The contractors are negligent, shifting the responsibility to the injured worker

Dozens of construction workers have been killed or injured in recent years, but the contractors' defense brief is trying to hold them accountable for contributing blame.

The Supreme Court has taken action and perhaps this situation will change

David Rosenthal

04/07/2022

Monday, 04 July 2022, 11:56

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Dozens of construction workers have been killed in recent years alongside many hundreds injured, some fatally.

Their lives will never be the same again.

The scars and disability will remain in them forever.

The only ray of light in the darkness, which the victims and their families can cling to, is the compensation they can receive from the employer or another party who was negligent at the construction site as well as from the National Insurance Institute (work injuries).

The problem is that precisely at this crisis point, when the future and well-being of the victims and their families depends on restraint, the defendants often claim "contributory negligence", that is - part of the negligence that caused the plaintiff to hit the construction site, which is not careful enough. Or took unnecessary risks and thus made a significant contribution to the accident and injury.

How common is this trick?

"There is no statement of defense in which a contractor sued for an employee's injury does not claim contributory negligence, although in a significant proportion of cases, it is clear that full negligence rests with the contractor. "It is paid to the victim, when often this amount of money is the only source of income he still has left."

The words of Advocate David Pyle, an expert in tort and insurance claims, who represents many construction work victims, are reaffirmed in a resounding recent decision by the Supreme Court.

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Hapoel falls, contractor blames (Photo: ShutterStock)

In the said case, it is a worker who was employed by a company engaged in the field of construction as a cleaning worker at a construction site in the city of Beit Shemesh.

While working in one of the buildings on the site, the worker fell to develop an unfenced elevator shaft from a height of four storeys resulting in severe bodily injuries that left him paralyzed in his lower body.

The court is apt to accept the contractor's contention that this is an experienced practice who knew the site and was aware that the shaft was not fenced.

It was further ruled that the plaintiff did not complain about the lack of fencing to the company or anyone on its behalf, and chose to continue working at the site despite the danger of falling.

In light of all this, the Haifa District Court imputed to the employee a contributory negligence rate of 15%, which was deducted from the amount of compensation to which he is entitled.

Unlike the hundreds of plaintiffs, who humbly accepted the court ruling in their case, in the aforesaid case, the employee refused to reconcile with the evil of the decree and filed an appeal to the Supreme Court.

The decision she made turned the bowl upside down and provided a very significant line to all the construction workers.

Judge Neil Handel ruled that he was a junior cleaning worker, that it was not clear what training he had received in the field of safety, and that the fact that he continued to work despite the danger should not be blamed.

According to him, it is clear that it is not clear to what extent the severity of the risk posed to him is internalized.

Based on these rulings, the Supreme Court accepted the appeal and ruled that no contributory negligence should be attributed to the plaintiff.

Advocate Pyle notes that the ruling sends a resounding message to all contractors in Israel, according to which contributory negligence will not easily be attributed to an employee injured at a construction site, when the employer violates the precautionary and safety rules. Himself freely and independently unreasonable risk, or he ignores a certain risk, and the same risk causes harm, in which there will be justification for a contributory guilty verdict, compared to cases where the employee errs or is distracted by the work, or in momentary negligence resulting from engaging in work, contributory negligence.

Decided to fight the phenomenon.

Judge Neil Handel (Photo: Flash 90, Jonathan Zindel / Flash 90)

Advocate Pyle adds that often a 15% offset in the amount of compensation paid to the employee is a difference between heaven and earth for him: He also points out that employers in general, and contractors in particular, should avoid placing the burden on the shoulders of vulnerable workers, who have lost their entire world in an accident and need at this point more than anything financial compensation that is breathable for them.

However, this is not the only Supreme Court review.

After hundreds of deaths and a greater number of wounded, the Supreme Court justices decided not to remain silent anymore, but to express in a clear and unambiguous statement, their reservations about the unfortunate statistics at the construction sites.

In another groundbreaking ruling, Judge Amit took the stage to call on the justice system to fight war on work accidents.

"The painful phenomenon of the death or serious injury of a construction worker is not a fate, but it has long since become part of the news routine that comes to our ears frequently," he wrote.

"The justice system is also required to give its opinion on this social problem, and the way to reduce its painful damages may go through the paths of criminal law, administrative law and civil law."

Advocate Pyle explains: “These things have been heard more and more recently in the courts.

Many judges express their displeasure with the conduct of contracting companies that do not adhere to safety conditions at work.

"This is reflected in the development and expansion of legal rules and principles, and in the growing willingness of judges to use the tools at their disposal to deter employers and fight work accidents."

Message to all contractors.

Adv. David Pyle (Photo: Oshi Yuval)

In conclusion, for the benefit of both workers and contractors: Reminder regarding the duty of care and the possibility of the victim to sue in case of breach: The responsibility at the construction site rests with the contractor, employer or landowner, and increased duty Safe and use of appropriate means of protection and supervision.

In cases where an employee is injured in a work accident due to the employer's negligence, the employee must file a tort claim for compensation.

The employee must prove that the employer violated the duty of care towards him, when he did not take all measures to prevent his injury, in the absence of adequate protective or training measures or as a result of the use of defective equipment.

Beyond that, if it was a work accident, the injured party is entitled to an injury allowance as well as a one-time grant or an annuity, subject to the degree of disability determined for him.

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