Employer liability for employee fights
Nov 19, 2019
Article by Itzick Simon
Physical violence is not uncommon in the construction industry. We were only recently exposed in the media to the shocking stabbing of a construction worker by his fellow workers, and of course we are all familiar with the strikes of construction inspectors who are suffering a dangerous escalation in violence against them after Amendment 116 to the Planning and Building Law (which came into effect in October 2017).
In light of the frequency and recurrence of these cases, it is important that employers in the industry are aware of the potential consequences of such an incident (not only at the criminal level). According to Israeli law, a person who suffers bodily harm as a result of a fight on a construction site may file a claim for compensation against the employer. As stated, "As part of the responsibility for maintaining a safe work environment, the employer is also responsible for ensuring that violent relations between employees do not prevail and that employees are protected from violent harm" (Ta 3613/07, emphasis not in the original).
Get to know the concept of "vicarious liability"
Between an employer and an employee, there exists a conceptual duty of care. For example, we have frequently dealt with contractor liability for compensation in cases of work accidents.
Interestingly, this conceptual duty of care can become a specific duty of care even if the employee is injured as a result of a fight on the construction site (by way of note, a fight can, in certain cases, be classified as a “work accident”).
This issue—concerning the employer’s liability for damages to an employee due to an act of assault (whether following a fight with another employee or an attack by a third party)—has developed and evolved over the years.
The basis for this lies in a precedent established by the Supreme Court in 2001 (CA 3510/99), which held that an employer must—at least at a general level—foresee the possibility of violent events occurring. Even if the act is “criminal,” this does not break the causal link between the employer’s negligence and the resulting damage. Liability thus derives from the legal concept of vicarious liability.
An employer whose employee is injured in a fight may face a tort claim under Section 13 of the Torts Ordinance, headed “Employer’s Liability.” Under this section, an employer may be held liable for an act committed by an employee if the employer authorized or ratified it, or if it was committed in the course of employment.
Establishing the employer’s liability does not necessarily require proving that the specific incident was foreseeable. It may be sufficient that the possibility of an employee being injured in a fight or assault could have been anticipated. Supreme Court Justice Eliezer Rivlin outlined several tests for these circumstances:
Could the Employer Have Been Aware of the Impending Criminal Act?
The employer’s conduct will be assessed not only by how sudden or spontaneous the act was, but also by whether the employer knew about the perpetrator’s behaviour. For example, did the employer know that the employee was violent or had a history of violence?
These considerations relate to the concept of a known propensity for harm, traditionally illustrated by the “habitually goring ox.” If the injured worker was attacked by another employee with a known propensity for violence, and the employer or contractor should have known about it, the employer’s responsibility toward the injured worker increases accordingly.
Had Violent Incidents Previously Occurred at the Site?
An employer must exercise greater caution where there is a history of violence at the workplace or involving particular employees or third parties.
Was There a High Incidence of Criminal Activity in the Area?
Was the project being carried out in an area with a high incidence of criminal activity?
How Unusual Was the Criminal Act?
How exceptional was the act, and to what extent could its occurrence have been anticipated?
The Degree of Supervision and Control
Any tort claim arising from an incident at a construction site may raise questions about the employer’s supervision and control. How involved was the employer in the site or in relationships between workers? Had the employer received previous warnings about potential violence involving particular employees? How did they respond to those warnings? Did they ensure their presence at the site during potentially troublesome periods?
The Relationship Between the Injured Worker and the Employer
What was the relationship between the injured worker and the employer or contractor responsible for the site? Did that relationship give the worker reasonable grounds to rely on the contractor or employer to take appropriate precautions to protect them against criminal acts?
The legal source - the Torts Ordinance
An employer whose employee is injured in a fight is exposed to a tort claim that will be filed against him under Section 13 of the Torts Ordinance, which is listed under the heading " Employer's Liability ." According to this section, an employer can be found liable for an act committed by his employee, to the extent that he permitted or approved the act, and to the extent that the act was committed in the course of work.
