"An Accident" Under The Employees' Compensation Ordinance (ECO) In Hong Kong - Case Analysis Involving A Stroke Injury

• Law Firm: Mayer Brown
• Subject Matter: Employment and HR, Insurance, Employee Benefits & Compensation, Insurance Laws and Products
• Author: Ms Angela Yim
• Published date: 08 March 2023

Analysing Chow Kai Yan by Man Wai Tong, his next friend v. Kingsway Cars Service Limited (DCEC 376/2019) judgment of 29 March 2022.

Summary - Approach in Finding 'Injury by Accident" for Non-traumatic Case

In a recent Hong Kong District Court judgment, Deputy Judge Calvin Cheuk considered the history of authorities and laid down the proper approach in finding 'injury by accident' under the Employees' Compensation Ordinance Cap. 282 (ECO).

In summary, an accident must be external with some physiological or psychological effect upon that part of the injured person's (the Applicant) anatomy which sustains the actual trauma, or some bodily activity of the Applicant which would be perceptible to an observer, if present when it occurred.

The judgment emphasised the distinction between 'accident' and 'injury' - and the need to identify and prove a specific 'accident' for definition as 'injury by accident'.

The ruling reaffirmed principles laid down by the Court of Final Appeal in Sit Wing Yi Sibly v. Berton Industrial Ltd (2013) 16 HKCFAR.

Case Background

On 25 February 2017 the Applicant, employed by the Respondent as a supervisor/technician, was at work when he suddenly lost consciousness in a changing room and suffered an acute cerebral stroke (intracerebral haematoma) causing cardiac arrest and in turn insufficient blood supply to the brain. The Applicant has since fallen into a persistent vegetative state.

In a subsequent HK$3.5 million compensation claim, it was argued that stressful work and long working hours contributed to the Applicant's stroke.

But as he was simply standing in the changing room when he fainted, the main dispute between the parties was in relation to liability, in particular the proper approach under Section 5 of the ECO.

The Respondent's position was that the Applicant failed to identify any "accident" under the ECO. In contrast, the Applicant contended that an accident can be "internal" - arguing that the accident was the cerebral stroke suffered, resulting in the injuries of cardiac arrest and coma.

Notably, the Applicant did not plead "work stress" and/or "long working hours" as the accident.

Judgement - Validation of the Employee's Compensation Claim

The Court laid down the following proper approach in determining whether the Applicant has established a valid EC claim:

1. First of all, there must be an identifiable event or a series of events which constitute an 'accident', which must be something 'external which has some...