Where a worker acquired an occupational disease while working for different employers, it will be essential for those employers to provide evidence that the necessary safety measures were taken during the period in which the worker formed part of their workforce, with a view to limiting potential damages for civil liability on such grounds.
This is the interpretation given by the Spanish courts in various rulings and recently upheld by Chamber Four of the Supreme Court in a decision handed down on April 5, 2018, in which the Chamber ratified the findings of the Galicia High Court of October 14, 2016.
The employer’s liability for paying a worker the related damages for civil liability, where said worker suffers a disability originating in an occupational disease, is not limited to the last employer that hired the worker, but rather can extend to all the employers for which the worker provided services throughout his working life.
Having regard to the court rulings referred to above, the only way that employers can avoid said extension of liability is to prove that they took the required safety measures during the time the worker formed part of their workforce.
Liability is extended in cases in which the disease suffered by the worker (in the aforesaid case judged by the Galicia High Court, silicosis from ongoing exposure to silica dust on the job) is an insidious disease that takes years to develop, thus making it impossible to determine exactly at which of the companies that employed the worker, the disease was contracted.
Please note that Chamber Four of the Supreme Court, in its judgment of July 10, 2017, had already established the shared liability of mutual insurance companies and the National Social Security Institute in cases where liability exists for the benefits that would have been recognized to the worker for the contingency of occupational disease, but where it is impossible to establish the exact time the disease was caused because it has been developing over a long interval of time, including periods covered by the two insurance companies.
Allocation of liability
In fact, this interpretation gives rise to more than one question regarding the matter.
One of the most significant questions would be how to allocate the liability among the various employers, given that, in the judgment upheld by the Supreme Court in the decision of April 5, the defendants are ordered to pay damages on a joint and several basis, rather than severally on a pro rata basis.
It is first important to note that Chamber One of the Supreme Court has taken the view, in various decisions, that joint and several liability is imposed where multiple agents are involved in causing the damaging event, but it is unfeasible to individualize the contribution of each one due to the impossibility of breaking down the specific liabilities. The application of this view to future cases could entail a paradox, in which the entire amount payable to the worker is claimed from a company that had employed the worker for only a short time, if , for example, all other codefendants are insolvent. A possible solution to this problem would be for this employer to take the related action for contribution against the other codefendants, with the aim of having to bear only the proportional part of the stipulated damages for which it is liable having regard to the time the worker was employed by it.
Another aspect giving rise to legal uncertainty would be how, in such cases, to determine which collective labor agreement should be applied, especially given the potential importance of clauses stipulating flat-rate damages in the case of permanent disability. In this type of situation, the various employers for which the worker has worked are highly likely to be subject to different collective labor agreements and, accordingly, this could also give rise to a paradox, in which an employer has to bear damages pursuant to a collective labor agreement to which it is not subject, or is even held liable on a cumulative basis for damages stipulated in more than one collective labor agreement, which obviously makes no sense at all and would run counter to the most elementary principle of proportionality.
The main result of the foregoing would be an increase in the questions and uncertainties faced by the various agents involved in the area of occupational health and safety. Accordingly, companies and workers should redouble their efforts to comply with the legislation on such matters, since this is the only possible way to avoid the administrative, labor and criminal liability that is increasingly imposed on employers, both at personal and at corporate level.
As a final recommendation, it is especially important for employers to review their civil liability insurance policies, with a view to ensuring that the related coverage is sufficient to respond to the various risks they will face due to the hazardous nature of the activity they pursue.
Departamento Laboral de Garrigues
