Butterworths Hong Kong Employees’ Compensation Handbook

To provide for the payment of compensation to employees who are injured in the course of their employment.

The short and long titles of this Ordinance have been amended by s 2 of the Workmen’s Compensation (Amendment) Ordinance (44 of 1980), commencing 1 November 1980, whereby the word ‘workmen’ has been substituted by the word ‘employees’.

Throughout the whole Ordinance, the words ‘workman’ and ‘workmen’, whenever they occurred, were replaced by the words ‘employee’ and ‘employees’ respectively, pursuant to s 15 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.

PART I

PRELIMINARY

(Added 19 of 1964 s 2)

1. Short title

2. Meaning of ‘employee’

(1) In this Ordinance, unless the context otherwise requires, the expression ‘employee’ (僱員), subject to section 4 and the proviso to this subsection, means any person who has, either before or after the commencement of this Ordinance, entered into or works under a contract of service or apprenticeship with an employer in any employment, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing:

(Amended 11 of 1958 s 2)Provided that the following persons are excepted from the definition of ‘employee’ (僱員)-(a) (Repealed 44 of 1980 s 3)

(b) any person whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer’s trade or business, not being a person employed for the purposes of any game or recreation and engaged or paid through a club and not being a part-time domestic helper; or

(d) a member of the employer’s family employed by such employer and who resides with the employer.

(2) If, in any proceedings for the recovery of compensation under this Ordinance, it appears to the Court that the contract of service or apprenticeship under which the injured person was working, at the time when the accident causing the injury happened, was illegal, the Court may, if having regard to all the circumstances of the case it thinks proper so to do, deal with the matter as if the injured person had at the time aforesaid been a person working under a valid contract of service or apprenticeship.

(3) In this Ordinance, unless the context otherwise requires, any reference to an employee who has been injured shall, where the employee is dead, include a reference to his legal personal representative, or to the members of his family or any of them or the Official Administrator or such other officer as the Chief Executive may appoint to act on behalf of the members of the family of the employee.

(4) Where, in any employment, personal injury by accident arising out of and in the course of the employment is caused to any person, and at the time of the accident-

(a) that person would, but for paragraph (d) of the proviso to subsection (1), have been an employee within the meaning of that subsection; and

(b) there is in force in relation to that person a policy of insurance which indemnifies the employer against liability in respect of such injury whether or not the indemnity is for an amount which is less than the full amount of the liability in respect of which the employer would, under section 40(1), be required to be insured if such person were an employee within the meaning of subsection (1),

this Ordinance shall, notwithstanding paragraph (d) of the proviso to subsection (1), apply in relation to that person for all purposes as if he were an employee within the meaning of the subsection.

Subsection (1)(a) was repealed pursuant to s 3 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980.

The words within square brackets in subs (1)(b) were inserted pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1992 (63 of 1992), commencing 10 July 1992.

The words within square brackets in subs (3) were substituted pursuant to s 2 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. The words ‘the members of his family’ and ‘the members of the family’ within square brackets were amended pursuant to s 2 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000. Subsection (3) was subsequently amended by substituting the word ‘Governor’ with the words ‘Chief Executive’ pursuant to Sch 4 of the Adaptation of Laws (No 9) Ordinance 2000 (56 of 2000), commencing 1 July 1997.

Subsection (4) was added pursuant to s 2 of the Employees’ Compensation (Amendment) Ordinance (76 of 1982), commencing 1 July 1983.

The wording of subss (1) and (2) is essentially the same as s 3 of the Workmen’s Compensation Act 1925, except that in the UK Act the term ‘workman’ expressly includes a person engaged in plying for hire and excludes a member of a police force. Subsection (2) is to the same effect as s 48(3) of the UK Act. Subsections (3) and (4) of the Ordinance have no equivalent in the UK Act.

The important distinction between a ‘contract of service’ and a ‘contract for service’ has been discussed in numerous judicial decisions. It is clear that the phrase is to be construed by applying English common law standards: see Lee Ting Sang v Chung Chi Keung [1990] 1 HKLR 764, [1990] 2 AC 374. In Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electric Co (CACV 86/2005, 15 November 2005, CA, unreported, [2005] HKCU 1605), the Court of Appeal held that whether the person was an employee or an independent contractor was a question of fact to be determined by the trial court.

The fundamental test formulated by Cooke J in Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, [1968] 3 All ER 732 as approved by the Privy Council in Lee Ting Sang v Chung Chi Keung [1990] 1 HKLR 764, [1990] 2 AC 374 is whether the person was performing the services as a person in business on his own account. Some other factors which should be considered in determining whether a person was engaged as an employee or an independent contractor are also set out in Chitty on Contract (29th Ed, Sweet & Maxwell, 2004), Vol 2, at paras 39-010 to 39-028 at pp 943-955. For illustrations of the court applying the law to the facts of individual cases: see Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, [1968] 3 All ER 732; Wong Man Luen v Hong Kong Wah Tung Stevedore Co [1971] HKLR 390; Lee Ting Sang v Chung Chi Keung above; Cheung Hung Yuk v Chiu Chai (HCA 7600/85, 10 July 1990, HC, unreported, [1990] HKCU 150); Chan Kwok Kin v Mok Kwan Hing [1990] 2 HKC 65, [1991] 1 HKLR 631; Lam Sik v Sen International Ventures Corp (HK) Ltd [1994] 3 HKC 405; The Royal Hong Kong Golf Club v Cheng Yuen [1996] 3 HKC 121(HC), Cheng Yuen v Royal Hong Kong Golf Club [1997] 1 HKC 243(CA)[1997] 2 HKC 426(PC); Chong Yiu Tat v Fong Man Chi & Ors (DCEC 877/1999, 7 January 2002, DC, unreported); Chan Kam Wing v Esprit Container Transportation (China) Ltd (DCEC 4/2000, 15 September 2001, DC, unreported); Lee Wan Hung v Wang Tat (China) Transportation Co Ltd (DCEC 92/2000, 21 December 2001, DC, unreported); Wong Siu Fan v May’s Engineering Co Ltd (DCEC 1069/2000, 18 February 2004, DC, unreported, [2004] HKCU 203); Lau Pui Man v Forfan Aluminium Engineering Co Ltd (DCEC 543/2001, 18 March 2002, DC, unreported, [2002] HKCU 312); Chan Kam Fai v Yip Sau Mei t/a Fat Kee Cleaning and Transportation (DCEC 944/2001, 12 August 2002, DC, unreported); To Kwok Sheung v Kwan Yiu Kee Finishing Work Co Ltd & Anor (DCEC 66/2001, 20 February 2002, DC, unreported); Mung Chi Keung v Wan Lam Kwan and Another (DCEC 510/2001, 18 June 2003, DC, unreported, Chinese judgment), On Hang Chu v Chan Ngun (CACV 3780/2001, 9 July 2003, CA, unreported, [2003] HKCU 814, [2003] 2 HKLRD H10), Wong Kim Fung v Leung Wai Sun t/a Wai Kan Transportation Co (DCEC 122/2003, 17 November 2006, DC, unreported, [2006] HKCU 1909); Hui Wai Cheung v Yat Fai Engineering Ltd & Anor (DCEC 221/2003, 21 October 2004, DC, unreported, [2004] HKCU 1224),, Kong Leung v Ma Chor Seung t/a Tat Fung Tyre Co (A Firm) (DCEC 338/2004, 25 May 2005, DC, unreported, [2005] HKCU 671); Lee Mui Fong for herself and other members of the family of Leung Yuk Chun, deceased v Wong Kit Man & Ors (DCEC 455/2002, 18 November 2005, DC, unreported, [2005] HKCU 1631); (Chan Wai Hon v Pang Kwok Chung (transliteration) & Anor DCEC 563/2002, 31 August 2004, DC, unreported, Chinese jdugment); Aftab v Wan Wai Leung t/a Kwong Wong International Transportation Co & Anor (DCEC 780/2002, 23 November 2005, DC, unreported); Wong Chun Nam v Tang Koon Kau (DCEC 1119/2003, 22 December 2005, DC, unreported, [2005] HKCU 1845); Lam Hon Keung v Pang May Ngor, Rita t/a Tin Shing (Hong Kong & China) Freight Services Co (DCEC 648/2003, 22 June 2005, DC, unreported, [2005] HKCU 820); 葉兢開訴陳校初 Yip King Hoi v Chan Hau Chor (transliteration) (DCEC 343/2004, 8 May 2006, DC, unreported, Chinese judgment); Lam Chor v Mak Fu Tak & Ors (DCEC 428/2004, 16 September 2005, DC, unreported, [2005] HKCU 1260); Ng Ying Kei v Cheng Hau Ha t/a Gary Indoor Design (DCEC 479/2004, 11 January 2005, DC, unreported, Chinese judgment); 梁志榮訴布金有 Leung Chi Wing v Bo Kam Yau (transliteration) (DCEC 603/2004, 13 December 2006, DC, unreported, Chinese judgment); Lau Shing Wai v 黃潁鋒t/a群豐冷氣工程 Wong Wai Fung & Anor (DCEC 739/2004, 28 April 2005, DC, unreported, Chinese judgment); Chan Po Kai v Ng Moon Sum & Anor (DCEC 820/2004, 24 February 2006, DC, unreported, [2006] HKCU 318); Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electric Co [2007] 2 HKC 135, [2007] 1 HKLRD 951 and Yeung Tin Sum v Wong See Ting t/a Butterfly Valley Co (DCEC 1077/2006, 18 April 2007, DC, unreported, [2007] HKCU 647); Wong Yuk Sim on behalf of herself and other family members of Lam Heung Wah, deceased v Kam Hung Contruction Engineering Ltd & Anor (DCEC 1372/2005, 16 May 2007, DC, unreported); Cheung Wai Hung v Billion Project Ltd (DCEC 331/2003, 10 July 2007, DC, unreported); Lee Shiu Kwong, acting on behalf of himself and the members of the family of the deceased, Lee Ping Yiu (李炳耀) 訴 Wan Tak Shing (溫德勝)及其他 (DCEC 926/2006, 22 August 2007, DC, unreported, Chinese Judgment); 鄺偉健訴夏文霞經營佳運貨運公司 (DCEC 1091/2006, 25 September 2007, DC, unreported, Chinese Judgment); Yam Kwok Man v Tak Lee Trading Co (DCEC 1322/2004, 2 October 2007, DC, unreported); Cheung Chun Kuen v Lung Kong Logistics Co Ltd (DCEC 554/2005, 12 October 2007, DC, unreported); Chen Can Hui v Lau Chung Ming (DCEC 671/2006, 19 November 2007, DC, unreported, Chinese Judgment); Wong Kin Shun v Sham Chi Kin (DCEC 535/2005, 16 May 2008, DC, unreported); Yuen Ming Shing 訴 Tung Kwong (transliteration of 董光) 及其他 (DCEC 934/2006, 29 May 2008, DC, unreported, Chinese Judgment); 朱順成訴陳仲民 (DCEC 894/2007, 16 June 2008, DC, unreported, Chinese Judgment); Wong Chi Man (黃志文) 訴 Lee Kam Yeun (李鑑元) 及其他 (DCEC 411/2004, 4 July 2008, DC, unreported, Chinese Judgment); Pun Wai Ming v 曾仲佳 (DCEC 946/2006, 7 August 2008, DC, unreported); Ting Shuk Yan (丁淑仁) 訴 Ko Kwok Kai Tong (高國鍇) t/a K’s Kitchen (DCEC 546/2007, 25 September 2008, DC, unreported, Chinese Judgment); 譚權光訴臧蘭英 (DCEC 312/2006, 10 October 2008, DC, unreported, Chinese Judgment); Fong Hon Piu (方漢標) 訴 Chan Tak Wai (陳德偉) (DCEC 404/2008, 7 January 2009, DC, unreported, Chinese Judgment); 李嬋娥, 以她本人及死者周昌泰的家庭成員訴鍾一鳴以源生棚業工程之名營業及其他 (CACV 397/2007, 13 January 2009, CA, unreported, Chinese Judgment); Leung Kwok Biu (梁國彪) v Tam San Yu (譚新宇) t/a New Shine Engineering Co (新光水電冷氣工程) (DCEC 1278/2007, 21 January 2009, DC, unreported); 李國榮訴石韓鑑 (前經營實用地板工程公司) (DCEC 1469/2004, 5 February 2009, DC, unreported, Chinese Judgment); Cheung Wai Yick (張偉益) v Lau Kin Wing (劉見榮) (DCEC 1164/2007, 19 February 2009, DC, unreported); Cheng Chi Wah v Ho Kwan t/a Wan Fai Co & Anor (DCEC 1715/2006, 5 March 2009, DC, unreported, Chinese Judgment); Chan Fat Kai (陳佛啟) 訴 See Dah Jen (史仁) 及其他 (DCEC 1474/2007, 26 June 2009, DC, unreported, Chinese Judgment); Kwok Kam Fai v Wo Fung Transportation Co Ltd (DCEC 439/2007, 27 August 2009, DC, unreported, Chinese Judgment) and Wong Yu Tui v (黃裕兌) 訴劉禮納 alias 劉少納及其他 (DCEC 886/2008, 30 September 2009, DC, unreported). The above cited cases also serve to illustrate how the courts have applied the test to the particular facts of the respective cases.

In Yam Kwok Man v Tak Lee Trading Co (DCEC 1322/2004, 2 October 2007, DC, unreported), District Judge Leung remarked that the ‘creation of apparent agreement between the parties with a view to categorising the workman or shifting the incidence of MPF obligations has always been subject to scrutiny’. In this connection, the following cases were cited with approval by the Court: Lee Mui Fong for herself and other members of the family of Leung Yuk Chun, deceased v Wong Kit Man & Ors (DCEC 455/2002, 18 November 2005, DC, unreported, [2005] HKCU 1631; and Lam Hon Keung v Pang May Ngor, Rita t/a Tin Shing (Hong Kong & China) Freight Services Co (DCEC 648/2003, 22 June 2005, DC, unreported, [2005] HKCU 820).

For further discussions on the distinction between an employee and an independent contractor, see Charlesworth & Percy on Negligence (11th Ed, Sweet & Maxwell, 2006) para 2-292 et seq; Rear, ‘Self-employment in the Building Industry’ (1972) 2 HKLJ 150. It has been said that the previous tests formulated by the courts (such as the ‘integration’ test and the ‘organisation’ test) do not cater for this Ordinance which expressly covers casual workers and those who work for more than one employer, and hence the application of these tests is likely to be misleading in the context of this Ordinance: see Lee Ting Sang v Chung Chi Keung [1990] 1 HKLR 764 at 772. However, the recent judicial trend is to apply these tests: see Fok Kall v Wong Cheung Hon (DCEC 851/1999, 16 November 2001, DC, unreported); Siu Mei Mei v Chiau Feng Warehouse Transportation Co Ltd (DCEC 685/2000, 28 March 2002, DC, unreported, [2002] HKCU 392); To Kwok Sheung v Kwan Yiu Kee Finishing Work Co Ltd & Anor (DCEC 66/2001, unreported); Chan Kam Fai v Yip Sau Mei t/a Fat Kee Cleaning and Transportation (DCEC 944/2001, 12 August 2002, DC, unreported); Ting Kim Fung v Holder Transportation Co Ltd (DCEC 736/2002, 5 May 2004, DC, unreported, [2004] HKCU 511); Chan Suet Hung v Lanfield Marble Co Ltd & Anor (DCEC 790/2002, 4 December 2003, DC, unreported).

The question of whether an employer-employee relationship exists is one of fact and not law: see Pan Wen Tsai v Wing Luen Universal Laundry Ltd (HCLA 76/1997, 6 August 1998, CFI, unreported, [1998] HKLRD Yearbook 352); cf. Davies v Presbyterian Church of Wales [1986] 1 All ER 705, [1986] 1 WLR 323 for cases where the relationship of the parties is solely dependent on the construction of a written document. Unless there is a written contract between the parties, their relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work was performed, and the question whether the work was performed in the capacity of an employee or of an independent contractor is to be regarded as a question of fact to be determined by the trial judge. The appellate court cannot interfere with the trial judge’s evaluation of the facts and impose a second opinion if the case is a borderline one. However, it is obliged to interfere if it concludes that the only reasonable conclusion on the facts found is inconsistent with the determination come to: see Lee Ting Sang v Chung Chi Keung above at 768-70; Chan Kwok Kin v Mok Kwan Hing above; Chan Shui Man v Tsang Hing Shan (t/a Yick Luen Furniture Design) [1991] 2 HKC 243. For an example of the appellate court reversing the trial judge’s decision on the ‘employee or independent contractor’ issue, see Wong Sai Yee v Kong Kwan (t/a Hop Hing Saw Mill) [1987] 3 HKC 134, [1988] 1 HKLR 367; Lee Ting Sang v Chung Chi Keung above; cf Pan Wen Tsai v Wing Luen Universal Laundry Ltd above.

Taking up work on a casual nature, even for one day only, will not affect an employee’s entitlement to compensation under this Ordinance: see Chan Ming v Wayfair Investment Ltd trading in the name of Wayfair Warehousing Co (DCEC 188/1996, 30 November 2000, DC, unreported) followed in Choi Yin Ling acting for herself and on behalf of the members of the family of Cheung Sam Yau, deceased v Sung Wai Kau t/a Sung Kau Transportation Co 蔡燕玲代表自己和死者張三有的家庭成員訴宋偉球經營宋球運輸公司 (DCEC 569/2003, 11 April 2007, DC, unreported, Chinese judgment).

A casual worker may qualify to be an employee of the purpose of the Ordinance even if he works for more than one employer, there is an absence of mutual obligation to provide and accept work, or he has chosen to make his own Mandatory Provident Fund arrangements as a self-employed person: see Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electric Co [2007] 2 HKC 135, [2007] 1 HKLRD 951(CFA).

[2.04] Subs (1)(b): any person whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer’s trade or business

To rely on the exclusion under this subsection from the definition of an employee, this has to be specially pleaded so that the matter could be fully dealt with by the court at the hearing: see On Hang Chu v Chan Ngun (CACV 3780/2001, 9 July 2003, CA, unreported, [2003] HKCU 814, [2003] 2 HKLRD H10). In On Hang Chu v Chan Ngun above, the Court of Appeal mentioned (obiter) that a person who was not employed on a long term basis did not necessarily follow that his employment was of a casual nature.

For an example of the application of the phrase of “employed otherwise than for the purposes of the employer’s trade or business”, see Yu Sing Yuk v Hong Kong & Kowloon Wholesale Salt Co Ltd (ECC 148/83, unreported).

