Article 156 of the Spanish General Social Security Act, (hereinafter referred to by its initials in Spanish “LGSS”), considers that any bodily injury caused to employees as a direct result of the work performed for their jobs to be an occupational accident including, among others, incidents taking place while travelling from the work centre to the workers’ normal residence and vice versa.

Doctrine and case law of the Spanish courts have determined the specific requirements or elements that must occur for an incident to be defined as an "in itinere" or "on route" occupational accident, which we explain below and, as can be seen from the judgement of the High Court of Justice of the Canary Islands of 15 March 2023 where it was determined that the aforementioned essential requirements can be summarised in four large blocks:

1. Teleological Requirement: The travel must have a single exclusive purpose, i.e. the employees’ work as such. In other words, the reason for the travel must be rendering or completing the employees’ work. However, an accident that occurs in situations directly related to the work performed for an employer is also accepted as an in itinere accident, such as workers travelling to receive their salary, obtaining medical treatment related to their work, business travel, among others.

2. Topographical Requirement: The accident must occur on the way to or from the workers’ home and their workplace. Moreover, the workers must have taken a suitable route, in other words one that is normal, usual or customary.

3. Mechanical Requirement: The means of transport used when the accident occurs must be reasonable and suitable to travel the distance from the work centre to the workers’ home or vice versa. Normal or customary transport is considered suitable when its use does not imply a serious and imminent risk; however the transport does not need to be the one systematically used.

4. The time taken for the travel must be reasonable and be within the normal time range for the route. Unjustified and prolonged delays in beginning the travel means the nexus causal with the work will no longer exist and the accident will be considered non-occupational. However, certain flexibility is allowed in cases of short and justified interruptions for business reasons.

Furthermore, the aforementioned judgement also stated that a worker’s testimony could be deemed sufficient evidence to determine whether or not an accident occurring under such conditions would be of an occupational kind.

Notwithstanding the foregoing, the judgement analysed this month ruled by the Supreme Court of 4 July 2023 offers us another standpoint by placing the focus of attention on a worker’s recklessness, which could rule out the occupational nature of an accident in spite of it meeting the aforementioned requirements.

What happened in this specific case?

The focal point of this discussion is placed on a worker who, after finishing his work, unfortunately began his journey home with other work colleagues. The employees who, for work reasons had to travel from Majorca to Manises, Valencia, decided to avoid the high amount charged to park their cars at the airport and opted to park them in an industrial estate nearby.

However, when the workers were on their way to their cars they decided to cross a wide and busy road between the airport and where their cars were parked resulting in one of them being run over.

The Civil Guard conducted an exhaustive investigation and concluded that the main reasons for the accident were the following: (i) It was against the regulations for the three pedestrians to cross the road, (ii) they were not wearing hi-visibility clothing, (iii) the driver of the car that ran over the worker was not paying attention and (iv) the fact there was no direct lighting meant they could only rely on the indirect lighting from a light tower illuminating the airport.

According to the foregoing, the basis of the legal debate in this case was related to determining whether or not the worker crossing the road implied reckless negligence, which could lead to the accident being ruled out as an occupational accident, according to Article 156.4.b) of the LGSS.

So… what was the judgement of the court?

The Supreme Court drew the following conclusions:

• Spanish case law stipulates that reckless negligence implies the worker having accepted obvious, unnecessary and particularly serious risks that cannot be deemed within the scope of people’s normal behaviour. In other words, the law requires a clear lack of precaution and care that could jeopardise the life or physical integrity of the person involved.
• In this case, the circumstances of the accident suggest that the worker’s conduct was reckless and irresponsible, all this based on the following: (i) He crossed a road with several lanes at night, without wearing hi-visibility clothing, (ii) He was carrying luggage and (iii) He did not cross the road at a place where that was authorised, implying an obvious and unnecessary risk.

Pursuant to the previous explanations, in this case the Supreme Court admitted the appeal for unifying doctrine (cassation) and dismissed the occupational nature of the worker’s accident. As previously mentioned in this article, this shows that these cases depend to a large extent on the casuistic of each situation and it cannot be considered that all accidents of this kind can automatically be deemed occupational accidents.