A worker who fell from scaffolding - who has to prove negligence?
Jul 10, 2018
By: Attorneys John Geva and Shlomi HadarGeva-Hadar Law Office – Attorneys and Mediators
The Supreme Court heard an appeal against the decision of the Haifa District Court, which had itself acted as the appellate instance reviewing the decision of the Magistrate’s Court. The Supreme Court ruling was delivered on May 21, 2018, by a panel headed by Justice Y. Amit.
Background: On July 4, 2007, Mr. Gazi Narani, of blessed memory (hereinafter: “the deceased”), tragically died after falling from a significant height while working as a laborer on a construction site. The appellants in the case were the deceased’s estate and heirs, who stepped into his position and sued the contractor, subcontractor, and developer (hereinafter: “the contractors and developer”).
Throughout the proceedings, which took place across three judicial instances, the parties disputed the circumstances of the deceased’s fall. The appellants claimed that the deceased fell from an improperly installed scaffold at the site. In contrast, the contractors and developer argued that he fell from a seven-meter-high retaining wall located several meters away from the scaffold while walking on it to pour water into a nearby yard—a behavior indicating either the deceased’s responsibility for his own death or, at minimum, a contributory factor.
District Court decision:
The District Court ruled that in the circumstances of the case, in which it is unclear how the deceased fell to his death, responsibility for the accident lies with the contractors and the developer (who employed the deceased), although it found it appropriate to impose contributory fault on the deceased at a rate of 25%, and the appeal was filed on this.
The main argument of the deceased's heirs:
The main argument of the deceased's heirs is based on section 41 of the Torts Ordinance, according to which the burden of proof will shift from the plaintiff to the defendant in a claim filed for damage when three cumulative items are met: (1) The plaintiff had no knowledge or was unable to know what the circumstances actually were that caused the event that resulted in the damage. (2) The damage was caused by property over which the defendant had full control. (3) It appears to the court that the event of the event that caused the damage is more consistent with the conclusion that the defendant did not exercise reasonable caution than with the conclusion that he exercised reasonable caution.
In simpler terms: when the plaintiff is unaware of the circumstances under which the damage occurred to property over which the defendant has control, and when the court believes that the event that caused the damage is more consistent with the conclusion that the defendant was negligent than that he was not negligent, the burden of proof that he was not negligent will shift to the defendant (and this is in contrast to the basic rule according to which "the one who produces the evidence bears the burden of proof" which generally places the burden of proof on the plaintiff).
מסמכים
