Insurance

1. Background

Today, Aarhus University is engaged in many outreach-related activities, ranging from internships (lower and upper secondary school students), the Rolling University, shows and visits from companies or individuals. As part of these activities, representatives from Aarhus University (AU) either go out and give lectures, demonstrate experiments, let the audience perform experiments etc., or open the university’s doors to let visitors take part in teaching activities, see the laboratories, follow the work in a research group and the like.

Common to all these activities is that they entail a number of questions and concerns as to what happens in case of an accident where a person is injured or laboratory equipment or other facilities are damaged. Who is responsible, and who will bear the financial risk?
 

2. What does it mean that AU is self-insured?

The state is self-insured, which means that state institutions, including AU, must not take out insurance, unless there is a written legal basis. AU is as self-insured, regarded as having taken out insurances. Consequently, AU will have to pay for any damage for which the university is liable for, and therefore acts as its own insurance company. AU is, thus, both employer and insurance company. This follows from the Self-Insurance Circular CIR no. 9783 of 9 December 2005 (Selvforsikringscirkulæret).

The reasoning for the self-insurance is that it is regarded as cheaper than if the state and state institutions took out insurance through a commercial insurance company.

As stated AU can take out insurances in specific cases, if there is a legal basis, for example:

• Liability insurance for cars abroad, if the insurance is required in that country.
• Directors’ liability insurance

3. Personal injury

3.1 Relevant acts

ŸConsolidated Workers’ Compensation Act (Arbejdsskadesikringsloven) (ASL)

With regard to work-related injuries, AU is bound by the rules set out in the Consolidated Workers’ Compensation Act, regardless of the fact that no insurance has been taken out, see section 48(4), read with section 50, of the act. Under the Self-Insurance Circular, Aarhus University must cover such injuries.

The Consolidated Workers’ Compensation Act sets out the injuries for which an employer is liable to employees. As AU cannot take out insurance, the university is liable in accordance with the provisions of the act. For this reason, the decisive factor is whether a person is covered by the act (see below). Persons not covered by the act must take out full-time accident insurance.

ŸConsolidated Working Environment Act (Arbejdsmiljøloven) (AML)

The act lays down minimum criteria for the safety and health rules employers must comply with in relation to employees. This applies, in particular, to the performance of the work, design and fitting-out of the workplace, technical equipment etc. and the handling of substances and materials.

An occupational health and safety organisation must be set up to ensure collaboration between employees and employers. In addition, the employer must ensure that a written workplace assessment of the safety and health conditions at the workplace is prepared and that there is effective supervision to ensure that work is performed safely and without risks to health.

The Danish Working Environment Authority is responsible for assessing whether an injury is an industrial injury within the meaning of the Consolidated Workers’ Compensation Act.                                       

3.2. Persons covered

ŸEmployees

All employees are covered by both the Consolidated Workers’ Compensation Act and the Consolidated Working Environment Act. For this reason, it is important to define when a person is considered an employee.          

According to the Consolidated Workers’ Compensation Act, the following persons are protected:

Persons who are engaged by an employer to carry out work in Denmark on the following conditions:

• An employment contract must have been concluded (written or oral).
• The employment contract may be permanent, temporary or casual.
• AU has the direct benefit of the person’s work. The work performed must fully or partly replace other labour which would otherwise be required, or must in all circumstances contribute to AU’s work assignments/projects.

AU has powers of direction in respect of the person in question. This means that AU is free to determine the nature and scope of the work, as well as the time and place of the work.

The work may be both paid and unpaid.

Persons who are employed to carry out work in Denmark, but who go on official trips of a short or long duration are covered by the Consolidated Workers' Compensation Act (Arbejdsskadesikringsloven) during their stay abroad. What is important is that the employee has performed work in Denmark, and that the plan is for the employee to return to Denmark to work again.

ŸStudents

Students are generally not covered by the Consolidated Workers’ Compensation Act. In cases where a student performs an assignment for the university (works in the university’s interest and under direction), any injury sustained during this work, may be considered an industrial injury.

The University Act extends authority for the university to take out insurance for students, but for financial reasons the management has decided not to do so. For this reason, it is recommended that all students take out private full-time liability and accident insurance.

ŸPhD students

A distinction is made between whether a PhD student is employed or enrolled without being an employee (for example, in the first part of the 4+4 scheme).

• Enrolled, employed PhD students are ranked in the same category as other employees and are, thus, covered by the protection afforded by the Consolidated Workers’ Compensation Act.
• Enrolled, non-employed PhD students are ranked in the same category as other students and should therefore take out their own full-time liability and accident insurance.
• As a general rule, industrial PhD students are not covered by the protection afforded by the Consolidated Workers’ Compensation Act. However, if they perform an assignment for Aarhus University, they are covered during that period.

