Is a helmet on your head good?
Jul 12, 2022
By: Adv. Shlomi Hadar – John Geva, Hadar & Co., Attorneys and Mediators
Introduction:
A construction worker was working on a building site, wearing a helmet as required, when he was suddenly struck by a marble panel falling from a great height. Who is responsible for such an accident under these circumstances? The main contractor or the subcontractor (the employer)?
In light of the numerous workplace accidents frequently reported in the media, we found it appropriate to elaborate on the topic, based on a judgment issued on June 26, 2022, by the Central-Lod District Court, which dealt with the question of the allocation of liability in the case of a workplace accident.
From: Attorney Shlomi Hadar - John Geva, Hadar & Co. - Lawyers and Mediators
introduction:
A construction worker was working on a construction site, wearing a helmet as required, and was suddenly hit by a marble slab that fell on him from a great height. Who is responsible for the accident under these circumstances? Is it the main contractor or the subcontractor (the employer)?
In light of the numerous work accidents that are frequently reported in the news media, we saw fit to expand on the subject in light of a ruling issued on June 26, 2022 in the Central Lod District Court, which discusses the question of dividing responsibility in the event of a work accident.
Factual background:
The plaintiff was born in 1996, approximately 26 years old. In 2012, when he was approximately 16 years old, he left his studies and began working to help support his family. In 2014, when he was a minor, he worked as an assistant foreman on a construction project in Rishon LeZion. The plaintiff and his team were working on development work on the ground, around the building, while other subcontractors were working on the floors above, including gluing marble slabs for cladding. Suddenly, a marble slab fell from the 17th floor and hit the plaintiff in the head. The helmet he was wearing was shattered and he suffered extremely serious physical injuries.
Defendant 1 is the project developer (hereinafter: " the developer ") and the claim against it was dismissed by agreement, as it was found that it handed over all the construction work to Defendant 2 (hereinafter: " the contractor "), a contracting company that was the main contractor on the project in accordance with Regulation 6 of the Occupational Safety Regulations (Construction Works ). Defendant 3 (hereinafter: " the employer "), is the employer of the plaintiff who worked as a subcontractor on the project and Defendant 4, the insurance company, is the employer's insurer.
The accident was recognized by the National Council of Labor and Social Security as a work accident and the plaintiff was awarded permanent disability of 73% and additional temporary disabilities. His total compensation is expected to amount to approximately 2 million NIS. The parties submitted medical opinions on their behalf, which, as usual, presented very significant gaps in the assessment of the plaintiff's disability.
The plaintiff was born in 1996, making him approximately 26 years old. In 2012, at the age of 16, he left school and began working to help support his family. In 2014, while still a minor, he worked as a scaffolding assistant on a construction project in Rishon LeZion. The plaintiff and his team were performing ground-level development work around the building, while subcontractors were working on the upper floors, including installing marble panels for cladding. Suddenly, a marble panel fell from the 17th floor and struck the plaintiff on the head. The helmet he was wearing shattered, and he sustained extremely severe physical injuries.
Defendant 1 is the project developer (hereinafter: “the developer”). The claim against her was dismissed by agreement, as it was found that she had delegated all construction work to Defendant 2 (hereinafter: “the contractor”), a contracting company that served as the main contractor for the project in accordance with Regulation 6 of the Construction Work Safety Regulations.
Defendant 3 (hereinafter: “the employer”) is the plaintiff’s employer, which acted as a subcontractor on the project, and Defendant 4 is the insurance company that provides coverage for the employer.
The accident was recognized by the National Insurance Institute (NII) as a workplace accident, and the plaintiff was awarded a permanent disability of 73%, in addition to temporary disabilities. The total expected compensation is approximately 2 million NIS. The parties submitted medical expert opinions, which, as usual, presented significant discrepancies regarding the assessment of the plaintiff’s disability.
