(1) Except where otherwise provided under this Ordinance, all claims for compensation, except to the extent that such claims are determined-
(a) by agreement under section 8; or (Replaced 1 of 1995 s 10)
(aa) (Repealed 1 of 1995 s 10)
(ab) by a Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case; or (Added 52 of 2000 s 12)
(ac) by a Certificate for Funeral and Medical Attendance Expenses or Review Certificate for Funeral and Medical Attendance Expenses; or (Added 52 of 2000 s 12)
(b) by certificate under section 16A; or (Replaced 1 of 1995 s 10)
(c) by agreement under section 16CA, or (Added 1 of 1995 s 10)
(d) (Repealed 36 of 1996 s 16)
and any matter arising out of proceedings in respect of such claims shall be determined by the District Court, whatever may be the amount involved, and the Court may, for that purpose, call upon any person to give evidence, if the Court is of the opinion that such person is, by virtue of his expert knowledge, able to assist the Court.
(2) An employee may, in the prescribed form and manner, make an application for enforcing his claim for compensation to the Court:
Provided that no application shall be made-
(a) in the case of a claim in respect of an injury to which section 16A applies, until after the expiry of the payment period within the meaning of subsection (11) of that section; and
(Amended 31 of 1985 s 11)
(b) (Repealed 36 of 1996 s 16)
(3) The Court shall, as soon as practicable after it receives a claim for compensation where death results from the injury concerned, cause to be sent to the Commissioner a notice advising the Commissioner of the receipt of that claim.
(Added 52 of 2000 s 12)
(Added 76 of 1982 s 16)
[18A.01] Enactment history
This section was added pursuant to s 16 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
Subsection (1)(a) was substituted, (aa) repealed and (c) added pursuant to s 10 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.
Subsections (1)(ab), (ac) and (3) were added pursuant to s 12 of the Employees’ Compensation (Amendment) Ordinance 2000 (52 of 2000), commencing 1 August 2000.
Subsections (1)(d) and (2)(b) were repealed pursuant to s 16 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.
Subsection (2)(b) was repealed pursuant to s 16 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.
[18A.02] General note
The effect of this section, combined with that of s 21, is to provide that claims for compensation for whatever amount shall be determined by the District Court to the exclusion of all other courts, the only exception being the Small Claims Tribunal as provided for in s 10(11) in respect of the compensation payable to an employee for a period of temporary incapacity which does not exceeds 3 days. Additionally, in determining such claims, the District Court shall have all the powers and jurisdiction that it exercises in connection with civil actions in the District Court and the law, rules and practice relating to such civil actions shall mutatis mutandis apply: see Paquito Lima Buton v Rainbow Joy Shipping Ltd Inc [2007] 1 HKLRD 926, [2007] HKCU 296, para 31.
Generally the District Court will deal with all interlocutory matters incidental to employees’ compensation proceedings from specific discovery: eg. Yeung Kai Tung v The Hong Kong Jockey Club (DCEC 1483/2007, 3 November 2008, DC, unreported); security for costs: eg. Athanasios Kondylis v Kim’s Yacht Co Ltd (DCEC 918/2005, 24 October 2007, DC, unreported); appointment of a next friend for a person under disability: eg. Chan Kin Shing by his next friend Lee Mei Lin Peggy v K Wah Asphalt Ltd (DCEC 639/2009, 4 August 2009, DC, unreported); interrogatories: eg. Ernst Eduard Sprecher on behalf of himself and the other dependants of Matthais Sprecher, deceased v Zingrich Cabletrans GMBH Leitner Asia Ltd & Anor (DCEC 1498/2006, 28 November 2007, DC, unreported); striking out of a claim which is frivolous, vexatious or abuse of process: eg. (黃志明訴水務署 DCEC 621/2006, 15 May 2007, DC, unreported, Chinese Judgment); to an application for an anonymity order for not disclosing the identity of an injured employee: see Tam Kam Tong v Peter Wong & Partners [2008] 3 HKLRD 181.
However, it has been observed by the Court of Appeal that neither this section nor s 21 ‘identifies exclusivity of jurisdiction by reference to anything other than judicial or court proceedings’. Although a claim for employees’ compensation is by its nature a statutory claim, it does not prevent the claim from being determined by way of arbitration. Moreover, an arbitration agreement may not become null and void notwithstanding that there are other provisions in the underlying contractual arrangement between the parties which purports to remove the liability of an employer to pay compensation in violation of s 31 of the Ordinance: see Paquito Lima Buton v Rainbow Joy Shipping Ltd Inc, above, para 38 et seq.
Normally a letter before action should be sent before an application is made under this section or else the applicant or his solicitors may risk adverse costs orders: see Shah Mehboob v Wing Fung Construction (HK) & Anor (DCEC 294/2002, 18 December 2002, DC, unreported).
[18A.03] Subs (1)(b): Except to the extent that such claims are determined ··· by certificate under section 16A
In Tso Chun Cheong v Mak Chi Ming t/a Lik Wang International Sofa Co (DCEC 873/2006, 6 March 2007, DC, unreported, [2007] HKCU 370), it was held that this phrase imposed a restriction on the jurisdiction of the District Court. In that case, a Certificate of Review of Assessment was issued pursuant to s 16A(5). Upon filing of an Application asking the court to assess the amount of compensation under ss 9, 10 and 10A, the applicant did not apply for the cancellation of the said Certificate under s 16B, nor did he seek to appeal against the said Certificate under s 18. Moreover, there was no application under s 16A(8) for the amount payable under the said Certificate to be made an order of the court. In such circumstances, following Ng Ming Cheong v Mass Transit Railway Corporation [1997] 3 HKC 413, it was held that the said Certificate was binding upon the court. However, in the absence of an application under s 16A(8), the court considered that it was precluded from making an award of compensation, not even if the assessment made in the said Certificate were to be strictly followed. In other words, it was held that an application under s 16A(8) is a pre-requisite for the District Court to make an order in accordance with a binding certificate of assessment.
This section empowers the court to determine all claims for compensation and any matter ‘arising out of proceedings’ in respect of such claims. That phrase covers procedural and interlocutory matters which arise from compensation claims brought under the Ordinance and includes joinder of additional parties, including an insurer: see Sheppard v Richstone Industries Co Ltd (DCEC 113/1984, 30 April 1985, DC, unreported, [1985] HKLY 724).
[18A.04] District Court
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the District Court of the Hong Kong Special Administrative Region.
[18A.05] Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[18A.06] The Court may ··· call upon any person to give evidence
This section gives the court jurisdiction to order the production of all contemporaneous records of the Ordinary Assessment Board to the court and to the employee: see Re Certificate of Review of Assessment in respect of Ng Kai Yin [1991] 2 HKDCLR 61.
[18A.07] Subs (2)
In Chung Lung Shun v Adams Parking (International) Ltd [1996] 3 HKC 50, [1996] 1 HKLR 49(CA), the Court of Appeal held that the combined effect of s 14(1) above and this subsection is that the time bar under s 14(2) above applies only to an application to the court by an employee under this and not to any application, not even an application under s 18A(2), ‘where otherwise provided by this Ordinance’; it does not, for example, apply to an application to the court by way of appeal under s 18 above. See also Chan Siu Ling v Tonyear Investment Ltd (t/a Kwan Shing Restaurant) [1999] 2 HKC 348.
[18A.08] Definitions
For ‘employee’, see s 2 above; for ‘Certificate of Compensation Assessment for Fatal Case’, ‘Certificate for Funeral and Medical Attendance Expenses’, ‘Commissioner’, ‘member of the family’, ‘Review Certificate of Compensation Assessment for Fatal Case’ and ‘Review Certificate for Funeral and Medical Attendance expenses’, see s 3 above and notes thereto.
(1) Any periodical payment payable under this Ordinance either under agreement between the parties or under an order of the Court, may be reviewed by the Court on the application either of the employer or of the employee:
Provided that where the application for review is based on a change in the condition of the employee any such application shall be supported by a certificate of a registered medical practitioner, registered Chinese medicine practitioner or registered dentist.
(Amended 16 of 2006 s 18)
(2) Subject to the provisions of this Ordinance, any periodical payment may, on review under this section, be continued, increased, diminished, converted to a lump sum, or ended. If the accident is found to have resulted in permanent incapacity, the provisions of section 7 or 9 shall apply, as the case may be.
(Replaced 55 of 1969 s 16)
(3) Where application is made by an employer under this section for any periodical payment to be ended or diminished and the application is supported by the certificate of a registered medical practitioner, registered Chinese medicine practitioner or registered dentist, the employer may pay into Court the periodical payment, or so much thereof as is equal to the amount by which he contends that the periodical payment should be diminished, to abide the decision of the Court made on a review under this section.
(Amended 16 of 2006 s 18)
(4) In making a review under this section, the Court shall have regard only to the capacity for work of the employee as affected by the accident.
(Amended 44 of 1980 s 15)
[19.01] Enactment History
The words within the square brackets in subs (1) were substituted pursuant to s 18(1) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.
The words within the square brackets in subs (3) were substituted pursuant to s 18(2) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.
[19.02] England
This section does not have an equivalent in the UK Acts.
[19.03] General note
In Lam Kwong Yick v Hsin Chong Constructions Co Ltd [1976] HKDCLR 104, it was held that this section is concerned with the mode of payment and not with the method of calculation. A payment is either made as a periodical payment or it is made as a lump sum. It follows that, even though compensation calculated under s 10 may in fact be a periodical payment, the court has no power to review it under this section if such compensation is paid by way of a lump sum.
[19.04] Subs (1): Review of periodical payment
Having admitted liability, the employer in Li Kam Piu v Jardine Air Terminal Services Ltd (DCEC 11/2003, 9 April 2003, DC, unreported, [2003] HKCU 370) made an application to the court for inter alia an order under this subsection to stop making periodical payment to an injured employee whose symptoms according to expert evidence were not related to the injury suffered in the accident. In refusing the employer’s application, the court held that a review under this section was only appropriate where periodical payment was paid either under agreement between the parties or under an order of the court. The mere fact of payment and receipt of periodical payment did not imply an agreement. The proper course, as suggested by the court, was for the employer to appeal under s 18 against the findings of the Assessment Board. The employer should also decide whether or not it was justified in stopping periodical payment in light of the available expert evidence.
[19.05] Subs (2): Accident
See [5.06] above.
[19.06] Definitions
For ‘employee’, see s 2 above; for ‘Court’, ‘employer’ and ‘medical practitioner’, see s 3 above and notes thereto.
Subject to the provisions of sections 10(5), 16(4) and 19(3), an employer shall not be entitled, otherwise than in pursuance of an order of the Court or, a certificate under section 16A -
(Amended 55 of 1969 s 17; 76 of 1982 s 17; 1 of 1995 s 11; 36 of 1996 s 17)
(a) to end periodical payments except-
(i) where an employee resumes work and his earnings are not less than the earnings which he was obtaining before the accident; or
(ii) where an employee dies;
(b) to diminish periodical payments except-
(i) where an employee in receipt of periodical payments in respect of total incapacity has actually returned to work; or
(ii) where the earnings of an employee in receipt of periodical payments in respect of partial incapacity have actually been increased.
(Amended 44 of 1980 s 15)
[20.01] Enactment history
The words within the first set of square brackets were substituted pursuant to s 17 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.
The words within the second set of square brackets were added pursuant to s 17 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
The words within the third set of square brackets were repealed pursuant to s 17 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.
This section does not have an equivalent in the UK Acts.
[20.03] Para (a): Accident
See [5.06] above.
[20.04] Definitions
For ‘employee’, see s 2 above; for ‘Court’, ‘earnings’, ‘employer’, ‘partial incapacity’ and ‘total incapacity’, see s 3 above and notes thereto.
(1) Save as is provided in this Ordinance and any rules made thereunder, the District Court shall, upon or in connection with any question to be investigated or determined thereunder, have all the powers and jurisdictions exercisable by the District Court in or in connection with civil actions in such Court in like manner as if the Court had by the District Court Ordinance (Cap 336) been empowered to determine all claims for compensation under this Ordinance whatever the amount involved and the law, rules and practice relating to such civil actions and to the enforcement of judgments and orders of the Court shall mutatis mutandis apply.
(Amended 76 of 1982 s 18)
(2) The Court shall have jurisdiction to hear and determine any action notwithstanding that the amount claimed exceeds the sum mentioned in section 33 of the District Court Ordinance (Cap 336).
(Added 55 of 1969 s 18; Amended 79 of 1981 s 3)
(3) The Court may, in any proceedings brought in the Court for the recovery of any compensation, order that there shall be included in the sum for which an order for payment is made interest at such rate as it thinks fit on the whole or any part of such sum for the whole or any part of the period between the date of the accident and the date of the order.
(Added 76 of 1982 s 18)
[21.01] Enactment history
The word within square brackets in subs (1) was added pursuant to s 18 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
Subsection (3) was added pursuant to s 18 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
This section does not have an equivalent in the UK Acts.
[21.03] General note
This section is mandatory in terms, the provision of which is sufficient to oust jurisdiction from all other courts and tribunals including but not limited to the Small Claims Tribunal: see A-G v Ho Kin Shing [1977] HKDCLR 28, [1977] HKCU 80. As such, all applications for employees’ compensation and proceedings arising therefrom should be brought in the District Court. The more general provisions of this section do not override the specific restrictions imposed under s 21: see Tso Chun Cheong v Mak Chi Ming t/a Lik Wang International Sofa Co (DCEC 873/2006, 6 March 2007, DC, unreported, [2007] HKCU 370).