ŸEmployees abroad

The Consolidated Workers’ Compensation Act covers employees who are employed to carry out work in Denmark. When assessing whether an employee abroad is covered by the rules in the Consolidated Workers’ Compensation Act, it is important to distinguish between employees who are employed in Denmark and on an official journey/stationed abroad, and employees with a fixed place of employment abroad.

• Employees with a fixed place of employment in Denmark who are on an official journey/stationed abroad are covered by the university’s obligations in accordance with the rules in the Consolidated Workers’ Compensation Act.
• Employees with a fixed place of employment in an EU/EØS country or Switzerland are also covered by the Consolidated Workers’ Compensation Act, cf. EU regulation
• Employees with a fixed place of employment in a country outside Denmark, EU/EØS or Switzerland is also covered by the Consolidated Workers’ Compensation Act under the State self-insurance circular.

International visiting scholars and scientists and international visiting PhD students

Visiting scholars and scientists are researchers working at AU for a limited period of time. During their stay at AU, they remain employed by another university and continue to perform their normal research duties, only with AU as a base.

Pursuant to section 22A of the University Act, from 1 January 2015 international visiting scholars and scientists and non-enrolled international visiting PhD students may be considered as covered by the self-insurance obligation, which means that the Consolidated Workers’ Compensation Act applies to them.

The university director has decided to consider all international visiting scholars and scientists and non-enrolled international visiting PhD students as covered by the self-insurance obligation.

A more liberal interpretation of this provision that includes persons other than actual visiting international scholars and scientists and international visiting PhD students may not be made.

ŸVisitors

On-the-job trainees

Generally speaking, on-the-job trainees are not covered by the Consolidated Workers’ Compensation Act. However, there are a number of exceptions which should be investigated on a case-by-case basis.

Exceptions include certain prospective students who are engaged in on-the-job training pursuant to the Ministerial Order on workers’ compensation of prospective students etc. Legal advisor Anja Sandholt Hald can be contacted in case of doubt via mobile 2778 2862, e-mail asa@au.dk. 

Visitors to Aarhus University

If an employee at AU injures a visitor, AU will, as a general rule, be held liable in damages. This liability cannot be excluded. For this reason, it is important to take the necessary precautions and inform visitors about how they must conduct themselves at AU.

If the injury is due to gross negligence on the part of the visitor, AU’s liability may be reduced, depending on the specific case.

A similar liability applies to employees demonstrating experiments and tests outside of the university.
 

4. Property damage

4.1 The Liability for Damages Act (Erstatningsansvarsloven)

As is the case for personal injury, the university is also self-insured for property damage.

The general rule in connection with property damage is that if an object is covered by insurance, the damage is covered by the property insurance, and the person responsible for the damage will not be held liable. However, this does not apply if the damage is caused intentionally or by gross negligence, see section 19 of the Liability for Damages Act.

Aarhus University may be held liable in damages in accordance with the general Danish legislation on liability in damages. The following conditions must be met:

• ŸLiability: The university or its employees must cause injury to others through reckless conduct or neglect.
• ŸLoss: The injured party must have suffered a loss.
• ŸCausation: The reckless conduct or neglect must have caused the injury/damage. The university is thus not liable for accidents.

4.2. Damage to university property

Based on the above, the university must cover the damage, unless the person causing the loss inflicted the damage intentionally or by gross negligence.

4.3 Damage to private property

ŸPrivate property
If employees’ belongings are damaged during the performance of their work, the university will be liable for this damage, unless it was caused by accident.

University activities outside of AU’s premises
In connection with activities undertaken outside of Aarhus University’s premises, it may be an idea to draw up a disclaimer of liability for property damage. It is possible that liability in damages in this situation will amount to contractual liability. It may, thus, be agreed that the party requesting that an activity be undertaken outside of AU’s premises will be liable for any property damage, provided, of course, that the university’s employees have complied with all general rules and regulations in connection with the activity.

4.4 Who is liable for damage to AU property e.g. tools and equipment?

In the event of damage to AU property, the university is, as a general rule, liable for the repair of such damage, see section 19, cf. section 20, of the Danish liability for damages act (erstatningsansvarsloven).

As the university does not have a central insurance pool, the expense must be covered by the main academic area, department or research environment that suffered the damage.

4.5 What is not covered by insurance?

ŸAccidents, e.g. loss of private mobile phone.

ŸTypes of loss other than those covered by the Consolidated Workers’ Compensation Act, e.g. loss of income.

5. Funding

This memo applies to both ordinary and external funding administered by Aarhus University.

6. The travel insurance policy for Danish government employees

The travel insurance policy provides coverage in the event of shorter and longer work-related trips abroad, but not in connection with actual transfers (permanent employment abroad).

The Agency for the Modernisation of Public Administration has decided not to add special USA coverage to the travel insurance policy, not even in connection with the conclusion of a new administrative agreement. The agency’s position is that each institution is responsible for assessing any special expenses that may be connected with sending employees to the United States. 

