Kuwait Court of Cassation principle number 401

Summary: - A subcontractor’s worker or his heirs. Entitled to recourse by direct action against the main contractor within the limits of the wages due to him and every other right owed to him by the subcontractor. Condition therefor. Its source must be the employment contract. Where the source of his right is a cause other than the employment contract, such as tort liability. Consequence. The worker is not entitled to recourse against the main contractor by direct action. Rule: It is established in the jurisprudence of this Court that a judge is primarily required to refer to the text of the law itself and apply it to the facts of the action within the bounds of the wording of the text. If its meaning is clear, it is impermissible to adopt anything contrary to it or restrict it, as that would introduce, through interpretation, a rule different from the legislature’s intent. The determining factor in characterizing an action is not how the litigants describe it, but what the court discerns from the facts of the action through applying the law thereto. The provision in Article 682 of the Civil Code that: “1- The subcontractor and workers working for the main contractor in carrying out the work may claim directly from the employer what is due to them from the main contractor, within the limits of the amount owed by the employer to the latter at the time the action is brought. 2- The subcontractor’s workers also have a direct action against both the main contractor and the employer within the limits of what is owed by each,” indicates that a subcontractor’s worker—or his heirs—has the right of recourse by direct action against the main contractor within the limits of the wages due to him and every other right owed to him by the subcontractor, provided that its source is the employment contract. If, however, the source of the worker’s right against the subcontractor is a cause other than the employment contract, such as tort liability, the worker is not entitled in that case to recourse against the main contractor by direct action. It is established in the jurisprudence of this Court that a person participating in construction works is liable only for the consequences of his own fault and is not considered liable for harm suffered by people during construction unless the work is proceeding under his own observation and supervision. If he entrusts all or part of it to a specialized contractor who ordinarily performs such work under his own responsibility, that contractor is liable for the consequences of his own fault. It necessarily follows that the main contractor who entrusts construction works to a subcontractor does not guarantee that contractor’s liability for harm to third parties, whatever the basis of that liability, that is, whether based on personal or presumed fault, because tort liability falls upon the person responsible for the act or omission itself. Accordingly, if an accident befalls a worker appointed by the subcontractor and working under its supervision and control, it alone is liable to compensate the worker for the injury sustained during and because of the work.