Butterworths Hong Kong Employees’ Compensation Handbook

36M. Prostheses and Surgical Appliances Board

(1) The Director shall appoint a board to be known as the Prostheses and Surgical Appliances Board which shall consist of-

(a) 2 persons each of whom shall be a registered medical practitioner, a registered Chinese medicine practitioner or a registered dentist; and

(Replaced 16 of 2006 s 21)

(b) the Senior Occupational Health Officer or any Occupational Health Officer.

(Amended (L.N. 248 of 1982))

(2) The functions of the Board shall be-

(a) to determine whether a prosthesis or surgical appliance required by an injured employee is necessary for him having regard to the nature and extent of his injury and, if so, to determine the cost of supplying and fitting the same;

(b) in any case where a prosthesis or surgical appliance has already been fitted to an injured employee, to determine whether the prosthesis or surgical appliance is necessary for him having regard to the nature and extent of his injury and, if so, to determine whether the cost of the same is reasonable; and

(c) in any case to which section 36I applies, to assess the total amount of the probable cost of the normal repair and renewal of any prosthesis or surgical appliance during a period of 10 years after the date of the original fitting of the same.

(2A) Where a prosthesis or surgical appliance has already been supplied and fitted outside Hong Kong to an injured employee, the Board, in the exercise of its functions pursuant to subsection (2), may regard the injured employee as not having been fitted with that prosthesis or surgical appliance but, instead, as having been supplied and fitted with a prosthesis or surgical appliance manufactured or on sale in Hong Kong.

(Added 1 of 1995 s 14)

(3) The Board shall, when assessing the total amount of the probable cost of the normal repair and renewal of a prosthesis or surgical appliance under subsection (2)(c), have regard to-

(a) the durability of the prosthesis or surgical appliance originally fitted;

(b) the probable number of replacements of such prosthesis or surgical appliance required during a period of 10 years after the date of the original fitting; and

(4) If the Board is satisfied-

(a) in any case to which subsection (2)(a) applies, that the prosthesis or surgical appliance is necessary; or

(b) in any case to which subsection (2)(b) applies, that the prosthesis or surgical appliance is necessary and that the cost of supplying and fitting the same is reasonable,

it shall issue a certificate to the Director, stating in respect of such prosthesis or surgical appliance-

(i) that it is necessary;

(ii) the cost of the supplying and fitting;

(iii) that such cost has been determined by the Board under subsection (2)(a) or has been determined by the Board to be reasonable under subsection (2)(b), as the case may be; and

(iv) where applicable, the Board’s assessment of the total amount of the probable cost under subsection (2)(c).

(5) A certificate purporting to be issued under subsection (4) and to be signed by or for the Board shall be admitted in evidence without further proof on its production in the Court and-

(a) until the contrary is proved, it shall be presumed that the certificate is so issued and signed;

(b) shall be evidence of the matters stated therein.

(Added 44 of 1980 s 12)

[36M.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 the square brackets in subs (1)(a) were substituted pursuant to s 21 of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The words within square brackets in subs (1)(b) were substituted pursuant to the Labour Department (Change of Titles of Public Officers) Notice 1982 (LN 248/82).

Subsection (2A) was added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

[36M.02] England

This section does not have an equivalent in the UK Acts.

[36M.03] Subs (1)(b): Health Officer

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean:

(a) the Director, Deputy Director and Assistant Director of Health;

(b) any person appointed as a health officer by the Chief Executive; and

[36M.04] Subs (2): Injury

See [5.05] above.

[36M.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.

[36M.06] Subs (2A): 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.

[36M.07] Definitions

For ‘employee’, sees 2 above; for ‘Court’, ‘medical practitioner’ and ‘registered dentist’, see s 3 above and notes thereto; for ‘Board’, ‘Director’, ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.

36MA. Attendance of employee for purposes of section 36M

The Board may for the purposes of section 36M, by notice in writing to an injured employee, require the employee to attend for an examination or assessment on such date and at such time and place as is specified in the notice, and the provisions of section 16I(2), (3), (4), (5) and (6) shall apply in respect of a notice under this section as they apply in respect of a notice under section 16I(1).

(Added 76 of 1982 s 26)

[36MA.01] Enactment history

This section was added pursuant to s 26 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

[36MA.02] England

This section does not have an equivalent in the UK Acts.

[36MA.03] 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.

[36MA.04] Definitions

For ‘employee’, see s 2 above; for ‘Board’, see s 36A above and notes thereto.

36N. Director to take steps to ensure supply, etc

The Director shall take such steps as to him seem necessary to ensure-

(a) the supply and fitting of a 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.

(Added 44 of 1980 s 12)

[36N.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.

[36N.02] England

This section does not have an equivalent in the UK Acts.

[36N.03] Definitions

For ‘employee’, see s 2 above; for ‘Director’, ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.

36O. Application of certain provisions

Notwithstanding anything in section 24 or 31, in the application of those sections in respect of any claim for the cost of supplying and fitting a prosthesis or surgical appliance and for the cost of repair and renewal of such prosthesis or surgical appliance under this Part-

(a) the rights possessed by or vested in an employee under section 24 shall be vested in the Director; and

(b) the right of any person to compensation referred to in section 31(2) shall be deemed to include the right of the Director to claim for such cost under this Part.

(Replaced 76 of 1982 s. 27; Amended 66 of 1993 s 7)

[36O.01] Enactment history

This section was substituted pursuant to s 27 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words in square brackets were deleted and substituted respectively pursuant to s 7 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.

[36O.02] England

This section does not have an equivalent in the UK Acts.

[36O.03] Para (b): 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.

[36O.04] Definitions

For ‘employee’, see s 2 above; for ‘compensation’, see s 3 above; for ‘Director’, ‘prosthesis’ and ‘surgical appliance’, see s 36A above and notes thereto.

PART IV

COMPULSORY INSURANCE

37. (Omitted)

[37.01] Enactment history

This part was substituted pursuant to s 28 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

38. Interpretation

In this Part, unless the context otherwise requires- ‘the available amount covered by the policy of insurance’ (可得的保險單承保款額) means the amount covered by the policy of insurance after deducting therefrom any amount which is either paid or due and payable by the insurer under the policy in respect of the same event;

(Added 47 of 1995 s 3)

‘company’ (公司) has the meaning assigned to it by section 2 of the Companies Ordinance (Cap 32);

(Added 47 of 1995 s 3)

‘construction work’ (建造工作) means-

(a) the construction, erection, installation, reconstruction, repair, maintenance (including redecoration and external cleaning), renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in the Fifth Schedule;

(b) any work involved in preparing for any operation referred to in paragraph (a), including the laying of foundations and the excavation of earth and rock prior to the laying of foundations;

(c) the use of machinery, plant, tools, gear, and materials in connection with any operation referred to in paragraph (a) or (b);

(Added 47 of 1995 s 3)

‘domestic premises’ (住宅處所) means any premises used exclusively for residential purposes;

‘holding company’ (控股公司), ‘group of companies’ (公司集團) and ‘subsidiary’ (附屬公司) mean, respectively, holding company, group of companies and subsidiary within the meaning of section 2 of the Companies Ordinance (Cap 32);

(Added 47 of 1995 s 3)

‘policy of insurance issued for the purposes of this Part’ (因本部的規定而發出的保險單) means any policy of insurance issued by an insurer that insures or purports to insure an employer against his liability to pay compensation for the injury by accident or for the death of an employee that arises out of and in the course of employment.

(Added 66 of 1993 s 8)

[38.01] Enactment history

The definitions of ‘the available amount covered by the policy of insurance’, ‘company’, ‘holding company’, ‘group of companies’ and ‘subsidiary’ were added pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

The definition of ‘policy of insurance issued for the purposes of this Part’ was added pursuant to s 8 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.

[38.02] England

This section does not have an equivalent in the UK Acts.

[38.03] Company

This is defined in s 2 of the Companies Ordinance (Cap 32) to mean a company formed and registered under that Ordinance or a company formed and registered under the Companies Ordinance 1911 (58 of 1911).

[38.04] Group of companies

This is defined in s 2 of the Companies Ordinance (Cap 32) to mean any two or more bodies corporate one of which is the holding company of the other or others.

[38.05] Policy of insurance issued for the purposes of this Part

A public liability policy taken out for a principal contractor can in no way be considered a policy of insurance issued for the purposes of Part IV: see Leung Siu Mui v Tai Ping Insurance Co Ltd [2002] 2 HKC 314.

[38.06] Employer

This refers to the direct or immediate employer who is required to take out an employees’ compensation policy, complying with the requirement under Sch 4: see Leung Siu Mui v Tai Ping Insurance Co Ltd [2002] 2 HKC 314.

[38.07] Injury

See [5.05] above.

[38.08] Accident

See [5.06] above.

[38.09] In the course of employment

See [5.07] and [5.08] above.

[38.10] Definitions

For ‘employee’, see s 2 above; for ‘compensation’, ‘employer’ and ‘insurer’, see s 3 above.

39. Application of this Part

(1) Subject to subsection (2), this Part shall apply to all employments other than any employment exempted under subsection (3).

(2) Notwithstanding section 4, this Part shall not apply to any employment by or under the State.

(3) The Chief Executive in Council may, by notice in the Gazette, exempt any employment from the application thereto of this Part.

(Amended 56 of 2000 s 3)

[39.01] Enactment history

The word within square brackets in subs (2) was amended pursuant to Sch 4 of the Adaptation of Laws (No 9) Ordinance 2000 (56 of 2000), commencing 1 July 2000.

The words within square brackets in subs (3) were amended pursuant to Sch 4 of the Adaptation of Laws (No 9) Ordinance 2000 (56 of 2000), commencing 1 July 2000.

[39.02] England

This section does not have an equivalent in the UK Acts.

[39.03] Subs (3): Chief Executive in Council

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to the Chief Executive acting after consultation with the Executive Council.

[39.04] 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;

(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.

40. Compulsory insurance against employer’s liability

(1) Subject to subsections (1B) and (1C), no employer shall employ any employee in any employment unless there is in force in relation to such employee a policy of insurance issued by an insurer for an amount not less than the applicable amount specified in the Fourth Schedule in respect of the liability of the employer.

(Amended 47 of 1995 s 4)

(1A) Subsection (1) does not require an employer to obtain insurance for any liability he may have in respect of damages awarded by a court outside Hong Kong to an employee referred to in section 30B.

(Added 59 of 1988 s 12)

(1B) A principal contractor who has undertaken to perform any construction work may, in compliance with subsection (1), take out a policy of insurance issued by an insurer for an amount not less than the amount specified in the Fourth Schedule in relation to a principal contractor in respect of the liability of the principal contractor and the liability of his sub-contractor.

(Added 47 of 1995 s 4)

(1C) A group of companies may, in compliance with subsection (1), take out a policy of insurance issued by an insurer for an amount not less than the amount specified in the Fourth Schedule in relation to a group of companies in respect of the liabilities of the companies, bodies corporate and corporations in the group specified in the policy.

(Added 47 of 1995 s 4)

(1D) For the purposes of this section, section 44B and the definition of ‘the available amount covered by the policy of insurance’ (可得的保險單承保款額) in section 38, ‘accident’ (意外) means an accident or a series of accidents arising out of one event, and in relation to an occupational disease-

(a) where incapacities or deaths of more than one employee are attributable to a cause that does not arise out of a sudden and identifiable event, the incapacities or deaths of such employees are regarded as being caused by separate accidents arising out of separate events; and

(b) where incapacities or deaths of more than one employee are attributable to a cause that arises out of a sudden and identifiable event, the incapacities or deaths of such employees are regarded as being caused by an accident or a series of accidents arising out of one event.

(Added 47 of 1995 s 4)

(1E) For the avoidance of doubt, it is declared that-

(a) the amount required by subsection (1) is ascertained by reference to the number of employees in relation to whom the policy is in force and in accordance with the Fourth Schedule;

(b) the amount that may be taken out under subsection (1B) or (1C) is irrespective of the number of employees in relation to whom the policy is in force and in the case of subsection (1B), is also irrespective of the number of sites on which construction work undertaken by a principal contractor is performed;

(c) the amount required by subsection (1), (1B) or (1C) may be inclusive of interest, costs and expenses indemnified under the policy and other costs and expenses incurred by the employer (including a principal contractor, a sub-contractor, a holding company or a subsidiary) and recoverable from the insurer under the policy;

(d) where a principal contractor has taken out a policy of insurance under subsection (1B), the principal contractor and a sub-contractor insured under the policy shall be regarded as having complied with subsection (1);

(e) where a group of companies has taken out a policy of insurance under subsection (1C), all the companies, bodies corporate and corporations in the group insured under the policy shall be regarded as having complied with subsection (1).

(Added 47 of 1995 s 4)

(1F) The reference in this section to the liability of a person is a reference to the liability of the person under this Ordinance and independently of this Ordinance for any injury to his employee by accident arising out of and in the course of the employee’s employment.

(Added 47 of 1995 s 4)

(2) An employer who contravenes subsection (1) commits an offence and is liable-

(a) on conviction upon indictment to a fine at level 6 and to imprisonment for 2 years; and

(b) on summary conviction to a fine of at level 6 and to imprisonment for 1 year.

(Amended 52 of 2000 s 19)

[40.01] Enactment history

The words within square brackets in subs (1) were substituted pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

Subsection (1A) was added pursuant to s 7 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.

