The driver, who was seriously injured, "did not respect the red light and the acoustic signals that regulate the passage, placing his vehicle in the path of the railway convoy." This is what the police report of the incident said, which occurred in March 2019 at a level crossing in the Biscayan municipality of Zalla, in which a worker was involved on the way to his workplace. The Ertzaintza collected as "cause of the accident" that the driver ignored the traffic light. As he assured in his report, the flashing red lights were “perfectly visible”.
However, skipping a level crossing is not always reckless. At least that is how the Asturian justice has sentenced it. The Superior Court of Justice (TSJ) of Asturias has ruled on this matter confirming what the National Institute of Social Security (INSS) already said when resolving the file: that it was an occupational accident.
The verdict of the sentence (whose text can be consulted here) dismisses the appeal filed by the mutual insurance company (Asepeyo) against the first resolution of the social court. The insurer insisted that it was reckless negligence whose consequences it did not have to take responsibility for. But, for the second time, the court considers that the employee's dismissal was caused by an accident at work that could have been motivated by "the desire to arrive at his position earlier." In addition, "the risk was connected with work," the court clarifies.
Therefore, it is Asepeyo who must pay the corresponding economic benefits. In addition, the TSJ condemns the mutual to pay 500 euros to cover the fees of the worker's defense attorney.
It all happened on the morning of March 7, 2019, when the man was on his way from his home, in Ribadesella, to the workplace in the Basque Country. Barely a month had passed since he had started working for the company when a train traveling from Bilbao to Balmaseda ran over his vehicle at the Zalla level crossing (Vizcaya). The driver was seriously injured and had to be evacuated by helicopter to the Cruces Hospital in Baracaldo. He was out for a little over ten months, until January 24, 2020.
He knows in depth all the sides of the coin.
The report of the Ertzaintza, to which the sentence refers, pointed out that the worker was driving on a neighborhood road and, when crossing the railway to reach the BI-3602 road, "he did not respect the traffic light in the red phase and the acoustic signals ”. In this way, he placed "his vehicle in the path of the railway convoy." It was recorded as the "cause of the accident" that the driver of the vehicle ignored the traffic light with two flashing red lights, which temporarily prohibited vehicles from passing. The agents were able to verify on-site that both the traffic light that regulated the passage and the acoustic signals were working correctly.
It so happens that Zalla, the Biscayan town where the accident took place, is full of level crossings. In total, the municipality has 34 of these footbridges, with or without a barrier (such as the case now sentenced by the Asturian justice system).
The social graduate who defended the interests of Asepeyo alleged that the injured worker had acted irresponsibly by ignoring the signs that prohibited the passage of vehicles. Therefore, according to legislation, the claim could not be classified as an occupational accident, even if it had occurred on the way to work.
Thus, he appealed to article 156 of the General Social Security Law, which determines that "those due to fraud or reckless negligence of the injured worker" will not be considered labor accidents.
However, the magistrates of the Asturian TSJ reject this thesis in their resolution. For the judges, the police report is “insufficient” to qualify as “reckless” the recklessness committed by the worker. Following the argumentation of the first judgment, they underline that "the specific circumstances surrounding the events are unknown." The mere infraction of the regulations when passing a level crossing without barriers with a red traffic light, they conclude, "does not determine per se reckless negligence."
According to the court, for an act of serious negligence to be classified as "reckless negligence", in order for the worker to be unprotected from labor regulations, a plus is required. As in the event that it had been proven that the driver acted with a "patent" disregard for risk, an issue that the magistrates do not appreciate in this case. The worker must be "fully aware" that there is a serious risk and, despite this, act against the "most basic guidelines" to avoid producing damage.
“We do not know, for example, if that level crossing without barriers that he crossed was his ordinary journey to work and his decision to do it with the red light was due to the confidence acquired in his daily behavior, or if the cause or reason for being of said conduct was motivated by the desire to arrive at his job earlier, with an unfortunate and wrong calculation of the risk he was assuming and which led to the fatal outcome”, they explain. "Or if more simply it was a pure negligence," they reflect.
As the court recalls, there are more cases of "protected professional recklessness" which can appear to be grossly negligent behavior. For example, a case in which it was considered an occupational accident that caused the death of a worker when he was walking "between or next to" the train tracks that hit him. The judge took into account that this was the way of doing it by the neighbors who passed through the place.