Juma Nevk dos Santos
Lawyer at Marcos Martins Advogados Associados
With the advent of the 2002 Civil Code, strict civil liability was expressly consolidated in the legal system by means of the sole paragraph of article 927. However, this innovation has led to the following question being raised: should the employer pay compensation when an accident at work occurs, even when its fault in the event is not proven? This controversial issue has given rise to two positions.
The first is that the sole paragraph of Article 927 of the Civil Code does not apply in the event of an accident at work, as this matter was regulated in the 1988 Federal Constitution, which establishes that the occurrence of intent or fault is a prerequisite for compensation. Thus, many scholars believe that the CC provision is unconstitutional, arguing that the 1988 Federal Constitution, in its article 7, item XXVIII, adopted the subjective theory, based on the assessment of the employer’s fault. In this sense, a hierarchically inferior rule, such as the Civil Code, could not regulate differently from the Magna Carta.
On the other hand, there is the second current which defends the application of art. 927, sole paragraph, of the Civil Code in cases of accidents at work. The main argument put forward by the proponents of this view is that the list of rights mentioned in Article 7 of the Constitution does not prevent ordinary laws from extending existing rights or adding other rights that aim to improve the social condition of workers.
In view of this, although article 7 of the Federal Constitution contains a list of rights for urban and rural workers, and more precisely in item XXVIII, the employer’s liability for accidents at work, as a general rule, only when he is at fault, this does not preclude the application of the sole paragraph of article 927 of the Civil Code.
This is because the rule laid down in the CC is more beneficial and provides an even higher level of guarantee for workers, insofar as it transforms strict liability into a general rule for activities involving foreseeable risk. It also places the burden of proof on those who benefit economically from activities that generate risk.
Therefore, although the Constitution of the Republic establishes a minimum level of workers’ rights, there is no impediment to infra-constitutional rules introducing more beneficial rules. Article 7 of the 1988 Federal Constitution, which lists minimum rights for workers, cannot be interpreted as limiting their rights, nor can it provide a list of guarantees for the employer, the strongest party in the employment relationship.
Still on the subject, some scholars consider that the wording given to item XXVIII by the original constituent, in 1988, was intended to increase the discipline of the time, dispensing with the requirement of serious fault, which was established in case law. At the time, there were very few claims for compensation for accidents at work, given the difficulty of proving the serious fault of the employer by the victim or their relatives. Subsequently, in the 1990s, these actions began to have a considerable incidence in the common courts, generating pedagogical effects spread throughout society in terms of investments in accident prevention. Thus, the list of constitutional guarantees brought in by Article 7 of the Federal Constitution came to improve the level of rights experienced at the time, not to limit them.
Consequently, item XXVIII of art. 7 of the Federal Constitution does not exclude the application of a more beneficial infra-constitutional rule, in this case, the sole paragraph of art. 927 of the Civil Code, which is why the rule of strict liability is fully applicable in cases of accidents at work occurring in risky activities.
Furthermore, it is important to mention that the legislator, in the sole paragraph of Article 927 of the Civil Code, created an open-ended rule, as it did not provide guidelines or minimum characteristics of what should be considered risky activities. In this way, the delimitation of the concept of risky activity is left to the interpreter of the law, who must, in each specific case, analyze whether the activity is risky or not, and only once this stage has been overcome, apply strict liability.
In conclusion, it is stated that strict liability applies to cases expressly determined by law, or that the case law so determines, by application of art. 927, sole paragraph, of the new Code, which stipulates the aforementioned general clause of strict liability for cases of performance of risky activity. Corroborating this understanding, recent decisions by the TST have adopted the line that admits the application of strict civil liability when the employer carries out a risky activity.
