Facts
The case concerns the death of a temporary worker, [B.], which occurred on a construction site. [B.] was employed by the temporary employment agency [L. SA] and his services had been hired by the company I. SA, which was carrying out the work on the construction site. After B.'s death, his wife and son filed a claim for damages against I. SA, as well as several of its employees, and against [L. SA] and its personnel consultant A.
The Court of Justice held I. SA in bankruptcy, [D.], [M.] and [C.] jointly and severally liable to compensate B.'s family for the loss of support and moral damages. It also ordered [L. SA] and A. to pay a portion of the damages, but granted them the employer's liability privilege provided for in Art. 44 para. 2 LAINF.
I. SA in bankruptcy, [D.], [M.] and [C.] appealed against this decision, disputing the application of the liability privilege to [L. SA] and A.
Considerations
The Federal Tribunal dismissed the main appeal of the appellants, based on the violation of Art. 44 para. 2 LAINF. It considered that the temporary employment agency, in this case I. SA, cannot invoke the employer's liability privilege provided for in this provision.
According to the Federal Tribunal, Art. 44 para. 2 LAINF only applies to the employer who is legally bound to the injured worker and who must pay the premiums for the mandatory accident insurance in accordance with Art. 91 para. 1 LAINF. However, in the case of personnel leasing, it is the temporary employment agency, here [L. SA], that pays these premiums. The temporary employment…