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Employee may concurrently pursue the various causes of action available, the
principle is no multiple recovery
(Sen Hem Pratap v Hang Yue Engineering Ltd [2012] HKEC 135)
Compensation
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Burden of Proof
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Evidence
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Duty of care
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(Leung Kin Fai v IDS Logistics (HK) Ltd [2009] HKEC 747)
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Duty to take reasonable care for employees safety not confined to accident
situations but extends to industrial illness or disease
(Lai King Yiu v Acciona Infraestructureas SA [2009] HKEC 742)
Responsibility may be imposed on a parent company for the health and safety
of employees of a subsidiary company which no longer exists.
(Chandler v Cape Plc [2012] EWCA Civ 525)
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Course of employment not confined to precise act e.g. drive car but also
cover normally and reasonable work e.g. repair of car.
(Davidson v Handley Page Ltd [1945] 1 All ER 235)
(Mohammad Waheed Khan v Rising Sun Transportation Company Ltd
[2012] HKEC 1698) unloading
Non Delegable Duty Personal Duty (Employer cant escape the duty by
delegation the duty to others) (Employer can delegate the work to manager,
but the duty is still on employer)
(Wilson and Clyde Coal Co v English [1938] AC 57)
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Safe staff
Safe Place
Safe Equip
Safe system
(Wilson and Clyde Coal Co v English [1938] AC 57)
Single Duty
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(Cathay Pacific Airways Limited v Wong Sau Lei [2006] HKCU 810 )
Four Duty
1. Duty to provide competent staff
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If equip is provided and employee failed to use, the employer is not liable.
(Khan Imran v Wai Hing Engineering Co Ltd [2011] HKEC 1452)
Duty requires employer to devise (design) and operate a safe system of work
(McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC 906)
Question of fact in each case as to whether it was necessary for the employer
to devise a system of work for a particular task
(Fong Yuet Ha v Success Employment Services Ltd CACV 100/201227)
Duty requires an employer to enforce, monitor and upgrade any work systems
( upgrade)
(Lo Wai Shing v Lik Seng Engineering Co Ltd [2013] HKEC 1755)
Extent of duty will depend on the particular nature of the job
(Wong Tai Yau v Transworld Stevedore Ltd [2009] HKEC 1657)
e.g. extremely bad in condition, employer duty ,
pay extra care.)
Duty will require employer to deal with employees foreseeable carelessness
for his own safety (employee careless, employer )
(General Cleaning Contractors v Christmas [1953] AC 180)
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4. Duty to provide safe place (limited the access and safe, but also include
people)
Duty to take reasonable care to ensure that access to and the place of work is
safe
(Lee Kin On v Chit Luen Transportation Co Ltd [2008] HKEC 2025)
Question of fact whether a workplace is safe or not
(Baker v Quantum Clothing Group [2009] PIQR P332)
Duty may include ensuring that employees are protected from deliberate
harm inflicted by third parties (e.g. Employer has duty to prevent the
employee )
(Cheung Shuk Wah v Wong Kong Hung [2010] HKEC 909)
argue,
Duty may extend to work done off the employers premises
check, check or not depend on Reasonable
(Lee Wai Man & Another v Wah Leung Finance Ltd [2004] 1 HKLRD 1023)
D send P check site Ct said D is liable as
Breach of duty
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factor
(Wong Ching Yau v Group Yield International Development Ltd [2012] 2
HKLRD 480)
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Policy issue
(Smith v Ministry of Defence [2012] EWCA Civ 1365)
Defence
Defences of volenti and contributory negligence may be raised in employee
claims against employer
Court reluctant to find volenti (Employee consent )
(Liu Shui Bik v Counterfortune Ltd [2010] HKEC 414)
Court is cautious in finding contributory negligence in employees claims
against employer
(Hutchinson v London & North East Railway Co [1942] 1 KB 481)
Courts willing to find contributory negligence in appropriate cases
(Tamang Udas v Global Sunny Engineering Ltd [2013] HKEC 40)
Factors to consider in assessing possible contributory negligence by an
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Apportionment
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