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Importance of prevention principles (and the need to uphold them)
The Spanish Act on the Prevention of Occupational Hazards has a number of basic pillars that connect with lessons that we all learn in life: preventing is better than curing, you have to learn from mistakes, you should aspire to be better every day. One of the goals is clearly to remove occupational hazards and, if this is not possible, to remove them.
What happens when a worker has an accident despite the preventive measures implemented?
In these cases, the first of the pillars mentioned above collapses: the company no longer has to prevent, but should correct. To correct, the company applies the second pillar: investigating the accident that has taken place and learning from it. By learning, it takes measures that improve the company as a whole, particularly the protection of the workers’ health and safety.
However, this sequence of steps tends to be distorted when the work accident is investigated by authorities outside the company.
In that case the principles mentioned above can often be distorted until they become also unrecognizable because the following premises are taken as a starting point: 1) the business’s duty of vigilance makes it liable for everything that happens within the company; 2) if an accident has taken place, it is because the company failed to prevent it; and 3) if a business implements measures to prevent that accident from repeating, it proves that it has not fulfilled its duty of vigilance, and therefore there has been a failure in the safety measures. Therefore, a vicious circle is generated.
These inverted premises should be fought for two reasons: because they incur in a clear retrospective bias; and, above all, because they discourage companies from prevention, which is, as we said, one of the legislator’s goals. After all, if taking corrective measures after an accident is tantamount to a sort of “admission of guilt,” we run the risk of the company’s taking none.
As lawyers and prevention experts, we have upheld and continue to uphold these ideas at all levels. We understand that a business is not liable when the damage was caused through no fault on its part; and therefore, when an accident takes place, it must be verified whether the business met the occupational hazard prevention regulations.
Several times, Spanish courts have upheld these arguments: The Spanish Supreme Court warned in its judgment of June 30, 2010, that “if another solution is selected, it is plausible to believe that a clearly discouraging effect would be generated by the relevant occupational hazard prevention policy that imbues the entire legislative action in question. If the business is always liable, regardless of whether it has implemented the mandatory safety measures, there would be no encouragement to be diligent or even to scrupulously meet the prevention legislation.” Several judgments have referred to and applied this interpretation of preventive regulations (including the judgment of the High Court of Justice of Catalonia no. 6300/2013 of October 4; the judgment of the High Court of Justice of Andalusia 1269/2018 of April 26; and the judgment of the High Court of Justice of Castile and León 379/2018 of March 1).
To conclude, there is a procedure to act in the event of a workplace accident, which the legislator not only clearly establishes, but that it intends to encourage. This procedure involves the ongoing improvement of prevention, which can only be achieved if the events are examined and ways are sought to further improve, if possible, the company’s prevention policies. Ruling out the implementation of improvement measures should not be allowed because it has harmful consequences for companies.
Having good advisors and the best coordination in the stage immediately after the workplace accident is necessary to defend the company’s actions in any case. And let us remember that the prevention principles exist, and must be upheld.
This post is also available in: Español