G. Defences
Even where a duty of care exists and is breached, an employer may have defences available. The most commonly relied upon are:
(i) Causation
To succeed in a claim, an employee must establish not only that the employer breached a duty but also that the breach caused their injury. Where an employee would not have benefited from safety equipment even if provided (for example, if they were determined not to use it), causation may fail. However, merely arguing that an employee "would probably not have used" equipment is insufficient; there must be strong evidence supporting this.
(ii) Contributory negligence
In an employers’ liability claim, contributory negligence means that the injured employee also failed to take reasonable care for his own safety, and that failure helped to cause the accident or made the injury worse.
An employee may still recover damages even if he was partly responsible for the accident.
The court will consider:
- whether the employer was negligent;
- whether the employee was also negligent; and
- how far each side was responsible for the injury.
To establish that the employee was contributorily negligent, the employer has to show that:
- the employee failed to take reasonable care for his own safety; and
- that failure caused or materially contributed to the loss suffered.
The court looks at all the circumstances to decide whether an employee was contributorily negligent, including:
- the nature of the work;
- the system of work provided by the employer;
- the training and supervision given;
- whether safety instructions were clear and practical;
- whether protective equipment was provided and used;
- whether the employee was under time pressure, fatigue or stress;
- the employee’s age, experience and level of skill; and
- whether the risk was obvious.
The standard is whether the employee acted as a reasonable person in that situation would have acted.
Contributory negligence may be found where, for example, the employee:
- ignored clear safety instructions;
- deliberately failed to use protective equipment that was provided;
- operated machinery in an obviously unsafe way;
- removed safety guards without justification;
- engaged in horseplay or reckless behaviour; or
- continued with a dangerous act when the risk was plain and avoidable.
The court may be slow to find contributory negligence where:
- the employer gave inadequate training;
- the system of work was unsafe;
- the employee was expected to work quickly and under pressure;
- the unsafe practice had become a normal part of the workplace;
- there was poor supervision; or
- the employee was following the employer’s instructions or established practice.
In other words, if the employer created or tolerated an unsafe system, it may be difficult for the employer to shift blame to the employee.
Whether contributory negligence is established depends on the facts of each case.
However, in workplace cases, the court usually recognises that employees often work under the employer’s direction, sometimes in hurried or dangerous conditions. For that reason, the court will not readily find contributory negligence merely because the employee made an error at work.
If contributory negligence is proved, it does not usually defeat the claim altogether. Instead, the court may reduce the damages payable by the employer to the extent it considers just and equitable.
If both sides are at fault, the court may reduce the employee’s damages by percentage. For example, if the employee’s damages are assessed at HK$800,000 and the employee is found 25% contributorily negligent, the employee will recover HK$600,000.