This subsection confers on the court a power to exercise its discretion to treat a contract of service or apprenticeships as valid for the purposes of the Ordinance notwithstanding that it may be illegal. For illustrations of the court exercising such a discretion, see Tsang Siu Hong v Kong Hoi For t/a Wing Hing Auto Engineering Service & Anor (DCEC 529/1999, 17 May 2002, DC, unreported, [2002] HKCU 601). In Lee Mui Fong for herself and other members of the family of Leung Yuk Chun, deceased v Wong Kit Man & Ors (DCEC 455/2002, 18 November 2005, DC, unreported, [2005] HKCU 1631), the court held that the overriding consideration in exercising such a discretion was whether the work which the employee was employed to perform was lawful. This was said to be the single and most important consideration. Illegal immigrants or two-way permit holders taking up employment in Hong Kong is a common phenomenon in Hong Kong. If there is no illegality or unlawfulness in the work performed, the court will likely exercise its discretion in favour of those who engage themselves in employment here to earn honest money by offering their sweat and labour in way similar to other local workers: see Lee Mui Fong for herself and other members of the family of Leung Yuk Chun, deceased v Wong Kit Man & Ors above.

In Chen Xiu Mei v Li Siu Wo [2007] 1 HKLRD 331, [2007] HKCU 26, at first instance the court, having found the contract of employment illegal, went on to exercise its discretion to refuse an award to the deceased employee. It was considered by the court that making awards of compensation to this type of worker tantamount to ‘countenance an illegal contract of employment would be an invitation to the potential law-breakers and squarely against clear public policy’. If, however, this line of reasoning is adopted, then it would be difficult to imagine any circumstance under which the court will exercise its discretion in favour of an illegal employee. That decision was, eventually reversed on appeal with reference to two Court of Appeal’s decisions in Chan Cheuk-ting v Analogue Engineering Ltd & Another [1986] HKLR 935 and Yu Nongxian v Ng Ka Wing [2007] 4 HKLRD 159: see Chen Xiu Mei (above) for herself and for and on behalf of other members of the family of Liang Yi Kai, deceased v Li Siu Wo & Anor [2008] 2 HKLRD 211.

A deceased worker came to Hong Kong from the Mainland as an illegal immigrant in Chan Cheuk-ting v Analogue Engineering Ltd & Anor (above). The Court of Appeal unanimously held that there was nothing in public policy that would require a court to refuse to exercise its discretion so as to deny the dependants the benefit of an insurance policy when the deceased was at the material time performing lawful work which was covered by the scope of the policy.

In Yu Nongxian v Ng Ka Wing (above), the Court of Appeal again exercised its discretion in favour of the members of family of a deceased Mainland worker whose condition of stay prohibited him from taking up employment in Hong Kong. Tang VP observed that public policy would not be served if illegal workers, after having their claims denied, were discouraged from acting as witnesses for the prosecution of employers who pocketed lucrative gains by engaging them to work illegally. It was important to target employers in order to stop illegal employment. Priding Hong Kong as a caring society, Cheung JA considered it to be extremely harsh and cynical to say that public policy should deprive an injured or deceased employee of compensation when he was doing lawful work at all material times in spite of his lack of permission to work in Hong Kong. It was also emphasized by Cheung JA that, in exercising the Court’s discretion under this section, the potential liability of the Employees Compensation Assistance Fund Board should not be taken into account since ‘the primary responsibility to compensate the employee lies with the employer’, but not with the Fund. Whether an employee could recover from his employer and whether he could seek payment from the Board were separate issues. In the words of Lam J, “the Employees’ Compensation proceedings are proceedings determining the liability of the employer, not proceedings determining the liability of the fund”. The major factor which the Court would take into account in the exercise of its discretion remained to be whether the employee was doing work under the contract at the material times.

It was clarified by the Court of Appeal in Chen Xiu Mei’s case above that the court would still exercise its discretion in favour of an illegal worker or his family members irrespective whether the employer did have an insurance coverage similar to that in Chan Cheuk-ting v Analogue Engineering Ltd & Another (above). Moreover, the Court of Appeal also held that the potential liability of the Employees’ Compensation Assistance Fund Board should not affect the outcome of the exercise of its discretion since the Board could adjust the levy imposed on policies or seek to introduce legislative change to deal with such a situation.

Once the court exercises its discretion in favour of the employee, then his contract with the employer must be regarded as lawful for all purposes under the Ordinance: see Chan Cheuk Ting v Analogue Engineering Co Ltd (above). Further, a policy of insurance required to be treated as valid by virtue of this subsection must also be treated as valid under Pt IV of the Ordinance. Hence, once the judge exercises his discretion and makes an order for compensation, it is not open to the insurer to allege that he is not liable under the contract of insurance: see Chan Cheuk Ting v Analogue Engineering Co Ltd above at 941-2.

For further discussions of illegal worker cases, see the commentaries by N Pirie, ‘The Employees Compensation Assistance Scheme and a Caring Society’, (March 2008) Hong Kong Lawyer 27.

The word ‘illegal’ is given a broad meaning to include all forms of illegality and unlawfulness. This includes not only contracts which were illegally performed, but also those which can be treated as illegal and are therefore void ab initio. This subsection protects an employee doing lawful work under such a contract: see Chan Cheuk Ting v Analogue Engineering Co Ltd [1986] HKLR 935, at 940, followed in Lee Mui Fong for herself and other members of the family of Leung Yuk Chun, deceased v Wong Kit Man & Ors (DCEC 455/2002, 18 November 2005, DC, unreported, [2005] HKCU 1631).

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

(a) the Chief Executive of the Hong Kong Special Administrative Region;

(b) a person for the time being assuming the duties of the Chief Executive according to the provisions of Article 53 of the Basic Law.

For ‘compensation’, ‘contract of apprenticeship’, ‘court’, ‘employer’, ‘member of the family’ and ‘outworker’, see s 3 below and notes thereto.

3. Interpretation

‘accident insurance business’ (意外保險業務) means the business of effecting contracts of insurance against the liability of an employer for personal injury by accident to any employee in his employment arising out of and in the course of such employment;

‘Certificate for Funeral and Medical Attendance Expenses’ (殯殮費和醫護費證明書) means a certificate issued under section 6E(1)(b);

‘Certificate of Compensation Assessment for Fatal Case’ (致命個案補償評估證明書) means a certificate issued under section 6B(1)(b);

‘Certificate of Interim Payment’ (臨時付款證明書) means a certificate issued under section 6C(1)(b);

‘cohabitee’ (同居者), in relation to an employee, means any person who at the time of the accident concerned was living with the employee as the employee’s wife or husband;

(a) compensation payable under section 6, 7, 8, 9 or 10, including the expenses of the funeral and medical attendance payable under section 6(5);

(d) the cost of the supplying and fitting of a prosthesis or surgical appliance payable under section 36B, and the probable cost of repair and renewal thereof payable under section 36I;

(e) any surcharge or interest payable under this Ordinance on the compensation referred to in paragraph (a), (b), (c), (d) or (da);

‘contract of apprenticeship’ (學徒訓練合約) includes a contract of improvership or learnership;

(a) in relation to any proceedings for the recovery of compensation in or required to be in the District Court, the District Court; or

(b) in relation to any proceedings for the recovery of compensation in any other court or tribunal, or to be determined by the Commissioner, that court or tribunal, or the Commissioner, as the case may be;

‘damages’ (損害賠償) means any damages recoverable by an employee independently of this Ordinance in the case of personal injury to the employee by accident arising out of and in the course of his employment and any interest payable on such damages;

‘earnings’ (收入) means any wages paid in cash to the employee by the employer and any privilege or benefit which is capable of being estimated in money and includes the value of any food, fuel, or quarters supplied to the employee by the employer if as a result of the accident the employee is deprived of such food, fuel or quarters; and any overtime payments or other special remuneration for work done, whether by way of bonus, allowance or otherwise, if of constant character or for work habitually performed and including tips if the employment be of such a nature that the habitual giving and receiving thereof is open and notorious and is recognized by the employer: but shall not include remuneration for intermittent overtime, or casual payments of a non-recurrent nature, or the value of a travelling allowance, or the value of any travelling concession or a contribution paid by the employer of an employee towards any pension or provident fund, or a sum paid to an employee to cover any special expenses entailed on him by the nature of his employment;

‘ECAFB’ (管理局) means the Employees’ Compensation Assistance Fund Board constituted by section 3(1) of the Employees’ Compensation Assistance Ordinance (Cap 365);

‘employer’ (僱主) includes the Government and any body of persons corporate or unincorporate and the legal personal representative of a deceased employer, and, where the services of an employee are temporarily lent or let on hire to another person by the person with whom the employee has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Ordinance, be deemed to continue to be the employer of the employee whilst he is working for that other person; and in relation to a person engaged, employed or paid through a club or hostel, the manager or members of the managing committee of the club or hostel shall, for the purposes of this Ordinance, be deemed to be the employer;

‘hospital’ (醫院) means any hospital registered under the Hospitals, Nursing Homes and Maternity Homes Registration Ordinance (Cap 165) or maintained by the Crown or which is a public hospital within the meaning of the Hospital Authority Ordinance (Cap 113);

‘insurer’ (保險人) mean a person carrying on accident insurance business in Hong Kong and include-

(a) a company authorized under section 8 of the Insurance Companies Ordinance (Cap 41) to carry on class 13 of the classes of insurance business specified in Part 3 of the First Schedule to that Ordinance;

(b) an association of underwriters approved by the Governor in Council before 1 July 1994 or by the Insurance Authority or after 1 July 1994 under section 6 of that Ordinance;

‘interim payment’ (臨時付款) means an interim payment of compensation the subject of a determination under section 6C(1)(a);

(a) in relation to medical treatment given in Hong Kong, means all or any of the following expenses incurred in respect of the medical treatment of an employee-

(i) the fees of a registered medical practitioner, registered Chinese medicine practitioner, registered dentist, registered chiropractor, registered physiotherapist or registered occupational therapist;

(Replaced 16 of 2006 s 12)

(ii) the fees for any surgical or therapeutic treatment;

(iii) the cost of nursing attendance;

(iv) the cost of hospital accommodation as an in-patient;

(v) subject to section 10AB, the cost of medicines, curative materials and medical dressings;

(Amended 16 of 2006 s 12)

(b) in relation to medical treatment given outside Hong Kong, means such expenses incurred in respect of the medical treatment of an employee as the Commissioner, by certificate in writing issued under section 10B(1)(b), determines to be medical expenses;

(Replaced 1 of 1995 s 2)

‘medical treatment’ (醫治), in relation to an employee to whom a personal injury is caused by accident arising out of and in the course of his employment, means medical treatment of any kind whatsoever given to the employee-

(a) in the case of medical treatment given in Hong Kong, by, or under the supervision of, a registered medical practitioner, registered Chinese medicine practitioner, registered dentist, registered chiropractor, registered physiotherapist or registered occupational therapist;

(b) in the case of medical treatment given outside Hong Kong, by, or under the supervision of, a person who is allowed to practise medicine, surgery, dentistry, chiropractic, physiotherapy or occupational therapy in the place where such medical treatment is given;

in a hospital, whether as an in-patient or other than as an in-patient, or elsewhere;

‘member of the family’ (家庭成員), in relation to an employee, means a person who has any of the following relationships in respect of the employee, whether by blood or an adoption specified in subsection (2)-

(d) a grandson, granddaughter, stepfather, stepmother, stepson, stepdaughter, son-in-law, daughter-in-law, brother, sister, half-brother, half-sister, father-in-law, mother-in-law, brother-in-law, sister-in-law, and child of a brother or sister of the whole blood, any of whom has been living with the employee as a member of the same household and has been so living for the period of 24 months immediately preceding the accident concerned;

‘occupational disease’ (職業病) means any of the diseases specified in the second column of the Second Schedule and any recurrence or sequelae thereof;

‘Ordinary Assessment Board’ (普通評估委員會) means an Employees’ Compensation (Ordinary Assessment) Board appointed under section 16D;

‘outworker’ (外發工) means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the materials or articles;

‘partial incapacity’ (部分喪失工作能力) means, where the incapacity is of a temporary nature, such incapacity as reduces the earning capacity of an employee in any employment in which he was engaged at the time of the accident resulting in the incapacity, and, where the incapacity is of a permanent nature, such incapacity (which may include disfigurement) as reduces his earning capacity, present or future, in any employment which he was capable of undertaking at that time;

‘principal contractor’ (總承判商) means a person referred to as a principal contractor in section 24;

‘registered dentist’ (註冊牙醫) means a dentist whose name is entered in the General Register under section 9 of the Dentists Registration Ordinance (Cap 156);

‘Review Certificate for Funeral and Medical Attendance Expenses’ (殯殮費和醫護費審核證明書) means a certificate issued under section 6E(12)(c);

‘Review Certificate of Compensation Assessment for Fatal Case’ (致命個案補償評估審核證明書) means a certificate issued under section 6D(6)(c);

‘Review Certificate of Interim Payment’ (臨時付款審核證明書) means a certificate issued under section 6C(11)(c);

‘Special Assessment Board’ (特別評估委員會) means an Employees’ Compensation (Special Assessment) Board appointed under section 16E;

(a) any person who enters into a contract, express or implied, with a principal contractor to perform all or any part of the work which the principal contractor has undertaken to perform; and

(b) any other person who enters into a contract, express or implied, to perform all or any part of the work which a sub-contractor within the meaning of paragraph (a) has undertaken to perform;

‘total incapacity’ (完全喪失工作能力) means such incapacity whether of a temporary or permanent nature as incapacitates an employee for any employment which he was capable of undertaking at the time of the accident resulting in such incapacity.

(2) For the purposes of the definition of ‘member of the family’ (家庭成員) -

(i) made under an adoption order made in accordance with the Adoption Ordinance (Cap 290);

(iii) made in Hong Kong in accordance with Chinese law and custom before 1 January 1973;

(b) subject to paragraph (c), any person so adopted shall be treated as the child of the adopter, and not as the child of any other person, and all relationships to the adopted person shall be deduced accordingly; and

(c) any person adopted under an adoption order granted under paragraph (c) of section 5(1) of the Adoption Ordinance (Cap 290) shall be treated as the child of the adopter and the parent referred to in that paragraph, and not as the child of any other person, and all relationships to the adopted person shall be deduced accordingly.

This section was renumbered pursuant to s 3(a) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The definition of ‘adoption’ was amended by adding the words within square brackets and adding para (c) to subs (2) pursuant to s 8 of the Adoption (Amendment) Ordinance (28 of 2004) commencing 25 January 2006.

The definition of the word ‘compensation’ was substituted pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983. The words within square brackets in para (a) were amended pursuant to s 3(b)(i)(A) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000. The words marked by the ellipsis in para (c) of this definition were repealed pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. Paragraph (da) was added pursuant to s 3(b)(i)(B) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000. The words within square brackets in para (e) were amended pursuant to s 3(b)(i)(C) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The definitions of ‘Certificate for Funeral and Medical Attendance Expenses’, ‘Certificate of Compensation Assessment for Fatal Case’, ‘Certificate of Interim Payment’, ‘cohabitee’, ‘interim payment’, ‘Review Certificate for Funeral and Medical Attendance Expenses’, ‘Review Certificate of Compensation Assessment for Fatal Case’ and ‘Review Certificate of Interim Payment’ were added pursuant to s 3(b)(iv) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The definition of ‘Court’ was substituted pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The definition of ‘damages’ was amended by inserting the words within square brackets pursuant to s 47 of the Employees’ Compensation Assistance Ordinance 1991 (54 of 1991), commencing 1 July 1991.

The definition of ‘dependants’ was deleted pursuant to s 3(b)(ii) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The definition of ‘ECAFB’ was added pursuant to s 1 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The definition of ‘employer’ was amended by substituting the original word ‘incorporate’ with ‘unincorporate’ pursuant to s 2 and Sch 2 of the Administration of Justice (Miscellaneous Provisions) (No 2) Ordinance 1995 (68 of 1995), commencing 1 September 1995. The words ‘Her Majesty in Her Government of Hong Kong’ were substituted for the words ‘the Government’ pursuant to Sch 4 of the Adaptation of Laws (No 9) Ordinance 2000 (56 of 2000), commencing 1 July 1997.

The definition of ‘hospital’ was amended by adding the words in square brackets pursuant to s 2 of the Employees’ Compensation (Amendment) Ordinance 1991 (82 of 1991), commencing 5 July 1991. As to the reference to the ‘Crown’, see s 2A(3) and Sch 8 of the Interpretation and General Clauses Ordinance (Cap 1).

The definition of ‘insurance company’ and ‘insurer’ was substituted pursuant to s 31 of the Employees’ Compensation Assistance Ordinance 1991 (54 of 1991), commencing 1 July 1991, and subsequently amended by inserting the words within the inner set of square brackets pursuant to the Employees’ Compensation (Amendment) (No 2) Ordinance 1995 (47 of 1995), commencing 1 August 1995.

The definition of ‘medical expenses’ was substituted pursuant to s 2 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995; whilst subparagraphs (i) and (v) of paragraph (a) were substituted with the words within square brackets pursuant to s 12(1) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The definition of ‘medical practitioner’ was repealed pursuant to s 12(2) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The definition of ‘medical treatment’ was amended by substituting the words within square brackets pursuant to s 2 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995; whilst the words within double square brackets were substituted pursuant to s 12(3) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The definition of ‘member of the family’ was substituted pursuant to s 3(b)(iii) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The definition of ‘Ordinary Assessment Board’ was added pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The definition of ‘partial incapacity’ was amended by adding the words within square brackets and deleting the proviso pursuant to s 2 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1985 (49 of 1985), commencing 26 July 1985.

The definition of ‘principal contractor’ was added pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1982.

The definition of ‘registered Chinese medicine practitioner’ was added pursuant to s 12(4) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The definition of ‘registered chiropractor’ was added pursuant to s 12(4) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The definition of ‘registered dentist’ was substituted pursuant to s 38 of the Dentists Registration (Amendment) Ordinance (11 of 2006), commencing 30 November 2006.

The definition of ‘registered medical practitioner’ was added pursuant to s 12(4) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The definition of ‘registered occupational therapist’ was added pursuant to s 12(4) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The definition of ‘registered physiotherapist’ was added pursuant to s 12(4) of the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance (16 of 2006), commencing 1 September 2008.

The definition of ‘Special Assessment Board’ was added pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The definition of ‘sub-contractor’ was added pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1982 (76 of 1982), commencing 1 July 1983.

The definition of ‘total incapacity’ was amended by deleting the proviso pursuant to s 2 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1985 (49 of 1985), commencing 26 July 1985.

Subsection (2) were added pursuant to s 3(c) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

This section does not have an equivalent in UK legislation. However, the wording of the definition of ‘employer’ is similar to s 5 of the Workmen’s Compensation Act 1925 and the wording of the definition of ‘outworker’ is the same as s 48(1) of the Workmen’s Compensation Act 1925.

Apart from the items defined, the term also includes all sums payable by the employer or the insurer as stipulated in ss 40, 43(1) and 44 of the Ordinance: see King Tak On v Lau Chun Yip & Ors t/a Kar Bun Metal Manufactory & Anor [1987] HKLR 126 at 134.

The definition of ‘earnings’ under this section clearly contemplates the inclusion of double pay benefit: see Law Siu See v De Rodeo Human Resources Ltd (DCEC 989/2001, 22 April 2003, DC, unreported, [2003] HKCU 494); or alternatively ‘end of year payment’: see Hui Sing Pan v Rose Knitting (Asia) Ltd (DCEC 178/2002, 9 July 2007, DC, unreported).

