Injury & Compensation

Presumptions about accidents in the course of employment

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

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

In order to establish an employer's liability to pay compensation, the individual employee must prove, on the balance of probability, that personal injury has resulted from an accident arising out of and in the course of the employment.

In most employee compensation claims, proving the cause of an accident in the workplace is usually quite straightforward. For example, if a pizza delivery worker slips and breaks a bone while inside a customer's premises, the injury can clearly be linked to carrying out his normal duties. If, though, a similar accident occurred while he was visiting a nearby friend after completing a delivery, the case might well be viewed differently.

To ease an employee's burden of proof, Section 5(4)(a) of the Employees' Compensation Ordinance (ECO) provides a number of statutory presumptions.

One of these is that an accident arising in the course of employment shall be deemed, in the absence of contrary evidence, to have happened as a result of that employment. However, the presumption can be challenged.

In the case of Ng Mung Khian for herself and the dependents of Chow Shek Fung, deceased vs Wing Kwong Painting Co and others in 2002, a sub-contractor had employed the deceased worker as a painter on a construction site in Lai Chi Kok. One day, a fire broke out in the sub-contractor's temporary storeroom and firemen subsequently discovered the charred body of Mr Chow inside. His wife claimed employee's compensation and, when applying the presumption of Section 5(4)(a), the Court found that, although there was no witness to the accident, Mr Chow was last seen when he returned to the construction site after lunch.

It was possible that he had visited the storeroom to get something needed for the afternoon shift, and that he was caught in the fire. The Court said the employer had failed to displace the presumption and, as a result, granted the wife employee's compensation.

However, the Court may be reluctant to apply the presumption, if there is sufficient evidence to the contrary. In the 1984 case of Fong Fung Ying for herself and on behalf of other dependents of Lee Shui, deceased vs Attorney General, the deceased was employed to use oxyacetylene welding and cutting equipment. On the morning in question, he was supposed to pick up some equipment from his supervisor's office, and arrived early. The supervisor therefore invited him to a nearby restaurant for a drink. Afterwards, the deceased didn't go directly back to the office, but stopped off at a public lavatory, where he was stabbed.

The Court of Appeal found that the restaurant visit constituted a break in his employment. It therefore followed that the visit to the lavatory was also not incidental to his employment. This meant there was evidence to displace the usual presumption and the applicant's claim for employee's compensation was rejected.

Under normal circumstances, if an employee suffers an accident while commuting to or from work, this cannot be regarded as arising out of and in the course of the employment. In general terms, the day's employment begins when someone arrives at the place of work and ends when they leave there.

To take account of this, there is another presumption in Section 5(4)(d) of the ECO. It provides that an accident is deemed to be in the course of employment if it happens while travelling to or from the place of work by means of transport operated by the employer or under arrangements made by the employer. This does not include public transport.

In addition, Section 5(4)(e) of the ECO covers accidents which happen when an employee is driving a company vehicle. It refers in particular to travel by a direct route to the place of work in connection with employment or travel to a person's place of residence after attending to employment duties.

Q&A on accidents during employment
Q1 Would it fall within the scope of Section 5(4)(d) of the ECO if a car hit an employee who was walking towards a bus provided by the employer?
A1 No. In the 1991 case of Check Chor Ching vs Wik Far East Ltd, the employer provided a free bus service for employees to travel to and from work. One day, an employee crossing a public road to board the company bus was knocked down by a light goods van and injured. The Court of Appeal rejected her claim for compensation on the grounds that, at the time of the accident, she was not travelling as a passenger on the bus.

Q2 If a messenger is injured while delivering letters for his employer by public bus, does the presumption in Section 5(4)(d) of the ECO apply?
A2 No. The statutory presumptions are there to assist an employee in proving that an accident arises out of and in the course of the employment. Even if the presumptions are not applicable, an accident can still be regarded in this light.

Taken from Career Times 24 March 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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