Introduction

In the August issue, we discussed about the employer’s non-delegable duty to his employee.  One of the 4-fold duties is to provide a safe system of work.  However, it is not always the case that the employer will be found wholly liable even if the cause of injury results from his breach of this duty.  The Court will also consider the issues of causation and blameworthiness, for example, the injured employee’s experience and the degree of pressure imposed upon an employee to maintain or increase output at the expense of caution.  This article aims to discuss how the level of skill and experience of the injured employee would influence the Court’s decision on finding of liability, that is, whether the inexperienced / experienced employee is to share any liability.

The “Just and Equitable” Doctrine

Section 21(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 provides that:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage …”

This section does not specify how damages shall be reduced or apportioned according to the just and equitable doctrine.   Under the common law of negligence, the standard of care is the standard of the reasonable employer, having regard to all the circumstances, including the individual characteristics of the employee and his level of experience and training.

Inexperienced Employees

Inexperienced employees include apprentices and fresh school-leavers.  It had been held in cases that inexperienced employees who were left to do a job for which they did not receive any proper training but were assigned to perform the work without instructions and supervision are not blameworthy.  Generally, there was no basis for finding of contributory negligence on the part of the inexperienced employees.

Experienced Employees

In Chan King Wan & Anor v Honest Scaffold General Contractor Co. Ltd & Anor (No.2) HCPI 1267 & 1269/1996, the deceased workers were very experienced scaffolders.  Without putting on safety belt or harness, they climbed onto a partly constructed scaffold which they were constructing outside a bay window of a building.   The structure detached and they fell with the structure to the street and sustained fatal injuries.  It was found that the principal contractor was in breach of the statutory duties imposed on it by regulations 38Q(3) and (5) of the Construction Sites (Safety) Regulations, Cap.59I, i.e. (i) where a safety belt is provided the contractor shall also provide a suitable and sufficient anchorage therefor, and (ii) the contractor shall take reasonable steps to ensure that no workman remains on any dangerous place on the construction site without wearing a safety belt.  Nonetheless, the Court held that there was substantial contributory negligence on the part of the deceased workers because they were mature men of very considerable previous experience in scaffolding.  If they indeed wanted to put on safety belts to avoid the obvious danger, they could have fixed an eyebolt into the soffit of the window as anchorage.  The deceased workers were 40% to blame.

In Lee Yam Kan v Ng Pui Kuen HCPI 196/2014, the injured employee was an experienced scaffolder.  The direct cause of the accident was that the injured employee fell from the fence wall down onto the concrete platform of House C.  He admitted that it was his decision to climb and stand onto the fence wall, he had not been instructed to climb onto the fence wall to carry out the work, there was no urgency or necessity to transfer the unused bamboo poles from House B to House C and the other methods were more inconvenient, troublesome and time consuming.  It was held that the employer’s breach of non-delegable duty (i.e. failing to devise a safe system for bamboo arrangement work and failing to provide adequate safety information, instructions and supervision on bamboo arrangement) was more blameworthy than the injured employee who was experienced and skillful in the work of scaffolding and chose to adopt his own unsafe working method.  The injured employee was 30% to blame.

Momentary Inadvertence or Conscious Acceptance of Risk

A distinction has to be drawn between the situation where there has been momentary inattention on the part of an injured employee (which may not be regarded as contributory negligence) and the conscious acceptance of a risk by an employee (which amounts to contributory negligence).

In Mak Woon King & another v Wong Chiu HCPI 385/1998, it was held that where a breach of statutory duty by an employer is a substantial cause of injury to an employee, the fact that the employee contributed causally to the accident by his own momentary inadvertence or lack of care in the context of a repetitive, distracting or fatiguing work environment may well be regarded as an ‘excusable lapse’ and not as contributory negligence.

Conclusion

Common law demands that employers have non-delegable duty to take reasonable care to lay down a reasonably safe system of work.  Employers are not exempted from this duty by the fact that their employees are experienced and may be relied upon to lay down a reasonably safe system of work by themselves as if they were in the position of an employer.  No matter how experienced the employees are, the employees cannot be left to decide for themselves how they should carry out their work and how to do it safely.

Nevertheless, the injured employee’s level of skill and experience is relevant on the issue of whether there was contributory negligence.  If the accident happened merely because of the employee’s “momentary inadvertence”, the employee may not be held liable for contributory negligence.  If it is proved that the experienced employee, in spite of his knowledge of the risk of danger he faced or that such risk was obvious, chose to adopt an unsafe method in the performance of his work, he would likely be held liable for contributory negligence.

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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.