Proving the employer's liability is not necessarily related to the anticipation of the specific event, and it is sufficient to be able to foresee the possibility that one of the employees will be injured due to a fight or attack. The Honorable Supreme Court Justice Eliezer Rivlin outlined "tests" for these circumstances:
Whether the employer could have been aware of the imminent occurrence of the criminal act – the employer will be tested not only by the degree of suddenness and spontaneity of the act but also by virtue of the question of whether he was aware of the behavior of the perpetrator himself. For example, whether he was aware that he was employing a “violent” employee or one with a “history of violence”. The tests are connected, for example, with the “tempered bull” theory. If the employee injured in a fight was injured because he was attacked by another employee who was “tempered to disaster”, and who can be defined as a “tempered bull”, and the more the employer (and/or contractor) should have known about this, the greater the degree of the latter’s responsibility towards the injured employee. Whether violent events have occurred in the past at the location – the employer should be extremely careful if there is a “violent history” at the location and/or among certain employees or certain third parties.
Is there a high incidence of criminal acts in the area – Was the project in question carried out in an area where there is a high incidence of criminal acts?
The degree of abnormality of the criminal act – how unusual was the criminal act and to what extent was it foreseeable or foreseeable that it might occur?
The degree of supervision and control – In any harmful incident at a construction site, the question will arise regarding the degree of supervision and control of the employer. To what extent was he involved in the construction site and/or in the relationship between the employees. For example, did he receive previous "warnings" about possible violence by certain employees, how did he respond in real time to these warnings, did he make sure to be present at the construction site during "problematic" times, and so on.
The relationship between the injured worker and the employer – What was the relationship between the injured worker and the employer or contractor responsible for the site? Can it be concluded from this relationship that the injured worker could have relied on the contractor/employer to take reasonable precautions to protect his safety from various criminals?
A tort claim due to a fight on a construction site can climb to significant amounts, up to hundreds of thousands of shekels (and upwards). Since the employer may be found at fault in the case, to one degree or another, it is important to understand whether he will have insurance coverage on the day of the incident.
Well, a contractor's insurance policy Includes three chapters, two of which are relevant to the above subject. Employers' liability insurance (to the extent that the injured party is an employee of the insured), and third-party insurance (to the extent that the injured party was a third party such as a supervisor, contractor employee, passerby, etc.). However, since these claims can sometimes amount to huge sums, it is very important to ensure that the policy has adequate coverage.
Not this either – even if the fight is defined as a “work accident”, and in such a situation we have another player in the equation and that is the National Insurance Institute, the insurance policy should include appropriate coverage. Remember that the National Insurance Institute can file a claim against the employer for compensation against the payments made to the injured party, to the extent that negligence is proven. In addition, there are amounts and types of damage that are not included in the National Insurance Institute’s payment limits, and for which a claim may be filed at the same time.
Wise employers will carefully review their insurance policy, preferably with the help of an insurance agency knowledgeable in construction insurance. The nuances may be the solid foundation for adequate insurance coverage, and since fights in the construction industry are not uncommon, this should not be taken lightly.
Beyond that, it is of course advisable to be vigilant when hiring employees. Listen to the distresses arising from the field and do everything possible to prevent unusual events prematurely.
The insurance angle
A tort claim arising from a fight at a construction site can reach substantial sums, potentially hundreds of thousands of shekels or more. Since the employer may be found partly or wholly at fault, it is important to understand whether insurance coverage will be available when needed.
A Contractors’ All Risks policy comprises three sections, two of which are relevant here: employers’ liability insurance, where the injured person is the insured’s employee, and third party liability insurance, where the injured person is a third party, such as a supervisor, a contractor’s employee, or a passerby. Since these claims can involve very substantial sums, ensuring adequate coverage is essential.
Even if the fight is classified as a “workplace accident,” bringing the National Insurance Institute into the picture, the policy must still provide appropriate coverage. Remember that the National Insurance Institute may seek reimbursement from the employer for benefits paid to the injured person if the employer’s negligence is established. Claims may also be brought in parallel for amounts and heads of loss not covered by National Insurance benefits.
Prudent employers should review their insurance policies carefully, preferably with an agency experienced in construction insurance. The finer details can form the foundation of adequate coverage. Since fights in the construction industry are not uncommon, this issue must not be taken lightly.
Employers should also remain vigilant in managing their workforce. Listen to concerns raised on site and do everything possible to prevent serious incidents before they occur.
The responsibility of the offender
Just before concluding, let us recall that a fight at a construction site that caused damage to one of the brawlers could lead to a lawsuit and a severe verdict against the attacker himself, if his guilt is proven. In such a case, in addition to the compensation that the attacker himself will have to bear for the victim's claim, he may also be liable for a subrogation claim from the National Insurance Institute and the recipient's insurance company if he bore any burden of compensation for the attacked employee. Therefore, the obvious conclusion is to recommend that every "nervous" person control themselves - otherwise it could cost them very, very dearly.
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