For meaning, see the Employment Ordinance (Cap 57) s 2(1). See also New Bright Industrial Co Ltd v Wong Sau Chi & Ors [1995] 2 HKC 357.

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the District Court of the Hong Kong Special Administrative Region.

The term ‘child’ is not defined in this Ordinance. However, s 2 of the Employment Ordinance (Cap 57) defines ‘child’ to mean a person under the age of 15 years.

This is defined in New Bright Industrial Co Ltd v Wong Sau Chi & Ors [1995] 2 HKC 357 at 362 per Jerome Chan J, to mean an allowance payable in respect of expenses or payments incurred in or made in connection with travelling to and from the place of work.

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to mean the Chief Executive acting after consultation with the Executive Council. As to ‘Chief Executive’, see [2.07] above.

The definition is similar to the one in the Workmen’s Compensation Act 1925 s 5.

Generally, an injured employee is entitled to choose the person against whom to claim compensation. An injured employee should not be refused leave to join a person as the alternative employer even if there is a total lack of details (eg. exact name, contact details etc) of this additional respondent who could be a fictitious person. Otherwise, it may not be possible for the employee to look to the Employees Compensation Assistance Scheme Fund Board in the future for payment compensation which may be awarded in his favour: see Ng Chiu Wing (吳朝榮) v Yip Hoi Ching (葉海青) & Anor (CACV 362/2008, 29 June 2009, CA, unreported).

Where the employer lends the employee’s services to another employer (the borrower), the effect of this provision is to produce a joint and several liability on the part of both the employer and the borrower. The employer remains the employer, and it follows that he cannot avoid liability for injury arising out of and in the course of employment with the borrower: see Wong Wing Cheung v Interlite (Asia) Ltd & Ors [2003] 3 HKLRD 473, [2003] HKCU 862.

Where the employee’s employment was allegedly transferred from one employer to another prior to the accident, then, for the purpose of determining who the employer was for the purpose of this Ordinance, the court has to consider all the circumstances of the employment relationship to determine whether the employee had given express or implied consent
(ie real and not constructive consent by operation of law) for the transfer: see Mohammad Latif v Wing Chi Construction Engineering Co Ltd & Ors (DCEC 656/2001, 7 August 2003, DC, unreported, [2003] HKCU 941).

Quite often practitioners will have to deal with a respondent employer who has gone into liquidation. In such event, it will be necessary to invoke the procedures provided under s 186 of the Companies Ordinance (Cap 32) to obtain leave of the court to commence or proceed with the employees’ compensation proceedings. In the postscript to the judgment delivered by District Judge Marlene Ng in Hussain Tanweer v Focus Roller Shutter Ltd (DCEC 1145/2005, 18 September 2006, DC, unreported, [2006] HKCU 1576), the following guidance note was issued:

As regards the application of the Partnership Ordinance (Cap 38) on employees’ compensation claims: see para [455]-[500] in pp IV 355B to 356 of Butterworths’ Hong Kong Personal Injury Service (Issue 15) and Yan Yee Sim for herself and acting on behalf of members of the family of Yau Bing Kong, deceased v Lo Yuk Hong and Lu Hui Quan both trading as Universe Transportation Co (DCEC 472/2005, 28 November 2006, DC, unreported, Chinese judgment).

This is defined in s 2 of the Hospital Authority Ordinance (Cap 113) to mean a prescribed hospital the management and control of which have been vested in the Hospital Authority under an agreement referred to in s 5(a) of that Ordinance.

The definition under this Ordinance is wider than that under the Workmen’s Compensation Act 1925 s 4(3).

For meaning of ‘wife’, see the Separation and Maintenance Orders Ordinance (Cap 16) s 2. See also Wong Sau Ming v Cheung Ying [1960] HKLR 141, [1960] HKCU 27.

The definition is the same as that under the Workmen’s Compensation Act 1925 s 48(1).

For an example of the application of the definition, see Li Chung I t/a VF Electric Trading Manufacturing Co v Li Man Yuen [1987] 3 HKC 120.

The definition provides, inter alia, that where the incapacity is of a permanent nature, such incapacity may include disfigurement and may be ‘partial incapacity’ if it reduces the earning capacity of the injured employee in any employment which he is capable of undertaking at that time. However, if the ‘disfigurement’ is trivial and does not affect the prospects of employment in the labour market, it will not be classified as partial incapacity; the injured person must suffer some physical discomfort to which previously he was not subject so that it can be said he is handicapped in obtaining any ‘employment which he is capable of undertaking’: Textile Corp of Hong Kong Ltd v Wong Fook Yin [1959] HKDCLR 178, [1959] HKCU 89.

For an example of the application of the definition, see Ever Construction Co v Chan Wai Po (DCA 2013/91, unreported).

4. Application to certain employees

(1) This Ordinance shall apply to employees employed by or under the Crown in the same way and to the same extent as if the employer were a private person, except in the case of-

(b) persons in the civil employment of Her Majesty, otherwise than in Her Government of Hong Kong, who have been engaged in a place outside Hong Kong:

Provided that this Ordinance shall not apply in the case of an employee in the service of the Government of Hong Kong where, in consequence of injury received by any such employee in the discharge of his duties, a pension or gratuity which would not be payable if such injury were received otherwise, is paid to him or, in the case of his death, to any of the members of his family as defined in this Ordinance, under any Ordinance or regulation providing for the grant of such pension or gratuity.

(Replaced 50 of 1954 s 3; Amended 11 of 1958 s 4; 55 of 1969 s 4; 44 of 1980 s 15; 76 of 1982 s 37; 52 of 2000 s 4)

(2) The exercise and performance of the powers and duties of any public body shall for the purposes of this Ordinance, unless a contrary intention appears, be deemed to be the trade or business of such public body.

The words within square brackets were amended pursuant to s 4 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The wording of this section is based on s 33 of the Workmen’s Compensation Act 1925.

As to references to the ‘Crown’, ‘Her Majesty’ and ‘Her Government of Hong Kong’, see s 2A(3) and Sch 8 of the Interpretation and General Clauses Ordinance (Cap 1).

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include the Executive Council, Legislative Council, District Council, any other urban, rural or municipal council, any department of the Government and any undertaking by or of the Government.

It has been held that a commercial company performing duties of a public nature was not a ‘public body’ or ‘public authority’: see A-G v Ma Pak Chi [1964] HKLR 98, [1964] HKCU 9. For the purposes of s 2 of the Prevention of Corruption Ordinance (Cap 215, repealed), where ‘public body’ was defined to include ‘any body which had power to act under or for the purposes of any enactment in force in the Colony’, the police force and the Hong Kong Telephone Company had been held to be within this definition: see R v District Judge, ex p A-G [1958] HKLR 174; A-G v Ma Pak Chi above.

For ‘employee’, see s 2 above; for ‘employer’ and ‘member of the family’, sees 3 above and notes thereto.

PART II

COMPENSATION FOR INJURY

(Added 19 of 1964 s 4)

5. Employer’s liability for compensation for death or incapacity resulting from accident

(1) Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.

(a) any injury, other than an injury which results in partial incapacity of a permanent nature, which does not incapacitate the employee from earning full wages at work at which he was employed;

(c) any incapacity or death resulting from personal injury if the employee has at any time represented to the employer that he was not suffering or had not previously suffered from that or a similar injury, knowing that the representation was false; or

(d) any injury, not resulting in death or serious and permanent incapacity, caused by an accident which is directly attributable to the employee’s addiction to drugs or his having been at the time of the accident under the influence of alcohol.

(3) In any proceedings under this Ordinance where it is proved that the injury to an employee is attributable to the serious and wilful misconduct of that employee, or that an injury by accident arising out of and in the course of his employment is deliberately aggravated by the employee, any compensation claimed in respect of that injury shall be disallowed; except that where the injury results in death or serious incapacity, the Court on consideration of all the circumstances may award the compensation provided by this Ordinance or such part thereof as it shall think fit.

(a) an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment;

(b) an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding that the employee was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by the employee for the purposes of and in connection with his employer’s trade or business;

(i) while, with the consent of his employer, the employee is being trained in first aid, ambulance or rescue work or engaged in any competition or exercise in connection therewith;

(ii) in, at or about any premises other than his employer’s while, with the consent of his employer, the employee is engaged in any first aid, ambulance or rescue work or in any competition or exercise in connection therewith; or

(iii) in, at or about his employer’s premises while the employee is engaged in any first aid, ambulance or rescue work,

notwithstanding that in the case of rescue work the employee was acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if when such act was done the employee reasonably acted in order to rescue, succour or protect any other person who had suffered, or who was reasonably believed to be in danger of, injury, or to avert or minimize serious damage to property of the employer;

(d) an accident to an employee shall be deemed to arise out of and in the course of his employment if it happens to the employee while he is, with the express or implied permission of his employer, travelling as a passenger by any means of transport to or from his place of work and at the time of the accident, the means of transport is being operated-

(i) by or on behalf of his employer or by some other person pursuant to arrangements made with his employer; and

(e) an accident to an employee shall be deemed to arise out of and in the course of his employment if it happens to the employee while he is driving or operating any means of transport arranged or provided by or on behalf of his employer or by some other person pursuant to arrangements made with his employer between his place of residence and his place of work, travelling by a direct route-

(i) to his place of work for the purposes of and in connection with his employment; or

(f) an accident to an employee shall be deemed to arise out of and in the course of his employment if it happens to the employee when, within the duration of a gale warning, or of a rainstorm warning, he is travelling between his place of residence and his place of work-

(i) to his place of work, by a direct route within a period of 4 hours before the time of commencement of his working hours for that day or to his place of residence, within a period of 4 hours after the time of cessation of his working hours for that day, as the case may be; or

(ii) in such other circumstances as the Court thinks reasonable, and for the purposes of this paragraph-

(A) ‘gale warning’ (烈風警告) means a warning of the occurrence of a tropical cyclone in, or in the vicinity of, Hong Kong by the use of the tropical cyclone warning signals issued by the Director of the Hong Kong Observatory to the effect that any of the tropical cyclone warning signals commonly referred to as No. 8NW, 8SW, 8NE, 8SE, 9 or 10 is in force;

(B) ‘rainstorm warning’ (暴雨警告) means a warning of a heavy rainstorm in, or in the vicinity of, Hong Kong by the use of the heavy rainstorm warning signals issued by the Director of the Hong Kong Observatory to the effect that any of the heavy rainstorm warning signals commonly referred to as Red or Black is in force;

(g) an accident to an employee shall be deemed to arise out of and in the course of his employment if it happens to the employee while he is, with the express or implied permission of his employer, travelling by any means of transport for the purposes of and in connection with his employment between Hong Kong and any place outside Hong Kong or between any place outside Hong Kong and any other such place.

This section was substituted pursuant to s 3 of the Employee’s Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

The words marked by the ellipsis in subs (2)(a) were deleted pursuant to s 2 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1996 (67 of 1996), commencing 1 January 1997.

The words marked by the ellipsis in subs (4)(f) were repealed pursuant to s 2(a) of the Employees’ Compensation (Amendment) Ordinance 2000 (24 of 2000), commencing 5 July 1999.

Subsection (4)(f)(ii)(A) and (B) were added pursuant to s 2(c) of the Employees’ Compensation (Amendment) Ordinance 2000 (24 of 2000), commencing 5 July 1999.

The wording of subsections (1) and (4)(a)-(b) of the Ordinance is based on s 1(1) and (2) of the Workmen’s Compensation Act 1925, respectively. Subsection (4)(e) is to the same effect as s 53 of the Social Security Act 1975.

Under this section, an employee can claim employees’ compensation for injury by accident which can be proved to have arisen out of and in the course of employment. The cause of action against an employer accrues upon the date of the accident: see Pang Wai Chung v The Tai Ping Insurance Co Ltd (HCA 10082/1996, 25 March 1998, unreported, [1998] HKCU 257, [1998] HKLRD Yearbook 353). The onus is on the employee to prove that the accident occurred both out of and in the course of his employment: see Yuen Wai Ling v Ocean Shipping and Enterprises [1984] HKLR 425, [1984] HKCU 38 and Tan Hua Ning v Tam Wah Sung [1999] 3 HKC 490. It is however not necessary to show negligence on the employer’s part.

The causation of the injury need not be the tools, the place or the system of work. It is sufficient if the injury arose out of the general circumstances encountered by the employee because of the employment: see Upton v Great Central Railway Co [1924] AC 302, [1923] All ER Rep 286,; Thom v Sinclair [1917] AC 127, [1916-17] All ER Rep 415. If an act done by an employee is within the scope of employment the fact that the act was done in a rash or negligent way will not prevent the employee’s right to compensation: see Harris v Associated Portland Cement Manufacturers Ltd [1939] AC 71, [1938] 4 All ER 831. The injury may even be the employee’s own fault, and compensation will be allowed unless the injury is attributable to ‘serious and wilful misconduct’ on his part (subs (3)).

The requirement that an injury arose ‘out of’ the employment is quite distinct from the parallel requirement that it must also have arisen ‘in the course of’ employment. The former requires some causal relationship between the work and the injury, while the latter relates to time conditioned by reference to the employee’s service and requires that there be some temporal and perhaps spatial relationship between them: see Dover Navigation Co Ltd v Isabella Cr aig [1940] AC 190 at 199, [1939] 4 All ER 558. Greater importance, however, is assumed by the second limb ‘in the course of employment’, as subs (4)(a) provides that “an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of the employment”. See also the notes to subs (4)(a) below. It must be noted that there are also presumptions deeming various incidents to have arisen out of and in the course of employment under subs (4)(b)-(g).

In employees’ compensation cases, where it is established that an accident has arisen out of and in the course of employment and that the accident has caused injury to the employee, it is common for the parties to seek a court order by consent to the effect that judgment on liability be entered in favour of the applicant (ie the employee) against the respondent [ie the employer]. However, practitioners acting for the employer should consider carefully what exactly is being admitted by the employer. In Chan Kam Hoi v Dragages et Travaux Publics (ECC 208/90, 20 November 1997, CA, unreported, [1997] HKCU 336), the Court held that a term in the consent order which merely stated ‘judgment in respect of liability be entered’ in favour of the employee amounted to a clear and unequivocal admission of liability without any qualification, and the employer was precluded from subsequently arguing that the injury to the employee was caused not by an accident but by degeneration. If the parties wish to limit the scope of the concession, they should expressly define the limit.

This word includes physical injury as well as nervous and mental illness: see Chan Kan Fat v Dickson Construction Co Ltd (ECC 80/84, unreported). In this case the court also held that, if the possibility of the employee malingering was raised on the evidence, then the employee’s evidence must on a balance of probabilities rebut the possibility.

The word ‘accident’ qualifies the word ‘injury’, confining it to a certain class of injuries, and excluding other classes such as injuries by disease or injuries self-inflicted by design.

Whether or not an injury is sustained by accident is a mixed question of law and fact: see Roper v Greenwood (1900) 83 LT 471:

(1) The question of the existence of the personal injury sustained by accident and of its cause or causes is one of fact: see Langley v Reeve (1910) 3 BWCC 175; Baffa v Mongiat (1924) 17 BWCC 163; Warsawa v SS ‘Watsness’ (1928) 21 BWCC 85;

(2) The question whether such cause or causes amount to an accident within the meaning of the Ordinance is a question of law on which the decision of the trial judge is not final, and is not a question of fact on which his decision is open to appeal: see Fenton v Thorley & Co Ltd [1903] AC 443.

The word ‘accident’ does not necessarily involve the idea of something fortuitous and unexpected: see Hensey v White [1900] 1 QB 481; Roper v Greenwood above. The word is used in its popular and ordinary sense as denoting an unlooked-for mishap or untoward event which is not expected or designed by the employee himself: see Fenton v Thorley & Co Ltd above. This definition was followed by the District Court in Ho Woon King v The Hong Kong & Kowloon Wharf& Godown Co Ltd [1965] HKDCLR 265; Chow Mui v Chow Cheuk Chung [1970] HKDCLR 94; Tang Siu Kong v Bonanza Fur Factory Ltd [1991] HKDCLR 64; Ma Tsz Ming v Perkin Elmer Hong Kong Ltd (ECC 129/96, unreported); Suen Yuk Chun v Jet and Smart Holdings Limited (DCEC 1588/2006, 30 April 2008, DC, unreported). See also Kwan Hei v Trans Globe Maritime Ltd (WCC 35/79, 21 November 1979, DC, unreported); Wong Chick v Swire Pacific Ltd [1992] 1 HKC 571. An accident includes injury caused by over-exertion in the ordinary course of employment: see Fenton v Thorley & Co Ltd above. Absorption into the respiratory system, at a specified time, of anthrax germs, is also an accident: see Brintons Ltd v Turvey [1905] AC 230. Cf notes to s 32(1) below. Death by heat-stroke may also be death within the meaning of the Ordinance: see Ismay, Imrie & Co v Williamson [1908] AC 437(HL).

It is not necessary to show a sudden dramatic occurrence such as a collision, collapse or death. The lack of instantaneous complaint by the employee to his colleagues will not make it any less an accident. Anything that happens to a person while he or she is at work happens in the course of the employment and if it happens unexpectedly, it is an accident in the course of employment: see Lam Sik v Sen International Ventures Corp (HK) Ltd [1994] 3 HKC 405, applying Weston v General Boulder Gold Mines Co (1964) 112 CLR 30; and Suen Yuk Chun v Jet and Smart Holdings Limited (above).

The construction of the phrase ‘injury by accident’ was clarified by the House of Lords in Trim Schoolv Kelly [1914] AC 667: the phrase means any injury and any mishap unexpected by the employee, irrespective of whether or not it is brought about by wilful act of someone else. It therefore appears that the mishap or occurrence must be looked at from the employee’s standpoint, and that, whatever its cause or origin, it will be accidental unless it was designed by the employee himself. It is not enough that others would have expected it: see Clover, Clayton & Co Ltd v Hughes [1910] AC 242, [1908-10] All ER Rep 220. Therefore ruptured aneurism from ordinary exertion, which could be predicted by a medical man, had been held to fall within the meaning of ‘injury by accident’: see Clover, Clayton & Co Ltd v Hughes, above.

Attention has also been drawn by the House of Lords in Warner v Couchman [1912] AC 35 to the fact that the expression is ‘by accident’ and not ‘by an accident’. The term ‘by accident’ in fact includes the following:

(1) personal injury sustained under circumstances which can be referred to as ‘an accident’; and

(2) cases in which there are no such circumstances capable of being so described but in which the results of the occurrence are so unexpected that they may fairly be considered as accidental.

For detailed illustrations of the above two classes of cases, see Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) p 10 et seq.

