Investments in renewable energies Wind farm in Poland – liability for occupational health and safety and damage – between strict liability and contractual regulation

Wind farm owner – liability regardless of fault

A wind turbine installation constitutes an enterprise set in motion by the forces of nature. The owner is liable for damage caused to anyone by the operation of the enterprise — regardless of whether the owner exercised the highest degree of care.¹ The “operation of the enterprise” is understood broadly: it covers the entire organisational and production activity, including management and administrative activities.²

Exemption from liability is possible only in the case of force majeure, the exclusive fault of the injured party or the exclusive fault of a third party. However, employees, subcontractors, service contractors and all persons providing services for the wind farm are excluded from the category of “third parties”. If the cause of the damage lies with them, the owner remains liable.³ This liability cannot be contractually excluded or limited towards the injured party.⁴

If another enterprise set in motion by the forces of nature operates at the same time on the wind farm site, for example, a construction company using heavy equipment, both entities may be jointly and severally liable for the damage.⁵

Wind farm manager – limited but real liability

A company managing a wind farm, acting on the basis of a power of attorney granted by the owner, is generally not an enterprise set in motion by the forces of nature. Therefore, it does not bear strict liability.⁶ However, it may be liable in three main areas:

Contractual liability — for the performance of contractual obligations, including those related to safety. Contracts may include indemnity clauses shifting the economic burden of specific events.⁷

Liability as manager of a building structure — the obligation to maintain the facility in a condition ensuring safe use, including in the event of strong winds, lightning strikes, heavy rainfall or fires.⁸ A breach of this obligation constitutes an offence punishable by a fine of not less than 100 daily rates, restriction of liberty or imprisonment for up to one year.⁹

Liability for occupational health and safety — towards its own employees, contractors, self-employed subcontractors, as well as third parties present at the workplace.¹⁰ The employer’s responsibility is unconditional — it is not affected by employees’ own duties or by entrusting tasks to external specialists.¹¹

Coordination of occupational health and safety where multiple entities are involved

Where employees of different employers work in the same place, it is necessary to appoint an occupational health and safety coordinator responsible for supervising the safety of all employees, to establish rules of cooperation and to exchange information about hazards.¹² The appointment of a coordinator does not release individual employers from their own responsibility.¹³

Criminal liability – who may be affected?

A person responsible for occupational health and safety who fails to fulfil their duty and exposes an employee to an immediate danger of loss of life or serious bodily injury is subject to imprisonment for up to three years. In the case of unintentional conduct, the penalty is imprisonment for up to one year.¹⁴ The perpetrator may not only be the employer, but also any person managing employees, by virtue of the nature of their function, regardless of whether this is expressly stated in the contract.¹⁵

Liability may also be borne by a person who has contractually assumed occupational health and safety duties. However, such an extension does not release the employer from responsibility.¹⁶ A person managing employees does not have to be an employee themselves.¹⁷

Irrespective of the above, failure to comply with occupational health and safety regulations constitutes an offence punishable by a fine ranging from PLN 1,000 to PLN 30,000.¹⁸

PN-EN-50110 standard and the limits of contractual extension of liability

The application of Polish Standards has been voluntary since 2003. In the context of wind farms, the obligation to apply the PN-EN-50110 standard most often results from the contract — not from generally applicable law.¹⁹

The key limitation is that a debtor may contractually extend its liability, but only for circumstances that are expressly and precisely specified. The intention to extend liability should follow from the contract in an unequivocal manner — it cannot be presumed.²⁰ This means that a general clause on “ensuring safety” does not automatically constitute the assumption of strict liability.²⁰

How can the risk be limited?

By precisely allocating duties in the contract between the owner, the manager and the service provider; ensuring the qualifications of persons working on energy equipment, confirmed by the required qualification certificates;²¹ maintaining complete occupational health and safety documentation, including instructions on the organisation of safe work and written work orders for particularly hazardous work;²² contractually obliging subcontractors to comply with the required safety rules, together with control mechanisms; and ensuring a clear structure of responsibility within the company’s management board.

Footnotes

¹ Art. 435 § 1 of the Polish Civil Code.

² Judgment of the Polish Supreme Court of 5 January 2001, V CKN 190/00.

³ Art. 435 § 1 of the Polish Civil Code in fine.

⁴ Art. 437 of the Polish Civil Code.

⁵ Art. 441 § 1 in conjunction with Art. 435 of the Polish Civil Code.

⁶ Art. 435 § 1 of the Polish Civil Code — the prerequisite for liability is the use of the forces of nature as a necessary condition for achieving the economic purpose of the enterprise.

⁷ Art. 471 of the Polish Civil Code et seq.

⁸ Art. 61 of the Polish Construction Law.

⁹ Art. 91a of the Polish Construction Law.

¹⁰ Art. 304 § 1 and § 4 of the Polish Labour Code.

¹¹ Art. 207 § 1 sentence 2 of the Polish Labour Code.

¹² Art. 208 § 1 of the Polish Labour Code.

¹³ Art. 208 § 2 of the Polish Labour Code.

¹⁴ Art. 220 § 1 and § 2 of the Polish Criminal Code.

¹⁵ Art. 212 of the Polish Labour Code.

¹⁶ Art. 220 of the Polish Criminal Code in conjunction with Art. 207 § 1 of the Polish Labour Code.

¹⁷ Art. 212 of the Polish Labour Code — a person managing employees does not have to be in an employment relationship.

¹⁸ Art. 283 § 1 of the Polish Labour Code.

¹⁹ Art. 5 sec. 3 of the Act of 12 September 2002 on Standardisation; Art. 51 of the Polish Energy Law.

²⁰ Art. 473 § 1 of the Polish Civil Code; judgment of the Polish Supreme Court of 29 November 2002, IV CKN 1553/00.

²¹ Art. 54 sec. 1 of the Polish Energy Law.

²² § 4 and § 28 of the Regulation of the Minister of Energy of 28 August 2019 on occupational health and safety at work with energy equipment, consolidated text: Journal of Laws of 2021, item 1210.