O 1 r 2(2A) of the RDC provides that the District Court Rules shall not have effect in relation to proceedings for the recovery of employees’ compensation and in respect of which rules are made under s 50 of this Ordinance. Notwithstanding this, it has been held by the court that the proper interpretation is that a particular rule of the Rules of the District Court only does not have effect on employees’ compensation cases so long as it conflicts with one or more rules of the ECR made under s 50 of this Ordinance: see Li Kwok Shing v Law Ka Fu & Anor [2003] 4 HKC 543, followed in Lam Pui Yi Anita v Secretary for Justice [2005] 4 HKC 256.
The Court also has inherent jurisdiction to restrain abuse of its process and frivolous and vexatious proceedings: see Ng Yat Chi v Max Share Ltd & Anor [2005] 1 HKLRD 473 at 513, [2005] HKCU 69 followed in Lam Pui Yi Anita v Secretary for Justice [2005] 4 HKC 256.
[21.04] Subs (1)
The jurisdiction of the court under this subsection includes the power to enforce a court order made under s 17: see Wong Po Wah v Pacific Insurance Co Ltd [1988] 2 HKLR 417. Apparently it also includes the power to set aside or enforce a settlement agreement between the parties: see Cheung Hang Chau for herself and the dependants of Fu Kwok Lo, deceased v Ma Yuk Kwan (DCEC 46/2001, 29 November 2002, DC, unreported); Wong Shun Kam v Full Rich Engineering Co Ltd & Anor (DCEC 638/2001, 3 March 2005, DC, unreported) and 莊鎮華訴徐耀華 Chong Chun Wah v Tsui Yiu Wah & Anor (transliteration) [2007] 1 HKLRD 290 (Chinese judgment). The court also has jurisdiction to set aside a judgment by consent in appropriate circumstances: see Manzoor Hussain v Bavarian Chemicals Co Ltd (CACV 37/2003, 3 October 2003, CA, unreported, [2003] HKCU 1104).
It has been held that the court has jurisdiction under this subsection to allow an interested party (such as an insurer) to be joined in the proceedings, but does not have jurisdiction to grant relief against an interested party by way of indemnity: see Sheppard v Richstone Industries Co Ltd (DCEC 113/1984, 30 April 1985, DC, unreported, [1985] HKLY 724).
In Farman Khan v Shun Sum Engineering Company (a firm) & Anor [2009] 1 HKLRD 534, District Judge Lok observed by way of an obiter dictum that it may not be proper to make a claim under Part IV of the Ordinance by an injured employee against the insurer concerned in other courts since the District Court should have exclusive jurisdiction over such claims by virtue of s18A and s 21. Practitioners are reminded to pay attention to this jurisdictional issue; and upon commencing such Part IV claims practitioners are also expected to bring to the attention of the Court the dicta of Clough JA in King Tak On v Lau Chun Yip & Ors (CACV 106/1986, 13 November 1986, CA, unreported) so that a properly considered decision can be made on this issue. Essentially Clough JA’s said dicta is that the amounts of Part IV claims fall squarely with the definition of compensation in s 3 and, in the case of interest and costs, within the jurisdiction conferred on the District Court by s 21.
For an illustration of the court exercising its jurisdiction under O 33 r 4 of the RDC to deal with an application for a trial on preliminary issue, or alternatively a split trial on the issues of liability and compensation: see Hui Wai Hei v Hui Hey Tak formerly t/a Tak Fai Transportation Co & Anor (DCEC 661/2000, 20 January 2006, DC, unreported, [2006] HKCU 152).
An example of the court giving consideration under O 35 r 3 of the RDC on an application for an adjournment of the trial of an employees’ compensation case until the conclusion of the corresponding common law action can be found in Wong Chi Keung v Asia Marble (Building Materials) Co Ltd & Anor (DCEC 1160/2003, 12 December 2005, DC, unreported, [2007] HKCU 327).
The Court of Appeal in Li Kwok Shing v Law Ka Fu & Anor [2003] 4 HKC 543 has made it clear that O 22 of the RDC, which sets out a comprehensive procedure in relation to payment into court, is applicable to employees’ compensation proceedings in pursuance of this subsection. It is no longer necessary to follow the previous practice to take out a consent application for approval by the court if the employee wishes to accept monies paid into court in full and final settlement of his claim; cf Chan Lai Heung v Po Leung Kuk (DCEC 172/2001, 25 October 2002, DC, unreported) and Cheung Kwai Leung v Heng Tat Construction Co Ltd (DCEC 367/2001, 17 September 2002, DC, unreported), which were decided before the delivery of the Court of Appeal’s decision in Li Kwok Shing above.
Upon the settlement of a claim by way of an acceptance of the payment into court, the court’s determination will take the form of an endorsement of a consent order so that the compensation awarded by the court was effectively the same amount as the payment into court: see Wong Mei Na v Genryoku Sushi Co Ltd (DCEC 892/2000, 29 January 2003, unreported, [2003] HKCU 74, [2003] 1 HKLRD D26) and the Court of Appeal’s decision in [2003] 3 HKLRD 370, [2003] HKCU 833.
The Court of Appeal in Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 532 confirmed that a payment into court did not imply an admission of liability, and the acceptance of that payment should not entitle the court to enter a judgment on liability. In other words, a payment into court and the subsequent acceptance thereof will not prejudice the parties’ positions in any related common law claim.
On the question of costs, in pursuance of O 62 r 10(2) of the RDC, the applicant is entitled as of right to tax his costs up to the date of his giving notice of acceptance and the court’s discretion as to costs is removed: see Li Kwok Shing v Law Ka Fu & Anor, above. On the other hand, even if there has not been a trial, r 20 of the ECR also applies to make the applicant pay the costs of the respondent incurred after making the payment into court: see Wong Mei Na v Genryoku Sushi Co Ltd, above).
Sometimes an employee may defer making an acceptance of his employer’s payment into court pending collection of expert medical evidence by the parties. This however does not amount to any special circumstances which would justify a departure from the ordinary costs consequences: see Wong Ching Wan v A S Watson & Co Ltd (DCEC 770/2005, 25 June 2007, DC, unreported).
In Miah, Mohammed Tara v Hyundai-CCECC Joint Venture (DCEC 1068/2005, 22 May 2006, DC, unreported, [2006] HKCU 804), it is recognized by the court that there can be corresponding employees’ compensation and common law proceedings against an employer. When there is an overall settlement of both sets of proceedings, the applicant’s entitlement to costs of his employees’ compensation claim should depend on whether he has a good claim instead of whether he has acted with reasonable restraint in face of the mature progress of the personal injury action or outstanding medical evidence. If there is a delay on the part of the applicant to find out the merits of his claim without any fault of the respondent who in the meantime sought to protect his costs position by making a payment into court, the applicant will have to bear the normal adverse costs consequences in respect of the ‘post-payment-in period’. Regarding another aspect of costs, in Lam Wing Sam v Landfit Enterprises Ltd (DCEC 370/1999, 21 February 2002, DC, unreported, [2002] HKCU 463, [2002] 1 HKLRD C12) where a minor was awarded employees’ compensation at the statutory maximum, it was decided that the taxation of the applicant’s costs should be on a party and party basis, but not on the more generous common fund cases similar to the practice adopted in personal injury cases. In contrast, upon approval of the settlement terms reached between the parties, costs was awarded on a common fund basis in favour of an injured employee who suffered from mental incapacity in Tse Mau Lan, by Chiu Yiu Lam, her next friend v Wanchai Golden Aster Restaurant Ltd operating as Wing Wah Restaurant (DCEC 1117/2002, 17 November 2005, DC, unreported). In that case, the court observed that it had been a long established practice to require the respondents or defendants to pay costs on a common fund basis in order to ensure that the victim would obtain the agreed settlement sum in full without any potential liability for costs.
An employee who discontinues his employees’ compensation proceedings following acceptance of a payment into court in the corresponding common law claim may be awarded costs of his employees’ compensation claim although this is a departure from the usual principles of awarding costs against the party who applies to discontinue an action: see Lai Yun Pui v Gammon Construction Ltd [2007] 1 HKC 217 and Shah Nisar v Wai Kit Engineering Co Ltd & Ors (DCEC 1094/2004, 14 December 2005, DC, unreported, [2005] HKCU 1764) c/f Wong Ki v Shun Tak Electrical, Mechancial and Air-Conditioning Engineering (Hong Kong) Co Ltd & Ors (DCEC 835/2007, 23 April 2008, DC, unreported).
Another illustration of the court exercising its discretionary power to refuse to make an order of costs to follow the event can be found in the judgment delivered in Yung Chi Man v Tang Kan Fu t/a Yun Shing Motor Service (DCEC 770/2004, 6 February 2006, DC, unreported, [2006] HKCU 217).
Costs may be ordered against an unsuccessful claimant on an indemnity basis if there is a serious exaggeration of injuries with the presentation of fabricated evidence: see 鍾秀玲訴峻億有限公司以聚寶海鮮酒家名義經營 Chung Sau Ling v Million Join Ltd t/a Tsupo Seafood Restaurant (DCPI 362/2001 & DCEC 857/1998, 13 November 2004, unreported, Chinese judgment). The court will not penalize an employee on costs for joining a number of parties as respondents when there is an uncertainty as to who should be liable under this Ordinance upon commencement of proceedings, or by reason of the imminent expiry of proceedings a fresh set of proceedings is brought against additional parties if an application to join them as parties is likely to be heard after the expiry of the limitation period: see Yarsar Hussain v Leung Yung Shing & Ors (DCEC 688/2003, 5 January 2006, DC, unreported, [2006] HKCU 26).
However, a respondent who is wrongfully joined as a party will be awarded costs if it has neither committed nor omitted to do any act that would have reasonably led the applicant to assume or believe that it should be made a party to the proceedings. In such circumstances, the applicant will not be able to escape the necessary costs consequence especially when there has been time and opportunity for him to seek clarification from appropriate parties prior to joining a mistaken party into the proceedings (Shadid Hussain v Environment Seal Corporation Ltd & Anor (DCEC 7/2007, 27 March 2007, DC, unreported, [2007] HKCU 540)). By way of example, the applicant may issue letter of enquiries or if necessary pre-action discovery applications to clarify the relationship between the parties. It may also be open to an applicant to first commence proceedings against one party against whom further and better particulars may be sought and/or interrogatories may be administered before joining any additional party in the proceedings. Another avenue of clarification is making a written request pursuant to s 24(3) of the Ordinance as suggested by the court in Shadid Hussain v Environment Seal Corporation Ltd & Anor (above).
The Court may make a Sanderson Order requiring the unsuccessful respondent to pay the successful respondent’s costs where an applicant has properly issued two respondents in employees’ compensation cases. In exercising its discretion in this connection, one of the key factors which the Court will take into account is whether it has been shown to be reasonable in all the circumstances for the applicant to join both respondents as parties to the action for compensation: see Lau Chu Wing v Law Wai Shing & Ors (DCPI 1389/2007, 11 June 2008, DC, unreported) and Lau Foon Wing v Cheuk Lau Shek t/a Kamtorry Industrial Co & Anor (DCEC 757/2007, 29 September 2008, DC, unreported).
The applicable legal principles on the administration of interrogatories are set out in paras 18 to 20 of the judgement delivered by District Judge Marlene Ng in Ascoba Co Ltd v Safco Express Services (HK) Ltd (DCCJ 6161/2003, 3 August 2005, DC, unreported, [2005] HKCU 1032). For illustrations of the court exercising its discretion to grant leave to administer interrogatories: see Khan Mirawas v Chan Kam Moon t/a Sei Luen Transportation Co (DCEC 130/2006, 15 September 2006, DC, unreported, [2006] HKCU 1561) and Tam Chun Pui v Hip Hing Engineering (Macau) Co Ltd & Ors (DCEC 628/2006, 14 December 2006, DC, unreported, [2006] HKCU 2075).
[21.05] District Court
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the District Court of the Hong Kong Special Administrative Region.
[21.06] Determine
In a situation where O 22 r 3(4) applies in conjunction with O 62 r 10(2) of the RDC, i.e. to have the proceedings stayed and to entitle the applicant to his costs of the action incurred up to the time of his giving notice of acceptance of the payment into court, has the effect of the proceedings being ‘determined’ by the District Court: see Li Kwok Shing v Law Ka Fu & Anor [2003] 4 HKC 543.
[21.07] Law
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean any law for the time being in force in, having legislative effect in, extending to, or applicable in, Hong Kong.
[21.08] Subs (3)
This subsection in effect repeals the ruling in Gammon Kier Lilley Joint Venture v Wong Tat Keung [1981] HKLR 343, [1981] HKCU 77, that no court in Hong Kong has the power to order interest on an award of employees’ compensation.
It is the usual practice in employees’ compensation cases to assess interest on compensation at half of the judgment rate on the compensation awarded from the date of accident (see Tse Hin v Ying Ming Construction Ltd (ECC 101/86, unreported); So Ka Chun v Ho Tai Shing & Ors (DCEC 592/2000, 7 August 2002, DC, unreported, [2002] HKCU 945); Lai King Wai v Kwai Chuen Container Service Co Ltd (DCEC 805/2002, 4 December 2003, DC, unreported), Lee Wan Yeung for himself and for and on behalf of other members of the family of Lee Kam Ming, deceased v Metro World Engineering Ltd & Anor (DCEC 577/2008, 13 January 2009, DC, unreported)). However, there have been departures from this practice in fatal injury cases where full judgment rates were awarded: see Ho Man Yee and Lam Mei Yuet v Cheng Chung Fan (t/a Shui Hing Watch Co) (ECC 36/90, unreported); Liu Kwan Ying v Me Cheung Engineering & Decoration Ltd (ECC 474/90, unreported).
