Many scientists at the UKE work in the laboratory every day. Handling complex equipment and various (bio-) chemicals increases the risk of accidents. Incorrect operation of a device or unintentional spillage of a flammable chemical can cause serious damage to property and personal injury. This can result in high costs for the replacement of the defective device or the treatment of the injured colleague. Medical treatment will initially be paid for by the injured party’s health insurance. However, the insurance company will then take recourse against the person who caused the damage and demand that the costs be covered. Fortunately, serious occupational accidents are rare at the UKE. However, who is liable if something happens?
The collective agreement contains the following regulation (§3 Abs.6 TVöD‑K): The liability of employees for damages is limited to intent and gross negligence in the case of work for official or company reasons.
Consequently, the employer must bear the costs incurred as long as there is no intent or gross negligence. However, what is meant by intent and gross negligence? In the case of intent, there must be a clear breach of duty. The occurrence of damage and its consequences are foreseeable and are at least accepted by the employee. It can be difficult to distinguish gross negligence from other forms of negligence. The differentiation from slight negligence is still simple. According to case law, this is misconduct that can happen to anyone at any time. In the case of medium negligence, due care is disregarded, although the damage is foreseeable and avoidable. This is also the case with gross negligence. In this case, the duty of care is violated to an unusually high degree. Precautionary measures whose necessity is clearly present are ignored.
The existence of gross negligence must be clarified in each individual case. The case of a cleaner who was employed in a practice for radiological diagnostics and nuclear medicine is well known in the jurisdiction. She heard the alarm sound of a magnetic resonance tomograph and wanted to switch off the annoying alarm. She did not press the blue button (alarm silence), but the red button (magnet stop). This triggered an emergency shutdown, which damaged the device. The repair costs and the loss of use amounted to almost 50.000€. Her employer took the cleaner into recourse. The subsequent judicial clarification was conducted through all instances. In the last instance, the German Federal Labour Court ruled that the cleaner’s behaviour was grossly negligent and that she must pay for the damage. Due to the enormous amount of damage, however, her liability was limited to twelve monthly salaries. (Judgment text in German: https://www.bundesarbeitsgericht.de/entscheidung/8-azr-418-09/?highlight=Az.%3A+8+AZR+418%2F09)
One way of covering cases of gross negligence is to take out a private Diensthaftpflichtversicherung (also called Amtshaftpflichtversicherung). Such insurance covers the settlement of claims and fulfils justified claims of injured parties. In addition, it bears the costs for a (possibly judicial) examination whether claims asserted against the employee are admissible at all. This may in particular be the question of whether gross or „only“ medium negligence exists. Insurance cover for cases of intentional acts is not possible.