Injury by accident includes physiological injury or change occurring in the course of employment by reason of the work in which the employee is engaged at or about that moment; and that is so even though the injury or change be occasioned partly, or even mainly, by the progress or development of an existing disease, if the work is done at or about the moment of occurrence. Moreover, this is none the less true though there may be no evidence of any strain or similar cause other than that arising out of the employee’s ordinary work: see Oates v Earl Fitzwilliam’s Colliers Co [1939] 2 All ER 498 at 502, per Clauson LJ. See also Breen v Morgan Crucible Co Ltd (1933) 26 BWCC 368; Minister of Social Security v Amalgamated Engineering Union [1967] 1 AC 725, [1967] 1 All ER 210;; Jones v Secretary of State for Social Services Hudson v Secretary of State for Social Services [1972] AC 944, [1972] 1 All ER 145.

In Wong Gun Fook v Mrs JLG McLean [1973] HKDCLR 75, [1973] HKCU 56, it was held that the word ‘accident’ includes occurrences intentionally caused by others, and that its meaning is sufficiently wide to include a murder. For further illustrations, see Anderson v Balfour [1910] 2 IR 497 (attack); Nisbet v Rayne and Burn [1910] 2 KB 689 (murder); Trim School v Kelly above (murder). A suspected case of homicide may not prevent the court from drawing an inference that the death of an employee was caused by an accident at work: see Cheung Kai Chi for and on behalf of the dependents of the deceased, Cheung Kin Keung v Chun Wo Contractors Ltd & Anor (DCEC 415/2003, 25 October 2004, DC, unreported, [2004] HKCU 1396).

Injury by accident also includes injury from disease resulting from accidental circumstances. This is because by calling the consequences of an accidental injury a disease one does not alter the nature of the consequential results of the injury that has been inflicted: see Brintons Ltd v Turvey above.

Where there is a single accident followed by a resultant injury or there is a series of specific and ascertainable accidents followed by an injury which may be the consequence of any or all of them, compensation will be recoverable under the Ordinance. It is immaterial that the time at which the accident occurred cannot be ascertained. However, compensation will not be payable if there is a continuous process going on substantially from day to day, though not necessarily from minute to minute, or even from hour to hour, which gradually over a period of years produces incapacity: see Roberts v Dorothea Slate Quarries Co Ltd [1948] 2 All ER 201(HL) at 205-6. See Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) pp 20-150 for cases noted under the Workmen’s Compensation Acts. Regarding compensation for occupational diseases, see the notes to ss 32 to 36 below.

This phrase means arising out of the work the employee is employed to do and what is incidental to it; in other words out of his service. It is not necessary to prove that the accident arose directly out of employment. All that is necessary is to show that the employee was doing something which was an incident of his employment or is incidental to it: see Charles R Davidson & Co v M’Robb [1918] AC 304 at 314 and R v National Insurance Commissioner, ex p Michael [1977] 2 All ER 420, [1977] 1 WLR 109(CA), both followed in Lau Kam Nui v Sau Kee Co Ltd [1998] 4 HKC 612, [1999] 1 HKLRD 163. See also: Lam Hon Keung v Pang May Ngor, Rita t/a Tin Shing (Hong Kong & China) Freight Services Co (DCEC 648/2003, 22 June 2005, DC, unreported, [2005] HKCU 820) and Chen Xiu Mei v Li Siu Wo [2007] 1 HKLRD 331, [2007] HKCU 26.

The question whether an accident arose out of the employment is generally one of causation: see United Ford Development Ltd (t/a King Ford Mahjong Club) v Fung Yin Yee Shirley [1993] 2 HKLR 290. The accident must be one ‘arising out of’ employment and there must be some relation of cause and effect between the employment and the accident as well as between the accident and the injury: see Wong Kwai Ngor v Taiship Co Ltd [1983] 1 HKC 601, applying Clover, Clayton & Co v Hughes above. The test is: was it part of the injured person’s employment to hazard, to suffer or to do that which caused the injury? If yes, then the accident arose out of employment. If no, it did not, because what it was not part of the employment to hazard, to suffer or to do cannot be the cause of an accident arising out of the employment: see Lancashire and Yorkshire Rly Co v Highley [1917] AC 352 at 372. In other words, the crucial issue is whether the accident resulted from a risk which was necessarily incidental to the performance of the employee’s work. If this was so, the accident arose out of the employment: see Dennis v AJ White & Co [1917] AC 479.

Following the test stated above, sufficient causal connection between the accident and the employment is established if the employee’s employment brought him to the particular spot where the accident occurred and the spot in fact turns out to be a dangerous spot. If such a locality risk is established, the accident arose out of the employment, even though the risk which caused the accident was neither necessarily incidental to the performance of the employee’s work, nor one to which he was normally subjected: see Lawrence v George Matthews (1924) Ltd, [1929] 1 KB 1, approved in United Ford Development Ltd (t/a King Ford Mahjong Club) v Fung Yin Yee Shirley above. See also Thom v Sinclair [1917] AC 127, [1916-17] All ER Rep 415; Byrne v Campbell [1923] 2 IR 106; Smith v Davey, Paxman & Co (Colchester) Ltd [1943] 1 All ER 286; Lai Fong v Shun Fung Ironworks Ltd (DCEC 100/1976 and 101/1976, 17 January 1977, DC, unreported) and see Cheung Wai Yick (張偉益) v Lau Kin Wing (劉見榮) (DCEC 1164/2007, 19 February 2009, DC, unreported). There will also be sufficient casual connection if an employee meets with an accident when he is taking reasonable steps to protect and preserve his employer’s property. The employer would be responsible for those acts done in his interest which fall within the scope of his employee’s implied authority: see Poland v John Parr and Sons [1927] 1 KB 236, [1926] All ER Rep 177, followed in Lau Kam Nui v Sau Kee Co Ltd [1998] 4 HKC 612, [1999] 1 HKLRD 163. The question whether or not there is a causal connection between the work and the injury is one of fact: see Wong Kwai Ngor v Taiship Co Ltd (above).

One must further note the presumptions specified under subs (4)(a)-(g). Subsection (4)(a), as stated above, provides that “an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of the employment”. Under subs (4)(b)-(g), there are also presumptions deeming various incidents to have arisen out of and in the course of employment. See also the notes to subs (4)(a) below.

Assaults and other violence

When injury or death was caused to an employee as a result of deliberate attack, it does not necessarily mean that this was not an accident for the purpose of the Ordinance. Whether this was an accident should be addressed from the point of view of the employee. It is necessary to look at the time when the accident took place, the place where it happened and what the employee was doing when and where it occurred: see Wong Kam Ho v Chim Ching Lam [1989] HKDCLR 11 and Cheung Shuk Wah Jessica (張淑華) for herself and other members of the family of Man Chung Wah, deceased v Wong Kang Hung Darwin formerly t/a New Voice Pub (DCEC 842/2007, 9 July 2009, DC, unreported).

An injury due to an assault will be held to have arisen out of the employment if it can be shown that the assault arose out of some incident occurring in the course of the employment, such as a dispute over work: see Srinakhonkdee Rampai v Wong Wai Lam & Anor (HKECC 348/92, unreported), Chong Hing Fat v Poon Wai Hung trading as Shek Pik Canteen Prison Staff Canteen DCEC 414/2001, 26 September 2002, DC, unreported), Chong Sun Wah v Sinopoint Logistics Ltd (DCEC 504/2004, 21 December 2006, DC, unreported,, [2007] HKCU 476) and Kwong Fuk Wai Mike v Hero Glory Ltd t/a U-Two (DCEC 1296/2007, 4 June 2009, DC, unreported, Chinese Judgment), or that the employment, by its circumstances, involved a special risk of assault not incurred by persons not so employed or not so employed under the circumstances. In Cheung Shuk Wah Jessica (張淑華) for herself and other members of the family of Man Chung Wah, deceased v Wong Kang Hung Darwin formerly t/a New Voice Pub (above), a bartender who received fatal stabs in the course of escorting a female colleague from the pub when they left work subsequent to his intervention of customer abuses in their work place was held to have met an accident arising out and in the course of his employment. The employee must prove that he was by his employment exposed to risks not incurred by an ordinary member of the public: see Smith v Stepney Corp (1929) 2 BWCC 451. See further the following cases in which an injury by assault was held to have arisen out of the employment: see Challis v London and South Western Rly Co [1905] 2 KB 154; Anderson v Balfour [1910] 2 IR 497; Nisbet v Rayne and Burn above; Trim School v Kelly above; Weekes v William Stead Ltd (1914) 83 LJKB 1542; Shaw (Glasgow) Ltd v Macfarlane [1915] SC 273; Reid v British and Irish Steam Packet Co [1921] 2 KB 319; Powell v Great Western Rly Co [1940] 1 All ER 87. For further cases, see Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) pp 109-111.

To establish liability in cases of this nature, an employee may gain support from the presumption under subs (4)(a) which provides inter alia that ‘an accident arising in the course of employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment’. See [5.13] and [5.14] below and the following cases: Tsang Yuk Chung v China Fleet Club - Royal Navy Restaurant Caterer Overseas Assurance Corp Ltd (DCEC 92/72, 17 February 1973, DC, unreported); Wong Gun Fook v Mrs JLG McLean [1973] HKDCLR 75, [1973] HKCU 56 (overruled by the Court of Appeal in Fong Fung Ying v A -G [1991] 2 HKLR 133); Fan See Yuk v Ocean Tramping Co Ltd [1974] HKDCLR 1; Ma Yuet Yin v Patt Manfield & Co Ltd [1980] HKDCLR 92, [1980] HKCU 95; Fong Fung Ying v A-G [1991] 2 HKLR 133; Yue Sang v International United Shipping Agency Ltd [1992] 1 HKC 542; Kong Hon Hung v Yuen Hing (China) Transportation Ltd (DCEC 150/1998, 5 January 2001, DC, unreported); Cheng Wai Yin, Timothy v Lung Fung Estate Agency o/b Legend Star Development Ltd (DCEC 797/2000, 24 September 2001, DC, unreported); Law Yim Ming v Cheung Hang Fook t/a Tung Lok Villa & Anor (DCEC 450/2001, 7 June 2002, DC, unreported) and Lam Chi Biu v Mak Kee Ltd & Anor (DCEC 1203/2002, 4 June 2004, DC, unreported, [2004] HKCU 790).

Drunkenness

Where an accident is due entirely to the employee’s drunken condition, it is not one arising out of the employment: see Frith v Louisianian (Owners) [1912] 2 KB 155; Nash v Owners of SS Rangatira [1914] 3 KB 978; W Thomson & Co v Anderson (1921) 91 LJPC 87; Murphy v Cooney [1914] 2 IR 76; Renfrew v M’Crae Ltd [1914] SC 539. If, however, an accident happens to an employee acting within the scope of his authority and doing an act which is part of his duty and the accident arises from his doing that act and being thereby exposed to a special risk, then the fact that he was drunk when the accident happened will not prevent the accident from being one arising out of the employment: see Williams v Llandudno Coaching and Carriage Co Ltd [1915] 2 KB 101; Bulmer and Byron v SS Baluchistan (1934) 27 BWCC 399; Yuen Yuk Ying v Chan Kam Wing (t/a Kam Bo Real Estate Co) [1997] 1 HKC 198. See further Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) pp 115-116. Practitioners should however address the issue of drunkenness with care when dealing with employees’ compensation claims involving death and serious and permanent incapacity: see subs (2)(d) and [5.10]-[5.11] below.

In Moore v Manchester Liners Ltd [1910] AC 498(HL), Lord Loreburn defined the term to mean an accident which occurs while the employee is doing what someone ‘so employed may reasonably do within the time during which he is employed, and at a place where he may reasonably be during that time’. In Low (or Jackson) v General Steam Fishing Co Ltd [1909] AC 523 at 532, Lord Loreburn further elaborated that the phrase should not be construed in a narrow manner. When a man is employed, he is not usually expected to be at work unceasingly, without either rest or pause. Everything must depend upon the nature of what he has to do, but allowance should be made for the ordinary habits of human nature and the ordinary way in which those employed in such an occupation may be expected to act. Bokhary DJ adopted a liberal approach in construing the phrase in Lam Sik v Sen International Ventures Corp (HK) Ltd [1994] 3 HKC 405, ruling ‘anything that happens to a person while he or she is at work happens in the course of employment’.

Any causal relationship between the work and the injury is to be established under the ‘arising out of’ limb of the section. The requirement that the injury arose ‘in the course of’ employment means no more than that the worker is injured while engaged in the employment: see Kavanagh v The Commonwealth (1960) 103 CLR 547.

‘In the course of the employment’ does not mean during the currency of the engagement, but means in the course of the work which the employee is employed to do and what is incidental to it. Absence on leave for the employee’s own purposes is an interruption of the employment: see Charles R Davidson & Co v M’Robb [1918] AC 304, followed in Lam Min v Yau On Construction Co [1981] HKLR 646, [1981] HKCU 67.

In general terms, the test whether an employee was acting in the course of his employment is whether his act was something incidental to his contract of service, although he might be under no duty to do it. This is a question of fact and degree. Applying this test, an employee was held to have taken himself out of the course of employment by overstaying the tea-break allowed by the employer: see R v Industrial Injuries Commissioner, ex p Amalgamated Engineering Union [1966] 2 QB 21, [1966] 1 All ER 97(CA).

However, for an injury to qualify for employees’ compensation, that injury must have been suffered in the course of the work which the injured employee is employed to do, or have been incidental to that work. It is not enough that the injury was suffered during the employee’s contract of service. Nor, so far as the adjective ‘incidental’ is concerned, is it sufficient for the injury to have been suffered in some manner incidental to that contract of service. If the injury is not suffered in the actual course of the work which the employee is engaged to do, it must have at least been suffered by reason of some event incidental to that work: see R v National Insurance Commissioner, ex p Michael [1977] 2 All ER 420, [1977] 1 WLR 109, followed in Lam Min v Yau On Construction Co at 650 above,. In other words, it is not enough to show that the injury is the result of some event ‘incidental to the employment’. The injury has to be incidental to the ‘work’ which the injured employee was employed to perform: see Wong Kam Ho v Chim Ching Lam [1989] HKDCLR 11.

An employee is acting in the course of employment when he is doing something in discharge of his duty to his employer, directly or indirectly imposed upon him by his contract of service. The true ground upon which the test is to be based is a duty to the employer arising out of the contract of employment; but it is to be borne in mind that the word ‘employment’ also covers and includes things belonging to or arising out of it: see St Helen Colliery Co Ltd v Hewitson [1924] AC 59, [1923] All ER Rep 249. In other words, before an accident can be said to have occurred during the employment of the employee, it must have occurred while the employee was doing something which ‘his employer could and did, expressly or by implication, employ him to do or order him to do’: see St Helen Colliery Co Ltd v Hewitson at 91 above.

Where there is no doubt that an accident has taken place during the time and at the place of employment, but the exact circumstances are unknown, if there are facts from which it may be deduced that the employment brings the employee within, or allows him to be within, the proximity of the peril to which his injury or death can properly be ascribed, the court is entitled on such evidence as there is to come to the conclusion that the accident arises in the course of the employment: see Fisher or Simpson v London, Midland and Scottish Railway Co [1931] AC 351, [1931] All ER Rep 590(HL), followed in Siu Yau Tai v Hung Chun Hing [1989] 1 HKLR 347 at 349. See also Fung Po Chun v Mollers Ltd [1966] HKDCLR 96, where it was held that, in the absence of violence or suicide, the inference was that the death of the employee was due to some accident within the scope of his employment, and the onus was on the employer to displace that inference. If the court is not satisfied that the death of the employee was caused by suicide, the only alternative left is death by accident: see Fan See Yuk v Ocean Tramping Co Ltd [1974] HKDCLR 1 and Ng Mung Khian v Wing Kwong Painting Co Ltd & Anor [2005] 3 HKC 48.

Regarding cross-border employees, it is not accepted that they should be viewed as having engaged themselves continuously in the course employment from the moment they cross the border until the moment they return to the jurisdiction. It is still necessary to determine whether at the time of accident the employment continues to run its course. Deputy Judge A To had this to say in Li Hon Shuen the administrator of the estate and as dependent for himself and on behalf other dependants of Li Wai Ming, deceased v Man Ming Engineering Trading Co Ltd [2006] 1 HKLRD 84:

‘In my view, whether an employee is in the course of employment is a question of fact. The test is simply whether at the material time the employment continues to run its course. Prima facie, an employee is in the course of employment during his duty hours and ceases to be in the course of employment when his duty hours are over or when he clocks off work until he resumes duty on the following day. The situation may be more complicated in the case of an employee on overseas duty or a cross-border employee. But, the test whether such an employee is in the course of employment after his duty hours is the same. This question may be answered by considering whether the employee has the freedom to go where he pleases and do what he pleases, whether the employer is concerned with how the employee disported himself during the off duty hours or whether he was required to go and stay at a particular place in the interim period for the employer’s purpose such as on standby duty or on call. Resting and sleeping is a necessary and natural physiological activity of the body in a 24-hour cycle. Thus, prima facie, resting and sleeping at the end of the day creates a natural break in the continuity of employment unless the employee is required by his employer to sleep and rest at a particular place so as to make himself available for the employer’s purpose as and when required.’

The above dicta of Deputy Judge A To was echoed by District Judge Marlene Ng in Leung Pok Sang (梁博生) v Chan Kwong (陳光) t/a Yau Lee transp Hong (有利運輸行) (DCEC 1192/2003, 13 November 2007, DC, unreported).

Commencement and termination of employment

It is a general rule that a person’s employment does not begin until he has reached the place where he has to work or the ambit, scope or scene of his duty, and it does not continue after he has left it, and the periods of going and returning are generally excluded: see Benson v Lancashire & Yorkshire Rly [1904] 1 KB 242 and other authorities referred to in Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) p 24 et seq.

There may however be cases in which the employee’s employment exists before the commencement, or continues after the termination, of his actual work, and even before he has arrived at, or after he has left the scene of labour. Such cases may arise from the express or implied terms of his contract with his employer, or from necessities and circumstances of the case. It is possible for employment extended beyond the usual place and times of work as accepted by the Court in Kwong Fuk Wai Mike v Hero Glory Ltd t/a U-Two (DCEC 1296/2007, 4 June 2009, DC, unreported, Chinese Judgment). Summaries of the relevant decisions can be found in Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) pp 27-38. In brief terms, these exceptions are:

(1) Time spent in transport

As to this, see subs (4)(d)-(g) for various presumptions which, in effect, supersede the decision in Lo Kwai Chun v Hong Kong Oxygen and Acetylene Co Ltd [1980] HKC 123, [1980] HKLR 420. The presumptions give an artificial extension to the meaning of the course of employment and have to be construed narrowly: see Check Chor Ching v Wik Far East Ltd [1991] HKDCLR 71(DC)[1991] 1 HKC 296, [1991] 2 HKLR 224(CA), which also illustrates how the court applied subs (5A), the predecessor of subs (4)(d)-(g), to the particular facts of that case. For street accidents to an employee, see Bell v Sir WE Armstrong, Whitworth & Co Ltd (1919) 35 TLR 479 which held that, in order for the employer to be made liable for a street accident to an employee, the employee must have been in the street on the employer’s business or in pursuance of a duty owed to the employer. If the employee is in the street for pleasure or for some necessary purpose of his own, such as obtaining food, the employer is not liable for any accident to him. Cf, however, Yan Tong Kan Alice v Gammon (HK) Ltd [1981] HKDCLR 1. See also Po Kwong Mui v Cheoy Lee Shipyards Ltd [1993] HKDCLR 1. In Chan Man Lap v Secretary for Justice (DCEC 261/1998, 29 October 2001, DC, unreported), an employee who was injured on the way back to the workplace from a canteen was held to be entitled to compensation. This, it is submitted, must be correct, for common sense dictates that the act of returning to the workplace after taking a meal is to be regarded as incidental to employment.

