

“Employers have an obligation to provide a safe working environment for their employees” – An noteworthy court judgement that also addresses the liability of manpower companies
By: John Geva, Adv., John Geva Hadar & Co. Law Offices
A lawsuit for bodily injury was filed under the Torts Ordinance due to a work accident, on grounds of negligence and breach of statutory duty.
The plaintiff, an illegal immigrant from Sudan, allegedly lost his left thumb whilst working with a defective electrical saw.
The parties involved
Defendant 1 – A now defunct manpower company that was the employer of the plaintiff.
Defendant 2 – Harel Insurance Company Ltd., the insurers of Defendant 1.
Defendant 3 – U. Dori Construction, the main contractor, which has gone into liquidation. The claim against this company was dismissed.
Defendant 4 – Menora Mivtachim Insurance Ltd., the insurers of Defendants 6 and 7.
Defendant 5 – Ayalon Insurance Company Ltd., the insurers of Defendant 3.
Defendant 6-7 – Osif Construction and Investments Ltd. and Rasko Residential, the property developers and owners of the land on which the project was being constructed.

Menora served third party notices on Harel and Ayalon.
The manpower company and Harel served third party notices on Rasko and Menora.
The National Insurance Institute acknowledged the event was a work accident.
The arguments
The plaintiff argued that the defendants were negligent in sending a foreign worker with no prior experience to work with dangerous equipment in a hazardous work environment with no proper supervision. The defendants told the plaintiff to take a disc saw, without any handle or guard and, saw a slab of plywood which was also placed in a hazardous position.
Defendants 1 and 2 argued that Defendant 1, as a manpower company, is not liable for the accident, and that according to case law, in a situation where a manpower company did not and could not control or supervise the place of work and the employee, it is exempt from liability. Defendants 4, 6 and 7 argued that the claim should be dismissed due to an unreasonably long delay in filing the claim (laches), the fact that there were no witnesses to the accident and therefore the claim rests on the evidence of a single witness and also to the substantial element of contributory negligence on the part of the plaintiff.

The court referred to the statute of limitations which places a time limit on different types of claims. Despite these time limits, the court have the authority to dismiss claims which are filed long after the event even if they are still within the statute of limitations. In order to invoke laches, the defendant needs to prove that the plaintiff “slept on their rights” to claim, or that evidence favourable to the defendant was lost or degraded over time. The burden of proof is on the defendant who invokes such an argument.
The court dismissed the argument of Defendant 4 that they suffered “evidential damage” because the claim was filed after the building contractor (Defendant 3) had gone into liquidation. The court found that U. Dori was aware of the accident and could have saved the documentation and kept records of the names of the witnesses to the event and so if they have sustained any evidential damage, they only have themselves to blame. The court determined that the conduct of the plaintiff does not indicate that he slept on his rights, neither were the defendants able to prove that evidence favourable to them was lost or degraded, or that they sustained any evidential damage and hence the court dismissed the argument of laches.
The legal question
The main question that needs to be resolved is whether the errors or omissions of the defendants can be classified as negligence as the term is defined in the Torts Ordinance, and whether any of the insurers are liable to pay compensation due to the ensuing injury.

The duty of care (conceptually and tangibly)
A fundamental prerequisite to establishing negligence is that the tortfeasor has a duty of care (conceptually and tangibly) to the victim; negligence pertains to harm caused by a breach of the duty of care due to a negligent error or omission and the ensuing damages. The conceptual test of the duty of care is linked to the obligations of one party to exercise reasonable care in their actions to another, regardless of the specific circumstances of the matter. The tangible test of the duty of care is concerned with the question of whether a reasonable person can foresee the possibility of the alleged damage occurring. Under the specific circumstances of the event, the law places a duty on the party who is obliged to exercise the duty of care to implement reasonable means to prevent damages.
An employer has a conceptual legal duty of care to their employees. The employer is obliged to create a safe working environment and ensure that safe working practices are in place, and they must provide suitable and safe materials, equipment and tools. Another duty is to effectively and continuously supervise implementation of precautionary measures by the employees, to train them and warn them of the risks and hazards involved in performing their work. The employer is not entitled to assume that the employees will take precautionary measures at their own initiative to prevent accidents, and the employer is also obliged to protect the employees against their own negligence and errors. The legal safety rules and regulations are an auxiliary tool to set out specific steps that the employer has to take in order to provide their employees with reasonable protection against accidents, and in certain cases the employer has to exercise an even higher standard of care.
In civil proceedings, a plaintiff who seeks relief has the burden of proving that the facts which give rise to the cause of action have occurred. The Evidence Ordinance prescribes that determining factual findings based on the evidence of a single witness is conditional upon supplying some other material evidence to factually corroborate their version of events. The courts have discretion in deciding whether to suffice with the evidence of a single witness or not, provided that the decision is reasoned.
The plaintiff’s argument that the employer breached the duty of care
The plaintiff testified that he was told on his first day at the site that he has to do what the foreman tells him to do. He did not receive any safety briefings and he told the warehouse manager that the disc is missing a handle and guard. The court found that the evidence of the plaintiff was credible and coherent, and held that the accident occurred as he described it. The court dismissed the defendant’s argument that the plaintiff should have presented an expert report to support his version of the circumstances of the accident. Defendant 1 signed a National Insurance Institute accident report form, and Defendants 3, 6 and 7 did not present any other evidence or contradictory version of events. The court determined that the evidence of the plaintiff, who presented a photo of the disc to illustrate it and testified that he was given a disc without a handle and guard, was credible, and that there was no need for an expert witness to demonstrate that it was unsafe.