Subsections (1B)-(1F) were added pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

The words within square brackets in subs (2) were amended pursuant to s 19 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

[40.02] England

This section does not have an equivalent in the UK Acts.

[40.03] General note

This section together with Sch 4 prescribes a minimum insurance cover of HK$100 million or HK$200 million, depending on the number of employees in relation to whom the policy is enforced, per event for insurance policies taken out pursuant to the Ordinance and independent of the Ordinance. The Legislative Council is further empowered to amend the minimum insurance cover amount from time to time: see s 48A below. However, employers of employees who work outside Hong Kong are not required to obtain insurance in respect of damages awarded by a court outside Hong Kong.

In Leung Chack v Asia Insurance Co Ltd [1991] HKDCLR 8, it was held that the extension of the meaning of ‘employer’ under s 24 to include principal contractors does not apply to Pt IV of the Ordinance, and that there is no duty under s 40 on principal contractors to take out insurance cover for employees of sub-contractors. A principal contractor cannot be said to ‘employ’ a worker hired by a sub-contractor. It would be prudent to insure in view of the potential liability under s 24, but principal contractors (and employees of all sub-contractors) are entitled to expect each sub-contractor to obtain cover for his or her own employees pursuant to s 40: see also Leung Siu Mui v Tai Ping Insurance Co Ltd [2002] 2 HKC 314 and Lam Chi Fat v Liberty International Insurance [2003] 2 HKC 260, [2003] 2 HKLRD 169. There may, however, be pitfalls in placing reliance on insurance taken out by sub-contractors, and it would be advisable for main contractors to arrange their own policies which should offer adequate protection in respect of their liability for employees’ compensation claims lodged by employees of the sub-contractors. See B+B Construction Co Ltd v Sun Alliance and London Insurance plc [2001] 3 HKLRD 135, (2001) 4 HKCFAR 201 and Hoar CJ, “Employees’ Compensation Insurance: Main Contractor Beware”, Asian Lawyer, October 2001.

All sums payable under s 40 fall within the definition of ‘compensation’ under s 3 above.

[40.04] 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.

[40.05] Injury

See [5.05] above.

[40.06] Arising out of in the cause employment

See [5.07] and [5.08] above.

[40.07] Subs (1A): 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.

[40.08] Subs (1B)

In Leung Siu Mui v Tai Ping Insurance Co Ltd [2002] 2 HKC 314, the Court construed this subsection to mean that a principal contractor was permitted but not obliged to take out a policy to cover himself in respect of his liability to his immediate employees and the immediate employees of his sub-contractor.

In Wathorn v Keliston Marine (Far East) Ltd & Anor [1999] 1 HKC 471, the principal contractor took out an insurance that covered the employees of the sub-contractor. The insurer repudiated liability when an employee of the sub-contractor suffered injury, on the ground that the accident had not been reported in accordance with the terms of the policy. The sub-contractor then looked to the principal contractor for indemnity. The Court of Appeal held that the fact that the sub-contractor’s employees were covered by the principal contractor’s insurance did not imply an agreement on the part of the principal contractor to indemnify the sub-contractor in the event of the insurer not paying up under the policy. There was no basis for implying such an agreement, which would have had the effect of substituting the principal contractor for the insurer as the insurers.

[40.09] Subs (2): 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.

[40.10] Subs (2)(b): Summary conviction

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean a summary conviction by a magistrate in accordance with the provisions of the Magistrates Ordinance (Cap 227).

[40.11] At level 6

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

[40.12] Definitions

For ‘employee’, see s 2 above; for ‘employer’, ‘insurer’, ‘principal contractor’ and ‘sub-contractor’, see s 3 above and notes thereto; for ‘policy of insurance issued for the purpose of this part’, see [38.05] above.

40A. Mandatory information in policy

An insurer shall include in a policy of insurance issued for the purposes of this Part the information referred to in paragraphs (a) to (g) of section 41(1).

(Added 66 of 1993 s 9; Amended 47 of 1995 s 5)

[40A.01] Enactment history

This section was added pursuant to s 7 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.

The words in square brackets were substituted pursuant to s 5 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

[40A.02] England

This section does not have an equivalent in the UK Acts.

[40A.03] Definitions

For ‘insurer’, see s 3 above; for ‘policy of insurance issued for the purposes of this Part’, see s 38 above.

41. Notice of insurance

(1) Subject to subsection (2), an employer to whom a policy of insurance is issued for the purposes of this Part shall display, in a conspicuous place on each of his premises where any employee is employed by him, a notice, in such form as may be specified by the Commissioner, showing in both the English and Chinese languages-

(a) the name of the employer;

(b) the name of the insurer;

(d) the date of issue of the policy;

(e) the dates of commencement and expiry of the period of insurance;

(Amended 47 of 1995 s 6)

(f) the number of employees insured under the policy at the time of issue thereof; and

(Amended 66 of 1993 s 10; 47 of 1995 s 6)

(g) the amount of the liability insured under the policy.

(Added 47 of 1995 s 6)

(2) Subsection (1) shall not apply where the policy of insurance, in so far as it is issued for the purposes of this Part, relates solely to domestic servants employed in, or in connection with, the private household of the employer or relates to an employee referred to in section 30B whose work is performed outside Hong Kong.

(Amended 59 of 1988 s 13)

(3) An employer who without reasonable excuse contravenes subsection (1) commits an offence and is liable to a fine at level 3.

(Amended 52 of 2000 s 20)

(4) Any employer who without reasonable excuse provides any false or misleading information in a notice under subsection (1) commits an offence and is liable to a fine at level 5.

(Added 47 of 1995 s 6)

[41.01] Enactment history

The words in square brackets in subss (1)(e) and (f) were deleted and added, and subss (1)(g) and (4) were added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

The words in square brackets in subs (2) were added pursuant to s 13 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 8 July 1988.

The words within square brackets in subs (3) were amended pursuant to s 20 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

[41.02] England

This section does not have an equivalent in the UK Acts.

[41.03] Subs (2): Domestic servants

The term ‘domestic servant’ is defined in s 2 of the Employment Ordinance (Cap 57) to include a garden servant, chauffeur and boatboy and any other personal servant of a like class.

[41.04] 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.

[41.05] Subs (3): Reasonable excuse

See [14.09] above.

[41.06] Contravenes

The expression ‘contravene’ is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include, in relation to any requirement or condition prescribed in any Ordinance or in any grant, permit, licence, lease or authority granted under or by virtue of any Ordinance, a failure to comply with that requirement or condition.

[41.07] Offence

[41.08] At level 5

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

[41.09] Definitions

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘employer’ and ‘insurer’, see s 3 above and notes thereto; for ‘policy of insurance issued for the purposes of this Part’, see s 38 above.

42. Insurer’s liability

(1) Notwithstanding anything in a policy of insurance issued for the purposes of this Part, an insurer is liable, in a proceeding under section 36LA or 44, for the amount of the liability of the employer not exceeding the available amount covered by the policy of insurance.

(Amended 47 of 1995 s 7)

(1A) For the avoidance of doubt, it is declared that an insurer is liable, in a proceeding under section 36LA or 44, for the amount of the liability of the employer not exceeding the available amount covered by the policy of insurance issued for the purposes of this Part notwithstanding the obligation imposed upon the employer by section 40 to insure for an amount in excess of the amount insured.

(Added 47 of 1995 s 7)

(2) This section does not apply to a policy of insurance issued for the purposes of this Part that is issued before the commencement of this section.

(3) 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.

(Replaced 66 of 1993 s 12)

[42.01] Enactment history

This section was substituted pursuant to s 12 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 1 January 1994.

The words within square brackets in subs (1) were substituted and subs (1A) was added pursuant to s 7 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

[42.02] England

This section does not have an equivalent in the UK Acts.

[42.03] General note

This section renders void, for the benefit of a claim by the employee under s 44, any condition in the policy providing for the avoidance of liability by the insurer in the event of any act or omission after an accident has occurred, giving rise to a claim under the insurance policy. The rights of the insurer as against the employer in relation to the said condition are, however, expressly safeguarded by subs (3): see King Tak On v Lau Chun Yip & Ors t/a Kar Bun Metal Manufactory & Anor [1987] HKLR 126 at 129 131.

Sections 42, 43 and 44 should be read together. The combined effect of these three sections on the relevant insurance policy is to confer an absolute right on an employee to recover any amount from the insurer which he would have been entitled to recover from his insured employer: see King Tak On v Lau Chun Yip above. The insurer is, however, only liable in proceedings under the Ordinance up to the amount of the insurance cover under a policy of insurance taken out pursuant to the Ordinance and independently of the Ordinance, which is HK$100 million or HK$200 million, depending on the number of employees in relation to whom the policy is enforced, per event under Sch 4 for the time being.

The employee’s right of action against an insurer only arises after quantification of the employer’s liability. An insurer is therefore protected as it will have sufficient notice of the proceedings against the employer and may intervene in those proceedings: see Pang Wai Chung v The Tai Ping Insurance Co Ltd [1999] 1 HKC 636, [1999] 2 HKLRD 354, applied by the Court of Appeal in Lam Chi Fat v Liberty International Insurance [2003] 2 HKC 260, [2003] 2 HKLRD 169; and Sami’An Sutinah v Leung Wai Kuen Katrina [2002] 2 HKC 706.

Practitioners acting for employees’ compensation insurers should be cautious that a situation of double insurance may arise if there exist other policies, in particular “contractors’ all risks policy” or ‘third party liability policies’ in industrial accident cases. In those other policies, there will usually be an exclusion clause providing that the indemnity granted will not apply to accidents arising out of and in the course of a person’s employment or service with an insured party. However, this type of exclusion clause may only be effective to exclude policy liability in respect of the claim of an injured or deceased employee in the direct employ of the insured party, but not an employee in the employ of some other entity also insured under the policy.

In Dragages Et Travaux Publics (HK) Ltd & Anor v Wallace & Ors [2004] 1 HKC 478, the plaintiffs were the principal contractors who had entered into a main contract with the Mass Transit Railway Corporation (‘MTRC’). Pursuant to the main contract, MTRC took out a ‘Third Party Liability Insurance Policy’ issued by the defendant insurers. The ‘insured’ as defined in this policy covered a number of parties, including inter alia MTRC itself ‘and/or all contractors and/or subcontractors of any tier’. On the other hand, the plaintiffs arranged employees’ compensation insurance with another insurer.

Arising out of a fatal accident which killed a number of employees of the plaintiffs’ sub-contractors, in addition to legal costs, the plaintiffs received an indemnity under the employees’ compensation policy for 50% of the awards of employees’ compensation and common law personal injury damages. It was the plaintiffs’ case that they were also covered under the policy issued by the defendant insurers, who contested the claim by relying on, inter alia, an exclusion clause to deny policy liability in connection with accidents arising out of and in the course of employment of the insured’s employees. Construing the policy as a whole, the Court held that the exclusion clause only applied to ‘liability in respect of death or bodily injury to a person under a contract of employment or apprenticeship with the insured party claiming indemnity under the policy and arising out of and in the course of such a person’s employment with such an insured party claiming indemnity’. In other words, the defendant insurers could not rely on the exclusion clause to defend against the plaintiffs’ claim since it was only operative to deny liability towards the plaintiffs’ sub-contractors who were the direct employers of the deceased employees.

[42.04] Subs (1): Insurer

If the insurer is in compulsory liquidation, a claim by the employee under ss 42, 43 or 44 under the insurance policy taken out by the employer is provable in the liquidation of the insurer since the claim has arisen out of the contract of insurance: see Re Singapore Insurance Co Ltd [1985] 2 HKC 244.

[42.05] 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.

[42.06] Subs (2): Commencement

Ie 1 January 1994.

[42.07] Definitions

For ‘employer’ and ‘insurer’, see s 3 above; for ‘policy of insurance issued for the purposes of this Part’, see s 38 above.

43. Conditions under which liability for payment by insurer arises

(1) Subject to this section, where in relation to an employee there is in force a policy of insurance issued for the purposes of this Part and the employer of the employee becomes liable to pay any sum under this Ordinance or independently of this Ordinance in respect of an injury to the employee arising out of and in the course of his employment, such sum shall forthwith become due and payable by the insurer, including any sum payable in respect of interest and costs, notwithstanding anything to the contrary in the policy of insurance.

(Amended 66 of 1993 s 13)

(2) No sum shall be payable by an insurer under this section-

(a) unless, in the case of compensation agreed upon between the employer and an employee under section 16CA, such insurer has consented to pay the sum agreed upon as compensation to the employee;

(Amended 66 of 1993 s 13)

(b) unless, in the case of compensation or damages determined or adjudged by a court or tribunal to be payable to the employee or any other person, the insurer had sufficient notice of the institution in the court or tribunal of proceedings for compensation or damages, as the case may be, to enable such insurer to be added as a party to the proceedings;

(c) in respect of any judgment to pay compensation or damages, while execution thereon is stayed by the court or pending appeal;

(Amended 47 of 1995 s 8)

(d) if before the happening of the accident which was the cause of the injury giving rise to the liability, the policy of insurance was cancelled by mutual consent or by virtue of any provision contained therein; or

(Amended 47 of 1995 s 8)

(e) in respect of the sum liable to be paid under subsection (1) in excess of the available amount covered by the policy of insurance.

