JUDGMENT 35261 LUMBAR WORK ACCIDENT MR. ALBAN DE JESÚS LOAIZA GRACIA

CAUSE
1. Personal Protection Items
  1. Training
    1. Safety Procedure
2. Safety Suspension Kit
  1. Update Of Security Standards
    1. Inadequate Instructions
3. Inadequate Risk Analysis, Since The Supervisor Did Not Ensure The Total Evacuation Of Existing Stones On The Edge Of The Trench.
  1. Dangerous Environmental Conditions
    1. Inadequate Supervision
      1. Inadequate Instruction
4. Ascertain that the worker was not given the appropriate tools to carry out his work.
  1. Consider that it has been proven that the defendant entity has the occupational health program and that it has provided educational instruction on work accidents, especially with respect to what happened to Mr. Loaiza.
    1. Do not take it as proven that the employer breached his duties to provide sufficient safety to the worker, feet did not supply him with the appropriate PPE to avoid the accident or mitigate its effects.
5. Take for granted without being proven that the entity suing accredited compliance with the security obligations imposed by the aforementioned resolutions and Law 9 1979.
  1. Do not assume that the employer was at fault by not providing security and protection instruments.
    1. Do not take it as proven that the employer was at fault by accepting a private document but from which the accident occurred due to serious defects in supervision preceded by inadequate instruction.
COST
1. Indemnizaciones por accidente
  1.  Disability pension
    1.  Disability payment
2. Appraisal of damages, calculation and payment of lost profits
  1. Compensation for moral damage
    1. Compensation for non-pecuniary damage
3. Compensation for labor judgment in the name of Ismocol de Colombia in favor of the worker
  1. Consolidated loss of earnings and future $248,316,651
    1. Moral damage $ 20,000,000
      1. Damage to life of relationship $ 25,000,000
        In favor of minors $10,000,000
ASSUMPTION BENEFITS
1. The company ISMOCOL DE COLOMBIA SA in the First instance is not responsible
  1. That by testimonial evidence analyzed the defendant ISMOCOL DE COLOMBIA SA was not at fault in the work accident.
    1. Supposedly they complied with occupational health standards
      1. The accident occurred due to an unforeseen event.
TRANSFER OF LABOR RISK FIRST INSTANCE
1. BP Exploration Company Colombia Limited states that the safety bulletin does not refer to the particular accident suffered by the actor.
  1. ECOPETROL does not exist evidence that structures the employer's culpable action.
2. The company CONFIANZA S.A affirmed that the plaintiff did not prove the employer's fault that there are clear elements of evidence regarding the safety and prevention efforts.
  1. The COURT disregarded the recorded failure of said security bulletin where the company refers as the cause of the accident to: “inadequate risk analysis. The supervisor did not ensure the total evacuation of the existing stones on the edge of the trench.
    1. inadequate instruction
    2. inadequate supervision
    3. hazardous environmental conditions
    4. COURT
      1. Inadequate estimation of the risk by the company and a deficient employer's instruction and supervision activity.
DIFFERENCES
1. Rights Damages Anglo-Saxon
  1. It is based on the law of an eminently jurisprudential nature
    1. Judicial decisions are binding
      1. Decisions made in court can be annulled only by the court itself or through legislation.
        Legal system based on decisions made by the courts, that is, judges rule on their decisions based on principles, customs and jurisprudence.
2. Civil Liability
  1. It deals with the scope of the damage that occurs when breaching an obligation from a contract
    1. Compensation or reparation of the victim and its function from this perspective is purely compensatory.
      1. Protect the victim of the injury
        Adopted from the Roman legal system
Non-Contractual Civil Liability
1. It focuses more on the damage that is done in various situations by not fulfilling an obligation.
  1. Duty to repair the damages that fall on the person who by action or omission causes damage to another, intervening fault or negligence, regardless of any contractual relationship
    1. Unjustifiably causes damage to a person or their property, they must pay for it, even if there is no prior legal relationship between the parties
ETHICAL RESPONSIBILITY
1. It is clear that the company has a framework defined by norms, principles and values that the company specifies for the development of its activity, but in this case they were not put into practice.
  1. It is evident that the company does not focus on internal and external relations
    1. It was evidenced that in the first instance sentence the employer was being acquitted of all guilt and leaving the plaintiff who was the one who suffered the accident due to the company's negligence bad
      1. Where they mention that they put all their protocols into practice to avoid the eventuality
        Where the court accepts without verifying the documents that according to the bulletin had already informed the workers of their risks and what should be done for each activity without looking at the plaintiff's background.
    2. BUSINESS SOCIAL
      1. It is observed in the sentence that the company did not have control over the activities of its employees at the time of the accident because it does not know its environment
        The accident that occurred caused damage to the worker that, due to the negligence of the supervisor, could be avoided and economic and social damages could be avoided
        Damage to the family due to not being able to move
        Moral damages to family members
      2. The court in the second stay watches over, according to the law and the substantive labor code, that there was negligence on the part of the company in its security measures
        That it was not the worker's fault but the company's for not visualizing that the work hours were one in the morning and different in the afternoon
        That the supervision of the worker was not foreseen for the tasks performed and their protection implements.
        Negligence in not disseminating training or clear instructions for the activities that left more than half of the psychotic capacity to be able to continue working
OCCUPATIONAL HAZARDS
1. That the company SMOCOL S.A did not foresee or have guidance in terms of reviewing the personnel in the assigned tasks.
  1. That on the day of the accident the worker performed different functions in the morning than in the afternoon
    1. . That they had to go to the supreme court of justice in order for the company to comply or assume the labor novelty due to negligence in its control of occupational hazards
      1. That the organization did not see that instruction was disseminated regarding PPE and the dangers it had in its environment
        That the supervisor or immediate boss did not choose to verify or review the tasks to seek to mitigate the damage or severity of the accident in the worker

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JUDGMENT 35261 LUMBAR WORK ACCIDENT MR. ALBAN DE JESÚS LOAIZA GRACIA

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