Employer failed to provide 'safe system of work,' argues worker
A Hong Kong district court recently dealt with a personal injury case involving a worker who sustained back injuries while performing a heavy lifting task.
The worker claimed that his employer failed to provide a safe system of work, proper equipment, adequate training, and sufficient assistance for the hazardous manual handling.
The worker argued that he had been instructed to perform the task despite expressing concerns about the weight involved. When he asked about mechanical lifting equipment, he was told it had been ordered but wasn't available yet. Instead, he had to rely on makeshift assistance from non-employees who happened to be nearby.
The employers denied liability, suggesting the worker didn't promptly report his injury and had received adequate training for the task. They also claimed he should have been able to assess whether his physical strength was sufficient for the job, effectively placing responsibility on him for any injuries sustained.
The incident occurred on 14 July 2020 at a construction site at Renaissance College in Ma On Shan. The worker was originally employed as a driver earning about HK$24,000 monthly but had been temporarily reassigned as a general labourer due to staff shortages in the month before the accident.
When told to lift a heavy metal drain cover weighing approximately 61 kg to facilitate sewage inspection, the worker heard someone ask the foreman about using mechanical equipment.
The foreman replied that "a lifter had been ordered but was not delivered to the Site yet" and told the worker to use manhole keys instead. Since the cover was too heavy for one person, two school janitors who happened to be on site were asked to help.
The metal cover was rusted and extremely heavy, measuring approximately 900mm x 900mm. Even with three people, they initially couldn't lift it. The worker had to use a hammer to loosen the sides before they could raise it. While replacing the cover after inspection work was completed, he felt "a sharp pulling sensation at his low back."
The employers claimed the worker didn't report any injury until he submitted a sick leave certificate dated 20 July 2020, nearly a week after the alleged incident. They argued that sufficient assistance had been provided and that the worker had previous experience lifting drainage covers and had received construction safety training.
The employers also suggested the worker was partly at fault for not assessing whether his physical strength was adequate for the task. This attempt to shift responsibility was firmly rejected by the court.
The court found that one of the alleged helpers wasn't actually present during the lifting, and that testimony about his involvement was merely hearsay. The court also noted that the employers' claim about the cover being only 811 mm² in size was "wholly unreasonable and defies commonsense."
The judge determined that both employers breached their duty of care by failing to provide proper equipment, trained assistance, supervision, and work instructions for the heavy lifting task.
The court emphasised that basic safety certificates weren't sufficient: "[The employers] have not adduced any evidence to challenge [the worker's] case that no supervision, work instruction or training were provided to him regarding lifting of heavy drainage covers... [The worker's] holding of Construction Worker's Registration Card and basic general training in construction work would not absolve [the employers'] liability and duty."
Regarding the untrained helpers, the court noted: "There is no evidence that the 2 school janitors, not being [the employers'] employees and were summoned on the spot for manual assistance, had any training, received any guidelines or work instructions, or had experience in heavy lifting duties."
The court referenced established case law about safe lifting limits, citing a previous judgment which determined that the safe limit is "around 12 kg for general application, around 23-30 kg for well trained individuals lifting in well designed lifting circumstances and 50-55 kg as the absolute maximum for well trained, specially selected individuals lifting in ideal circumstances."
Since the drain cover weighed over 60 kg and the worker was lifting approximately half this weight from one corner, the court concluded the task was "too heavy and unsafe" and "should at least require additional competent and trained manual assistance."
The judge rejected the employers' contributory negligence claim, stating: "such pleas are in my view wholly inappropriate in that they have in effect delegated onto the employee the duty to devise a safe system of work, the provision of which should no doubt be part of the employer's non-delegable duty."
Medical evidence showed the worker suffered a soft tissue sprain to his lower back with pain radiating to his left buttock and leg. He required approximately 2.5 months of sick leave and underwent 21 physiotherapy sessions, with his pain level decreasing from 6/10 to 1/10 after treatment.
After recovery, he initially returned to light duties until his employment ended in February 2021. He then worked as a taxi driver earning about HK$16,000 monthly before taking a security guard job at approximately HK$13,951 monthly.
The court concluded: "[The worker] suffered a mild soft tissue low back sprain injury with left sciatica in the Accident which necessitated a sick leave of about 2.5 months... He had a satisfactory recovery and was able to resume work after the sick leave."
The final damages award of HK$457,439 included HK$200,000 for pain and suffering, HK$120,874 for lost earnings and Mandatory Provident Fund benefits, HK$125,000 for loss of earning capacity, and HK$11,565 for medical and travel expenses.
The court noted: "His condition may be aggravated upon exertion at work and he may require rests upon prolonged driving or intermittent leave absence from work. His work efficiency will be reduced and he would be prone to have minor injuries."
