Compensation denied due to the worker’s abnormal behaviour

M.N. is a boy who lives in Region of Lombardy, together with his family. He is very close to his parents and whenever possible he loves spending free time with his relatives in activities that everyone likes: walking, shopping, sports.

In particular, M. is related to his father, and when he is on his way back home he often stops and pays a visit to him on his workplace, which often changes because he is a bricklayer and works on construction sites.

The son just spots to say hello, sometimes he chats with his father's colleagues, who have known him since he was a little boy and appreciate him for his great sympathy and generosity.

Sometimes it happens that he stays a few more minutes, when he makes a stop at the bar to grab coffee for his father and his colleagues and takes them to the construction site to share a moment's break.

That day, he decides to move on to greet his father who is, together with other masons, in the city Consortium.

The accident while cleaning a storage tank

While M. is entertaining with his father for the usual greeting, an external company commissioned by the Consortium is carrying out the cleaning work of a storage tank waste water.

One of the employees of the special cleaning company drops a little too deep into the tank that was emptying without care to wear personal protective equipment. The harmful exhalations developed by the sludge result in a violent attack and make him lose his senses.

The people who are in the Consortium are called back by the cries of the man's colleagues and immediately rush. Some of them fall into the tank but, being also lacking the means of protection, they find themselves forced to breathe the exhalations.

Among them there is M. who did not hesitate for a moment to run to help the unfortunate. He passed out at the bottom of the tank and also loses consciousness, but the situation seems even more serious than the others.

He is taken to hospital without delay, but the diagnosis is terrible: chemical bronchopneumomonitis that has caused him very serious respiratory failure and irreversible brain damage. A few days later, he dies.

Boy dies trying to save injured worker's life

Before he died, the boy faced indescribable agony. Bronchopneumin caused by chemical exhalations prevented the passage of oxygen to the brain for a long time, causing irreversible damage to brain functions.

So, parents first had to deal with a drastic change, which is the trauma of having a perfectly normal child who finds himself totally unable to understand and want, perhaps even to talk, to see, with all that follows.

But it was still a chance to still have him among them.

Instead, the severity of the conditions did not leave him a chance and after the pain of the injury, they also have to face that of death.

To this is added the terrible guilt of the father, who regrets having found himself in the Consortium at that time and failing to prevent his son from throwing himself to the rescue of the injured.

The employer cannot pay for the unforeseeable act of the third party

Of course, the judicial phase has been opened to ascertain who was responsible for the accident and to order the persons required to pay compensation for the death of the young M. However, the judges of first and second instance considered that M.'s conduct had been so reckless, having fallen into the tank to help even though he knew that he was unable to withstand the exhalations, that he was exceptional and unpredictable and therefore impossible to trace back to the responsibility of the employer of the cleaning company.

Legal protection in the face of charges is required

This is a sensitive issue and requires all the expertise of lawyers in order to be able to establish responsibility. In particular, everything revolves around the fact that the blame for what happened, and therefore the compensation for the damage, can be attributed to the employer or his employee who recklessly fell first in the tank without wearing the protections, thus triggering the impulse of those present to run to his aid.

Twice before the Court of Appeal

This is a very difficult challenge. The lawyers fight in every degree of judgment until they reach the Supreme Court. Indeed, the Supreme Court decrees the annulment of the judgment issued by the Court of Appeal returning everything again to the second degree of judgment, at the end of which, the judgment is again challenged to return to the Supreme Court. In fact, it is not accepted that the employer can be declared innocent, absolving him of every fact.

All protective equipment was  functional and efficient

Before the Supreme Court, it was established that the employer had provided employees with all the necessary protective equipment and he had collaborated with the Consortium to ensure that measures to prevent and protect against labour risks  were implemented. Not only that, but to be sure beyond doubt, he had given his employees a kind of live lesson, performing the cleaning operations himself and first and thus showing what needed to be done and what needed to be avoided.

In previous judgments, however, the employer was reprimanded for failing to inform the employee of the risks involved in carrying out the work entrusted to him and for not having strictly prohibited him from entering the tank without carrying a breathing car. So, shouldn’t the employee gone down to the tank without a suitable set of tools of protection, nothing would have happened.

However, the Court of Cassation had already pointed out that there was no evidence of a lack of adequate information and training of staff, as well as of the appropriateness of the directives given to staff and the failure to provide workers with protective equipment and masks with a universal filter against chemical attacks.

Therefore, it was not considered to contradict the judgment of the second instance given to the outcome of the order for reference, in which any charge against the employer had been rejected.

Arguments that the employer was responsible were rejected on the basis of the testimony of the driver of the operating bus, who said that he had not been given instructions. In fact, he was not among his tasks to get into the tanks and therefore was not required to use a device suitable to indicate the presence of harmful gases.

The Cassation observed that the negligent conduct of the injured worker exempts the employer from liability when presenting the characteristics of exceptionality,  abnormality and exorbitance with respect to the work procedure and the organization directives received and that to this end, any behavior far from the conceivable and predictable choices of the worker in the execution of the work, can be considered imprudent and abnormal.