Introduction

In Lo Ho Yin v Phoenix Satellite Television Company Limited [2020] HKDC 615, DCPI 2474/2018, an ex-employee of a television company sustained eye injuries from being hit by his ex-colleague in the course of his employment with the television company (the “Company”). The District Court held that neither the company nor the Plaintiff’s colleague was negligent in causing his injuries. The Plaintiff’s claim was therefore dismissed.

Background

The Plaintiff started working for the Company, which is the Defendant employer as a reporter in March 2017. The Plaintiff and his ex-colleague (“Mr To”) were instructed by their superior to cover an event in Hong Kong waters on the day of the Accident, which was arranged by the Hong Kong Airport Authority. A double deck vessel was also arranged by the Hong Kong Airport Authority to carry the invitees.

There was a ladder on the lower deck of the vessel leading to the upper deck (the “Ladder”) and the media people had to climb up the Ladder to reach the upper deck to have an open view. At the time of the Accident, Mr To was climbing up the Ladder and the Plaintiff was behind him.

It was the Plaintiff’s case that Mr To’s right heel hit the Plaintiff’s right eye thereby causing bodily injuries to his right eye. In such connection, the Plaintiff alleged negligence on the part of the Company for its failure to provide a safe system of work and failure to provide specific instructions or warnings to the Plaintiff as to how to work on a vessel in the sea. The Plaintiff also alleged that the Company was vicariously liable for the negligence of Mr To, who was its employee.

Court’s findings

The evidence of the Accident

The Court first considered the evidence of the Accident. There was a dispute between the Plaintiff’s and Mr To’s testimony on whether Mr To has struck the Plaintiff’s eye with his foot when they climbed up the Ladder. While the Plaintiff contended so, Mr To insisted that there was nothing untoward when he climbed up the Ladder to the upper deck. He further maintained that he did not notice any deformation of the spectacles of the Plaintiff throughout.

The Court accepted that Mr To is a credible witness. While the court accepted that Mr To’s right heel came into contact with the Plaintiff’s right eye, the impact could not be violent. This is because there was no evidence showing that the Plaintiff’s spectacles has ever fallen off from his face and the distortion of his spectacles was, if any, minimal. Therefore, the sole cause of the Accident was that the Plaintiff’s own carelessness in getting his head too close to Mr To’s right foot when climbing up the Ladder.

The Company’s liability

The Plaintiff complained that the Company failed to ensure reasonable safety of the Plaintiff in that there was neither (1) a safe system of work; (2) any specific instructions or warnings; or (3) sufficient manpower to cover the event to be reported.

In relation to the Company’s failure to provide a safe system of work, the Court did not accept that climbing up the Ladder to the upper deck of the vessel to cover the event was an inherently dangerous task. The Plaintiff said that he was not rushed by anyone behind him nor was under any time constraint to reach the upper deck. The Court made reference to case law which suggested that where the operation was simple and it was reasonable that the employee could be trusted to exercise his common sense to carry out the operation, there is no need for the employer to prescribe a system of work or give specific instruction or advice on how the task should be done.

The Court also cited Lam Ka Lok Louis v Swire Properties Management Ltd, unreported, HCPI 914/2003 suggesting that “the law does not require an employer to treat its workers, in the carrying out of their everyday normal jobs which do not entail any special risk of danger by the workers, as though they were kindergarten pupils who if not told, would not be aware of the kind of common everyday risks that a reasonable person would be aware of”. In light of the case above, the Court did not accept that the Company was obliged to give the Plaintiff any specific instruction or warning about the important of and how to keep a safe distance from each other on the Ladder.

As to the complaint about manpower shortage, the Court accepted that the Plaintiff and Mr To were sufficient for the coverage of the event since it was not a complicated task involving different locations and quick movements.

Regarding vicarious liability on the part of the Company, the Court was of the view that it cannot be borne out by the evidence. The mere fact that the heel of Mr To came into contact with the Plaintiff’s head on the Ladder does not necessarily mean that Mr To was negligent. Common sense dictates that the one behind Mr To had to keep a safe distance from him. The Court found no negligence on the part of Mr To at all, and therefore the Company is not vicariously liable.

Conclusion

The case clearly illustrates that, when speaking of employers’ obligations to their employees, there should not be a blanket judgment as to whether the employers should be held liable for injuries sustained by its employees arising from the risks associated with the work. In fact, the law does not require an employer to treat its workers as if they were kindergarten pupils in the carrying out of their everyday normal jobs which do not entail any special risk or danger by the workers. It is a question of fact in each case whether the employer has ensured reasonable safety of the workers.

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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.