Employers in Hong Kong should note a recent judgment of the Hong Kong Court of Final Appeal which has found that an employer can be liable for injury to an employee which has been caused by foreseeable negligence on the part of the employee.
In May, the Hong Kong Court of Final Appeal handed down its judgment in the case of Cathay Pacific Airways Limited vs Wong Sau Lai. Ms Wong was a cabin attendant and suffered injuries to her knee after a drawer of a bar cart in the galley fell on to her as she was opening it to retrieve a bottle for a passenger.
This long-running case concerned the extent to which an employer can be held liable for injury to an employee caused by the employee's own negligence and held that an employer could be held liable to pay damages if it was foreseeable that the employee could act in a negligent manner.
All employers in Hong Kong owe statutory and common law duties of care to take reasonable care for their employees' safety. If this duty is breached resulting in death or injury then the Labour Department may bring a prosecution for breaches of the Occupational Safety and Health Ordinance and the employee can sue the employer for damages in the tort of negligence.
Wong’s case considered the extent of the common law duty and, in particular, what must be shown to prove a breach of the duty. Important factors include whether it can be proved that an employer has failed to provide a safe place of work, safe equipment, a safe system of work, proper instructions and supervision and adequate training. In Wong’s case the issue primarily revolved around whether the system (standard manner for retrieving bottles by pulling out the drawer by no more than one-third of its length) used for accessing bottles from the bar cart and the safety of the relevant equipment were adequate to protect Wong and whether Cathay should have recognised that a cabin attendant, in a position of pressure, could pull the drawer out more than the stated one-third, thereby resulting in the drawer falling from the cart and causing injury to the cabin attendant.
It was accepted that at the time of the accident causing her injury, Wong had failed to follow the standard manner of retrieving bottles from the bar cart, which had been an established practice for many years; that the equipment (bar cart and drawer) used were industry standard models; and that Wong's job was one of considerable pressure.
Judge Le Pichon in the Court of Appeal was of the view that Cathay should have foreseen that a cabin attendant, under pressure, could have failed to follow his or her training and pulled out more than one-third of the drawer. As such, she considered that Cathay should have taken steps to reduce the risk. Judge Yuen agreed with Le Pichon but in addition she emphasised what were, in her opinion, defects in the safety aspects of the equipment itself. The fact that the bar cart was industry standard and was used by many airlines globally was a fact to be taken into consideration, but was not in itself a defence for Cathay. The third judge, Rogers VP, took a minority approach and considered that Cathay, by virtue of its "careful and extensive" training, had taken sufficient steps to protect Ms. Wong and, therefore, had not been negligent. The Court of Final Appeal judges agreed with the majority view in the Court of Appeal and dismissed Cathay's appeal.
In conclusion, it is clear that employers have to accept that whatever guidelines they have given in relation to safe working practices (including industry standards) and whatever equipment they have provided, they will need to devise measures to guard against the risk that employees will make mistakes, especially when under pressure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