(Added 47 of 1995 s 8)

(2A) (Repealed 36 of 1996 s 22)

(2B) (Repealed 36 if 1996 s 22)

(3) If sufficient notice of the institution of proceedings for the recovery of compensation or damages is given to an insurer to enable such insurer to apply to be added as a party to the proceedings, the court or tribunal, as the case may be, shall, on such application being made, add the insurer as a party and the insurer shall have the same right to defend the proceedings as if such insurer were the employer.

(4) 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.

(Replaced 66 of 1993 s 13)

[43.01] Enactment history

The words within square brackets in subss (1) and (2)(a) were substituted pursuant to s 13 of Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.

The words within square brackets in subs (2)(c) and (d) were deleted and substituted and subs (2)(e) was added pursuant to s 8 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

Subsections (2A) and (2B) were repealed pursuant to s 22 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

Subsections (2A) and (4) were originally added pursuant to s 12 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.

[43.02] England

This section does not have an equivalent in the UK Acts.

[43.03] General note

If there is a policy issued for the purposes of Pt IV in relation to an employee which is in force at the time of the accident and the insured employer is liable to pay compensation under the Ordinance or independently of the Ordinance, s 43(1)operates to provide that the same sum forthwith becomes due and payable by the insurer. Furthermore, this obligation is imposed on the insurer’notwithstanding anything to the contrary in the policy of insurance’.

In general terms, the effect of this section is to duplicate the insurer’s obligation. The insurer has the contractual obligation to pay the employer under the policy and an additional statutory duty to pay the employee. Section 44 further strengthens the enforcement of the obligation by enabling the employee to sue the insurer direct. See also Wong Shu Kuen, on behalf of the dependants of Wu Hin Fai, deceased v Bachy Soletanche Group Ltd (DCEC 545 & 546/2000, unreported).

Subsection (2) sets out five instances where the liability imposed upon an insurer under subs (1) does not arise.

Subsection (3) supplements subs (2)(b) by providing that, if sufficient notice of the institution of proceedings for compensation or damages is given to an insurer, to enable it to be added as a party to the proceedings, and if the insurer applies to be so added, the relevant court or tribunal shall so add the insurer, who is given the same right to defend the proceedings, as if the insurer were the employer.

Subsection (4) safeguards the rights of the insurer as against the employer. If, but for this section, there would have been grounds for repudiation or disclaimer of liability under the policy, whether such repudiation be based on matters arising under the terms of the policy or outside those terms, the insurer is left to claim repayment under subs (4) (or under the proviso to s 42).

[43.04] Subs (1): In force

A policy is ‘in force’ for the purposes of this subsection if it has been issued in relation to an employee pursuant to s 40 and has not been cancelled at the time of the accident which gave rise to the employee’s claim for compensation against the employer under the Ordinance, either by mutual consent or by virtue of any provision in that policy, so as to bring subs (2)(d) into operation.

It is well settled that a contract of insurance, requiring uberrima fides, is voidable for non-disclosure or misrepresentation at the election of the aggrieved party: see Colinvaux’s Law of Insurance (8th Ed, Sweet & Maxwell 2006) Ch 6, paras 6-75, 6-89. Until an insurer elects to repudiate liability under the policy on the ground of non-disclosure or misrepresentation, the policy is merely voidable and remains ‘in force’ for the purposes of this subsection. An insurer’s purported repudiation of liability under the policy will not be effective if it takes place after the date of the accident, by which time liability will have been imposed upon the insurer by virtue of this section.

It follows that, if the insurer elects not to defend the employee’s claim against the employer, the effect of this section is to impose absolute liability on the insurer to pay to the employee the sum awarded against the employer: see King Tak On v Lau Chun Yip & Ors t/a Kar Bun Metal Manufactory & Anor [1987] HKLR 126.

An insurance policy may have expressly provided that it does not cover an employer’s liability in respect of the employee’s performance of certain duties or acts. However, if at all times other than when the employee was performing such duties or acts he is covered by the policy of insurance, then the policy is still treated as a policy of insurance which is in force in relation to the employee within the meaning of this subsection: see Chan Chu Ngan v Wong Woon Pui [1992] 2 HKC 193.

A public liability policy taken out a principal contractor can in no way be considered a policy of insurance for the purposes of Part IV including this subsection: see Leung Siu Mui v Tai Ping Insurance Co Ltd [2002] 2 HKC 314.

[43.05] The employer of the employee becomes liable to pay any sum ··· such sum shall forthwith become due and payable by the insurer

In the exceptional case where the wording of a policy covers the immediate employees of the principal contractor only, even when anemployee of a sub-contractor has obtained judgment against his employer and against the principal contractor under s 24(1) in respect of his injuries and that judgment remains unsatisfied, the employee of the sub-contractor will not be able to enforce the judgment against the insurer of the principal contractor under this section, since the policy restricts the insurer’s liability to employees in the immediate service of the principal contractor: see Leung Chack v Asia Insurance Co Ltd [1991] 2 HKLR 496(CA), but note the dissenting judgment by Penlington JA, who stated that the wording of s 24 is such that the employees of sub-contractors should, for the purposes of the Ordinance, be considered as direct employees. It could not have been the intention of the legislature thata principal contractor should be fixed with liability for compensation to be paid to the employees of sub-contractors, but that he was not obliged to insure against that risk.

Leung Chack above, was applied by the Court of Appeal in Lam Chi Fat v Liberty International Insurance [2003] 2 HKC 260, [2003] 2 HKLRD 169. It was also mentioned in that subsequent case that the proper time for the insurer to contest liability was when it received notice of proceedings. By defaulting on the giving of notice of intention to defend, the insurer is considered to have admitted all the allegations in the pleadings, making it impossible to avoid ultimate liability for satisfying any award of employees’ compensation and/or personal injury damages.

[43.06] Sum ··· due and payable by the insurer

This means that the sum payable by the insurer is due from the date from its quantification: see Pang Wai Chung v The Tai Ping Insurance Co Ltd [1999] 1 HKC 636, [1999] 2 HKLRD 354. All sums payable under ss 40, 43(1) and 44 fall within the definition of ‘compensation’ in s 3 of the Ordinance and, as regards interest and costs, within the jurisdiction conferred on the District Court by s 21: see King Tak On v Lau Chun Yip & Ors t/a Kar Bun Metal Manufactory & Anor [1987] HKLR 126.

[43.07] Any sum ··· interest and costs

As to meaning, see the notes to s 25(1)(b) above. See also Pang Wai Chung v The Tai Ping Insurance Co Ltd [1999] 1 HKC 636, [1999] 2 HKLRD 354.

[43.08] Person

[43.09] Appeal

See [18.06] above.

[43.10] Subs (2)(d): Accident

See [5.06] above.

[43.11] Injury

See [5.05] above.

[43.12] Subs (3)

The Court ought to allow a joinder of the insurer concerned to become an additional respondent and/or defendant in the employees’ compensation proceedings and/or common law claim for personal injury damages, as the case may be, where there is clearly a potential liability on the part of the insurer under subs (1): see Sami’An Sutinah v Leung Wai Kuen Katrina [2002] 2 HKC 706. An insurer may seek leave to join as a respondent to the proceedings under this sub-section, O 15 r 6 of the RDC and/or r 24 of the ECR (which is of even wider ambit than O 15 r 6 of the RDC: see 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). Upon allowing an application for joinder, the Court will not oblige the insurer to give an undertaking to pay compensation or damages which may be awarded against the employer when liability is still a live issue: Sami’An Sutinah v Leung Wai Kuen Katrina,(above) and 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, above).

The joinder of an insurer as an additional defendant/respondent at its own volition is as of right in appropriate circumstances, which should not be regarded as a form of indulgence granted by the Court. Accordingly, an insurer who has joined into the proceedings should not be deprived of its costs when it has succeeded on the issue litigated between the parties: see Ada Ltd v Sing Tao Holdings Ltd & Ors (CACV 131/1990, 5 March 1991, CA, unreported) and Wong Ki v Chan Lai Kun, formerly t/a Moon Shing Engineering Co & Ors (DCEC 835/2007 & 74/2008, 8 May 2009, DC, unreported).

An insurer, however, cannot be compelled by its insured employer to be joined into the proceedings if the motive for such a joinder is to resolve contractual disputes between the parties but has no relevance in the claim for compensation by the employee: see Wong Shu Kuen, on behalf of the dependants of Wu Hin Fai, deceased v Bachy Soletanche Group Ltd (DCEC 545 & 546/2000, 15 March 2001, DC, unreported); Wong Shu Kuen, on behalf of the dependants of Wu Hin Fai, deceased v Vianet International & Services Co & Anor (DCEC 557/2000, 15 March 2001, DC, unreported).

On the other hand, an employee may make an application to join an insurer concerned into the proceedings if there are sufficient grounds showing that the insurer might ultimately be liable under Pt IV of this Ordinance: see Lai Chi Ming Marbo v UDL Kenworth Engineering Ltd & Anor [2003] 2 HKC 219, [2003] HKLRD 123(DC). However, it has been clarified by the Court in Farman Khan v Shun Sum Engineering Company (a firm) & Anor [2009] 1 HKLRD 534 that the right of an employee to bring a claim against the insurer concerned only accrue at the time of the of the quantification of claim against the employer. In other words, an employee has no locus to sue the insurer or join it as an additional respondent before the conclusion of the relevant employees’ compensation proceedings involving the employee and the employer.

The phrase ‘the employer of the employee becomes liable to pay’ in subs (1) cannot be read as if it meant ‘any person becomes liable to pay’. In the light of the meaning of the words ‘employer’ and ‘employee’ as defined respectively in ss 3 and 2(1), the above phrase cannot possibly be read as including a principal contractor and an employee of a sub-contractor. Subsections (2), (3) and (4), which are designed to safeguard the position of the insurer, must be read with this distinction in mind. It follows that, if the insurer may only be liable to the employee as the insurer of the principal contractor, this subsection does not allow the joinder of the insurer as a defendant alongside, but not in the shoes of, the employer: see Tugu Insurance Co Ltd v Woo Kin Wah [1991] 1 HKC 211.

In Wong Kam Fai v Yu Sai Wan (t/a Wong Fai Construction Material Co) [1993] HKDCLR 67, an employee, A, claimed compensation from B (as employer) and C (as principal contractor). A obtained default judgment against B and C. The insurer then successfully applied to be joined as a party to the proceedings under this subsection. The insurer filed an Answer denying the alleged employer-employee relationship between A and B. The court held that, once the insurer is joined as a party, it is entitled to raise any issues concerning A’s case including whether A was an employee or not. However, in that case the entitlement was defeated by the default judgment against B and C, at least as long as this judgment was not set aside. On the other hand, the insurer’s right to deal with assessment of compensation was not affected.

[43.13] Subs (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.

[43.14] Definitions

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘Court’, ‘employer’ and ‘insurer’, see s 3 above and notes thereto; for ‘policy of insurance issued for the purposes of this Part’, see s 38 above.

44. Right of injured party to proceed against insurer

(1) Every policy of insurance issued for the purposes of this Part shall be deemed to provide that any employee or other person having a claim against the person insured in respect of the liability in regard to which such policy was issued shall, subject to section 42, be entitled to recover in his own name, as though he were a party to the policy, directly from the insurer any amount which he would have been entitled to recover from the person insured.

(Amended 47 of 1995 s 9)

(2) An employee or other person having a claim against the person insured under a policy of insurance issued for the purposes of this Part shall not commence proceedings against the insurer unless he also commences or has commenced proceedings against the person insured.

(Added 66 of 1993 s 14)

(3) Notwithstanding subsection (2), where an employee or other person having a claim against the person insured has reasonable grounds to be satisfied that-

(a) the person insured cannot be readily located in Hong Kong;

(b) the person insured is insolvent; or

he may take proceedings against the insurer without taking or having taken proceedings against the person insured.

(Added 66 of 1993 s 14)

[44.01] Enactment history

The words within the first set of square brackets in subs (1) was added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993. The words within the second set of square brackets were added pursuant to s 9 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

Subsections (2) and (3) were added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.

[44.02] England

This section does not have an equivalent in the UK Acts.

[44.03] General note

The legislature intended to provide a means of guaranteeing payment of compensation to an employee who becomes legally entitled to it. The effect of this section is to confer on the employee a statutory right to enforce an insurance policy against the insurer as if he were a party to it, notwithstanding that the insurer has paid to the employer a sum which has become due and payable by the insurer under s 43: see Wong Po Wah v Pacific Insurance Co Ltd [1988] 2 HKLR 417. This right to recover directly from the insurer is a vital part of the general scheme and purpose of this Ordinance, particularly Pt IV: see Pang Wai Chung v The Tai Ping Insurance Co Ltd [1999] 1 HKC 636, [1999] 2 HKLRD 354.

The employee’s right of recovery under this section is:

(1) separate and distinct from, and not defeasible on the same grounds as in, the case of the insured employer’s right of indemnity under the relevant policy of insurance; and

(2) a right enforceable under the jurisdiction of the District Court under the Ordinance because it is a right to recover compensation within the meaning of ‘compensation’ under s 3: see King Tak On v Lau Chun Yip & Ors t/a Kar Bun Metal Manufactory & Anor [1987] HKLR 126.

