43HUMAN RESOURCES November 2012

September 2012 China FocusCase in Brief

Summary

In the Sit Loi Sang v C & H

Engineering Co Ltd case, the

Court took a dim view of the first

defendants assertion that it was not

the plaintiffs employer and held

the defendants liable for injuries

sustained by the plaintiff at work.

Facts

The plaintiff was seriously injured

when a fire broke out inside a

modified container in which he

was working on a construction site

in Shatin district on 14 December

2006 in Hong Kong. The plaintiffs

job was to make explosives from

ammonium nitrate which he would

mix with sugar and pack into PVC

tubing. At the time of the accident,

he and a co-worker Madam Choi

were both making explosives inside

a container. The plaintiff sought to

claim damages for the injuries he

suffered. The second defendant was

the main contractor of the site. The

first defendant was a sub-contractor

of the second defendant. In addition

to claiming that he was injured during

the course of his employment, the

plaintiff also claimed in the alternative

that the defendants were negligent

and had breached their common law

duty of ensuring the safety and health

of their employees at work.

The Court had to decide whether

the defendants were liable for the

plaintiffs injuries. The first defendant

admitted that the plaintiff was his

employee but alleged that the fire

occurred before the plaintiff formally

started work. The plaintiff claimed

that he had been working for the

first defendant since early November

2006.

The defendants denied liability for

the plaintiffs injuries.

Decision

The Court accepted the plaintiffs

pleaded case. It found that, on a

balance of probabilities, the fire

had occurred whilst he was making

explosives for the first defendant.

The Court took account of the

following that contradicted the

defendants pleaded case (according

to which the plaintiff was injured

before he started work):

1. The defendants had admitted in

their defence that the plaintiff was

his employee at the time of the

accident;

2. The Notice by employer of the

death of an employee or of an

accident to an employee resulting

in death or incapacity (Form 2)

filed with the Labour Department

contained the plaintiffs personal

details at a time the plaintiff was in

a coma. The defendants could not

explain where they had obtained

his details from;

3. The Form 2 and a Notification

of Change filed with the Labour

Department stated the plaintiffs

average working days per month

were 26;

4. The second defendant provided

a photograph for the police

investigation taken on 8 December

2006 during a Reverse Driving

Incident Emergency Drill where

the plaintiff was in the photograph,

wearing a helmet and reflective

clothing with other employees.

The Court noted that key witnesses,

such as Madam Choi and the owner

of the container, who in their police

statements recalled on a previous visit

seeing PVC tubes and packets marked

sugar in the container, were not

called to give evidence at trial, nor

were their absences explained.

Sit Loi Sang v C & H Engineering Co LtdCourt of First Instance

HCPI 637/2009

Before: Recorder Jat Sew-Tong SC

Date of hearing: 10 - 13 July 2012

Date of judgment: 31 August 2012

Employers Liability to Injured Employees

B v King of the King Group Limited

44 HUMAN RESOURCES November 2012

Case in Brief

The Court awarded the plaintiff

the sum of HK$1,969,580 as

compensation for his injuries.

The Court took the view that

although it was unnecessary to reach

a decision in respect of the plaintiffs

alternative case, there was a strong

prima facie case on the part of the

defendants in failing to maintain a

safe place or system of work.

Take away points for HR professionals

1. HR professionals should note

that an employer is liable to pay

compensation to any employee

who sustains injuries by an

accident arising out of and in the

course of his/her employment.

Where a main contractor appoints

a sub-contractor to perform work,

the main contractor may be

liable to pay the sub-contractors

employee any compensation

due under the Employees

Compensation Ordinance. In

this case, as the same Counsel

represented the two defendants

and the Court was not asked

to make a decision on the

apportionment of damages, they

agreed between themselves as to

how the judgment amount would

be paid between them.

2. An employer must comply with

his/her common law duties to

ensure the safety and health of

his/her employees at work. HR

professionals should make sure to

communicate a set of clear health

and safety policies to all employees

and should also provide training

to implement the health and safety

policies, ensuring that a safe place

of work is maintained.

3. Where a main contractor appoints

a sub-contractor to perform work,

HR professionals should write the

terms into the contract to ensure

compliance with common law

duties and statutory health and

safety provisions.

Note: This case was provided by Jezamine Fewins, Counsel, Clyde & Co.

This journal, its publisher and the HKIHRM do not assume any legal responsibility in respect of any of the comments provided in this article, which do not constitute legal advice and should not be taken or construed as such. Independent professional legal advice should be sought as necessary in respect of legal matters and issues raised in this article.

45HUMAN RESOURCES November 2012

September 2012 China Focus

v C & H Engineering Co Ltd

v C & H Engineering Co Ltd

20061214

200611

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4. 2006128

1,969,580

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Jezamine Fewins