Making a mistake at work does not automatically mean that you must bear all the personal injury damage yourself. In employer liability cases, ordinary inattention is something different from intent or wilful recklessness. The threshold for the latter is high. It must also be examined whether the employer had organised sufficient safety measures, instructions and supervision.
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Even so, the idea that “your own fault never counts” is also too absolute. The facts can be decisive for the duty of care, how the damage arose and the statutory defences. Has your employer or its insurer rejected your claim because you made a mistake? First have the exact reason and the evidence assessed. The general framework is set out on our page on workplace accidents and liability.
Arslan Advocaten. Updated: 20 September 2026.
Why ordinary inattention is not the same as wilful recklessness
Employees sometimes carry out tasks many times in succession. Attention can slip, and routine can cause a risk to be perceived as less serious. The safety organisation must take human behaviour into account. This does not mean that employees may ignore instructions, but it does mean that after an accident an employer cannot always simply say “you should have paid more attention”.
Article 7:658 of the Dutch Civil Code (BW) contains a special regime for damage suffered at work. Once it has been established that the employee suffered damage in the performance of his or her work, the employer can defend itself by, among other things, showing that it complied with its duty of care. In addition, the law refers to intent or wilful recklessness on the part of the employee. The precise burden of proof and the link with the accident must be assessed carefully.
In a claim on this legal basis, an ordinary mistake is not simply shifted onto the employee through a standard percentage of contributory negligence. A proposal that you should, for example, “bear half yourself because you were not paying attention” therefore deserves legal scrutiny. Under other bases of liability or legal relationships, the assessment may be different.
What does the Supreme Court say about wilful recklessness?
In its judgment in Pollemans/Hoondert of 20 September 1996, the Supreme Court of the Netherlands (Hoge Raad) set out a strict test. What matters is whether the employee, during the conduct immediately before the accident, was actually aware of its reckless nature. Merely knowing that a certain conduct is dangerous in general terms is not, in itself, sufficient.
The judgment concerned an accident during roofing work. For the significance of the ruling, it is particularly relevant that warnings given earlier and breaches of instructions do not automatically prove the required wilful recklessness. The court must assess the specific situation and the person’s awareness at the decisive moment. It is therefore incorrect to reduce the case to the rule that every breach of a prohibition causes the claim to lapse.
The link with the damage also matters. The statutory defence does not succeed merely because someone behaved carelessly. The role of that conduct compared with any shortcomings in safety must be examined. This requires more than a single remark by a supervisor after the incident.
Three different reasons for a rejection
1. The accident or its connection with the work is disputed. The employer may say that the injury arose elsewhere. In that case, the first issue is evidence that you suffered damage while performing your work. An early report, medical records, camera footage and statements can be important.
2. The employer says that sufficient safety measures had been taken. In that case, the duty of care is examined. Which risks were known or foreseeable? Which measures were reasonably necessary? Was the equipment safe, were the instructions understandable and was the supervision appropriate?
3. The employer relies on intent or wilful recklessness. In that case, that specific defence must be tested against the strict standard. That is not the same as a general reproach that you could have carried out a task differently. Therefore ask the other party to make clear on what grounds liability is being denied.
Breaching a safety instruction
Breaching an instruction may be relevant, but the assessment does not end there. Was the instruction suitable for this task? Was it explained in an understandable way and was it practically workable? Was compliance supervised? Was the same deviating working method used by colleagues or tolerated by supervisors? Was production given priority over working safely?
A signed list of instructions does not automatically prove that every necessary measure was in place. Conversely, the absence of a signature does not automatically make the employer liable: oral explanations, demonstrations and actual supervision may also be relevant. What matters is the actual safety organisation and its significance for the accident.
For employees who speak another language, it must be examined whether the explanation was genuinely understandable. See also safety instructions, language and liability. Do not only state that your command of a language is insufficient, but also which words, steps or risks remained unclear.
Removing a safety guard or fixing a malfunction
In machine accidents, disputes regularly arise about a protective cover, an emergency stop or the way in which a malfunction was fixed. The technical set-up, the state of maintenance and the usual working method are then important. Who was allowed to intervene? Had the machine been safely shut down? Could it restart unexpectedly? Which alternative working method was prescribed?
Illustrative example: an employee removes a jammed product in the way colleagues often do. The employer argues that he should have waited for the technical department. The existence of that instruction, actual practice, supervision and the possibility of intervening safely must be examined. The example does not automatically mean that the employer or the employee is liable.
Do not modify the machine or workplace yourself in order to reconstruct a situation. Ask for photos, logbooks and maintenance records to be preserved. A technical investigation may be necessary, but its scope and cost must be proportionate to the dispute. Safety and medical care always take priority over gathering evidence.
