The court discusses the status of the construction inspector and his liability.
Sep 26, 2017
At the Be’er Sheva Magistrate’s Court, a ruling was issued by Hon. Judge Michal Wolfson in cross-claims filed by A. Tayeb Engineering Ltd. (“Tayeb”) and M.T.R. Vehicle Industries (1999) Ltd. (“MTR”), which, among other matters, addressed the legal status of the construction supervisor.
According to the ruling, the dispute between the parties concerns the meaning of supervision and the scope of the supervisor’s liability, both contractually and tortiously.
The legal framework regarding supervision, as defined in Regulation 4 of the Planning and Building Regulations (Supervision of Construction), 1992, establishes, among other things:
“Monitoring approved laboratory tests required by law, which shall be submitted to him by the general contractor or under his instructions.”
According to Tayeb’s counsel, the supervisor is not the executing contractor and therefore is not liable for the contractual obligations of the contractor regarding the quality of construction, nor for negligence claims. The claim asserts that the construction defects identified by MTR’s expert are execution defects, not supervision defects.
The court noted that, according to the contract between the parties, MTR undertook a number of planning-related responsibilities, including the design of buildings, roads, various systems, and overall supervision. The proposal specified that:
“Supervision shall be carried out by a representative or entity on behalf of the developer,” and “close supervision shall be maintained across all disciplines under the responsibility of the client.”
The Beer Sheva Magistrate's Court issued a ruling (by the Honorable Judge Michal Wolfson) in mutual lawsuits filed by A. Taib Engineering Ltd. ('Taib') and M.T.R. Automotive Industries (1999) Ltd. ('Matar') that discussed, among other things, the legal status of the construction inspector.
According to the ruling, the dispute between the parties is over the question of the meaning of supervision and the scope of the supervisor's liability from a contractual and tortious perspective.
The legal arrangement regarding the supreme supervision, as defined in Regulation 4 of the Planning and Building Regulations (Supreme Supervision of Construction), 1992, stipulated, among other things: "Monitoring approved laboratory tests required by any law that are transferred to it by the main contractor or at his direction."
According to Attorney Taib, the inspector is not the construction contractor , and therefore is not liable for the contractual obligations of the construction contractor for the quality and quantity of the construction, and the same applies to the tort of negligence. The claim that was made is that the construction defects found by the expert method are defects in execution, not defects in supervision.
The court noted that, according to the contract signed by the parties, Mathar took on a series of issues at the planning level, including the design of buildings, roads, various systems, and superior supervision. The proposal stipulated that "supervision will be carried out by a representative or body on behalf of the developer," and "close supervision of all trades is the responsibility of the client."
The verdict
According to the ruling, from the proposal document between the parties, it was not possible to understand who was the "developer" and who was the "client." The court noted that it was not clear whether the supervisors in the field were individual supervisors for certain areas at the level of "supreme supervision," as agreed, or close supervisors in the field.
The court noted that the cause of action against Taib is negligence. The alleged defects in the concrete floor do not substantiate the work indicating Taib's act or omission. In light of the division between the contractor's duties and the supervision duties, there is no connection between the inspections and negligence.
The court was not convinced by the engineer's opinion that the concrete was not of the strength required by the constructor. This was the element that, if proven, would have shifted the burden of presenting counter-evidence to Taib.
In the absence of proof of the facts, the court was not convinced that Taib, as an inspector, was negligent regarding the strength of the concrete – which was within the scope of her liability as an inspector. Therefore, the claim of negligence regarding the strength of the concrete was rejected.
The court ruled that Matter did not prove that the supervision finalized the account with the contractors, and did not prove the content of the "close supervision." Matter did not even bear the burden of proving that Taib approved the contractor's final account.
In view of the fact that the main damage claimed was in the casting of the concrete floor, it was not explained where the failure was in general, and Taib's in particular.
It was determined that Taib's status as a supervisor imposes conceptual and concrete liability on her, but the facts – the content – of each liability must be specified. It is not enough, as was done in the proceedings subject to the judgment, to point out the fact that Taib was the supervisor and that defects were found in the execution of the concrete pouring.
In this case, no factual evidence was presented that indicates the inspector's negligence in performing his duties, and given the fact that the remaining defects that were the subject of the engineer's opinion were a result of the contractor's work, the court did not find that a cause of action arose against Taib for them. Mather did not prove that the defects were a result of supervisory failures.
It was determined that the defendant had to prove that Taib was negligent regarding any defect.
With regard to the claim that the negligence was in approving accounts against a bill of quantities without checking quality, it was determined that it was not proven that Taib should have also checked the quality of the construction beyond its statutory duty to check the concrete. The court emphasized that no contractual or legislative source or even a ruling that imposed the duty for that inspection on Taib was proven, and ultimately dismissed the lawsuit against Taib.
Therefore, in this case, the cause of action against the inspector was not accepted, among other things, due to failure to meet the burden of proof. However, this matter again raises a complex issue regarding the question of what the liability of an inspector is during construction. On the one hand, some try to argue that a construction defect means a defect in supervision, and on the other hand, that supervision does not replace the contractor or supplier of the relevant material, and his liability may lie in the process of inspecting the results of the work.
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