The sum due and payable by the insurer should be paid by the insurer to the employee. It follows that if the insurer pays the employer the sum due to the employee but eventually that sum is not passed on to the employee by the employer, the employee may recover the sum from the insurer. Although the Ordinance does not expressly require an insurer to pay twice, the insurer has an obligation, by the combined effect of the policy and the Ordinance, to make effective payment of the sum needed to settle the compensation payable to the employee. The obligation is upon the insurer to find an effective way of making that payment. If the insurer fails to do so, he will have to pay for its administrative risks: see Wong Po Wah v Pacific Insurance Co Ltd above, per Hunter JA, upheld by the Privy Council in Pacific Insurance Co Ltd v Wong Po Wah [1989] 2 HKLR 266. Where the insurer has already paid the amount due to the employee, the insurer’s remedy is to recover the amount from the employer.

The intention of ss 43 and 44, in the context of Pt IV of the Ordinance, is to enable an employee who has been injured at work in the circumstances giving rise to a right to compensation or damages against his employer, to receive the amount due directly from the insurer, if for any reason he fails to receive it from the employer: see Pacific Insurance Co Ltd v Wong Po Wah above at 268. Notwithstanding this statutory scheme, the court would be reluctant to approve an application, even by consent of the parties, for a payment into court to be paid back to the employer respondent/defendant if the compromise involves a settlement sum larger than the amount paid into court. It has been observed by Seagroatt J that there is “always a possibility, if not probability, that the insurers would contend, with some force, that a sum of money which would largely have satisfied the judgment, was released back to the defendant’s control to the insurers’ prejudice”: see Leung Kam Tai v Wong Chuen [1998] 4 HKC 214 at 218.

To guard against the unfortunate position in which an insurer may find himself, it is no doubt open to the insurer to insist upon solid evidence that the employer has paid the employee before releasing the sum due under the policy. Where the employer has not paid the employee and is waiting for insurance money to enable him to pay, the insurer can arrange that the money due under the policy is paid direct to the employee, or decline to hand over the money unless the insurer is given an acknowledgment in writing from both the employer and the employee: see Wong Po Wah v Pacific Insurance Co Ltd above, per Fuad VP.

Sections 43 and 44 will not apply unless and until the amount due to the employee has been quantified in a way provided for in the Ordinance. However, where the parties have reached an agreement under s 17, and once it has gained approval from the Commissioner for Labour under s 17(5), the agreement will become binding on the employer so that for the purpose of s 43(1) he becomes liable to pay a sum under the Ordinance. Such sum then becomes due and payable by the insurer and does not depend on any application being made to the court. The 24-month limitation period imposed by s 14(1) will also not apply in such circumstances: see Wong Po Wah v Pacific Insurance Co Ltd (above).

Practitioners are reminded to pay attention to the jurisdictional issue in their choice of courts in dealing with claims made by employees against the insurer concerned under this section and Part IV of this Ordinance: see Farman Khan v Shun Sum Engineering Company (a firm) & Anor [2009] 1 HKLRD 534 and [21.04] above.

[44.04] Subs (1)

The right of an employee under this section is a substantive right, imposing an absolute liability on the insurer by a deeming provision interpolated in the insurance policy issued for the purpose of Pt IV of this Ordinance. The section is plainly not a procedural provision: see Pang Wai Chung v The Tai Ping Insurance Co Ltd [1999] 1 HKC 636, [1999] 2 HKLRD 354(CA).

An employee of a sub-contractor is not entitled to seek payment from the insurer under this section if the policy limits is scope of indemnity to the employees of the principal contractor: see Leung Chack v Asia Insurance Co Ltd [1991] HKDCLR 8 and Lam Chi Fat v Liberty International Insurance [2003] 2 HKC 260, [2003] 2 HKLRD 169.

[44.05] Subss (2) and (3)

These two subsections are essentially procedural provisions which merely direct the employee as to how to go about enforcing his claim. The language of these two subsections is not sufficiently clear or compelling to displace the pre-existing direct statutory right of an employee to sue the insurer conferred by subs (1): see Pang Wai Chung v The Tai Ping Insurance Co Ltd [1999] 1 HKC 636, [1999] 2 HKLRD 354(CA).

[44.06] Person

[44.07] 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.

[44.08] Definitions

For ‘employee’, see s 2 above; for ‘insurer’, see s 3 above; for ‘policy of insurance issued for the purposes of this Part’, see s 38 above.

44A. Employer must produce policy

An employer insured under a policy of insurance issued for the purposes of this Part shall, within 10 days after receiving the written request of an employee or other person having a claim against the employer, produce for inspection to the employee or other person or his agent the policy of insurance and all other documents relating to the policy.

(Added 66 of 1993 s 15)

[44A.01] Enactment history

This section was added pursuant to s 15 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.

[44A.02] England

This section does not have an equivalent in the UK Acts.

[44A.03] General Note

Under this section, there is no question of relevance and the employer must produce the policy. It is not necessary to institute a set of separate proceedings for the purpose of enforcing this section. A summons alone taken out in the employees’ compensation proceedings will be sufficient: see Ting Pui Leung v Eternal East Cross-Boarder Coach Mgt Ltd (DCEC 996/2005, 18 October 2005, DC, unreported, [2005] HKCU 1734). In Chung Yuen Yee for herself and the dependants of Lai Wing Kee, deceased v Sam Woo Bore Pile Foundation Ltd (CACV 86/2006, 28 July and 3 August 2006, CA, unreported, [2006] HKCU 1289), it was observed by the Court of Appeal that the legislative intent of this section was to enable an applicant to serve proceedings on the insurer concerned notwithstanding that liability might be in dispute between the parties. Accordingly, the court would be prepared to entertain an application for discovery against a respondent under this section even if liability has not yet been established against him.

[44A.04] Person

[44A.05] Documents

The word ‘document’ is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean any publication and any matter written, expressed or described upon any substance by means of letters, characters, figures or marks, or by more than one of these means.

[44A.06] Definitions

For ‘employee’, see s 2 above; for ‘employer’, see s 3 above; for ‘policy of insurance issued for the purposes of this Part’, see s 38 above.

44B. Holding company responsible for liability of subsidiary in certain cases

(1) Where-

(a) in relation to an employee there is in force a policy of insurance taken out by a group of companies pursuant to section 40(1C);

(b) the employee’s employer, being a subsidiary of a holding company which is also insured under the policy, becomes liable to pay any amount of compensation or damages in respect of an injury to the employee by accident arising out of and in the course of his employment; and

the holding company is liable to pay the amount or part thereof to the employee.

(2) An employee employed by a subsidiary which is insured under a policy of insurance taken out by a group of companies pursuant to section 40(1C) may issue a written request to the subsidiary to supply to the employee the names and addresses of all its holding companies which are also insured under the policy.

(3) A subsidiary shall within 7 days after the date of issue of a written request under subsection (2)-

(a) supply to the employee the names and addresses of all its holding companies which are also insured under the policy; and

(b) deliver a copy of the written request to the holding companies.

(4) A subsidiary which without reasonable excuse fails to comply with subsection (3) commits an offence and is liable to a fine at level 3.

(Added 47 of 1995 s 10)

[44B.01] Enactment history

This section was added pursuant to s 10 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

[44B.02] Subs (1): Injury

See [5.05] above.

[44B.03] Accident

See [5.06] above.

[44B.04] Arising out of in the course of employment

See [5.07] and [5.08] above.

[44B.05] Subs (4): Reasonable excuse

See [14.09] above.

[44B.06] Offence

[44B.07] At level 3

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

[44B.08] Definitions

For ‘employee’, see s 2 above; for ‘compensation’, ‘damages’ and ‘employer’, see s 3 above and notes thereto; for ‘group of companies’, ‘holding company’ and ‘subsidiary’, see s 38 and the notes thereto.

45. Inspection of premises other than domestic premises

(1) The Commissioner, and any public officer authorized in writing by him in that behalf (which authority shall be produced by such public officer on demand) may for the purposes of this Part-

(Amended 68 of 1995 s 45)

(a) enter and inspect without a warrant at any reasonable time any premises of an employer where persons are employed, other than domestic premises;

(b) require the production of, inspect, examine or take copies of any record or other document on such premises, relating to the compliance by the employer with the requirements of this Part in respect of his employees;

(c) require any person who manages or appears to be in charge of such premises or of employees on such premises to furnish such information or particulars as he may specify relating to the compliance by the employer with the requirements of this Part in respect of his employees; and

(d) make such other inquiries from any other person on such premises as he thinks fit.

(2) In this section, ‘Commissioner’ (處長) includes a Deputy Commissioner for Labour and an Assistant Commissioner for Labour.

(Added 68 of 1995 s 45)

[45.01] Enactment history

Subsection (1) was renumbered and subs (2) added pursuant to s 45 of the Administration of Justice (Miscellaneous Provisions) (No 2) Ordinance 1995 (68 of 1995), commencing 1 September 1995.

[45.02] England

This section does not have an equivalent in the UK Acts.

[45.03] Public officer

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean any person holding an office of emolument under the Government, whether such office be permanent or temporary.

[45.04] Writing

[45.05] Para (a): Persons

[45.06] Para (b): Document

[45.07] Definitions

For ‘employee’, see s 2 above; for ‘Commissioner’ and ‘employer’, see s 3 above; for ‘domestic premises’, see s 38 above.

45A. Inspection of domestic premises

A magistrate may, if he is satisfied by information on oath that there may be found in any domestic premises any evidence of an offence under section 40, issue a warrant authorizing the Commissioner or any other person named in the warrant to-

(a) enter the domestic premises at any reasonable time; and

(b) require the production of, inspect, examine or take copies of any insurance policy, cover note or other document issued for the purposes of this Part in respect of any employee employed in such domestic premises.

[45A.01] England

This section does not have an equivalent in the UK Acts.

[45A.02] 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).

[45A.03] 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).

[45A.04] Offence

[45A.05] Person

[45A.06] Para (b): Document

[45A.07] Definitions

For ‘employee’, see s 2 above; for ‘Commissioner’, see s 3 above; for ‘policy of insurance issued for the purposes of this Part’, see s 38 above.

45B. Offences against sections 45 and 45A

Without prejudice to section 45C, any person who in connection with any inspection under section 45 or 45A-

(a) fails without reasonable excuse to produce any record or other document referred to in that section when required to do so by the Commissioner or any person authorized under that section; or

(b) furnishes to the Commissioner or any such person any information which he knows or reasonably ought to know to be false or misleading in any material particular,

commits an offence and is liable to a fine at level 5.

(Amended 36 of 1996 s 23)

(Amended 63 of 1992 s 13)

[45B.01] Enactment history

Paragraphs (a) and (b) were amended and para (c) was repealed pursuant to s 13 of the Employees’ Compensation (Amendment) Ordinance 1993 (63 of 1992), commencing 10 July 1992. The prescribed fine was substituted pursuant to s 23 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

[45B.02] England

This section does not have an equivalent in the UK Acts.

[45B.03] Person

[45B.04] Para (a): Reasonable excuse

See [14.09] above.

[45B.05] Document

[45B.06] Para (b): Material particular

This expression is defined in Yau Fat v R [1972] HKLR 246 at 253 per Huggins J, to mean: “A particular is ⋯ ‘material’ only if it distinguishes conduct which is criminal from conduct which is not criminal, although it may be otherwise improper.”

[45B.07] Offence

[45B.08] At level 5

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

[45B.09] Definitions

For ‘Commissioner’, see s 3 above.

45C. Notice to produce documents etc

(1) The Commissioner may, by notice in writing to an employer, require the employer to produce for inspection by the Commissioner, on such date and at such time and place as is specified in the notice-

(a) a policy of insurance issued and in force for the purposes of this Part as at the date of the notice or as at a date specified in the notice or a cover note in respect of any such policy of insurance, or such other evidence as to the existence of any such policy as the Commissioner may specify in the notice; and

(Amended 59 of 1988 s 14)

(b) any other document, or any article or record, specified in the notice, relating to employees of the employer or to such insurance.

(1A) An employer is not required to produce anything under subsection (1)(a) in respect of a date specified by the Commissioner in his notice that is earlier than 3 years preceding the date of the Commissioner’s notice.

(Added 59 of 1988 s 14)

(2) An employer who fails without reasonable excuse to comply with the requirements of a notice under subsection (1) commits an offence and is liable-

(a) where the offence relates to a document or matter referred to in subsection (1)(a)-

(i) on conviction upon indictment to a fine at level 6 and to imprisonment for 2 years; and

(ii) on summary conviction to a fine at level 6 and to imprisonment for 1 year; or

(Amended 52 of 2000 s 21)

(b) where the offence relates to a document or matter referred to in subsection (1)(b), to a fine at level 5.

(Amended 63 of 1992 s 14; 36 of 1996 s 24)

(3) The Commissioner may inspect, examine or take copies of any article, record or document produced under subsection (1).

(4) Any person who hinders or impedes the Commissioner in the exercise of his powers under subsection (3) commits an offence and is liable to a fine at level 5.

(Amended 63 of 1992 s 14; 36 of 1996 s 24)

[45C.01] Enactment history

The words within square brackets in subss (1)(a) and (1A) were added pursuant to s 14 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988), commencing 8 July 1988.

The words ‘at level 6’ within square brackets in subs (2)(a) were amended pursuant to s 21 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The maximum fine provided under subss (2)(b) and (4) was substituted pursuant to s 24 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

[45C.02] England

This section does not have an equivalent in the UK Acts.

[45C.03] General note

This subsection enables the Commissioner for Labour to require the employer to provide insurance documentation relevant to ‘a date specified in the notice’, not merely as at ‘the date of the notice’ which the Commissioner gives to the employer.

[45C.04] Subs (1): Writing

[45C.05] In force

As to meaning, see [43.04] above.

