Court: "An employer has a duty to create a safe workplace for its employees" - an interesting ruling that also examines the liability of a staffing agency
Dec 24, 2024
By: Attorney John Geva, John Geva Hadar & Co., Law Firm
A tort claim was filed with the court for personal injuries, filed under
The plaintiff, who infiltrated Israel from Sudan, claims that he was seriously injured while working with a faulty electric saw when the thumb on his left hand was cut.
Those involved
Defendant 1 is Company A (in liquidation) which was the plaintiff's employer.
Defendant 2 – Harel Insurance Company, which insures Defendant 1.
Defendant 3 - Dori Construction is the main contractor, is in liquidation and has been deleted.
Defendant 4 – Menora Insurance Company, which insures Defendants 6,7
Defendant 5 – The "Ayalon" insurance company insures the defendant.
Defendants 6,7 – The companies "Osif Construction and Investments Ltd." and "Rasko Residential" are the developers and owners of the land on which the project was built.
Menora sent a third-party message to Harel and Ayalon.
Neve and Harel sent a third-party message to Osif Rasko and Menora.
The National Insurance Institute (NISI) recognized the accident as a work accident.
By: Attorney John Geva, John Geva Hadar & Co., Law Firm
A tort claim was filed with the court for personal injuries, filed under the Torts Ordinance as a result of a work accident due to negligence and breach of statutory duty.
The plaintiff, who infiltrated Israel from Sudan, claims that he was seriously injured while working with a faulty electric saw when the thumb on his left hand was cut.
Those involved
Defendant 1 is Company A (in liquidation) which was the plaintiff's employer.
Defendant 2 – Harel Insurance Company, which insures Defendant 1.
Defendant 3 - Dori Construction is the main contractor, is in liquidation and has been deleted.
Defendant 4 – Menora Insurance Company, which insures Defendants 6,7
Defendant 5 – The "Ayalon" insurance company insures the defendant.
Defendants 6,7 – The companies "Osif Construction and Investments Ltd." and "Rasko Residential" are the developers and owners of the land on which the project was built.
Menora sent a third-party message to Harel and Ayalon.
Neve and Harel sent a third-party message to Osif Rasko and Menora.
The National Insurance Institute (NISI) recognized the accident as a work accident.
The allegations
According to the plaintiff, the defendants were negligent in sending a foreign worker, without proper training, to work with a dangerous device in a dangerous work environment and without supervision and supervision. The defendants asked the plaintiff to take a circular saw without a handle and guard, and asked him to saw "plywood" that was placed in a dangerous position.
Defendants 1, 2 claimed that Defendant 1, as a staffing corporation, has no responsibility for the circumstances of the accident. According to the ruling, wherever the staffing corporation has no control and cannot have control and supervision over the workplace and work of the plaintiff, there is no reason to impose liability on him. According to Defendants 4, 6 and 7, the claim should be dismissed because of the long delay in filing it, the plaintiff did not bring a witness to the accident and therefore it is a single testimony of a party, and the plaintiff also has significant contributory guilt.
The court referred to the Statute of Limitations , which sets statutory limitation periods for various types of claims. Nevertheless, the court has the authority to dismiss a claim due to delay even within the limitation period. Acceptance of this claim requires the dismissal of the claim despite its filing within the statute of limitations established by the legislature. In order for a claim of delay to be accepted, it must be proven that the plaintiff abandoned his right to sue or that during the time the defendant changed his situation for the worse. The burden of proving the claim of delay lies with the defendant who raises the claim. The court does not accept the claim of Defendant 4, who claims that she suffered evidentiary damage because the claim was filed after Dori was in liquidation. The court determines that Dori was aware of the accident and could have prepared and kept all the documents and names of witnesses to the event, and therefore, if she suffered evidentiary damage, she has no one to blame but herself. The plaintiff's conduct does not indicate that he abandoned the lawsuit, and the defendants did not prove that their situation changed for the worse or that they suffered evidentiary damage, and therefore the court rejected the delay claim.
According to the plaintiff, the defendants were negligent in sending a foreign worker, without proper training, to work with a dangerous device in a dangerous work environment and without supervision and supervision. The defendants asked the plaintiff to take a circular saw without a handle and guard, and asked him to saw "plywood" that was placed in a dangerous position.
Defendants 1, 2 claimed that Defendant 1, as a staffing corporation, has no responsibility for the circumstances of the accident. According to the ruling, wherever the staffing corporation has no control and cannot have control and supervision over the workplace and work of the plaintiff, there is no reason to impose liability on him. According to Defendants 4, 6 and 7, the claim should be dismissed because of the long delay in filing it, the plaintiff did not bring a witness to the accident and therefore it is a single testimony of a party, and the plaintiff also has significant contributory guilt.
