The worker fell and was injured – is he at fault?

At the very outset of its decision, the Supreme Court emphasized that in cases of this kind—where an employee is injured in an accident in the course of employment—the established trend in case law is to apply strict scrutiny to the employer when assigning liability for the accident. This is particularly so in professions where the employee is not afforded broad discretion to determine how the work is to be performed or under what conditions, including from a safety standpoint. In such circumstances, the expectation is that the employer will create a safe workplace, rather than requiring the employee to manage risks independently or negotiate them during the workday.

In addition, the Court noted that a distinction must be drawn between cases in which an employee freely and independently assumes an unreasonable risk, or consciously ignores a certain danger that then causes harm—in which case it may be justified to attribute contributory negligence to the employee—and cases in which the employee errs or is momentarily distracted in the heat of work, or where the matter involves a momentary lapse arising from being absorbed in carrying out the task as defined by the employer. In the latter situations, the Court held that this does not necessarily suffice to attribute contributory negligence to the employee.

In accordance with the above normative framework, and in light of the factual background set out in the facts section, the Court ruled in that case that this was not a situation involving an employee who knowingly and proactively assumed an ill-considered risk during the course of work. Rather, it concerned an employee who acted within the boundaries laid down by the employer and erred in a moment of inattention. In its ruling, the Court noted that although the accident occurred during daylight hours, the light was somewhat reduced by the building’s walls, and given that the employee was absorbed in the work he was required to perform near the shaft, the Court was not surprised that such a misstep occurred due to momentary distraction. The Court viewed cases of this kind as precisely those that the duty of “substantive guarding” is intended to prevent.

The Supreme Court expressed serious doubt as to an employee’s ability to warn or complain about hazards at the worksite, given the power imbalance between the parties and where the employee’s livelihood is at stake. Accordingly, it held that the mere fact that the appellant continued working was insufficient to establish that he was a partner to his own harm. This conclusion was reached in light of all the circumstances, including, inter alia, his junior position, the working conditions, and the respondent’s negligence, which the Court described as “clear negligence.” These circumstances also formed the basis for the Court’s decision to reject the comparison to a precedent involving a similar case in which contributory negligence had been attributed to the employee.

The Court further addressed the troubling and ongoing phenomenon of workplace accidents in the construction industry, declining to accept it as a “decree of fate.” Instead, it characterized it as a phenomenon that must be changed by imposing stricter liability precisely on employers in cases of this kind, since their ability to prevent accidents generally exceeds that of employees.