In the context of a road accident to the employee, it has also been held that whether the accident arose in the course of employment should be decided by considering all material factors, with no one factor being so decisive as to outweigh the others, and that there is no test based on whether the employee was at the material time acting in the course of his contractual obligations to his employer: see Nancollas v Insurance Officer [1985] 1 All ER 833(CA). This was applied in Chan Lap Sin Alexander v Gold Lion Productions Co (ECC 300/90, 6 April 1995, DC, unreported, [1995] HKCU 119), in which the court decided the issue by considering the following factors:

(i) the place of work;

(ii) the hours of work;

(iii) the nature of what the employee was doing, and whether it was done with the employer’s consent;

(iv) whether the work was done under orders from the employer; and

(v) whether in doing the work the employee was acting in the employer’s interest or in furtherance of the employer’s purpose.

The paramount principle in law remains to be that an employee travelling on the street will be acting in the course of his employment if, and only if, he is at the material time going about his employer’s business or in pursuance of a duty owed to his employer. In Chow Shu Ki v Osram Prosperity Company Ltd (DCEC 1059/2000, 21 November 2001, DC, unreported), the deceased employee sustained fatal injury while on a bus trip one evening after leaving his office. As the Court was satisfied on the evidence that deceased was on his way to visit customers, it was held that at the material time the deceased was still acting in the course of employment and an award of compensation was made.

Other important legal propositions had been stated by Lord Lowry in a judgment delivered by the House of Lords in Smith v Stages [1989] 1 AC 928, [1989] 1 All ER 833(HL), some of which were echoed by Mr Justice Cheung JA in the Court of Appeal’s decision in Hsu Shu Chiao v Lung Cheong Toys Ltd [2002] 1 HKC 479:

(i) An employee travelling from his ordinary place of residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment;

(ii) If an employee is obliged by his contract of service to use the employer’s transport, he will normally, in the absence of an express condition to the contrary, be regarded as acting in the course of his employment whilst doing so;

(iii) Travelling in the employer’s time between workplaces (one of which may be the regular workplace) or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces (as an inspector of gas meters might do), will be in the course of the employment;

(iv) Receipt of wages (though not receipt of travelling allowance) might indicate the employee is travelling in the employer’s time and for his benefit and is acting in the course of his employment, and in such a case the fact that the employee may have discretion as to the mode and time of travelling will not take the journey out of the course of the employment;

(v) An employee travelling in the employer’s time from his ordinary residence to a workplace other than his regular workplace or in the course of a peripatetic occupation or to the scene of emergency (such as a fire, an accident and a mechanical breakdown of plant) will be acting in the course of his employment;

(vi) A deviation from or interruption of a journey undertaken in the course of employment (unless the deviation or interruption is merely incidental to the journey) will for the time being (which may include an overnight interruption) take the employee out of the course of his employment; and

(vii) Return journeys are to be treated on the same footing as outward journeys.

(2) Means of access to and egress from place of work

There must in all cases be an interval of time and space in going to or returning from the scene of work during and in which the employment lasts. The employment of an employee is not limited to the moment when he reaches the place where he is to begin his work and to the moment when he ceases that work. It includes a reasonable interval of time and space: see Gane v Norton Hill Colliery Co [1909] 2 KB 539.

(3) Attendance before starting time

The course of employment may be taken to have commenced although the hour for the actual work has not started, if the employee’s arrival on the premises is either not unreasonably early, or is necessitated by the circumstances of the employment, or if, at the time of the accident, he is doing something on the employer’s premises which is necessary to be done to equip himself for his work, and which is done in the interest of the employer. In other words, a reasonable margin must be allowed to the employee for the purpose of getting to the part of the premises where his actual work is to be carried out. If during that interval he is engaged in doing something which is for the benefit of his employer, he is just as much engaged in his employment as if he were engaged in the actual work which he has to do. The moment at which the actual work of the employee begins cannot be taken as the true moment of the commencement of his employment for the purposes of the Ordinance: see Sharp v Johnson & Co Ltd [1905] 2 KB 139. See also Cross, Tetley & Co Ltd v Catterall [1926] 1 KB 488n; Fitzpatrick v Hindley Field Colliery Co (1901) 4 WCC 7; May v Ison (1914) 110 LT 525.

(4) Returning to the employer’s premises

An employee who has to return to his employer’s premises for some legitimate purpose justified by the terms of his employment, is acting within the course of his employment. This is so even though the return be after the termination of his employment: see Molloy v South Wales Anthracite Colliery Co (1910) 4 BWCC 65; Sexton v Hosford (1916) 9 BWCC 643. Cf Phillips v Williams (1911) 4 BWCC 143.

It must however be noted that a mere permission to return to the premises, without any obligation on the part of the employee to do so, will not entitle the employee to claim compensation in respect of an accident then and there sustained: see M’Laren or Donachie v Canadian Pacific SS Ltd 19 BWCC 704.

(5) Compulsory use of premises provided by the employer

When between hours of active work it is the duty of an employee to use premises provided by his employer as a resting place, the employee is in the course of his employment while using the premises, even though he makes some payment therefor; but this is not the case if there is no obligation upon the employee to avail himself of the accommodation: see Brentnall v London and North Eastern Rly Co (1932) 25 BWCC 265, affirmed by the House of Lords in London and North Eastern Rly Co v Brentnall [1933] AC 489, [1933] All ER Rep 285; cf Alderman v Great Western Rly Co [1937] AC 454, [1937] 2 All ER 408 and Ma Kit Ching Veronica v A-G [1983] 1 HKC 470 (criticised in Martin, “Employees’ Compensation: ‘Arising out of and in the course of employment’ “(1986) 16 HKLJ 71 at 78).

Interruption of the course of employment

The protection given by the Ordinance is not confined to the time during which an employee is actually engaged in manual labour. The employee may still be protected during intervals of leisure which may occur in the course of his daily employment. An employee is not a machine and must be treated as likely to act in the same way as employees ordinarily would during such intervals and as regards any reasonable use which, while on the employer’s premises, he may make of moments when he is not actually working: see Benson v Lancashire and Yorkshire Rly Co [1904] 1 KB 242 at 251. See also Low (or Jackson) v General Steam Fishing Co Ltd [1909] AC 523 at 532; Knight v Howard Wall Ltd [1938] 4 All ER 667; R v Industrial Injuries Commissioner, ex p Amalgamated Engineering Union, above; Shirt v Cheshire Lines Committee (1942) 35 BWCC 14; Chan Yau Wei v Chuen Kee Seafood Restaurant Group Ltd (DCEC 111/2001, 29 May 2004, DC, unreported, [2004] HKCU 629).

Taking rest whilst on duty

In Chan Ho for herself and the members of the family of Tam Yun Shing, deceased v 999 HK Petroleum Co Ltd (DCEC 481/2002, 24 March 2004, DC, unreported, [2004] HKCU 358), the deceased employee was on 48 hours’ duty and was allowed to sleep during the hours on duty. He was murdered during his sleep. The court held that the accident took place in the course of the deceased’s employment since his sleep was incidental to his employment.

An employee who was awaiting a lunch break or assignment of further duties by his employer was found to be acting within the course of his employment when he met with an accident during that interval: see Cheung Wai Yick (張偉益) v Lau Kin Wing (劉見榮) (DCEC 1164/2007, 19 February 2009, DC, unreported).

Absence from work

Having regard to what is said to be the test of ‘in the course of employment’, it would seem that an accident cannot be said to have arisen in the course of employment if, at the time of its occurrence, the employee was at a place where he would not then have been if he had not voluntarily interrupted his employment: see, eg, Warren v Hedley’s Collieries (1913) 6 BWCC 136. As to the point at which employment is resumed after an interruption, see, eg, Creer v Brightside Foundry and Engineering Co Ltd (1942) 35 BWCC 9 and other cases cited in Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) pp 38-44.

Prohibited acts and acting without instructions

By subs (4)(b), an accident to an employee shall be deemed to arise out of and in the course of his employment, notwithstanding the employee was at the time when the accident happened acting in contravention of any statutory or other regulations applicable to his employment, or of any orders given by or on behalf of his employer, if such act was done by the employee for the purposes of and in connection with his employer’s trade or business.

Notwithstanding subs (4)(b), it is submitted that a distinction is still required to be drawn between an accident happening through acts performed in contravention of regulations and orders limiting the sphere of the employee’s employment and those limiting the conduct of work within the sphere of his employment. The employee will find himself outside the sphere of employment should he contravene the former class, whereas a contravention of the latter class does not affect the sphere of employment and consequently does not preclude the right to compensation: see, eg, Plumb v Cobden Flour Mills Co Ltd [1914] AC 62; Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) pp 46-55.

In Chiu Yuk Ming v Sun Plaza Ltd t/a Empire Barbecue Restaurant (DCEC 363/2001, 2 April 2002, DC, unreported, [2002] HKCU 491), an employee injured her thumb in picking up glass fragments notwithstanding the sounding of a general alarm by the employer that no one should pick up anything. The employee alleged that she did not hear this instruction. The court held that this general alarm did not qualify as a specific instruction or order given by the employer, and so the employee’s act of picking up the fragments could not be said to be contrary to instructions.

Acting under superior’s orders

If a person is put over a subordinate employee, and an accident happens to the employee while he is obeying the orders of such a person then the accident arises out of the employment: see Risdale v Kilmarnock (Owners) [1915] 1 KB 503; Lane v W Lusty & Son [1915] 3 KB 230; Cars v Vickers Ltd (1919) 88 LJKB 408. For further cases, see Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) pp 56-57.

Acts done for the employee’s own purpose

Where an employee does an act for a purpose of his own, and not in the execution of his duty in the interest of his employer, this will not be in the course of his employment: see Smith v Lancashire and Yorkshire Railway [1899] 1 QB 141; Parker v Black Rock (Owners) [1915] AC 725(HL); Whitfield v Lambert (1915) 84 LJKB 1378; Standen v Smith (1927) 20 BWCC 305. See further Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) pp 57-59. On the other hand, an act which is reasonable or necessary, having regard to all the circumstances, though not one which is part of the employee’s ordinary duty, may be regarded as within the sphere of employment: see, eg, Slavin v AM Carmichael & Co Ltd [1945] 1 All ER 292(HL); Blanning v CH Bailey Ltd [1942] 2 All ER 562; Scott v Seymour [1942] 1 KB 413. See further Willis WA & Everett RM, Willis’s Workmen’s Compensation (Butterworths, 37th Ed) pp 70-74.

Common risks and risks of forces of nature

Where an employee is sent into the streets on his employer’s business, whether habitually or occasionally, and he meets with an accident by reason of a risk of the streets to which his employment exposes him, the accident arises out of as well as in the course of his employment; and it is immaterial that the risk which caused the accident is one which is shared by all members of the public using the streets under the like conditions: see Dennis v AJ White & Co [1917] AC 479; Arkell v Gudgeon (1917) 87 LJKB 1104. Where the circumstances of the employment are such as to involve increased risk of injury from sunstroke, lighting, etc, an accident arising in such circumstances is one arising out of the employment: see Andrew v Failsworth Industrial Society [1904] 2 KB 32; Morgan v Zenaida (Owners) (1909) 25 TLR 446; Davies v Gillespie (1911) 105 LT 494; Hewitt v Partridge, Jones and John Paton Ltd (1922) 128 LT 238.

Lending of employee

Where the employer lends the employee’s services to another employer (the borrower), the employer remains the employer and cannot escape liability for accidental injury arising out of and in the course of employment with the borrower: see Wong Wing Cheung v Interlite (Asia) Ltd & Ors [2003] 3 HKLRD 473, [2003] HKCU 862. See also [3.10] above.

The word ‘employment’ in the phrase ‘in the course of employment’ is to be understood in a wide sense which includes anything incidental to what the employee was employed to do: R v Industrial Injuries Commissioner, ex p Amalgamated Engineering Union [1966] 2 QB 21, [1966] 1 All ER 97(CA); but the mere fact that the injured or deceased employee was in a place where he was entitled to be at the material time is not enough. Thus the dependants (or who would now be family members) of a deceased employee, who received a fatal stab in a public lavatory after visiting a restaurant outside the course of his employment, failed to recover compensation. It was impossible to say that the visit to the lavatory was more closely connected with, and therefore incidental to, one activity than with the other; it came in the middle. The Court of Appeal held that on that basis alone the trial judge was correct in finding that the visit to the lavatory was incidental to the visit to the restaurant and not incidental to employment, as the dependants had failed to discharge the burden of proof on a balance of probabilities that the deceased employee had resumed employment: see Fong Fung Ying v A-G [1991] 2 HKLR 133.

The question whether an employee was acting in the course of his employment is a question of fact for the trial judge, and his decision will normally not be overturned by an appellate Court in the absence of a convincing reason: see Liu Hsiao Chuan v Otis Elevator Co (HK) Ltd (CACV 32/1988, 8 November 1988, CA, unreported); Siu Yau Tai v Hung Chun Hing [1989] 1 HKLR 347.

In Lee Kin Kai v Ocean Tramping Co Ltd (t/a Ocean Tramping Workshop) [1991] 2 HKLR 232, the court set out the following principles:

(1) causation is essentially a matter for the judge not for the doctors. It is a matter upon which the judge will no doubt be assisted by medical evidence, but he is not dictated by it;

(2) law and medicine apply different standards. In law there is a sufficient causal connection if it is shown on a balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient; it need not be shown to be the sole cause; and

(3) when considering causation, the judge is not only entitled, but is indeed bound, to use his common sense, to approach the question in the same way as would a juror.

It may sometimes be necessary to rely on medical evidence in determining the issue of causation: see, eg, Yang Fook v Ng Chung Kuen (WCC 27/71, DC, unreported); Chan Kiu v Exclusive Environmental Service Ltd [1988] HKC 671; Chang Sanchez & Anor v Hin Sum Manpower Co Ltd (DCEC 859/2002, 16 March 2005, DC, unreported, [2005] HKCU 347); Ngan Chiu Hin v Tung Yu Lok, formerly t/a Yee Yau Loong (DCEC 341/2003, 7 February 2005, DC, unreported, [2005] HKCU 180); Wong Yuet Yung v Wah Fung Hong Gas Engineering Co Ltd (CACV 33/2007, 19 February 2008, CA, unreported). This would be particularly important in dealing with cases concerning injuries or deaths of employees suffering from some predisposing physical condition. The general guiding test in these cases is whether in substance, as far as the judge can decide on such a matter, the accident came from the disease alone, so that whatever the employee had been doing it would probably have come all the same, or whether the employment contributed to it; in other words, whether he was injured or died from the disease alone or from the disease and employment taken together, looking at it broadly: see Clover, Clayton & Co Ltd v Hughes [1908-10] All ER Rep 220 [1910] AC 242 at 247, adopted in Yip Ho v The Hong Kong & Kowloon Wharf& Godown Co Ltd [1969] HKDCLR 1, [1969] HKCU 48; Chow Mui v Chow Cheuk Chung [1970] HKDCLR 94; Tang Chui Ming v The Kowloon Motor Bus Co (1933) Ltd (DCEC 12/1970, 16 June 1970, DC, unreported); Tsang Ah Ching v Tai Loy Engineering Co Ltd (ECC 91 of 1991, unreported); Chang Sanchez & Anor v Hin Sum Manpower Co Ltd (DCEC 859/2002, 16 March 2005, DC, unreported, [2005] HKCU 347); Choi Yin Ling acting for herself and on behalf of the members of the family of Cheung Sam Y au, deceased v Sung Wai Kau t/a Sung Kau Transportation Co 蔡燕玲代表自己和死者張三有的家庭成員訴宋偉球經營宋球運輸公司 (DCEC 569/2003, 11 April 2007, DC, unreported, Chinese judgment); Wong Yuet Yung v Wah Fung Hong Gas Engineering Co Ltd (DCEC 1315/2003, 15 January 2007, DC, unreported, [2007] HKCU 72); Ng Sau Ha acting for herself and on behalf of the family members of Hui Cheung Chun (transliteration) 吳秀霞代表其本人和死者許長潯的其他家庭成員 v Starway Construction Engineering & Anor (DCEC 506/2005, 17 August 2006, DC, unreported, Chinese judgment), Ngan Chiu Hin v Tung Yu Lok, formerly t/a Yee Yau Loong (above), Yu Suet Wan v Fidelity Property Management Ltd (DCEC 815/2005, 11 June 2007, DC, unreported); and Wong Yuet Yung v Wah Fung Hong Gas Engineering Co Ltd (above).

In the event that an objective passer-by, given the absence of evidence to the contrary, would make a causal link between the employment and accident, it would become an accident arising out of employment. Accordingly, an employer would still be liable to pay employees’ compensation unless the natural weakness and illness of the employee is the sole cause of his injury or death by accident in the course of employment: see Wilson v Chatterton [1946] 1 All ER 431; Ma Tsz Ming v Perkin Elmer Hong Kong Ltd (ECC 129/96, unreported); Wong Hoi Chung v LKK Trans Ltd (DCEC 153/1999, 23 March 2004, DC, unreported, [2004] HKCU 345); Cheung Wing Tan v Goldwood Engineering Ltd & Anor (DCEC 445/2000, 15 October 2001, DC, unreported) and Leung Koon Chun v City Act Trading Ltd t/a Bright Light Engineering Co (DCEC 915/2000, 24 April 2002, DC, unreported, [2002] 2 HKLRD E20).

In cases of this nature, the judge is not entitled to surmise or guess, but is entitled to draw a reasonable inference based on all available evidence: see Ho Woon King v The Hong Kong & Kowloon Wharf & Godown Co Ltd [1965] HKDCLR 265. Indeed, the House of Lords in McGhee v National Coal Board [1972] 3 All ER 1008, [1973] 1 WLR 1 agreed that common sense could be used to fill the gap if, owing to limitations of medical knowledge, the employee was unable to prove a strict causal connection in the medical sense between the accident and the employee’s injury. In Chung Kam Chuen v Lisboa Bakeries Ltd (DCEC 1080/2002, 27 November 2003, DC, unreported, [2003] HKCU 1309), an employee who had a pre-existing low back pain for over 13 years prior to the accident was awarded compensation since there was no evidence of any other event which could have triggered the worsening of his back condition.