The court referred to the Statute of Limitations , which sets statutory limitation periods for various types of claims. Nevertheless, the court has the authority to dismiss a claim due to delay even within the limitation period. Acceptance of this claim requires the dismissal of the claim despite its filing within the statute of limitations established by the legislature. In order for a claim of delay to be accepted, it must be proven that the plaintiff abandoned his right to sue or that during the time the defendant changed his situation for the worse. The burden of proving the claim of delay lies with the defendant who raises the claim. The court does not accept the claim of Defendant 4, who claims that she suffered evidentiary damage because the claim was filed after Dori was in liquidation. The court determines that Dori was aware of the accident and could have prepared and kept all the documents and names of witnesses to the event, and therefore, if she suffered evidentiary damage, she has no one to blame but herself. The plaintiff's conduct does not indicate that he abandoned the lawsuit, and the defendants did not prove that their situation changed for the worse or that they suffered evidentiary damage, and therefore the court rejected the delay claim.
The main question that must be decided is whether the acts or omissions of any of the defendants amount to negligence within the meaning of the Torts Ordinance , and which of the insurance companies must pay compensation for the damage caused.
Duty of care (conceptual and concrete)
The elements of the tort of negligence are the existence of a duty of care (conceptual and concrete) by the tortfeasor towards the injured party; breach of the duty of care and damage. In examining the conceptual duty of care, we examine whether the duty to be careful exists between the type of tortfeasor and the type of injured party without considering the specific circumstances of the matter. The concrete duty of care is whether a reasonable person could have foreseen the possibility of the alleged damage occurring. In the specific circumstances of the case, the law requires the party with a duty of care to take reasonable measures to prevent it.
An employer is legally obligated to exercise reasonable care towards his employee. He must create a safe workplace and introduce safe work methods, as well as provide suitable and safe materials, equipment and tools. Another duty is to effectively and continuously supervise the taking of the required precautions by the employees, to instruct his employees and to warn them of the risks involved in performing the work. The employer is not entitled to assume that the employees will take measures to prevent accidents on their own initiative, and the employer must protect the employee both from his own negligence and from his mistakes. The safety provisions set out in the legislation constitute an auxiliary means for clarifying the measures that an employer must take in order to create reasonable protection for his employees against accidents, although sometimes the employer will be required to take an even higher standard of care.
In civil proceedings, the plaintiff seeking relief bears the burden of proving that the facts constituting the cause of action were true. The Evidence Ordinance states that the determination of factual findings based on a single testimony of a party is conditional on the existence of additional evidence in the form of assistance, which supports a factual version. The court has the discretion to be satisfied with a single testimony of a party, provided that the decision is reasoned.
The legal question
The plaintiff testified that he received instructions on the first day of his work at the site, according to which he must follow the instructions of the foreman. He did not receive safety instructions and commented to the warehouseman that the disk was missing a handle and a guard. The court noted that the plaintiff's testimony was reliable and coherent, and he believes that the accident occurred as he described it. It rejected the defendant's claim that the plaintiff should have brought an expert opinion to support the circumstances of the accident. Defendant 1 signed a National Insurance Form B.L. 205, and defendants 3, 6 and 7 did not bring any testimony or other version of the accident. The court accepts the plaintiff's testimony that he brought a picture of the disk for illustration. And believes that he received a disk without a handle, grip and guard and that there is no need for expert testimony that it is unsafe.
The plaintiff's claim regarding the employer's breach of the duty of care
The court adds that the defendants' breach of their duty to provide a proper, safe and stable work environment, to provide training and supervision of the work and its performance, and to provide safety measures, are the main reason for the damage to the plaintiff. If this duty had not been breached, the chance that the damage would have been avoided is greater than the chance that the damage would have occurred. According to the ruling, a legal causal relationship can be tested using the prospect test. The court determines that it is reasonable to expect that the conduct described could cause damage. Furthermore, the harmful result is within the scope of the risk created by the tortfeasor's behavior.
The defendants created a risk when they provided the plaintiff with a dangerous and defective tool without instruction and without protection, and this risk was realized. The court adds that asking the plaintiff to work with a disc that is a dangerous tool in itself, especially when the saw is without a guard and handle, without protective equipment for his body, without instruction on how to work with the tool, and that it is mandatory to work with a guard and handle, all of these are matters that do not require an occupational safety expert, and common sense teaches that they caused the damage.
The court refers to the Occupational Safety Ordinance, from which it is possible to learn what the appropriate standard of care is, and determines that in the absence of a guard and a handle, a statutory provision was also violated. The plaintiff testified that he did not receive training and his testimony was not concealed. The defendants disclaimed their duty but did not present evidence of occupational safety training.
