The Background
It is well established that businesses which engage independent contractors to perform work on their premises have a statutory duty (as an occupier) to ensure the physical safety of the premises. Employers have similar duties towards their employees, and must also provide a safe system of work.
Where a business is aware that a system of work adopted by workers – whether contractors or employees – is unsafe, but fails to implement reasonable measures to ensure that safety concerns are addressed, the business may also be liable in negligence.
Similarly, employees have a statutory duty to comply with health and safety requirements imposed by their employer and to take care for the health and safety of others at work. Workers may also be liable for their own negligent acts in the workplace.
The Case
Earlier this year, the Hong Kong Court of Appeal upheld a finding that a logistics company was liable for an injury suffered by a worker on the company’s premises. The claim arose after a forklift truck operated by a worker employed by a subcontractor hit and injured a co-worker while loading and unloading freight. Ultimately, the logistics company, the forklift operator and the subcontractor were each held liable in negligence for the part they played in the incident.
In holding the logistics company liable, the court found that it had a duty of care in respect of the systems of work adopted. This was because the arrangements under which the work was performed on its premises created a “sufficient degree of proximity” between the logistics company and the individuals who worked there. In particular, the court was satisfied that the logistics company maintained control over (and therefore had assumed a duty of care towards) the workers.
After finding that such duty of care existed, the court held that the logistics company had breached that duty. It had failed to put in place a traffic controller to direct traffic at the freight terminal and mitigate the risk of accidents happening where forklift operators and manual labourers were working in close quarters. Accordingly, the court held that it was “just and reasonable” in the circumstances to hold the logistics company liable for its part in permitting the creation or continuation of a dangerous system of work, resulting in injury.
The Takeaways
The responsibility for safety in the workplace is a shared one. Employers and employees, as well as others who have control over operations in the workplace, all play a part in workplace safety and may be held liable for injuries suffered at work.
To avoid accidents and injury at work, employers should regularly assess what risks are likely to arise, taking into account the type of work performed and the nature of the workplace. They should then take reasonably practicable steps to eliminate those risks, giving priority to risks that are most likely to occur and/or may result in the greatest harm. In conducting this exercise, it is often helpful to consult with employees and/or their representative, who will usually be in the best position to know the dangers that arise in the workplace.
In any event, workers should be encouraged to raise safety concerns as early as possible with their manager or a workplace safety officer (where applicable), and be reminded regularly of their own responsibilities for the safety of themselves and others in the workplace. If appropriate, safety warnings and instructions should be provided in multiple languages.
Accidents and injury at work can result in serious harm to individuals, and lead to significant liability for those responsible. Businesses cannot simply turn a blind eye and do nothing where safety issues are concerned, including where workers themselves are engaging in unsafe work practices.
This article appeared in the Classified Post print edition as Health and safety is a shared responsibility.
