Employees’ Compensation Relating to Non-fatal Claims – A Reminder

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. 

1. 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).

1. 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).

1. 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:

1. The employee should inform the employer of the work injury orally or in writing as soon as the work injury comes to the employee’s knowledge or is confirmed.

1. The employer should make statutory filing(s) and report the work injury to the Labour Department (“LD”) within 14 days if such work injury results in incapacity.

1. In certain cases, where the LD considers it necessary to arrange medical clearance, the LD shall issue a Medical Clearance Notification to the employee who should bring along all necessary documents and proceed with the medical clearance procedure.

1. In the event that the LD arranges a medical assessment for the employee and it appears that permanent incapacity may result from the injury, the employee may need to attend the Employees’ Compensation (Ordinary Assessment) Board (“Assessment Board”) in order to determine the loss of earning capacity. The employer and the employee shall receive a Certificate of Compensation Assessment (“Certificate”) which states the amount of compensation.

1. The employer must pay the compensation within 21 days from the date of issue of the Certificate. Failure to pay the compensation without reasonable excuse is a criminal offence.

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

1. The employer and employee should be aware of their statutory obligations with which they must be complied in accordance with the prescribed timeline.

1. The employer should get the insurer involved as soon as possible.

1. Where the parties concerned confirm and acknowledge the needs of each other, they may consider the option of early settlement and agree on the settlement terms as permitted by the applicable laws and regulations to the fullest extent. 

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.