[45C.06] Subs (1)(a): Document

[45C.07] Subs (2): Reasonable excuse

See [14.09] above.

[45C.08] Offence

[45C.09] At level 5, at level 6

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

[45C.10] Summary conviction

[45C.11] Subs (4): Person

[45C.12] Definitions

For ‘employee’, see s 2 above; for ‘Commissioner’ and ‘employer’, see s 3 above; for ‘policy of insurance issued ⋯ for the purposes of this Part’, see s 38 above.

45D. Notice of premium increases

(1) Notwithstanding anything in section 49, the Chief Executive in Council may by regulations require an insurer to give notice in advance to the Commissioner of any increase proposed in the premium generally charged by the insurer for a policy of insurance issued for the purposes of this Part, whether or not such increase is to apply in relation to a particular trade, industry or occupation.

(Amended 56 of 2000 s 3)

(1A) Regulations made under this section may require the insurer referred to in subsection (1) to also provide details of current premiums in a form that will enable the Commissioner to compare the proposed increase with the current premiums.

(Added 66 of 1993 s 16)

(2) Regulations made under this section may provide that a contravention of any specified provision shall be an offence, and may prescribe penalties therefor not exceeding a fine at level 4 and imprisonment for 6 months.

(Amended 52 of 2000 s 22)

(3) When at any time a body corporate commits an offence under regulations made under this section with the consent or connivance of, or because of neglect by, any individual, the individual commits the like offence if at that time-

(a) he is a director, manager, secretary or similar officer or main agent of the body corporate or is purporting to act as such officer or as agent of such body corporate; or

(b) the body corporate is managed by its members, of whom he is one.

(Part IV replaced 76 of 1982 s 28)

[45D.01] Enactment history

The words within square brackets in subs (1) were amended pursuant to Sch 4 of the Adaptation of Laws (No 9) Ordinance 2000 (56 of 2000), commencing 1 August 2000.

Subsection (1A) was added pursuant to s 16 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

The words within square brackets in subs (2) were amended pursuant to s 22 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

[45D.02] England

This section does not have an equivalent in the UK Acts.

[45D.03] Subs (1): Chief Executive in Council

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to the Chief Executive acting after consultation with the Executive Council.

[45D.04] Regulations

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to bear the same meaning as subsidiary legislation and subordinate legislation.

[45D.05] Subs (2): Contravention

See [41.06] above.

[45D.06] Offence

[45D.07] At level 4

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

[45D.08] Definitions

For ‘Commissioner’ and ‘insurer’, see s 3 above; for ‘policy of insurance issued for the purposes of this Part’, see s 38 above.

PART V
MISCELLANEOUS

(Added 19 of 1964 s 6)

46. Compensation not to be assigned, charged or attached

(1) Compensation payable under the provisions of this Ordinance shall not be capable of being assigned, charged or attached, and shall not pass to any other person by operation of law nor shall any claim be set off against such compensation.

(Amended 63 of 1992 s 15)

(2) Notwithstanding subsection (1), compensation payable under the provisions of this Ordinance to any person who is or has been an aided person within the meaning of the Legal Aid Ordinance (Cap 91) shall be subject to the first charge for the benefit of the Director of Legal Aid under section 18A of that Ordinance in respect of any unpaid contribution or deficiency referred to in that section.

(Added 63 of 1992 s 15)

[46.01] Enactment history

Subsection (1) was renumbered and subs (2) added pursuant to s 15 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

[46.02] England

This section does not have an equivalent in the UK Acts.

[46.03] Subs (1): Person

[46.04] Subs (2)

This subsection, which was introduced by the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), provides that compensation payable to a legally aided person under the Ordinance is subject to legal aid charge in order to secure the amount of a contribution payable by the legally aided person to the Director of Legal Aid under the Legal Aid Ordinance (Cap 91).

[46.05] Aided person

This is defined in s 2 of the Legal Aid Ordinance (Cap 91) to mean a person to whom has been granted a legal aid certificate which is still in force.

[46.06] Director of Legal Aid

This expression is defined under the term, ‘Director’, in s 2 of the Legal Aid Ordinance (Cap 91) to mean, the Director of Legal Aid appointed under the provisions of s 3 of that Ordinance and any Deputy Director of Legal Aid, Assistant Director of Legal Aid and Legal Aid Officer so appointed.

[46.07] Definitions

For ‘compensation’, see s 3 above.

47. Deduction of insurance premiums from earnings to be an offence

(1) An employer who, for the purpose of defraying or partly defraying the cost of insurance in respect of his liability to pay compensation under the provisions of this Ordinance, makes any deduction from the earnings of an employee in his employ, shall be guilty of an offence and shall be liable on summary conviction to a fine at level 3 and to imprisonment for 6 months.

(Amended 44 of 1980 s 15; 76 of 1982 s 29; 63 of 1992 s 16; 52 of 2000 s 23)

(2) An employer convicted of an offence under subsection (1) shall, in addition to any penalty imposed under that subsection, if the court or magistrate before which the conviction was obtained so orders, pay to the employee any sum deducted from the employee’s earnings-

(a) in respect of which the offence was committed; and

(b) which has not at the time of the conviction been repaid.

(Added 76 of 1982 s 29)

[47.01] Enactment history

The words within square brackets in subs (1) were amended pursuant to s 23 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (2) was added pursuant to s 29 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

[47.02] England

This section does not have an equivalent in the UK Acts.

[47.03] Subs (1)

The maximum fine for committing an offence under this subsection was twice revised by Employees’ Compensation (Amendment) Ordinances 1982 and 1992 (76 of 1982 and 63 of 1992) respectively.

[47.04] Offence

[47.05] Summary conviction

[47.06] At level 3

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

[47.07] 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).

[47.08] Any sum

See [25.08] above.

[47.09] Definitions

For ‘employee’, see s 2 above; for ‘compensation’, ‘court’, ‘earnings’ and ‘employer’, see s 3 above.

48. Contract of service not to be terminated during incapacity

(1) An employer shall not, without the consent of the Commissioner-

(a) terminate the contract of service or apprenticeship of an employee who has suffered incapacity in circumstances which entitle him to compensation under this Ordinance; or

(b) give notice to the employee of such termination, before-

(i) the Commissioner has issued a certificate under section 16A(2), to the employer and the employee; or

(ii) the employer has entered into an agreement under section 16CA(1), with the injured employee; or

(iii) an Ordinary Assessment Board or a Special Assessment Board, as the case may be, has issued a certificate under section 16F or 16G(3), to the employee, the employer and the Commissioner, whichever occurs first.

(Replaced 1 of 1995 s 15)

(1A) Further to subsection (1), an employer shall not, without the consent of the Commissioner-

(a) terminate the contract of service or apprenticeship of an employee who has suffered temporary incapacity for a period not exceeding 3 days in circumstances which entitle him to compensation under this Ordinance; or

(b) give notice to the employee of such termination, before-

(i) the period of temporary incapacity has expired; and

(ii) the compensation has been paid under section 10 to the employee or to the Court.

(Added 67 of 1996 s 7)

(2) Any employer who contravenes any of the provisions of subsection (1) or (1A) shall be guilty of an offence and shall be liable on conviction to a fine at level 6.

(Added 55 of 1969 s 26; Amended 44 of 1980 s 15; 76 of 1982 s 30; 63 of 1992 s 17; 36 of 1996 s 25; 67 of 1996 s 7)

[48.01] Enactment history

Subsection (1) was substituted pursuant to s 15 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

Subsection (1A) was added pursuant to s 7 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.

The maximum fine prescribed under subs (2) was substituted pursuant to s 25 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. The words within square brackets were added pursuant to s 7 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.

[48.02] England

This section does not have an equivalent in the UK Acts.

[48.03] Subs (1): Contract of service

See [2.03] above.

[48.04] Certificate under Section 16F or 16G(3)

A certificate issued under s 16F is commonly known as a Certificate of Assessment (Form 7); whilst the one issued in pursuance of s16G(3) is commonly known as a Certificate of Review of Assessment (Form 9). In Ngan Yu Chiu (顏雨朝) v New World First Bus Services Limited (新世界第一巴士服務有限公司) [2008] 1 HKLRD 293, the 3 Justices presiding the Court of Appeal (Tang VP, Cheung JA and Lam J) arrived at 3 different interpretations of the statutory provisions under this section. The majority decision of the Court of Appeal is that an employer is not entitled to terminate the contract of employment of an injured employee until the issue of a Certificate of Review of Assessment (Form 9) if the employer has notice of the employee’s objection to the Certificate of Assessment (Form 7).

[48.05] Subs (2): Contravenes

[48.06] Offence

[48.07] At level 6

As to level of fines, see s 113B and Sch 8 of the Criminal Procedure Ordinance (Cap 221).

[48.08] Definitions

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘contract of apprenticeship’, ‘employer’, ‘Ordinary Assessment Board’ and ‘Special Assessment Board’, see s 3 above and notes thereto.

48A. Legislative Council may amend amounts of compensation etc

The Legislative Council may by resolution amend-

(a)-(b) (Repealed 36 of 1996 s 26)

(d) (Repealed 36 of 1996 s 26)

(e) the amount specified in section 23(2);

(f) (Repealed 36 of 1996 s 26)

(fa) the First Schedule;

(Added 66 of 1993 s 17)

(g) the daily rates specified in the Third Schedule;

(h) the minimum amount of insurance cover specified in the Fourth Schedule;

(Added 47 of 1995 s 11)

(i) the amounts and percentages specified in the Sixth Schedule.

(Added 36 of 1996 s 26)

(Replaced 76 of 1982 s 31)

[48A.01] Enactment history

This section was added pursuant to s 31 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

Paragraphs (a), (b), (d) and (f) were repealed pursuant to s 26 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

Paragraph (c) was repealed pursuant to s 2 of the Administration of Justice (Miscellaneous Provisions) (No 2) Ordinance 1995 (68 of 1995), commencing 1 September 1995.

Paragraph (fa) was added pursuant to s 17 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

Paragraph (h) was added pursuant to s 11 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

Paragraph (i) was added pursuant to s 26 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

[48A.02] England

This section does not have an equivalent in the UK Acts.

[48A.03] General note

This section enables the Legislative Council by resolution to vary the amounts of compensation specified in ss 6, 7 and 8 and in other sections. The maximum and minimum levels of compensation are raised from time to time to reflect the increase in wages, salaries and the costs of living.

[48A.04] Legislative Council

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean:

(a) the Legislative Council of the Hong Kong Special Administrative Region;

(b) the Provisional Legislative Council during its existence.

[48A.05] Amend

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include repeal, add to or vary and the doing of all or any of such things simultaneously or by the same Ordinance or instrument.

[48A.06] 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.

[48A.07] Definitions

For ‘compensation’, see s 3 above.

48B. Amendment of Seventh Schedule

The Commissioner may, by order in the Gazette, amend the Seventh Schedule.

(Added 52 of 2000 s 24)

[48B.01] Enactment history

This section was added pursuant to s 24 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

[48B.02] 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;

(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.

48C. Protection of public officers

(1) A public officer is not personally liable in respect of any act or omission of his if it was done or made by him in the honest belief that it was required or authorized in the exercise of any function or power under this Ordinance.

(2) The protection conferred on public officers by subsection (1) in respect of any act or omission shall not in any way affect any liability of the Government in tort for that act or omission.

(Added 52 of 2000 s 24)

[48C.01] Enactment history

This section was added pursuant to s 24 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

[48C.02] Public Officers

49. Regulations

(1) The Commissioner may make regulations-

(Amended 66 of 1993 s 18)

(a) requiring employers to make periodic or other returns as to such matters as he may think fit, and prescribing a time limit for the making of such returns;

(b) -(c) (Repealed 76 of 1982 s 31)

(d) prescribing procedure and fees;

(Amended 13 of 1966 Schedule)

(e) prescribing anything which is to be or may be prescribed under this Ordinance;

(f) generally, for carrying into effect the provisions of this Ordinance and of any regulations made thereunder.

(2) Any regulations made under this Ordinance may provide that such contraventions thereof as may be specified shall constitute an offence and may provide for the punishment of any such offence on summary conviction by a fine at level 3 and by imprisonment for a term of 3 months and, in the case of a continuing offence, by a fine of $200 for every day during which the default continues.

(Amended 76 of 1982 s 32; 63 of 1992 s 18; 52 of 2000 s 25)

[49.01] Enactment history

The word within square brackets in subs (1) was substituted pursuant to s 15 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 23 July 1993.

Subsections (1)(b)-(c) were repealed pursuant to s 31 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The words within square brackets in subs (2) were amended pursuant to s 25 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

[49.02] England

This section does not have an equivalent in the UK Acts.

[49.03] Subs (1): Regulations

See [45D.04] above. See also Employees’ Compensation Regulations (Cap 282A) below.

[49.04] Subs (1)(e): Prescribed under this Ordinance

The word ‘prescribed’ is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean, when used in or with reference to any Ordinance, prescribed by that Ordinance or by subsidiary legislation made under that Ordinance.

[49.05] Subs (2)

The maximum fine for committing an offence under this subsection was twice revised by the Employees’ Compensation (Amendment) Ordinances 1982 and 1992 (76 of 1982 and 63 of 1992) respectively. The daily fine of $200 was introduced by the latter (Amendment) Ordinance.

