In a June 19, 2019 ruling by the East Brabant District Court, the court addressed the question of whether a general contractor can be liable when a worker hired by its subcontractor falls while working on the construction site and suffers personal injury as a result.
What was going on?
The main contractor is renovating the county hall in Haarlem in 2012. The main contractor engages a subcontractor to carry out this project, who in turn engages a temporary employment agency. One of the temporary workers trips on a staircase while working and suffers injury to his wrist. The subcontractor's liability insurer compensates this temporary worker's injury. Subsequently, the liability insurer sues the general contractor to compensate the damages and costs.
Employer's duty of care
Employers have a far-reaching duty of care for employees. They must provide a safe working environment and protect employees from danger. Does a workplace accident occur and it turns out that an employer failed to observe the duty of care? Then the employer is liable for damages suffered by the employee as a result of the accident. As early as 1998, the legislator determined that companies also have a duty of care to workers who perform work for the company and are not employed, but are in a similar position to employees (such as a temporary worker). In other words, the work performed by the hired worker must be part of the company's normal business activities. If this is not the case, then the company cannot be liable based on breach of the duty of care either. For example, a law firm cannot be liable for a painter who is painting the office and suffers injury in the course of that work.
Is the work performed part of the general contractor's business?
Therefore, the main question to be answered in these proceedings was whether the work performed by the temporary worker (finishing concrete floors with plastic flooring) was actually part of the main contractor's business activities. The main contractor argued in this matter that finishing concrete floors is not part of its business activities and that it always subcontracts this work to subcontractors. According to the court, the general contractor thereby assumes too narrow a view of the term "business activities. When it comes to large projects such as the one at issue here, it will certainly not be the case that a general contractor will or can also perform all the work himself. The issue, however, is whether the work performed by the temporary worker should objectively be considered part of the general contractor's scope of work. The court finds that this is the case, given that the general contractor is a large construction/contracting company.
Has the general contractor fulfilled its duty of care?
The general contractor can only escape liability by proving that he fulfilled his duty of care. The general contractor must prove that the stairway construction was safe at the time of the industrial accident. The court gave the general contractor the opportunity to do so.
Be mindful of safe working conditions, including for hired workers
This ruling shows once again how quickly a company can be liable for damages suffered by hired workers. According to this ruling, general contractors cannot easily hide behind the defense that the work is not part of their normal business activities. If you are held liable in the event of an industrial accident, you must prove that you have fulfilled your duty of care. In this context, it is important that you, as a construction/contracting company, have a proper RI&E and plan of action and otherwise meet your obligations under the Occupational Health and Safety Act and related regulations. Lonneke recently wrote a blog about this. There are also contractual possibilities to limit damages. If you have any questions about this, we will of course be happy to help.
Written i.c.w. Lonneke Nouwen.
