Tort Revision Note – Employer’s Duty of Care

3 ways for Employers liability (The principle is no double recovery)

Tort Liability

Statutory Liability

Contract Liability

Double recovery?

- Employee may concurrently pursue the various causes of action available, the

principle is no multiple recovery

(Sen Hem Pratap v Hang Yue Engineering Ltd [2012] HKEC 135)

Compensation

- Payments made under Employees Compensation legislation are deducted from

any award of common law damages

(Cheung Chak Fui v Sun Hing Organization Plastic [2011] HKEC 1299)

Burden of Proof

- Plaintiff (employee) has the burden of proving on the balance of probabilities

that the defendant (employer) breached the employer’s duty of care to the

employee

(Rana Bimla v Hong Tak (Shing Fat) Home for the Aged [2010] HKEC 173)

Evidence

- Plaintiff (employee) must provide evidence to show that defendant (employer)

breached the duty owed to employee

(Lai Keung v Jetwell Engineering Co [2010] HKEC 1047)

- Employee can plead S62(2)(a) of the Evidence Ordinance in a claim against an

employer if the employer is convicted of a criminal offence in respect of the

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Tort Revision Note – Employer’s Duty of Care

accident giving rise to the employee’s civil claim. Then, the burden of proof

will shift to the employer to disprove the claim.

(Chan To Ning v Tsui Yu Ming [2013] HKEC 1805)

Duty of care

- Duty to take reasonable care for employee’s safety

(Leung Kin Fai v IDS Logistics (HK) Ltd [2009] HKEC 747)

- Duty to take reasonable care for employee’s safety – not confined to accident

situations but extends to industrial illness or disease

(Lai King Yiu v Acciona Infraestructureas SA [2009] HKEC 742)

- Duty of care based on master (employer) and servant (employee) relationship

- Employer must to be identified. However, it may be difficult to identify the

employer, particularly where a series of employment contracts and sub-

contracts are involved.

(Chung Yuen Yee v Sam Woo Bore Pile Foundation Ltd [2011] 4 HKLRD

580)

- Responsibility may be imposed on a parent company for the health and safety

of employees of a subsidiary company which no longer exists.

(Chandler v Cape Plc [2012] EWCA Civ 525)

- Duty extends beyond actual job of employee to include acts reasonably

incidental to the job (Course of Employment)

(Lee Kin On v Chit Luen Transportation Co Ltd [2008] HKEC 2025)

- Course of employment not confined to precise act e.g. drive car but also

cover normally and reasonable work e.g. repair of car.

(Davidson v Handley Page Ltd [1945] 1 All ER 235)

(Mohammad Waheed Khan v Rising Sun Transportation Company Ltd

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Tort Revision Note – Employer’s Duty of Care

[2012] HKEC 1698) 司機做埋 unloading

- Duty does not extend to non-work situations or non-work places 坐車反屋企唔包

(Leung Kwok Yin v Secretary for Justice [2010] HKEC 834)

- As duty is owed to individual employee, the personal attributes of an

employee will have to be considered 要照顧埋個人特點，e.g. 單眼人士你要special care 佢(Parris v Stepney BC [1935] AC 367)

- Non Delegable Duty – Personal Duty (Employer can’t escape the duty by

delegation the duty to others) (Employer can delegate the work to manager,

but the duty is still on employer)

(Wilson and Clyde Coal Co v English [1938] AC 57)

4 fold of duty (4種Duty)

- Safe staff

- Safe Place

- Safe Equip

- Safe system

(Wilson and Clyde Coal Co v English [1938] AC 57)

Single Duty

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Tort Revision Note – Employer’s Duty of Care

- 只要 4個 duty breach左其中一個已經係 negligence

- (Cathay Pacific Airways Limited v Wong Sau Lei [2006] HKCU 810 )

- Individual Elements of Duty May be Pleaded – any of four elements

(Sin Kin Man v Hsin Cheong Construction Co Ltd (2005) HCPI 740 of 2004)

- Affirmative Duty – Positive Steps to Protect Employee

(Ho Ying Wai v Kelistan Marine (Far East) Ltd & Another [2003] 1 HKLRD

343)

Limitation of Duty of Care

- No extend to employee economic loss 不包括你買MPF的 loss

(Reid v Rush and Tompkins Group plc [1989] 3 All ER 228)

- No extend to employee economic interests

(Outram v Academy Plastics [2000] 1 RLR 499)

Four Duty –

1. Duty to provide competent staff

- Duty to take reasonable care in selection, training and supervision of staff

(Ha Kwok Ming v Boxton Ltd [2009] HKEC 527)

Employer is under duty to provide safe co-worker to P

2. Duty to provide safe equipment

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Tort Revision Note – Employer’s Duty of Care

- Duty to take reasonable care to provide and maintain necessary plant, material

and equipment

(Muhammad Asghar v Tak Shing Metal Co [2009] HKEC 909)

- If equip is provided and employee failed to use, the employer is not liable.

(Khan Imran v Wai Hing Engineering Co Ltd [2011] HKEC 1452)

- Failure to ensure use of equipment may be argued to be breach of employer’s

duty to provide a safe system of work.

