"About a lawsuit she filed..."
Nov 1, 2022
From: Attorney Shlomi Hadar - John Geva, Hadar & Co. - Lawyers and Mediators
introduction
Our case concerns a tort claim by an employee against his employer (contractor) and the insurance company (which insured the employer with employers' liability) due to his fall from a ladder and the bodily injuries that resulted from it, with the parties disagreeing on both the question of liability and the amount of the damage.
The facts of the case
According to the lawsuit, in the course of the plaintiff's work, he was required to climb a 1.5-meter ladder, holding a hammer.
In his main testimony, the plaintiff gave a version
As for the defendant's conduct, it was claimed that it was a ladder that was inspected and found to be standard, 130 cm high, placed on stable ground, and that the defendant conducted safety training for its employees on a daily basis.
As for the level of disability, due to discrepancies between the parties' opinions, an expert was appointed by the court who determined, among other things, that the plaintiff has a total of 19% disability.
מאת: עו"ד שלומי הדר- ג'ון גבע, הדר ושות' - עורכי דין ומגשרים
מבוא
ענייננו בתביעה נזיקית של עובד אל מול מעסיקו (קבלן) וחברת הביטוח (אשר ביטחה את המעסיק בחבות מעבידים) עקב נפילתו מסולם ונזקי הגוף שנגרמו בעקבותיה, כאשר הצדדים חלוקים הן בשאלת האחריות והן בשאלת גובה הנזק.
עובדות המקרה
על פי כתב התביעה, אגב עבודתו של התובע, נדרש לעלות על סולם בגובה 1.5 מטר, כשבידיו פטישון. לטענתו, בעת שירד מן הסולם, החל הסולם להתנדנד, ומשכך נפל ארצה. הנפילה גרמה לחבלות באגן הירכיים ובירך רגלו הימנית של התובע, וזאת בשל מכשיר "קונגו" (מכשיר קידוח), שהיה מונח על הרצפה.
בתצהיר עדותו הראשית, מסר התובע גרסה לפיה בעת שעמד על הסולם והיכה בפטישון, החל לפתע להתנדנד הסולם והתהפך כשהוא עליו. בנוסף מבהיר התובע, שטרם עבודתו עם הפטישון, עבד על הסולם עם מכשיר הקונגו, והוא זה שהניח אותו "במרחק שני מטרים" מהסולם.
באשר להתנהלות הנתבעת, נטען על-ידה, כי מדובר היה בסולם שנבדק ונמצא תקני, בגובה 130 ס"מ, שהוצב על קרקע יציבה, וכן, כי הנתבעת ביצעה על בסיס יומי הדרכות בטיחות לעובדיה.
באשר לגובה הנכות, בשל פערים בין חוות דעת הצדדים, מונה מומחה מטעם ביהמ"ש אשר קבע, בין היתר, כי לתובע סה"כ 19% נכות.
The parties' claims on the question of liability
According to the plaintiff, the defendant was negligent in breaching its duties as an employer, as well as violating statutory provisions. Among other things, he claims that the defendant failed to provide him with appropriate equipment, to introduce a work method, and to warn him of unreasonable risks. The court found his testimony reliable, for this reason and due to the defendant's failure to bring relevant witnesses to the case. The court found no justification for attributing contributory guilt to the employee.
According to the defendant, there was no fault in her conduct. The plaintiff's fall from the ladder does not in fact indicate liability for his damage. According to her, no defect in the ladder was proven, so if his claim is accepted, he should be attributed 100% contributory fault for placing the Congo nearby.
According to the plaintiff, the defendant was negligent in breaching its duties as an employer, as well as violating statutory provisions. Among other things, he claims that the defendant failed to provide him with appropriate equipment, to introduce a work method, and to warn him of unreasonable risks. The court found his testimony reliable, for this reason and due to the defendant's failure to bring relevant witnesses to the case. The court found no justification for attributing contributory guilt to the employee.
According to the defendant, there was no fault in her conduct. The plaintiff's fall from the ladder does not in fact indicate liability for his damage. According to her, no defect in the ladder was proven, so if his claim is accepted, he should be attributed 100% contributory fault for placing the Congo nearby.
The court recognized the employer's liability, to the extent that he acted negligently or violated a statutory duty, and did not prevent foreseeable dangers to the employee, which he could and should have foreseen. When precise prediction of all the details of the process of causing the danger is not required, and it is sufficient if the occurrence can be predicted in general terms. However, the employer is not held absolutely responsible for any damage caused to the employee in the course of his work, and he should not be held liable as an insurer. Thus, an employer may take into account the employee's knowledge of the existence of a certain risk involved in the work, which by its very nature does not require special warning from the employer.
In accordance with the above, the court ruled that the lawsuit should be dismissed for several reasons, as well as due to the significance arising from their accumulation together, as will be explained below.
First, the court ruled that, because we were dealing with a single testimony from a litigant, extra caution must be exercised when determining its weight. In particular, when there is evidentiary significance to the fact that the plaintiff refrained from testifying as an eyewitness to the accident.
Therefore, the court found a difficulty in that the plaintiff, in his testimony, provided two different versions regarding the date he fell. A difficulty that amounts to a defect in the worker's reliability, but this defect does not go to the root of the matter according to the court. That is, it does not invalidate the reliability of his testimony altogether, considering that the worker's mother tongue is Arabic (his testimony was translated), therefore the court ruled that no conclusions should be drawn regarding the materiality of the contradictions in his testimony.
However, the court found a real difficulty in the version he provided during his cross-examination, according to which he fell while working on the quarry , which is inconsistent with his version given a few minutes later , according to which he fell while descending the ladder .
