10 November 2011
The Court of Appeal, in its recent judgment of Ho Foon Cheung v Shun Yip Engineering Co. Ltd, again emphasised the need for an employer to give adequate warnings and instructions to its employees on work related dangers, even if such danger may seem obvious at first sight.
The Plaintiff, a painter, was asked to touch up some paint on a wall on the roof of a building. He needed to cross two air-conditioning pipes laid across the roof. They were 750 mm above the floor and 500 mm in diameter (effectively, over 1 m in width). While re-crossing the pipes after completing his work, he stepped on the convex surface of the pipe, lost his balance and fell, resulting in a fracture of his left femur.
The Plaintiff sued his employer, Shun Yip Engineering Co. Ltd ("Shun Yip"), alleging Shun Yip was negligent in failing to warn the Plaintiff of the existence of the pipes and the danger created by their presence. His claim was dismissed at trial. The trial judge found the pipes were not inherently dangerous. The task of crossing the pipes was straightforward and familiar to the Plaintiff as he visited the same roof everyday. The trial judge held it was up to the Plaintiff to decide how to cross the pipes safely and Shun Yip should not be held liable for the lack of concentration on the Plaintiff’s part. In doing so, the trial judge relied on good authority that the law does not require an employer to warn its employees of common risks a reasonable person should be aware of (see Sargent v Gee Stevedoring Co. Ltd  1 Lloyd's LR 357 and Lam Ka Lok Louis v Swire Properties Management Ltd (HCPI 914 of 2003, unreported, 30/04/2005).
The Plaintiff appealed to the Court of Appeal.
Court of Appeal Judgment
By a unanimous decision handed down on 7 November 2011, the Court of Appeal reversed the ruling of the District Court and found Shun Yip liable to the Plaintiff.
The Court of Appeal opined it was dangerous for employees to cross the pipes by stepping on them. It found the Plaintiff was not aware of such danger and therefore should have been warned of it. Even if the danger was obvious, the Court of Appeal held it did not render it unnecessary for Shun Yip to devise a safe system whether by warning, training or otherwise. Even though the Plaintiff was familiar with the roof (having visited it everyday), Justice Tang (who gave the leading decision) said "[b]ut the accident shows that at least the employer should have told the Plaintiff never ever to step onto the pipes, and to warn him of the danger of doing so".
Employers owe a duty of care to ensure all reasonably practicable measures have been taken to avoid risks of injuries to its employees arising from the workplace. This duty is high and one that is now arguably heightened by this case. The decision goes against what was said in the Lam Ka Lok Louis case when the High Court held that:
“The law does not require an employer to treat its workers, in the carrying out of their everyday normal jobs which do not entail any special risk or damage by the workers, as though they were kindergarten pupils who if not told, would not be aware of the kind of common everyday risks that a reasonable person should be aware of.”
We are surprised by the judgment of the Court of Appeal in this case having regard to the manner in which the accident occurred and the fact the Plaintiff was familiar with his surroundings. The duty of care envisaged by the Court of Appeal arguably places too high a burden on employers considering that employees do have a duty to take reasonable care for their own health and safety as well. For now though this judgment remains good law.
For employers and their insurers, the decision highlights two points of practical importance:
First, employers should assess the system of work and the associated risks from a very broad perspective. The risk of injury in this case arose not from the simple task of painting the Plaintiff was required to do but from the fact he had to cross the pipes. The decision places a duty of care on employers to carry out risk assessments of the every workplace of their employees.
Second, where there is a danger associated with a task, an employer is expected to take reasonable steps to alleviate them. The decision sends a clear signal that even if the danger is obvious to the eye, employers must not leave it to their employees to fend for themselves.
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