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1 Roj: STSJ CAT 1493/2011 Id Cendoj: 08019340012011100960 Body: Superior Court of Justice. Social Chamber Venue: Barcelona Section: 1 Appeal No.: 2150/2010 Resolution No.: 993/2011 Procedure: Appeal Ponente: AMADOR GARCIA ROS Type of Resolution: Judgment CATALONIA SUPERIOR COURT OF JUSTICE SOCIAL CHAMBER NIG: 08019 – 44 – 4 – 2008 – 0047399 mm MR. AMADOR GARCIA ROS MR. MIGUEL ANGEL FALGUERA BARÓ MRS. VERÓNICA OLLÉ SESÉ In Barcelona on February 8, 2011 The Social Chamber of the Superior Court of Justice of Catalonia, composed of the Honorable Mr./Mrs. cited above, IN THE NAME OF THE KING has issued the following J U D G M E N T No. 993/2011 In the appeal brought by Pañalón, S.A. against the Judgment of the Social Court 13 Barcelona dated September 1, 2009, issued in the procedure Claims No. 720/2008 and with -I.N.S.S.- (National Institute of Social Security), -T.G.S.S.- (General Treasury of Social Security), and Luis Pablo being appealed. The Honorable Mr. AMADOR GARCIA ROS acted as Ponente.
FACTS FIRST.- The aforementioned Social Court received a lawsuit regarding a work accident, in which the plaintiff alleged the facts and legal grounds deemed appropriate, ending by requesting a judgment in the terms thereof. After the lawsuit was admitted and the trial held, a judgment was issued on September 1, 2009, containing the following Decision: «That, dismissing the lawsuit filed by the company PEÑALÓN, S.A. against NATIONAL INSTITUTE OF SOCIAL SECURITY, GENERAL TREASURY OF SOCIAL SECURITY, AND Luis Pablo, in challenge of SURCHARGE FOR LACK OF SAFETY MEASURES, I must absolve and do absolve the co-defendants from the claims brought against them by the plaintiff company.»
SECOND.- In said judgment, the following facts were declared as proven: «FIRST.- That the worker Mr. Luis Pablo, with ID NUM000, born on 07-19-1973 and affiliated to Social Security with number NUM001, was employed by the company PAÑALÓN, S.A. dedicated to the Transportation of other goods by road, with his usual profession being TRUCK DRIVER. He suffered a work accident on 12-04-05 while performing the duties of his usual profession, checking the load of the truck he was driving while it was in motion without the handbrake engaged, causing it to move backward and trapping his arm. SECOND.- That as a result of said accident, he suffered injuries to his right arm, leading to the issuance of a resolution by the INSS on 02-08-2007 for temporary incapacity benefit and the declaration of Total Permanent Disability with effects from 02-09-2007 for «CRUSHING OF THE UPPER RIGHT LIMB WITH SEVERE FUNCTIONAL DEFICIT.», according to the administrative record.
THIRD.- 1) According to the report of the Labor Inspection of June 14, 2006, on page 12, «On December 4, 2005, when the worker-driver was making a displacement with a tanker truck, stopping at the La Pausa Service Area of the AC-16 in the municipal area of Rubí to check the condition of the cargo, noticing a slight loss of merchandise due to dripping. In the successive checking operations, the driver moved the truck to a different location to better observe, during one of which he omitted the parking brake and the truck moved backward trapping the driver’s arm against a wall, causing serious injuries.
The company is headquartered in Villarrobledo (Albacete) and has been requested in writing to provide all documentation regarding the vehicle, the activity performed, the employment relationship with the worker, Social Security contributions, and the corporate risk prevention management system, which has been adequately completed in writing. There are no apparent circumstances indicating a lack of safety measures on the part of the employer. The worker, residing in Rubí, was summoned to this Labor and Social Security Inspection on June 1, 2006, but did not appear.
