In an employment-related negligence claim, the standard of care expected of an employer is higher when the work duties are concerned with regulated substances.
In HCAA 444/2021, upon opinion of Mr Gordon Chan the Appellant successfully persuaded the Director of Legal Aid to reconsider their initial refusal to grant legal aid in pursuit of an intended negligence claim against an employer.
The Appellant is a worker in pest control. Despite proximity from pesticides fumes, the employer failed to provide any personal protective equipment (PPE) to the Appellant, who was severely irritated and resorted to using self-purchased PPE. Then one day, whilst on-duty and donned with PPE the Applicant was injured.
An issue is whether the act of self-purchasing PPE is novus actus which broke the chain of causation. It was argued that since pesticide is dangerous substance regulated under the Pesticides Ordinance (Cap 133), the burden upon the employer to provide safety equipment and a safe working environment is particularly high. The Appellant, facing an obvious danger, acted reasonably. The Director was persuaded that it is reasonably arguable that the chain has not been broken. In the end, the Appellant reached a settlement with the employer.
This is a special case in which the biochemical nature of the substance being used formed an essential background in determining the causation of an accident, in a claim may otherwise be unmeritorious.
Gordon Chan, Esq
Barrister-at-law, Archbold Hong Kong Editor on Public Health, and Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.
