Employees Compensation and Negligence Claims

Employees Compensation and Negligence Claims

An employee who is injured from work is entitled to claim compensation based on s.5 of the Employees’ Compensation Ordinance(ECO). The injured employee must show the following: a contract of service, an accident-led injury and an accident arising out of and in the course of the employment.

If an employee finds the contract has referred him/her identity as ‘contractor’ instead of ‘employee’, the service contract may still be valid. In Lam Sik v Sen International [1994] 3 HKC 405 where the injured employee was regarded as a ‘contractor’ in the written agreement,  the Court held that the wordings of the contract were not determinative and the whole picture of the contract would be looked at to determine the employer’s intention. By looking at the entire agreement, it may reflect the employer’s purpose of employing someone.

The injury has to be accident-led; the employee has to prove that the incident was unexpected from his/her perspective. Some less obvious cases of collapse like fatigue from overwork or heart attack triggered by work are also counted as an accident. (Yip Ho v HK [1969] HKDCLR 1)

Lastly, the employee has to show the injury was caused by an accident arising out of and in the course of employment. From  Chan Lap Sin v Gold Lion Productions Co [2002] HKEC 490, relevant considerations are taken into account in deciding whether the accident happened in the course of employment: was the worker injured at the place of work and during working hour? Was the worker undertaking his duties of work, under the superior’s instruction and acting for the employer’s interest? After proving that the accident arose in the course of the employment, it shall be deemed, in the absence of evidence to the contrary, also have arisen out of the employment according to s.4(a) of the ECO.

s.4(b) to (g) demonstrates circumstances that are regarded as occurring out of and in the course of employment. In general, whenever employees are engaged in acts for and in connection with his employer’s trade or business, such as travelling utilizing transport provided by the employer to the place of work, they are under the protection of the ECO.

To conclude, once an employee gets injured, he/she should first notify the employer and leave any medical records. The Court will consider the abovementioned three criteria when determining whether the employee is entitled to make a compensation claim. Please call or WhatsApp Mr. Lam at 69776708 for consultation session and fee quote.

Please feel free to contact us at 69776708 for Mr Lam or make an appointment.

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