On 18 May 2023, the Italian Court of Cassation, criminal division, judgment no. 21153,ruled that ‘risk assessment is a specific function of the employer, which cannot be delegated even through delegating functions to another person and any failure by the RSPP to cooperate in the drafting of the Risk Assessment Document (Documento di Valutazione dei Rischi, “DVR” may, at most, give rise to concurrent but not exclusive liability of the latter’.
The facts of the case
The case stemmed from a work-related accident that occurred to an employee of a company who, while arranging a stack of pallets that had not been properly stacked, was struck – on the head and shoulder – by pallets falling to the ground, sustaining injuries that resulted in an illness lasting more than 40 days.
Both the Court of Vercelli and the Court of Appeal of Turin convicted the sole director and ‘employer for company safety purposes’ of the criminal office under Article 590 of the Italian Criminal Code (‘negligent personal injury’). The court considered that the director was guilty of negligence, carelessness, inexperience and failure to comply with the rules for the prevention of accidents at work and for not having assessed the risk inherent in the construction of the stack of pallets.
An appeal to the Italian Supreme Court was lodged against the Court of Appeal ruling, alleging a breach of the law in relation to the finding of criminal liability. Specifically, the appellant – i.e. the employer for company safety purposes – argued that the appointment of an RSPP exonerated him from any liability. The RSPP should have, among other things, (i) assessed the risks associated with the specific work activity based on the delegation responsibilities; (ii) trained employees; (ii) evaluated the risks associated with the specific activity and (iii) drafted the DVR.
The Italian Court of Cassation
The Italian Court of Cassation affirmed that the assessment of the risks to the health and safety of workers present within a company is one of the employer’s specific obligations. This obligation, established by Article 17 of Italian Legislative Decree no. 81/2008, is non-delegable. ‘Any failure by the RSPP to cooperate in the drafting of the DVR may, at most, give rise to concurrent but not exclusive liability of the latter’. The Court also clarified, on this point, that the RSPP will be liable where it is possible to trace an injurious event back to a dangerous circumstance that the RSPP should have known about and reported and, instead, failed to do so.
For all these reasons, the Court of Cassation held the appeal to be inadmissible as the ground of appeal was manifestly unfounded.
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In conclusion, it seems possible to be able to state that an employer for company safety purposes is criminally liable if it is ascertained that an injury at work is caused by a failure to carry out a preventive assessment of the risk as well as by a failure to adopt the relevant measures necessary to reduce or eliminate that risk.
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The definition of worker for safety purposes according to the Court of Cassation
Decree Law no. 149/2020 ( “Ristori-bis Decree”), the Italian legislation has implemented Directive 2020/739 of 3 June last (the “Directive“). The latter has amended Annex III of Directive 2000/54/EC on the protection of workers from health risks and safety arising, or likely to arise, from exposure during normal work to biological agents identified in the document. The new Coronavirus (“Covid-19“) has been classified as an agent responsible for serious diseases in humans, presenting a significant risk to older workers and those with a previous or chronic illness. Covid-19 is included in the list of biological agents that can cause infectious diseases in humans (biological agent – risk group 3). As a result of the Directive implementation the Legislative Decree has been amended. 81/2008 ( Consolidated Law on health and safety at work). The requirements imposed on employers who carry out activities that expose workers to this risk become stricter. Priority is given to laboratories, veterinary services and industrial processes involving the use of or exposure to the biological agent. Other employers cannot be considered completely excluded, since, under art. 28 of Legislative Decree 81/2008, the assessment under art. 17 of the same decree must concern “all risks to workers’ safety and health.”
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The Court of Cassation, with its ordinance no. 10404 of 1 June 2020, in line with a consolidated orientation, expressed the principle based on which Inial’s recognition of an occupational injury or disease does not automatically lead to the employer’s liability for the damages suffered by the employee.
Facts of the case
An employer of a transport company sued in order to obtain compensation for personal injury caused by a pathology (afantrite) he had, contracted – according to him – due to the employer’s breach of the safety obligation established by art. 2087 of the Civil Code.
The territorially competent Appeal Court, in confirming the first instance ruling rejecting the presented appeal, underlined that the worker had omitted to provide proof of the alleged breach while the defendant company had proven “to have complied in time with all of the legal requirements related to occupational safety”.
The worker appealed to the Court of Cassation relying on two motives that the company challenged with a counterclaim.
The Supreme Court of Cassation’s decision
In formulating its decision, the Court of Cassation first noted that (i) the entrepreneur’s liability for failure to adopt suitable measures to protect the physical integrity of the employee is based on specific laws, and if they are not available, on the general provisions as per art. 2087 of the Civil Code. These provisions constitute the final regulations of the accident prevention system that can be extended to situations and cases not yet expressly considered and assessed by the law at the time it was created.
However, according to the Cassation judges, this does not amount to liability every time an occupational disease is diagnosed in a worker. In the presence of such circumstances, the worker has the onus of proving the fact that constitutes the employer’s breach and the material causal nexus between the breach and injury.
In the case in hand, according to the Court of Cassation, the worker did not provide proof of the employer’s alleged breach and, actually, his employer company demonstrated to have complied with all of the legal obligations regarding safety.
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The Court of Cassation’s decision in question is in line with the recent circulars 13 and 22 issued by INAIL on 3 April 2020 and 20 May respectively related to equating Covid-19 contagion with cases of occupational injuries.
But there is more. The decision is also consistent with the regulations as per art. 29 bis by Law no. 40 of 5 June 2020 converting the Liquidity Decree, concerning employer obligations for protection against contagion from Covid-19.
The article states that, in order to protect against the risk of Covid-19 contagion, employers shall comply with the obligation as per art. 2087 of the Civil Code through (i) application of the provisions contained in the joint protocol which regulates measures to combat and contain the spread of Covid-19 in the workplace, signed on 24 April 2020 by the Government and social partners as subsequently amended and supplemented, and in other protocols and guidelines referred to in art. 1, paragraph 14, of Decree Law no. 33 of 16 May 2020, and also by (ii) adopting and maintaining in force the measures provided for therein.
If the aforementioned provisions do not apply, according to the above legislation, the relevant measures will be those contained in the sector protocols or agreements entered into by the trade unions and employers’ organisations that are comparatively more representative at national level.
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