HK Case Alert - Duties of a contractor as proprietor and employer to ensure safe system of work at construction sites

Introduction

In the recent Hong Kong Court of Appeal judgment of HKSAR v Gammon Construction Limited (HCMA 97/2019) [2020] HKCA 752, the Court has endorsed the stringent statutory duty imposed on the proprietor of a construction site to ensure the safety of a construction site. The decision serves as a reminder of the high standard to which contractors will be held in relation to health and safety, as well as the other obligations which they may owe in their capacity as employers to employees and any other persons working on their premises.

Case Summary

The case concerns a fatal industrial accident during the construction of the Hong Kong – Zhuhai – Macau bridge. It was alleged that the Deceased, a worker from Thailand, was standing on a working platform and leaning on the metal fence near the edge of the segment void while he was being instructed to remove the washer plates and nuts at the external face of Segment 5. The metal fence suddenly detached from the segment and he fell into the sea together with the metal fence.

The procedure of carrying the subject work was not set out in the Method Statement and that the deceased was wearing a safety harness and an inflatable lifejacket, and had attached the lanyard of his safety harness to the metal fence. Although he was wearing a lifejacket, he eventually sank due to the weight of the metal fence and drowned.

The Appellant, a main contractor operating at the construction site, was prosecuted for:

• Failing to provide and maintain a safe system of work, contrary to sections 6A(1), (2)(a), (3) and 13(1) of the Factories and Industrial Undertakings Ordinance, Cap 59 (FIUO);
• Failing to provide necessary instruction and supervision for the health and safety at work of persons employed at an industrial undertaking, contrary to sections 6A(1), (2)(c), (3) and 13(1) of FIUO; and
• Failing to develop, implement and maintain a safety management system, contrary to sections 8(1) and 34(2) of the Factories and Industrial Undertakings (Safety Management) Regulation, Cap 59AF.

Failure to provide necessary instructions and to implement a safe system of work and safety management system

At the trial, the Magistrate held that the Contractor failed to provide necessary health and safety instructions and maintain a safe system of work for the reasons:

• The risk of falling was reasonably foreseeable.
• The working procedures of the subject work should have been set out in the Method Statement because they involved highly dangerous or prolonged procedures and different workers performing different functions, and this was a large scale industrial undertaking.
• The metal fence lacked sufficient strength and stability to prevent a human being from falling, and the lifeline was not tested to ensure it could function properly and withstand one’s pullout force.
• There was no inspection programme for the subject work.
• The Deceased was instructed to carry out the subject work.

The Magistrate also opined that whilst there was no statutory requirement to have the system of work reduced in writing, a documented system of work provides particular means of achieving the duties is required. The Magistrate made the following observations:

• The workers devised their own working procedures to perform the subject work and the Method Statement was not updated to include the working procedures or associated risk assessments.
• In order for the safe system of work to be effectively implemented, the working procedures and their risk assessments should have been documented, communicated to, understood and applied correctly by personnel involved.
• Documentation can ensure that supervisors know what systems of work they should implement and maintain and that all personnel received adequate trainings and are fully aware of the potential risks and the safety precautions they should adopt.

The Appellant challenged the Magistrate’s findings, that the Magistrate made unwarranted findings of fact, drew impermissible inferences, and failed to give adequate reasons for her findings.

The Court of Appeal dismissed the Appellant’s criticisms and endorsed the Magistrate’s findings. The Defence available to a proprietor.

The Appellant appealed to the Court of Appeal seeking to challenge these findings and to argue that it has fulfilled the statutory defence under section 18 of FIUO.

Section 18 of FIUO sets out the onus of proof of a proprietor:-

“(1) In a proceeding for an offence under a provision in this Ordinance consisting of a failure to comply with a duty or requirement to do something so far as is necessary, where practicable, so far as is reasonably practicable, or so far as practicable or to take all reasonable steps, all practicable steps, adequate steps or all reasonably practicable steps to do something, the onus is on the accused to prove that it was not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that he has taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement.

(2) In a proceeding for an offence under a provision in this Ordinance consisting of an exemption from compliance with a duty or requirement to do something where it is impracticable, not reasonably practicable or rendered impracticable to comply with that duty or requirement, the onus is on the accused to prove that it was impracticable or not reasonably practicable to do more than was in fact done to comply with the duty or requirement.”

