Employers owe a duty of care to their employees in ensuring their safety as is reasonable in the circumstances. But how far should such duty go? Are employers required to give safety instructions to their employees for every single step taken by the employees? This article examines the duty of care owed by employers to their employees where the work undertaken by the employees is simple and non-complicated in nature.

Employers’ duty in simple and non-complicated tasks
In the case of Cheung Suk Wai v Attorney General [1996] 4 HKC 288, the Plaintiff was a workman with the Regional Services Department responsible for sweeping and cleaning two parks, the playground, the dustbins and the toilets. In performing her duties, the Plaintiff needed to collect the refuse, put them into garbage bags, and then put the garbage bags into the containers at the refuse centre by swinging them over the side of the containers.

The Plaintiff sprained her back on two separate occasions. On the first occasion, the Plaintiff sprained her back while sweeping with a broom longer and different from the one she normally used. The Plaintiff said she changed the broom because her supervisor was complaining that she was working too slowly. On the second occasion, the Plaintiff sprained her back again while lifting exceptionally heavy bags of refuse, which was to be placed into containers at the refuse centre. According to the Plaintiff, the bags were exceptionally heavy due to fallen leaves and debris caused by a typhoon.

The Court noted that the law requires the employers to provide safe tools, a safe system of work and not to subject the employees to risk which the employers was or should have been aware of. If the employers failed to take reasonable care to do so, the employers were liable. The Court referred to the judgment in Winter v Cardiff Rural District Council [1950] 1 All ER 819 in which the House of Lords held that “…the common law duty of an employer of labour is to act reasonably in all the circumstances… where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot.”

Applying the above principle, the Court found that, in the present case, putting bags of refuse into refuse bins is a simple operation which the Plaintiff had performed since she took up employment as a cleaning worker and before she started working in the two parks and playgrounds. The duties require no special skill or instruction. The Plaintiff was free to decide on the weight of the bags and how to carry out this simple operation in a way most suitable to her physical ability. There was no conclusive evidence that the swing motion was not a proper one to dump the bags of refuse into the refuse bins. Furthermore, the Plaintiff was not required to perform her work on a tight time schedule. As a result, the Court found that the employer was not negligent and the Plaintiff’s claim was dismissed.

Recent judgment from the Court of Appeal
In Fong Yuet Ha v Success Employment Services Ltd [2012] HKEC 1780, the Defendant carried on the business as an employment agency specializing in the introduction of domestic helpers (both local and overseas) and chauffeurs to local families. The Plaintiff was a manageress of the Defendant’s branch in Causeway Bay. The Plaintiff fell from a plastic stool when she stood tiptoe on it to retrieve some canned food in the upper shelf of a hanging cabinet in the kitchen of the office. The Court of First Instance dismissed the Plaintiff’s claim for negligence against the employer and the Plaintiff appealed to the Court of Appeal.

The Court of Appeal held that the retrieval of items stored in the shelf was not, on any view, complicated, difficult or dangerous in respect of which any instructions would be required.An adult employee, particularly, one of the Plaintiff ‘s maturity, experience, position and job responsibilities, could certainly be trusted to have sufficient common sense to decide how she could perform this task safely.

The Court of Appeal further held that, when the operation was simple and non-complicated, it was reasonable that the employee could be trusted to exercise his common sense to carry out the operation without the need for the employer to prescribe a system of work or give specific instruction or advice on how the task should be done. The Plaintiff’s appeal was dismissed.

Potential liability for employer to prescribe safe system of work
In Mohammad Waheed Khan V Rising Sun Transportation Company Ltd [2012] HKCU 2524, the Defendant carried on a transportation business and was engaged to deliver rice from its client’s warehouse to various supermarkets. The Plaintiff was employed as a driver to drive the Defendant’s lorry and was responsible for delivery of the rice. The Plaintiff had to pick up the rice from the ground and consequently sprained his back in the accident due to improper lifting methods as well as carrying an excessive weight.

The Court found that even though the Plaintiff was performing unskilled work, the risk of overloading oneself by carrying something weighing 50 kgs ought to have been apparent to the Defendant. The Court held that the employer had been negligent in failing to devise a safe system of work and in failing to provide an effective supervision to prevent an unsafe method of work being adopted by its employees.

Conclusion
It would appear from the above cases that the employers are likely to be found not liable for negligence if their employees sustained injuries when carrying out tasks which can be categorized as “simple and non-complicated”.  

Nevertheless, it should be noted that the employers owe the employees a personal and non-delegable duty to take reasonable care and each case is to be decided on its own facts. Even though the tasks involved were simple and non-complicated, the employers could still be found liable for negligence if, for example, (i) there was time pressure faced by the employees in performing the tasks; (ii) the employees were required to work in some confined space; (iii) the employees were required to perform the tasks in a repetitive manner; (iv) the employees were required to perform another task simultaneously; and (v) there were risks involved in the task e.g. to lift an excessive weight.

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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.