“I said myself that it was my fault”
After a shock, people sometimes say that they were not paying proper attention. Such a statement may be put forward as evidence, but it is not an automatic legal finding of wilful recklessness. The difference between a description of the act and a conclusion about liability is important.
Tell honestly what you did and what you remember. Indicate if an earlier statement was incomplete, was translated incorrectly or was drawn up under time pressure. Do not alter original messages and do not try to get witnesses to agree on a single shared account. Differences that have been reliably recorded are easier to assess than statements that have been aligned with each other afterwards.
A document containing a waiver of rights or a final discharge may have more far-reaching consequences than a simple incident report. Only sign such a document once you understand its content and consequences. Keep a copy of every form you have already completed.
Alcohol, drugs, horseplay and deviant behaviour
These circumstances may carry considerable legal weight, but even then a general rule found on the internet is not enough. What is relevant is the specific conduct, knowledge of the risk, the connection with the work, the cause of the accident and what the employer knew or should reasonably have done. Other legal questions, such as a sanction under employment law, may arise alongside the personal injury claim.
A dismissal dispute and a damages claim do not automatically have the same outcome. Whether conduct took place in the course of the work may also give rise to a separate dispute. Present the facts in full, even if you think certain circumstances are unfavourable. That way, defences and time limits can be assessed realistically.
Which evidence helps when contributory negligence is alleged?
- The full rejection letter and earlier correspondence.
- The instructions for your specific task, including versions and dates.
- Information about training, guidance and supervision on the shop floor.
- Photos, camera footage, job sheets and malfunction or maintenance records.
- Statements about the usual way of working and any time pressure.
- Your own description of events before, during and after the accident.
- Medical records that help substantiate how the injury arose and developed.
If there is no witness, look at other sources. A message sent immediately after the event can, for example, support a time, without in itself proving how the machine worked. Each piece of evidence has its own significance. More information can be found in workplace accident without witnesses.
What does an investigation by the Labour Inspectorate involve?
An investigation into working conditions by the Netherlands Labour Authority (Arbeidsinspectie) can produce important facts. However, a fine or an established violation is not the same as a final civil ruling on all the damage. Conversely, the absence of a fine does not automatically mean that a personal injury claim is doomed to fail. The question under investigation and the legal standard may differ.
In the event of death, hospital admission or permanent injury, the employer has an immediate duty to report; this also applies if such a consequence only becomes known later. See the rules for reporting a workplace accident. Do not wait solely for an inspection report before securing evidence or assessing the limitation period.
Having a rejection assessed and recording your damage
A targeted response first addresses liability and evidence. At the same time, you should keep track of your damage: costs, lost income, help at home and limitations. If liability is acknowledged later, that information is needed to calculate the claim. A dispute about your conduct does not make gathering it any less important.
Ask in advance how the legal assistance will be paid for. If liability is established, reasonable extrajudicial costs may be recovered under statutory conditions. Litigation, insufficient cover or a rejected claim may give rise to other costs. An assessment of the costs and prospects is therefore part of handling the case.
Frequently asked questions
Do I lose my claim if I made a mistake myself?
No, not automatically. Ordinary inattention differs from intent or wilful recklessness. The employer’s safety measures and the cause of the accident must also be examined.
Is ignoring a warning always wilful recklessness?
No. A warning may be relevant, but it does not automatically prove that immediately before the accident you were actually aware of the reckless nature of your conduct.
May the insurer deduct a standard percentage for contributory negligence?
Under Article 7:658 of the Dutch Civil Code, ordinary contributory negligence cannot simply be applied as a standard deduction. Have the legal basis, the facts and the reasoning behind a proposal assessed. Other bases of liability may have different rules.
Is my signature on a safety form decisive?
Not in itself. The content, how understandable it was, practical implementation, other measures and supervision remain relevant. The form is one part of the evidence.
Is a second opinion useful after a rejection?
A fresh assessment can clarify whether the correct legal standard was applied and which evidence is missing. That is no guarantee of a different outcome. Bring the full rejection and the documents available to you.
Discuss your rejection with Arslan Advocaten
Contact us if your employer or its insurer is relying on your own fault. Include the date of the accident, your work and the exact reason for the rejection. We can assess which facts and legal questions are decisive in your situation.
Sources
- Dutch Civil Code, Book 7, Article 658
- Supreme Court of the Netherlands, 20 September 1996, Pollemans/Hoondert
- Netherlands Labour Authority (Nederlandse Arbeidsinspectie): workplace accidents
- Dutch Personal Injury Council (De Letselschade Raad): costs
