Introduction

In Pak Sai Ming v JV Fitness Ltd [2019] HKCFI 2268, the plaintiff (“Mr Pak”) claimed against his employer for damages for personal injuries arising from a slip at a staircase during the course of work. The case took place at one of the fitness centres (the “Fitness Centre”) operated by the defendant (“JV Fitness”) located in a commercial building. Mr Pak was employed at the Fitness Centre as a Fitness Manager immediately before the accident.

Background

There was a lift at the commercial building specially reserved for customers of the Fitness Centre. Staff members (including Mr Pak) could only use it during non-peak hours. During peak hours, staff members could only use the emergency fire escape staircase (the “Staircase”). At about 3:45 pm on 25 May 2013 (Saturday), during peak hours, when Mr Pak was using the Staircase to return to his office on 11/F, he slipped and fell 10 steps down a flight of stairs.

Mr Pak claimed that the Staircase was wet and slippery because it had condensation and it had been raining that morning. He asserted that JV Fitness was negligent in failing to maintain a safe place of work, a safe system of work and/or a safe means of access to and egress from the work place. JV Fitness denied that the Staircase was wet or slippery and alleged contributory negligence on the part of Mr Pak.

Court’s analysis

One of the issues in this case was whether JV Fitness had failed to provide safety measures; and if liability on the part of JV Fitness is established, whether Mr Pak was contributorily negligent.  

The common law demands that employers should take reasonable care to lay down a reasonably safe system of work. The duty to provide a safe system of work is personal and non-delegable. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers.

Where a practice of ignoring an obvious danger has grown up it is not reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required. Despite the fact that an employer cannot be certain that his men will do as they are told when they are working alone, the employer has fulfilled his duty if he does all that is reasonable to ensure that the safety system is operated.

In considering whether JV Fitness had failed to provide a safe place of work, a safe system of work and safe access to or egress from the Staircase, the Court noted that requiring an employee to use a staircase instead of a lift was not in itself unreasonable, particularly to meet human traffic needs. Walking up and down a staircase did not require onerous effort. There was no inherent hazard in this system in the first place.

It was held that JV Fitness could not be expected to have an absolute duty to prevent condensation or ensure dryness in the Staircase and have a cleaner stationed there all the time to mop it up.

In addition, in Mr Pak’s own evidence, there was a cleaner who would clean the Staircase once a day at about 9-10 am. Mr Pak also claimed that if he saw water on the Staircase, he would inform the staff at the reception for them to arrange cleaners to mop it. The Court was of the opinion that, even if JV Fitness had a duty to keep the Staircase dry, the system of work was good enough.

The Court found that there was no hazard of slip and fall before the accident since Mr Pak had not seen fit to inform the staff to arrange for cleaners to mop the Staircase despite the fact that Mr Pak himself had used the Staircase 4-5 times and it had rained in the morning on the day of the accident.

To conclude, the Court was not satisfied on balance of probabilities that JV Fitness had failed to provide a safe system of work, a safe place of work or a safe means of access and egress.

The Court further held that even if there was liability on the part of JV Fitness, it should be reduced by 60% due to contributory negligence by Mr Pak. The Court found that Mr Pak was a frequent user who had to use the Staircase 15-20 times on each working day and for several years before the accident. With the foresight of a risk of slip and fall, Mr Pak, as shown in the CCTV evidence, had not taken the care as a reasonable person would have by holding the handrails when descending the Staircase and was therefore contributorily negligent.

Conclusion

This case sets out the legal principles in respect of employer’s duty to provide a safe system of work to his/her workmen. On one hand, the employer should take reasonable care to lay down a reasonably safe system of work; on the other hand, the employee should also take the care as a reasonable person would have when performing his/her duties at work.