Judgment of the Supreme Court, 23 March 2012, LJN BV0616


The contractor runs a sole proprietorship in which he manufactures and repairs, inter alia, steal constructions by order of third parties. By order of Allspan he performed repair work to a fibre processing machine at Royalspan, a company affiliated with Allspan. The contractor performed the repair work as a (sub)contractor of Allspan. When he was performing the work to the fibre processing machine, the contractor had an accident. The contractor held Allspan liable for his damage.

The Court and the Court of Appeal denied the claim of the contractor, because the requirement that the contractor's work at Royalspan had been performed in the course of Allspan's business operations was not met. According to the Court of Appeal, the course of Allspan's business operations consists of the processing of residual wood from the wood industry into wood shavings and wood granules, for which purpose fibre processing machines are used. The performance of repair work to these machines cannot be regarded as work performed in the course of the business operations. After all, this work is not performed by Allspan itself, but is outsourced by Allspan to third parties, such as the contractor. Moreover, the contractor did not perform the repair work on a machine of Allspan itself, but on a machine of Royalspan.

In cassation the Supreme Court ruled, with reference to the legal history, that the intention of the section of the law regarding liability for hired personnel (Section 7:658 (4) of the Dutch Civil Code (DCC)) is to offer protection to persons who are in a similar position as employees with respect to the duty of care of the client, and who therefore depend on their clients to care for their safety. This must be determined by means of all circumstances of the case, whereby, inter alia, the factual relationship between the parties involved and the nature of the work are of importance, as well as the extent to which the client can influence the working conditions and the safety risks connected thereto. According to the Supreme Court, it follows from the above that the fact that the contractor concerned is a self-employed worker without employees in itself does not stand in the way of a reliance on Section 7:658 (4) of the DCC.

For the application of Section 7:658 (4) of the DCC it is furthermore required that the work performed by the contractor is part of the business operations of Allspan. According to the Supreme Court, it has to be work that the client could also have had its own employees carry out. It is not necessary to regard the work as the essence of, or as following naturally from, the business operations. The decisive factor is whether the work, in view of the manner in which the client tends to give substance to its business, actually belongs to its business operations. In view hereof, the opinion of the Court of Appeal that the repair work by the contractor is in general no part of the work following naturally from the processing of residual wood, and that as a result this no work belonging to the business operations of Allspan, is incorrect. Also the fact that Allspan had outsourced the repair work to the contractor and that the work was not performed at Allspan but at Royalspan does not mean, in itself, that the contractor did not perform this work in the course of Allspan's business operations. In this connection, the Supreme Court has attached value to the arguments of the contractor in the appeal proceedings that one of Allspan's business activities was exactly the performance of repair work for third parties on location, and that the director of Allspan had the required technical knowledge and was also involved in the performance of the repair work of the contractor. The Court of Appeal did not visibly include these arguments in its adjudication, but according to the Supreme Court these arguments can support the conclusion that the work performed by the contractor at Royalspan took place in the course of the business operations of Allspan. The Supreme Court referred the case back to the Court of Appeal.


By giving this ruling, the Supreme Court has determined that the doctrine of employer's liability may also extend to self-employed workers without employees. Therefore, a client who takes insufficient safety measures may be held liable for the occurrence of damage for a self-employed worker without employees.

However, the above does not imply that every self-employed worker without employees who suffers an accident in the course of his work can make a claim against his client. First and foremost, there has to be work that belongs to the client's business operations. According to the Supreme Court, this does not only have to be work that relates to the core business of the business of the client, but also work that actually belongs to the business operations of the client. Furthermore, the self-employed worker without employees must be in a similar position as an employee of the client, for instance because he is engaged to do work that is also carried out by employees of the client. The basis for this is the principle of protection that the freedom of choice of the client/employer to either take on an employee or engage a self-employed worker without employees may not affect the care of duty of the client/employer for a safe work environment.

The judgment of the Supreme Court seems to be in line with the opinion of the Dutch Social and Economic Council ("SER"), as described in its advice of 2010 'Focus on Self-Employed Workers Without Employees'. In this advice the SER endorses the starting point that the working conditions, the level of protection and the security in the workplace must be the same for all persons who carry out work there.

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