Hong Kong Safety Snapshots - Confirmation of limits on statutory compensation for internal injuries

The Hong Kong District Court has re-confirmed that ‘internal’ injuries suffered by employees are not compensable under the Employees’ Compensation Ordinance (Cap. 282) (ECO) if they are not caused by an accident that happened at work.
This issue arose in a recent Hong Kong District Court decision 馮应培 v CHINA STATE – SHUI ON JOINT VENTURE and Another [2022] HKDC 902, in which the Court followed the approach in another recent case Chow Kai Yan v Kingsway Cars T Service Ltd [2022] HKDC 165 (covered in our previous bulletin). The Court found that the employee involved was not entitled to compensation in respect of a stroke that he had at work, because the injury suffered had not been caused by an accident that happened at work.

Background

Mr Fung (Employee) was an employee of 裕安机电工程有限公司 (Employer). The Employer was a sub-contractor at a construction site. On 31 May 2017, whilst working at the construction site, the Employee fell and suffered an ischemic stroke.
The Employee commenced an application for statutory employee’s compensation under the ECO, on the basis that the stroke, which he claimed to have been caused by a head injury due to the fall, constituted an “injury by accident” at work.

The approach to section 5 of the ECO for internal injuries

Section 5 of the ECO provides that an employee is entitled to statutory compensation for “personal injury by accident arising out of and in the course of the employment”.

In issue in this case was whether the stroke suffered by the Employee constituted an “injury by accident” under that provision. After citing a line of English and Hong Kong authorities, the Court followed the approach in Chow Kai Yan, set out below:

1. external event(s) as accident – there must be an event or a series of events, which is external and has some effect on the Employee (whether physiological or psychological), or is in the form of noticeable bodily activities of the Employee when the event(s) occurred; and
2. accident as cause, injury as effect – “accident” and “injury” are two distinct but necessary elements to be established, where the”accident" must be shown to have caused, or at least contributed to, the “injury”.
The Court found that there was no “injury by accident” in the present case, and therefore the Employee’s claim for compensation under section 5 of the ECO failed. The Court gave the following reasons:

1. On the balance of probabilities, the Employee had not suffered any head injury. Hence, the stroke had not been caused by this alleged “accident”.
2. Further, based on the joint medical expert, the stroke had been caused by the Employee’s pre-existing medical conditions, including hypertension and hyperlipidaemia. The fall had therefore not caused the stoke – in fact, it was the stroke happening spontaneously, that led to the fall.
The Employee also claimed that there was a delay in medical treatment after the fall and the joint medical expert was biased. These arguments were dismissed by the Court.

Key takeaways

This case once again highlights that any claim of entitlement to compensation under section 5 of the ECO must be premised on an “injury by accident” – specifically, an employee who has suffered an internal injury or mental illness, will need to satisfy the tests set out above, in addition to the requirements that the injury must also have arisen out of and in the course of the employment.