Short notes on: LIABILITY OF EMPLOYERS/CLIENTS OF INDEPENDENT CONTRACTORS TOWARDS THE INDEPENDENT CONTRACTOR

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1 Short notes on: LIABILITY OF EMPLOYERS/CLIENTS OF INDEPENDENT CONTRACTORS TOWARDS THE INDEPENDENT CONTRACTOR Du Pisanie v Rent-a-Sign (Pty) Ltd and another 2001 (2) SA 894 (SCA) is an appeal from the decision of the High Court of the South Eastern Cape Division. The appellant instituted an action for damages against the respondent. The appellant was an independent contractor who was assisting his father to remove and replace obsolete light fittings inside an advertising board. The appellant was injured when a sheet metal cladding gave way and caused them both to fall to the ground. The respondent was the owner of the board and contracted the appellant to conduct the work. The trial court applied the test for the imposition of liability for negligence as laid down in Kruger v Coetzee 1996 (2) SA 428 (A): 'For the purposes of liability culpa arises if a) a diligens paterfamilias in the position of the defendant (i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and (ii) would take reasonable steps to guard against such occurrence; and (b) the defendant failed to take such steps.' The trial court found that the respondent owed the appellant a duty of care in that the risk of injury was reasonably foreseeable and considered that a diligens paterfamilias in the position of the respondent would have taken reasonable precaution to safeguard the appellant against such risk. The appeal court agreed with the court a quo that there was a duty of care between the appellant and the respondent. The appeal court proceeded to consider the second requirement of the Kruger v Coetzee test, namely whether the respondent did what the law required him to do i.e to take reasonable steps to guard against the risk of harm or injury to the appellant. Before the appellant started the work the appellant s father was warned by one of the respondent s employees that the sheet metal was dangerous to walk on as it was only affixed by pop rivets. The trial court found that the respondent did comply with this duty i.e what the law required it to do in that the issuing of a

2 warning to the appellant was reasonable and sufficient under the circumstances and that the sole cause of the mishap was the failure of the appellant s father to convey the warning to the appellant. The appeal court asked the following question: what is the extent of the duty of a person who hires an independent contractor to effect maintenance and repairs attended by an element of danger? The court held that a person who engages an independent contractor to do work would be under an obligation to warn him of known dangers, which would not be obvious. If the work is attended by obvious danger it is debatable whether there would be any need to point it out. The appellant was warned about possible danger, but he was not advised on how the work could be safely undertaken. The court held that the respondent was not required to do anything more than to warn him about the danger. It was for the appellant to decide how to do the work. The court held further that a person who engages an independent contractor is generally not under a duty to advise him as to the steps he should take to avert known danger. The appellant s council argued that the provisions of the Occupational Health and Safety Act and the regulations of the Act placed a statutory obligation on the respondent to safeguard the appellant against harm or injury. In particular reliance was placed on regulations 6, 12, 13D, 13F and 13G. The court held that the Act was not applicable as the appellant was not an employee of the respondent as defined in the act. The Occupational Health and Safety Act The Occupational Health and Safety Act, 85 of 1993 (OHSA) was promulgated to provide for the health and safety of persons at work. The Act is applicable to all employees in all sectors except employees in the mining and shipping industry. OHSA covers all areas of employment activity and the use of machinery. Unlike the Labour Relations Act it is not confined to an employment relationship. The OHSA also applies to: 1. self employed persons; 2. persons engaged in the manufacture, production or sale of machinery; 3. persons involved in the manufacture, production, sale and/or transport of substances used in the workplace.

3 Section 9 of the OHSA reads as follows: Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health and safety. Reasonably practicable is defined in the Act as follows: having regard to: a) the severity and scope of the hazard or risk concerned; b) the state of knowledge reasonably available concerning that hazards or risk and of any means of removing or mitigating that hazard or risk; c) the availability and suitability of means to remove or mitigate that hazard or risk; and d) the cost of removing or mitigating that hazard or risk in relation to the benefit deriving therefrom. The definition of employee in the OHSA is as follows: any person who is employed by or works for an employee and who receives or entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person. The definition of employee in the OHSA is very wide and an argument can be made that independent contractors may well meet the definition of employee and this would mean that the client for whom the work is done owes a duty of care toward these employees. Even if the independent contractor does not meet the definition of employee as defined in the OHSA then the provision of section 9 still places an obligation on employers. The consequences of breach of a statutory duty are as follows: a) criminal liability in terms of section 38 of the OHSA; and b) civil liability - a breach of statutory duty may found an action of damages in civil law. Summary The law on the relationship between employer and independent contractor has over the years crystalised. In the Chartaprops v Silberman the court held the following: There are few operations entrusted to an independent contractor by a principal that are not capable, if due precautions are not observed, of being sources of danger to others. If a principal were to be held liable for that reason alone the distinction between employee and independent contractor will all but disappear from our

4 law. This plainly is not the type of case where it can be said that Chartaprops negligently selected an independent contractor or that it so interfered with the work that damage results or that it authorised or ratified the wrongful act. In the Chartaprops-case the court was unwilling to hold the employer of an independent contractor liable for the negligent action of the independent contractor. By holding the employer liable the distinction between an employee and an independent contractor would disappear. The court in Du Pisanie stated that an employer of an independent contractor has a duty of care towards the contractor. The only obligation the employer has is to warn the contractor of any known danger, which would not be obvious. What exactly the danger constitutes of and whether it is known and/or obvious, would depend on the facts of each case. The court further stated that there is no general duty on the employee of an independent contractor to advise the contractor on which steps should be taken to avert the known danger. The above mentioned case of Du Pisanie is the only recorded case where an independent contractor instituted an action for damages against its client i.e employer. The lack of case law on this exact issue further emphasises that courts have over the years made and uphold the distinction between an employer-employee relationship and that of a client/employer-independent contractor. To challenge this would be fruitless. The court in Du Pisanie-case the court held that an employer has a duty towards independent contractors, but this duty is not as stringent as the duty an employer has towards its own employees. The intention of the legislature with regards to section 9 of the OHSA could not have been to impose the same duty of care on an employer of an independent contractor as it has towards its own employees. This would surely open the floodgates for civil actions against employers of independent contractors. In my opinion the legislature merely stated that an employee does have a general duty towards persons affected by its activities and that care should be taken to prevent hazard keeping in mind what is reasonably practicable as defined in the act. To date Section 9 of the OHSA has never been challenged or interpreted by the courts. Conclusion Employers of independent contractors have a duty toward the independent contractor that they hire. This duty is however not as stringent as the duty that an employer has towards its own employees.

5 Consult with an attorney at Schoeman Tshaka Attorneys if you are unsure whether your employees are in fact employees or if they could be considered as independent contractors. Employees should also consult with an attorney in order to ensure that they are not being labeled as an independent contractor by their employer, in order for their employer to circumvent the duty it has towards its employees.