The Bottom Line
- Dual Liability is Real: Both hiring companies and temp agencies have a legal duty of care and can be held liable for damages when a temporary worker has an accident using their personal vehicle for work.
- Mileage Allowance Isn’t Enough: Simply paying a per-kilometer allowance does not absolve you of responsibility. The court expects you to explicitly warn workers that their personal insurance may not cover business-related incidents.
- Contracts Matter: Indemnity clauses in agency contracts are enforceable. In this case, while both parties were liable to the worker, the hiring company ultimately had to foot the entire bill, including the agency’s costs.
The Details
This case revolved around a seemingly minor incident: a temporary delivery driver, sourced from an agency, crashed his own car into a post while delivering flowers for the hiring company. The real issue emerged when his personal car insurance refused to cover the €3,348 in damages, citing the commercial nature of the trip. The driver subsequently sued both his formal employer (the temp agency) and the company he was working for (the hiring company).
The court confirmed that under Dutch law, the employer’s broad duty of care (Art. 7:658 BW) applies equally to both the agency that provides the worker and the company that directs their work. The court found both the agency and the hiring company negligent. Their critical failure was not in preventing the accident, but in neglecting the foreseeable insurance risk. Both companies were aware the driver was using his personal vehicle. The court ruled they had a clear obligation to proactively inform the worker that his personal insurance was likely insufficient for commercial use and to ensure adequate coverage was in place. The agency’s argument that its mileage allowance was meant to cover such costs was flatly rejected, as there was no proof they had ever explicitly communicated this or warned the driver about the insurance gap.
While both companies were found jointly liable to the driver, the final financial impact landed solely on the hiring company. The service agreement between the agency and the hiring company contained a standard indemnity clause, which stipulated that the hiring company would shield the agency from any such claims. The court upheld this contractual arrangement, ordering the hiring company to reimburse the agency for everything it had to pay the driver, plus its legal costs. This case serves as a sharp reminder for businesses to not only scrutinize their duty of care towards all workers but also to thoroughly review the indemnity clauses in their supplier and agency contracts.
Source
Source: Rechtbank Midden-Nederland