The court added that breaching the duty of the defendants to provide a suitable, safe and stable work environment, failing to provide safety briefings and supervise the work and the way it is conducted and failing to supply personal protective equipment are the main reasons why the accident occurred which lead to the plaintiff’s injury. According to case law, legal causation can be checked by the foreseeability test. The court determined that it is fair to assume that the conduct as described had a risk of causing injury.
Similarly, the unfortunate result is the outcome of the hazard that the conduct of the tortfeasor caused. The defendants created a hazardous environment in supplying the plaintiff with a dangerous and defective tool, without training, without a guard, and this risk materialised.

The duty of the employer to provide their employees with a safe working environment
The court added that to tell the plaintiff to work with a disc – which is itself a hazardous tool – especially when the saw had no guard or handle, without any personal protective equipment, without explaining to him how to work with the tool, when there was an obligation to work with a guard and handle, are all reasons why there is no need for a report from a safety at work expert, as common sense shows that all of these factors lead to the accident.
The court referred to the Safety at Work Ordinance which lays out the appropriate standard of care and determines that when a guard and handle are missing, a statutory duty has been breached. The plaintiff testified that he received no training and his testimony was not refuted. The defendants repudiated all liability, but failed to present evidence of safety at work training.
What is the weight of the contributory negligence of an employee?
Contributory negligence is a defence argument that can be used to reduce the extent of liability to compensate the victim. The court will consider, depending on the circumstances, whether the victim acted as a responsible person and took reasonable precautions, and if not – they may be partially liable for their own injuries. Nonetheless, employees are rarely held liable for work accidents.
The party who argues that there is an element of contributory negligence has to show that the employee exercised discretion and independent judgement by willingly creating the risk, rather than operating within the boundaries of the risk that the employer created.
The court determined that an employee who is injured at work in a situation where they comply with the instructions of their superiors cannot be held liable for contributory negligence in a way that would reduce the compensation they are entitled to and hence determined that there was no contributory negligence on the part of the employee.

Arguments relating to the apportionment of liability between the defendants – the manpower company is not a contractor of the insured
According to Defendants 1 and 2, only U. Dori, Ayalon, Osif, Rasco and Menora should be held liable. The Harel policy did not cover U. Dori and there is no double insurance between this policy and the Menora policy covering the manpower company. According to Defendants 4, 6 and 7, Defendant 1 should be held liable for the damages since it was the direct employer of the plaintiff and should have supplied the defendants with personnel who are suited to the work, ensure they work in a safe environment, receive and understand the safety rules and comply with them.
Concerning the insurance policies that cover the accident, Defendants 4, 6 and 7 argue that Defendant 1 holds an Employers Liability policy with Harel which covers the liability of Defendant 1, and that the manpower company is not a “subcontractor” as defined under the Menora policy issued to the property developer. The counsel for the defendants argued alternatively that there is a situation of double insurance such that Defendant 2 should pay half of any amount that Defendant 1 is held liable to pay, and that the policy excess should be deducted from the Menora policy on the balance. In the case of Ayalon, Defendants 4, 6 and 7 argue that U.

