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Hong Kong Security Snapshots – Affirmation of limits on statutory compensation for inner accidents


The Hong Kong District Courtroom has re-confirmed that ‘inner’ accidents suffered by staff are usually not compensable beneath the Staff’ Compensation Ordinance (Cap. 282) (ECO) if they aren’t attributable to an accident that occurred at work.
This difficulty arose in a latest Hong Kong District Courtroom resolution 馮应培 v CHINA STATE – SHUI ON JOINT VENTURE and One other [2022] HKDC 902, through which the Courtroom adopted the strategy in one other latest case Chow Kai Yan v Kingsway Automobiles T Service Ltd [2022] HKDC 165 (coated in our earlier bulletin). The Courtroom discovered that the worker concerned was not entitled to compensation in respect of a stroke that he had at work, as a result of the harm suffered had not been attributable to an accident that occurred at work.

Background

Mr Fung (Worker) was an worker of 裕安机电工程有限公司 (Employer). The Employer was a sub-contractor at a building web site. On 31 Could 2017, while working on the building web site, the Worker fell and suffered an ischemic stroke.
The Worker commenced an utility for statutory worker’s compensation beneath the ECO, on the idea that the stroke, which he claimed to have been attributable to a head harm as a result of fall, constituted an “harm accidentally” at work.

The strategy to part 5 of the ECO for inner accidents

Part 5 of the ECO supplies that an worker is entitled to statutory compensation for “private harm accidentally arising out of and in the midst of the employment”.

In difficulty on this case was whether or not the stroke suffered by the Worker constituted an “harm accidentally” beneath that provision. After citing a line of English and Hong Kong authorities, the Courtroom adopted the strategy in Chow Kai Yan, set out under:

1. exterior occasion(s) as accident – there should be an occasion or a sequence of occasions, which is exterior and has some impact on the Worker (whether or not physiological or psychological), or is within the type of noticeable bodily actions of the Worker when the occasion(s) occurred; and
2. accident as trigger, harm as impact – “accident” and “harm” are two distinct however vital components to be established, the place the”accident” should be proven to have triggered, or no less than contributed to, the “harm”.
The Courtroom discovered that there was no “harm accidentally” within the current case, and due to this fact the Worker’s declare for compensation beneath part 5 of the ECO failed. The Courtroom gave the next causes:

1. On the steadiness of chances, the Worker had not suffered any head harm. Therefore, the stroke had not been attributable to this alleged “accident”.
2. Additional, based mostly on the joint medical knowledgeable, the stroke had been attributable to the Worker’s pre-existing medical circumstances, together with hypertension and hyperlipidaemia. The autumn had due to this fact not triggered the stoke – actually, it was the stroke taking place spontaneously, that led to the autumn.
The Worker additionally claimed that there was a delay in medical therapy after the autumn and the joint medical knowledgeable was biased. These arguments have been dismissed by the Courtroom.

Key takeaways

This case as soon as once more highlights that any declare of entitlement to compensation beneath part 5 of the ECO should be premised on an “harm accidentally” – particularly, an worker who has suffered an inner harm or psychological sickness, might want to fulfill the checks set out above, along with the necessities that the harm should even have arisen out of and in the midst of the employment.

Ben Harris

Ellie Cheung

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