3. Duty to provide safe system and supervision 呢個Duty最多人 claim

- Duty to take reasonable steps to organise and supervise employee’s work

(Speed v Thomas Swift & Co [1943] KB 557)

Duty requires employer to devise (design) and operate a safe system of work

(McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC 906)

Question of fact in each case as to whether it was necessary for the employer

to devise a system of work for a particular task

(Fong Yuet Ha v Success Employment Services Ltd CACV 100/201227)

Duty requires an employer to enforce, monitor and upgrade any work systems

(要定期 upgrade)

(Lo Wai Shing v Lik Seng Engineering Co Ltd [2013] HKEC 1755)

Extent of duty will depend on the particular nature of the job

(Wong Tai Yau v Transworld Stevedore Ltd [2009] HKEC 1657)

e.g. 如果明知隻船 extremely bad in condition, employer的 duty相對地提升,

要 pay extra care.)

Duty will require employer to deal with employee’s foreseeable carelessness

for his own safety (employee 的 careless, employer 都要照顧埋)

(General Cleaning Contractors v Christmas [1953] AC 180) 抹窗夾到手指5

Tort Revision Note – Employer’s Duty of Care

Exception case in safe system (Routine Task)

1. Duty does not extend to routine tasks which employee can reasonably be

expected to safely perform by himself (Not apply to Routine Task)

(Winter v Cardiff Rural District Council [1950] 1 All ER 819)

(Fong Yuet Ha v Success Employment Services Ltd [2012] HKEC 1780)

旅遊車司機幫人搬行李

4. Duty to provide safe place (limited the access and safe, but also include

people)

Duty to take reasonable care to ensure that access to and the place of work is

safe

(Lee Kin On v Chit Luen Transportation Co Ltd [2008] HKEC 2025)

Question of fact whether a workplace is safe or not

(Baker v Quantum Clothing Group [2009] PIQR P332)

Duty may include ensuring that employees are protected from deliberate

harm inflicted by third parties (e.g. Employer has duty to prevent the

employee俾人打)

(Cheung Shuk Wah v Wong Kong Hung [2010] HKEC 909)

酒吧識員同客人 argue, 老闆無安排點俾員工走，員工放工俾人斬 Duty may extend to work done off the employer’s premises 包括出外做野，老闆要去 check, 大要 check or not depend on “Reasonable”

(Lee Wai Man & Another v Wah Leung Finance Ltd [2004] 1 HKLRD 1023)

D send P 去上海做野，無 check 個 site否安全，Ct said D is liable as上海地盤明顯是不安全

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Tort Revision Note – Employer’s Duty of Care

Breach of duty

- The standard is reasonable of employer

(Stokes v Guest, Keen and Nettlefold [1968] 1 WLR 1776)

- Failure to meet standard of reasonable employer case

(Cheung Kin Kwok v Lau Kam Chee [2004] 3 HKC 227 (CA)

- Ordinary factors in breach of duty is applied (用反普通 breach of duty的factor 去睇(Wong Ching Yau v Group Yield International Development Ltd [2012] 2

HKLRD 480)

- Policy issue 都會睇(Smith v Ministry of Defence [2012] EWCA Civ 1365)

Causation and Remoteness of Damge

Ordinary rules of causation and remoteness apply

(Andrew William Maxwell v Keliston Marine (Far East) Ltd [2012] HKEC

118)

當 But for test not apply 時就用 common sense 去睇

Damage

- Physical injury is recoverable

- Consequent financial loss is recoverable

- Psychiatric illness resulting from the physical injury is recoverable.

(Liu Shui Bik v Count Fortune Ltd [2010] HKEC 414)

However, Psychiatric illness must be medically recognised and clinically

diagnosable.

(Kwong Kin Yin v Shun Lee Copper & Decoration Ltd [2011])

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Tort Revision Note – Employer’s Duty of Care

Defence

Defences of volenti and contributory negligence may be raised in employee

claims against employer

Court reluctant to find volenti (Employee consent故只不過是怕被炒)

(Liu Shui Bik v Counterfortune Ltd [2010] HKEC 414)

Court is cautious in finding contributory negligence in employee’s claims

against employer

(Hutchinson v London & North East Railway Co [1942] 1 KB 481)

Courts willing to find contributory negligence in appropriate cases

(Tamang Udas v Global Sunny Engineering Ltd [2013] HKEC 40)

Factors to consider in assessing possible contributory negligence by an

employee: Momentary Lapse (有 lapse of time, No contributory

Negligence)

(Leung Siu Sum v Swire Beverages Ltd [2014] HKEC 29)

- Courts generally cautious in finding contributory negligence in employee’s

claims against employer particularly, if plaintiff guilty of an act of

momentary inattention rather than making a conscious decision to embark

on a risky course of action

(Smith v Baker [1891] AC 235)

Apportionment

- 有 Contributory Negligence做 apportionmentby just and equitable

- Apportionment of liability for contributory negligence is determined by the

court according to what it finds to be just and equitable

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Tort Revision Note – Employer’s Duty of Care

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