Introduction |
Workplace accident is one of the most common types of accidents in Hong Kong. In light of the issue, the Employees’ Compensation Ordinance (Chapter 282, Laws of Hong Kong) (“ECO”) confers on an employee who sustained injuries at work a right to recover compensation from his/her employer. This newsletter shall focus on non-fatal cases and identify the legal rules contained in the ECO and under the common law, then it shall set out the general procedure for employees’ compensation claims. |
1. Statutory Duty to Pay Compensation |
Where, in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, the employer may be liable to pay compensation. The claim for compensation must satisfy the three main elements listed below. |
Contract of service The aggrieved party must prove that he was an employee at the time of injury. The court shall examine the features of the parties’ relationship and decide whether such relationship is, as a matter of overall impression, one of employment (Poon Chau Nam v Yim Siu Cheung [2007] 2 HKC 135). Further, the court takes into account the effect of the agreement, rather than its form (Lam Sik v Sen International Ventures Corp (HK) Ltd [1994] 3 HKC 405). |
Injury The aggrieved party must prove that the injury was triggered by an unexpected, unforeseen and identifiable event (Fung So Yin v Shek Hay Yau [2012] HKCU 2600; Fenton v J Thorley & Co Ltd [1903] AC 443). In addition, the accident must cause the injury concerned (LKK Trans Ltd v Wong Hoi Chung [2005] HKCU 688). |
Accident arising out of and in the course of employment The “course of employment” covers activities which the employee is employed to do and those incidental to the employee’s work (Charles R Davidson & Co v McRobb [1918] AC 304). When determining whether this element is satisfied, the relevant factors to be contemplated by the courts include the place and time at which the accident took place. |
2. Procedure for Employees’ Compensation Claims |
A simplified overview of the general procedure for a claim of compensation by the employee is summarized as follows: |
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3. Assessment of Compensation |
The amount of compensation payable shall be assessed with reference to the age and monthly earnings of the injured employee and the nature of the work injury. Further, the employer may be required to pay medical expenses and/or costs of prostheses and surgical appliances. |
4. Practical Takeaways |
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IMPORTANT Please note that the information above is a preliminary overview of this specialized area of law. As every case depends on its facts, it is imperative to state that the above does not constitute formal legal advice. We do not accept any responsibility whatsoever in respect of this publication. Should you wish to seek our advice or assistance, please do not hesitate to contact us. If you wish to unsubscribe, please inform us by email at mail@allawyers.com.hk. |
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