Is strict liability strictly necessary?
The Court first examined whether Article 5(1) of Directive 89/391 required Member States, as the Commission submitted, to impose no-fault liability on employers for all accidents that occur in the workplace. Article 5(1) provides that; • “The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work” The European Commission argued that this was an absolute duty. However, Article 5 (4) allows Member States to provide for; • “the exclusion or the limitation of employers’ responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.” The ECJ was clear that the Directive allowed for certain limited defences to be permitted, by way of limiting or excluding liability. This prevented the Commission from establishing that Member States could only transpose the obligations throu