2) Pages 14 to 16 contain a Violation Report issued by the Labor and Social Security Inspection of Barcelona number NUM002 dated 12-20-2007, which states the following facts: At the request of the worker’s legal representative, the citations to the plaintiff are verified, of which he claims to have no record, and requests the reopening of the proceedings. The worker and the lawyer appear at the inspection on September 14, 2007, and based on a new order dated October 25, 2007, the file is reopened, and the parties are summoned on November 8, 2007. The Director of HR of Pañalón, S.A. appears, but the worker’s representation does not, despite being warned by phone, they show up but fail to establish contact with the employer. Finally, on December 12, 2007, Mr. Victorino from the company and the worker and his lawyer meet; both parties make statements, with the worker stating that due to a breakdown of his truck, the Tarragona Delegation of the company assigned him a trip to Marseille to transport goods on November 30, 2005, with a tanker truck, also an IVECO but with different volume and characteristics. After unloading, he received instructions from the employer to go to the Shell facilities in Marseille to load acetone and unload it in Spain. He arrived on Saturday, December 3, 2005, in Rubí, parking at the «La Pausa» Service Area (near the worker’s residence) awaiting instructions for unloading on Monday. On Sunday, December 4, despite it being a holiday, he traveled from his home to the Area to check that everything was in order with the truck and its cargo, at which point he noticed a slight fluid leakage, prompting him to perform some checks, among which he interpreted deficiencies in the pumping pressure of the braking system’s tanks, which he attempted to adjust using the truck’s control computer, the operation of which he was unfamiliar with. Therefore, he attempted checks with the handbrake
and it was during this situation that he got off the truck convinced that there was pressure in the braking system. At that moment, the vehicle slid down the slope in the parking area, knocking him down and crushing his right arm, causing significant loss of organic mass and severe injuries. The worker alleges haste in the assignment of the new truck for which he had not specifically been trained in handling the mechanisms or how to resolve exceptional situations like the one that occurred on the day of the accident. He describes the training sessions as generic and explains that real training is acquired through practice, and in this case, the assignment of a new vehicle was made without the option of adequately knowing the solutions to problems like the one that arose on the day of the accident.
The company argues that the worker acted negligently at the time of the work accident. It provides technical documents proving that the truck involved in the accident was in perfect working condition, as evidenced by the fact that in the preceding days, it made the trip to Marseille and on the following Monday, with another driver, unloaded acetone in Spain without any complications. It provides evidence that on July 6, 2001, Mr. Luis Pablo was given the Driver’s Manual, which includes instructions (provided) for immobilizing the vehicle with chocks, activating all safety mechanisms in parking areas, and performing operations with the engine off in case of breakdown, and on March 2, 2005, he was provided with a document on information about occupational risk prevention with chemicals (at pages 68 to 74 the worker’s signature on this training action provided to the Inspection is recorded).
Having heard both parties, the Inspector concludes that although Mr. Luis Pablo had received written information on how to act in difficult situations like the one on the day of the accident, a determining circumstance occurred when a new tanker truck was assigned to him, without specific training, for the transport of dangerous goods on a trip to Marseille and back, with cargo on both legs, without ensuring full knowledge of the operation of all mechanisms and control systems by Mr. Luis Pablo, who may have made a mistake but undoubtedly motivated by the haste in assigning a new truck and the lack of specific training in fully understanding its capabilities. In this sense, the employer failed in the duty of care to the worker, to whom adequate theoretical and practical training should have been provided in preventive matters when changes in the functions performed or new technologies or changes in work equipment are introduced, so that such training should adapt to the evolution of risks and the appearance of new ones, repeating periodically if necessary.
It is established that the worker was assigned a new truck with characteristics different from the truck he normally used, without specific training in the full understanding of its capabilities due to time constraints.
As a result of the Inspection visit by company officials, documentation from the same, and an interview with the injured worker, the Labor and Social Security Inspector prepared a report, based on which an administrative proceeding for lack of safety and hygiene measures against the plaintiff company was initiated, as a result of Infringement Record number I82007000749857, which imposes an Administrative Penalty on the company for: «… non-compliance with article 17.1 of Law 31/95, of November 8, on Prevention of Occupational Risks to the extent that it provides for in article 15.4 of the aforementioned legal text, the effectiveness of preventive measures must anticipate distractions or non-reckless imprudence (in this case, it was excessive caution) that the worker may commit.»
