Is an accident during a break also
considered an accident at work?
October 2022 – An accident is qualified as an accident at work if it is work-related. An accident occurring in the course of work is therefore certainly an accident at work. Accidents on the way to work are also generally considered to be accidents at work. But what happens if the accident occurs during the break?
The facts
T works in company A. The working hours are from 6 a.m. to 6 p.m. in the evening. At lunchtime, T goes to eat in the refectory with two colleagues. He bends down to pick up plates from the bottom shelf, but makes a false move and locks his back. T finishes his day's work, but at night he goes to the emergency room. A week later, it turns out that he has a herniated disc.
The employer and his industrial accident insurer refuse to consider this event as an industrial accident, on the grounds that it was not a sudden event that could be delimited in time or space.
Referral to the Liège Labour Court
Also in the labour court, the employer states that there was no sudden event that caused the herniated disc. And even if it is accepted that the worker blocked his back while bending over in the refectory, this may be the result of a pre-existing pathology that only became apparent when the worker bent over.
The Labour Court of Liège takes up the general principles of an accident at work:
it must be a sudden event (this notion is interpreted in a very flexible way: bending over often can be qualified as a sudden event) ;
which causes an injury; and
occurs in the course of the performance of the contract.
The burden of proof of these elements lies with the victim of the accident who, once these elements have been proved, benefits from two legal presumptions:
where the existence of a sudden event and an injury is established, the injury is presumed, until proven otherwise, to have originated in the accident; and
an accident occurring in the course of the performance of the employment contract is presumed until proven otherwise, to have occurred as a result of that performance.
During the break
The court reiterated the view already taken by the Court of Cassation in 1978: an accident at work requires that the accident occurs in the course of the performance of the employment contract, and not necessarily during work.
Accidents that occur during the lunch break are also considered as accidents at work if it can be argued that the worker remained under the virtual authority of his employer during this break.
This is the case if the accident occurred in the immediate vicinity of the workplace and insofar as the person concerned was engaged in activities that are part of a normal use of rest time. This is the case if the worker is injured while tinkering in the workshop or playing football in the factory yard.
The court in Liège concludes that this is an accident at work: the sudden event (bending over) led to an injury (the herniated disc) during work.
The employer can only escape liability if he can prove that the herniated disc is exclusively the result of a situation that occurred before the sudden event (e.g. the worker had caught the herniated disc while doing sports before coming to work) or that the accident was caused because the worker was engaged in personal activities outside the normal use of rest time.
This is a question of fact, which must be assessed by the judge. As mentioned above, playing football during the break is not considered abnormal, but there is a case law that considers repairing one's own car or going shopping during the lunch break to be an abnormal activity.
