B. Common law duty of care
If an employee is injured at work, the law may allow the employee to claim compensation if his employer failed to take reasonable care for his safety. This duty is personal to the employer and cannot be escaped simply by saying that someone else, such as a manager, contractor, or outside specialist, was meant to deal with safety.
At the same time, the law does not make employers automatic insurers against every accident. The real question is whether the employer acted as a reasonable and prudent employer would have acted in the same situation, taking proper account of foreseeable risks and sensible precautions.
What is an employer required to do?
At common law, an employer’s basic duty is to take reasonable care for the health and safety of employees in the workplace or in the course of employment. Courts often explain this duty by looking at whether the employer provided a safe place of work, competent co-workers and supervision, safe equipment, and a safe system of work.
This is one overall duty, not a checklist where an employer can ignore one part because it did well on another. The key question is always whether the employer took reasonable care in all the circumstances so as not to expose employees to unnecessary risk.
What does “reasonable care” mean?
“Reasonable care” does not mean an employer guarantees that no accident will ever happen. It means the employer must think seriously about workplace risks, take sensible precautions, and respond to dangers it knows about or ought to know about.
An employer may need to do more where the risk of harm is serious, where the consequences could be severe, or where the employer has greater knowledge about the danger. The law also recognises that proper risk assessment is a central part of this duty, because an employer is expected to identify risks and consider how to reduce them before someone is hurt.
However, many jobs are inherently dangerous, and the employer satisfies the standard by acting reasonably to minimise those risks.
An employer is generally not liable for damage arising from “ordinary risks of the service” that cannot be reasonably minimized, such as the risk of a seaman drowning in a shipwreck if the ship was properly equipped.
Non-delegable duty of the employer
The non-delegable duty is the most distinctive feature of an employer’s responsibility for the health and safety of their employees. It establishes that while an employer can delegate the factual performance of safety tasks to others, such as managers, fellow employees, or independent contractors, he cannot delegate the legal responsibility for that performance.
The doctrine dictates that an employer must not only “take care” personally but must “see that care is taken” by anyone to whom they entrust safety-related duties. Under the non-delegable duty, if a manager hired to ensure safety is negligent, the employer remains personally liable for that failure, even if the employer acted reasonably in selecting a competent manager.
However, a distinction is drawn between:
- delegation of part of the work process to an independent contractor (where the non‑delegable duty may bite); and
- provision of a service via a third party (e.g. independent healthcare, or a specialist teambuilding provider), where the employer’s duty may be satisfied by ensuring access to a competent provider.
In the first type of case, when an employer delegates part or all of his operational process to an independent contractor, he remains legally responsible for the contractor's negligence
In the second type of case, the employer’s duty is at most to provide or arrange a safe system or to take reasonable care to see that one is provided; it is not automatically responsible for the third party’s negligence.
Components of the duty of care
According to the Court of Final Appeal in Cathay Pacific Airways Ltd v Wong Sau Lai (2006), the employer's duty of care comprises several well-known components:
- The provision of safe co-workers (ensuring a competent workforce)
- A safe place of work (maintaining appropriate premises)
- Safe equipment (including tools and protective apparatus)
- A safe system of work (encompassing proper instructions, supervision, and training)
The employer’s duty applies when the employee is engaged in work and matters reasonably incidental to the work.
Crucially, the label or formal description of an employee’s job does not confine the scope of the duty. The employer’s duty is defined by the real work situation, not merely the contract or job title: once the employer knows, or ought reasonably to know, that the employee in fact performs additional tasks, the duty extends to taking reasonable care for employees’ safety for those tasks as well.
The duty is owed to each employee individually and must be tailored to their circumstances; for example, an inexperienced employee may require more detailed instruction and closer supervision than a seasoned worker.
Situations where the duty will typically extend
The employer’s duty of care will usually extend beyond the literal workstation to situations sufficiently connected with the employment, for example:
- Using facilities reasonably incidental to work (washrooms, rest areas, canteens) provided or controlled by the employer.
- Certain work‑related travel, for example travel that forms part of the job or is closely connected with the system of work (such as travel between work sites or mandatory transport under the employer’s control). Ordinary commuting, however, is generally outside the duty.
- Circumstances where the employer has effectively assumed responsibility for the employee in a way that goes beyond the ordinary workplace context (e.g., an employee who has collapsed at work requiring medical assistance, or where the employer provides and controls accommodation for employees).
Situations generally outside the duty
As a general rule, the duty does not extend to situations that fall outside the work relationship or the employer’s sphere of control, such as:
- Travel to and from work in the employee’s own time and using their own transport.
- Activities during breaks that have no connection to work and do not involve premises or arrangements under the employer’s control.
- Off-duty recreational activities, even if occurring at the workplace, unless they form part of an employer‑organised event or are so closely connected with employment that it is fair and reasonable to treat them as work‑related.
- Situations where the employee is on leave and not acting in any capacity related to employment and is not in circumstances where the employer has assumed responsibility for their safety (for example, in employer‑provided accommodation or transport).
Ultimately, whether the duty extends to a particular situation (for example, commuting, breaks, or off‑duty activities) is highly fact‑sensitive. It depends on all the circumstances, including:
- the degree of the employer’s control over the activity or environment;
- the foreseeability of harm in that context; and
the connection between the activity and the employment.
