Everybody knows who's responsible for health and safety when all of the workers at a site work for the same employer. But things get complicated at worksites with multiple employers. Take construction sites, for example. Typically, the property owner hires a general contractor to oversee the work. The general contractor then hires subcontractors to perform certain aspects of the work, such as plumbing and electrical work.

So what happens if one of the subcontractor's workers gets hurt? Clearly, the victim would have recourse against the subcontractor that employed him. But the general contractor might have deeper pockets. Can the subcontractor's employee sue the contractor for the injury?

Contractor Liability for Subcontractor Injuries

Since the general contractor is in charge of the overall work, it's easy to assume that the general contractor has a duty to ensure the health and safety of the subcontractors' workers. However, that's not always true.

A recent case from Texas is a good illustration of how courts approach this question. Here's what the case was about, how it was decided and what it tells us about a general contractor's duty to ensure the health and safety of a subcontractor's worker.

What Happened in the Texas Case

An apartment complex hired a general contractor for a "rehab" construction project. The general contractor hired a concrete subcontractor to do concrete repair work. Sadly, one of the subcontractor's workers was killed after his head got crushed by the front loader he was operating.

The victim's estate sued the general contractor for wrongful death. It argued that the general contractor had violated its duty to provide the victim a safe place to work. The general contractor asked the court to dismiss the lawsuit, arguing that it had no right to control the concrete subcontractor's work and thus no duty to protect the victim.

What the Court Decided

The court dismissed the lawsuit. In general, a general contractor doesn't have a duty to ensure that a subcontractor performs its work in a safe manner. But, the court explained, such a duty may arise if:

• The general contractor retains some control over the manner in which the subcontractor's work is performed - that is, it has the right to control the means, methods or details of the subcontractor's work. (Although it's not enough that the general contractor has the right to order a work stoppage, to inspect the work's progress or to recommend a safe manner for the subcontractor's workers to perform their work);
• The general contractor's control extends to the "operative detail" of the subcontractor's work so that it's not free to do the work in its own way; and
• The general contractor's control relates to the subcontractor's work that caused the injury or death.

Applying these principles, the court ruled that the general contractor didn't have a duty to protect the subcontractor's workers. More precisely, the general contractor wasn't responsible for ensuring that the subcontractors' workers operate the front loader safely. The contract between the apartment complex owner and the general contractor didn't provide the latter control over the means, methods or details of any of the subcontractor's work. It simply required the contractor to exercise broad, supervisory powers and set minimum safety standards at the site. This didn't constitute sufficient control to make the contractor responsible for the accident, ruled the court [Deleon v. DSD Development, Inc., 2006 Tex. App. LEXIS 7799, Aug. 31, 2006].

Conclusion

The Deleon case is an illustration of the so-called "multi-employer worksite policy." The rule: Where workers from more than one employer are doing work at a workplace, it is the degree of control over the work - rather than who employs the worker - that determines which employer is liable for the safety of those performing the work. Thus, an employer who controls or creates a workplace hazard may be liable even if the workers endangered by the hazard are on another company's payroll.

THE CANADIAN PERSPECTIVE

By Glenn Demby

Robin's article was written for a U.S. audience but the analysis applies equally to Canadians. Although the term "multi-employer doctrine" is American, Canadian jurisdictions follow the same approach.

The difference in Canada is one of perspective. Unlike their U.S. counterparts, Canadian courts do look at the duty to protect as arising from an employment relationship; however, at least in some provinces, they take a broad view of what constitutes an employment relationship. It is the control over work rather than who performs it that determines liability. Thus, a worker can still be considered a company's employee even if the company doesn't hire him, pay his salary, withhold taxes or perform other functions associated with the traditional employment relationship.

The leading case for this approach is the famous Wyssen case from Ontario. A contractor hired a subcontractor to clean windows at a high-rise condominium. The boatswain's chair wasn't properly secured and the subcontractor fell to his death. The Ontario Court of Appeals (the province's highest court) found that the contractor was liable for the accident even though the contractor wasn't the subcontractor's "employer" and the subcontractor wasn't its "employee" in a traditional employment law sense [R.. v. Wyssen (1992), 10 O.R. (3d) 193 (Ont. C.A.)].

LAW TALK

U.S.-Canada Legal Dictionary

By Glenn Demby

You know how British people call elevators "lifts," french fries "chips," and so on? Well, Canadians do much the same thing. In the interest of building stronger relations between our two great countries, SafetyXChange is pleased to publish the first ever U.S.-Canadian Safety Speak Dictionary:

Got More?

This Dictionary is a work in progress. If you would like to suggest other terms to add, please send them to glennd@bongarde.com.

MEMBER REPLY
Safety Committees in Canada

Comment

In last week's Pop Quiz - CANADA Name That Province, you listed Alberta and Quebec as the only two provinces where a Joint Health and Safety Committee isn't mandatory unless the government orders it. I think the correct response is:

• Alberta (As directed by the Minister);
• PEI (As agreed upon by employees and employers); and
• Northwest Territories (As directed by Chief Safety Officer).

All the rest are mandatory. Please let me know what you think and if your answer still stands. Thanks!

John Wettstein
john@safetystrategies.ca

Reply

Good catch, John. You're absolutely right about PEI and the Northwest Territories, and I should have included them on the list. However, I disagree with you on one point: Quebec does belong on the list. Section 68 of the Quebec OHS Act says that a JHSC "may be established" if there are 20 or more workers. Section 69 gives the CSST (the government agency that enforces the OHS laws) the power to intervene and order an employer to establish a JHSC.

Glenn Demby

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