Against this, the company filed an Appeal before the Director General of Labor Relations of the Department of Labor and Industry, requesting the annulment of Infringement Record 6043/2007, with no Resolution available resolving said appeal.
On February 7, 2008, a letter of Initiation of proceedings from the Labor Inspection was received by the INSS, and after the company’s allegations, a Resolution was issued by the National Institute of Social Security on April 11, 2008, declaring the existence of employer liability for lack of safety and hygiene measures at work in the accident suffered on 12-04-05; it was deemed appropriate that the Social Security benefits arising from said work accident be increased by 40% of all economic benefits resulting from the Work Accident, both those already recognized and those that may be recognized to the plaintiff in the future, charged to the company PAÑALON, S.A.
Against this Resolution, the appropriate PRELIMINARY CLAIM was filed, with an express Resolution from the INSS dismissing said claim dated July 22, 2008.
The company’s Attorney Adoracion states that the truck was new, delivered on November 30, she does not know, at the end of November, she cannot give a date; she is not aware of any accidents involving the plaintiff; it was inspected, no anomalies were detected, and it continued to travel; she knows nothing about the truck.
The plaintiff company requests that the Resolution of the National Institute of Social Security be revoked and that there be a declaration of no employer liability for lack of safety measures in the accident suffered by the co-defendant worker.
THIRD.- Against said judgment, the plaintiff announced an appeal, which was formalized within the deadline, and the opposing party, to which the appeal was contested, raised the proceedings to this Court, giving rise to the present appeal.
LEGAL GROUNDS FIRST.- Against the judgment of the lower court, which dismisses the plaintiff company’s claim, the present appeal is now filed, requesting a review of the proven facts, as well as in the legal challenge section, two articles are cited as infringed, 14 and 15 of RD 928/1998, and article 123 of TRLGSS and the jurisprudential and judicial doctrine, of different Courts of Justice that are cited.
SECOND.- Under the protection of section b) of article 191 of the Consolidated Text of the Labor Procedure Law, the need to include a new fact in the account is articulated, to which the following content should be given: «That the worker Mr. Luis Pablo, with ID NUM000, and affiliated to Social Security, with number NUM001, was employed by the company PAÑALON, S.A. dedicated to the Transportation of other goods by road, with his usual profession being TRUCK DRIVER, suffered a work accident on 12-04-05, although a holiday, when he traveled from his home to the Area to check that everything was in order with the truck and its cargo, verifying that there was a slight loss of merchandise due to dripping.
In the successive checking operations with the truck in motion, the driver moved the truck to a different location to better observe, during one of which he omitted the parking brake and the truck moved backward trapping the driver’s arm against a wall, causing serious injuries.» Essentially, the only thing sought is based on the documents attached to these proceedings at pages 12 and 13, to take into account that when the accident occurred, the worker was not performing his usual work, but was conducting vehicle checks without having previously immobilized it.
It should be noted that we cannot accept it, as it does not originate from an error in the assessment of the evidence, nor does it consist of an involuntary omission of a fact with sufficient relevance to change the sense of the ruling, it is enough to read the third fact and the first legal ground to realize this, that the documents attached to the pages indicated were already taken into account by the Court but their value that is now proposed was denied. Be that as it may, there is no doubt that the worker was conducting cargo checks, this is an activity inherent to his category of professional driver, but, furthermore, even if it were not, the verification itself indicates that the worker was performing an activity that could well be framed in those activities that, although not characteristic of his professional category, are carried out to ensure the effectiveness of those that are, and to prevent any harm to the company.
Also, in the second reason for the review of the proven facts, we are required to give a wording to the third proven fact, so it should be worded as follows: «It is proven that the worker was assigned a new truck that, as a whole
The first two reasons are dismissed.
