Employee Compensation and Negligence Claims – Employer
The employer’s liability is within the aspect of the negligence in the law of tort. Employers have an affirmative duty to ensure workers’ safety, which is personal and non-delegable, so even if the employer has entrusted the task to selected people with due care and skill or employees themselves, the responsibilities are not delegated.
Employers’ standard of care to employees is what an ordinary employer ought to have done under the circumstances reasonably. (Muir v Glasgow  SC(HL) 3) There has been a well-established standard of care, namely the four-fold duty from Wilsons & Clyde Coal Co Ltd v English  AC 57: provision of competent staffs, a safe place of work, proper plant and equipment and a safe system of work. Yet, if the employee has special needs due to his characteristics such as bad vision and old injuries known to the employer, the employer’s standard of care would subsequently be higher. Thus, employees may claim compensation on the ground of negligence if he/she can prove the breach of duty by the employer.
The original burden of proof is on the employee, yet it may shift to the employer if the employee pleads Res Ipsa Loquitur. The employer needs to neutralize the inference of negligence by showing the accident would have happened even sufficient care had been provided.
Suppose employees try to claim compensation on the ground of s.5 of the Employee’s Compensation Ordinance. In that case, the employer may either show the accident would have occurred whether at work or not or argue the injuries result from employees’ fault.
To conclude, the existing law has established a duty of care with a strict and high standard owed by employers to employees, yet the Court will examine the entire circumstance to come to the final judgement.
If necessary, you can also apply for legal aid. Ms. Ngan is a member of the Legal Aid Department Penal for Criminal, Divorce/Family Law, Employees’ Compensation, Personal Injury, Medical Negligence, and Land Disputes. If legal aid is approved, the aided person has the right to choose a lawyer to represent.