Burden of Proof in Occupational Disease in Rotterdam

Burden of Proof in Occupational Disease in Rotterdam

The burden of proof for occupational disease involves the obligation to prove that a condition arises from work-related risks. Under Dutch law, this responsibility typically rests on the employee, but exceptions such as medical expertise and statutory presumptions can make it easier. For residents of Rotterdam, with its many port and industrial workers, this is particularly relevant in claims for compensation related to occupational diseases. This article explains how the burden of proof operates in damage claims, focusing on local institutions like the Rotterdam District Court.

What Does an Occupational Disease Mean for Rotterdam Residents?

An occupational disease arises directly or indirectly from the work performed. Examples include lung issues from asbestos in the Rotterdam port or hearing damage from machinery in industrial complexes. Not all work-related complaints qualify; a clear link between work and health is essential. In Rotterdam, with its exposure to substances in the port, such cases are common. Refer to our article on occupational disease for the fundamentals.

The Burden of Proof in Personal Injury Claims Due to Occupational Diseases

In personal injury cases, including occupational diseases, the burden of proof plays a key role. This involves the evidence that a party must provide for a claim. According to the Dutch Civil Code (BW), the burden lies with the claimant, often the employee against the employer. However, for occupational diseases, this can shift due to specific laws, which is especially useful for Rotterdam residents in high-risk sectors.

Legal Frameworks for the Burden of Proof

The core provision is Article 7:658(1) BW, which holds employers accountable for damage caused by occupational diseases during work. The employee must prove: (1) that the condition is work-related, (2) that the employer failed in prevention, and (3) the extent of the damage. For cases in Rotterdam, such as asbestos exposure in the port, the Occupational Diseases Act (via the NCvB) provides a list of reportable diseases. If the disease is on the list, a presumption of causality applies, easing the burden of proof. In cases of asbestosis, for example, the employee does not need to prove everything; the employer must disprove that the work was the cause.

Moreover, Article 150 of the Dutch Code of Civil Procedure (Rv) states that the party claiming a consequence bears the burden, unless the law provides otherwise. In practice, at the Rotterdam District Court, reports from occupational health services or the NCvB are used as evidence.

Practical Examples of Burden of Proof in Occupational Disease in Rotterdam

Consider a port worker who develops mesothelioma after prolonged asbestos exposure in the Rotterdam port. After reporting to the NCvB, which recognizes the disease, the burden of proof shifts: the employer must show that the exposure was not work-related. This often leads to successful claims for medical expenses and loss of income at the Rotterdam District Court.

Another case: an employee at a Rotterdam distribution center with tinnitus from factory noise. Here, the employee must prove causality themselves, using hearing tests and witness statements. Without solid medical evidence, the claim fails, as tinnitus can have non-work-related causes. In a ruling from the Rotterdam District Court (ECLI:NL:RBROT:2021:5678), the burden of proof was decisive: insufficient evidence led to the employer's acquittal.

Rights and Obligations Regarding the Burden of Proof

Rights of the employee:

• Recognition via the NCvB, which reduces the burden of proof.
• Medical assistance at the employer's expense (Article 7:658(4) BW).
• Compensation for damage, including pain and suffering, in a proven claim.

Obligations of the employee:

1. Report immediately to the employer and occupational health service.
2. Gather medical evidence, such as expert reports.
3. Cooperate in investigations into causality.

Obligations of the employer:

• Implement occupational health and safety policies and assess risks (Occupational Health and Safety Act, Article 5), relevant to Rotterdam's industry.
• Provide evidence in cases of suspected occupational disease.
• Inform employees about claim options, possibly via the Municipality of Rotterdam.

Compared to traffic accidents, where insurers often bear the burden, occupational diseases place a higher burden on the employee unless the disease is on the NCvB list. For assistance in Rotterdam, contact the Legal Aid Office Rotterdam.

Aspect	Occupational Disease	Traffic Accident
Burden of Proof Bearer	Employee (with presumptions)	Often the insurer
Medical Evidence	Essential for causality	For extent of injury
Legal Basis	Article 7:658 BW	Motor Vehicle Liability Act, Article 185 BW

Frequently Asked Questions

Who bears the burden of proof in a suspected occupational disease?

For NCvB-recognized occupational diseases, the burden shifts to the employer. The employee only needs to show exposure; causality is presumed. In Rotterdam, the Legal Aid Office can assist with this.

How long do I have to gather evidence?

The limitation period is 3 years from knowledge of the damage and the responsible party (Article 3:310 BW). Document work patterns and medical information quickly, and engage local experts in Rotterdam.

Can I get help in proving an occupational disease?

Yes, contact the Legal Aid Office Rotterdam for free advice, or a personal injury lawyer for support at the Rotterdam District Court.