Volunteers left in the lurch?

Publication date: 31 December 2021
Charities may be liable for accidents that happen to volunteers during their work. However, there are limits to this, as the Supreme Court ruled on 24 December 2021. What are these limits?

vrijwilliger-kerstboom

Unhappy Christmas

A beautifully lit Christmas tree in a village brings even more Christmas atmosphere to a dark winter. This was also the opinion of the village council of Hunsel in Limburg. It therefore decided to take on the responsibility of placing the tree itself when the municipality stopped this tradition in 2011. The village council entrusted the placing of the tree to the Speelruimte Foundation, that ran the local playground.

In 2013, things went completely wrong. The six-metre Christmas tree stood in a front garden and had yet to be cut down by the foundation’s volunteers. To prevent damage to house, fence and garden shed, a rope had to be attached to the tree. An aerial work platform had been brought along for this purpose, but it did not fit in the small garden. A ladder was still in the playground, over 600 metres away. Moreover, it had started to rain. Thus, an eager volunteer climbed the tree himself to attach the rope. However at 3.5 metres, he fell from the tree onto the garden shed and suffered paraplegia.

Who is liable?

Is the volunteer entitled to damages? Or is he the victim of his own initiative?

Employer’s liability also for volunteers?

According to the District Court, the volunteer had to pay for his damage. He therefore lodged an appeal. In the appeal, he held the Speelruimte Foundation liable as the commissioning party. According to the Court of Appeal, however, the foundation had not given any assignment to the volunteers. After all, the victim was free not to participate in the Christmas action. In addition, the volunteers had divided the tasks on their own initiative. And that own initiative was precisely what had led to the accident. Therefore, there was no question of invoking employer’s liability, whereby the employer is in principle liable for accidents at work.

Duty of care

Still, the foundation was liable. It knew that a six-metre Christmas tree had to be cut down. It is obvious that this can cause danger, especially, in a crowded, small garden. That the volunteers did not have the necessary qualifications for the job is also clear. Therefore, the foundation had a duty of care and it had not fulfilled this duty. The fact that the foundation itself also consisted of volunteers did not change this. It should have given directions, which it did not do. The correct materials were also missing: the aerial work platform did not fit in the garden and the ladder was still in the playground.

However, the volunteer was also to blame. He had climbed the tree on his own initiative, because he did not want to wait for the ladder to be fetched due to the rain. In the end, this led to the judgment that the Speelruimte Foundation was liable for 75% and the unfortunate volunteer for 25%.

Liability for volunteers

The ruling of the Court of Appeal was confirmed in cassation by the Supreme Court. Unfortunately, without explanation. However, in his advice to the Supreme Court the Advocate-General did summarize in what situations the statutory regulation for employer’s liability applies to commissioning parties of volunteers:

  1. The commissioning party instructs the volunteer to carry out work on the basis of a commission contract.
  2. The work is part of the normal professional or business activities of the commissioning party.
  3. The volunteer is wholly or partly dependent on the commissioning party regarding his safety.

All three of these conditions must be met. In addition, normal liability also applies when working with volunteers. But the threshold for this is higher than for employer’s liability.

Our advice

  1. Make sure that your volunteers can work in a safe environment. Not only to avoid liability, but also because they deserve it for their efforts.
  2. When taking out insurance, also consider the damage that volunteers may suffer and your possible liability for it.

Charity lawyer

Are you a director of an organisation with volunteers and is your organisation held liable? Or are you yourself held liable as a director and are looking for legal assistance? We have extensive experience in supporting charities and will be happy to assist you. Please contact:

    Share on social media

    • IT and ICT
    • Employment law and dismissal

    What will change for entrepreneurs and employers in 2022?

    21 December 2021

    Like every year, 2022 will start with a number of changes in laws and regulations. We have listed the most important changes for entrepreneurs and employers in this blog.

    read on
    • Corporate law

    Sanctions for non-compliance with women’s quota on supervisory boards

    17 December 2021

    From 1 January 2022, at least one-third of the members of the supervisory board of a listed company must be women. Large companies must set targets in order to achieve a more balanced ratio of men and women in top positions.

    read on
    • Fashion and luxury
    • Employment law and dismissal

    Support measures during partial lockdown

    16 December 2021

    With the new lockdown, the government support measures for entrepreneurs are back. Which measures can you apply for when your company suffers a loss in turnover due to the coronavirus measures?

    read on
    • Employment law and dismissal

    Statutory minimum wage as of 1 January 2022

    14 December 2021

    As of 1 January 2022, the statutory minimum wage and minimum youth wage will be increased. What are the new amounts of the minimum wage?

    read on
    • Works Council
    • Employment law and dismissal

    More protection for whistleblowers

    14 December 2021

    17 December 2021 at the latest, the European Directive for the protection of whistleblowers must be implemented by the Member States. What changes does this Directive bring? What do these changes mean for you and your organisation? Is your whistleblower policy still up to date?

    read on
    • Expats
    • Employment law and dismissal

    Female expats in the Netherlands

    2 December 2021

    Taking on a job in the Netherlands can be challenging for international newcomers in many ways, but especially for female expats: You have to get used to a new workplace, a different culture, and different customs. On top of that, the needs of your family have to be met. In order to relieve at least some of this stress, we will highlight the most important legal obligations of Dutch employers towards their female employees, including female expats.

    read on
    • Liability

    Charity directors sooner liable

    24 November 2021

    The Act on Management and Supervision of Legal Entities (Wbtr) entered into force on 1 July 2021. Under this Act, charity directors may be sooner liable. What has changed?

    read on
    • Employment law and dismissal

    Personnel: Statutory minimum wage

    22 November 2021

    The statutory minimum wage and minimum youth wage change every six months. What are the new amounts as of 1 January 2022?

    read on