Kuwait Court of Cassation principle number 387

Summary: - A worker's lack of entitlement to compensation for a work injury. Its condition: that the employer establish, through an investigation he conducts, that the worker deliberately injured himself or that the injury occurred because of gross and intentional conduct by the worker. Article 65 of Labour Law No. 38 of 1964, applicable to the facts of the dispute because the injury occurred while it was in force. - Considering an injury to have occurred during and because of work. What does not preclude its being so considered: its occurrence away from the employer's premises. The condition for this. That the nature of the work requires its performance in other places. - The court of merits. It may adopt the conclusion reached by the expert in his report, together with the reasons on which it was based. The condition for this. That they lead to the conclusion reached and constitute a proper response to the material defence maintained by the litigants. Failure to comply with this. Its effect. Deficiency in reasoning. An example of a worker's entitlement to compensation for an injury sustained during and because of work despite his driving a vehicle for which he had not obtained a special driving permit from the Traffic Department, and despite the accident occurring away from the employer's premises and without obtaining a route sheet from his workplace, on the basis that these constitute purely traffic or administrative and organizational violations, although they do not reach the degree of gross misconduct by the worker. Rule: Although determining whether an accident occurred during and because of work is a question of fact independently determined by the court of merits, this is conditional upon its basing its judgment on sound reasons leading to the conclusion it reached. Article 65 of Private Sector Labour Law No. 38 of 1964—which applies to the facts of the case because the appellant's injury occurred while it was in force—provides that: "A worker injured in an accident because of and during work—or those entitled after him—shall have the right to compensation for the injury according to the schedule issued by a decision of the Minister of Social Affairs and Labour in implementation of this Article, provided that compensation shall not be payable if it is established by the investigation: a- that the worker deliberately injured himself. b- if the injury occurred because of gross and intentional misconduct on the part of the worker ...." This means that the employer's obligation to compensate the worker for a work injury requires the presence of 2 conditions: the first is that the accident occur because of work, and the second is that the accident occur while the worker is performing his work. The worker is not entitled to compensation for a work injury if the employer establishes, through an investigation he conducts, that the worker deliberately injured himself or that the injury occurred because of gross and intentional conduct by the worker. It is established in the jurisprudence of this Court that an injury is not precluded from being considered to have arisen from an accident occurring during and because of work merely because the accident occurred away from the employer's premises, where the nature of the work requires its performance in other places. The court's adoption of the conclusion reached in the expert's report, together with the reasons on which it was based, is conditional upon those reasons leading to the conclusion reached and constituting a proper response to the material defence maintained by the litigants; otherwise, the judgment is defective for deficient reasoning. That being so, the appellant maintained before the court of merits that his injury occurred while driving a vehicle belonging to the respondent, a matter the latter did not deny, during and because of his work for him. The challenged judgment inferred that the appellant's injury had not occurred during and because of work from the absence in the papers of anything indicating this and from the expert's report whose conclusion it adopted. The expert's report adopted by the challenged judgment affirming the first-instance judgment based its conclusion that the appellant was injured during work but had not submitted evidence that it occurred because of work on the respondent's defence before the expert: that the appellant was assigned to drive another vehicle (a tractor); that he had not obtained a special permit from the Traffic Department to drive that vehicle (a pickup); that he had not reported the accident to the police station; that his work was confined to the enclosure and he was not permitted to leave it; and that the accident occurred on the Al-Wafra desert road without a route sheet from the company. The expert recorded in his first report that he had asked the respondent for evidence of this defence and that he had not submitted it. The report's conclusion in this manner does not lead to its conclusion that the accident did not occur because of work. What is established in the papers—without dispute between the parties—is that the appellant was driving a vehicle belonging to the respondent during work. The latter submitted neither evidence nor an investigation he had conducted indicating that the appellant had taken possession of the vehicle without his consent, deliberately injured himself, or engaged in gross and intentional misconduct. This is not undermined by the accident occurring on the road away from the employer's premises, nor by the appellant's not holding a permit from the Traffic Department to drive that vehicle or a route sheet from his workplace. All of this may constitute purely traffic or administrative and organizational violations, but does not in itself negate the injury's occurrence because of work and does not reach the degree of gross misconduct by the worker that bars his entitlement to compensation for a work injury. Furthermore, the respondent is the person required to report the accident to the police station pursuant to Article 61 of the aforementioned Law, while reporting it by the worker is optional if his condition permits. That being so, and since the expert's report does not support its conclusion that the appellant's injury was not because of work, and the challenged judgment adopted it and made it a foundation for its ruling, the judgment is defective in a manner requiring its cassation.