Who is responsible in South Africa when a contractor that you contracted to conduct work for you is injured or killed on your premises?
When a client hires an independent contractor to perform services at their place of business, it is imperative to know who is responsible in South Africa when a contractor that they contracted to conduct for them is injured or killed on their premises.
Clients must know that their legal standard of care is different from the duties which are owed to a customer, for instance. However, should a workplace injury occur to an independent contractor’s employee on the client’s premises, the client will expect that workers’ compensation is available to cover expenses.
However, it must be noted that even though there is workers’ compensation coverage, it may not preclude any third-party liability. This relates specifically to the possessor or owner of the premises, regardless of whether it is leased or owned by the client, being held liable for the injury.
Is the client liable for injuries or death?
There is an enormous difference between injuries or death sustained by the employee of an independent contractor on the premises of the client and that of a customer. Legally, the owner of the premises or the possessor owes two different duties to business invitees, which includes customers.
The first is the duty to maintain the premise in a safe condition and the second is the duty to warn of any latent dangers.
Where an independent contractor is concerned, the owner or possessor (a lessee) of the premises who hires an independent contractor is typically not liable for injuries sustained by the independent contractor’s employees while performing their work. This includes dangerous work as well, provided that the risks involved with such work have been disclosed and/or they are incidental to the work.
When can the client be held liable?
Even though the abovementioned is a general rule, it is accompanied by exceptions. The owner or possessor of the premises may be held liable for damages which have been sustained by the independent contractor’s employee in the following two instances:
- Should the owner or possessor actively participate in, or exercises, direct control over the work being conducted, or
- Should the owner or possessor create, or negligently approve, a dangerous condition.
When there are onsite hazards which are clear and obvious, and the owner or possessor of the premises does not actively participate or supervise the work being done, they therefore have no further duty in warning others of the dangers.
It is also for this reason that the client cannot be held liable for any damages which may be sustained by an independent contractor’s employee. It also means that the owner of the premises or the possessor thereof does not owe a recognized legal duty for having to train or supervise the independent contractor’s work.
The independent contractor is placed to take charge of their worksite, making them responsible for all incidental contingencies. They are also presumed to carry awareness of the usual hazards incidental to the performing of the project.
How can the client protect themselves?
When an independent contractor is hired to work on the premises, the client must ensure that they exercise due diligence. This includes background research on the contractor and ensuring that they have the necessary licensing and insurance.
There may be some types of work that require a certificate of insurance and to have the business of the client indicated as an additional insured. In addition, the client can also ensure that they inspect the worksite alongside the contractor and clearly explain expectations and potential issues that they might encounter.
The client must also clearly, and in writing, detail the scope of work of the contractor in the contract.
The prevention of accidents must be the primary goal of every client and rendering aid to the injured person must be the priority when an accident has occurred. However, once the emergency has subsided, it is imperative that the incident is documented and investigated accordingly, with the necessary action plan put in place to prevent recurrence.
There must also be a monitoring system in place so that the effectiveness of such actions can be measured to see where improvements may be needed.
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