The seriously injured driver “ignored the red light and the acoustic signals that regulate the passage and parked his vehicle in the lane of the railway convoy”. This is what the police report says about the incident that took place in March 2019 at a level crossing in the municipality of Zalla in Biscay, in which a worker was involved on the way to his workplace. The Ertzaintza stated that the “cause of the accident” was that the driver ignored the traffic light. As he assured in his report, the red flashing lights were “perfectly visible”.
However, skipping a railroad crossing is not always reckless. At least that’s how the Asturian judiciary judged it. The Supreme Court of Justice (TSJ) of Asturias ruled on this matter, confirming what the National Institute for Social Security (INSS) had already said when resolving the file: that it was an accident at work.
The verdict of the verdict (the text of which can be consulted here) rejects the appeal of the mutual insurance association (Asepeyo) against the first decision of the social court. The insurer asserted that it was gross negligence for the consequences of which he was not responsible. But for the second time, the court considers that the employee’s dismissal was caused by an accident at work, which could have been motivated by “a desire to get to work sooner.” In addition, “the risk was associated with the work,” the court clarified.
Therefore, Asepeyo must pay the corresponding economic benefits. In addition, the TSJ ordered the mutual to pay 500 euros for the costs of the worker’s defender.
Everything happened on the morning of March 7, 2019, when the man was on his way from his home in Ribadesella to his workplace in the Basque Country. He had just started working for the company a month ago when a train running from Bilbao to Balmaseda ran over his vehicle at the Zalla (Vizcaya) level crossing. The driver was seriously injured and had to be evacuated by helicopter to Cruces Hospital in Baracaldo. He was out for just over ten months, until January 24, 2020.
He knows all sides of the coin in detail.
The Ertzaintza’s report, to which the sentence refers, indicated that the worker was driving on a street in the neighborhood and, crossing the tracks to reach the BI-3602 road, “ignored the red light and the acoustic signals”. In this way he “placed his vehicle in the lane of the railroad convoy”. The “cause of the accident” was recorded as the driver of the vehicle ignoring the traffic light with two red flashing lights, which temporarily prohibited overtaking vehicles. The agents were able to verify this on site that both the traffic lights that regulated the passage and the acoustic signals worked correctly.
Coincidentally, Zalla, the town in Biscay where the accident happened, is full of level crossings. In total, the municipality has 34 of these pedestrian bridges, with or without a barrier (like the case now being condemned by the Asturian judiciary).
The social scientist, who defended Asepeyo’s interests, claimed that the injured worker acted irresponsibly by ignoring signs prohibiting the passage of vehicles. Therefore, according to the law, the damage cannot be classified as an accident at work, even if it occurred on the way to work.
Therefore, he invoked Article 156 of the General Social Security Law, which stipulates that “accidents resulting from fraud or gross negligence on the part of the injured worker” do not count as accidents at work.
However, the magistrates of the Asturian TSJ reject this thesis in their resolution. For the judges, the police report is “insufficient” to qualify the recklessness committed by the worker as “reckless.” Following the reasoning of the first judgment, they emphasize that “the specific circumstances of the events are unknown”. The mere violation of regulations when passing a barrier-free level crossing with a red traffic light, so the conclusion, “cannot be determined per se grossly negligent.”
According to the court, a plus is required for the classification of a grossly negligent act as “slight negligence” so that the employee is not protected under labor law. As in the event that the driver was shown to have acted with “obvious” disregard for risk, which the judges fail to appreciate in this case. The worker must be “fully aware” that there is a serious risk and still act against the “most basic guidelines” to avoid harm.
“We don’t know, for example, whether the accessible level crossing he crossed was his usual route to work and his decision to red-light it was based on confidence in his daily behavior, or whether the cause or reason for this behavior was the desire to arrive earlier at his job, with an unfortunate and incorrect calculation of the risk he was taking, which led to the fatal outcome,” they explain. “Or if it was just sheer negligence,” they muse.
As the court recalls, there are more cases of “protected professional recklessness” that can appear as grossly negligent conduct. For example, a case where an accident at work was considered to be the one that caused the death of a worker as he walked “between or beside” the train tracks that struck him. The judge considered that this was the modus operandi of the neighbors walking through the site.