THIRD.- Under the heading of section c) of article 191 of the Labor Procedural Law, the infringement of articles 14 and 15 of RD 928/1998 is denounced, all based on the thesis that the Court gave value to the appreciations or assessments made by the acting Inspector and reflected in the infringement report, which, according to the precepts mentioned, do not enjoy the presumption of certainty. Royal Decree 928/1998, of May 14, which approved the General Regulation on procedures for imposing sanctions for social order infractions and for settlement proceedings of Social Security contributions, provides in its Article 15 that «the reports formalized in accordance with the requirements established in the previous article will be endowed with the presumption of certainty of the facts and circumstances reflected therein that have been verified by the acting official, unless proven otherwise, in accordance with the provisions of additional provision fourth.2 of Law 42/1997, of November 14, organizing the Inspection of Labor and Social Security». The same provision is established, in article 32.1 c) of the Regulation itself with regard to settlement reports, in article 52.2 of Law 8/1988, of April 7, on Infractions and Sanctions in the Social Order, and in article 53.2 of the Consolidated Text of the Law on Infractions and Sanctions in the Social Order, approved by Legislative Royal Decree 5/2000, of August 4. With regard to the presumption of certainty enjoyed by the reports issued by the Labor and Social Security Inspection, repeated unifying doctrine of the Supreme Court has declared the following: A) The presumption of certainty not only extends to the facts that, due to their objectivity, are susceptible to direct perception by the Inspector, or to those immediately deducible from them, but also to those facts that are proven by means of evidence included in the report itself, such as documents or statements incorporated therein (Judgments of the Supreme Court of 23-4-90 ( RJ 1990\ 3138), 16-5-1996, 16-4-1996, 16-4-1996, 19-4-1996, 10-5-1996 ( RJ 1996\ 4116), 24-9-1996, 25-10-1996 ( RJ 1996\ 7708), 21-3-1997, 25-11-1997, 19-9-1997, 11-7-1997, 25-11-1997, 2-12-1997, 9-12-1997 ( RJ 1997\ 8864), 6-3-1998 and 6-10-1998 ( RJ 1998\ 7692), among many others). In other words, the presumption of certainty «must be understood to refer to the facts verified on the occasion of the inspection and reflected in the report, either because they are susceptible to direct perception by the Inspector at the time of the visit due to their visible objective reality, or because they have been proven by the Authority, either documentarily or by testimonies then collected or other evidence obtained, with reflection of these or at least allusion to them in the report drawn up; so that this legal presumption of certainty, which, in any case, is of a «iuris tantum» nature, loses strength when the facts affirmed in the report by the Inspector, due to their own significance, are not subject to direct appreciation, there is no mention in the report of the performance of other checks, or collection of testimonies or documents, checking of books, etc., that corroborate their existence» (STS of 27-5-1997 ( RJ 1997\ 8334), 26-7-1995 ( RJ 1995\ 6231), 23-2-88 ( RJ 1988\ 1450), and in the same sense Judgment of 17-6-1987 ( RJ 1987\ 4207)). On the contrary, when what is related in the report results from an activity of investigation and verification aimed at obtaining the conviction reflected in the report, although it is not the result of direct sensory perception of the Inspector, it will be up to the appellant to provide the precise evidence to demonstrate that the facts described by the Inspection do not correspond to reality (STS of 17-5-1996 ( RJ 1996\ 4201)). Therefore, the presumption of certainty not only extends to the facts directly and personally perceived or appreciated by the acting Inspector during the verification proceedings, but also extends, among others, to the facts verified through testimonies or statements, whether from workers or their legal representatives, the employer or its representatives or third parties. Examples of this are the Judgments of the Supreme Court of 10-2-1990 ( RJ 1990\ 750), 25-6-1991, 22-10-1991 ( RJ 1991\ 7730), 6-5-1993, 24-7-1997 ( RJ 1997\ 6228), 11-7-1997 and 15-3-2000 ( RJ 2000\ 3894). B) This presumption of certainty is based on the impartiality and specialization that, in principle, must be recognized in the acting Inspector (Judgments of the Supreme Court of 24-9-1996 ( RJ 1996\ 6795), 22-10-1996, 29 and 30-11-1996 ( RJ 1996\ 8708); 21-3-1997 ( RJ 1997\ 2100), 6-5-1997 and 2-12-1997, and 6-10-1998 ( RJ 1998\ 7692)), as well as in the objectivity that surrounds those who, without any particular interest, act in defense of the public interest (Judgment of the Supreme Court of April 26, 1989 ( RJ 1989\ 3140)). In other words, this value rests on the presumption of objectivity of all inspection activities until proven otherwise, and therefore, for its destruction, any type of evidence is not only admitted, but it must be direct, effective, and fully convincing to be able to disprove said presumption (Judgments of the Supreme Court of June 20, 1991 ( RJ 1991\ 4891) and October 7, 1997 ( RJ 1997\ 7041)). In the same, or similar, sense, the judgment of the Social Chamber of the Superior Court of Justice of La Rioja, rec. 324/2009, of November 20. In short, applying to the case at hand, the doctrine that precedes us, the only possible response to the criticism of the reason examined, is that which leads to its dismissal, taking into account that the infringement report, while it is true that it was drawn up two years after the accident occurred, it is also true that the inspection action started barely six months after the accident, as well as there is no doubt that the facts and circumstances it reflects were not only obtained from those facts that were directly verified by the acting
Inspector, but from the set of evidence elements that were requested by the Inspector, or provided directly by the parties, including not only documents, but also the statements of witnesses and affected parties. But, furthermore, it is also worth noting that even if it were true that the facts reflected in the report do not enjoy the presumption of certainty, it is also worth noting that it is the Judge of the instance who must give them the value that in the exercise of his function of evaluating all the evidence practiced in the trial, and in the present case, he elevated to the rank of proven facts the circumstances collected in the historical account, understanding, in view of the evidence 6 of the parties in the trial, that what happened was closer to the version described in the infringement report than to the one proposed by the company, since, this one that is the one that corresponds did not manage to prove that the facts and assessments that it collected were not true, much less that the conclusions reached by the Inspection were not true. An assessment that leads us to reject this first motive of legal censorship. FOURTH.- In a second motive, the infringement of article 123.1 of the General Law on Social Security is denounced, and it is based on denying the existence of a causal relationship between the accident and the fault, while the exclusive blame for reckless imprudence is imputed to the worker.
Of course, here’s the translation:
For the existence of a surcharge on social security economic benefits to be appreciated, it is necessary, as judicial doctrine has been reiterating, that three requirements be met: The first is the existence of a general breach of the security obligation and specific preventive duties. Regarding the indicated «general security obligation» that binds the employer, as the recipient of the prevention-security-protection duty against work risks affecting the personnel in their service, it is worth adding that there are two defining and proper performance objects. On the one hand, the protection of the life, integrity, and health of the salaried personnel, regardless of their contractual relationship (labor, administrative, or statutory), is configured as the «mediate object» of the performance owed by the employer, public or private, given the connection between the debtor’s business position and its condition, linked from the beginning and during the development of the agreed provision, as a guarantor of the horizontal effectiveness of a fundamental right, welcomed in article 15 of the Magna Carta, of which the worker is the holder and which must be respected, without hindrance or adulterating alterations, within the framework of the salaried work relationship. On the other hand, the presence of an «immediate object,» identifiable with the employer’s performance conduct, is configured as the second performance object proper to the security obligation. In this interpretative line, the employer’s performance conduct has a complex character since it is integrated by a mosaic of obligations, composed of preventive obligations of means and results, delimiting the structural plane of the employer’s protection duty. Thus, the employer’s protection duty, understood as a «prevention duty» of various content, is a multifaceted activity subject to parameters of diligence that, in recurrent judicial terminology, has been conceptualized as «maximum ordinary diligence required of a normal employer compared to the ends of industrial coexistence,» or as diligence required «of a prudent employer with ordinary criteria of normality to prevent or avoid a situation of risk to the life or health of workers.» In the situation concerning the «immediate» performance object of the security obligation, the generic duty of effective and diligent protection of the employer-debtor (public or private) to guarantee the safety and health of the workers in their service in all aspects related to work, includes the establishment of all appropriate measures for the prevention of risk in all phases and circumstances of the production process, an assertion that connects with the so-called integrated safety principle, which incorporates prevention into the entire organization of the production process, that is, «in the conditions of provision, social relations, and the influence of environmental factors on work.»
