Failure to update the list of works in the contractor work insurance negates compensation from the insurance company
Mar 27, 2018
Attorneys John Geva and Shlomi HadarGeva–Hadar Law Office, Attorneys at Law and Mediators
At the Tel Aviv Magistrates’ Court, the claim of A. v. ___ (the “Plaintiff”) was heard, represented by Adv. Arouah Younes, against Mr. ___ (the “Defendant”), represented by Adv. Ozer Berkowitz, and against a third party—Shomera Insurance Company Ltd. (the “Third Party” – “Shomera”), represented by Adv. Sharon Fogel. The judgment was rendered in February 2018, in the absence of the parties, by the Honorable Senior Judge Yael Henig.
Facts of the case:The plaintiff filed a claim for compensation for bodily injury allegedly caused to him as a result of pushing a heavy scaffold during work. The plaintiff is a resident of the Palestinian Authority and a construction worker by profession. The defendant is a renovation contractor who owns a business for construction and renovation works. The third party—Shomera—is the insurance company that insured the defendant during the relevant period under a declaratory contractors’ works insurance policy. The parties disputed the following issues: the occurrence of a traumatic incident, the injury and its circumstances; employer liability and contributory negligence; the medical disability; its functional implications; the plaintiff’s income and the amount of damage; and the existence of insurance coverage.
Parties’ arguments:According to the plaintiff, the defendant breached statutory duties owed to him pursuant to section 172 of the Safety at Work Ordinance [New Version], 1970. In addition, the defendant breached duties of care by failing to provide him with mechanical aids or assistance from another worker capable of participating in the pushing. There is a causal link between these breaches and the damage suffered. The plaintiff argued that no contributory negligence should be attributed to him, as he acted in accordance with the defendant’s instructions, did not take any unusual action, and was compelled to perform the pushing operation by himself.
According to the defendant, there are no statutory duties under the law regarding excessive weight. In the absence of a statutory duty and in the absence of an expert safety opinion, the plaintiff failed to prove that the defendant was required to take protective measures. The defendant further argued that no concrete duty of care should be imposed, as this was an unforeseeable risk under the circumstances. An incident in which the plaintiff’s back or neck “caught” resulted from the ordinary and natural risk inherent in this type of work—particularly in his case, as a veteran worker with prior experience working under similar field conditions.
Shomera argued that there was no insurance coverage because the defendant notified it of the work at the Dan Hotel more than two months after the accident and after having knowledge of the traumatic incident.
Attorney John Geva and Shlomi Hadar
Geva-Hadar Law Firm, Lawyers and Mediators
In the Tel Aviv Magistrate's Court, the claim of A. N. (" the plaintiff ") was heard by Attorney Auroa Younes against a certain person (" the defendant ") by Attorney Ozer Berkowitz and a third party, Shomra Insurance Company Ltd. (" Third Party " - " Shomra ") by Attorney Sharon Fogel. The verdict was given in February 2018, in the absence of the parties, by the Honorable Senior Judge Yael Henig.
Facts of the case: The plaintiff filed a claim for compensation for bodily injury that he allegedly suffered as a result of pushing heavy scaffolding during work. The plaintiff is a resident of the Palestinian Authority, a construction worker by profession. The defendant is a renovation contractor, owner of a business for construction and renovation work. The third party – the insurer is the insurance company that insured the defendant during the relevant period in a declaratory policy for contractor work insurance . The parties disagreed on the following questions: occurrence of an accident, the injury and its circumstances; employer liability and contributory negligence; medical disability; its functional consequences; the plaintiff's income and the amount of the damage; the existence of insurance coverage.