[49.06] Contraventions

[49.07] Offence

[49.08] Summary conviction

[49.09] At level 3

As to level of fines, see s 13B and s Sch 8 of the Criminal Procedure Ordinance (Cap 221).

[49.10] Definitions

For ‘Commissioner’ and ‘employer’, see s 3 above and notes thereto.

50. Rules of Court

The Chief Justice may make Rules of Court for regulating proceedings before the Court and appeals to the Court under the provisions of this Ordinance, and for the fees payable in respect thereof.

(Amended 76 of 1982 s 33)

[50.01] Enactment history

The words within square brackets were added pursuant to s 33 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

[50.02] England

This section does not have an equivalent in the UK Acts.

[50.03] Chief Justice

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Chief Justice of the Court of Final Appeal.

[50.04] Rules of Court

The expression ‘rules of court’ is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean, when used in relation to any Court, rules made by the authority having for the time being power to make rules and orders regulating the practice and procedure of such Court.

See the ECR below.

[50.05] Definitions

For ‘Court’, see s 3 above.

51. (Repealed 66 of 1993 s 19)

[51.01] Enactment history

This section was repealed pursuant to s 19 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

52. (Repealed 1 of 1995 s 16)

[52.01] Enactment history

This section was repealed pursuant to s 16 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

53. (Repealed 63 of 1992 s 19)

[53.01] Enactment history

This section was repealed pursuant to s 19 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

54. Amendment of references in Ordinances and documents to Workmen’s Compensation Ordinance or Workmen’s Compensation Regulations

Every reference in an Ordinance or in any document to the Workmen’s Compensation Ordinance or the Workmen’s Compensation Regulations shall, unless the context otherwise requires, be read as a reference to the Employees’ Compensation Ordinance (Cap 282) or the Employees’ Compensation Regulations (Cap 282 sub leg), as the case may be.

(44 of 1980 s 15 (2) incorporated)

[54.01] England

This section does not have an equivalent in the UK Acts.

[54.02] General note

The Workmen’s Compensation Ordinance was originally Ordinance No 28 of 1953.

[54.03] Document

55. Transitional

(1) Nothing in the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980) (hereinafter called the ‘amending Ordinance’) shall apply with respect to claims for compensation or other rights, obligations or liabilities in respect of accidents happening before the date of commencement* of sections 4, 5, 8 and 12 or of section 14 of the amending Ordinance, as the case may be; and without limiting the provisions of the Interpretation and General Clauses Ordinance (Cap 1), the provisions of the Workmen’s Compensation Ordinance repealed or deleted by the amending Ordinance shall continue to apply to such claims, rights, obligations or liabilities as if such provisions had not been repealed or deleted by the amending Ordinance..

(44 of 1980 s 16 incorporated)

(2) Nothing in the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982) shall apply with respect to claims for compensation or other rights, obligations or liabilities in respect of accidents happening before the commencement* of that Ordinance; and the provisions of this Ordinance in force immediately before the commencement of that Ordinance shall continue to apply to such claims, rights, obligations or liabilities as if such provisions had not been repealed or amended by that Ordinance.

(Added 76 of 1982 s 35)

(3) The amendments made by sections 4(a) and, (b), 6, 8, 9, 10, 12 and 13 of the Employees’ Compensation (Amendment) Ordinance 1988 (59 of 1988) do not apply to claims for compensation or other rights, obligations or liabilities in respect of accidents happening before the commencement* of the amendments; and the provisions of this Ordinance in force immediately before the commencement of the amendments continue to apply to those claims, rights, obligations or liabilities as if they had not been repealed or amended by that Ordinance.

(Added 59 of 1988 s 15)

(4) The amendments made by sections 2, 3 and 21 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993) do not apply to claims for compensation or other rights, obligations or liabilities in respect of accidents happening before the commencement of the amendments; and the provisions of this Ordinance in force immediately before the commencement of the amendments continue to apply to those claims, rights, obligations or liabilities as if they had not been amended by that Ordinance.

(Added 66 of 1993 s 20)

(5) Despite the repeal of section 42 by section 12 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), section 42 as it was before its repeal shall be deemed not to have been repealed in respect of policies of insurance issued before the commencement of section 12 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993).

(Added 66 of 1993 s 20)

(6) The amendments made by sections 2, 3, 9, 11, 13, 14, 15, 16, 17, 19, 22, 29, 30, 31 and 32 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996) (‘the amending Ordinance’) do not apply to claims for compensation or other rights, obligations or liabilities in respect of accidents occurring before the commencement** of the amending Ordinance, and the provisions of this Ordinance in force immediately before the commencement of the amending Ordinance continue to apply to those claims, rights, obligations or liabilities as if they had not been repealed or amended by the amending Ordinance.

(Added 36 of 1996 s 27)

(7) The amendments made by sections 2 to 7 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997 (‘the amending Ordinance’) do not apply to claims for compensation or other rights, obligations or liabilities in respect of accidents occurring before the commencement of the amending Ordinance, and the provisions of this Ordinance in force immediately before the commencement of the amending Ordinance continue to apply to those claims, rights, obligations or liabilities as if they had not been repealed or amended by the amending Ordinance.

(Added 67 of 1996 s 8)

(8) Subject to subsection (9), nothing in the Employees’ Compensation (Amendment) (No. 2) Ordinance 2000 (52 of 2000) (‘the amending Ordinance’) shall apply with respect to claims for compensation or other rights, obligations or liabilities in respect of accidents happening before the commencement# of the amending Ordinance; and the provisions of this Ordinance in force immediately before the commencement# of the amending Ordinance shall continue to apply to such claims, rights, obligations or liabilities as if such provisions had never been repealed or amended by the amending Ordinance.

(Added 52 of 2000 s 26)

(9) Subsection (8) shall not apply to section 16A(12), 24, 40(2), 41(3), 45C(2)(a), 45D(2), 47(1) or 49(2) as amended by sections 11, 13, 19, 20, 21, 22, 23 and 25 respectively of the amending Ordinance.

(Added 52 of 2000 s 26)

(10) An amendment to this Ordinance made by any provision of Part 3 of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance 2006 (16 of 2006) (‘2006 Ordinance’) does not apply to claims for compensation or other rights, obligations or liabilities in respect of accidents happening before the commencement*** of that provision. The provisions of this Ordinance as were in force immediately before that commencement shall continue to apply with respect to claims for compensation or other rights, obligations or liabilities in respect of accidents happening before that commencement as if the amendment had not been made.

(Added 16 of 2006 s 22; Replaced 10 of 2008 s 62)

(11) Despite subsection (10), as soon as any provision of section 10AB(5), (6) and (10)(d) and (e) (‘relevant provision’) has commenced, the relevant provision shall apply with respect to claims for compensation or other rights, obligations or liabilities in respect of accidents happening on or after the first commencement of section 10AB as far as cost of medicines incurred on or after the commencement of the relevant provision is concerned.

(Added 16 of 2006 s 22; Replaced 10 of 2008 s 62)

(12) In subsection (11)—

(a) the commencement of a provision of section 10AB means the day appointed for the coming into operation of section 15 of the 2006 Ordinance in so far as that section 15 relates to the adding of that provision of section 10AB;

(b) the first commencement of section 10AB means, where different days are appointed for the coming into operation of section 15 of the 2006 Ordinance in so far as that section 15 relates to the adding of different provisions of section 10AB, the earliest of those days.

(Added 16 of 2006 s 22; Replaced 10 of 2008 s 62)

Note:

The operation of this Ordinance is affected by the transitional provision contained in the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995). Such transitional provision reads as follows:-

‘18. Transitional

The amendments made by sections 2 to 10 and 13 and 14 of this Ordinance do not apply to claims for compensation or other rights, obligations or liabilities in respect of accidents happening before the commencement of this Ordinance; and the provisions of the principal Ordinance in force immediately before that commencement continue to apply to those claims, rights, obligations or liabilities as if they had not been repealed or amended by this Ordinance.’.

* Note: Commencement of-

(a) Workmen’s Compensation (Amendment) Ordinance 1980-

(i) sections 4, 5, 8 & 12: 1 November 1980 (See L.N. 209 of 1980);

(ii) section 14: 1 November 1981 (See L.N. 209 of 1980);

(b) Employees’ Compensation (Amendment) Ordinance 1982: 1 July 1983 (See L.N. 107 of 1983);

(i) section 8: 8 July 1988;

(ii) sections 9, 10, 12 & 13: 6 October 1988 (See L.N. 226 of 1988);

(iii) sections 4(a) & (b), 5 & 6: 1 January 1989 (See L.N. 226 of 1988).

** Commencement date: 1 July 1996.

++ Commencement date: 1 January 1997.

# Commencement date: 1 August 2000.

*** Commencement date: 1 July 1996.

[55.01] Enactment history

Subsection (6) was added pursuant to s 27 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996.

Subsection (7) was added pursuant to s 8 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.

Subsections (8) and (9) were added pursuant to s 26 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsections (10), (11) and (12) were added pursuant to s 22 of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006) as amended by s 62 of the Statute Law (Miscellaneous Provisions) Ordinance (10 of 2008), commencing 1 September 2008.

[55.02] England

This section does not have an equivalent in the UK Acts.

[55.03] General note

The operation of this Ordinance is also affected by the transitional provision contained in the Employees’ Compensation (Amendment) Ordinance (1 of 1995). Such transitional provision reads as follows:

‘18. Transitional

The amendments made by sections 2 to 10 and 13 and 14 of this Ordinance do not apply to claims for compensation or other rights, obligations or liabilities in respect of accidents happening before the commencement of this Ordinance [Ie 1 February 1995]; and the provisions of the principal Ordinance in force immediately before that commencement continue to apply to those claims, rights, obligations or liabilities as if they had not been repealed or amended by this Ordinance.’

[55.04] Accidents

See [5.06] above.

[55.05] Repealed

The word ‘repeal’ is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include rescind, revoke, cancel or replace.

[55.06] Amended

See [48A.05] above.

[55.07] Commencement

Under subs (1), this means 1 November 1980 for ss 4, 5, 8 and 12; 1 November 1981 for s 14.

Under subs (2), this means 1 July 1983.

Under subs (3), this means 8 July 1988 for s 8; 6 October 1988 for ss 9, 10, 12, 13 and 1 January 1989 for ss 4(a) and (b).

Under subs (4), this means 1 January 1994.

Under subs (5), this means 1 January 1994.

[55.08] Commencement

Under subs (6), this means 1 July 1996.

Under subs (7), this means 1 January 1997.

Under subs (8), this means 1 August 2000.

[55.09] Definitions

For ‘compensation’, see s 3 above.

FIRST SCHEDULE

[section 9]