See [5.06] above.
[21.10] Definitions
For ‘compensation’ and ‘Court’, see s 3 above and notes thereto.
(1) The Court may, if it thinks fit, submit any question of law for the decision of the Court of Appeal.
(2) Such submission shall be in the form of a special case in accordance with rules made under this Ordinance.
[22.01] England
This section does not have an equivalent in the UK Acts.
[22.02] General note
This section, which was already in existence when the Ordinance first appeared, empowers the court to submit a question of law for the decision of the Court of Appeal.
[22.03] Definitions
For ‘Court’, see s 3 above and notes thereto.
(1) Subject to the provisions of this and of section 13, an appeal shall lie to the Court of Appeal from any order of the Court.
(2) Except with the leave of the Court or of the Court of Appeal (which shall not be granted unless in the opinion of the Court of Appeal some substantial question of law is involved in the appeal) no appeal shall lie if the amount in dispute is less than $1000.
(3) No appeal shall lie in any case in which the parties have agreed to abide by the decision of the Court, or in which the order of the Court gives effect to an agreement come to by the parties.
(4) No appeal shall lie after the expiration of 30 days from the date of the order of the Court: Provided that the Court of Appeal may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that that time has elapsed.
This section does not have an equivalent in the UK Acts.
[23.02] Subs (1): Any order of the Court
This phraseology contemplates a full right of appeal on fact as well as law: see Wong Po Sin v New Universal Paper Co Ltd [1973] HKLR 59 (per curiam). Generally speaking, subject to the provisions of this section and s 13, leave to appeal was not required for an appeal from the decision of a District Court judge on employees’ compensation cases. The appellant is entitled to have an unqualified right of appeal on fact as well as law under this section: see Ngai Chu v Lau Pong Chun t/a Yau Pong Construction (CACV 402/2004, 16 November 2005, CA, unreported, [2005] HKCU 1607). The appeal is as of right under this section and not governed by O 58 r 2 of the RDC: see Chang Sanchez & Anor v Hin Sum Manpower Co Ltd (HCMP 934/2005, 26 May 2006, HC, unreported, [2005] HKCU 779). However, it has been held by the Court of Appeal that the words ‘any order of the Court’ refer to orders made under the substantive provisions of this Ordinance (eg awarding compensation or determining questions of law arising from the Ordinance) but do not extend to include a costs order made in a contested summons taken out in employees’ compensation proceedings which does not involve substantive questions of law but the exercise of the judge’s discretion: see 譚耀煇 Tam Yiu Fai (transliteration) v Aberdeen Marina Holding Ltd (CACV 167/2005, 3 November 2005, CA, unreported, [2005] HKCU 1531) and s 14 of the High Court Ordinance (Cap 4).
The determination of any claim by an employee against his employer’s insurers under ss 43 and 44 is an order of the court within the meaning of this section: see Chan Chu Ngan v Wong Woon Pui [1992] 2 HKC 193.
The Court of Appeal does not have jurisdiction to hear an appeal from an order made by a taxing master under this subsection, the reason being that the taxing master is exercising the jurisdiction of a master of the District Court in making orders on taxation matters. Any appeal would lie to a judge in chambers, but not to the Court of Appeal: see Tsang Kar Lee v Rich Long Transportation Ltd & Anor [2004] 1 HKC 207.
For obtaining leave to appeal against any order, decision or direction of the court not falling within this section, see s 63 of the District Court Ordinance (Cap 336) and the related legal principles as set out in Ma Bik Yung v Ko Chuen (HCMP 4303/1999, 8 September 1999, CA, unreported, [1999] HKCU 1099). See also: Chan Wai Yin acting for and on behalf of herself and the eligible members of the family of Yu Tak Tim and as Personal Representative of the Estate of Yu Tak Tim, deceased v Wong Sau Ping Ada trading as Evergreen Transportation Co & Anor (DCEC 97/2004, 24 November 2006, DC, unreported, [2006] HKCU 1945). In this judgment, District Judge Marlene Ng refused an application for the ‘re-opening’ of an order but granted the applicant a general leave to appeal after reviewing a number of authorities and the related legal principles.
See [18.06] above.
[23.04] Subs (4)
In considering an application for an extension of time to appeal, the court is not concerned with the merits of the case or the probability of success or otherwise: see Kam Ming v Leung Ping t/a Fook Kwong Machine Shop & Ors [1963] HKLR 220, [1963] HKCU 37.
[23.05] Definitions
For ‘Court’, see s 3 above and notes thereto.
(1) Where any person (in this section referred to as the principal contractor), in the course of or for the purposes of his trade or business, contracts with a sub-contractor for the execution by or under the sub-contractor of the whole or any part of any work undertaken by the principal contractor, the principal contractor shall be liable to pay to any employee employed by that sub-contractor or by any other sub-contractor in the execution of the work any compensation under this Ordinance which the principal contractor would have been liable to pay if that employee had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal contractor, then, in the application of this Ordinance, references to the principal contractor shall be substituted for references to the employer, except that the amount of any compensation calculated by reference to earnings shall be calculated by reference to the earnings of the employee under the employer by whom he is immediately employed.
(1A) Where a principal contractor is liable to pay compensation under this section, he shall be liable for the offences under sections 6C(15), 6D(10), 6E(16), 10(10), 16A(12) and 16I(6) as if he were an employer.
(Added 52 of 2000 s 13)
(2) Where the principal contractor is liable to pay compensation under this section, he shall be entitled to be indemnified by any person who would have been liable to pay compensation to the employee independently of this section.
(3) An employee employed by a sub-contractor may issue a written request to the sub-contractor to supply to the employee the name and address of the principal contractor.
(4) A sub-contractor shall within 7 days after the date of issue of a written request under subsection (3)-
(a) supply to the employee the name and address of the principal contractor; and
(b) deliver a copy of the written request to the principal contractor.
(5) A sub-contractor who without reasonable excuse fails to comply with subsection (4) commits an offence and is liable to a fine at level 5.
(Amended 63 of 1992 s 11; 36 of 1996 s 18)
(6) An employee shall, before making any claim or application by virtue of this section against a principal contractor, serve on the principal contractor a notice in writing stating-
(a) the name and address of the employee;
(b) the name and address of the sub-contractor by whom he is employed;
(c) the address of the place of employment of the employee;
(d) the particulars of the accident and the injury suffered; and
(e) the amount of compensation to be claimed.
(7) Where a claim or application is made by virtue of this section against a principal contractor, the principal contractor shall give notice thereof to the sub-contractor specified in the notice served on the principal contractor under subsection (6), who shall thereupon be entitled to intervene in any application made against the principal contractor.
(8) Nothing in this section shall be construed as preventing an employee recovering compensation under this Ordinance from a sub-contractor instead of the principal contractor.
(Replaced 76 of 1982 s 19)
[24.01] Enactment history
This section was substituted pursuant to s 19 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
Subsections (1A) was added pursuant to s 13 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.
The words within square brackets in subs (5) were substituted pursuant to s 18 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.
[24.02] England
This section is to the same effect as s 6 of the Workmen’s Compensation Act 1925.
[24.03] General note
This section confers upon an employee an additional remedy which does not restrict his remedy under s 5. The combined effect of ss 5 and 24 is that both the employer and the principal contractor are severally liable to pay compensation to the employee for the same injury. The employee is therefore entitled to join both the employer and the principal contractor in the same proceedings and to claim compensation against both of them to the point of adjudication and award, after which he is entitled to recover the full amount of compensation from one or the other of them: see Hip Hing Construction Co Ltd v Wong Leung Tak [1990] 2 HKC 119, [1991] 2 HKLR 345.
This section, however, does not give an employee a right to claim anything other than compensation (as defined in s 3) against a principal contractor. An employee cannot rely on this section to make the principal contractor liable to him in an ordinary action for damages as if he had been directly employed by the employer: see Tugu Insurance Co Ltd v Woo Kin Wah [1991] 1 HKC 211; sub nom Woo Kin Wah v Somec (HK) Ltd & Anor [1993] 1 HKLR 300.
A proper construction of this section points to the existence of an end-user of the work, or employer, who employed a contractor to do the work. When this contractor contracted out the work to another contractor – the former contractor becomes the principal contractor and the latter is considered as the sub-contractor. This section is not intended to extend the liability to a person who employed an independent contractor to do the work he has not obtained from another, but of which he himself was the end-user: see So Yuk Kam v Lau Kam Yuen t/a Ngai Shing Construction & Anor (DCEC 30/2008, 19 December 2008, DC, unreported).
In any application to join a party such as a principal contractor, the approach adopted would be similar to an application to strike out the proceedings. In other words, the applicant should be entitled to pursue his claim, however implausible or improbable his chances of success, unless the party resisting the application could demonstrate shortly and conclusively that the claim is bound to fail: see Poon Hau Kei v Ho Shui Keung & Anor [1999] 2 HKC 242 per Rogers JA.
[24.04] Subs (1)
This subsection would appear to apply only to a situation where compensation is claimed from the principal contractor, and not where compensation is claimed from the principal contractor’s insurance company: see Leung Chack v Asia Insurance Co Ltd [1991] 2 HKLR 496(CA). It should be noted that in the Leung Chack case, the employee obtained judgment against his employer and against the principal contractor under this subsection, but that judgment was not satisfied, and therefore the employee sought satisfaction of the judgment from the principal contractor’s insurer. That said, the position would probably have been the same even if the employee had not yet obtained judgment against the principal contractor. See also the dissenting judgment of Penlington JA in that case.
[24.05] For the execution ··· of any work undertaken
In Hip Hing Construction Co Ltd v Wong Leung Tak [1990] 2 HKC 119, [1991] 2 HKLR 345 at 356, it was held that it is ultimately a question of degree and remoteness to determine whether in any given set of circumstances a principal contractor has undertaken the execution of the work in question, and that the word ‘work’ is to be given its ordinary meaning, bearing in mind that the Ordinance is designed for the protection of employees.
The words ‘work undertaken’ mean work which is the subject of a contract to be performed either personally or vicariously. In Poon Hau Kei v Hsin Cheong Construction Co Ltd Taylor Woodrow International Ltd Joint Venture [2000] 1 HKC 342(CFA), a management contractor which had undertaken to secure the carrying out of construction work, but had not undertaken to perform the work itself, failed ultimately on an argument that it was not the principal contractor. The Court of Final Appeal considered that the management contractor had made itself contractually liable as principal for non-performance by the work contractors although the work was actually done by these work contractors. This made the management contractor a principal contractor who should be liable within the meaning of this section.
[24.06] Undertaken by the principal contractor
This phrase is qualified by the words ‘in the course of or for the purposes of his trade or business’: see Skates v Jones & Co [1910] 2 KB 903, [1908-10] All ER Rep Ext 1057, applied in Chow Mui v Chow Cheuk Chung [1970] HKDCLR 94. See also Poon Hau Kei v Hsin Cheong Construction Co Ltd Taylor Woodrow International Ltd Joint Venture [2000] 1 HKC 342(CFA).
[24.07] Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[24.08] Subs (2)
The entitlement to indemnity conferred on the principal contractor under this subsection is absolute and not defeasible by the employer on the ground of negligence or breach of statutory duty on the part of the principal contractor. The scheme of the Ordinance is to give the employee separate right to relief under s 25(1)(b) if the principal contractor’s negligence has caused the injury to the employee: see Hip Hing Construction Co Ltd v Wong Leung Tak [1990] 2 HKC 119, [1991] 2 HKLR 345 at 363.
The court has jurisdiction to entertain a claim for indemnity under this subsection even where the amount of claim exceeds the normal jurisdictional limit: see Cheung Hung Yuk v Chiu Chan & Ors (DCEC 167/84, 26 April 1985, DC, unreported).
An employer is not precluded from making his claim against the principal contractor under s 25(1)(b) to recover any sum which the employer has become liable to pay by way of indemnity under s 24. However, he cannot make that claim in the compensation proceedings by way of counterclaim to the principal contractor’s claim for indemnity under this subsection. He has to bring a separate action in the High Court: see Hip Hing Construction Co Ltd v Wong Leung Tak (above) at 366-7.
The court may be persuaded to order a stay of execution in respect of an indemnity made in favour of the principal contractor pending the determination of the employer’s claim under s 25(1)(b): see Hip Hing Construction Co Ltd v Wong Leung Tak (above) and Azhar Hussain v Fastcut Services Ltd & Anor (DCEC 917/2003, 21 March 2005, DC, unreported, [2005] HKCU 367) c/f Tsui Tsun Wei v Lai Wai Man t/a Wai Yip Engineering Co & Ors (DCEC 927/2004, 14 October 2005, DC, unreported, [2005] HKCU 1409). A stay of the indemnity order may also be granted until determination of a pending insurance policy dispute between an employer and an insurer who has assumed conduct of defence on behalf of the principal contractor: see Li Yuen Yau acting for herself and other members of the family, namely Tso Hon Ying and Tso Ching Yi, of Tso Pak Kuen, deceased v Viatech Engineering Ltd & Anor (DCEC 153-4 & 241-6/2004, 6 August 2007, DC, unreported).
[24.09] Liable
The entitlement to indemnity arises once the principal contractor becomes liable to pay compensation. Therefore he does not have to incur a judgment debt in order to claim an indemnity: see Cheung Hung Yuk v Chiu Chan & Ors (DCEC 167/84, 26 April 1985, DC, unreported).
