Injury & Compensation

Presumption favouring compensation

by Anthony Lam, Solicitor, Au-Yeung, Cheng, Ho & Tin

Article exclusively contributed by Au-Yeung, Cheng, Ho & Tin

The mere act of disobeying an employer's instructions does not automatically mean that a worker is in breach of the terms of their contract of employment. If doing so leads to an accident or other problems, the Employees' Compensation Ordinance (ECO) contains a number of presumptions which may still allow the employee to claim compensation.

For example, Section 5(4)(b) of the ECO says that an accident to an employee shall be deemed to arise out of and in the course of his employment, even if the employee was acting in contravention of any statutory or other regulations. This also applies if the employee was acting without or against instructions from the employer, provided the act was done for the purposes of and in connection with the employer's trade or business. The 1998 Court of Appeal case of Lau Kam Nui on behalf of the dependants of Ma Chor Yee, deceased vs Sau Kee Company Limited is a good illustration of how this works in practice.

Mr Ma had been a maintenance worker employed by the Defendant, whose business was to maintain and repair boats at its shipyard. He was regarded as an unskilled worker and his main duties were to clean hulls and do painting jobs. He did no underwater work, but would go into the water when required to assist. It happened, though, that Mr Ma drowned while trying to retrieve a gas cylinder which belonged to his employer.

One of his former colleagues gave evidence in Court stating that Mr Ma's duties did not require him to dive underwater and, furthermore, that he had been told not to dive. It was implied that, in the circumstances, he had failed to obey his employer's instructions.

When granting judgment in favour of Mr Ma, the Court adopted the citation of an English case which provides that "a servant (or employee) has implied authority to make reasonable efforts to protect and preserve his master's (or employer's) property in cases of emergency endangering it. For acts done by the servant (employee) within the scope of that authority, the master (employer) is responsible. The servant's (employee's) acts may exceed the authority."

By applying this citation and the presumption in Section 5(4)(b) of the ECO, the Court found that, in seeking to recover the cylinder, Mr Ma was not only acting in the course of his employment, but his accident had also arisen from that employment.

It is a different situation if an employee's accident or injury is attributable to serious and willful misconduct. For such cases, Section 5(3) of the ECO effectively provides that if the injury results in death or serious incapacity, the Court can consider all the circumstances. It can then exercise discretion in awarding employee's compensation or such part thereof as it thinks fit. If the injury falls short of death or serious incapacity, any compensation is disallowed.

In the case of Cheung Tam Loy vs Cheung Hing Construction Co, a surveyor's labourer drove a mechanical shovel over an embankment and killed himself. The employee's sole official duty was to carry a surveyor's line and level, but no more. In fact, express on-site instructions had been given that only authorised personnel were allowed to drive the shovel. The Court therefore held that the accident, which caused the death of the labourer, did not arise out of and in the course of his employment.

An attempt was made to urge the judge to exercise discretion and grant compensation nonetheless. However, in dealing with this argument, the Court held that, for the proviso in Section 5(3) of the ECO to apply, it must first be shown that the accident occurred in the course of employment. Upon the evidence presented, it could never be said that such a labourer, even incidental to his work as a surveyor's assistant, was acting in the course of employment when driving the shovel. Accordingly, the Court refused to grant compensation to the applicant.

Q & A on non-payment of employee's compensation
Q1 What other acts or conduct will make it impossible to obtain employee's compensation?
A1 Section 5(2) of the Employees' Compensation Ordinance (ECO) states that no compensation shall be payable if:
a. The incapacity or death of an employee results from deliberate self-injury
b. The incapacity or death results from personal injury, and if the employee has at any time informed the employer that he was not suffering or had not previously suffered from that or a similar injury, knowing that this representation was false
c. Any injury, not resulting in death or serious and permanent incapacity, is 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.

Q2 Would someone be entitled to employee's compensation if they were injured during a journey to meet one of the company's customers in Shenzhen?
A2 Yes. Section 5(4)(g) of the ECO says that an accident arises out of and in the course of employment if it happens while the employee is travelling by any means of transport for the purposes of his employment between Hong Kong and any place outside Hong Kong.

Taken from Career Times 16 June 2006

(Last review date: 23 August 2013)

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Disclaimer: The opinions expressed in this article are those of the contributor

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