In Yiu Yuen Yee v Johnson Cleaning Services Co Ltd  HKDC 1110, the Plaintiff, being a cleaner employed by the Defendant, sustained injury as a result of her attempts to remove certain concrete rubbles at the Defendant’s request. The District Court (the “Court”) held that the Plaintiff was contributorily negligent as she failed to refuse the Defendant’s request despite her clear understanding as to the potential risk of injury involved in such task.
The Plaintiff’s case is that on 19 January 2014, a security guard employed by the Defendant instructed the Plaintiff to remove some rubbish on the site. The Plaintiff later found out that the rubbish was in fact some concrete rubbles either from building construction work or renovation work. Having realised that the rubbles were heavy, the Plaintiff sought help from her supervisor but was told that there was no extra manpower to assist the Plaintiff. The Plaintiff then proceeded to perform the task as requested and injured her left shoulder when she attempted to lift those rubbles on a skip.
While it was not disputed that the Plaintiff was indeed instructed to remove those concrete rubbles, it was the Defendant’s case that the Plaintiff never sought help from anybody, including her supervisor who was therefore unaware of the situation.
In reaching its conclusion that the Plaintiff should be 50% liable for contributory negligence, the Court considered a number of factors including, firstly, that the Defendant did provide sufficient training to the Plaintiff in relation to the proper posture and position when lifting or moving objects and the importance of assessing whether she can handle the weight without injuring herself. On such basis and as the Plaintiff acknowledged, the Court concluded that the Plaintiff was well aware that the rubbles were too heavy for her to lift.
Based on the evidence available in that case, the Court further found that the Plaintiff did not seek help from anyone (including her supervisor) as alleged. As such, and given that the Plaintiff was in fact aware of the risk of injury involved in the said task, the Court held that the Plaintiff should have notified her colleagues for assistance instead of proceeding with the task on her own. The Plaintiff tried to argue that she did not look for assistance because the task was urgent as the rubbles were left on the road causing some obstruction. The Court rejected such argument and held that the Plaintiff could have wheeled those rubbles aside with a trolley and waited for assistance before attempting to lift the same (when she allegedly got injured).
On part of the Defendant’s negligence, the Court held that the improper practice of asking the cleaners to clear the debris left in public places although such task fell outside the duty of the cleaners was common at the relevant site. The Court further held that the Defendant should have been aware of such improper practice and stopped the Plaintiff at the earliest stage. As the Defendant admitted, remedial measures regarding such practice were only put in place after the accident.
Based on the findings above, the Court held that the Defendant shall be liable for the injury sustained by the Plaintiff but at the same time the Plaintiff shall also be 50% liable for contributory negligence.
This case serves as a good reminder to the employees as to the importance of assessing whether they are able to perform the tasks assigned by their employers without getting injured. If the employees are of the opinion that such task is too risky to be completed on their own and that it falls out of their job duty, they should either refuse to work on such task or seek assistance from their colleagues.
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|Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.|
|Published by ONC Lawyers © 2019|