Introduction

In Lai Sin Yan Elsie v Tate Communications (Hong Kong) Limited [2019] HKCFI 2815, the Plaintiff, being an employee of the Defendant, sustained injuries as a result of falling from height in a teambuilding event arranged by the parent company of the Defendant. The Court of First Instance of Hong Kong (the “Court”) held that neither the team leader of the Plaintiff’s team in the teambuilding event nor the Defendant was negligent in causing her injuries. The Plaintiff’s claim was therefore dismissed.

Background

In 2012, the Plaintiff attended a one-day teambuilding event in Singapore held by the Defendant’s parent company, Tata Communications Group. The teambuilding consisted of various team games and one of them was called “Mini-Legs”, where the team had to achieve a minimum number of feet on the ground (the number being set by an instructor) and hold that solution for three seconds.

It was alleged by the Plaintiff that the team leader of her team in the teambuilding event, Mr Rajiv Verma (“Verma”), had decided to adopt a three-level pyramid method when playing the “Mini-Legs” game and had instructed the Plaintiff to climb to the highest level. The Plaintiff alleged Verma had instructed the Plaintiff to climb to the highest level of the pyramid for three times where the Plaintiff fell to the ground every single time and hurt her buttocks and back. Following the one-day event, the Plaintiff claimed that she suffered from pain over her buttocks, coccyx and arms and felt numbness over her lower body and pain over multiple sites at her back and upper body. She was subsequently sent to the hospital.

After examining the evidence put forward by the Plaintiff and other witnesses, including the Defendant and some of its staff members, the court accepted that the method Verma adopted in playing the game was a two-level structure, with six people on the base holding up the remaining three team members. The structure was 6 feet from the ground and the backside of the three teammates being lifted, including the Plaintiff, were at most about three feet from the ground. In addition, while the Plaintiff did fall to the ground in the course of Mini-Legs, the court found that the Plaintiff had only fallen once.

The Court then turned to discuss whether Verma and/or the Defendant was negligent and/or whether the Defendant was vicariously liable for Verma’s negligence.

Whether the team leader, Verma, was negligent

Since Verma is a team leader of the Plaintiff’s team in the teambuilding event, the Court acknowledged that it is just, fair and reasonable to impose a duty on Verma to take reasonable care for the safety of his team members, including the Plaintiff, in respect to the injuries that might be suffered by his team members in the course of the teambuilding exercise. Nonetheless, the Court also acknowledged that the mere foreseeability of the risk of injuries would not give rise to any breach of duty. The standard and level of care required shall depend on the probability of the risks, the gravity of the harm and how easy it was to avoid the risks. While the Court mentioned that the risk of the team members falling and being injured was not slight, it might have been difficult for Verma to intervene in a timely fashion to prevent its occurrence, although Verma is still under a duty to prevent the occurrence of injuries of his team members.

However, there was no duty for the Verma to intervene to prevent his team members to perform the acts of climbing, sitting and bending over during the course of Mini-Legs. Additionally, although there was a risk of the Plaintiff falling, she would have fallen only about three feet and landed first on her feet, with or without her buttocks landing on the ground. The Plaintiff only fell once when she was perched on the back of a team member and the Court found no duty on the part of Verma to intervene and prevent the Plaintiff from doing so since the risk of her falling from the team member’s back was slight. Verma was therefore not negligent and there can neither be vicarious liability on the part of the Defendant arising from Verma’s actions or omissions.

Whether the Defendant was negligent

The Plaintiff submitted that a reasonable employer should have excluded the Mini-Legs game from the games to be played that day and that the Defendant was negligent in not doing so.

While the Court agreed that the Defendant was under a non-delegable duty of care to the Plaintiff being its employee, a distinction is to be made between the delegation of part or whole of the employer’s process of work to an independent contractor and providing a service to an employee via a third party. The Court found that the Defendant’s duty was to provide a safe system of participating in the teambuilding exercise and it had discharged its duty by reasonably relying on its parent company to provide competent and experienced instructors to conduct the teambuilding exercise and to take care of the safety of the Defendant’s employees during the teambuilding exercise. Further, the Plaintiff did not challenge the competence and qualification of the teambuilding event organiser in her submission. For the reasons above, the Court dismissed the Plaintiff’s claims.

Conclusion

This case serves as a good reminder to the employers of their non-delegable duty of care to its employees. While the Court held that the team leader and the employer were not negligent in causing the employee’s injuries suffered in the course of the teambuilding event, one shall bear in mind the duties imposed on the employer as well as the team leader who shall take care of the safety of the team members taking into accounts the probability of the risk of injury, the gravity of the harm and how easy it was to avoid such risk.