Kuwait Court of Cassation principle number 510

Summary: - A subcontractor’s worker or his heirs. His 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. The condition for this. That its source be the employment contract. Where the source of his right is a cause other than the employment contract, such as tortious liability. Its consequence. The worker is not entitled to bring a direct action against the main contractor. Rule: The provision in Article 682 of the Civil Code that: “1- The subcontractor and workers working for the main contractor in the execution of the work may demand 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 the amount owed by him,” indicates that a subcontractor’s worker—or his heirs—has a 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. However, if the source of the worker’s right against the subcontractor is a cause other than the employment contract, such as tortious liability, the worker is not entitled in that case to bring a direct action against the main contractor. It is established—in the jurisprudence of this Court—that a person participating in construction works is liable only for the consequences of his personal fault, and is not deemed 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 specialist contractor who ordinarily performs such work under his own responsibility, it is that contractor who is liable for the consequences of his 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 cause of that liability, that is, whether its cause is personal or presumed fault, because tortious liability falls upon the person causing it by the act or omission itself. Accordingly, if an accident occurs to a worker appointed by the subcontractor and working under his supervision and control, the subcontractor alone is responsible for compensating the worker for the injury sustained during and by reason of the work.