Pizzeria is Liable for Damage following a Road Accident, Caused by Independent Pizza Deliverer

A pizzeria was liable for the damage suffered by a pizza deliverer who had bumped into a tree with the pizzeria's car. The fact that there was no employment contract between the pizzeria and the pizza deliverer was irrelevant.
An 18-year-old pizza deliverer was involved in a traffic accident while delivering a pizza.
The right wheels of the car left the road surface, but, after an attempted steering correction, the car eventually came to a rest against a tree on the left side of the road. The pizza deliverer was seriously injured. For more than a month he had to stay in the intensive care unit of a university hospital and after that he had to recuperate in a normal hospital.
The car was the property of one of the pizzeria owners.
Only a third party liability insurance had been taken out for the car, so that the damage suffered by the pizza deliverer, being the driver of the car, was not covered by the insurance. When the pizza deliverer held the pizzeria liable for the damage suffered, the pizzeria defended itself, saying that there was no employment contract between the pizzeria and the pizza deliverer.
When the case was brought to Court, the Sub-district Court agreed with that defence, but on appeal the Court of Appeal ruled otherwise.
This Court left open the question on an existing employment contract, since the pizzeria's liability for the damage, suffered by the pizza deliverer, can also be based on a legal provision in the Civil Code that stipulates that also a person who is not the employer is liable for the damage suffered by a worker he/she engages.
The first requirement for this liability is, that the pizzeria has acted within the scope of his profession or business. The fact that delivering pizzas is part of the pizzeria's business operations was not disputed.
Furthermore, the damage must have occurred during the performance of the work.
This condition was also met, since the pizza deliverer was on his way back from a pizza delivery.
Finally, as for the duty of care to be observed by the pizzeria concerning the safety, the worker have a comparable position as an employee. Whether this is the case depends on the actual relationship, the nature of the work and the working conditions. From WhatsApp message exchanges, the Court deduced that
 the pizza deliverer regularly carried out deliveries for the pizzeria by car, with the purpose to earn money
 the pizza deliverer was paid in cash at the end of each day and that, contrary to what the pizzeria had stated,
 he didn’t do it “as a favour”, because the pizza deliverer had delivered pizzas for several months now and, thus, it was far from an incidental pizza delivery.

What also played a role in the Court's decision was the fact that a car and the pizzeria’s wallet were entrusted to the pizza deliverer. All this showed, according to the Court, that the pizza deliverer's activities were embedded in the pizzeria organization: the pizza deliverer not only work for the pizzeria, but also in the pizzeria. He also depended on the pizzeria to ensure his safety. For instance, he had no influence on the choice of the car to be used to deliver the pizza and on the maintenance or insurance of this car.
The Court thus established that the pizza deliverer fell within the scope of the legal provision on the employer's liability in unsafe working conditions. The pizzeria still tried to avoid this liability, but did not succeed. The pizzeria's claim that the pizza deliverer was only present in the pizzeria to eat; not to work, and that he had borrowed the car for private purposes was refuted by the Court on the basis of WhatsApp messages showing that the pizzeria was still looking for deliverers for that day. Moreover, pizza delivery was in line with the pizza deliverer's previous activities. The Court placed no value on a witness statement to the contrary submitted by the pizzeria, because that statement was only drawn up almost three years after the accident.
The pizzeria might avoid its liability by means of a substantiated statement that its obligation for the safety was met. However, the Court of Appeal was of the opinion that the pizzeria had insufficiently substantiated it. According to the Court, the fact that the car had undergone an APK-inspection (the procedure for the regular inspection of vehicles) and that it was being maintained at a garage was not sufficient. The car was 15 years old, and the pizzeria had insufficiently substantiated that the car was in good condition at the time of the accident.
Finally, the pizzeria might avoid its liability by proving that there was a case of deliberate recklessness on the part of the pizza deliverer. In that context, the pizzeria had declared that the deliverer frequently speeded, sent WhatsApp messages while driving, and did not wear a seat belt. The Court opposed it, however, by stating that the pizzeria should have instructed the pizza deliverer more persuasively to adhere to the traffic rules.
Also a new witness statement, showing that the pizza deliverer had, at high speed, overtaken a motorist shortly before the accident, was to no avail for the pizzeria. According to the Court, it did not prove that the pizza deliverer was also speeding at the time of the accident. The pizza deliverer disputed that he had not worn a seat belt.
In order to be eligible for an exception to the pizzeria's liability, an additional requirement would have been that there should be evidence that, immediately prior to the accident, the pizza deliverer must have been aware of the reckless nature of not wearing a seat belt.

An employer's responsibility for safe working conditions and the associated liability for damage that an employee may suffer in the performance of his duties reaches very far.
In practice, it is very difficult to avoid this liability. This far-reaching liability not only applies to employees, but also to other workers who are comparable to an employee in terms of the care for their safety.
Usually a solution to this far-reaching liability will not be found in Court. It is a proper insurance package that should provide a solution for the employer at this point.
In the above case, the pizzeria had only taken out a third party liability insurance, but this insurance did not apply to traffic accidents involving a motor vehicle. And the mandatory third party liability insurance for motor vehicles did not cover the damage suffered by the driver of the car. The employer would have benefited from a liability insurance for employers or, if the sum insured was sufficiently high to cover the damage, perhaps from a motor insurance covering all passengers, or from an accident insurance. These insurances are affordable and, actually, essential for every employer.
Now, the pizzeria had reason to fear that it will have to pay a substantial amount of compensation to the pizza deliverer. Proceedings regarding the extent of the damage are ongoing.