By Rafael Mello and Israel Cruz

On September 4, 2019, the Brazilian Supreme Court (STF) began the trial of Extraordinary Appeal 828040 (RE 828040), which discusses the possibility of employers being held objectively liable in cases of work accidents. This matter was recognized as having repercussions according to STF theme 932:

“TOPIC 932 – Possibility of holding the employer objectively liable for damages resulting from work accidents.”

In other words, the decision to be handed down in this RE 828040 will bind all labor judges and Regional Labor Courts on the issue of the possibility of imposing objective liability on the employer in the case of work accidents, assigning them responsibility for compensation for damages resulting from such accidents even if they have not acted with fault. strictu sensu (negligence, imprudence or incompetence).

The judgment described above is based on the theory of risk provided for in the sole paragraph of article 927 of the Civil Code, namely:

Art. 927. Anyone who, through an unlawful act (arts. 186 and 187), causes harm to another is obliged to make amends.

Sole paragraph. There will be an obligation to repair the damage, regardless of fault, in cases specified by law, or when the activity normally carried out by the author of the damage implies, by its nature, a risk to the rights of others.

(gn)

In short, what is being debated in the STF is the possibility of standardizing the understanding that work accidents arise from the risk inherent to the activity carried out by the employer and, therefore, would fall within the “theory of risk” and legal hypothesis of art. 927, sole paragraph, of the Civil Code, holding the employer liable regardless of his fault.

On the other hand, the divergent current maintains that the Federal Constitution of 1988 (CF/88) is express on the modality of liability applicable to the hypothesis of an accident at work, as it establishes in its section XXVIII, of article 7, which establishes as a fundamental right of the employee “insurance against accidents at work, paid for by the employer, without excluding the compensation to which the employer is obliged, when incurring fraud or guilt”.

For those who defend the need for the employer to be directly at fault, the literal interpretation of art. 7, XXVIII of the Federal Constitution of 1988 is that the employer must pay compensation only when he/she is guilty of fraud or fault. However, it is known that the commands contained in article 7 of the Federal Constitution of 1988 constitute minimum guarantees in favor of the employee, so that if there are infra-constitutional provisions that are more beneficial to them in theory, they should prevail in the interpretation of the joint legal norms.

So much so that the majority of the STF plenary has already positioned itself in favor of the possibility of imputing the employer's objective liability in RE 828040.

However, the trial session was suspended due to the absence of Ministers Dias Toffoli and Celso de Mello, and should return to the agenda to finalize the trial and begin to enjoy the binding effect inherent in the recognition of general repercussions.