The travel insurance policy does not cover employees’ liability for damages in professional and work-related situations cf. the terms and conditions of the travel insurance policy. This means that if you travel abroad on business and accidentally cause injury to a person or damage to property while working, you are not covered by the travel insurance policy. Instead, the accident will be covered by the general Danish law of damages, according to which AU will be liable for accidents of this kind under the self-insurance scheme.

7. Types of visitors/schools visited by AU:

• Upper secondary school classes visiting Aarhus University: Academic lectures, guided tours, laboratory work. Taught by students and researchers employed by the department (the students are paid by AU, but employed by the department).
• Individual upper secondary school students, who for example, do a project at an AU department (more commonly in the laboratory with the individual research group).
• ŸUpper secondary and primary and lower secondary school students doing on-the-job training in an AU department for a few days.
• ŸChemistry show, Physics show and Nano Show: Shows at AU or schools/upper secondary schools. Payment is usually charged for shows at schools/upper secondary schools.
• ŸVoluntary associations supported financially by AU: Organise lectures, workshops and summer schools where they use AU’s rooms and laboratories.
• ŸThe Rolling University: Employed AU students teach upper secondary school classes at their schools for one day, where the school teachers are not present.

Examples of insurance cases

• An upper secondary school student is visiting an AU laboratory and breaks a device belonging to AU or a research group. Who is liable for this incident? (visitor not employed at AU inflicting damage on AU equipment)
  If the device is covered by property insurance, this insurance covers any damage to the device, see section 19(1) of the Liability for Damages Act. As Aarhus University is self-insured, the university is considered as having taken out property insurance for the device, see section 20 of the Liability for Damages Act.
  Consequently, if the damage was caused by accident, the visitor will not be held liable for the damage, and the repair costs must be borne by Aarhus University.
  Aarhus University does not have a joint pool for these situations, which means that the research group/department will ultimately have to bear the cost.
  Only where the visitor caused the damage deliberately or by gross negligence will the visitor be held liable.

• Physics Show is hired to do a show at a primary and lower secondary school. During the show, the floor of the school’s sports hall is damaged. Who is liable?
  (Property damage caused by AU employee at a location outside of AU).
  Is it relevant that the school has paid the Physics Show to come?
  The primary and lower secondary school has hired the Physics Show for a demonstration. This means that a contractual relationship exists between AU and the school, regardless of whether the school has paid for the show or not. In such case, it is recommended that a written agreement be made, stipulating, among other things, that the school will be liable for any damage occurring in connection with the show, provided, of course, that the AU employees have complied with all rules and regulations applicable to such events.

• An upper secondary school student visits AU with his class and accidentally pours a chemical substance over a fellow student/himself/an AU employee.
  (Visitor not employed by AU injuring himself/fellow student not employed by AU/AU employee during a visit at AU)
  Aarhus University is bound by the provisions of the Consolidated Workers’ Compensation Act, for which reason it has industrial injury insurance covering its employees but not covering students or visitors to AU.
  This means that, as a rule, AU is not liable for the visitor’s actions and, thus, for the injuries inflicted on the fellow student or himself. However, employees are covered in accordance with the Consolidated Workers’ Compensation Act.

• ŸWho is liable if a visitor damages property deliberately or by gross negligence?
  The general rule in section 19(1) of the Liability for Damages Act, according to which property damage is covered by any property insurance taken out, will lapse if the damage is inflicted by gross negligence or deliberately, see section 19(2) of the act.
  Hence, the visitor is liable in damages.

• ŸA group of upper secondary school students are doing on-the-job training at AU and stay overnight at a youth hostel/AU. Their accommodation was arranged by AU. Damage is inflicted on the youth hostel/a student is injured during the stay. Who is liable for this?
  Damage to the youth hostel
  As the agreement with the youth hostel was concluded between the hostel and AU, this amounts to contractual liability, and AU is liable for any damage. AU then has a claim against the person causing the damage, but it is not always possible to identify this person.
  Injury to students
  AU is not insured against injury to students and visitors. For this reason, it is recommended that all students and visitors take out their own full-time accident and liability insurance.

• ŸWhat if a voluntary association borrows laboratories and rooms for camps? (I know they have insurance covering camps, but is AU liable?)
  In connection with agreements on the use of laboratories and rooms, a contractual relationship is established between the association and AU. In such cases, it is possible to make an agreement on the insurance cover.
  In such agreement, it is, thus, important to write that the association is liable for any damage occurring in connection with its use of the rooms.

• Are the university’s own students covered by the university’s insurance while on an internship or work placement?
  The students are not covered by the insurance, neither when they are physically at the university nor while participating in an internship or work placement.
• Are trainees which the university takes in in connection with on-the-job training facilitated by the municipality covered by the Consolidated Workers’ Compensation Act?
  No, the university’s obligations do not extend to these trainees. However, they are covered in case of injury by the municipality in accordance with the act on active employment efforts.