If an employee is able to prove causation notwithstanding his pre-existing medical condition, there will not be any ground to make a deduction of his compensation: see Wong Hoi Chung v LKK Trans Ltd (DCEC 153/1999, 23 March 2004, DC, unreported, [2004] HKCU 345), applying the words of Sir Alan Huggins V-P in Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556, [1981] HKCU 53 that “employees’ compensation must be assessed solely under the statutory provisions and, unless the Ordinance provides for a reduction of the basic compensation specified, no reduction may be made”. In affirming this decision, the Court of Final Appeal confirmed that the object of this Ordinance is to provide injured employees or their families (in fatal accident cases) a quick financial relief with considerable certainty on a no-fault basis. Apportionment would introduce delay and uncertainty to the assessment process and hence defeat the legislative intent. As observed by Ribeiro PJ, there is nothing in ss 6 and 7 which suggests that the prescribed amounts of compensation are subject to reduction to take into account of an extraneous concurrent cause of death or total incapacity. The same applies to ss 9(1)(a) and(b). There is no basis for requiring apportionment to reflect the existence of a pre-existing disease as a concurrent cause of the employee’s incapacity. It suffices for full compensation insofar as the injured person can prove that the injury he received in the accident was one of the causes of his incapacity (or death if it was a fatal accident), whether permanent or temporary, total or partial: see LKK Trans Ltd v Wong Hoi Chung [2006] 1 HKLRD 980, [2006] HKCU 330, followed in Ying Yuk Shan v South China Morning Post Publishers Ltd (DCEC 479/2003, 28 January 2008, DC, unreported) and Wong Kin Shun v Sham Chi Kin (DCEC 535/2005, 16 May 2008, DC, unreported).

Where an employee has voluntarily ingested alcohol which had the effect of dulling his senses, slowing his reaction time and hampering his driving skills leading to a road traffic accident, he will be denied compensation under this subsection: see Ma Shiu Wai v Chun Fai Container Transportation Co Ltd (DCEC 877/2002, 19 November 2003, DC, unreported, [2003] HKCU 1374).

The influence of alcohol on an employee should be treated as irrelevant to his family members’ right to claim compensation in the case of a fatal accident. It is an obvious and apparent policy on the part of the legislature to regard with comparative leniency the conduct of an employee who was killed as a result of an accident directly attributable to his having been at the time of accident under the influence of alcohol, by preserving the rights of the employee’s family members to claim compensation under this subsection: see Yuen Yuk Ying v Chan Kam Wing (t/a Kam Bo Real Estate Co) [1997] 1 HKC 198, followed in Kwok Tze Wing Fanny, for herself and acting on behalf of the members of the family v Yip Shuk Tat t/a Tat Hing Container Co (DCEC 810/2004, 9 November 2005, DC, unreported, Chinese judgment).

The words ‘serious misconduct’ mean that the seriousness relates to the misconduct, not to the consequences of the misconduct. The word ‘wilful’ must be that the will of the employee had directed the misconduct. As such, acts which do not normally involve the operation of a person’s will should not be regarded as wilful misconduct. Inadvertent carelessness, or error of judgment will fall outside the scope of ‘wilful misconduct’: see Johnson v Marshall, Sons & Co Ltd [1906] AC 409 applied in Chan Ka Leung Bee v Golden Island Metal Manufactory Ltd (DCEC 813/2003, 19 April 2005, DC, unreported, [2005] HKCU 464). Any degree of impairment due to ingestion of alcohol which has the effect of dulling a driver employee’s senses, slowing his reaction time and hampering his driving, does constitute serious and wilful conduct. However, in the case of a fatal accident, there is no bar to the family members of a deceased employee to seek compensation since his drunkenness would not be treated as serious and wilful misconduct by reference to s 5(2)(d): see Yuen Yuk Ying v Chan Kam Wing (t/a Kam Bo Real Estate Co) [1997] 1 HKC 198.

In Chow Shu Ki v Osram Prosperity Co Ltd (DCEC 1059/2000, 21 November 2001, DC, unreported), the deceased employee fell off a bus as a result of its crowded condition and the current of alighting passengers. Notwithstanding that the deceased had behaved in a bad manner towards another passenger on the same bus prior to the accident, the court was of the view that his misbehaviour did not take him outside his employment or that the accident did not arise out of his employment. It was held that an employee’s misconduct would only be relevant if it caused the accident.

Apart from the issue of serious misconduct, if an accident arises from some peril to which an employee has exposed himself by his own conduct and which he was not obliged to encounter by his employment terms, it may be contended as an additional ground of defence that the added peril has made the accident falling outside the scope of employment: see Stephen v Cooper [1929] AC 570. In Plumb v Cobden Flour Mills Co [1914] AC 62, Lord Dunedin had this to say: ‘A risk is not incidental to the employment ⋯when it is an added peril due to the conduct of the servant himself’. Lord Haldane defined the phrase ‘added peril’ in Lancashire and Yorkshire Ry Co v Highley [1917] AC 353 to mean a peril ‘voluntarily super-induced on what arose out of his employment, to which the workman was neither required nor had authority to expose himself.’

The Ordinance provides no guidance as to what the ‘circumstances’ which the court should or should not take into account in exercising its discretion. A court in the exercise of its discretion conferred by this subsection in making an award where the injury results in death or serious capacity, notwithstanding serious and wilful misconduct on the part of an employee, is entitled to take into account all the circumstances peculiar to the accident and the circumstances peculiar to the employee: see Yuen Yuk Ying v Chan Kam Wing (t/a Kam Bo Real Estate Co) [1997] 1 HKC 198.

Under this subsection, although the burden of proof that the accident arose ‘in the course of’ the employment still lies on the employee, that of proving that it arose ‘out of’ the employment has been shifted and, in the absence of evidence to the contrary, the accident is deemed to have arisen out of that employment.

Although this subsection alters the burden of proof in favour of the employee, it does not absolve the employee from having first to establish the occurrence producing the injury as an accident (Kwan Hei v Trans Globe Maritime Ltd (WCC 35/79, 21 November 1979, DC, unreported)) arising in the course of employment.

There is also a presumption against suicide: see Bender v Owners of SS Zent [1909] 2 KB 41 at 45; Southall v Cheshire County News Co Ltd (1912) 5 BWCC 251 at 252 253. Therefore, if a person is found dead in circumstances showing that death occurred in the course of the employment, the burden of rebutting the presumption that death arose out of the employment by convincing evidence would rest on anyone suggesting suicide as the cause of death.

For further discussions on this subsection (formerly subs (6)), see Martin, “Employees’ Compensation: ‘Arising out of and in the course of employment’” (1986) 16 HKLJ 71 at 82-4. For an example of the application of this subsection to the facts of a particular case, see United Ford Development Ltd (t/a King Ford Mahjong Club) v Fung Yin Yee Shirley [1993] 2 HKLR 290. See also Lam Sik v Sen International Ventures Corp (HK) Ltd [1994] 3 HKC 405, for an example of the application of this subsection.

The degree of proof under this subsection is proof on a balance of probabilities: see Fong Fung Ying v A-G [1991] 2 HKLR 133.

The burden is on the employer to prove the contrary: see Cheung Kai Chi for and on behalf of the dependents of the deceased, Cheung Kin Keung v Chun Wo Contractors Ltd & Anor (DCEC 415/2003, 25 October 2004, DC, unreported, [2004] HKCU 1396). If there is any evidence to the contrary, then the presumption under subs (4)(a) disappears and the evidence must be considered with all the other evidence available: see R v National Insurance (Industrial Injuries) Commissioner, ex p Richardson [1958] 2 All ER 689, [1958] 1 WLR 851. The subsection does not require proof to the contrary to rebut the presumption. It merely requires the existence of evidence to the contrary which is ‘evidence fit to be left to the jury’: see R v National Insurance (Industrial Injuries) Commissioner, ex p Richardson [1958] 2 All ER 689, [1958] 1 WLR 851, followed in Wong Yuet Yung v Wah Fung Hong Gas Engineering Co Ltd (CACV 33/2007, 19 February 2008, CA, unreported).

To qualify as ‘evidence’ in this context to displace the presumption under subs (4)(a), something ‘more than mere speculation and less than proof’ is required. Where there is no evidence of what actually happened but inferences may be drawn on a number of possibilities, the Court will not regard them as evidence which can be safely left to the jury: see Fan See Yuk v Ocean Tramping Co Ltd [1974] HKDCLR 1 and Fong Fung Ying v A-G [1991] 2 HKLR 133.

The Court will be ready to apply the presumption if there is only a choice of inferences (Tsang Yuk Chung v China Fleet Club - Royal Navy Restaurant Caterer Overseas Assurance Corp Ltd (WCC 92/72, 17 February 1973, DC, unreported) or when it is not possible to draw a proper inference from the facts one way or the other (Ma Yuet Yin v Patt Manfield & Co Ltd [1980] HKDCLR 92, [1980] HKCU 95).

In Cheng Wai Yin, Timothy v Lung Fung Estate Agency o/b Legend Star Development Ltd (DCEC 797/2000, 24 September 2001, DC, unreported), the Court ruled that an attack which was carried out at the place of work of an employee rather than his home or outside his office is ground to hold that on the balance of probability the attack was business related. A similar ruling was also delivered in Law Yim Ming v Cheung Hang Fook t/a Tung Lok Villa & Anor (DCEC 450/2001, 7 June 2002, DC, unreported).

Liability may be contested by adducing evidence to show that the accident is related to a personal dispute: see Yu Sang v International United Shipping Agency Ltd [1992] 1 HKC 542.

To rebut the presumption under this subsection, the evidence to the contrary may be such as to show that the accident arose out of which the injured person was doing for his own benefit and not out of his employment or was caused by drunkenness: see Halsbury’s Laws of England (4th Ed) Vol 33 para 493.

This is defined in s 3 of the Interpretation and General Clauses Ordinance (Cap 1) to include: (a) money, goods, choses in action and land; and (b) obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as defined in paragraph (a) of this definition.

For the purposes of this subclause it is for the employee to prove that at the time of the accident the employee was travelling ‘for the purposes of and in the connection with his employment’: see Tan Hua Ning v Tam Wah Sung [1999] 3 HKC 490. In Hsu Shu Chiao v Lung Cheong Toys Ltd [2002] 1 HKC 479, the Court of Appeal observed that the introduction of this subsection into the Ordinance was consequential upon the enactment of s 30B in relation to accidents arising outside Hong Kong. As there is no similar legislation in the United Kingdom, very limited assistance can be derived from English cases.

The phrase ‘for the purpose of and in connection with his employment’ was held to cover situations not considered to be ‘in the course of employment’. In other words, those words must be wider than ‘in the course of employment’. Injured employees may gain assistance from this phrase where they have difficulties in establishing their journeys to the overseas destination to be ‘in the course of employment’. See Hsu Shu Chiao v Lung Cheong Toys Ltd [2002] 1 HKC 479.

For ‘employee’, see s 2 above; for ‘compensation’, ‘Court’, ‘employer’ and ‘partial incapacity’, see s 3 above and notes thereto.

6. Compensation in fatal cases

(1) Where death results from the injury, then, subject to section 6A, the amount of compensation payable to the members of the family of the employee shall be-

(a) in the case of an employee under 40 years of age at the time of the accident, a lump sum equal to 84 months’ earnings or 84 times the amount specified in the second column of the Sixth Schedule shown opposite section 6(1)(a) specified in the first column of that Schedule, whichever is the less;

(b) in the case of an employee of or over 40 years of age but under 56 years of age at the time of the accident, a lump sum equal to 60 months earnings or 60 times the amount specified in the second column of the Sixth Schedule shown opposite section 6(1)(b) specified in the first column of that Schedule, whichever is the less;

(c) in the case of an employee of or over 56 years of age at the time of the accident, a lump sum equal to 36 months’ earnings or 36 times the amount specified in the second column of the Sixth Schedule shown opposite section 6(1)(c) specified in the first column of that Schedule, whichever is the less.

(Amended L.N. 79 of 1983; L.N. 321 of 1985; L.N. 390 of 1987; L.N. 386 of 1989; L.N 435 of 1991; 66 of 1993 s 2; L.N. 566 of 1995; 36 of 1996 s 4)

(2) The amount of compensation payable under subsection (1) shall in no case be less than the amount specified in the second column of the Sixth Schedule shown opposite section 6(2) specified in the first column of that Schedule.

(Amended L.N. 79 of 1983; L.N. 321 of 1985; L.N. 390 of 1987; L.N. 386 of 1989; L.N. 435 of 1991; L.N. 463 of 1993; L.N. 566 of 1995; 36 of 1996 s 4)

(3) Notwithstanding anything in subsection (1) or (2), where in respect of the same accident compensation has been paid under section 7 or 9, there shall be deducted from the sum payable under subsection (1) any sums so paid as compensation.

(5) Where death results from the injury, reimbursement of reasonable expenses of the funeral of the deceased employee and the reasonable expenses of medical attendance on the deceased employee, not exceeding in all the sum of the amount specified in the second column of the Sixth Schedule shown opposite section 6(5) specified in the first column of that Schedule, shall be paid by the employer to any person who has paid the expenses.

(Amended 76 of 1982 s 5; L.N. 386 of 1989; L.N. 435 of 1991; L.N. 463 of 1993; L.N. 566 of 1995; 36 of 1996 s 4; 52 of 2000 s 5)

This section was substituted pursuant to s 4 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980. Subsequently, subs (1)(a)-(c) was amended by substituting the words within the three outer sets of square brackets pursuant to s 2 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing 1 January 1994 and substituting the words within the inner sets of square brackets pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. For a summary of the prescribed amounts as amended from time to time, see notes below.

The words within square brackets in subs (1) were amended pursuant to s 5(a) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The words within square brackets in subss (2) and (5) were substituted pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. Subsection (5) was subsequently amended pursuant to s 5(c) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (4) was deleted pursuant to s 5(b) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (6) was deleted pursuant to s 5(d) of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

This section is based on s 8 of the Workmen’s Compensation Act 1925. The method of calculating compensation in the UK is however, different from that as provided by the Ordinance.

Sections 6, 7 and 8 deal with compensation for an employee for accidental injuries in, respectively: (i) fatal cases; (ii) cases of permanent total/partial incapacity; and (iii) where as a result of injury, the attention of another person is required. The maximum and minimum levels of compensation are revised from time to time to reflect the increase in wages, salaries and the cost of living. See also [48A.03] below and the notes to ss 6(1), (2), (5), 7(1), (2) and 8(1) below for the various revisions made. These sections also take into account the age factor. Instead of basing the compensation by reference to a date on or after which the accident happened, the appropriate compensation is based on the age of the employee at the time of the accident. There are three age categories: under 40, between 40 and 56, and over 56 years of age.

Under the previous provisions of the Ordinance, where an employee died as a result of an accident arising out of and in the course of his employment, compensation was payable to his dependants, ie those who were dependent wholly or in part upon the deceased’s earnings at the time of his death. The court would determine who were the dependants, their degree of dependence, and their share of compensation upon hearing an application for employees’ compensation.

Previously, no compensation would be payable in the event that the deceased did not have any dependant. That being the case, the employer was only liable to pay a reasonable amount of expenses for the burial and medical attendance on the deceased employee to any person to whom such expenses were due.

Substantial amendments were made to the Ordinance to improve the settlement mechanism of the fatal claims by the legislature in the year of 2000. The main purpose of the new scheme is to avoid the difficulties arising from the identities of the dependants of the deceased employee and the extent of their dependency, which more often than not were contentious between the parties and had contributed to delay in the disposal or settlement of cases. It is hoped that the new mechanism would speed up settlement of claims to prevent financial hardship to the family members of the deceased.

Reimbursement of funeral and medical attendance expenses by the employer has now become mandatory in all fatal cases by virtue of s 6(5), subject to a maximum amount currently provided under the Ordinance, ie HK $35,000.

Those funeral and medical attendance expenses are not deductible from the total amount of compensation payable in respect of a fatal claim.

Section 6A seeks to achieve making compensation, in case of death of an employee, payable to members of his family instead of his dependants.

Section 6B provides an additional avenue for the settlement of claims since the Commissioner may determine a claim in straightforward cases, ie where the employer’s liability to pay compensation and the relationship of the family members are not in dispute. Upon agreement by the parties, a claim may be submitted to the Commissioner who, if he thinks fit, will assess the amount of compensation payable and apportion the compensation with reference to Sch 7 of the Ordinance by virtue of which a major scale of compensation will be payable to the core members of the family such as the spouse, the child(ren) and parent(s) of a deceased employee. Any party who is not satisfied with the determination by the Commissioner may either raise an objection or lodge an appeal in the court.

Unfortunately, it has been observed by District Judge Muttrie in Chantex Engineering Ltd v Chan Hei Tai, Siu Yim Yung and Siu Man Faat, the members of the family of the deceased Siu Wong Sang & Others (DCEC 571-573/2002, 25 October 2002, DC, unreported) that the new statutory scheme does not provide any mechanism for protection of minority interests. Accordingly, employers may have to apply to the court to have the Certificate of Compensation Assessment for Fatal Cases made an order of the court and for further directions to deal with the share of compensation apportioned to the minors involved after paying the sum into court. This lacuna has to be filled by an appropriate amendment to this Part of the Ordinance, as suggested by the court in the above case. See also the notes to ss 6D and 6H below.

In cases involving minority interests, an employer who wishes to avoid payment of surcharge should pay directly to the adult family members their share of compensation within the period prescribed under s 6D(1) and (3), whilst the entitlement of the minors should be paid into court pending further directions for protection of their interests: see Chantex Engineering Ltd v Chan Hei Tai, Siu Yim Yung and Siu Man Faat, the members of the family of the deceased Siu Wong Sang & Others (DCEC 571-573/2002, 25 October 2002, DC, unreported).

The employer may also be required to make an interim payment to the spouse of the deceased employee pending final determination by the Commissioner under s 6C. It is important to note that an interim payment would be made available to the spouse only for the apparent reason that he/she can be easily identified, being also normally the one who looks after the family. This would obviously also avoid the difficulty of administration if advance payment is made to other members of the family since verification of identity would take time while there would also be the question of apportionment.

The earnings figures used for calculating compensation under this section are to be calculated in accordance with s 11: see Chan Cheuk Ting v Analogue Engineering Co Ltd [1986] HKLR 935. See also the notes to s 11 below.

The prescribed amounts of compensation are revised from time to time: see the table below for a summary. See also the notes to s 7(2) below.

The prescribed minimum amount is revised from time to time: see the table below for a summary. See also the notes to s 7(2) below.

The prescribed maximum amount of expenses payable under this subsection is revised from time to time: see the table below for a summary. See also the notes to s 7(2) below.

For ‘employee’, see s 2 above; for ‘compensation’, ‘member of the family’, ‘earnings’, ‘dependants’ and ‘employer’, see s 3 above and notes thereto.

6A. Apportionment of compensation

(1) Where death results from the injury, the compensation shall be payable only to eligible members of the family and apportioned in the manner set out in the Seventh Schedule.

(a) ‘eligible’ (合資格), in relation to a member of the family, means the member is entitled to compensation under section 6(1) by virtue of a determination under section 6B(1), 6D(6), 6H(4) or 18A(1);

(b) a reference to a child of a deceased employee includes a child born after the death of the employee but before a determination made under section 6B(1)(a), 6D(6), 6H(4) or 18A(1) in respect of the employee.

