Recently, we have witnessed claims that there has been an increase in the number of work place accidents and particularly on construction sites. According to these reports, in 2015 32 employees were killed on construction sites in Israel and during the first half of 2016, some 20 were killed and about 108 suffered medium to severe injuries. This subject hit the headlines again even more recently with the collapse of a multi-story underground parking lot construction site in Ramat Hahayal in Tel-Aviv, in which incident a number employees were killed. These incidents immediately give rise to the question of criminal liability, in which the approved investigation bodies are involved, as well as to the question of civil liability in tort as part of which the victims are to be compensated by those responsible.
In order to try to deal with the work place accidents, an amendment to the Labor Inspection Organization Law (Amendment No. 10), 5776-2016 was accepted. According to the amendment to the Law, a construction site on which an accident occurs which causes the death or serious injury of an employee, will be closed immediately for a period of between 2-5 days and will only be re-opened after the safety inspector has conducted a check and certified that all deficiencies in safety have been repaired. While the site is closed and before the closure order has expired, the inspectors from the Ministry of the Economy will be required to examine whether the deficiencies on the construction site have been repaired within 48 hours and before the closure order has expired. This is to ensure that the site will not re-open until the deficiencies have been repaired. The inspectors are empowered to close construction sites.
It should be mentioned that, as a general rule, in construction projects there are several entities involved: the owner/entrepreneur, the prime contractor, the management and inspection entities at the site, sub-contractors/employers and engineers. The Safety at Work Ordinance [New Version], 5733-1970 (the 'Ordinance') and the Regulations promulgated pursuant thereto determine the reasonable safety means which are required to be taken during the period of construction works and on whom the liability is imposed to ensure their compliance. Generally, the responsibility for complying with the provisions set forth in the construction regulations and for taking the necessary steps for ensuring that each employee will comply with the provisions concerning his work falls on the shoulders of the works foreman appointed by the 'construction operator' (Regulation 2 and Regulation 5(a)) of the construction regulations). Where the 'construction operator' has not appointed a works foreman as required, the responsibility for complying with the provisions of the construction regulations will fall on the shoulders of the 'construction operator' itself (Regulation 5(c)). Regulation 6(c) of the construction regulations provides that when the party ordering the construction works imposes on more than one prime contractor the obligation to perform the construction works, the party ordering the works will be regarded as the 'construction operator' for the purposes of the regulations and that obligations imposed usually on the 'construction operator' will apply to it.
According to the judgment of the Supreme Court in the matter of Douani v Malachi, the purpose of this mechanism is to create one address from which it is possible to compensate a person who has been injured and who has suffered loss and damage as a result of a breach of the regulations. The creation of one 'address' is required also in order that cases will not 'fall between two stools', when there are various entities working on a construction site. In this situation there is utmost importance in determining one entity which will be responsible for all that is required in order to ensure the existence of adequate safety conditions, including the coordination between the different entities working on the site. Recently, in the matter of Eden Teva Market v the National Insurance Institute, the Supreme Court considered the division of liability between the different entities, and found that as a general rule the imposition of liability on the party ordering the works, which was not negligent in the choice of the performing contractor and which did not in fact transfer the performance to another, is likely to unnecessarily burden it and is even likely to make the construction, repair or renovation works more expensive. Therefore, for so long as the party ordering the works was not negligent in the choice of the performing contractor and such party was not involved in the event, no liability for supervision should be imposed on such party nor any other duty to take care. Within the framework of the division of liability between the employer and the prime contractor, the Supreme Court imposed the majority of the liability (70%) on the employer of the injured individual, since it was directly responsible for the work conditions of the injured employee and had supervision and control on the conditions which caused the accident.
References: Labor Inspection Organization Law (Amendment No. 10), 5776-2016; Safety at Work Ordinance [New Version], 5733-1970; Regulations for Safety at Work (Construction Works), 5751-1988; CA 3805/01 Douani v Malachi, PD 47 (3) 682 (2003); CA Eden Teva Market Ltd v the National Insurance Institute (published in Nevo, 30.8.2015)