Construction Safety – legal aspects

1. Construction Safety – legal aspects Glenn Haley Partner Construction Department 8 May 2002

2. Today’s ‘road map’ • Introduction • Sources of applicable law • Overview of HK legislation • Application of HK legislation • Overview of HK common law • Application of HK common law • Exposure of directors / partners

3. Section 1 - Introduction • Safety is of prime importance in the industry • It affects morale, productivity, costs and returns • Chapter 8 of the Tang Report (January 2001): • The construction industry has a poor image – “it is dangerous and polluting” • Although significant improvement has been made in recent years, our site accident rate remains unacceptably high

4. Section 2 – Sources of applicable law • Legislation • The common law (judge made law) • Negligence • Contract law • Breach of statutory duty

5. Section 3 - Overview of HK legislation • Many tiers of legislation in HK • Ordinances and Regulations • Technical Memorandum / Codes of Practice • Practice Notes (for Authorised Persons / for Registered Contractors) • For example, builders’ lifts and working platforms • Builders’ Lifts and Tower Working Platform (Safety) Ordinance • Factories and Industrial Undertakings Ordinance • Construction Sites (Safety) Regulations • Code of Practice on the Design and Construction of TWP • PNAP 181 / PNRC 29 - Temporary Wall Supported Platforms

6. Section 3 - Overview of HK legislation (2) • Many administrative bodies • Labour Dept (abrasives, blasting, lifts, electricity, scaffolding) • Electrical and Mechanical Services Dept (aerial ropeways) • Environmental Protection Dept (waste disposal) • Buildings Dept (site safety, lighting, refuse chutes) • Fire Services Dept (dangerous substances, batteries) • Dept of Justice (fatal accidents) • Radiation Board (radiation) • Police Force (scaffolding)

7. Section 4 - Application of HK legislation • Construction Site Safety Regulations • (e.g., Hoists, scaffolds, working platforms, ladders, excavations, others) • Occupiers Liability • (“common duty of care”) • Noise Induced Hearing Loss

8. Section 4 - Application of HK legislationFactories and Industrial Undertakings Ordinance (1) • Under Section 6A, every employer is under an express statutory duty to: • so far as reasonably practicable, ensure the safety and health at work of all the employer's employees • What is entailed in this briefly expressed requirement?

9. Section 4 - Application of HK legislationFactories and Industrial Undertakings Ordinance (2) • To ensure safety and health at work, the employer must (but is not limited to): • provide or maintain plant and systems of work that are safe and without risks to health; • ensure safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

10. Section 4 - Application of HK legislationFactories and Industrial Undertakings Ordinance (3) • provide such information, instruction, training and supervision as may be necessary to ensure the safety and health at work of the employer's employees; • any workplace under the employer's control- (i) maintain the workplace in a condition that is practicable, safe and without risks to health; or (ii) provide or maintain means of access to and egress from the workplace that are safe and without any such risks.

11. Section 5 - Overview of HK common law • Tort • Negligence • Contract • Contracts of employment • Express and implied terms • Breach of statutory duty • Exposure to common law damages

12. Section 6 - Application of HK common law Duties of employer and contractors at common law • Duty of care (negligence) to workers • To make the work place safe • Safe systems of work • Provision of safe equipment and safety equipment • Contractual duties to workers • It is an implied term of the employment contract that the employer will not send his worker to a dangerous place to work • Statutory duties • Employee can seek common law damages for breach of legislation

13. Section 6 - Application of HK common law Delegation of responsibility • Some duties cannot be delegated • Employers, main contractors and sub-contractors all responsible • eg, safety • Insurance must cover all parties

14. Section 7 - Exposure of directors / partners (1) • What if the employer is a company or a partnership? Is there any potential personal exposure? • Yes!! • So, statutory safety obligations really are a matter that deserve your personal and focussed attention • Common law joint and several liability of partners of a firm / partnership

15. Section 7 - Exposure of directors / partners (2) • For example, s14 of the Factories and Industrial Undertakings Ordinance: • Directors, managers, company secretary and other similar officers of a company • Any partner of a firm, and any person concerned in the management of the firm • Also liable to be convicted of the criminal offence, if the offence was “committed with their consent or connivance … or was attributable to any neglect” on their part

16. Construction safety - legal aspects Glenn Haley Partner Construction Department 8 May 2002