An employer has a conceptual and concrete duty of care in all matters related to the actions necessary to protect the employee in the performance of his work.
May 15, 2018
Attorneys John Geva and Shlomi HadarGeva-Hadar Law Office, Attorneys and Mediators
At the Nazareth Magistrate’s Court, the claim of Ploni (the plaintiff) against Gabriel Trebalsi ("Defendant 1"), Rachel M.G.N. Ltd. ("Defendant 2"), and Menorah Insurance Company Ltd. ("Defendant 3" – "Menorah") was heard. The judgment was delivered in April 2018, in the absence of the parties, by the Honorable Judge Renana Galpez-Mokadi.
Facts of the Case: The claim concerns compensation for bodily injuries which, according to the plaintiff—a resident of Sanur in the Jenin area of the Palestinian Authority—were sustained during his work, when he fell from the fourth floor of a building through a shaft and landed on the ground. As a result of the fall, the plaintiff was injured in his neck, back, hand, and head, and was rushed by ambulance to Soroka Hospital in Be’er Sheva, where he underwent two surgeries to stabilize cervical vertebrae and was hospitalized. There is no dispute that the plaintiff and his colleagues were hired by the defendants only one day prior to the accident, meaning the plaintiff had worked for only two days before he was injured and required medical treatment. The dispute concerned both the question of liability and the extent of the damages.
The verdict
The court discussed the question of whether the defendants were negligent in these circumstances? The court rejected the plaintiff's claim to shift the burden of proving that they were not negligent to the defendants. This is not a case in which the plaintiff is unaware or unable to know the reason that caused the damage or the circumstances in which the fall occurred. The burden of proving that the defendants were negligent is on the plaintiff. For the purpose of discussing the question of liability, three questions must be examined: First , whether the tortfeasor owes a duty of care to the injured party in principle and whether, in relation to a particular injured party, in the circumstances of a specific event, there is a duty of care in the concrete aspect. The answer to these questions is derived from the test of foresight, that is, whether a reasonable person could and should have anticipated the existence of the damage. Second , whether the tortfeasor breached the duty of care imposed on him. The derivative of this question is whether the tortfeasor took reasonable precautions to prevent the danger. Third , whether the breach of the duty of care caused the damage.
The court ruled that an employer has a conceptual and concrete duty of care in all matters related to the actions necessary to perform the employee's work. In our case, the plaintiff's version was accepted, according to which he was instructed to stay overnight at the construction site, when the conditions of accommodation were determined by Defendant 1, on behalf of the defendants. In this situation, the defendants are subject to the relevant duties of care, both by virtue of their responsibility to the employees for them, and by virtue of their being the owner of the building at the relevant times. Hence, they should have expected a worker to fall through one of the shafts that remained open and without any means of protection. The workers were sent to sleep on the fourth floor, when the defendants were aware that there were several shafts that were not blocked and that could pose a danger, certainly when it comes to a building that is under construction and is not lit at night. There is no dispute that the shaft was not blocked and protected in a way that would prevent a fall through it. The court noted that the defendants did not present any evidence that would lead to the conclusion that any actions were taken to protect the workers at the site. This responsibility of the employer arises from the rule of law, according to which "an employer owes an increased duty of care to his employees." At the heart of this rule is the assumption that the employer has knowledge of tangible and potential risks in the workplace, as well as the actual ability to prevent those risks. Therefore, compared to the employee, the employer is the "best and cheapest preventer of harm."
The court ruled that by allowing the workers to spend the night in the building, without lighting, when it was known that there were openings through which workers could fall, the defendants thereby violated their duties to the plaintiff and the other workers. The defendants could, by inexpensive means, have prevented the risk by blocking the shafts in the building. The conclusion reached by the court is that the defendants were negligent towards the plaintiff and are liable to him for negligence.
The court also determined that the defendants violated statutory obligations, stipulated in the Occupational Safety Regulations (Construction Work), 1988, and the Occupational Safety Ordinance (New Version) 1970, which require the fencing of openings of the type in question here. The court rejected the defendants' argument that contributory fault should be imposed to some extent on the plaintiff.
In summary: The court held the defendants jointly and severally liable for the plaintiff's damages for the accident, in the amount of approximately half a million NIS, including the costs of the proceedings and attorney's fees.
** As of the date of this writing, it is unknown whether an appeal has been filed with the District Court.
מסמכים
