20 July 2020
In Hong Kong, an occupier who fails to maintain the premises they control in a safe condition may be held liable for the injuries or damage suffered by a visitor. The duty of care owed by an occupier may overlap with an employers’ duty to protect the health and safety of their employees when employers are also occupiers of the workplace. Occupiers duties may also be relevant in relation to contractors or others working at a site as well as employees. This article sets out a brief overview of occupiers’ liability in the context of workplace injuries.
What is occupiers’ liability?
Occupiers of premises have a duty to ensure their visitors are reasonably safe in their permitted use of the premises. In Hong Kong, the Occupiers Liability Ordinance (OLO) codifies certain common law rules. Similarly, the Occupational Safety and Health Ordinance (OSHO) imposes a duty upon occupiers to keep the premises safe and without risks to health for persons employed at those premises. Similar duties apply to proprietors under the Factories and Industrial Undertakings Ordinance.
Under the OLO, a party needs to be an “occupier” of the relevant premises to have the duty. The test to determine whether that party is an occupier is whether it has control over the premises. For example, a property manager can be regarded as an occupier where it has control over the daily management of a building. Employers will also commonly qualify as occupiers of their place of business or a workplace and thus it is possible for there to be multiple occupiers of the same premises. Secondly, the injured person must show that he/she is a “visitor” to the premises. In general, employees at work premises for employment purposes can be deemed to be visitors. Similarly, individual contractors who are engaged to perform work at another place of business are generally considered as visitors. Thirdly, the injury or damage must occur on the premises. This is interpreted broadly to include all parts of the buildings, land and structures. Lastly, the injury must be caused by breach of duty of care on the part of the occupier. The occupier is not an absolute guarantor of safety but is required to take reasonable care to ensure that visitors are reasonably safe in their permitted use of the premises.
Warnings may discharge the duty of care owed by an occupier to a visitor however they must generally identify the specific danger so that it is possible for the visitor to avoid the danger. For example, the Hong Kong courts have found that an occupier breached their duty in a case where a worker was injured after falling into an uncovered hole at a construction site because the safety notices were inadequate.
How does occupiers’ liability differ from employers’ liability?
Where an individual is injured while working, their employer will owe much broader duties than the occupier of the premises where the injury occurred. For instance, under the OSHO, an employer has a duty to provide a safe system of work for its employees, which includes not only maintaining a safe workplace, but also, for example, providing information, instruction, training and supervision to ensure the safety and health of its employees at work (see our previous snapshot). An occupier who is not the employer will generally be responsible for ensuring the safe condition of the premises on which work is performed, but not for providing a safe system of work. In other words, occupiers’ liability is more concerned with the state of the premises rather than with the activities performed upon them.
Also, an occupier will not be liable under Employees’ Compensation Ordinance (ECO) if it is not the employer of the injured. They may however be joined in the injured party’s civil claim for damages in excess of the statutory claim under the ECO.
In recent years, there has been a trend in Hong Kong to extend the OLO to workplace injuries that arise from activities on the premises where the occupier was also responsible for certain equipment. For example, an occupier who was not the employer was found to be liable under the OLO for an injured scaffolding worker who fell from height at a construction site on the basis that the occupier failed to provide any safety belts or other means of harness to the worker. These cases blur the boundary between the duties of employers and occupiers and should prompt organisations to adopt a more rigorous approach to worker safety and safety on any premises they control, even where such workers are not their direct employees.
What should occupiers and employers do?
As a starting point, organisations will need to determine what premises they are the occupier of legally and then identify to whom they may owe a duty as such. This may involve reviewing their contractual and practical arrangements such as those with property management service providers. Businesses will then need to identify and assess the potential risks that flow from these arrangements and implement measures to manage these. This may include reviewing the physical condition of the premises, existing safety measures, signage, training and personal protective equipment provided to site visitors and restricted access areas. It may also involve revising operational practices such as traffic flows or where certain activities are permitted. A written risk assessment and record of preventative measures implemented should be prepared and retained. Businesses should also have a system in place that ensures they select competent contractors or sub-contractors or, if needed, the work of such contractors or sub-contractors is appropriately supervised at the relevant premises.
For further information, please contact:
Gareth Thomas, Partner, Herbert Smith Freehills
gareth.thomas@hsf.com
