You can’t make an omelette without breaking eggs. The operation of an enterprise not only bears fruit, but is also associated with a variety of dangers. The entrepreneur is obliged to limit the risks of his business activity for people and the environment and to ensure appropriate safety in his sphere of influence.
Safety as the top priority
Each year, the Swiss accident insurers register a total of about 300’000 occupational accidents. The reason does not always have to be a leftover banana peel. The causes of accidents are many. Total safety as a state of absence of dangers with complete exclusion of risks does not exist.
Safety by the book: relevant regulations
Binding principles for the protection of employees can be found in the provisions on the employment contract in the Code of Obligations, in the Labour Law and in the Ordinance on the Prevention of Accidents and Occupational Diseases. The legal obligations are further detailed in the accident prevention regulations of the Swiss National Accident Insurance Fund, generally known as “SUVA”. These regulations are regularly referred to by the Federal Supreme Court as authoritative.
Risks are generally highly dependent on the industry – risks are very different in industries and sectors like health, transport, construction, or chemicals. Therefore sector-specific laws are also applicable.
As the regulations applicable can be scattered in different acts, it is essential to evaluate the safety rules applicable to a company in a specific case within the framework of a thorough risk analysis.
The implementation of the safety measures includes two different levels:
- hard measures, such as installing safety devices, making sure all machinery and equipment is safe etc.
- soft measures: often accidents are due to lack of maintenance of material or negligent behaviour of employees. Such residual risks must be minimised through organisational and behavioural measures. An employer is legally obliged to inform employees about hazards, to instruct them about safety measures and to ensure that they are complied with.
Possible consequences of safety deficiencies – who is responsible for what and how?
Safety deficiencies can have consequences for a company as well as for the responsible persons personally in terms of civil, criminal and administrative law.
Key to understanding the liability risk is the fact that liability hits those persons who have contributed to a deficiency through an act of omission, i.e. liable are not only those person who have acted (and have actually created a dangerous situation) but also those who should have acted and should have prevented a dangerous situation by implementing a safety concept. Thus liability can also hit the top managers and the entrepreneur!
a) Liability in civil law
In most cases, several bases of liability (tort, contract) are applicable and several persons may be held liable. Different supervisors may be responsible for their failures to protect employees, and the company may be held liable in its capacity as employer anyway. If employees have caused damage to a third party due to safety deficiencies in the performance of their official duties, they may be liable themselves and the company may also be liable in its function as principal. Although an injured party may not seek multiple compensation for his damage, he often has a choice as to whom to take action against. First and foremost, he will choose the person with the deepest pockets, which is usually the company.
b) Liability in criminal law
Security deficiencies have criminal law consequences for persons who commit a criminal offence through an act or omission. Criminal investigations are usually initiated in cases of serious personal injury, but in any case in cases of death. It is by no means only those directly involved in an accident who can be held responsible, but regularly also their superiors up to the highest levels. In Switzerland, a prosecution is first directed against he persons responsible, not against companies. Companies can be fined only if a criminal offence cannot be attributed to a specific person due to inadequate organisation of the company, which is rather rare in practice.
c) Liability and consequences in administrative law
The importance of administrative measures following a security deficiency is often underestimated. Suva, for example, has been given far-reaching powers by the federal government to prevent occupational accidents. Company visits can be made with or without prior notification. If deficiencies are found, first warnings are issued and if these are not complied with, measures are enforced. For example, a mandatory stop of any activities deemed hazardous can be ordered. Permits necessary for operations can be suspended or revoked. Such business interruptions and costs caused by administrative measures may affect companies severely.
Civil liability in particular:
Safety regulations do not in themselves constitute a direct basis for liability. However, disregarding them may qualify as unlawfulness, which is one of four prerequisites for the numerous civil liability claims. A distinction can be made between contractual and non-contractual claims.
The basis for a claim in connection with safety deficiencies can be any contract concluded with the entrepreneur, be it, for example, a purchase contract, a contract for work and services, an order or an employment contract. In the case of contracts with customers and business partners, damage caused by safety defects is usually qualified as a breach of ancillary contractual obligations. In the case of an employment contract, the focus is on a breach of the employer’s duty of care.
Third parties who do not have a contractual relationship with the company can base their claims in the event of damage on non-contractual claims. In this category, in addition to the general liability for fault under Art. 41 CO in the Code of Obligations, there is above all the employer’s liability (Art. 55 CO) and the works owner’s liability (Art. 58 CO), which affect the entrepreneur to a large extent. The latter two are so-called causal liabilities. Here, a certain characteristic of the entrepreneur – namely his position as principal or as owner of the building – is sufficient to establish liability. A typical causal liability is also the product liability obligation, which only requires that the entrepreneur is the manufacturer or importer of a defective product. Whoever is liable for damage does not have to be “at fault”, which contradicts obvious assumptions and popular opinion and has probably led to many a rude awakening of an entrepreneur.
In liability law, any damage is reduced to a monetary amount. In addition to personal injury, property damage and pure financial loss, at most even emotional suffering is compensated with money in the form of satisfaction, even if this is comparatively restrained and sparse in our legal system.
Security is a matter for the top
Top management can be made personally liable in criminal law for the lack of security in the enterprise. The enterprise faces heavy financial liability and disruption in operations. The problem must also be addressed at the management level for organisational reasons. Measures to promote safety are only effective if they are carefully embedded in all operational processes and the corporate culture. Safety issues thus take on a strategic dimension. Successful implementation requires a clear commitment from management, which must be communicated and exemplified in an appropriate form. For larger companies, it is worthwhile to employ a dedicated security consultant or to obtain a security certificate. Further financial risk reduction can be achieved by taking out supplementary insurance. The necessity and scope of such protection strongly depend on the industry and activity of the company. However, those who want to be spared from misfortune naturally always need a piece of luck as well as great commitment in combating security deficiencies.
entrepreneurlaw.blog 