Additionally, it is necessary to specify whether the application of the surcharge requires the concretion of the «particular» (general or specific) preventive measure violated, or if, on the contrary, the violation of the general security obligation is sufficient. On this issue, we lean towards the doctrinal trend that defends a broad interpretation, which understands that the security obligation «does not always require the existence of a specifically planned and imposed measure» whose violation entails the imposition of the surcharge, a position that is based on the broad duty of supervision or «culpa in vigilando» of the employer, or on the dynamic and broad notion of the employer’s security debt. From this perspective, the breach of a preventive measure, general or particular, triggers the surcharge. Consequently, the problem of proving compliance with the security obligation shifts, in practice, to the procedural level: the employer must prove, case by case, that they have acted with full preventive diligence in order to ensure the «effective» protection of the safety and health of workers, complying with each and every one of the measures provided for by regulations or applying the preventive measures and recommendations suggested by the advisory administrative bodies. So that only in the event of fortuitous case, major force, or when the risk is proven to be inevitable or unforeseeable, will the surcharge not apply because we are not, as will be seen and despite its broad applicative scope, faced with an objective responsibility but, if preferred, quasi-objective (especially in relation to the breach of specific preventive obligations of result).
The second is the determination of the infringing employer, or rather the imputation title of the breach. The failure to adopt or the omission of safety and health measures at work must be attributable to the employer with intent or negligence. It is, therefore, a quasi-objective responsibility from the moment the concurrence of the causal nexus between breach of measures and the occurred loss (work accident) generates «ipso iure» the legal presumption of fault of the infringing employer; however, the fault factor is a constant element in judicial practice, and this is how a large number of jurisprudential rulings have understood it. So, it must be understood that the lack of diligence of the employer is what triggers the surcharge, as long as it falls within the subjective imputation circle, that is, within the parameters of predictability and avoidability, excluding force majeure and fortuitous events, which suppose the unpredictability and unavoidability of the accident. This means that if the company’s intent, fault, or negligence cannot be attributed, its responsibility regarding the surcharge should not be declared.
The last element that determines the imposition of the surcharge is the causation nexus between employer breach and professional accident. If the attribution on the grounds of intent, fault, or negligence is the «subjective» plane of employer responsibility for surcharge of benefits, the material causation nexus between the breaching conduct and the harmful illegal result (professional accident) corresponds to the «objective» plane of such responsibility. The work accident and occupational disease remain the «causative facts» on which, together with the preventive breach rigorously attributable to the infringing employer, the surcharge of benefits is centered. In other words, if there is a cause-effect relationship between employer breach and professional accident (since that is the causation nexus), the surcharge of benefits is activated. Thus, when the legislator, when speaking of work-related damages, identifies them with «illnesses, pathologies, or injuries suffered with reason or occasion of work», they are using a very broad causation relationship between work and linked damages, which is similar to that used by the TRLGSS (articles 115 and 116) for work accidents and occupational diseases. On the other hand, it is undeniable that work accidents and occupational diseases are damages derived from work, but if the causal link between the severity of the breach and its result is not proven, it is not possible to impose the surcharge of benefits; at most, we will be facing a simple work accident or an occupational disease whose effects are linked to the consequences offered by compulsory insurance. Therefore, in light of the account of proven facts, and of those other circumstances of equal value contained in the legal reasoning, the following can be highlighted: a) On Sunday, December 4, 2005, although it was a holiday, the worker traveled from his home to the area where the vehicle was parked, which he had left a few hours earlier, in order to check the condition of the truck and its load. At that moment, he noticed a slight leak. Faced with this situation, he proceeded to perform certain checks on the proper functioning of the hydraulic system, but when he was doing them, the truck slipped, and, unable to avoid it, his right arm was
trapped against a wall, causing serious injuries, which, after receiving the corresponding treatment, have been classified as total permanent disability; b) Likewise, it has been declared proven that the cause of this accident was the lack of specific training that would have been necessary to deal with this type of situation in a vehicle with which the worker was not properly familiar, as well as the recklessness of the actor, who should have checked before getting off the truck that he had correctly applied the handbrake and did not do so; c) And finally, the conduct described, as it appears from the infringement record, breaches the provisions of articles 17.1 and 15.4 of Law 31/1995, insofar as the company did not anticipate the possibility of distractions or imprudences that its workers might commit, nor did it give the injured party the necessary and sufficient training and time to familiarize himself with the specificities of the new truck that was delivered to him.
