIDENT TO THE EMPLOYEE
- Redazione Legal Studio BSTC
- 3 days ago
- 4 min read
Acquitted the employer for the accident that occurred to the employee, due to the non-existence of the causal link between the violation committed by the employer, which certainly existed and was administratively sanctioned, and the actual event that occurred, which was the result of a different and additional risk factor
In its recent judgment No. 904/2024, the Court of Pavia acquitted the Employer of the offence of grievous bodily harm under Article 590 of the Italian Criminal Code, in relation to an accident that occurred to a subordinate worker.
More specifically, the worker 'during maintenance operations with the use of an oxyacetylene torch, suffered an explosion of the tube carrying oxygen from the cylinder to the oxyacetylene torch', which generated 'a flame' that hit the worker 'in the right forearm'.
The Employer was indicted for having caused 'serious personal injuries consisting of first and second degree burns' because he had not 'provided the worker with PPE with suitable characteristics to protect him from the risk of burns to which the worker was exposed as provided for in Article 77, paragraph 3 of Legislative Decree 81/08 (already sanctioned on 07.01.2022 for the aforementioned violation in the field of work safety)'.
Lawyers Paolo Tosoni and Giuseppina Cimmarusti, after having:
requested the questioning of the Employer;
filed the DVR in which the risks and measures to be taken when using oxyacetylene welding machines were expressly identified;
filed documentation on the correct training given to the injured worker;
deposited video footage from surveillance cameras from which it emerged that the injured employee
when working with the oxyacetylene torch, had used a lighter to light a cigarette and smoke it, despite the express prohibition of the company;
had failed to extinguish the torch between cuts, causing the temperature of the lance to rise sufficiently to trigger the vapour combustion process, despite the express prohibition to do so;
deposited the minutes of information taken from some employees who, shortly before the start of the work activity in question, had seen the injured person use a lubricant, in this case Svitol, to facilitate the insertion of the oxygen rubber hose inside the lance, despite the further express prohibition;
deposited a Technical Consultancy Report from which it emerged that the cause of the explosion and, therefore, of the injuries, was due to the ignition of vapours of flammable substances (Svitol) improperly introduced by the injured party inside the oxygen supply pipe, with the ignition caused by the heating of the lance - due to the equally improper failure of the injured party to extinguish the blowpipe between the first and second cut - above the self-ignition temperature of such vapours in pure oxygen;
requested an abbreviated trial.
Well, at the outcome of the discussion, the Court of Pavia acquitted the Employer pursuant to Article 530 paragraph 2 of the Code of Criminal Procedure, with the formula "because the fact does not exist" and, it should be noted, despite the fact that the defendant had provided to comply with the prescription issued by ATS, and to the payment of the administrative sanction relating to the contravention of Article 77 paragraph 3 of Legislative Decree 81/2008 raised by ATS, consisting in not having provided "to provide the injured worker with PPE with suitable characteristics to prevent the risk of burns".
More specifically, with the judgement in question, the Judge excluded - at least in a doubtful manner - the existence of a causal link between the violation carried out by the Employer, which certainly existed and was administratively sanctioned, and the actual event that occurred, which was the result of a different and additional risk factor.
The reader is referred to the full text of the grounds of the judgment in question, in which the Judge, considering first of all that he had to verify "whether the conduct hypothesised by the Public Prosecutor as an alternative (i.e. the provision of PPE suitable to contain the burn risk; Ed.) would with certainty have prevented the damaging event", he dwelt on the regulatory, jurisprudential and doctrinal iter of the Employer's liability, noting - first of all - how the system of accident prevention regulations "has slowly transformed from a <hyperprotective> model, entirely centred on the figure of the Employer who, as a guarantor was vested with an absolute obligation to supervise workers to a <collaborative> model in which obligations are shared among several subjects, including workers. From the principle <of the ontological irrelevance of the worker's culpable conduct>, we moved (...) to the concept of the <risk area> that the Employer is called upon to assess in advance", declaring it in the DVR.
A further interesting line of reasoning set out in the judgment under review concerns the function of Article 41(2) of the Criminal Code, at the end of which the Judge notes how 'from the exegesis of the positive law in force' it follows that:
- "the provision contained in Article 41 cpv, by employing the past tense of the verb, suggests that in relation to the supervening factors that were sufficient on their own to determine the event, the judgement must be supplemented by an ex post assessment, inherent in the congruity of the situation actually realised in relation to the offensive value of the conduct";
- and how "the interruption of the causal link between the conduct and the event occurs when the intervening cause triggers a new and incommensurable risk, totally incongruous with respect to the original risk triggered by the first conduct (...) to the sphere of risk governed by the person holding the position of guarantor (...) to the risks that the guarantor is required to govern".
At the end of a coherent and logical motivational process, the Judge "translating these concepts into the case under examination", acquitted the Employer considering "the causal sequence triggered by the conduct of the worker (...) alone sufficient to determine the event, having created an autonomous and unforeseeable area of risk".
The judgment represents an important clarification on the subject of the assessment of the employer's obligations of guarantee and its criminal liability, especially in the presence of an independent incidence of the employee's culpable conduct in the determination of the harmful event.
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