Dori is being represented in this case under the policy of the property developer Osif and Rasco which extends the cover to include the main contractor. Ayalon enters the shoes of U. Dori as the insurers of a specific Third Party Liability policy issued to U. Dori, but did not present any evidence concerning the contractual agreements, site diaries or witnesses for U. Dori. The Ayalon policy stipulates that it is primary to any other policy and hence it covers the liability of Defendant 3. The defendants argue alternatively that if double insurance principles apply, then the ratio between the Menora and Ayalon policies is 1:3. If Defendant 5 argues that the policy applies on a D.I.C. / D.I.L. basis, then the defendants argue that section 59 of the Insurance Contract Act - 1981 relating to double insurance applies. The defendants also argue that if Menora is held liable under the Third Party Liability section of the policy for the liability of Defendant 3, then the deductible should be applied. According to Ayalon, the policy issued to U. Dori is a General Third Party Liability policy which does not cover contract works or the site where the accident occurred. Ayalon alternatively argues that there is a situation of double insurance and the deductible should be applied. As regards the priority provision in the policy, Ayalon argues in its capacity as the third party that the said policy expressly stipulates that the priority provision applies to any person or legal entity who has received a covenant from the insured to this effect (priority and non-contribution), however the defendants did not present such an agreement. Concerning the liability, Ayalon argues that the manpower company should be held liable as the employer of the plaintiff and that U. Dori should not be held liable, since the site was managed safely and it has not been proven otherwise, and if any liability should be imposed relating to conduct at the site, it should be imputed on Defendants 6 and 7.
The liability of the contractor to an employee of a manpower company – and what is the liability of a manpower company?
The plaintiff argued that despite his lack of experienced, the foreman instructed him to cut a plyboard slab with an electrical disc. The project manager from Rasco and Osif testified that the party responsible for safety training was U. Dori and that neither he nor the property developers were responsible for doing so. Furthermore, the witness for the manpower company that employed the plaintiff testified that he did not check or verify the issue of staff safety briefings or training and that the whole issue of safety was left to the property developer.
The court cited case law that a contractor who tells a manpower worker what to do in the workplace has a conceptual and tangible duly of care to him, and the question of whether the manpower company is liable needs to be considered on an individual basis depending on the circumstances.

The plaintiff entered Israel illegally. A representative of Defendant 1 testified that the manpower company merely supplied cleaning staff although it was not clarified whether the status of the plaintiff was a general cleaning worker or a construction labourer, and no agreement between the manpower company and U. Dori was presented. The plaintiff testified that a representative of the manpower company told him to do whatever the foreman tells him to do, without emphasising that he is only involved in cleaning work and that he is prohibited from doing any other work. The representative from the manpower company did not consider that it was his responsibility to take care of the safety of the plaintiff and that U. Dori was exclusively responsible for this issue and so he did not check or verify the issue of safety at work.
The project manager from the property development company held that there is no difference between a general worker and a construction labourer and he did not know whether the safety officer from U. Dori provided safety training at the site. He also stated that U. Dori had no history of accidents and that it was a reputable company. Defendants 3 and 4 also brought no witnesses – neither the warehouse manager, nor the foreman, neither any other employee, all of this is to their detriment.
This is also the reason why the manpower company has a higher level of responsibility to ensure that the building contractor makes sure that the workers who are sent to the site are given a safe environment.
The liability of the manpower company
The court held that when a foreign worker is sent by a manpower company to a contractor, as a general worker, they have an increased level of responsibility to ensure that he is not given work which deviates from basic cleaning work and may not give him any work with hazardous electrical tools or work he is not qualified to do, otherwise the contractor could take advantage of cheap labour and use such workers for tasks which should be done by experienced and skilled personnel.
A foreign worker as a general worker at a construction site – can he be told to do any work other than cleaning?

The liability of the contractor
The primary duty of care is imposed on the contractor who tells the plaintiff what to do and closely supervises his work. Defendants 6 and 7 argued that they are the property developers and that U. Dori had a responsibility to take care of site safety. The defendants did not present any written evidence of their arguments concerning the liability, and this fact goes to their detriment.
The court judgement and the apportionment of liability
The court ruled that the liability should be apportioned between the defendants in the following manner:
Defendant 1 (The manpower company) – 25%
Defendant 3 (The main contractor) – 65%
Defendants 6 and 7 (The property developers) – 10%
Concerning the apportionment between the various insurance policies, the court held that the Defendant 2 – Harel, as the insurers of the manpower company should be liable for 25% of the damages, Defendant 4 – Menora, as the insurers of the building contractor U. Dori, should be liable for 65%, and that Menora, as the insurers of the property developers (Defendants 6 and 7) should be liable for 10% of the damages.
Concerning the disability level of the plaintiff, the court endorsed the report from the expert, determined the functional disability level and awarded damages for past and future loss of income, pension losses, pain and suffering, third party assistance in the past and future and out of pocket medical and other expenses.
The court found for the plaintiff and ruled that the damages awarded shall be paid to the plaintiff by Defendants 4, 6 and 7 with the addition of legal costs and court fees. The claim against Defendant 5 was dismissed. The court also ruled that the plaintiff shall pay costs to Ayalon, and that Menora shall pay costs to Ayalon due to the third party notice.
** As of the time of writing, we do not know whether the judgement has been appealed in the district court.