The Appellant argued that the common law defence could be invoked in relation to offences under FIUO. The common law defence, as articulated in Hin Lin Yee v HKSAR and Kulemesin v HKSAR, suggests that a valid defence is made out if the defendant could show “on the balance of probabilities that he acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, he would not be guilty of the offence”.

Having regard to the legislative intent of the offence under section 8 of the FIUO, the Court of Appeal rejected the applicability of the common law defence and that a defendant must prove that it was not reasonably practicable to do more than was in fact done, rather than an honest and reasonable belief that it was not reasonably practicable to do more.

Other Duties as Employer

It is important to bear in mind that contractors (both main contractors and subcontractors) will owe additional duties in their capacity as an employer to their employees and (in the case of the main contractor) anyone working on their premises. These duties arise in both statute and common law and include the following:

• To, so far as reasonably practicable, ensure the health, safety and welfare of employees at work (Occupational Safety and Health Ordinance, Cap 509 (OSHO)).
• If an employee is working on premises that are not under the control of the employer, then the occupier must ensure that the premises, the means of access to/from the premises and any plant or substance are, so far as is reasonably practicable, safe and without risk to the health of any person working on the premises (OSHO).
• Various specific requirements under the Occupational Safety and Health Ordinance, Cap 509A in relation to e.g. accident prevention, fire prevention, workplace environment control, workplace hygiene, first aid and manual handling operations.
• The FIUO and its subsidiary regulations provide that certain types of work can only be performed by workers who are trained and hold certificates.
• At common law, an obligation is implied into every contract of employment on an employer to take reasonable care of the safety of its employees at work. The scope of the duty is broad and has been held by the courts to encompass duties to: (i) provide and maintain a safe place of work, including a safe means of access; (ii) employ competent employees and supervision; (iii) provide and maintain adequate plant and appliances; and (iv) provide a safe system of work. If an employer is in breach of this duty, then it could be sued for negligence. In addition to physical safety, it is possible that this common law duty would extend to liability for psychiatric injury and stress at work in certain circumstances.
• Employees who are injured in an accident arising out of and in the course of employment may be entitled to compensation under the Employees’ Compensation Ordinance, Cap 282.

The Occupational Safety and Health Branch of the Labour Department (OSHB) carries out workplace inspections to ensure compliance with the various occupational safety and health legislation. If the occupational safety officers believe on reasonable ground that the premises are being used as a workplace, or a contravention of the OSHO is being or has been committed on the premises, they are empowered to enter the premises at all reasonable times to carry out examinations or inquiries to ascertain compliance. The officers may call unannounced or by appointment.

OSHB officers can impose a variety of sanctions for any non-compliance or suspected non-compliance including:

• Advising the employer/occupier on the steps needed to rectify the situation, and issue a warning of the consequences of failing to do so;
• Issuing an improvement notice – which requires the employer/occupier to take corrective action within a certain timeframe; and
• Issuing a suspension notice – which requires the employer/occupier to suspend a certain action until corrective steps have been taken.

It is important to fully cooperate with the OSHB, as it is an offence to obstruct their officers from performing their statutory functions.

Contractors are therefore reminded to ensure they are complying with all of their legal duties, not only in relation to the FIUO but also in their capacity as employers.

Key Takeaways

Construction is described by some as one of the most dangerous industries and a construction site is one of the most dangerous worksites in the world. It is therefore vital that a safe system of work is being developed on a site and followed by all personnel on site.

The onus of proof that a contractor has taken all steps “reasonably practicable” is a high one, particularly as it may always be possible to argue that more could have been done after an accident has occurred and with the benefit of hindsight. The Court of Appeal decision endorses the stringent health and safety regime as set out in the statute and the common law. The spirit behind the regime is to offer a higher level of protection to the workers and to provide an incentive to the proprietor of a construction site, which is often the party with the most resources, to ensure that a safe system of work has been developed and implemented on site at all times. Although not directly relevant to the issues in dispute, the decision also serves as a timely reminder of the other obligations which contractors may owe in their capacity as employers to employees and any other persons working on their premises.