The employer's duty to provide the employee with a safe working environment
Contributory fault constitutes a defense to the tortfeasor against the obligation to compensate the injured party for the full extent of his damage. It must be examined whether, under the circumstances, the injured party acted as a responsible person and with reasonable care, and if not, liability for the injury will be apportioned. It is not easy to impose liability on an employee for an accident that occurred while performing his job. The person claiming contributory fault on the part of the employee must show that the employee exercised independent judgment in such a way that he created the risk by virtue of his free decision, and did not act within the risk created by the employer. The court determines that an employee who is injured in the course of his work while carrying out the instructions of his superiors cannot incur contributory fault that would reduce the compensation due to him, and therefore determines that the plaintiff does not have contributory fault.
What is the weight of the employee's contributory fault?
According to Defendants 1 and 2, liability should be imposed on Dori and Ayalon, Osif Varsako and Menora. The policy issued by Harel did not cover Dori and there is no double insurance between it and Menora's policy that covers Naveh. According to Defendants 4, 6 and 7, liability for the damage should be imposed on Defendant 1, as she was the direct employer of the plaintiff, who was required to provide the defendants with suitable personnel for the job, ensure that he worked in a safe environment, accepted and understood the safety instructions and followed them.
Regarding the insurance applicable to the accident, Defendants 4, 6 and 7 claim that Defendant 1 has an employers' liability policy from Harel and that it should bear the cost of the liability imposed on Defendant 1, and that the staffing company is not a subcontractor according to the policy issued by Menora to the developer. Alternatively, the defendants' attorney claims that the rules of double insurance apply, according to which defendant 2 must pay about half of defendant 1's share of the liability, and that a deductible must be deducted for activating Menora's policy on the balance. Regarding Ayalon, defendants 4, 6, and 7 claim that Dori is represented in this proceeding, by virtue of the policy of the developer Osif Versako, which extends coverage to the main contractor. Ayalon is the one who steps into Dori's shoes as the specific insurer of Dori, in a third-party insurance policy, but did not bring any evidence on its behalf regarding the contract agreements, work logs, or witnesses on behalf of Dori. Ayalon's policy states that it is the primary policy prior to any other policy, and therefore it is the one that should cover defendant 3's liability. Alternatively, the defendants claim that if the rules of double insurance apply, then the ratio between the policies is 1/3 Menora and 2/3 Ayalon. Insofar as Defendant 5 claims the remainder of the policy, the Defendants claim that Section 59 of the Insurance Contract Law , which concerns double insurance, is the determining factor. The Defendants also claim that insofar as Menora is charged under the third-party chapter of the policy for the liability of Defendant 3, deductibles should be deducted. According to Ayalon, the policy it issued for Dori is a general third-party policy that does not cover contractor work and the site where the accident occurred. Alternatively, Ayalon claims that double insurance occurred and a deductible should be deducted. Regarding the primacy of the policy, Ayalon claims in her third-party capacity that the policy expressly states that the primacy of the policy is for any person or entity with whom the insured has committed in a written agreement to the primacy of his insurance and the absence of co-insurance, but the Defendants did not present such an agreement. Regarding liability, Ayalon claims that liability should be imposed on Naveh as the plaintiff's employer and that liability should not be imposed on Dori, Since the site was operated in a safe manner and it was not proven otherwise, and if liability should be imposed for the conduct on the site, then it should be imposed on Defendants 6 and 7.
Claims of division of liability between the defendants – a personnel corporation is not an insured contractor
The plaintiff claimed that the foreman ordered him, despite his lack of experience, to cut plywood with an electric disc. The project manager for Rasco and Asif testified that the person responsible for conducting safety training was Dori and that it was not up to him or the contracting companies to check this. The person who testified on behalf of the staffing company that employed the plaintiff also stated that he did not check or verify the workers' safety training because the issue of safety is the responsibility of the person ordering the work. The court refers to the ruling according to which the contractor instructs the staffing company's employee what to do during the work day, there is a conceptual and concrete duty of care towards him and that with regard to the staffing company's liability, each case and its circumstances must be examined.
The plaintiff arrived in Israel as an infiltrator. A representative of Defendant 1 testified that Neve only provided cleaning workers, but it was not clarified whether the plaintiff's status was as a general cleaning worker or a construction worker, and no agreement was presented between Neve and Dori. The plaintiff testified that the Neve representative told him to do whatever the foreman told him to do, without emphasizing that it was only cleaning work and that he was prohibited from working in any other job. The representative of the manpower company did not think it was his business to ensure the plaintiff's safety and that the entire responsibility lay with Dori, and he did not check or verify the issue of safety at work.