Item	Injury		Percentage of loss of earning capacity
1.	Loss of 2 limbs ….
2.	Loss of both hands or of all fingers and both thumbs ….
3.	Loss of both feet ….
4.	Total loss of sight ….
5.	Total paralysis ….		100
6.	Injuries resulting in being permanently bedridden ….
7.	Paraplegia ….
8.	Any other injury causing permanent total disablement ….
9.	Loss of arm at shoulder ….		75	80 (preferred hand)
10.	Ankylosis of shoulder joint-
		in optimum position ….	35
		in worst position ….	55
11.	Loss of arm between elbow and shoulder ….		75	80 (preferred hand)
12.	Loss of arm at elbow ….		75	80 (preferred hand)
13.	Ankylosis of the elbow joint-
		in optimum position ….	30
		in worst position ….	50
14.	Loss of arm between wrist and elbow ….		70	75 (preferred hand)
15.	Loss of hand at wrist ….		70	75 (preferred hand)
16.	Ankylosis of wrist joint-
		in optimum position ….	30
		in worst position ….	40
17.	Loss of 4 fingers and thumb of one hand ….		70	75 (preferred hand)
18.	Loss of 4 fingers of one hand ….		60	65 (preferred hand)
19.	Loss of thumb-
	both phalanges ….		30	32 (preferred hand)
	one phalanx ….		20	22 (preferred hand)
		guillotine loss of tip without loss of bone ….	8
20.	Ankylosis of-
		interphalangeal joint of the thumb ….	4
		metacarpophalangeal joint of the thumb ….	8
	all these 2 joints of the thumb ….		12
21.	Loss of index finger-
		3 phalanges ….	14	15 (preferred hand)
		2 phalanges ….	11	12 (preferred hand)
		one phalanx ….	9	10 (preferred hand)
		guillotine amputation of tip without loss of bone ….	4
22.	Ankylosis of-
		distal interphalangeal joint of the index finger ….	2
		proximal interphalangeal joint of the index finger ….	3
		metacarpophalangeal joint of the index finger ….	4
		all these 3 joints of the index finger ….	9
23.	Loss of middle finger-
		3 phalanges ….	12
		2 phalanges ….	9
		one phalanx ….	7
		guillotine amputation of tip without loss of bone ….	2
24.	Ankylosis of-
		distal interphalangeal joint of the middle finger ….	2
		proximal interphalangeal joint of the middle finger ….	2
		metacarpophalangeal joint of the middle finger ….	3
		all these 3 joints of the middle finger ….	7
25.	Loss of ring finger-
		3 phalanges ….	8
		2 phalanges ….	6
		one phalanx ….	5
		guillotine amputation of tip without loss of bone ….	2
26.	Ankylosis of-
		distal interphalangeal joint of ring finger ….	1
		proximal interphalangeal joint of ring finger ….	2
		metacarpophalangeal joint of ring finger ….	2
		all these 3 joints of the ring finger ….	5
27.	Loss of little finger-
		3 phalanges ….	7
		2 phalanges ….	6
		one phalanx ….	5
		guillotine amputation of tip without loss of bone ….	2
28.	Ankylosis of-
		distal interphalangeal joint of little finger ….	1
		proximal interphalangeal joint of little finger ….	1
		metacarpophalangeal joint of little finger ….	2
		all these 3 joints of the little finger ….	4
28A.	In the case of a loss of a whole finger of one hand, the following percentages shall be awarded in addition to those provided for the loss of a single finger. In this item “finger” does not include “thumb”. These additional percentages shall be awarded when 2 or more fingers of the same hand are lost in the same injury; or when one or more fingers of the same hand are lost in the same injury to a hand of which one or more fingers were lost in a previous injury, whether or not the previous injury was work related or whether compensation was paid or is payable for the loss-
		loss of a second finger of the hand ….	6	7 (preferred hand)
		loss of a third finger of the hand ….	6	7 (preferred hand)
		loss of the last finger of the hand (Added 66 of 1993 s. 21) ….	7	9 (preferred hand)
29.	Loss of metacarpals-
		first (additional) ….	8
		second, third, fourth or fifth (additional) ….	3
30.	Loss of leg at hip ….		80
31.	Loss of leg at or above knee ….		75
32.	Ankylosis of hip joint-
		in optimum position ….	35
		in worst position ….	50
33.	Loss of leg below knee ….		65
34.	Ankylosis of knee joint-
		in optimum position ….	25
		in worst position ….	35
35.	Loss of foot ….		55
36.	Ankylosis of ankle joint-
		in optimum position ….	15
		in worst position ….	25
37.	Loss of toes-
		all of one foot ….	20
		great, both phalanges ….	14
		great, one phalanx ….	4
		other than great, for each one toe lost ….	3
38.	Loss of sight of one eye ….		50
39.	Loss of hearing of one ear ….		30
40.	Total loss of hearing, both ears ….		100
41.	Loss or deformity of outer ear (Added 66 of 1993 s. 21) ….		2
42.	Loss of entire nose (Added 66 of 1993 s. 21) ….		25
43.	Apparent deformity of nose (Added 66 of 1993 s. 21) ….		5
44.	Loss of spleen (Added 66 of 1993 s. 21) ….		5
45.	Loss of one kidney-
		if the other kidney is normal ….	15
		if the other kidney is abnormal (Added 66 of 1993 s. 21) ….	65-90
46.	Urethral injury-
		if urethral stricture requires dilation less frequently than once every 2 weeks ….	5
		if urethral stricture requires dilation once every 2 weeks or more frequently ….	10-20
		if urethra is severed (Added 66 of 1993 s. 21) ….	20
47.	Impairment of urinary bladder function-
		impairment in form of urgency or other mild urinary bladder disorder ….	5-12
		good reflex activity without voluntary control ….	13-22
		poor reflex activity without voluntary control ….	23-27
		no reflex and no voluntary control (Added 66 of 1993 s. 21) ….	38-60
48.	Impairment of anorectal function-limited voluntary control ….		0-7
		has reflex regulation but no voluntary control ….	8-17
		no reflex regulation and no voluntary control (Added 66 of 1993 s. 21) ….	18-25

Note: (1) Total permanent loss of the use of a member shall be treated as loss of such member.

(1A) Partial loss of a member or partial permanent loss of the use of a member shall be treated as the loss of such proportion of the percentage of loss of earning capacity prescribed in this Schedule as the partial loss of the member, or partial permanent loss of the use of the member, bears to the total loss of that member. (Added 49 of 1985 s. 5)

(2) Where there is loss of 2 or more parts of the hand, the percentage shall not be more than the loss of the whole hand.

(3) Loss of remaining arm, leg or eye, if one has already been lost, shall be the difference between the compensation for the total incapacity, and compensation already paid or that which would have been paid for the previous loss of limb or eye.

(4) Where there is loss of a thumb and one or more fingers of the same hand, the aggregate percentage shall not be more than that in respect of the loss of 4 fingers and the thumb of the same hand.

(5) Where there is loss of a great toe and one or more other toes of the same foot, the aggregate percentage shall not be more than the percentage for the loss of all toes of one foot. (Added 66 of 1993 s. 21)

(6) Where a range of percentage is provided in this Schedule, the highest percentage shall be applied in the most severe case, the lowest percentage in the least severe case and percentages in between according to the degree of severity. (Added 66 of 1993 s. 21) (Replaced 44 of 1980 s. 14. Amended 66 of 1993 s. 21)

SECOND SCHEDULE

[sections 3, 32, 33 & 34]

Item

Description of occupational disease

Nature of trade, industry or process

Prescribed period for purposes of section 32

A. CAUSED BY PHYSICAL AGENTS

Inflammation, ulceration or malignant disease of the skin or subcutaneous tissues or of the bones, or blood dyscrasia, or cataract, due to electromagnetic radiations (other than radiant heat), or to ionising particles

Any occupation involving exposure to electro-magnetic radiations other than radiant heat, or to ionising particles.

10 years.

Heat cataract

Any occupation involving frequent or prolonged exposure to rays from molten or red-hot material.

3 years.

Dysbarism, including decompression sickness, barotrauma and osteonecrosis

Any occupation involving subjection to compressed or rarefied air or other gases or gaseous mixtures.

1 year. In the case of arthritis-5 years.

Cramp of the hand or forearm due to repetitive movements

Any occupation involving prolonged periods of handwriting, typing or other repetitive movements of the fingers, hand or arm.

1 year.

Subcutaneous cellulitis of the hand (Beat hand)

Any occupation involving manual labour causing severe or prolonged friction or pressure on the hand.

1 year.

Bursitis or subcutaneous cellulitis arising at or about the knee due to severe or prolonged external friction or pressure at or about the knee (Beat knee)

Any occupation involving manual labour causing severe or prolonged external friction or pressure at or about the knee.

1 year.

Bursitis or subcutaneous cellulitis arising at or about the elbow due to severe or prolonged external friction or pressure at or about the elbow (Beat elbow)

Any occupation involving manual labour causing severe or prolonged external friction or pressure at or about the elbow.

1 year.

Traumatic inflammation of the tendons of the hand or forearm (including elbow), or of the associated tendon sheaths (Amended L.N. 146 of 1999)

Any occupation involving manual labour, or frequent or repeated movements of the hand or wrist.

1 year.

Carpal tunnel syndrome

Any occupation involving repetitive use of hand-held powered tools whose internal parts vibrate so as to transmit that vibration to the hand, but excluding those which are solely powered by hand.

1 year.

(Added L.N. 146 of 1999)

B. CAUSED BY BIOLOGICAL AGENTS

Anthrax

Any occupation involving contact with animals infected with anthrax or the handling (including the loading and unloading or transport) of animal products or residues.

1 month.

Glanders

Any occupation involving contact with equine animals or their carcasses.

1 month.

Infection by leptospira

Any occupation involving-
(a) work in places which are, or are liable to be, infested by rats, field mice or voles, or other small mammals;
(b) work at dog kennels or the care or handling of dogs;
(c) contact with bovine animals or their meat products or pigs or their meat products.

3 months.

Pulmonary disease due to the inhalation of the dust of mouldy hay or other mouldy vegetable produce, and characterized by symptoms and signs attributable to a reaction in the peripheral part of the bronchopulmonary system, and giving rise to a defect in gas exchange (Farmer’s lung)

Any occupation involving exposure to the dust of mouldy hay or other mouldy vegetable produce by reason of employment-
(a) in agriculture, horticulture or forestry; or
(b) loading or unloading or handling in storage such hay or other vegetable produce; or
(c) handling bagasse.

1 year.

Infection by organisms of the genus brucella

Any occupation involving contact with-
(a) animals infected by brucella, or their carcasses or parts thereof, or their untreated products; or
(b) laboratory specimens or vaccines of, or containing, brucella.

1 year.

Tuberculosis

Any occupation involving close and frequent contacts with a source or sources of tuberculosis infection by reason of employment-
(a) in the medical treatment or nursing of a person or persons suffering from tuberculosis, or in a service ancillary to such treatment or nursing;

6 months.

(b) in attendance upon a person or persons suffering from tuberculosis, where the need for such attendance arises by reason of physical or mental infirmity;
(c) as a research worker engaged in research in connection with tuberculosis;

(d) as a laboratory worker, pathologist, or post-mortem worker, where the occupation involves working with materials which are a source of tuberculosis infection, or in any occupation ancillary to such employment.

Parenterally contracted viral hepatitis

Any occupation involving contact with-
(a) human blood or human blood products; or
(b) a source of viral hepatitis.

6 months.

Infection by streptococcus suis

Any occupation involving contact with pigs infected by streptococcus suis, or with the carcasses, products or residues of pigs so infected.

1 month.

Avian chlamydiosis

Any occupation involving contact with birds infected with chlamydia psittaci, their remains or untreated products.

1 month.

B10

Legionnaires’ disease

Any occupation involving the repair, maintenance or service of-
(a) cooling systems that use fresh water; or
(b) hot water service systems.

1 month.

(Added L.N. 146 of 1999)

B11

Severe acute respiratory syndrome

Any occupation involving close and frequent contacts with a source or sources of severe acute respiratory syndrome infection by reason of employment-
(a) in the medical treatment or nursing of a person suffering from severe acute respiratory syndrome, or in a service ancillary to that treatment or nursing;
(b) in attending to a person suffering from severe acute respiratory syndrome, where the need for attendance arises by reason of the person’s physical or mental infirmity;
(c) in identifying, detecting, tracing, isolating, detaining, supervising or surveillance of a person suffering from severe acute respiratory syndrome;
(d) as a research worker engaged in research in connection with severe acute respiratory syndrome, or in a service ancillary to that research; or
(e) as a laboratory worker, pathologist, post-mortem worker or funeral services worker, where the employment involves the handling of any human body or other materials that are a source of severe acute respiratory syndrome infection, or in a service ancillary to that handling.

1 month.

(Added L.N. 213 of 2004)

B12

Avian influenza A

Any occupation involving close and frequent contacts with a source or sources of avian influenza A infection by reason of employment-
(a) as a worker engaged in the handling of poultry or birds or their uncooked remains or residues, or their untreated products, that are a source of avian influenza A infection, or in a service ancillary to that handling; (Amended L.N. 13 of 2005)
(b) as a research worker engaged in research in connection with avian influenza A, or in a service ancillary to that research; or
(c) as a laboratory worker engaged in the handling of materials that are a source of avian influenza A infection, or in a service ancillary to that handling.

14 days.

(Added L.N. 213 of 2004)

C. CAUSED BY CHEMICAL AGENTS

Poisoning by lead or a compound of lead

Any occupation involving the use or handling of, or exposure to the fumes, dust or vapour of, lead or a compound of lead, or a substance containing lead.

2 years.
In the case of nephritis
-4 years.

Poisoning by manganese or a compound of manganese

Any occupation involving the use or handling of, or exposure to the fumes, dust or vapour of, manganese or a compound of manganese, or a substance containing manganese.

2 years.

Poisoning by phosphorus or an inorganic compound of phosphorus or the anti-cholinesterase or pseudo anti-cholinesterase action of organic phosphorus compounds

Any occupation involving the use or handling of, or exposure to the fumes, dust or vapour of, phosphorus or a compound of phosphorus, or a substance containing phosphorus.

3 years.

Poisoning by arsenic or a compound of arsenic

Any occupation involving the use or handling of, or exposure to the fumes, dust or vapour of, arsenic or a compound of arsenic, or a substance containing arsenic.

1 year.

Poisoning by mercury or a compound of mercury

Any occupation involving the use or handling of, or exposure to the fumes, dust or vapour of, mercury or a compound of mercury, or a substance containing mercury.

2 years.

Poisoning by carbon bisulphide

Any occupation involving the use or handling of, or exposure to the fumes, or vapour of, carbon bisulphide or a compound of carbon bisulphide, or a substance containing carbon bisulphide.

1 year.

Poisoning by benzene or a homologue of benzene

Any occupation involving the use or handling of, or exposure to the fumes of, or vapour containing, benzene or any of its homologues.

1 year.

Poisoning by a nitro-or amino-or chloro-derivative of benzene or of a homologue of benzene, or poisoning by nitro-chlorobenzene

Any occupation involving the use or handling of, or exposure to the fumes of, or vapour containing, a nitro-or amino-or chloro-derivative of benzene or nitro-chlorobenzene.

1 year.
In the case of neoplasm
-10 years.

Poisoning by dinitrophenol or a homologue or by substituted dinitrophenols or by the salts of such substances

Any occupation involving the use or handling of, or exposure to the fumes of, or vapour containing, dinitrophenol or a homologue or substituted dinitrophenols or the salts of such substances.

1 year.

C10

Poisoning by halogen derivatives of hydrocarbons of the aliphatic series

Any occupation involving the use or handling of, or exposure to the fumes of, or vapour containing, halogen derivatives of hydrocarbons of the aliphatic series.

1 year.

C11

Poisoning by diethylene dioxide (dioxan)

Any occupation involving the use or handling of, or exposure to the fumes of, or vapour containing, diethylene dioxide (dioxan).

1 year.

C12

Poisoning by chlorinated naphthalene

Any occupation involving the use or handling of, or exposure to the fumes of, or dust or vapour containing, chlorinated naphthalene.

1 year.

