2. Deacons Lawyers Construction Safety – legal aspects Glenn Haley Partner Construction Department 8 May 2002

3. 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

4. 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): oThe construction industry has a poor image – “it is dangerous and polluting” oAlthough significant improvement has been made in recent years, our site accident rate remains unacceptably high

5. Section 2 – Sources of applicable law  Legislation  The common law (judge made law) oNegligence oContract law oBreach of statutory duty

6. Section 3 - Overview of HK legislation  Many tiers of legislation in HK oOrdinances and Regulations oTechnical Memorandum / Codes of Practice oPractice Notes (for Authorised Persons / for Registered Contractors)  For example, builders’ lifts and working platforms oBuilders’ Lifts and Tower Working Platform (Safety) Ordinance oFactories and Industrial Undertakings Ordinance oConstruction Sites (Safety) Regulations oCode of Practice on the Design and Construction of TWP oPNAP 181 / PNRC 29 - Temporary Wall Supported Platforms

7. Section 3 - Overview of HK legislation (2)  Many administrative bodies oLabour Dept (abrasives, blasting, lifts, electricity, scaffolding) oElectrical and Mechanical Services Dept (aerial ropeways) oEnvironmental Protection Dept (waste disposal) oBuildings Dept (site safety, lighting, refuse chutes) oFire Services Dept (dangerous substances, batteries) oDept of Justice (fatal accidents) oRadiation Board (radiation) oPolice Force (scaffolding)

8. Section 4 - Application of HK legislation 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

9. Section 4 - Application of HK legislation Factories and Industrial Undertakings Ordinance (1)  Under Section 6A, every employer is under an express statutory duty to: oso 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?

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

11. Section 4 - Application of HK legislation Factories and Industrial Undertakings Ordinance (3) oprovide such information, instruction, training and supervision as may be necessary to ensure the safety and health at work of the employer's employees; oany 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.

12. Section 5 - Overview of HK common law  Tort oNegligence  Contract oContracts of employment oExpress and implied terms  Breach of statutory duty oExposure to common law damages

13. Section 6 - Application of HK common law Duties of employer and contractors at common law  Duty of care (negligence) to workers oTo make the work place safe oSafe systems of work oProvision of safe equipment and safety equipment  Contractual duties to workers oIt is an implied term of the employment contract that the employer will not send his worker to a dangerous place to work  Statutory duties oEmployee can seek common law damages for breach of legislation

14. Section 6 - Application of HK common law Delegation of responsibility  Some duties cannot be delegated oEmployers, main contractors and sub-contractors all responsible oeg, safety  Insurance must cover all parties

15. 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

16. Section 7 - Exposure of directors / partners (2)  For example, s14 of the Factories and Industrial Undertakings Ordinance: oDirectors, managers, company secretary and other similar officers of a company oAny partner of a firm, and any person concerned in the management of the firm oAlso 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

17. Deacons Lawyers Construction safety - legal aspects Glenn Haley Partner Construction Department 8 May 2002