The project manager on site for the developers believed that there was no difference between a general worker and a construction worker and did not know whether the safety manager on site for Dori had provided safety training on site. However, he noted that Dori had not had any accidents and that it was a well-organized company. Defendants 3 and 4 also did not bring any witnesses on their behalf, neither the warehouseman nor the foreman nor any other employee, and this worked to their detriment.
The contractor's liability towards an employee of a corporation - and what is the liability of a corporation?
A foreign worker as a general worker on a construction site - is it permissible to employ him in work that goes beyond cleaning?
The court held that when a foreign worker was sent by a staffing company to a contractor, as a general worker, there was an increased duty of responsibility to ensure that the worker was not employed in work that went beyond simple cleaning and was not assigned to work with dangerous power tools or any work for which they were not trained. The contracting company could exploit cheap workers and use them to perform work that required a skilled professional.
Corporate Responsibility
This is also the reason why an increased duty of care is required on the staffing company to ensure that the executing contractor ensures the safety of the workers sent to work under him on site.
Contractor's responsibility
The main duty of care lies with the contractor who employs the plaintiff and gives him work instructions, and supervises the plaintiff's work and is close to him. Defendants 6, 7 claim that they are the entrepreneurs and order the work from the contractor Dori and that he alone is responsible for safety on the site. The defendants also did not present written agreements that prove their claim regarding liability, and this fact works to their detriment.
Judgment - and the division of responsibility
The court determines that, with regard to the question of liability, it would be correct to divide the liability between the defendants as follows:
Defendant 1 (Human Resources Corporation) – 25%.
Defendant 3 (main contractor) – 65%.
Defendants 6,7 (the developers) – 10%.
Regarding the distribution of compensation with respect to insurance coverage, the court believes that it would be correct to divide the compensation between the companies in such a way that Defendant 2 Harel as the insurer of Neve - 25%. Defendant 4 Menora as the insurer of the contractors working on the project (Dori) - 65%.
6,7 – 10% are claimed to be paid by Menorah.
As for determining the plaintiff's disability, the court accepted the expert's opinion. The court also determined the degree of functional disability and awarded compensation for lost earnings, lost future earnings, lost pensions, pain and suffering, past and future third-party assistance, and medical and travel expenses.
The court accepted the claim and ruled that the amounts of compensation awarded would be paid by defendants 4, 6, and 7 to the plaintiff, along with legal costs and attorney fees. The claim against defendant 5 was dismissed. The court ruled that the plaintiff would pay legal costs and attorney fees to Ayalon and that Menora would pay legal costs and attorney fees to Ayalon as a third party.
** As of the date of this writing, it is unknown whether an appeal has been filed with the District Court.
The court held that when a foreign worker was sent by a staffing company to a contractor, as a general worker, there was an increased duty of responsibility to ensure that the worker was not employed in work that went beyond simple cleaning and was not assigned to work with dangerous power tools or any work for which they were not trained. The contracting company could exploit cheap workers and use them to perform work that required a skilled professional.
Corporate Responsibility
This is also the reason why an increased duty of care is required on the staffing company to ensure that the executing contractor ensures the safety of the workers sent to work under him on site.
Contractor's responsibility
The main duty of care lies with the contractor who employs the plaintiff and gives him work instructions, and supervises the plaintiff's work and is close to him. Defendants 6, 7 claim that they are the entrepreneurs and order the work from the contractor Dori and that he alone is responsible for safety on the site. The defendants also did not present written agreements that prove their claim regarding liability, and this fact works to their detriment.
Judgment - and the division of responsibility
The court determines that, with regard to the question of liability, it would be correct to divide the liability between the defendants as follows:
Defendant 1 (Human Resources Corporation) – 25%.
Defendant 3 (main contractor) – 65%.
Defendants 6,7 (the developers) – 10%.
Regarding the distribution of compensation with respect to insurance coverage, the court believes that it would be correct to divide the compensation between the companies in such a way that Defendant 2 Harel as the insurer of Neve - 25%. Defendant 4 Menora as the insurer of the contractors working on the project (Dori) - 65%.
6,7 – 10% are claimed to be paid by Menorah.
As for determining the plaintiff's disability, the court accepted the expert's opinion. The court also determined the degree of functional disability and awarded compensation for lost earnings, lost future earnings, lost pensions, pain and suffering, past and future third-party assistance, and medical and travel expenses.
The court accepted the claim and ruled that the amounts of compensation awarded would be paid by defendants 4, 6, and 7 to the plaintiff, along with legal costs and attorney fees. The claim against defendant 5 was dismissed. The court ruled that the plaintiff would pay legal costs and attorney fees to Ayalon and that Menora would pay legal costs and attorney fees to Ayalon as a third party.
** As of the date of this writing, it is unknown whether an appeal has been filed with the District Court.
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