[24.10] Shall be entitled to be indemnified
This includes an indemnity for costs: see Wah Kwong Construction Material v Wong Man Yip [1994] 1 HKC 601, followed by Mak Wing Fai v Chevalier (HK) Ltd [1999] 3 HKC 677 and Tsui Tsun Wei v Lai Wai Man t/a Wai Yip Engineering Co & Ors (above). The principal contractor’s right of recovery against the employer will not be defeated if he pays compensation to the injured employee whether as the result of an order or as a consequence of a compromise to which the employer has agreed. If the principal contractor is not called on to pay compensation, by reason of the fact that the employer has done so himself, the principal contractor shall still be entitled to recover its costs of application: see Mak Wing Fai v Chevalier (HK) Ltd above per Godfrey JA.
Moreover, a claim made against an employer would not be limited by the terms of the notice of indemnity which may not even necessarily be served, although it is perhaps good practice to do so. This is because a principal contractor may simply rely on the provisions of s 24(2) but not the notice of indemnity: see Mak Wing Fai v Chevalier (HK) Ltd above per Mortimer VP.
[24.11] Subs (5): Reasonable excuse
See [14.09] above.
[24.12] Offence
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to includes any crime and any contravention or other breach of, or failure to comply with, any provision of any law, for which a penalty is provided.
[24.13] At level 5
As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).
[24.14] Subss (6) and (7)
These two and the relevant provisions of the ECR were discussed in Hip Hing Construction Co Ltd v Wong Leung Tak [1990] 2 HKC 119, [1991] 2 HKLR 345 at 363-5.
In Mohammad Munir v Yau Kei Tak & Anor (DCEC 251/2006, 26 March 2007, DC, unreported, [2007] HKCU 529), it was held that subs (6) must be strictly complied with for a claim against a principal contractor to become maintainable. The reason being that an employee has no right against the principal contractor save where this Ordinance so provides. Accordingly, he must comply with the relevant statutory requirement to take the benefit conferred by the statute. Absent the discretionary power given to the court under ss 14, 16B and/or 18, there is no room for the court to exercise its discretion to condone a failure to comply with the requirement of a notice to the principal contractor under this subsection.
However, Deputy Judge Abu B. Bin Wahab came to a different interpretation of the provisions in subs (6) in Yu Wing Sun v Ho Wai Leung t/a Hip Wo Engineering Co & Anor (DCEC 1242/2005, 15 June 2007, DC, unreported). In that case, it was held that a claim made against a principal contractor could still succeed in the absence of notice under subs (6) on the basis that the principal contractor was well aware of the accident; and no prejudice was caused to the principal contractor by the want of (or any defect or irregularity in) a notice.
[24.15] Subs (6)(d): Accident
See [5.06] above.
[24.16] Injury
See [5.05] above.
[24.17] Definitions
For ‘employee’, see s 2 above; for ‘compensation’, ‘earnings’, ‘principal contractor’ and ‘sub-contractor’, see s 3 above and notes thereto.
(1) Where the injury in respect of which compensation is payable was caused in circumstances creating a legal liability in some person other than the employer (in this section referred to as the third party) to pay damages to the employee in respect thereof-
(a) the employee may both claim compensation under this Ordinance and take proceedings against the third party in the Court of First Instance or, subject to the provisions of the District Court Ordinance (Cap 336) relating to the limits of jurisdiction, in the District Court to recover damages:
(Amended 25 of 1998 s 2)
Provided that where any such proceedings are instituted the court in which the action is tried shall, in awarding damages, have regard to the amount which, by virtue of paragraph (b), has become or is likely to become payable to the employer by the third party; and
(b) the employer by whom compensation is payable, and any person who may be called upon to pay an indemnity under section 24 in the case of an employee employed by a sub-contractor, shall have a right of action against the third party for the recovery of any sum which he is obliged to pay as a result of the accident, whether by way of compensation or indemnity or by virtue of any agreement made with the employee prior to the accident, and may exercise such right either by joining in an action begun by the employee against the third party or by instituting separate proceedings:
Provided that the amount recoverable under this paragraph shall not exceed the amount of damages, if any, which in the opinion of the court would have been awarded to the employee but for the provisions of this Ordinance.
(2) An employee shall, before instituting proceedings for damages under subsection (1), in writing notify the employer of his intention to do so and shall likewise notify the employer if he decides to abandon such proceedings or to relinquish or settle his claim for damages, and shall in connection with any such notification furnish such particulars as the employer may require.
(3) If an employee who has-
(a) failed to notify the employer of his intention to institute proceedings under subsection (1); or
(b) in connection with any such notification, failed to furnish such particulars as the employer may require, recovers damages against a third party in any such proceedings, then-
(i) where the amount of damages recovered is equal to or greater than the amount of compensation which would, but for this subsection, be payable, no compensation shall be payable; or
(ii) where the amount of damages recovered is less than the amount of compensation which would, but for this subsection, be payable, the amount of compensation payable shall be a sum equal to the difference between the amount of damages recovered and the amount of compensation which would, but for this subsection, be payable.
(4) In any proceedings to which subsection (3) applies the Court may, where any sum of compensation referred to in that subsection has already been paid, make such order with respect to the repayment of such sum or any part thereof as is necessary to give effect to that subsection.
(5) Notwithstanding anything to the contrary in any other enactment, where written notice of intention to institute proceedings under subsection (1)(b) has been given by an employer, or by any person who may be called upon to pay an indemnity under section 24, to a third party within 12 months of the receipt by the employer or such person of due notice of the accident concerned, no such proceedings shall lapse, or be barred, under any enactment relating to the limitation of actions, until after the expiry of a period of 3 months from the date upon which a claim for compensation in respect of such accident has been-
(a) determined by certificate under section 16A; or
(aa) settled by agreement under section 16CA; or
(Added 64 of 1992 s 6)
(aaa) determined by a Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case; or
(Added 52 of 2000 s 14)
(b) (Repealed 36 of 1996 s 19)
(c) finally determined by a court,
as the case may be.
(6) Where notice is given to the employer under subsection (2) and the provisions of section 24 apply, the employer shall give notice thereof to any person who may be called upon to pay an indemnity under that section.
(Replaced 76 of 1982 s 19)
[25.01] Enactment history
This section was substituted pursuant to s 19 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
The words within square brackets in subs (1) were amended pursuant to s 2 of the Adaptation of Laws (Courts and Tribunals) Ordinance 1998 (25 of 1998), commencing 1 July 1997.
Subsection (5)(aa) was added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1992 (64 of 1992), commencing 10 July 1992.
Subsection 5(aaa) was added pursuant to s 14 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.
Subsection (5)(b) was repealed pursuant to s 19 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.
[25.02] England
This section is based on s 30 of the Workmen’s Compensation Act 1925.
[25.03] General note
Under this section, an employer has a right of action against the relevant tortfeasors/third parties for recovery of employees’ compensation which he is obliged to pay as a result of an accident which caused injuries to his employees. The sum recoverable includes: (1) the employees’ compensation paid to the employee; (2) the employees’ costs; as well as (3) the costs incurred by the employer himself in the employees’ compensation proceedings. See also the notes below.
The employer who seeks to claim damages must take proceedings against the third party in the High Court or District Court whichever is appropriate. This section does not permit an employer to pursue his claim against the third party by joining him in the employees’ compensation proceedings. In other words, separate proceedings have to be instituted by the employer. See the notes below and also Ng Mei Ho & Ors v Leung Sil [1962] DCLR 52; Patricia Aunette Sheppard an infant suing by her grandmother and next friend Beryl K Sheppard v Richstone Industries Co Ltd & Ors (DCEC 113/1984, 30 April 1985, DC, unreported); Lai Cheung Mui v Wong Wai Leung & Anor [1985] 2 HKC 87; Hip Hing Construction Co Ltd v Wong Leung Tak & Anor [1990] 2 HKC 119; Azhar Hussain v Fastcut Services Ltd & Anor (DCEC 917/2003, 21 March 2005, DC, unreported) and Mohammad Safdar v Chesco Engineering Ltd [2008] 5 HKLRD 725.
Nevertheless, the employer’s right to seek recovery against the third party is limited by s 27 under which the damages recoverable must be reduced in proportion to the percentage of contributory negligence on the part of the injured employee. Section 27, however, does not mention that the costs incurred by the employer should be proportionately reduced by the percentage of contributory negligence.
In Wong Yat Chiu & Anor v Chan Kwok Wa & Ors [1999] 2 HKLRD 849, [1999] HKCU 577, High Court Deputy Judge McMahon suggested (obiter) that an employer who was contributorily negligent in respect of an accident could not proceed against a third party also liable to the injured worker and seek an indemnity for compensation paid under this section. This judgment was followed by High Court Deputy Judge Day in Rai Bina v Pacific Crown Engineering Ltd & Ors (HCPI 338/2001, 26 February 2003, CFI, unreported, [2003] HKCU 197) without the benefit of Counsel’s argument. Wong Yat Chiu (above), had previously caused controversy among practitioners: see Pirie N, “Recoverability of Paid Employees’ Compensation”, Hong Kong Lawyer, October 2000, p 51; cf Sakhrani A & Lee C, “Employees’ Compensation Ordinance - Another View”, Hong Kong Lawyer, December 2000, p 33.
In Yardway Motors Ltd v Tam Siu Lun [2005] 2 HKLRD 118, [2005] HKCU 232, the majority of the Court of Appeal held that this section did not allow a claim for contribution by an employer who was himself partially responsible for the accident. However, as unanimously agreed by the Court of Appeal, this does not prevent the employer from seeking contribution against a third party tortfeasor ‘liable in respect of the same damage’ with reference to the provisions of the Civil Liability (Contribution) Ordinance (Cap 377).
[25.04] Subs (1)
The starting point of this section is to give the employee the right to claim damages at common law against a third party in addition to claiming compensation under this Ordinance from his employer or from the principal contractor under s 24. Subsection (1)(b) then allows the employer to recover what he may be ordered to pay in employees’ compensation proceedings from the third party by suing the third party for an indemnity in a separate common law action or by joining in the injured employee’s common law action against the third party. This section does not have the effect of permitting the employer starting a separate employees’ compensation application against a third party to claim an indemnity against that third party. Where necessary, the proper course to adopt is for the employer to institute third party proceedings in the employees’ compensation application in which he is sued as employer and to claim his indemnity in that application: see Full Rich Engineering Co Ltd v Chan Wai Leung & Anor (DCEC 786/2001, 10 December 2001, DC, unreported). See also [25.12] below.
[25.05] Subs (1): Injury
See [5.05] above.
[25.06] Caused
See [5.09] above.
The effect of this subsection is that an employee who seeks to claim damages against a third party should take proceedings against that third party in the High Court or District Court whichever is appropriate. There can be no question of the employee’s claim for damages being entertained in the compensation proceedings. The two sets of proceedings are separate and distinct, even if the amount of claim for damages is within the civil jurisdiction of the District Court: see Hip Hing Construction Co Ltd v Wong Leung Tak [1990] 2 HKC 119, [1991] 2 HKLR 345 at 366.
[25.08] District Court
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the District Court of the Hong Kong Special Administrative Region.
[25.09] Subs (1)(b): Any sum
It has been held that the complete indemnity, expressed by the term ‘any sum’, is not limited by the phrase which follows: ‘whether by way of compensation or indemnity’, because such a limitation was not intended by the legislature and would also lead to the anomalous result that a person called upon to indemnify under s 24(2) would be required to indemnify in full, but he would not then be able to recover that full amount against a tortfeasor under s 25(1)(b): see Wah Kwong Construction Material v Wong Man Yip [1994] 1 HKC 601.
[25.10] Obliged to pay
The sums which the employer is ‘obliged to pay’ include the employee’s costs as well as the costs incurred by the employer himself in the compensation proceedings: see Wah Kwong Construction Material v Wong Man Yip [1994] 2 HKC 214. In that case, the court also stated (obiter) that this construction does not make the indemnity against a tortfeasor open-ended, as such indemnity cannot exceed the amount which the employer has been ‘obliged to pay’. Nor can the tortfeasor be held liable for more than what the employee would have recovered from the tortfeasor directly.
[25.11] Accident
See [5.06] above.
[25.12] Instituting separate proceedings
This term can only mean a separate action in the High Court or the District Court: see Lai Cheung Mui v Wong Wai Leung [1985] 2 HKC 87; Hip Hing Construction Co Ltd v Wong Leung Tak [1990] 2 HKC 119, [1991] 2 HKLR 345, at 366-7. See also [25.04] above.
[25.13] Subs (3): Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[25.14] Subs (5): No such proceedings shall lapse, or be barred, under any enactment relating to the limitation of actions
If written notice of intention to institute proceedings has been given by an employer to a third party within 12 months of the receipt by the employer of due notice of the accident concerned, no action under this section shall lapse or be barred, under any enactment relating to the limitation of actions, until after the expiry of 3 months from the date upon which a claim for compensation in respect of such accident has been settled by agreement or determined by the court.
If no notice is given, time begins to run from the date of the accident. In Tai Hing (a firm) & Anor v Chan Yuk Wan & Anor [1997] 3 HKC 155, [1997] HKLRD 1148, the court made it clear that a claim for the recovery of employees’ compensation under this section was a claim for indemnity but not a claim in tort. Accordingly, the period of limitation is one of six years from the date on which the employer is liable to pay compensation (which would usually be the date of accident). An action for recovery is liable to be struck out if it is commenced out of time and becomes statute barred.
However, it should also be noted that apart from s 25(1)(b), an employer may have an alternative cause of action by virtue of the Civil Liability (Contribution) Ordinance (Cap 377), and the limitation period of bringing such an action is prescribed by the Limitation Ordinance (Cap 347) s 6, which is 2 years from the date on which the right accrued. For details, see the Civil Liability (Contribution) Ordinance (Cap 377) ss 2 and 3; see also the Annotated Ordinances of Hong Kong, Civil Liability (Contribution) Ordinance (Cap 377).