The parties' arguments: According to the plaintiff , the defendant violated statutory duties towards him under Section 172 of the Occupational Safety Ordinance [New Version], 1970. He also violated duties of care towards him by not providing him with an aid or assistance by an employee who is able to participate in the push. There is a causal link between the violation of these duties and his damage. According to him, he cannot be attributed contributory fault, since he followed the defendant's instructions, did not take any unusual action and was forced to perform the push himself. According to the defendant , there are no statutory duties in law regarding excess weight. In the absence of a legal obligation and in the absence of a safety expert's opinion, the plaintiff has not proven that the defendant was obliged to take protective measures. According to him, a concrete duty of care should not be imposed on him, since this is an unforeseen risk by him under the circumstances. An incident in which the plaintiff's back or neck was "caught" stems from the normal and natural risk in this type of work, and especially in his case, Being a veteran employee who had previous experience working in similar field conditions, Schumra claimed a lack of insurance coverage because the defendant only informed her about the job at the Dan Hotel more than two months after the accident and after she knew about the accident.
The verdict
The court ruled that the plaintiff was able to tip the balance of probabilities in his favor and prove the accident and its circumstances. The court discussed liability for the accident and noted that , within the framework of an employer's duty of care towards an employee, he must ensure a safe work environment, provide the employee with safety tools and devices, ensure proper work methods, instruct the employee, warn him of the risks involved in performing his work, and supervise the taking of necessary precautions (Supreme Court rulings Shirazian v. Levyd Ashkelon Ltd., Bo'aron v. Netanya Municipality). The employer will be liable if it is found that he was negligent, that is, that the damage was caused as a result of his deviation from the norm of behavior of a reasonable employer, under the circumstances of the case. Deviation can be expressed in creating an unreasonable risk or in failing to take reasonable measures to prevent the materialization of an unreasonable risk, provided that it is a foreseeable risk.
The court ruled that back injury resulting from lifting loads is an expected risk and part of the risks of life. An employer will not be held liable for the damage of an employee whose back is injured due to lifting loads, except in those cases where an unusual risk is created as a result of lifting particularly heavy objects. In these cases, the employer must take reasonable measures to prevent the danger from materializing. The starting point for examining the defendant's negligence is the weight of the scaffold. There is no need for an expert opinion to determine that pushing a weight that is three or four times higher than the weight permitted under the Youth Labor Regulations exceeds the reasonable risks at a construction worker's workplace and creates an unreasonable risk.
The court emphasized that this goes beyond the reasonable risks at the workplace of a construction worker, creating an unreasonable risk that the defendant created, and which required him to take reasonable measures. The plaintiff easily passed the tests of causal connection and proved that his compliance with the defendant's demand, under the conditions he dictated, caused the damage. The legal connection exists both according to the test of the prevailing risk, and according to the tests of anticipation and common sense, according to which the defendant could have anticipated the damage that would be caused to the plaintiff in light of the risk he created, without taking reasonable measures.
The court ruled that the defendant cannot be heard on the claim of contributory fault since he created the risk and prevented the means to protect himself from it. The plaintiff acted at the heart of this risk and was injured while using his body, the only "means" that the defendant made available to him for the purpose of performing the work. The defendant was negligent and must compensate the plaintiff for his damages.
The defendant purchased a contractor work insurance policy from Shomra that covers, among other things, employer liability. The list in the policy specified declared work at two sites, and the Dan Hotel , where the work was performed , is not among them . This is a "declaratory" policy, in which the terms of insurance coverage for more than one job are summarized in advance, and the coverage for each job is according to the insured's declaration. The coverage here was conditioned on reporting before the start of each job . Shomra claimed that there was no insurance coverage because the defendant only notified her of the job more than two months after the accident, and this was sufficient to reject the notification to a third party. The court noted that accepting the defendant's position means recognizing an insurance contract to cover a risk that had already passed at the time the contract was concluded or an insured event that had already occurred at that time, and such recognition is inconsistent with Section 16(a) of the Insurance Contract Law, 5741-1981.
In summary: The court accepted the claim and rejected the third-party notice, ordering the defendant to pay the plaintiff the amount of the claim, plus attorney's fees, fees for a medical expert on his behalf, and legal fees. In addition, the defendant must pay the custodian attorney's fees and legal fees for the third-party notice.
** As of the date of this writing, it is unknown whether an appeal has been filed with the District Court.
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