Drink-driving Employee has to Compensate Damage Caused by Traffic Accident

According to the Sub-district Court, a professional driver who had a unilateral traffic accident with his car while under the influence of alcohol he has acted deliberately recklessly and, therefore, in principle had to compensate the damage the employer had suffered as a result of the accident.

In 2014, a milk tank truck driver was involved in a unilateral traffic accident. In this accident, which took place at ten o'clock in the morning, the milk tank truck overturned and was severely damaged. During a alcohol check at noon, the blood alcohol content in the employee's blood was found to be 1.1, which was twice the legally permitted level of 0.53. The insurer reimbursed the damage, an amount of over EUR 100,000, to the employer, even though the policy conditions excluded damage caused due to drink-driving.
The insurer wanted to recover the damage from the employee, however. He argued that, by reimbursing the costs of the damage to the employer, he actually could not legally act on behalf of the insured (= the employer) regarding third parties (in this case: the employee) in connection with the traffic accident. In this way, the insurer claimed payment of the reimbursement that the employee should have paid to the employer. It would have been the employee’s obligation to compensate the damage to the employer if the damage would have been the result of the employee’s intent or deliberate recklessness.
The Sub-district Court had to decide whether the employer had a claim against the employee. This presupposed the requirement that the employee was actually aware of the reckless nature of his conduct immediately before the accident took place. The employee denied that he had acted recklessly. According to him, the blood alcohol content had only slightly exceeded the legal maximum and the alcohol consumption had had no influence on the occurrence of the accident. The night before, the employee had slept for five and a half hours and he felt fit before he started driving.
However, the Sub-district Court pointed out that driving under the influence is prohibited by law as well as in the applicable CLA and that the employee was a professional driver who could be expected to be constantly aware of the danger of drink-driving. The employee had started driving at half past six and the blood alcohol level must have been even higher than the 1.1 permille measured at noon at that time. Prior to the accident at ten o'clock, the employee had been driving for three and a half hours, in which period he could at any time have decided to move the milk tank truck to the road side, but he had failed to do so. According to the Sub-district Court, this was enough evidence for deliberate recklessness.
The employee had also argued that the damage to the milk truck would also have occurred without the alcohol consumption, because of the unpaved verge, the difference in height between the verge and the road surface, the weather conditions, the wind, the fact that high speed prevents blocking of the self-steering rear axle, the fact that loaded tank trucks have a poor stability, resulting in an increased risk of overturning and the fact that, for various reasons, trucks for the transport of liquids regularly get off the road, nearly always without any apparent cause.
Since the milk tank truck was almost new and since no defects were identified, the insurer had made it sufficiently plausible, according to the Sub-district Court, that the damage was the result of the alcohol consumption. The employee was still given the opportunity, however, to bring in evidence that, even without the alcohol consumption, the accident would have happened anyway.

The above judgment of the Sub-district Court is almost three years old, but it was only recently published.
For recovery of damage from an employee by an employer, the bar is set high. Except in the very exceptional case of intent, the employer has to deliver evidence that the employee has acted recklessly and that he was aware of the recklessness of his behaviour immediately prior to this reckless behaviour. In practice it is quite difficult to meet this burden of proof.
In the eyes of the Sub-district Court, at least in the above case, drink-driving by a professional driver constitutes such an act of deliberate recklessness
We find it hard to believe that the employee will still be able to prove that the damage was not caused by alcohol consumption. Therefore, the employee has to take into account that he will have to compensate the damage to the insurer.
Given the extent of the damage, this is a serious consequence.