In the case of a worker's injury, the criminal section of the Italian Supreme Court stated, through its judgement no. 39168/2024, the liability lies with the employer and not with the executive delegated to safety if said event was not foreseen and evaluated in the Risk Assessment Document. With Judgment no. 39168 of October 25th, 2024, the criminal section of the Italian Supreme Court confirmed the established principle that the delegation in safety matters, released by the employer to another person within the company organisation, “cannot be unlimited with regard to the object of transferable activities”. Therefore, the employer is responsible in case of injury if the Risk Assessment Document (“Documento di Valutazione dei Rischi”, “DVR”) is deficient, even in the case of bigger companies. The Italian Supreme Court rebuked the territorial Court for attributing to the plaintiff – an executive delegated with safety tasks – the responsibility for the accident that occurred to an employee while loading prefabricated material. Although having correctly acknowledged the missing information and details in the DVR, the Court of Appeal of Bozen had (according to the Italian Supreme Court, mistakenly) lied those deficiencies, and thus liability for the injury, onto the executive, thus ascribing to him the inadequacy of the preventive measures thereby described. According to the territorial Court, all of the employer's obligations regarding occupational safety are transferred to the manager by way of the dedicated delegation of authority in those matters. Consequently, in the case at issue, the territorial Court attributed to the latter the liability of identifying and assessing the risks related to the work activities performed within the company, as well as of identifying the necessary precautionary measures to prevent them, adopting them and ensuring that employees duly comply with them. However, with the judgements at issue, the Italian Supreme Court rejected the argument proposed by the other Courts and offered a complete examination of the regulations. The Italian Supreme Court reiterated that the employer is the “guardian” of the physical and moral safety of each worker, pursuant to the provisions set by the Consolidated Safety Act (Legislative Decree no. 81/2008), as well as more broadly, under section 2087 of the Italian Civil Code. Nevertheless, the Court then admitted that in larger companies, it is plausible that there is a hierarchy of responsibilities, also within safety matters, which must be ascertained on a case-by-case basis while still confirming the principle under which the delegation cannot be unlimited as to the scope of transferable assets. As stated by the Court, Legislative Decree No. 81/2008 identifies employers’ obligations that cannot be delegated due to their relevance. These include assessing all risks to the health and safety of workers for exhaustive drafting of the DVR, which contains an evaluative analysis of risks and an indication of the prevention and protection measures implemented. The DVR must be immediately updated as the company organisation changes. On the issue of injury prevention, the employer will, therefore, have the obligation—which cannot be delegated—to analyse and identify, with the highest degree of specificity, all the hazard factors concretely present within the company. As a result of this investigation, it must draft and periodically update the DVR. Therefore, the Italian Supreme Court concluded by holding that the Court of Appeal had attributed “decisive importance” to the delegation of authority in safety matters conferred on the executive, to the extent of mistakenly elevating him, for his duties and obligations, to “an alter ego of the employer”. Consequently, the Supreme Court excluded that the missing details outlined in the DVR could be ascribed to the person delegated to workplace safety and that, on the contrary, and for the reasons explained, they remain attributable exclusively to the employer who is solely responsible for them.
2024 - Morri Rossetti
