Injury & Compensation

Employer's duty regarding workplace safety

Bucky Chan, Partner, Litigation Department, Woo Kwan Lee & Lo

Article exclusively contributed by Woo Kwan Lee & Lo

There is now much greater awareness about the need for safety at work and legislation has been introduced to improve general practices and tighten controls. Even so, this has not altered or reduced the importance of the common law duty of employers to take reasonable care of the safety of their employees.

This duty extends to providing the necessary training, a safe work environment, the correct equipment, proper instructions and procedures, and adequate supervision. In the recent case involving Cathay Pacific Airways Limited and Wong Sau Lai, the Court of Final Appeal discussed the extent of the employer's duty of care in providing a safe system of work and what it takes to prove a breach of this duty.

Ms Wong, a cabin attendant employed by Cathay, was assigned to work on a flight from Hong Kong to Tokyo. Shortly after take-off, when the aircraft was still climbing to its cruising altitude, a passenger asked for a drink, so Ms Wong went to get a bottle from a bar cart in the cabin's aft galley. The cart had an aluminium frame and several plastic drawers. There were a number of grey drawers in which bottles lay horizontally and a tall blue drawer in which bottles stood vertically. The blue drawer was 15 inches long and was normally loaded with 13 bottles. It weighed about 30 lbs when fully loaded.

As Ms Wong was squatting in front of the cart to open the blue drawer, it fell out and landed on her right knee. She was injured and subsequently sued Cathay in negligence for damages.

The company said they had devised a "careful and extensive" procedure for taking bottles out of the blue drawer. They argued it could only pose a potential hazard if deliberately misused or, in other words, if handled in an improbable way. The case centred on the question of how far an employer should go to guard against the deliberate actions of employees who create the danger from which an injury occurs.

The Court of Final Appeal upheld the following views:

    (1) A system of work must be instituted when necessary in the interest of safety, even if the work is of regular and uniform kind. Such a system was plainly necessary in this case. The blue drawer could fall out while being opened and, because of its weight, was liable to cause injury if it fell.

    (2) The safe system of work should be devised not only for careful employees, but also for those who may be inattentive to the extent that might normally be expected. Ms Wong's job entailed considerable pressure and responsibility for passenger safety and comfort.

    (3) The judges saw no warrant to impose a special rule that, unless the employee manages to propose an acceptable alternative system, he or she cannot establish a complaint against the employer's system. When considering whether an employer is in breach of the obligation to provide a safe system, it is relevant to see if the employee manages to propose an acceptable alternative. However, even if the employee cannot do so, the court is by no means precluded from finding the employer in breach of the obligation. Anything less flexible would be an unwarranted limitation on proper judicial decision-making in an inherently fact-sensitive area. The judges held that identifying an acceptable alternative system was not a pre-condition to finding that Cathay had failed to provide a safe system.

    (4) A long period without accidents did not prove absence of carelessness. No previous similar accident was fully taken into account in the employer's favour. At the same time, though, on the employee's side, the absence of accidents need not be taken as conclusive evidence of a safe system.

As a result, Cathy Pacific lost the appeal.

Q & A on workplace safety
Q1 What should employers be aware of in view of this judgment?
A1 Employers should devise safe working practices even for tasks of a regular and uniform kind. Furthermore, they should review these from time to time even if no specific problems have occurred. Evidence of a trouble-free record, though relevant, will not be an adequate defence if a complaint is made about unsafe work practices.

Q2 What should I do if I notice unsafe work practices at my place of employment and want to file a complaint?
A2 If an employee notices unsafe work practices, he should inform the employer accordingly and demand that the situation is rectified. If the employer does not take appropriate action, the employee can complain to the Labour Department, which is responsible for the enforcement of work safety legislation.

Q3 How long does an employer have to correct any potential hazards?
A3 There is no time limit as required by legislation. However, the employer has the duty to correct the hazards identified within a reasonable time regarded as practicable in the situation.

Taken from Career Times 15 September 2006

(Last review date: 23 August 2013)

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Disclaimer: The opinions expressed in this article are those of the contributor

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