[25.15] Definitions
For ‘employee’, see s 2 above; for ‘Certificate of Compensation Assessment for Fatal case’, ‘compensation’, ‘Court’, ‘damages’, ‘employer’ ‘Review Certificate of Compensation Assessment for Fatal case’ and ‘sub-contractor’ and ‘total incapacity’, see s 3 above and notes thereto.
(1) Where any injury is caused to an employee by the negligence, breach of statutory duty or other wrongful act or omission of the employer, or of any person for whose act or default the employer is responsible, nothing in this Ordinance shall limit or in any way affect any civil liability of the employer independently of this Ordinance:
(Amended 32 of 2000 s 48)
Provided that any damages awarded against an employer in an action at common law or under any enactment in respect of any such negligence, breach of statutory duty, wrongful act or omission, shall be reduced by the value, as decided by the Court of First Instance or the District Court, as the case may be, of any compensation which has been paid or is payable under the provisions of this Ordinance in respect of the injury sustained by the employee.
(Replaced 55 of 1969 s 20; Amended 44 of 1980 s 15; 76 of 1982 s 20; 25 of 1998 s 2; 52 of 2000 s 15)
(2) If, within the time limited for taking proceedings under this Ordinance by section 14(1), an action is brought to recover damages independently of this Ordinance for injury caused by an accident, and it is determined in such action or on appeal that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Ordinance, the action shall be dismissed; but the court in which the action is tried, or, if the determination is the determination (on an appeal by either party) by an appellate tribunal, that tribunal, shall, if the plaintiff so choose, proceed to assess such compensation, but may deduct from such compensation all or part of the costs, which, in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Ordinance. In any proceeding under this subsection, when a court or appellate tribunal assesses the compensation, it shall give a certificate of the compensation it has awarded and the directions it has given as to the deduction of costs, and such certificate shall have the force and effect of an order of the District Court under this Ordinance:
Provided that an appellate tribunal may, instead of itself assessing such compensation, remit the case to the District Court for the assessment of the compensation, and in such case may order the District Court to deduct from the amount of compensation assessed by it all or part of such costs as aforesaid.
(Amended 76 of 1982 s 20)
(3) Where, within the time limited for taking proceedings under this Ordinance by section 14(1), an action is brought to recover damages independently of this Ordinance in respect of an injury giving rise to a claim for compensation under this Ordinance, and it is determined in that action that-
(a) damages are recoverable independently of this Ordinance subject to such reduction as is mentioned in section 21(1) of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23); and
(b) the employer would have been liable to pay compensation under this Ordinance,
subsection (2) shall apply in all respects as if the action had been dismissed, and, if the plaintiff chooses to have compensation assessed and awarded in accordance with the said subsection (2), no damages shall be recoverable in the said action.(4) Without prejudice to section 21(3), where a court or appellate tribunal assesses compensation in accordance with subsection (2) it may include in the sum awarded interest at such rate as it thinks fit on the whole or any part of such sum for the whole or any part of the period between the date of the accident and the date of the certificate given under that subsection.
(Added 76 of 1982 s 20)
[cf. 1925 c. 84 s 29 U.K.]
[26.01] Enactment history
The words ‘against an employer’ were amended pursuant to s 15 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.
The word ‘way’ within square brackets in subs (1) was amended pursuant to s 48 of the Statute Law (Miscellaneous Provisions) Ordinance 2000 (32 of 2000).
The words ‘Court of First Instance’ within square brackets in subs (1) were amended pursuant to s 2 of the Adaptation of Laws (Courts and Tribunal) Ordinance 1998 (25 of 1998), commencing 1 July 1997.
The words within square brackets in subss (1)-(2) were substituted pursuant to s 20 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
In the Bilingual Laws Information System, the words ‘the determination’ immediately after ‘if the determination is’ in subs (2) are missing.
Subsection (4) was added pursuant to s 20 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
This section is based on s 29 of the Workmen’s Compensation Act 1925.
[26.03] General note
This section was intended to enable an employee to seek common law damages independent of this Ordinance. Where any injury is caused to an employee by negligence, breach of statutory duty or other wrongful act or omission of the employer, any damages awarded against the employer in an action at common law shall be reduced by the value of any compensation which has been paid or is payable under the Ordinance in respect of the injury sustained by the employee.
It must, however, be noted that this section could not assist a plaintiff in his common law claim where identical issues had been raised in earlier employees’ compensation proceedings: see Wong Wang Sum v Lee Kam Engineering Co (a firm) & Anor [1996] 3 HKC 627. Practitioners should be cautious of the operation of res judicata or ‘issue estoppel’ when they are dealing with employees’ compensation claims where common law actions would likely follow.
If an injured employee is awarded damages in the common law action prior to the conclusion of his employees’ compensation proceedings, the Court may dismiss his claim under this Ordinance if it is satisfied that the common law awards have already covered the awards payable to him by way of employees’ compensation: see Gurung Dunga Bahadur v Kam Tai Construction Co Ltd (錦泰建築工程有限公司) & Anor (DCEC 224/2002, 12 October 2009, DC, unreported).
[26.04] Injury
See [5.05] above.
[26.05] Caused
See [5.09] above.
[26.06] Subs (1)
It should be noted that, in selecting the forum in which to issue common law proceedings, it is necessary for the plaintiff’s solicitors to consider the total amount of damages which the plaintiff might recover before, and not after, the employees’ compensation award is deducted. If that gross figure is estimated to be over HK$600,000, the solicitors are duty bound to issue proceedings in the High Court: see Lam Sui Wo v Leung Kam Tin [1990] 1 HKC 456.
However, if the plaintiff has knowledge of the award of employees’ compensation prior to the commencement of common law proceedings, in exercising his choice of forum to bring a common law claim he should pay regard to the possible net award of personal injury damages after taking into account of the employees’ compensation award. See Yuen Yiu Kwong v Chan Kwok Chuen & Ors [2003] 2 HKC 617, [2003] 2 HKLRD 70 in which Lam Sui Wo v Leung Kam Tin, above, was not followed.
The object of this subsection is not to avoid double payment, but double recovery. The subsection only requires a deduction to be made where damages and compensation under this Ordinance have fallen into the same hands: see Lai Tat Wah v Franki Contractors Ltd [1993] 1 HKLR 1.
[26.07] Subs (2): District Court
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the District Court of the Hong Kong Special Administrative Region.
[26.08] Subs (4): Accident
See [5.06] above.
[26.09] Definitions
For ‘employee’, see s 2 above; for ‘compensation’, ‘Court’, ‘damages’ and ‘employer’, see s 36A above and notes thereto.
Where an employee or his legal personal representative or member of his family has recovered compensation under this Ordinance or any sum by virtue of an agreement referred to in section 25(1)(b) in respect of an injury caused under circumstances which would give a right to recover reduced damages in respect thereof by virtue of section 21 of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23), from some person other than the employer (hereinafter referred to as the third party), any right conferred by section 25 of this Ordinance on the person by whom the compensation or sum was paid, or on any person called on to pay an indemnity under section 24 of this Ordinance, to be indemnified by the third party shall be limited to a right to be indemnified in respect of such part only of the compensation, sum or indemnity paid or payable as bears to the total compensation, sum or indemnity so paid or payable the same proportion as the said reduced damages bear to the total damages which would have been recoverable if the employee had not been at fault.
(Replaced 76 of 1982 s 21; Amended 52 of 2000 s 16)
[cf. 1945 c. 28 s 2(2) U.K.]
[27.01] Enactment history
This section was substituted pursuant to s 21 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
The words within square brackets were amended pursuant to s 16 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.
[27.02] England
This section is to the same effect as s 2(2) of the Law Reform (Contributory Negligence) Act 1945.
[27.03] Injury
See [5.05] above.
[27.04] Caused
See [5.09] above.
[27.05] Definitions
For ‘employee’, see s 2 above; for ‘compensation’, ‘damages’, ‘employer’ and ‘member of the family’, see s 3 above and notes thereto.
[28.01] General note
This section, which made provisions as to cases of bankruptcy of the employer, was repealed by the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993. The repeal is consequential to the addition of s 44(3) under the same (Amendment) Ordinance, which allows a direct claim against an insurer before starting or concluding proceedings against the employer. See the notes to s 44 below.
(1) This Ordinance shall apply to masters, and seafarers who are employees within the meaning of this Ordinance and are members of the crew of a Hong Kong ship, subject to the following modifications-
(Amended 44 of 1980 s 15; 44 of 1995 s 143)
(a) the notice of accident and the claim for compensation may, except where the person injured is the master, be given to the master of the ship as if he were the employer, but where the accident happened and the incapacity commenced on board the ship it shall not be necessary for any seafarer to give notice of the accident;
(Amended 44 of 1995 s 143)
(b) in the case of the death of the master or seafarer, the application for compensation shall be made within 2 years after the occurrence of the death or, where the ship has been or is deemed to have been lost with all hands, within 2 years of the date on which the ship was, or is deemed to have been, so lost;
(Amended 44 of 1995 s 143)
(c) whenever in the course of any legal proceeding under this Ordinance the testimony of any witness is required in relation to the subject matter of the proceeding, then, upon due proof that the witness cannot be found in Hong Kong, any deposition which the witness may have previously made on oath in relation to the same subject matter before any justice or magistrate in Her Majesty’s dominions or in any place where Her Majesty exercises jurisdiction or before any British Consular Officer elsewhere and which, if the proceeding had been under the Merchant Shipping Act 1894 (1894 c 60 UK), would have been admissible in such proceeding by virtue of sections 691 and 695 of that Act, shall be admissible in evidence subject to similar conditions as are laid down in the said sections 691 and 695;
(d) in case of the death of a master or seafarer, no reimbursement of the reasonable expenses of the funeral shall be payable, if the owner of the ship is, under any law in force for the time being in Hong Kong relating to merchant shipping, liable to pay the expenses of burial.
(Amended 76 of 1982 ss 22 & 37; 44 of 1995 s 143; 52 of 2000 s 17)
(2) This Ordinance shall also apply to any person, not being a master or seafarer, employed or engaged in any capacity on board and on or about the business of a Hong Kong ship and if he is otherwise an employee within the meaning of this Ordinance.
(Amended 44 of 1980 s 15; 44 of 1995 s 143)
(3)
(Repealed 76 of 1982 s 22)
(4) In this section-
‘Hong Kong ship’ (香港船舶) includes any ship or vessel registered or licensed in Hong Kong;
(Amended 23 of 1998 s 2)
‘ship’ (船舶), ‘vessel’ (船隻), ‘seafarer’ (海員) and ‘master’ (船長) shall have the respective meanings ascribed to them by the Merchant Shipping (Seafarers) Ordinance (Cap 478) or the Shipping and Port Control Ordinance (Cap 313), as the case may require.
(Replaced 44 of 1995 s 143)
Note:
# Please also see following-
(a) in relation to the Merchant Shipping Act 1894, Part 3 of Schedule 5 to Cap 415 and s 1 of Schedule 2 to Cap 508;
(b) in relation to the Merchant Shipping Acts 1894 to 1979, s 117 of Cap 281, s 103 of Cap 415 and s 142 of Cap 478.
[29.01] Enactment history
In subs (1), the words ‘seaman and apprentices to the sea service’ were replaced with the words ‘and seafarers’, ‘seaman’ (para (a)) replaced by ‘seafarer’, and ‘seaman or apprentice’ (paras (b) and (d)) replaced by ‘or seafarer’, pursuant to s 143(1) of the Merchant Shipping (Seafarers) Ordinance (Cap 478), commencing 1 September 1996.
The words within the second set of square brackets in para (d) of subs (1) were amended pursuant to s 17 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.
The words ‘Merchant Shipping Act 1894 (1894 c 60 UK)’ in the definition paragraph were replaced with ‘Merchant Shipping (Seafarers) Ordinance (Cap 478) or the Shipping and Port Control Ordinance (Cap 313) as the case may require’, pursuant to s 143(1) of the Merchant Shipping (Seafarers) Ordinance (Cap 478).
Subsection (3) was repealed by s 22 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
The definition of ‘Hong Kong’ in subs (4) was amended pursuant to s 2 of the Adaptation of Laws (References to Foreign Country, etc) Ordinance 1998 (23 of 1998), commencing 1 July 1997.
[29.02] England
The wording of this section is based on s 7 of the Workmen’s Compensation Act 1906 and s 35 of the Workmen’s Compensation Act 1925.
[29.03] General note
For a general discussion of this section, see Ma Kit Ching Veronica v A-G [1983] 1 HKC 470 at 472-5.
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Hong Kong Special Administrative Region.
[29.05] Subs (1)(a): Accident
See [5.06] above.
[29.06] Master
This is defined in s 742 of the Merchant Shipping Act 1894 to include every person (except a pilot) having command or charge of any ship.
[29.07] Ship
This is defined in s 742 of the Merchant Shipping Act 1894 to include every description of vessel used in navigation not propelled by oars.
See also the definition in s 2 of the Merchant Shipping (Seafarers) Ordinance (Cap 478) and s 2 of the Shipping and Port Control Ordinance (Cap 313).
[29.08] Subs (1)(b): Seafarer
See the definition of ‘seafarer’ in s 2 of the Merchant Shipping (Seafarers) Ordinance (Cap 478) which means any person who is, or is to be, employed in a ship in any capacity other than (i) that of master; (ii) that of officer; (iii) that of ship’s medical practitioner; or (iv) that which the Seafarers’ Authority, after consultation with the Seafarers’Advisory Board··· specifies in writing to the Superintendent of the Mercantile Marine Office.