Therefore, now applying to these circumstances, the doctrine that precedes us, and it cannot be argued that we are faced with a work accident, and instead noting that the accident occurred due to professional recklessness – which could well be classified as a result of excessive zeal -, but, obviously, could have been avoided if the worker had been instructed in the handling of the new vehicle, obliges us to understand that such omission, as also did the Labor Inspection, not only violates the general prevention duty but also the specific one of providing specific training in the face of changes in work equipment, training that must be offered each time these types of modifications occur and as many times as necessary.
The next step, continuing with the doctrinal journey outlined above, leads us to determine whether this type of conduct can be attributed to the employer individually, and in this case, from what we have stated above, the employer should have foreseen and taken the corresponding measures, and by consciously failing to do so, only they are accountable, without prejudice, of course, without disregarding that the worker’s conduct was another contributing factor to the event’s occurrence, but, on its own, it does not prevent, as it cannot be qualified as reckless, the imposition of the surcharge, although it may be taken into account to weigh the percentage, or to reduce the possible civil liability that may arise for the company from the work accident. There is a very consolidated doctrine on the concurrence of faults that includes the sentences of the STS of July 22, 2010, RECUD 3516/2009; January 20, 2010, RECUD 1239/2009; and July 12, 2007, RECUD 978/2006.
To conclude, in light of what we are saying, it is obligatory to conclude that there is a relationship between the breach and its outcome, at least according to the account of proven facts and the legal grounds, where a clear cause-effect relationship is drawn between the breach (failure to adopt the corresponding safety measures) and its effect, the accident suffered by the worker, which, as we have been narrating, would undoubtedly have been avoided if the worker had been properly instructed.
FIFTH.- The dismissal of the appeal entails, in this case, the maintenance of the conviction in the terms indicated, since the company has not requested a reduction in the percentage of the surcharge, as well as the loss of the deposit made to appeal, and the condemnation to pay the costs incurred, including the attorney’s fees of the challenging plaintiff, which, considering the quality of their appeal, we set at 550 euros.
WE RULE that, dismissing the appeal brought by PEÑALÓN, S.A., against the judgment rendered by the Social Court No. 13 of Barcelona, dated 1/09/2010, in case No. 720/2008, for SURCHARGE OF BENEFITS, we must confirm the administrative resolution challenged in its entirety.
Once the judgment becomes final, the loss of the deposit made to appeal is ordered, and the appellant company is ordered to pay to the challenging party, the attorney’s fees, for their intervention in this instance, which we prudentially set at the sum of 550 euros.
Notify this resolution to the parties and to the Public Prosecutor of the Superior Court of Justice of Catalonia, and issue a certified copy to be attached to the case file, with the original being incorporated into the corresponding book of judgments.
This decision is not final and may be appealed to the Supreme Court for the unification of doctrine, before the Social Court, which must be prepared by written submission signed by a Lawyer and addressed to this Court, to be submitted within the ten days following notification, complying with the requirements established in Articles 2 and 3 of Article 219 of the Labor Procedure Law.
Likewise, in accordance with the provisions of Articles 227 and 228 of the labor procedural text, anyone (except for workers or their heirs, beneficiaries of the public Social Security system, those entitled to legal aid, the Public Prosecutor, the State, the Autonomous Communities, Local Entities, and the bodies dependent on all of them) attempting to file an appeal to the Supreme Court must deposit the amount of 300 euros into the account of deposits held by this Social Court of the Superior Court of Justice of Catalonia, opened at Banco Español de Crédito-BANESTO-, at Office No. 2015, located at Ronda de Sant Pere, No. 47, No. 0937 0000 66, followed by the indicative numbers of the appeal in this Court.
In the event of an appeal to the Supreme Court, the deposit of the amount of the sentence, when applicable, shall be made into the account held by this Court at BANESTO, at the office indicated in the preceding paragraph, No. 0937 0000 80, followed by the indicative numbers of the appeal in this Court, and must be proven to have been made at the time of preparing the appeal in this Secretariat.
So by our judgment, we pronounce, order, and sign.
Publication.- The foregoing judgment has been read and published on the date of its issuance by the Honorable Judge Ponente, of which I attest.