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.
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
The law and procedure on this subject are very specialized 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.
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Published by ONC Lawyers © 2015