[29.09] Subs (1)(c): Oath
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include, in the case of persons allowed or required by law to affirm instead of swearing, affirmation; and ‘swear’ in the like case includes affirm.
On oaths generally, see Oaths and Declarations Ordinance (Cap 11).
[29.10] Justice
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean a person appointed to be a justice of the peace under the Justices of the Peace Ordinance (Cap 510).
[29.11] Magistrate
This is defined ins 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean any person appointed to be a permanent or special magistrate under the Magistrates Ordinance (Cap 227).
[29.12] Vessel
This is defined in s 742 of the Merchant Shipping Act 1894 to include any ship or boat, or any other description of vessel used in navigation.
See also the definition in s 2 of the Shipping and Port Control Ordinance (Cap 313).
This is defined in s 341 of the Companies Ordinance (Cap 32) to include a share transfer or share registration office and any place used for the manufacture or warehousing of any goods, but does not include a place not used by the company to transact any business which creates legal obligations.
[29.14] Definitions
For ‘employee[s]’, see s 2 above; for ‘compensation’, ‘dependants’ and ‘employer’, see s 3 above and notes thereto. As to the references to ‘Her Majesty’, see s 2A(3) and Sch 8 of the Interpretation and General Clauses Ordinance (Cap 1).
(1) If the employer submits or has agreed to submit to the jurisdiction of the Court, then, notwithstanding that the accident causing the personal injury occurred outside Hong Kong, this Ordinance shall apply, subject to the modifications in subsections (2) and (3) and section 30A, to seafarers who are employees within the meaning of this Ordinance and, having been recruited or engaged in Hong Kong, are members of the crew of a ship which is not a Hong Kong ship as defined in section 29(4).
(Amended 44 of 1980 s 15; 59 of 1988 s 9; 44 of 1995 s 143; 23 of 1998 s 2)
(2) The notice of accident and the claim for compensation may be given to the master of the ship as if he were the employer, but where the accident occurred and the incapacity commenced on board the ship it shall not be necessary to give any notice of the accident.
(Replaced 76 of 1982 s 23)
(3) In the case of the death of a seafarer to whom this section applies, the application for compensation shall be made within 2 years after the death occurred or, where the ship has been or is deemed to have been lost with all hands, within 2 years after the date on which the ship was, or is deemed to have been, so lost.
(Amended 44 of 1995 s 143)
(4) (Repealed 59 of 1988 s 9)
(5) In this section-‘seafarer’ (海員) has the meaning that it has for the purposes of the Merchant Shipping (Seafarers) Ordinance (Cap 478).
(Replaced 44 of 1995 s 143)
(Added 55 of 1969 s 21A; Amended 23 of 1998 s 2)
The words within the first set of square brackets in subs (1) were substituted pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 6 October 1988.
The words within the third set of square brackets in subs (1) were amended pursuant to s 2 of the Adaptation of Laws (References to Foreign Country, etc) Ordinance 1998 (23 of 1998).
The words within square brackets in subs (2) were substituted pursuant to s 22 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
Subsection (4) was repealed pursuant to s 9 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 6 October 1988.
The words within the second set of square brackets in subss (1), (3) and the first set of square brackets in the definition paragraph were replaced with the word ‘seafarer’, and the words within the second set of square brackets in the definition paragraph replaced with the words ‘Merchant Shipping (Seafarer) Ordinance (Cap 478)’, pursuant to s 143(1) of the Merchant Shipping (Seafarer) Ordinance (Cap 478), commencing 1 September 1996.
The definition of ‘foreign ship’ was deleted pursuant to s 2 of the Adaptation of Laws (References to Foreign Country, etc) Ordinance 1998 (23 of 1998), commencing 1 July 1997.
[30.02] England
This section does not have an equivalent in the UK Acts.
[30.03] Subs (1): Agreed to submit to the jurisdiction of the Court
To be effective a submission to the jurisdiction of a foreign court in matters of contract must be express and not implied. An agreement in a contract that the law of a particular country is the proper law of the contract does not mean that there has been a submission to the jurisdiction of the courts of that country: see Yiu Hon Ming v Coastal Shipping Co Pty Ltd (ECC 13/1998, 21 September 1989, DC, [1989] HKLY 511 (DC). This case went on appeal which was dismissed, and the Court of Appeal further held that submission to the jurisdiction can only be made in respect of the whole of the Ordinance, not part only. While parts of the Ordinance were incorporated into the contract by reference, the contract contains no express agreement to submit to the jurisdiction, nor can such submission be implied in respect of the whole of the Ordinance: see Yiu Hon Ming v Coastal Shipping Co Pty Ltd [1990] 2 HKC 95, [1991] 2 HKLR 240(CA).
The employer may be taken to have submitted to the jurisdiction of the court if he does not raise any objection to jurisdiction at the outset of the proceedings and subsequently acts in a way which in effect affirms the jurisdiction of the court: see Lo Ngau v Dodwell Shipping [1977-79] HKC 245. Hence, an employer who objects to the jurisdiction of the Hong Kong court must not submit or agree to submit to the jurisdiction of the court. If he files an answer to the employees’ compensation application, he should make it clear that it is conditional upon the Court having jurisdiction. If he takes any further step in the action, he should also make it clear that it is conditional upon the court having jurisdiction.
[30.04] Subs (5): Seafarer
See [29.08] above.
[30.05] Definitions
For ‘employee’, see s 2 above; for ‘compensation’, ‘Court’ and ‘employer’, see s 3 above and notes thereto.
(1) Where in a proceeding under this Ordinance in relation to an injury that occurred outside Hong Kong the testimony of a witness is required, on proof that the witness cannot be found in Hong Kong a deposition, or a certified copy of it, which the witness may have previously made on oath outside Hong Kong in relation to that injury before a justice or magistrate in Her Majesty’s dominions or in any place where Her Majesty exercises jurisdiction or before any British Consular Officer elsewhere is, subject to subsection (2), admissible in evidence without proof of the signature or official character of the person appearing to have signed the deposition.
(2) The person before whom the deposition was made shall sign it and certify that the witness was present at the making of the deposition.
(Added 59 of 1988 s 10)
[30A.01] Enactment history
This section was added pursuant to s 10 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 8 July 1988.
[30A.02] England
This section does not have an equivalent in the UK Acts.
[30A.03] General note
This section was enacted to replace the previous s 30(4) in relation to testimony of witnesses outside Hong Kong, to make clear its application to the whole Ordinance, not just s 30.
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Hong Kong Special Administrative Region.
[30A.05] Oath
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include, in the case of persons allowed or required by law to affirm instead of swearing, affirmation; and ‘swear’ in the like case includes affirm.
On oaths generally, see Oaths and Declarations Ordinance (Cap 11).
[30A.06] Injury
See [5.05] above.
[30A.07] Justice
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean a person appointed to be a justice of the peace under the Justices of the Peace Ordinance (Cap 510).
[30A.08] Magistrate
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean any person appointed to be a permanent or special magistrate under the Magistrates Ordinance (Cap 227).
[30A.09] Person
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include any public body and any body of persons, corporate or unincorporate, and this definition shall apply notwithstanding that the word ‘person’ occurs in a provision creating or relating to an offence or for the recovery of any fine or compensation.
[30A.10] Subs (2): Sign
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include, in the case of a person unable to write, the affixing or making of a seal, mark, thumbprint or chop.
[30A.11] Definitions
As to the references to ‘Her Majesty’, see s 2A(3) and Sch 8 of the Interpretation and General Clauses Ordinance (Cap 1).
(1) In this section-
‘foreign compensation’ (外地補償) means compensation paid to an employee in respect of an injury under the law of a place outside Hong Kong where the injury occurred;
‘person carrying on business’ (經營業務的人) has the same meaning as in the Business Registration Ordinance (Cap 310).
(2) This Ordinance also applies where personal injury by accident arising out of and in the course of employment is caused to an employee outside Hong Kong where the employee’s contract of employment is entered into in Hong Kong with an employer who is a person carrying on business in Hong Kong.
(3) Compensation payable under this Ordinance to an employee referred to in subsections (2) and (5) shall be reduced by the amount of any foreign compensation paid to him in respect of the same injury.
(Amended 63 of 1992 s 12)
(4) Where foreign compensation is paid to an employee after compensation in respect of the same injury is paid under this Ordinance, the amount paid under this Ordinance, not exceeding the amount of the foreign compensation paid, shall be repaid to the employer by the employee and the amount is recoverable as a civil debt.
(5) If an employer who is a person carrying on business outside Hong Kong submits or has agreed to submit to the jurisdiction of the Court, then, notwithstanding that the accident causing the personal injury occurred outside Hong Kong, this Ordinance shall apply to employees within the meaning of this Ordinance who have been recruited or engaged in Hong Kong.
(Added 63 of 1992 s 12)
(Added 59 of 1988 s 10)
[30B.01] Enactment history
Subsections (1) to (4) were added pursuant to s 10 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 8 July 1988.
The words within square brackets in subs (3) were substituted pursuant to s 12 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.
Subsection (5) was added pursuant to s 12 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.
[30B.02] England
This section does not have an equivalent in the UK Acts.
This section in effect repeals the decision in Hill v Circus Entertainment Management Ltd [1985] 2 HKC 219, that any claim arising outside the jurisdiction of Hong Kong was not covered by the Ordinance. In other words, the Ordinance also applies to workers employed by Hong Kong or foreign employers and who are injured at work performed outside Hong Kong. It also offsets an award of foreign compensation against an award under the Ordinance.
[30B.04] Subs (1): Injury
See [5.05] above.
[30B.05] Person carrying on business
This is defined in s 2 of the Business Registration Ordinance (Cap 310) to mean: (a) in the case of a single person or corporate body, such person or corporate body; (b) in the case of a business carried on by a partnership, all partners; and (c) in the case of a business carried on by any other body of persons, the principal officers of such body. As for ‘person’, see [30A.09] above.
[30B.06] Accident
See [5.06] above.
[30B.07] Arising out of ⋯ employment
See [5.07] above.
[30B.08] Caused
See [5.09] above.
[30B.09] Hong Kong
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Hong Kong Special Administrative Region.
[30B.10] Contract of employment
This is defined in s 2 of the Employment Ordinance (Cap 57) to mean any agreement, whether in writing or oral, express or implied, whereby one person agrees to employ another and that other agrees to serve his employer as an employee and also a contract of apprenticeship.
[30B.11] Subss (3) and (4): Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[30B.12] Subs (5): Agreed to submit to the jurisdiction of the Court
It is submitted that the principles discussed under [30.03] above also apply to this subsection.
For ‘employee’, see s 2 above; for ‘compensation’, ‘Court’ and ‘employer’, see s 3 above and notes thereto.
(1) Any contract or agreement whether made before or after the commencement of this Ordinance, whereby an employee relinquishes any right to compensation from an employer for personal injury by accident arising out of and in the course of his employment, shall, subject to subsection (2), be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under the provisions of this Ordinance.
(2) The Commissioner may, if satisfied that, by reason of old age or serious physical defect or infirmity, a person, if employed as an employee, is specially liable to meet with an accident, or, if he meets with an accident is specially liable to sustain injury, in connection with any contract of such employment, authorize the person and the employer to enter into an agreement in writing reducing or giving up the right of such person to compensation under the provisions of this Ordinance in respect of any accident which is caused or contributed to by the old age or serious physical defect or infirmity.
(3) An agreement entered into under subsection (2) shall be ineffective unless the Commissioner certifies that in his opinion such agreement is fair and reasonable.
(Amended 55 of 1969 s 22; 44 of 1980 s 15)
[31.01] England
This section does not have an equivalent in the UK Acts.
[31.02] General note
This section does not completely deprive the parties of their normal freedom to agree to a settlement. Therefore, this section does not prohibit or invalidate any agreement which seeks to establish and determine the amount of a disputed claim so long as the agreed amount is not less than the statutory minimum or that which would be due to the employee under the various provisions of the Ordinance on the basis of the facts agreed between the parties (see also, Yeung Hung v Yee Fat Transportation Co [1962] HKDCLR 67, [1962] HKCU 45). If a disputed issue of fact is one which gives the court the alternative of making no award at all, a settlement which gives the employee some compensation would be consistent with the general policy of the Ordinance. As a matter of fact, this section does not prohibit the parties from reaching a settlement agreement provided that the amount agreed is not less than that which would be due to the employee under various provisions of the Ordinance and on the basis of the facts agreed between the parties: see Shiu Ying Kwong v Po On [1990] HKDCLR 15 at 19, applied in Li Fook Shing v Chow Wing Fu & Anor [1997] 4 HKC 285. On the other hand, this section does invalidate agreements which purport to reduce the amount of compensation due on the basis of admitted or undisputed facts: see Shiu Ying Kwong v Po On above, at 20.
If an injured person should be properly regarded as an employee on the objective facts and upon application of the indicia of employment, any arrangement between the parties to make him a self-employed person for Mandatory Provident Fund purpose will not affect the employer’s liability under this Ordinance. Giving effect to such an expressed stipulation or intention when there is objectively an employer-employee relationship contravenes the provisions of this section: see Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electric Co [2007] 2 HKC 135, [2007] 1 HKLRD 951.
[31.03] Subs (1): Commencement
Ie 1 December 1953.
[31.04] In the course of his employment
See [5.08] above.
[31.05] Purports to remove or reduce the liability
In Shiu Ying Kwong v Po On [1990] HKDCLR 15 at 20, the judge suggested that, where a settlement is reached on terms which appear to be less than the employee’s strict entitlement, it may be prudent to follow the practice in the case of settlements of claims by infants and other persons under disability. When inviting the court to grant a consent order, an affidavit or other form of explanation should be provided by the parties’ legal advisers, so that the court can be satisfied that the agreement does not purport to remove or reduce the employer’s liability to pay compensation.
