On 19 March 2015, the Court of Final Appeal in HKSAR v Gammon Construction Limited (FACC 10/ 2014) unanimously held that carelessness of workers is not a defence against criminal liabilities arising from industrial accidents. 

Background
The Appellant Gammon Construction Limited was engaged in operations at a construction site at 2 Eastern Hospital Road in December 2011. Four workers were involved in a lifting operation: a crane operator, two signalmen and the deceased.  In the course of the operation, the signalmen signalled the crane operator to move the crane without communicating with the deceased as to whether it was safe to do so. As a result, the deceased was fatally crushed by the moving crane. The Appellant was charged with and convicted of the offence of breaching its statutory duties to ensure a safe system of work and to provide training and information to workers under section 6A of the Factories and Industrial Undertakings Ordinance (Cap.59) (“FIUO”). In summary, the CFA dismissed the Appeal and found the Appellant liable notwithstanding some oversight on the part of the workers. This sends an important message to proprietors and workers that under the criminal regime of FIUO, proprietors will have a higher hurdle; workers may stand on a better ground on the question of liability. That said, in civil claims, contributory negligence of the workers may still loom high. 

FIUO
Section 6A of FIUO imposes a duty on the proprietor of an industrial undertaking to ensure, so far is reasonably practicable, the health and safety at work of all employees at industrial undertakings. Any proprietor who breaches such statutory duties commits an offence.

The Appellant argued that the accident was caused by the negligence of the deceased as he had placed himself in a dangerous position and it was his responsibility to signal to the crane operator if it was not safe to operate the crane. However, the Magistrate rejected this defence and held that the Appellant had failed to take steps to instruct two signalmen to seek confirmation from the deceased that it was safe to start the lifting operation (the “Steps”). The Magistrate relied on the evidence of the Applicant’s safety expert which showed that such confirmation was necessary for ensuring the safety of the system. Accordingly, the Magistrate convicted the Appellant. The Appellant appealed to the Court of First Instance (dismissed) and further to the Court of Final Appeal (“CFA”). 

The CFA held that the statutory duty under FIUO is non-delegable. The duty to ensure safety under section 6A of FIUO extends to include protecting workers who have failed to take reasonable care for their own safety. As such, it is no defence to rely on the deceased’s or other employees’ fault. In assessing whether the Steps are “reasonably practicable”, the CFA, considering that the Appellant had known at all times of the high risk of workers being squashed, struck a balance between the likelihood of risk and the cost, time and trouble necessary to prevent the risk at the material time. Applying the test, the CFA upheld the Magistrate’s decision including its finding that the Steps of seeking confirmation from workers at risks was practicable and could have been implemented without any additional resources.

Section 18 of FIUO provides a statutory defence to exonerate the Appellant if it can prove that it was not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement; or that the Appellant has taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement. However, the CFA confirmed that such onus of proof is a legal onus (as opposed to an evidential burden), which is to be discharged on a balance of probabilities.   

Implications for workers at risks
Workers should take all and any steps to be careful and to inform their foremen to put in measures of safety especially if such are not difficult or costly to set up. Even though FIUO puts a hefty burden on proprietors, the price of losing limbs or lives are simply too high to just simply rely on the laws. Moreover, in civil claims, any careless oversight of workers would reduce their claims even if liability is conceded.

Published by ONC Lawyers © 2015