The dispute between the parties is over liability and damages. The contractor claims that the plaintiff does not remember how the accident occurred and that only others told him what actually happened. Therefore, he has not proven that there was negligence on his part. Under these circumstances, he should have found the subcontractor who worked on the upper floors and sued him. Unfortunately, the contractor claims that the liability lies with the employer, since he is responsible for training and supervising the workers. Finally, the contractor claims that the personal claim is swallowed up by the NSL's compensation and that even those paid by the NSL are excessive and were paid "generously."
The employer and his insurer claim that the employer is not liable for the incident as it was an external incident caused by another contractor and the employer could not have prevented it in any way. They also claim that the plaintiff had safety equipment, including a helmet, and that he had undergone appropriate safety training for work on the site.
The parties' claims:
Responsibility of the main contractor: The Occupational Safety Regulations (Construction Safety) impose responsibility for the observance of safety instructions and their implementation on the "construction operator". Regulation 1 and Regulation 6 state that the person appointed as the main contractor is the construction operator and "the duties imposed on the construction operator by these regulations are imposed on him". The employment of subcontractors, as in the present case, does not detract from his overall responsibility for the implementation of safety instructions on the construction site.
The purpose of Regulation 6 is to determine that there will be one party on the construction site who will be responsible for the implementation and enforcement of the construction safety regulations. The main reason for this is to "define a clear address responsible for safety violations" (AA 1062/15 and HB v. Nazal ). This responsibility on the contractor includes a series of safety regulations that it has not proven that it enforces, including appointing a foreman, taking steps to ensure compliance with the regulations and creating safety measures to prevent objects from falling, installing a partition when a person is working under another person, and establishing work procedures and coordination between subcontractors. In these circumstances, based on the limited evidence presented and that which was not presented, it must be determined that the contractor was negligent in ensuring safety in the workplace .
The court's decision regarding the parties' liability:
Employer's responsibility:
It has been proven that the employer provided the plaintiff with a helmet, protective equipment and training on the importance of the equipment. According to the contractor, the employer should be held liable because it was negligent and because it was not proven that it provided the plaintiff with full safety training as required by law - this claim must be rejected. Although it has not been proven that the employer did indeed train the employee as required, there is no causal connection between the failure to train and the damage caused to the employee. The employer had no way of preventing the accident. Furthermore, the contractor claims that the employer assumed responsibility for any accident and damage and even undertook to indemnify him if he was held liable for it. These claims are contractual and are not relevant to the plaintiff's claim for damages and indemnity . Thus, a reasonable interpretation of the agreement between the parties would be that the employer would be liable for damage caused by its employees and not by employees of another employer who worked on the same project.
Contributory fault:
The contractor raised the argument that contributory fault should be imposed on the plaintiff. Of course, these arguments should not be accepted and it is made clear beyond what is required, because in accordance with the recent ruling of the Supreme Court, in the construction industry, the trend is to reduce the contributory fault of the injured party as much as possible (Criminal Court Case 7096/19 So-and-so v. Yitzhak Stern & Co. ).
In light of all this, the contractor is responsible for the accident.
The plaintiff's total damages from the accident were calculated by the court at approximately 4,515,179 NIS. The claim against the contractor is accepted and it is found that, as the main contractor, he is responsible for the accident. The claim against the employer and his insurer and against the developer are dismissed as no evidence was presented of the employer's liability and it was not proven that he was negligent.
Summary:
In light of all of the above, the court ruled that, subject to the Occupational Safety Regulations (Construction Safety), liability in the event of a work accident at the construction site lies with the main contractor to the extent that it is responsible for the negligence that caused the accident. Furthermore, subject to the recent ruling of the Supreme Court, in work accidents in the construction industry the trend is to reduce as much as possible the contributory fault attributed to the worker, with the aim that the main contractor, as the owner of the deep pockets, will bear responsibility for safety in the project that he manages. It is therefore necessary to examine the insurance coverage appropriate to the totality of risks and in view of the development of case law that extends liability for damages to workers in the construction industry.
Damage and compensation:
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