[31.06] Subs (2): Person
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include any public body and any body of persons, corporate or unincorporate, and this definition shall apply notwithstanding that the word ‘person’ occurs in a provision creating or relating to an offence or for the recovery of any fine or compensation.
[31.07] Accident
See [5.06] above.
[31.08] Injury
See [5.05] above.
[31.09] Contract of such employment
See [30B.10] above.
[31.10] Writing
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include writing, printing, lithography, photography, typewriting and any other mode of representing words in a visible form.
[31.11] Caused
See [5.09] above.
[31.12] Definitions
For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’ and ‘employer’, see s 3 above and notes thereto.
(1) If the total or partial incapacity (whether of a permanent or temporary nature) or the death of an employee results from an occupational disease and is due to the nature of any employment in which the employee was employed at any time within the prescribed period immediately preceding such incapacity or death, whether under one or more employers, then, the employee or members of his family, as the case may be, shall be entitled to compensation under this Ordinance as if such incapacity or death had been caused by an accident arising out of and in the course of employment in respect of which the provisions of section 5 apply, and the provisions of this Ordinance (including in particular section 15) shall, mutatis mutandis, apply thereto, subject to the following modifications-
(Amended 1 of 1995 s 12; 52 of 2000 s 18)
(a) the incapacity or the death shall be treated as the happening of the accident;
(b) if it is proved that the employee, at the time of entering into the employment, wilfully and with intent to deceive represented in writing that he had not previously suffered from the disease resulting in the incapacity or death, compensation shall not be payable;
(c) subject to subsection (3), the compensation shall be recoverable from the employer who last employed the employee during the prescribed period immediately preceding the incapacity or death in the employment to the nature of which the disease was due;
(d) the amount of the compensation shall be calculated with reference to the earnings of the employee under the employer from whom the compensation is recoverable pursuant to paragraph (c) or subsection (3);
(e) the employer to whom notice of incapacity or death is given shall be the employer who last employed the employee during the prescribed period immediately preceding the incapacity or death in the employment to the nature of which the disease was due, and the notice may be given notwithstanding that the employee has voluntarily left such employer’s employment.
(2) Where an employee suffers incapacity or dies as a result of an occupational disease, the employee or members of his family, as the case may be, shall, if so required, furnish to the employer who last employed the employee during the prescribed period immediately preceding the incapacity or death in the employment to the nature of which the occupational disease was due such information as to the names and addresses of all other employers who employed him in such employment during such period as he or they may possess, and, if such information is not furnished or is not sufficient to enable that employer to take proceedings under subsection (3), that employer, upon proving that the disease was not contracted whilst the employee was in his employment, shall not be liable to pay compensation.
(Amended 52 of 2000 s 18)
(3) If the employer who last employed the employee during the prescribed period immediately preceding the incapacity or death in the employment to the nature of which the occupational disease was due alleges that the disease was in fact contracted whilst the employee was in the employment of some other employer during such period, and not whilst in his employment, he may join such other employer as a party to the proceedings in respect of the claim for compensation, and if the allegation is proved that other employer shall be the employer from whom the compensation is recoverable.
(4) If the occupational disease is of such a nature as to be contracted by a gradual process, any other employers who during the prescribed period immediately preceding the incapacity or death employed the employee in the employment to the nature of which the disease was due shall be liable to make to the employer from whom compensation is recoverable pursuant to subsection (1)(c) or subsection (3) such contribution as, in default of agreement, may be determined by a Court at the hearing of the claim for compensation, or, if the amount of and liability to pay the compensation is not in dispute, by the Court at a separate hearing.
(5) Nothing in subsection (2) shall be construed as preventing the employee or members of his family, as the case may be, from recovering compensation under this Part from any other employer who employed the employee in the employment to the nature of which the occupational disease was due during the prescribed period immediately preceding the incapacity or death in the event of the employer who last employed the employee in such employment proving that the disease in question was not contracted whilst the employee was in his employment.
(Amended 52 of 2000 s 18)
(6) For the purposes of this section-
(a) the date of the incapacity shall, in the absence of agreement, be such date as the Court shall determine as being the date upon which the incapacity commenced; and no employee shall be prejudiced in any claim for compensation under this Part by reason only of the fact that the notice of incapacity given to the employer specified some other date;
(b) the prescribed period shall be the period specified in the fourth column of the Second Schedule in relation to the trade, industry or process specified in the third column of that Schedule.
(Added 19 of 1964 s 5; Amended 55 of 1969 s 23; 44 of 1980 s 15)
[32.01] Enactment history
The words in square brackets in subs (1) were substituted pursuant to s 12 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.
The words ‘members of his family’ within square brackets were amended pursuant to s 18 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.
[32.02] England
This section is based on ss 43-44 of the Workmen’s Compensation Act 1925.
[32.03] General note
Payment of compensation under this section is contingent upon permanent or temporary incapacity having been caused by the occupational disease.
It should be noted that compensation is provided for in respect of certain specified circumstances: see, for example, the Pneumoconiosis (Compensation) Ordinance (Cap 360) and the Occupational Deafness (Compensation) Ordinance (Cap 469). As to savings in respect of these Ordinances, see s 36 below.
[32.04] Subs (1)
It has been held that, under this section, an employee can only recover compensation for injuries or incapacity if: (1) the incapacity was caused by an accident arising out of and in the course of his employment (s 5); and (2) the incapacity was the result of a scheduled industrial disease which was treated by s 32(1) as an incapacity caused by an accident under s 5: Wong Chick v Swire Pacific Ltd [1992] 1 HKC 571. In that case, an employee worked at a dockyard between 1935 and 1971 firstly as an apprentice and later as a boiler maker. During this period the noisy environment was a daily event and normal routine associated with his work. His claim for compensation for deafness resulting from the nature of his work, was struck out by the judge, for the reason that the employee’s loss of hearing was not caused by an accident or a series of accidents; instead, it was the result of a continuous process of repeated and prolonged exposure to hazardous noise levels associated with his normal and routine work.
The fine distinction between ‘accident’ and ‘process’ has been subject to much judicial debate in the UK: see, for example, Fitzsimons v Ford Motor Co Ltd (Aero Engines) [1946] 1 All ER 429 (use of rapidly rotating instrument held to involve a succession of accidents); Roberts v Dorothea Slate Quarries Co Ltd [1948] 2 All ER 201(HL) (inhalation of air impregnated with dust held to be a continuous process, not a series of accidents); Pyrah v Doncaster Corp [1949] 1 All ER 883(CA) (contact with tuberculosis patients held to constitute a succession of accidents, but note the dissenting judgment of Bucknill LJ). See also Leung Wing Hung v Hop Hing Cheong Timber Yard [1992] HKDCLR 27 at 29-30.
[32.05] Prescribed
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean when used in or with references to any Ordinance, prescribed by that Ordinance or by subsidiary legislation made under that Ordinance.
[32.06] In the course of employment
See [5.08] above.
See [5.06] above.
[32.08] Subs (1)(b): Wilfully
This is defined in Archbold Criminal Pleading Evidence and Practice (25th Ed) para 2408 to mean ‘deliberately and intentionally, not by accident or inadvertence’.
[32.09] Writing
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include writing, printing, lithography, photography, typewriting and any other mode of representing words in a visible form.
[32.10] Subs (1)(d): Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[32.11] Definitions
For ‘employee’, see s 2 above; for ‘compensation’, ‘Court’, ‘employer’, ‘member of the family’, ‘occupational disease’, ‘partial incapacity’ and ‘total incapacity’, see s 3 above and notes thereto.
(1) Any employer may, before employing an employee in any trade, industry or process specified in the third column of the Second Schedule, require the employee to undergo a medical examination by a registered medical practitioner at the cost of the employer.
(2)
(a) Subject to paragraph (b), any employee who refuses to undergo a medical examination required under subsection (1) shall not be entitled to recover from that employer compensation under this Ordinance for incapacity or death suffered as a result of an occupational disease.
(b) Paragraph (a) shall not apply unless the refusal to undergo the medical examination is evidenced by writing under the hand of the employee.
(Added 19 of 1964 s 5; Amended 44 of 1980 s 15)
[33.01] Enactment History
The words within the square brackets in subs (1) were substituted pursuant to s 19 of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.
[33.02] England
The wording of this section is to the same effect as s 17 of the Workmen’s Compensation Act 1925.
[33.03] Subs (2)(b): Writing
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include writing, printing, lithography, photography, typewriting and any other mode of representing words in a visible form.
[33.04] Definitions
For ‘employee’, see s 2 above; for ‘compensation’, ‘employer’, ‘registered medical practitioner’ and ‘occupational disease’, see s 3 above and notes thereto.
If an employee who suffers incapacity or dies as a result of an occupational disease was within the period specified opposite to that disease in the fourth column of the Second Schedule immediately preceding such incapacity or death employed in any trade, industry or process specified opposite to that disease in the third column of that Schedule, it shall be presumed, until the contrary is proved, that such disease was due to the nature of such employment.
(Added 19 of 1964 s 5; Amended 55 of 1969 s 24; 44 of 1980 s 15)
[34.01] England
The wording of this section is similar to s 44 of the Workmen’s Compensation Act 1925.
[34.02] Definitions
For ‘employee’, see s 2 above; for ‘occupational disease’, see s 3 above and notes thereto.
The Commissioner may from time to time by order, which shall be published in the Gazette, amend the Second Schedule.
(Added 19 of 1964 s 5; Amended 66 of 1993 s 5)
The word in square brackets was substituted pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.
[35.02] England
This section does not have an equivalent in the UK Acts.
[35.03] General note
The Second Schedule has from time to time been amended: see LN 52/87, LN 397/91 and LN 410/93.
[35.04] Gazette
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean:
(a) the Government of the Hong Kong Special Administrative Region Gazette and any supplement thereto;
(b) the Gazette published by the Administration on or between 12 October 1945 and 1 May 1946;
(c) the Government of the Hong Kong Special Administrative Region Gazette Extraordinary;
(d) the Hong Kong Government Gazette and any supplement thereto published before 1 July 1997;
(e) any Special Gazette or Gazette Extraordinary published before 1 July 1997;
[35.05] Definitions
For ‘Commissioner’, see s 3 above and notes thereto.
(1) Subject to subsection (2), nothing in this Part shall prejudice the right of an employee to recover compensation under this Ordinance in respect of a disease to which this Part does not apply, if the disease is a personal injury by accident within the meaning of section 5.
(Added 19 of 1964 s 5; Amended 44 of 1980 s 15; 51 of 1980 s 48)
(2) Subsection (1) does not apply to any incapacity resulting from-
(a) pneumoconiosis or mesothelioma (or both) in respect of which compensation is recoverable under the Pneumoconiosis and Mesothelioma (Compensation) Ordinance (Cap 360); or
(Replaced 6 of 2008 s 45)
(b) noise-induced deafness in respect of which compensation is payable under the Occupational Deafness (Compensation) Ordinance (Cap 469).
(Replaced 21 of 1995 s 41)
[36.01] Enactment history
Subsection (1) was amended by s 48 of the Pneumoconiosis (Compensation) Ordinance (Cap 360).
Subsection (2) was substituted pursuant to s 41 of the Occupational Deafness (Compensation) Ordinance (Cap 469), commencing 1 July 1995.
Subsection (2)(a) was repealed and substituted with the words within square brackets pursuant to s 45 of the Pneumoconiosis (Compensation) (Amendment) Ordinance (6 of 2008), commencing 18 April 2008.
[36.02] England
This section does not have an equivalent in the UK Acts.
[36.03] Subs (1): Injury
See [5.05] above.
[36.04] Accident
See [5.06] above.
[36.05] Definitions
For ‘employer’, see s 2 above, for ‘compensation’ and ‘occupational disease’, see s 3 above and notes thereto.
In this Part-
‘Board’ (委員會) means the Prostheses and Surgical Appliances Board appointed under section 36M(1);
(Added 44 of 1980 s 7)
‘Director’ (署長) means the Director of Health;
(Added 44 of 1980 s 7; Amended L.N. 76 of 1989)
‘prosthesis’ (義製人體器官) means any artificial item which replaces a part of the body removed or amputated as a result of an injury;
‘surgical appliance’ (外科器具) means any artificial item which supports directly or indirectly the structure or function or a part of the body impaired as a result of an injury.
(Added 67 of 1971 s 2)
[36A.01] Enactment history
The word in square brackets in the heading to this part was substituted pursuant to s 6 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
The definitions of ‘Board’ and ‘Director’ were added pursuant to s 7 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980. The definition of ‘Director’ was subsequently amended pursuant to LN 76/89.
[36A.02] England
This section does not have an equivalent in the UK Acts.
[36A.03] General note
Sections 36A to 36O, collectively known as Pt IIIA of the Ordinance, deal with liability of an employer to pay for the cost of supplying and fitting to an injured employee a prosthesis or surgical appliances required by the employee as a result of his injury.
[36A.04] Injury
See [5.05] above.
[36A.05] Definitions
For ‘employee’, see s 2 above; for ‘compensation’ and ‘occupational disease’, see s 3 above and notes thereto.
(1) Subject to the provisions of this section, if, in any employment, personal injury is caused to an employee by accident arising out of and in the course of the employment, the employer shall, notwithstanding any other compensation he may be liable to pay under this Ordinance, be liable to pay for the cost of supplying and fitting to the employee a prosthesis or surgical appliance required by him as a result of his injury.
