It’s worth noting sentence No. 21704 of 22 May last, in which the Court stated that the adoption of an Organisational Model pursuant to Legislative Decree No. 231/01 by the Company isn’t sufficient for the purposes of the exclusion of the entity's liability, but rather it’s necessary to demonstrate the suitability of the Model itself, by 'taking charge' of the specific risk relating to each individual activity.
The case concerns the death of an employee, an assistant at the plant of a company during the night shift, whose duties included monitoring the proper functioning of the plant. The employee, who had gone alone at night to the room where the plant was located to unblock a machine, was hit by a poisonous substance during the operations, which caused him to lose consciousness and fall to the ground, where the man was reached by the sludge present in the plant and suffocated.
The defendants and the company were charged with several violations, including failure to take measures to control the risk in case of emergency, failure to provide information on the procedures to be implemented, failure to set up a plant in compliance with essential safety requirements, as well as other violations also alleged against the company doctor, with specific reference to the presence of organic substances in the work cycle and the release of deleterious gases.
The Court's decision
The corporate liability is based on the failure to adopt the organisational and management precautions necessary to prevent the commission of the offences, and these precautions must be set out in a document that identifies the risks and outlines the measures to combat them (so-called Organisational Model).
However, the adoption of an Organisational Model and a Supervisory Board isn’t in itself sufficient to exclude the corporate liability, it must also be demonstrated that 'the specific risk had been considered in the Organisational Model'.
In particular, according to the Court, the Company had 'merely indicated that it had adopted the Model as early as 2014, highlighting parts of it in which the 'taking charge' of the specific risk relating to that work didn’t emerge, but only generic indications on instrumental equipment and the updating of minimum safety requirements. Therefore, the judges concluded that the company's 'policy' had not been oriented towards the implementation of safety'.
The company was held liable for not having concretely implemented the necessary procedures to minimise the risks and to control the characteristics of the premises in which it had to operate, as well as the circumstances of the maintenance operations (at night and without the presence of other workers) and the related emergency procedures. The Court attributed to this corporate choice a cost saving that allowed the company's administrative liability to be founded: in fact, the company didn’t foresee, among its management procedures, the preparation of a team of workers, trained and equipped, and this failure generated the dangerous situation that gave rise to the accident.