C13

Poisoning by oxides of nitrogen

Any occupation involving the use or handling of, or exposure to the fumes of, or dust or vapour containing, oxides of nitrogen.

1 year.

C14

Poisoning by beryllium or a compound of beryllium

Any occupation involving the use or handling of, or exposure to the fumes, dust or vapour of, beryllium or a compound of beryllium or a substance containing beryllium.

1 year.

C15

Poisoning by cadmium

Any occupation involving the use or handling of, or exposure to the dust or fumes of, cadmium.

1 year.

C16

Dystrophy of the cornea (including ulceration of the corneal surface) of the eye

Any occupation involving the use or handling of, or exposure to, arsenic, tar, pitch, bitumen, mineral oil (including paraffin), soot or any compound, product, (including quinone or hydroquinone) or residue of any of these substances.

1 year.

C17

Primary epitheliomatous cancer of the skin

Any occupation involving the use or handling of, or exposure to, arsenic, tar, pitch, bitumen, mineral oil (including paraffin), soot or any compound, product, or residue of any of these substances.

10 years.

C18

Chrome ulceration including perforation of nasal septum

Any occupation involving the use or handling of chromic acid, chromate or bichromate of ammonium, potassium, sodium or zinc, or any preparation or solution containing any of these substances.

1 year.

C19

Primary neoplasm of the epithelial lining of the urinary tract, (renal pelvis, ureter, bladder and urethra) including papilloma, carcinoma-in-situ and invasive carcinoma

Any occupation involving the production, use or handling of alpha-naphthylamine, beta-naphthylamine or methylene-bis-ortho-chloraniline, or diphenyl substituted by at least one nitro or primary amino group or by at least one nitro and primary amino group (including benzidine) and any of the above substances if further ring substituted by halogeno methyl or methoxyl group and the salts of any of the above substances and the production of auramine and magenta.

20 years.

C20

Peripheral polyneuropathy

Any occupation involving the production, use or handling of, or exposure to, any physical form of or any preparation or solution containing n-Hexane or methyl-n-butyl ketone.

1 year.

C21

Localised new growth of the skin, papillomatous or keratotic

Any occupation involving the use or handling of, or exposure to, arsenic, tar, pitch, bitumen, mineral oil (including paraffin), soot or any compound, product or residue of any of these substances.

10 years.

C22

Occupational vitiligo

Any occupation involving the use or handling of, or exposure to, paratertiary-butyl phenol, paratertiary-butyl catechol, para-amyl-phenol, hydroquinone or the monobenzyl or monobutyl ether of hydroquinone.

1 year.

D. CAUSED BY MISCELLANEOUS AGENTS

Inflammation or ulceration of the skin produced by dust, liquid or vapour (including the condition known as chloracne but excluding chrome ulceration)

Any occupation involving exposure to dust, liquid or vapour, capable of irritating the skin.

1 year.

Inflammation or ulceration of the mucous membrane of the upper respiratory passages or mouth produced by dust, liquid or vapour

Any occupation involving exposure to dust, liquid or vapour.

1 year.

Carcinoma of the nasal cavity or associated air sinuses (nasal carcinoma)

Any occupation involving the manufacture or repair of wooden goods or the manufacture or repair of footwear or components of footwear made wholly or partly of leather or fibre board.

10 years.

Byssinosis

Any occupation involving exposure to raw cotton dust.

1 year.

Occupational asthma

Any occupation involving the use or handling of, or exposure to, any of the following agents which may irritate or sensitise the respiratory system-

(a) isocyanates;

(b) platinum salts;

(c) fumes or dusts arising from the manufacture, transport or use of hardening agents (including epoxy resin curing agents) based on phthalic anhydride, trimellitic anhydride or triethylenet-etramine;

(d) fumes arising from the use of rosin as a soldering flux;

(e) formaldehyde;

(f) proteolytic enzymes;

(g) animals or insects used for the purposes of research or education or in laboratories;

1 month.

(h) dusts arising from the sowing, cultivation, harvesting, drying, handling, milling, transport or storage of barley, oats, rye, wheat or maize, or the handling, milling, transport or storage of meal or flour made therefrom.

(i) any other sensitising agent inhaled at work.

(Added L.N. 146 of 1999)

(Replaced L.N. 386 of 1983. Amended L.N. 52 of 1987; L.N. 397 of 1991; L.N. 410 of 1993)

THIRD SCHEDULE

MEDICAL EXPENSES PAYABLE BY AN EMPLOYER IN RESPECT OF AN INJURY DUE TO ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

[sections 10A & 48A]

1. Subject to paragraph 3, where an employee is given medical treatment as an in-patient in a hospital, the medical expenses payable by the employer are-

(a) the total amount of medical expenses incurred in respect of the medical treatment; or

(b) the total amount at the rate of $200 for each day of stay in the hospital,

whichever total amount is the less.

2. Subject to paragraph 3, where an employee is given medical treatment other than as an in-patient in a hospital, the medical expenses payable by the employer are-

(a) the total amount of the medical expenses incurred in respect of the medical treatment; or

(b) the total amount at the rate of $200 for each day on which medical treatment is given,

whichever total amount is the less.

3. Where an employee is given medical treatment on any day both as an in-patient in a hospital and other than as an in-patient in a hospital, the daily rate for the purpose of this Schedule shall be $280.

(Added 74 of 1977 s. 4. Amended 44 of 1980 s. 15; 76 of 1982 s. 36; 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; L.N. 285 of 1998; L.N. 98 of 2003)

FOURTH SCHEDULE

MINIMUM INSURANCE COVER FOR THE PURPOSE OF SECTION 40

[sections 40 & 48A]

1.	For the purpose of section 40(1)
		Where the number of employees in relation to whom the policy is in force	Applicable amount
	does not exceed 200		$100 million per event
	exceeds 200		$200 million per event
2.	For the purpose of section 40(1B)
		Where a principal contractor takes out a policy of insurance	$200 million per event
3.	For the purpose of section 40(1C)
		Where a group of companies takes out a policy of insurance	$200 million per event

(Added 47 of 1995 s. 12)

FIFTH SCHEDULE

SPECIFIED STRUCTURES AND WORKS

[section 38]

1. Any building, edifice, wall, fence, or chimney, whether constructed wholly or partly above or below ground level.

2. Any road, motorway, railway, tramway, cableway, aerial ropeway or canal.

3. Any harbour works, dock, pier, sea defence work, or lighthouse.

4. Any aqueduct, viaduct, bridge, or tunnel.

5. Any sewer, sewage disposal works, or filter bed.

6. Any airport or works connected with air navigation.

7. Any dam, reservoir, well, pipeline, culvert, shaft, or reclamation.

8. Any drainage, irrigation, or river control work.

9. Any water, electrical, gas, telephonic, telegraphic, radio, or television installation or works, or any other works designed for the manufacturing or transmission of power or the transmission or reception of radio or sound waves.

10. Any structure designed for the support of machinery, plant, or power transmission lines.

(Added 47 of 1995 s. 12)

SIXTH SCHEDULE

SPECIFIED AMOUNT OF COMPENSATION

[sections 6, 6C, 6D, 6E, 7, 8, 11, 16A, 36C, 36J & 48A]

Section	Amount $	Percentage
6(1)(a)	21000
6(1)(b)	21000
6(1)(c)	21000
6(2)	303000
6(5)	35000
6C(8)(a)	490	5
6C(8)(b)	970	10
6D(3)(a)	490	5
6D(3)(b)	970	10
6E(9)(a)	490	5
6E(9)(b)	970	10
7(1)(a)	21000
7(1)(b)	21000
7(1)(c)	21000
7(2)	344000
8(1)(a)	412000
8(1)(b)	412000
11(5)	3490
16A(10)(a)	490	5
16A(10)(b)	970	10
36C	33000
36J	100000

(Sixth Schedule replaced 52 of 2000 s. 27)

SEVENTH SCHEDULE

APPORTIONMENT OF COMPENSATION PAYABLE TO ELIGIBLE MEMBERS OF THE FAMILY

[sections 6A & 48B]

1. If the only eligible members of the family are spouses or cohabitees, or any combination thereof, then the compensation shall be paid to all of them in equal amounts.

2. If the only eligible members of the family are children, then the compensation shall be paid to all of them in equal amounts.

3. If the only eligible members of the family are parents or grandparents, or any combination thereof, then-

(a) the compensation shall be paid to all of those parents in equal amounts if there are no grandparents;

(b) the compensation shall be paid to all of those grandparents in equal amounts if there are no parents;

(i) 70% of the compensation shall be paid to all of those parents in equal amounts; and

(ii) the remaining 30% of the compensation shall be paid to all of those grandparents in equal amounts.

4. If the only eligible members of the family are members other than spouses, cohabitees, children, parents and grandparents, then the compensation shall be paid to all of those eligible members in equal amounts.

5. If the only eligible members of the family are-

(a) spouses or cohabitees, or any combination thereof; and

(b) children,

then-

(i) 50% of the compensation shall be paid to all of those spouses or cohabitees in equal amounts; and

(ii) the remaining 50% of the compensation shall be paid to all of those children in equal amounts.

6. If the only eligible members of the family are or the eligible members of the family include-

(a) spouses or cohabitees, or any combination thereof;

(b) children; and

then, whether or not there is any other eligible member of the family-

(i) 45% of the compensation shall be paid to all of those spouses or cohabitees in equal amounts;

(ii) 45% of the compensation shall be paid to all of those children in equal amounts;

(iii) the remaining 10% of the compensation shall be paid-

(A) to all of those parents in equal amounts if there are no grandparents;

(B) to all of those grandparents in equal amounts if there are no parents; and

(C) in any other case, to all of those parents and grandparents such that 70% of that 10% is paid to all of those parents in equal amounts and 30% of that 10% is paid to all of those grandparents in equal amounts.

7. If the only eligible members of the family are-

(a) spouses or cohabitees, or any combination thereof; and

(b) parents or grandparents, or any combination thereof,

then-

(i) 80% of the compensation shall be paid to all of those spouses or cohabitees in equal amounts;

(ii) the remaining 20% of the compensation shall be paid-

(A) to all of those parents in equal amounts if there are no grandparents;

(B) to all of those grandparents in equal amounts if there are no parents; and

(C) in any other case, to all of those parents and grandparents such that 70% of that 20% is paid to all of those parents in equal amounts and 30% of that 20% is paid to all of those grandparents in equal amounts.

8. If the only eligible members of the family are-

(a) spouses or cohabitees, or any combination thereof; and

(b) other members who are not children, parents or grandparents,

then-

(i) 95% of the compensation shall be paid to all of those spouses or cohabitees in equal amounts;

(ii) the remaining 5% of the compensation shall be paid to all of those other members in equal amounts.

9. If the only eligible members of the family are-

(a) spouses or cohabitees, or any combination thereof;

(b) parents or grandparents, or any combination thereof; and

then-

(i) 75% of the compensation shall be paid to all of those spouses or cohabitees in equal amounts;

(ii) 20% of the compensation shall be paid-

(A) to all those parents in equal amounts if there are no grandparents;

(B) to all of those grandparents in equal amounts if there are no parents; and

(C) in any other case, to all of those parents or grandparents such that 70% of that 20% is paid to all of those parents in equal amounts and 30% of that 20% is paid to all of those grandparents in equal amounts;

(iii) the remaining 5% of the compensation shall be paid to all of those other members in equal amounts.

10. If the only eligible members of the family are-

(a) spouses or cohabitees, or any combination thereof;

(b) children; and

then-

(i) 50% of the compensation shall be paid to all of those spouses or cohabitees in equal amounts;

(ii) 45% of the compensation shall be paid to all of those children in equal amounts;

(iii) the remaining 5% of the compensation shall be paid to all of those other members of the family in equal amounts.

11. If the only eligible members of the family are-

(a) children; and

(b) parents or grandparents, or any combination thereof,

then-

(i) 80% of the compensation shall be paid to all of those children in equal amounts;

(ii) the remaining 20% of the compensation shall be paid-

(A) to all of those parents in equal amounts if there are no grandparents;

(B) to all of those grandparents in equal amounts if there are no parents; and

12. If the only eligible members of the family are-

(a) children; and

(b) other members who are not spouses, cohabitees, parents or grandparents,

then-

(i) 95% of the compensation shall be paid to all of those children in equal amounts;

(ii) the remaining 5% of the compensation shall be paid to all those other members in equal amounts.

13. If the only eligible members of the family are-

(a) children;

(b) parents or grandparents, or any combination thereof; and

then-

(i) 75% of the compensation shall be paid to all of those children in equal amounts;

(ii) 20% of the compensation shall be paid-

(A) to all of those parents in equal amounts if there are no grandparents;

(B) to all of those grandparents in equal amounts if there are no parents; and

(iii) the remaining 5% of the compensation shall be paid to all of those other members in equal amounts.

14. If the only eligible members of the family are-

(a) parents or grandparents, or any combination thereof; and

(b) other members who are not spouses, cohabitees or children,

then-

(i) 95% of the compensation shall be paid-

(A) to all of those parents in equal amounts if there are no grandparents;

(B) to all of those grandparents in equal amounts if there are no parents; and

(C) in any other case, to all of those parents or grandparents such that 70% of that 95% is paid to all of those parents in equal amounts and 30% of that 95% is paid to all of those grandparents in equal amounts;

(ii) the remaining 5% of the compensation shall be paid to all of those other members in equal amounts.

(Seventh Schedule added 52 of 2000 s. 28)