(Amended 76 of 1982 s 24)
(1A) Notwithstanding anything in section 5(2)(a), the employer shall be liable under subsection (1) whether or not the injury has resulted or is likely to result in any temporary incapacity or permanent incapacity causing a loss of earning capacity.
(Added 76 of 1982 s 24; Amended 1 of 1995 s 13; 67 of 1996 s 6)
(2) The employer shall not be liable under subsection (1) unless-
(a) the employee submits himself to treatment by a registered medical practitioner, a registered Chinese medicine practitioner;
(Amended 16 of 2006 s 20)
(b) the prosthesis or surgical appliance is supplied and fitted to the employee; and
(c) the prosthesis or surgical appliance so supplied and fitted is-
(i) manufactured or on sale in Hong Kong; and
(ii) certified by the Board under section 36M(4).
(Replaced 44 of 1980 s 8)
(2A) Where an employee who has sustained injury outside Hong Kong in an accident arising out of and in the course of his employment submits himself to medical treatment outside Hong Kong by or under the supervision of a person who is allowed to practise medicine, surgery or dentistry in the place where such medical treatment is given, the employer shall, notwithstanding subsection (2)(a), if the Board so approves, be liable to pay for the cost of supplying and fitting the prosthesis or surgical appliance required by the employee.
(Added 1 of 1995 s 13)
(3) If the prosthesis or surgical appliance required by the employee is not manufactured or on sale in Hong Kong, and the Director gives his approval, the employee may be supplied and fitted with a prosthesis or surgical appliance which is manufactured or on sale at a place other than Hong Kong, in which case, the employer shall, notwithstanding subsection (2)(c)(i), be liable to pay for the cost of supplying and fitting the same to the employee.
(Added 67 of 1971 s 2; Amended 44 of 1980 ss 8 & 15))
[36B.01] Enactment history
The word in square brackets in subs (1) was substituted pursuant to s 24 of the
Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
Subsection (1A) was added by s 24 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983. The words within square brackets in this subsection was substituted pursuant to s 13 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995. The words ‘temporary incapacity or’ within square brackets were amended pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.
The words within the square brackets in subs (2)(a) were substituted pursuant to s 20 of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.
Subsection (2)(c) was substituted pursuant to s 8 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
Subsection (2A) was added by s 13 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.
The words within square brackets in subs (3) were deleted pursuant to s 8 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
[36B.02] England
This section does not have an equivalent in the UK Acts.
[36B.03] Accident
See [5.06] above.
[36B.04] Arising out of and in the course of employment
[36B.05] Injury
See [5.05] above.
[36B.06] Loss of earning capacity
See [9.06] above.
[36B.07] Hong Kong
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Hong Kong Special Administrative Region.
[36B.08] Person
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include any public body and any body of persons, corporate or unincorporate, and this definition shall apply notwithstanding that the word ‘person’ occurs in a provision creating or relating to an offence or for the recovery of any fine or compensation.
[36B.09] Definitions
For ‘employee’, see s 2 above; for ‘employer’, ‘medical practitioner’, ‘medical treatment’ and ‘registered dentist’, see s 3 above and notes thereto; for ‘Board’, ‘Director’, ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.
The amount of the cost which the employer is liable to pay under section 36B shall not, in the case of any one employee, exceed an aggregate of the amount specified in the second column of the Sixth Schedule shown opposite section 36C specified in the first column of that Schedule in respect of any one accident.
(Added 67 of 1971 s 2; Amended 44 of 1980 s 15; L.N. 321 of 1985; L.N. 390 of 1987; L.N. 386 of 1989; L.N. 435 of 1991; L.N. 463 of 1993; L.N. 566 of 1995; 36 of 1996 s 20)
[36C.01] Enactment history
The words within the square brackets were substituted pursuant to s 20 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.
The prescribed maximum amount payable under this section is revised from time to time: see LN 321/85, LN 390/87, LN 386/89, LN 435/91, LN 463/93 and LN 566/95 and the notes to s 36J below.
[36C.02] England
This section does not have an equivalent in the UK Acts.
[36C.03] General note
The prescribed maximum amount payable under this section is revised from time to time: see the table in the notes to s 36J for a summary.
[36C.04] Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[36C.05] Accident
See [5.06] above.
For ‘employee’, see s 2 above; for ‘employer’, see s 3 above and notes thereto.
(1) A claim for the cost of supplying and fitting any prosthesis or surgical appliance which the employer is liable to pay under section 36B may be made by the Director by serving on the employer a request in writing for the payment of the cost.
(2) A request for payment under subsection (1) shall specify-
(a) (Repealed 59 of 1988 s 11)
(b) the amount claimed; and
(c) the address at which the Director may be served under section 36E(2)(b) if the employer disputes the claim.
(3) A request for payment under subsection (1) shall be supported by a certificate issued by the Board under section 36M(4).
(Added 67 of 1971 s 2; Amended 44 of 1980 s 9)
[36D.01] Enactment history
The words in square brackets in subss (1) and (3) were substituted pursuant to s 9 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
Subsection (2)(a) was repealed pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 6 October 1988.
[36D.02] England
This section does not have an equivalent in the UK Acts.
[36D.03] Subs (1): Writing
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include writing, printing, lithography, photography, typewriting and any other mode of representing words in a visible form.
[36D.04] Definitions
For ‘employer’, see s 3 above and notes thereto; for ‘Board’, ‘Director’, ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.
(1) The employer shall, on receipt of a request for payment under section 36D and before the expiry of 1 month from the time of receipt, pay the amount of the cost to the Director, unless he disputes his liability to pay or the necessity or cost of the prosthesis or surgical appliance.
(2) If the employer so disputes, he shall within the period specified in subsection (1)-
(a) deposit the amount of the cost claimed with the Director who shall hold the same until any such dispute is determined; and
(b) serve on the Director at the address specified in section 36D(2) a notice setting out the grounds of dispute.
(3) If the employer so disputes, but fails without reasonable excuse to comply with the provisions of subsection (2), he shall be deemed to have agreed to pay the amount of the cost claimed in the request for payment.
(Added 67 of 1971 s 2; Amended 44 of 1980 s 10)
[36E.01] Enactment history
The words within the square brackets in subss (1) and (2) were substituted pursuant to s 10 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
[36E.02] England
This section does not have an equivalent in the UK Acts.
[36E.03] Subs (1): Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[36E.04] Subs (3): Reasonable excuse
See [14.09] above.
[36E.05] Definitions
For ‘employer’, see s 3 above and notes thereto; for ‘Director’, ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.
(1) Where any dispute arises as to the liability to pay or the necessity or cost of any prosthesis or surgical appliance supplied and fitted to the employee under this Part, the dispute shall be determined by the Court.
(2) At the determination of the dispute, the Court may make such order as it may deem fit in respect of the deposit under section 36E(2)(a), but shall order the return of the deposit to the employer if it finds the employer not liable or that the prosthesis or surgical appliance is not necessary for the employee.
(Added 67 of 1971 s 2; Amended 44 of 1980 s 15)
[36F.01] England
This section does not have an equivalent in the UK Acts.
[36F.02] Definitions
For ‘employee’ see s 2 above; for ‘Court’ and ‘employer’, see s 3 above and notes thereto; for ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.
Where the employer on whom a request for payment under section 36D is served fails to pay within the period specified in section 36E(1), or disputes the claim, an application to the Court in the prescribed form and manner may be made by the Director for enforcing his claim to the amount of the cost or for the determination of the dispute.
(Added 67 of 1971 s 2; Amended 44 of 1980 s 11)
[36G.01] Enactment history
The word in square brackets was substituted pursuant to s 11 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
[36G.02] England
This section does not have an equivalent in the UK Acts.
[36G.03] Prescribed
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean prescribed by that Ordinance or by subsidiary legislation made under that Ordinance.
[36G.04] Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[36G.05] Definitions
For ‘Court’ and ‘employer’, see s 3 above and notes thereto; for ‘Director’, see s 36A above and notes thereto.
All claims for the cost of supplying and fitting any prosthesis or surgical appliance to an employee under this Part shall be made within 5 years from the occurrence of the accident giving rise to the injury.
(Added 67 of 1971 s 2; Amended 44 of 1980 s 15)
[36H.01] England
This section does not have an equivalent in the UK Acts.
[36H.02] Accident
See [5.06] above.
[36H.03] Injury
See [5.05] above.
[36H.04] Definitions
For ‘employee’, see s 2 above, for ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.
Subject to section 36J, where in respect of an accident occurring on or after the date on which this section comes into operation an employer is liable to pay for the cost of supplying and fitting a prosthesis or surgical appliance to an employee under section 36B, he shall also be liable to pay for the probable cost of the normal repair and renewal of the prosthesis or surgical appliance during a period of 10 years after the date on which the prosthesis or surgical appliance is originally fitted.
(Replaced 44 of 1980 s 12)
[36I.01] Enactment history
This section was substituted pursuant to s 12 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
[36I.02] England
This section does not have an equivalent in the UK Acts.
[36I.03] Accident
See [5.06] above.
[36I.04] Date on which this section comes into operation
Ie 1 November 1980.
[36I.05] Definitions
For ‘employee’, see s 2 above; for ‘employer’, see s 3 above and notes thereto; for ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.
The amount of the cost which the employer is liable to pay under section 36I shall be the total amount assessed by the Board under section 36M(2)(c) and (3) and shall not, in the case of any one employee, exceed an aggregate of the amount specified in the second column of the Sixth Schedule shown opposite section 36J specified in the first column of that Schedule in respect of any one accident.
(Replaced 44 of 1980 s 12; Amended L.N. 321 of 1985; L.N. 390 of 1987; L.N. 386 of 1989; L.N. 435 of 1991; L.N. 463 of 1993; L.N 566 of 1995; 36 of 1996 s 21)
[36J.01] Enactment history
This section was substituted pursuant to s 12 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
The words within the inner set of square brackets were substituted pursuant to s 21 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.
The prescribed amount payable under this section is revised from time to time: see [36J.03] below.
[36J.02] England
This section does not have an equivalent in the UK Acts.
[36J.03] General note
The prescribed amounts payable under this and s 36C are revised from time to time: see the table below for a summary.
[36J.04] Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[36J.05] Accident
See [5.06] above.
[36J.06] Definitions
For ‘employee’, see s 2 above; for ‘employer’, see s 3 above and notes thereto; for ‘Board’, see s 36A above and notes thereto.
(1) A claim for payment of the cost which an employer is liable to pay under section 36I shall be treated as a claim for the cost of supplying and fitting a prosthesis or surgical appliance under section 36B, and, subject to subsection (2), section 36D, 36E, 36F, 36G and 36H shall, with the necessary modifications, apply in respect of a claim under section 36I.
(Amended 76 of 1982 s 25)
(2) An employer may not, in respect of any claim made under section 36I, dispute the necessity for renewal and repair of the prosthesis or surgical appliance.
(Added 44 of 1980 s 12)
[36K.01] Enactment history
This section was added pursuant to s 12 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
The words within square brackets in subs (1) were substituted pursuant to s 25 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.
[36K.02] England
This section does not have an equivalent in the UK Acts.
[36K.03] Definitions
For ‘employer’, see s 3 above and notes thereto; for ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.
(1) Where, in respect of an accident occurring on or after the date on which this section comes into operation, an employer is liable to pay for the cost of-
(a) supplying and fitting any prosthesis or surgical appliance to an injured employee under section 36B; and
(b) the normal repair and renewal of such prosthesis or surgical appliance under section 36I,
then, subject to the rights of the Director in respect of the recovery of any amount from the employer under this Part, the cost-
(i) of the supplying and fitting; and
(ii) whenever incurred, of the normal repair and renewal,
of such prosthesis or surgical appliance shall be payable out of the general revenue of Hong Kong.
(2) All amounts-
(a) paid to the Director under section 36E(1); and
(b) recovered by him under sections 36F(2) and 36G, shall be paid by him into the general revenue of Hong Kong.
(Added 44 of 1980 s 12)
[36L.01] Enactment history
This section was added pursuant to s 12 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.
[36L.02] England
This section does not have an equivalent in the UK Acts.
See [5.06] above.
[36L.04] Date on which this section comes into operation
Ie 1 November 1980.
[36L.05] Hong Kong
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Hong Kong Special Administrative Region.
[36L.06] Subs (2): Amounts
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[36L.07] Definitions
For ‘employee’, see s 2 above; for ‘employer’, see s 3 above and notes thereto; for ‘Director’, ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.
(1) Where the Director is satisfied that-
(a) the employer cannot be readily located in Hong Kong;
(b) the employer is insolvent; or
(c) the insurer of the employer has disclaimed liability under the policy of insurance issued for the purposes of Part IV,
the Director may take proceedings directly against the insurer for a claim under this Part as if the insurer were the employer.
(2) Where under this Part an amount is paid by the insurer which would, but for this section, not be payable under the policy of insurance, the employer is liable to pay that amount to the insurer.
(Added 66 of 1993 s 6)
[36LA.01] Enactment history
This section was added pursuant to s 6 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.
[36LA.02] England
This section does not have an equivalent in the UK Acts.
Under this section, the Director of Health is empowered to take proceedings against an insurer instead of the employer in specified circumstances.
[36LA.04] Subs (1)(a): Hong Kong
This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Hong Kong Special Administrative Region.
[36LA.05] Subs (2): Amount
This is defined in JE Hotung v Collector of Stamp Revenue (No 2) [1965] HKLR 25 at 31, [1965] AC 766, [1965] HKCU 4(PC), per Lord Upjohn, to mean the aggregate of the payments to be made in consideration of the purchase.
[36LA.06] Definitions
For ‘employer’ and ‘insurer’, see s 3 above and notes thereto; for ‘Director’, see s 36A above and notes thereto.