This article will focus on the civil remedies available to an employee if he is injured at work.
An injured employee may have a cause of action in the tort of negligence. Each employee is owed a duty of care by his employer. The duty requires the employer to provide competent staff, adequate material, a proper system and effective supervision and a safe place of work. This is a non-delegable duty of care which is to say that the employer cannot discharge his duty by simply delegating the responsibility of ensuring the safety of employees to another person, however skilled and qualified such person may be.
That said, the employer’s duty extends only to requiring “reasonable care”. In determining the appropriate standard of care to impose on the employer, the court will have regard to all the circumstances, including the foreseeability of the risk of injury. If the risk of injury was unforeseeable, the employer will unlikely be found in breach of the duty of care.
Safe system of work:
The employer has a duty to have in place a safe system of work. The main debate in relation to this issue is whether a system of work is required. If the tasks performed by the employee are simple tasks which anyone is capable of performing, the employer will not be required to implement a system of work. However, whether a system is required is not judged with only the “careful man” in mind but also with regard to “the man who is inattentive to such a degree as can normally be expected”. Furthermore, an employer is required to supervise and ensure that the system of work is actually put into effect and adhered to by his employees.
Safe place of work:
An employer must take reasonable care to ensure a safe place of work. The notion of “reasonable” is extremely important because what is considered reasonable by the courts will vary depending on the nature of the place of work. For example, it may be reasonable for the ground of a construction site to be muddy and uneven, while the same cannot be said for the floor of an office.
Safe plant and tools:
An employer has the duty to provide safe plant and tools. He must also inspect and maintain such equipment. It seems that due to the non-delegable nature of the employer’s duty, the duty cannot simply be discharged by selecting a reputable provider for the equipment. That said, where the injury to the employee was caused by a latent defect, that is a defect which cannot be discovered upon reasonable inspection, choosing a reputable provider in such circumstances would amount to fulfilment of the employer’s duty.
An employer has the duty to provide competent co-workers. It is interesting to note that where the acts of one employee injure another employee, there are in fact two possible causes of action. Firstly, the employer could be negligent in hiring the employee who caused the injury. This would require the plaintiff to show that the employee posed a foreseeable risk. Secondly, the employer could be vicariously liable for the acts of his employee.
Breach of statutory duty
Breach of statutory duty is another common law remedy that may be available to an employee injured at work. It must be noted that the mere fact that an employer has breached a duty, imposed upon him by statue and that such breach caused the injury suffered by the employee, does not automatically give rise to a cause of action of breach of statutory duty. It must first be shown that, upon a proper construction of the provision that imposed the duty, it intended to create a cause of action. Some provisions may expressly provide (or in some cases preclude) a remedy, but in most circumstances, it will be silent on the matter. Where the provision is silent, the following factors will make it more likely that the legislation intended to allow a common law cause of action: the provision does not provide for a remedy in the event of breach, breach of statutory duty is the only remedy available to the injured worker, the provision breached is found in primary as opposed to subsidiary legislation and the legislation benefits a specific class of persons as opposed to the general public.
Employee’s Compensation Ordinance
An employer may be required to pay compensation under the Employee’s Compensation Ordinance. The biggest difference between the ECO and the common law causes of action is that fault need not be shown on the part of the employer. The plaintiff simply has to show that he was an employee (under the definition of the ordinance) and sustained “personal injury by accident arising out of and in the course of the employment”.
An employee who has received compensation under the ECO is not precluded from bringing an action against his employer under other common law causes of action. However, an employee cannot receive “double” compensation, that is to say any damages awarded in any subsequent proceedings will reflect the fact that the employee has already received compensation under the ECO.