This difficulty is accompanied by additional evidentiary difficulties, such as: the lack of a safety opinion regarding the ladder or regarding the work environment; the lack of proof that there was a defect in the ladder; the lack of proof that the ladder was placed on an unstable base; the characteristics of the ladder were not presented by the plaintiff, and the circumstances of the fall from the ladder were not explained.
Due to the difficulties presented above and the fact that the plaintiff's testimony was the only testimony in this case, the court considered his testimony that he fell precisely at the stage when he was working with a hammer weighing 250 grams to be puzzling and unreasonable testimony given the fact that, before working with the hammer, he was working on the ladder with a heavy and powerful drilling device.
Even if his fall occurred when he was descending the ladder, the court ruled that this did not establish any causal connection between his fall and any negligence on the part of the defendant.
The court addressed the plaintiff's claim that the defendant's signature on Form B.L. 250 (T/1) constitutes an admission by the litigant, and ruled that it should be rejected. For the reason that the employer's signature on the form does not constitute conclusive evidence. Indeed, this depends on the circumstances and the employer may prove that what is stated in the notice is not true.
In the circumstances of this case, the plaintiff's signature on the form is based on the plaintiff's claim regarding the fact that the accident occurred, a fact that was never denied by the defendant, but it was determined that this was not sufficient to establish the foundations of the tort of negligence.
Discussion and decision
Summary
The plaintiff was unable, in his testimony in particular and his evidence in general, to establish a clear, uniform and consistent version of how the accident occurred. Its circumstances remained vague. In any case, he was unable to establish a claim regarding the defendant's negligence. It is not clear what the alleged, unreasonable risk that the defendant created towards him was.
The court ruled that it is not possible to conclude at what stage the plaintiff fell from the ladder and what the reason for his fall was. This is the case whether he fell at the end of the quarrying, while descending or attempting to descend, or whether he fell in the course of the quarrying work.
It was thus determined that it is impossible to prevent a fall from any ladder at a low height, and that in the circumstances of the case there were no reasonable precautions that could have prevented the accident.
As for the plaintiff's claims of violation of a statutory obligation in implementing the provisions of the law and case law - the court ruled that the provisions that the plaintiff claimed were violated by the defendant are not relevant to the present case, as they apply to "work at height", which is defined as work at a height exceeding two meters.
It was determined that no negligence or breach of statutory duty was proven. It is doubtful whether the plaintiff himself knows why he fell, and in any case there is no evidence that the defendant created an unreasonable risk or could have prevented the accident.
In light of this, the court dismissed the lawsuit.
This matter shows that in the face of harmful events, there are a number of means and tools to deal with the situation.
What can be done in advance is to ensure that insurance exists that will cover the risks involved in the relevant work, including funding for legal representation. As the incident described above shows, the result is often that claims filed in court against contractors end in a weak response or even in the dismissal of the claim. This is what happens in our experience in many proceedings when, during the course of clarifying the facts, inaccuracies or contradictions in the versions are revealed, or when a change in circumstances after the event (which is sometimes revealed in undercover investigations) reveals facts or evidence that sheds light on the event or its results (for example, evidence that refutes claims of damages or medical limitations).
However, it should be remembered that the tendency in case law is usually to favor the injured parties, and therefore, in order not to be exposed to unnecessary risks, caution must be exercised and all required or accepted safety measures must be taken during the execution of the work, along with a safety net of appropriate insurance and appropriate indemnity agreements with suppliers/subcontractors, etc., in the event that an unexpected event occurs during the execution of the work.
The plaintiff was unable, in his testimony in particular and his evidence in general, to establish a clear, uniform and consistent version of how the accident occurred. Its circumstances remained vague. In any case, he was unable to establish a claim regarding the defendant's negligence. It is not clear what the alleged, unreasonable risk that the defendant created towards him was.
The court ruled that it is not possible to conclude at what stage the plaintiff fell from the ladder and what the reason for his fall was. This is the case whether he fell at the end of the quarrying, while descending or attempting to descend, or whether he fell in the course of the quarrying work.
It was thus determined that it is impossible to prevent a fall from any ladder at a low height, and that in the circumstances of the case there were no reasonable precautions that could have prevented the accident.
As for the plaintiff's claims of violation of a statutory obligation in implementing the provisions of the law and case law - the court ruled that the provisions that the plaintiff claimed were violated by the defendant are not relevant to the present case, as they apply to "work at height", which is defined as work at a height exceeding two meters.
It was determined that no negligence or breach of statutory duty was proven. It is doubtful whether the plaintiff himself knows why he fell, and in any case there is no evidence that the defendant created an unreasonable risk or could have prevented the accident.
In light of this, the court dismissed the lawsuit.
This matter shows that in the face of harmful events, there are a number of means and tools to deal with the situation.
What can be done in advance is to ensure that insurance exists that will cover the risks involved in the relevant work, including funding for legal representation. As the incident described above shows, the result is often that claims filed in court against contractors end in a weak response or even in the dismissal of the claim. This is what happens in our experience in many proceedings when, during the course of clarifying the facts, inaccuracies or contradictions in the versions are revealed, or when a change in circumstances after the event (which is sometimes revealed in undercover investigations) reveals facts or evidence that sheds light on the event or its results (for example, evidence that refutes claims of damages or medical limitations).
However, it should be remembered that the tendency in case law is usually to favor the injured parties, and therefore, in order not to be exposed to unnecessary risks, caution must be exercised and all required or accepted safety measures must be taken during the execution of the work, along with a safety net of appropriate insurance and appropriate indemnity agreements with suppliers/subcontractors, etc., in the event that an unexpected event occurs during the execution of the work.
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