(3) In determining the amount of compensation payable under section 6(1), the Commissioner or the Court shall take into account-

(4) Where the spouse of the employee who has been paid any interim payments dies prior to the Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case is issued, the aggregate amount of interim payments already paid shall be deducted from the total amount of compensation payable before the apportionment of the amount for other members of the family.

(5) In stating the amount of compensation payable to each member of the family named in the Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case, the Commissioner and the Court may round down the amounts to the nearest dollar.

This section was added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

The apportionment of compensation may be varied by production of letters of renunciation by certain members of the family of the deceased who waive their right to compensation: see Chan Wai Yin acting for and on behalf of herself and the eligible members of the family of Yu Tak Tim and as Personal Representative of the Estate of Yu Tak Tim, deceased v Wong Sau Ping, Ada (黃秀平) t/a Evergreen Transportation Co (DCEC 97/2004, 14 June 2007, DC, unreported). See also [6.03] above.

For ‘employee’, see s 2 above; for ‘Certificate of Compensation Assessment for Fatal Case’, ‘Commissioner’, ‘compensation’, ‘interim payment’, ‘member of the family’ and ‘Review Certificate of Compensation Assessment’, see s 3 above and notes thereto.

6B. Determination by Commissioner of claims for compensation in fatal cases

(1) Subject to subsection (2), where death results from the injury, the Commissioner may, on application by the members of the family under subsection (4) and with the consent in writing of the employer and signed by him-

(ii) the persons to whom the compensation is payable and the amount of compensation payable to each such person; and

(ii) as soon as practicable after making the determination, but in any case not earlier than 6 months from the date of death of the employee or the date of accident if the date of death cannot be ascertained.

(2) The Commissioner shall not determine or continue to determine a claim under subsection (1)(a) where-

(a) the employer does not give his consent in writing signed by him to the Commissioner determining the claim;

(b) the employer gives his consent to the Commissioner determining the claim but prior to determination withdraws such consent by notice in writing signed by him to the Commissioner;

(d) any party to the claim, at any time prior to the issue of the Certificate of Compensation Assessment for Fatal Case, declines determination by the Commissioner;

(e) a claim for compensation in respect of the same employee has been filed with the Court;

(f) in the Commissioner’s opinion, the claim is not suitable for such determination; or

(g) the first application under subsection (4) has not been made within 24 months from the date of death of the employee.

(3) Where the Commissioner has proceeded to determine a claim under subsection (1)(a) but prior to the issue of the Certificate of Compensation Assessment for Fatal Case, the process of determination is terminated by virtue of subsection (2)-

(a) in such form as the Commissioner may specify and signed by the person making it;

(b) within 6 months from the date of death of the employee or the date of accident if the date of death cannot be ascertained (but the Commissioner may, if he thinks fit, extend the period for making the application);

(d) where the person claiming compensation is a minor or a person incapable of managing himself and his affairs, by his guardian or legal representative, as the case may be.

(a) be in such form as may be specified by the Commissioner giving details of the determination; and

(ii) to each person named in the certificate, whether or not compensation is payable to the person.

(6) The Commissioner shall, as soon as practicable after he decides to determine a claim for compensation under subsection (1)(a), send to the Court a notice advising the Court of that decision.

This section was added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

For ‘employee’, see s 2 above; for ‘Certificate of Compensation Assessment for Fatal Case’, ‘Commission’, ‘Compensation’, ‘court’, ‘employer’ and ‘member of the family’, see s 3 above and notes thereto.

6C. Determination by Commissioner of interim payments

(1) Where a claim for compensation is to be determined under section 6B(1)(a), upon application by the spouse of the deceased employee, the Commissioner-

(a) may, irrespective of whether applications for compensation have been made by other members of the family and prior to the issue of the Certificate of Compensation Assessment for Fatal Case, on application by the spouse in a form as the Commissioner may specify and signed by the spouse, determine that interim payment of compensation be made by the employer to the spouse; and

(b) where he makes a determination under paragraph (a), shall issue a certificate-

(a) be in such form as may be specified by the Commissioner giving details of the determination; and

(a) shall be payable to the spouse named in the Certificate of Interim Payment or, where that Certificate is cancelled under subsection (12), in the Review Certificate of Interim Payment concerned until the aggregate amount referred to in paragraph (c) is fully paid;

(i) an initial payment calculated by multiplying the monthly payment referred to in subparagraph (ii) by the number of months elapsed between the date of death, or the date of accident if the date of death cannot be ascertained, and the date of issue of the Certificate of Interim Payment or Review Certificate of Interim Payment, as the case may require;

whichever is the less;

(c) shall not in aggregate exceed 45% of the total amount of compensation payable under section 6(1) after deducting any compensation which has already been paid under sections 7, 9 and 13(3);

(i) be deducted from the compensation payable under section 6A to the person to whom interim payments have been paid; and

(ii) where the spouse dies before the issue of the Certificate of Compensation Assessment for Fatal Case, be deducted from the compensation payable to the members of the family under section 6(1), except that any surcharge payable under

(a) as to the initial payment, not later than 21 days after the date of issue of the Certificate of Interim Payment or Review Certificate of Interim Payment, as the case may require;

(b) as to each monthly payment, not later than the date corresponding to the date on which the preceding initial payment or monthly payment is payable or if there is no such corresponding date in that month, the last day of that month.

(5) An employer is not required to make payments under a Certificate of Interim Payment pending the completion of a review under subsection (10) or (11).

(6) Where the Commissioner is satisfied on reasonable grounds that a determination which gave rise to a Certificate of Interim Payment was based on information false or misleading in a material particular, he may, by notice in writing to the employer and spouse named in the Certificate of Interim Payment setting out those grounds, order that interim payments under that Certificate shall cease on and from a date specified in the notice for the purpose until such time, if any, that the notice is revoked.

(a) 7 days before the date on which compensation under section 6(1) is due in accordance with a Certificate of Compensation Assessment for Fatal Case;

(c) when the total amount of interim payments paid to the spouse reaches the aggregate amount that may be payable as stated in the Certificate of Interim Payment or Review Certificate of Interim Payment, as the case may require; or

(d) on the date the Commissioner notifies the employer and the spouse of his decision that the claim shall be determined by the Court under section 18A(1),

(8) An employer who fails without reasonable excuse to make interim payments in accordance with a Certificate of Interim Payment or Review Certificate of Interim Payment, as the case may require, shall pay to the spouse of the employee, in addition to the amount of interim payments-

(i) the amount specified in the second column of the Sixth Schedule shown opposite section 6C(8)(a) specified in the first column of that Schedule; or

(ii) the percentage specified in the third column of the Sixth Schedule shown opposite section 6C(8)(a) specified in the first column of that Schedule of the amount of interim payment then remaining unpaid,

(b) thereafter upon the expiry of 3 months after the expiry of the payment period, a surcharge of-

(i) the amount specified in the second column of the Sixth Schedule shown opposite section 6C(8)(b) specified in the first column of that Schedule; or

(ii) the percentage specified in the third column of the Sixth Schedule shown opposite section 6C(8)(b) specified in the first column of that Schedule of the amount of interim payment then remaining unpaid,

(9) A person may object to a determination under subsection (1)(a) by sending an objection in writing signed by him to the Commissioner within 14 days from the date of issue of the Certificate of Interim Payment, or within such further time as the Commissioner, in the circumstances of any particular case, thinks fit, stating the grounds of the objection.

(10) Without prejudice to the right of any other person to object to a determination under subsection (1)(a), the Commissioner may on his own initiative review any such determination at any time if he considers that it-

(a) was made in ignorance of, or under a mistake as to the circumstances of the claim; or

(b) was based upon any false or misleading information or statement given or made to the Commissioner.

(11) On receipt of an objection under subsection (9) or on a review under subsection (10), the Commissioner shall-

(a) in the case of an objection, send a copy of the objection to any other person who has made an application under section 6B(1) and to the employer if the employer is not the objector;

(b) review the determination under subsection (1)(a) concerned and confirm or vary the determination as he thinks fit (including ceasing interim payments);

(c) upon completing the review, issue to the employer and the spouse a certificate in such form as he may specify stating-

(d) send a copy of the Certificate to each of the persons who has made an application under section 6B(1).

(12) Upon the issue of a Review Certificate of Interim Payment, the Certificate of Interim Payment to which it relates shall be cancelled.

(13) A Certificate of Interim Payment or Review Certificate of Interim Payment, other than a Certificate cancelled under subsection (12), purporting to be issued and signed by or for the Commissioner shall be admitted in evidence without further proof on its production before any Magistrate or in any court, and-

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

(14) A Certificate of Interim Payment or Review Certificate of Interim Payment, other than a Certificate cancelled under subsection (12) may, on application to the Court by the employer or the spouse of the employee, be made an order of the Court and, for the purposes of this subsection, the amount payable under any such Certificate shall include any surcharge payable under subsection (8).

(15) An employer who fails without reasonable excuse to comply with subsection (4) or (8) commits an offence and is liable to a fine at level 6.

(16) This section shall not apply in the case of a member of the family where the employee was in the service of the Government unless and until the member gives up his rights under the Pensions Ordinance (Cap 89), the Pension Benefits Ordinance (Cap 99), the Pension Benefits (Judicial Officers) Ordinance (Cap 401) and the Auxiliary Forces Pay and Allowances Ordinance (Cap 254) to receive pension or gratuities arising from the death of the employee in consequence of injury received in the discharge of his duties.

‘date of issue’ (發出日期) means the date appearing on the Certificate of Interim Payment or Review Certificate of Interim Payment;

‘payment period’ (付款期) means the appropriate period of payment referred to in subsection (4);

This section was added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

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

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

For ‘employee’, see s 2 above; for ‘Certificate of Compensation Assessment for Fatal Case’, ‘Certificate of Interim payment’, ‘compensation’, ‘court’, ‘earnings’, ‘employer’, ‘member of the family’ and ‘Review Certificate of Interim Payment’, see s 3 above and notes thereto.

6D. Payment of compensation and objection to determination of Commissioner

(1) Where the Commissioner determines a claim under section 6B(1)(a) (including any case where such a determination is varied under this section), compensation, other than interim payments payable under a Certificate of Interim Payment or Review Certificate of Interim Payment, shall be payable by the employer not earlier than 42 days but not later than 49 days after the date of issue of the Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case, as the case may be.

(2) If any person named in the Certificate of Compensation Assessment for Fatal Case has received any interim payment or payment under section 13(3), the employer shall only be required to pay the balance of the amount of compensation, if any, stated in the Certificate after deducting from that amount the amount of any such payment paid to that person.

(3) An employer who fails without reasonable excuse to make payment in accordance with a Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case shall pay, in addition to the amount of compensation payable-

(i) the amount specified in the second column of the Sixth Schedule shown opposite section 6D(3)(a) specified in the first column of that Schedule; or

(ii) the percentage specified in the third column of the Sixth Schedule shown opposite section 6D(3)(a) specified in the first column of that Schedule of the amount of compensation then remaining unpaid,

(b) upon the expiry of 3 months after the expiry of the payment period, a further surcharge of-

(i) the amount specified in the second column of the Sixth Schedule shown opposite section 6D(3)(b) specified in the first column of that Schedule; or

(ii) the percentage specified in the third column of the Sixth Schedule shown opposite section 6D(3)(b) specified in the first column of that Schedule of the amount then remaining unpaid of the aggregate of any amount of compensation referred to in paragraph (a) and the surcharge imposed under that paragraph,

(4) An objection to a determination under section 6B(1)(a) may be made in writing:

(a) by the employer, any person who has made an application under section 6B(1) or the ECAFB;

(i) in the case of the employer or any person who has made an application under section 6B(1), the date of issue of the Certificate of Compensation Assessment for Fatal Case concerned;

(ii) in the case of the ECAFB, the date on which an application is made under section 16 of the Employees Compensation Assistance Ordinance (Cap 365) by a member of the family of the deceased employee,

(5) Without prejudice to the right of any other person to object to a determination under section 6B(1)(a), the Commissioner may on his own initiative review any such determination at any time if he considers that it-

(a) was made in ignorance of, or under a mistake as to the circumstances of the claim; or

(b) was based upon any false or misleading information or statement given or made to the Commissioner.

(6) On receipt of an objection under subsection (4) or on a review under subsection (5), the Commissioner shall-

(a) in the case of the objection, send a copy of the objection to any other person who has made an application under section 6B(1), to the employer if the employer is not the objector and to the ECAFB if the ECAFB, as the case requires, is not the objector;

(b) review the determination under section 6B(1)(a) concerned and confirm or vary the determination as he thinks fit;

(c) upon completing the review, issue to the employer, each of the members of the family and the ECAFB, as the case requires, a certificate in such form as he may specify stating-

(iii) that due to the reasons set out under section 6B(2), the Commissioner shall not continue to determine the claim;

(d) send a copy of the certificate to each of the persons who has made an application under section 6B(1).

(7) Upon the issue of a Review Certificate of Compensation Assessment for Fatal Case, the original Certificate of Compensation Assessment for Fatal Case to which it relates shall be cancelled.

(8) A certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case, other than a Certificate cancelled under subsection (7), purporting to be issued and signed by or for the Commissioner shall be admitted in evidence without further proof on its production before any Magistrate or in any court, and-

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

(9) A Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case, other than a Certificate cancelled under subsection (7) may, on application to the Court by the employer, any person named in the Certificate, or the ECAFB, be made an order of the Court, and for the purposes of this subsection, the amount payable under any such Certificate shall include any surcharge payable under subsection (3).

(10) An employer who fails without reasonable excuse to comply with subsection (1) or (3) commits an offence and is liable to a fine at level 6.

‘date of issue’(發出日期) means the date appearing on the Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case;

‘payment period’ (付款期) means the appropriate period of payment referred to in subsection (1).

This section was added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (4) was substituted pursuant to s 2 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The words within square brackets in subs (6)(a) were added pursuant to s 2 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The words within square brackets in subs (6)(c) were added pursuant to s 2 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The words within square brackets in subs (9) were added pursuant to s 2 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

This is one of the mechanisms by which the determination and apportionment of compensation by the Commissioner may be brought before the court. An employer may rely on this subsection to apply to the court to deal with minority interests before making actual payment of compensation, although the employer must be prompt in taking out such an application to avoid liability for surcharge payable under subs (3). See Chantex Engineering Ltd v Chan Hei Tai, Siu Yim Yung and Siu Man Faat, the members of the family of the deceased Siu Wong Sang & Others (DCEC 571-573/2002, 25 October 2002, DC, unreported), and [6H.02] below.

Upon making an application, the employer must ensure a next friend has been appointed to act on behalf of the minor involved since the provisions of O 80 of the RDC will be applicable in the circumstances.

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

For ‘Certificate of Compensation Assessment for Fatal Case’, ‘Certificate of Interim payment’, ‘Commissioner’, ‘employer’, ‘interim payment’, ‘Review Certificate of Interim Payment’, see s 3 above and notes thereto.

6E. Determination by Commissioner of claims for funeral and medical attendance expenses

(1) Subject to subsection (17), where an application seeking a determination under this section is made to the Commissioner by any person who has paid the expenses of the funeral of the employee or the expenses of medical attendance on the employee, and the employer has given his consent in writing signed by him to the Commissioner that the Commissioner may make such determination, then the Commissioner, after the period referred to in subsection (3)(b)-

(a) if there is a liability to pay any such expenses under section 6(5), may determine, in respect of the persons making the application, the persons to whom reimbursement of such expenses under that section is payable and the amount of reimbursement payable to each such person; and

(b) where he makes a determination under paragraph (a), shall issue a certificate-

(2) A consent referred to in section 6B(1) given by an employer in respect of an employee shall be deemed to be a consent referred to in subsection (1) given by the employer in respect of the employee.

(a) made in such form as the Commissioner may specify and signed by the person making it;

(b) made within 30 days from the date of cremation or date of burial of the employee, or the date on which the Commissioner receives the consent or deemed consent referred to in subsection (1) or (2), as the case may be, from the employer, whichever is the later;

(a) be in such form as may be specified by the Commissioner giving details of the determination; and

(ii) to each person who has made an application under subsection (1) whether or not reimbursement of the expenses is payable to him.

(5) In determining the amount of reimbursement payable under section 6(5), if the aggregate claimed amount exceeds the amount specified in the second column of the Sixth Schedule shown opposite section 6(5) specified in the first column of that Schedule, the Commissioner shall apportion the amount payable on a pro rata basis.

(6) Where a person who has paid any expenses of the funeral of the employee and expenses of medical attendance on the employee dies prior to the reimbursement of the expenses is paid to him, his legal personal representative shall substitute for him in pursuing the claim.

(7) In stating the reimbursement payable to each person named in the Certificate for Funeral and Medical Attendance Expenses or Review Certificate for Funeral and Medical Attendance Expenses, the Commissioner may round down the amounts to the nearest dollar.

(8) Reimbursement of the expenses of the funeral of the employee and expenses of medical attendance on the employee shall be payable by the employer not earlier than 42 days but not later than 49 days after the date of issue of the Certificate for Funeral and Medical Attendance Expenses or Review Certificate for Funeral and Medical Attendance Expenses, as the case may be.

(9) An employer who fails without reasonable excuse to pay reimbursement in accordance with a Certificate for Funeral and Medical Attendance Expenses or Review Certificate for Funeral and Medical Attendance Expenses, shall pay, in addition to the reimbursement payable-

(i) the amount specified in the second column of the Sixth Schedule shown opposite section 6E(9)(a) specified in the first column of that Schedule; or

(ii) the percentage specified in the third column of the Sixth Schedule shown opposite section 6E(9)(a) specified in the first column of that Schedule of the reimbursement then remaining unpaid, whichever is the greater; and

(b) upon the expiry of 3 months after the expiry of the payment period, a further surcharge of-

(i) the amount specified in the second column of the Sixth Schedule shown opposite section 6E(9)(b) specified in the first column of that Schedule; or

(ii) the percentage specified in the third column of the Sixth Schedule shown opposite section 6E(9)(b) specified in the first column of that Schedule of the amount then remaining unpaid of the aggregate of any reimbursement referred to in paragraph (a) and the surcharge imposed under that paragraph,

(10) An objection to a determination under subsection (1) may be made in writing:

(a) by the employer, any person who has made an application under that subsection or the ECAFB;

(i) in the case of the employer or any person who has made an application under that subsection, the date of issue of the Certificate for Funeral and Medical Attendance Expenses concerned;

(ii) in the case of the ECAFB, the date on which an application is made under section 16 of the Employees Compensation Assistance Ordinance (Cap 365) by a person who is entitled to the reimbursement of the expenses of the funeral of the deceased employee or of the expenses of the medical attendance on the deceased employee, or within such further time as the Commissioner,

(11) Without prejudice to the right of any other person to object to a determination under subsection (1)(a), the Commissioner may on his own initiative review any such determination at any time if he considers that it-

(a) was made in ignorance of, or under a mistake as to the circumstances of the claim; or

(b) was based upon any false or misleading information or statement given or made to the Commissioner.

