September 2012 Case

China
inFocus
Brief

Employers Liability to
Injured Employees
B v King of the King Group Limited

Sit Loi Sang v C & H Engineering Co Ltd

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;

Court 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

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.
H UMAN R ESOURCES November 2012

43

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

44 H UMAN R ESOURCES November 2012

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.

September 2012

China
Focus

v C & H Engineering Co Ltd

v C & H Engineering Co Ltd

2009637
:
201271013
2012831

1.

2006 12 14

2006 11

()

3.
4.

1.

2.

26

2.

2006 12 8

3.

1,969,580

Jezamine Fewins

H UMAN R ESOURCES November 2012

45