(12) On receipt of an objection under subsection (10) or on a review under subsection (11), the Commissioner shall-

(a) in the case of the objection, send a copy of the objection to any other person who has made an application under subsection (1), to the employer if the employer is not the objector and to the ECAFB if the ECAFB, as the case requires, is not the objector;

(b) review the determination under subsection (1)(a) concerned and confirm or vary the determination as he thinks fit;

(c) upon completing the review, issue to the employer, each of the person who has made an application under subsection (1) and the ECAFB, as the case requires, a certificate in such form as he may specify stating-

(i) that the original determination is confirmed and giving the details thereof; or

(13) Upon the issue of a Review Certificate for Funeral and Medical Attendance Expenses, the Certificate for Funeral and Medical Attendance Expenses to which it relates shall be cancelled.

(14) A Certificate for Funeral and Medical Attendance Expenses or Review Certificate for Funeral and Medical Attendance Expenses, other than a Certificate cancelled under subsection (13), purporting to be issued and signed by or for the Commissioner shall be admitted in evidence without further proof on its production before any Magistrate or in any court, and-

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

(15) A Certificate for Funeral and Medical Attendance Expenses or Review Certificate for Funeral and Medical Attendance Expenses, other than a Certificate cancelled under subsection (13) may, on application to the Court by the employer, the persons named in the Certificate, or the ECAFB, be made an order of the Court and the amount payable under the Certificate shall include any surcharge payable under subsection (9).

(16) An employer who fails without reasonable excuse to comply with subsection (8) or (9) commits an offence and is liable to a fine at level 6.

(17) The Commissioner shall not determine or continue to determine under subsection (1) a claim for funeral expenses or medical attendance expenses where-

(a) the employer does not give his consent in writing signed by him to the Commissioner to make such determination;

(b) the employer gives his consent to the Commissioner to determine the claim but prior to the determination withdraws such consent by notice in writing signed by him to the Commissioner;

(c) any party to the claim, at any time prior to the issue of the Certificate for Funeral and Medical Attendance Expenses, declines determination by the Commissioner;

(d) a claim for funeral and medical attendance expenses has been filed with the Court; or

(e) in the Commissioner’s opinion, the claim is not suitable for such determination.

‘date of issue’ (發出日期) means the date of issue appearing on the Certificate for Funeral and Medical Attendance Expenses or the Review Certificate for Funeral and Medical Attendance Expenses;

‘expenses for medical attendance’ (醫護費) means any expenses incurred by any person other than the deceased employee for the convalescence given in a hospital or medical treatment given to the employee arising from the accident before his death;

‘payment period’ (付款期) means the appropriate period of payment referred to in subsection (8).

This section was added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Subsection (10) was substituted pursuant to s 3 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The words within square brackets in subs (12)(a) were added pursuant to s 3 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The words within square brackets in subs (12)(c) were added pursuant to s 3 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

The words within square brackets in subs (15) were added pursuant to s 3 of the Schedule to the Employees’ Compensation Assistance (Amendment) Ordinance 2002 (16 of 2002), commencing 1 July 2002.

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

For ‘Certificate for Funeral and Medical Attendance Expenses’, ‘Commissioner’, ‘employer’ and ‘Review Certificate for Funeral and Medical Attendance Expenses’, see s 3 above and notes thereto.

6F. Supply of particulars to Commissioner

(1) For the purposes of making a determination under section 6B(1)(a), 6C(1)(a) or (11), 6D(6)(b) or 6E(1)(a) or (12), the Commissioner may by notice in writing require-

(b) the employer of the employee and if the employer is a sub-contractor, the principal contractor,

(a) fails or refuses without reasonable excuse to provide any particular required to be provided under this section; or

(b) provides any particular which he knows or reasonably ought to know to be false or misleading in any material particular,

This section was added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

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

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘employer’, ‘principal contractor’ and ‘sub-contractor’, see s 3 above and notes thereto.

6G. Discharge of liability of employer and his insurer in fatal cases

(1) Subject to subsections (2), (3) and (4), the total liability of an employer and his insurer shall not in respect of any one deceased employee exceed the aggregate amount payable under section 6(1) and (5).

(2) Where the employer is liable to pay reimbursement of the expenses of the funeral of the employee and the expenses of medical attendance on the employee, the total amount payable for such expenses by the employer and his insurer shall not in any one fatal case for any one deceased employee exceed the aggregate amount payable under section 6(5).

(3) Any compensation paid to the employee under sections 10 and 10A prior to his death and any surcharge payable under sections 6C(8), 6D(3), and 6E(9) shall not be taken into account when calculating the aggregate amount of compensation paid or payable by the employer under section 6.

(4) Where an amount in excess of the compensation payable by the employer under section 6 is paid to the employee by the employer under sections 7 and 9 prior to his death, the employer shall not recover any such excess amount. (Added 52 of 2000 s 6)

This section was added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

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

6H. Appeal against determination of Commissioner in fatal cases

(1) Subject to the provisions of this section, an appeal shall lie to the Court from a determination under section 6B(1)(a), 6C(1)(a) or (11), 6D(6)(b) or 6E(1)(a) or (12), as the case may be.

(2) No appeal shall lie after the expiry of 42 days from the date of issue of the certificate concerned under section 6B, 6C, 6D or 6E, unless the Court, as it thinks fit, extends the time for an appeal notwithstanding that the 42 days period has elapsed.

(3) On an appeal under this section, the Court may confirm or vary the determination of the Commissioner.

(4) Where the Court varies the determination of the Commissioner, the Court shall-

(a) in the case of a determination under section 6B(1)(a) or 6D(6)(b), make an order to apportion the amount of compensation payable under section 6(1) to the member of the family of the employee according to section 6A;

(b) in the case of a determination made under section 6E(1)(a) or (12), make an order to apportion the amount of reimbursement payable to each person who has paid the expenses of the funeral of the employee and the expenses of medical attendance on the employee taking into account section 6E(5).

(a) subject to section 6G, direct the employer to pay to the Court any amount of payment which is payable by the employer but not yet paid; and

(b) direct any person who has received the payment from the employer in accordance with a Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case, a Certificate of Interim Payment or Review Certificate of Interim Payment, a Certificate for Funeral and Medical Attendance Expenses or Review Certificate for Funeral and Medical Attendance Expenses to pay to the Court any amount which has been overpaid to the person taking into account the apportionment made by the Court; and

(b) any person who has paid the expenses of the funeral of the employee and the expenses of medical attendance on the employee,

shall be paid to him, or be invested, applied or otherwise dealt with for his benefit in such manner as the Court thinks fit.

This section was added pursuant to s 6 of the Employees’ Compensation (Amendment) (No 2) Ordinance 2000 (52 of 2000), commencing 1 August 2000.

Apart from s 6D(9) above, this is another route by which the determination and apportionment of compensation by the Commissioner may be brought before the court. By way of an example, an application for appeal may be made under this subsection if additional members of the family of the deceased came into light after the issue of the Certificate of Compensation Assessment for Fatal Case: see Chantex Engineering Ltd v Chan Hei Tai, Siu Yim Yung and Siu Man Faat, the members of the family of the deceased Siu Wong Sang & Others (DCEC 571-573/2002, 25 October 2002, DC, unreported), and [6D.02] above.

The costs in respect of the apportionment of compensation in a fatal case will be viewed as part of the party-and-party costs of the litigation as a whole: see Li Choi Na for herself and on behalf of other members of the family of Chan Chak Cheung, deceased v Well Done Garment Factory Ltd (DCEC 1023/2001, 13 May 2002, DC, unreported).

For ‘employee’, see s 2 above; for ‘Certificate of Compensation Assessment for Fatal Case’, ‘Certificate of Interim Payment’, ‘Certificate for Funeral and Medical Attendance Expenses’, ‘Commissioner’, ‘court’, ‘employer’, ‘member of the family’, ‘Review Certificate of Compensation Assessment for Fatal Case’, ‘Review Certificate of Interim Payment’ and ‘Review Certificate for Funeral and Medical Attendance expenses’, see s 3 above and notes thereto.

7. Compensation in case of permanent total incapacity

(1) Where permanent total incapacity results from the injury, the amount of compensation shall be-

(a) in the case of an employee under 40 years of age at the time of the accident, a lump sum equal to 96 months’ earnings or 96 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(a) specified in the first column of that Schedule, whichever is the less;

(b) in the case of an employee of or over 40 years of age but under 56 years of age at the time of the accident, a lump sum equal to 72 months’ earnings or 72 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(b) specified in the first column of that Schedule, whichever is the less;

(c) in the case of an employee of or over 56 years of age at the time of the accident, a lump sum equal to 48 months’ earnings or 48 times the amount specified in the second column of the Sixth Schedule shown opposite section 7(1)(c) specified in the first column of that Schedule, whichever is the less.

(Amended L.N. 79 of 1983; L.N. 321 of 1985; L.N. 390 of 1987; L.N. 386 of 1989; L.N. 435 of 1991; 66 of 1993 s 3; L.N. 566 of 1995; 36 of 1996 s 5)

(2) The amount of compensation payable under subsection (1) shall in no case be less than the amount specified in the second column of the Sixth Schedule shown opposite section 7(2) specified in the first column of that Schedule.

(Amended L.N. 79 of 1983; L.N. 321 of 1985; L.N. 390 of 1987; L.N. 386 of 1989; L.N 435 of 1991; L.N. 463 of 1993; L.N. 566 of 1995; 36 of 1996 s 5)

(3) For the purposes of this section, permanent total incapacity shall be deemed to result from an injury where the percentage or aggregate percentage of the loss of earning capacity amounts-

(a) in the case of an incapacity of a permanent nature which results from an injury specified in the First Schedule to 100 per cent or more as specified in that Schedule; or

(b) in the case of an incapacity of a permanent nature which results from an injury not specified in the First Schedule, to 100 per cent or more as assessed by an Ordinary Assessment Board, a Special Assessment Board or the Court,

and a reference in this subsection to an injury shall include a reference to a combination of injuries whether they are mentioned in paragraph (a) or (b) or in both those paragraphs.

This section was substituted pursuant to s 4 of the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980), commencing 1 November 1980. Subsequently, the words within the outer sets of square brackets in subs (1)(a)-(c) were substituted pursuant to s 3 of the Employees’ Compensation (Amendment) Ordinance 1993 (66 of 1993), commencing July 1993, and the words within the inner sets of square brackets were substituted pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. For a summary of the various prescribed amounts as amended from time to time, see notes below.

Subsection (2) was amended by substituting the words within square brackets pursuant to s 5 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996. For a summary of the various prescribed amounts as amended from time to time, see the notes below.

Subsection (3) was added pursuant to s 3 of the Employees’ Compensation (Amendment) (No 2) Ordinance 1985 (49 of 1985), commencing 26 July 1985.

This section does not have an equivalent in the UK Acts. The method of calculating compensation in UK is set out under the Workmen’s Compensation Act 1925 s 9(1), (2). In the UK, there are also provisions to the effect that an employee who has recovered from injury and who has taken all reasonable steps to, but has failed to obtain employment for which he is fit is to be treated, as suffering from total incapacity: see the Workmen’s Compensation Act 1925 s 9(4), as replaced by the Workmen’s Compensation Act 1926 s 1.

The prescribed amounts of compensation are revised from time to time: see the table below for a summary. See also the notes to subs (2) below.

An employee may be regarded as suffering from total incapacity even if he is able to work in a ‘sheltered workshop’ being a place operated by the Social Welfare Department where the physically handicapped are engaged for work with a nominal wage. This is because work at such a place and for which a nominal wage is paid cannot be said to be work of a wage earner in the ordinary sense: see Tsui Lup Shing v Hong Kong Security Ltd [1978] HKDCLR 11, [1978] HKCU 93.

The statutory minimum has from time to time been revised: see the table below for a summary.

Since the Ordinance is silent as to whether a new minimum is to apply in relation to accidents occurring after the new date or to assessments or awards made after that date, the normal presumption against giving retrospective effect to legislation prevails, and hence the relevant date for calculation is the date of the accident, and subsequent increases in the minimum figure are not to be given retrospective effect: see Chan Kam v Standard Chartered Bank Hong Kong Trustees Ltd [1988] 1 HKC 345, [1991] 2 HKLR 455, followed in Shiu Wai Kuen v Chan Hau Man (t/a Chong Yip Transport Co) [1991] 2 HKC 654. This principle would appear to apply to all calculations under ss 6(1), (2), 7(1), 8 and 9 of the Ordinance.

For ‘employee’, see s 2 above; for ‘compensation’, ‘Court’, ‘earnings’, ‘Ordinary Assessment Board’, ‘Special Assessment Board’ and ‘total incapacity’, see s 3 above and notes thereto.

8. Employee requiring attention

(1) Where permanent incapacity which results from the injury is of such a nature that the employee is unable to perform the essential actions of life, without the attention of another person, the compensation payable under this section for and in relation to such attention shall, in addition to any compensation payable under other provisions of this Ordinance, be-

(a) such amount not exceeding the amount specified in the second column of the Sixth Schedule shown opposite section 8(1)(a) specified in the first column of that Schedule as the Court considers necessary to meet the cost of such attention; or

(b) an amount of the amount specified in the second column of the Sixth Schedule shown opposite section 8(1)(b) specified in the first column of that Schedule payable pursuant to an agreement entered into by the employer with the injured employee and approved by the Commissioner under this section.

(a) a lump sum payment calculated with regard to the probable duration and cost of the attention; or

(b) (i) periodical payments, payable at such intervals as the Court may order, to cover periods not exceeding a total of 2 years after the date on which the employee becomes entitled to receive compensation under section 7; and

(ii) if on the expiry of the period of 2 years prescribed in sub-paragraph (i) the Court considers that the employee is still in need of attention, such lump sum payment, as the Court may order, calculated with regard to the probable duration and cost of the attention.

(3) No compensation under this section shall be payable in respect of any period during which the employee is receiving free medical treatment as an in-patient in a hospital or otherwise.

(4) Every agreement under this section shall, as soon as possible after the execution thereof, be submitted in triplicate by the employer to the Commissioner.

(5) Where an agreement under this section is submitted to the Commissioner, he may-

(a) subject to subsection (6), approve the agreement and signify his approval in writing; or

(6) Where the Commissioner has reason to believe that the interests of the employee require that the agreement be read over and explained to the employee, the Commissioner shall not signify his approval of the agreement under subsection (5)(a) until he has so read and explained it to the employee.

(7) No agreement made under this section shall be binding on any party thereto until the Commissioner has signified his approval thereof in writing under subsection (5)(a).

(8) Where the Commissioner refuses to approve an agreement under subsection (5)(b), he shall notify the employer in writing of his refusal giving his reasons therefor, and at the same time may return the agreement to the employer for amendment in such manner as he may specify.

(9) The Commissioner shall, as soon as possible after signifying his approval to an agreement under subsection (5)(a), forward one copy thereof each to the employer and the employee and retain one copy for his records.

(10) Any agreement made under this section which has been approved by the Commissioner may, on application to the Court by any party thereto or by the Commissioner, be made an order of the Court.

Subsection (1) was amended by adding the words within square brackets pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995. The amounts prescribed by the two inner sets of square brackets have been amended by s 7 of the Employees’ Compensation (Amendment) Ordinance 1996 (36 of 1996), commencing 1 July 1996: see notes below.

Subsection (2) was amended by substituting the words within square brackets pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

Subsection (4) was substituted pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

Subsections (5)-(10) were added pursuant to s 4 of the Employees’ Compensation (Amendment) Ordinance 1995 (1 of 1995), commencing 1 February 1995.

If by reason of the permanent total incapacity of the employee, special attention is required such as helping him with his urination or bowel movements or attending to his bed sores, etc, the costs for such help are recoverable under this section: see Lau Ka Shui v Yiu Wing Construction Co Ltd [1991] 2 HKC 644, followed in Ying Yuk Shan v South China Morning Post Publishers Ltd (DCEC 479/2003, 28 January 2008, DC, unreported). However, three criteria have to be met:

(1) the help cannot be intermittent in nature (However, with the relaxation of conditions under which compensation is payable by order of the court for the cost of attending to a seriously injured employee, it is submitted that compensation should be recoverable even where the help is intermittent in nature);

(2) allowance will not be granted in respect of help in housework or other purely domestic purpose: see Lau Ka Shui v Yiu Wing Construction Co Ltd (above); and

(3) no compensation shall be payable in respect of any period during which the employee is receiving free medical treatment as an in-patient in a hospital or otherwise: see the notes to subs (3) below.

It is, however, not necessary that the employee should actually be receiving the attention from outside, and an award will be made even if the employee is being looked after by a spouse or other relative: Tsui Lup Shing v Hong Kong Security Ltd [1978] HKDCLR 11, [1978] HKCU 93; Lau Ka Shui v Yiu Wing Construction Co Ltd above. The cost of attention needed by the employee can be represented by the loss of wages incurred by the relative who is looking after him: see Tsui Lup Shing v Hong Kong Security Ltd above. The employee’s entitlement to compensation under this section will also not be prejudiced by the possibility of his being admitted to a’care and attention home’ which will necessarily be a short term arrangement: see Lau Ka Shui v Yiu Wing Construction Co Ltd above.

Any compensation paid to an employee under this section will not be deductible from any sum subsequently payable under s 6 where death results: see the Workmen’s Compensation (Amendment) Ordinance 1980 (44 of 1980).

The prescribed maximum amount is revised from time to time: see the table below for a summary. See also the notes to s 7(2) above.

These subsections enable an employer, with the approval of the Commissioner for Labour, to agree with the employee as to the amount of compensation payable for costs of attention for serious injuries.

For ‘employee’, see s 2 above; for ‘Commissioner’, ‘compensation’, ‘Court’, ‘employer’, ‘hospital’ and ‘medical treatment’, see s 3 above and notes thereto.

LT. Long title

PART I

PRELIMINARY

(Added 19 of 1964 s 2)

1. Short title

2. Meaning of ‘employee’

3. Interpretation

4. Application to certain employees

PART II

COMPENSATION FOR INJURY

(Added 19 of 1964 s 4)

5. Employer’s liability for compensation for death or incapacity resulting from accident

Assaults and other violence

Drunkenness

Commencement and termination of employment

(1) Time spent in transport

(2) Means of access to and egress from place of work

(3) Attendance before starting time

(4) Returning to the employer’s premises

(5) Compulsory use of premises provided by the employer

Interruption of the course of employment

Taking rest whilst on duty

Absence from work

Prohibited acts and acting without instructions

Acting under superior’s orders

Acts done for the employee’s own purpose

Common risks and risks of forces of nature

Lending of employee

6. Compensation in fatal cases

6A. Apportionment of compensation

6B. Determination by Commissioner of claims for compensation in fatal cases

6C. Determination by Commissioner of interim payments

6D. Payment of compensation and objection to determination of Commissioner

6E. Determination by Commissioner of claims for funeral and medical attendance expenses

6F. Supply of particulars to Commissioner

6G. Discharge of liability of employer and his insurer in fatal cases

6H. Appeal against determination of Commissioner in fatal cases

7. Compensation in case of permanent total incapacity

8. Employee requiring attention