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.
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:
- 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 physiological or psychological effect upon that part of the Applicant's anatomy which sustains the actual trauma, or some bodily activity of the sufferer which would be perceptible to an observer if one were present when it occurred”.
- Second, the Applicant must show that the “accident” caused or contributed to the injury.
- Third, the Applicant must prove that the accident occurred in the course of and arising out of the employment. In this regard, while the Applicant can rely on the presumption or deeming provision under section 5(4)(a) of the ECO in the absence of evidence to the contrary, if there is evidence to the contrary, then the presumption or the deeming provision does not apply, and it is for the Applicant to prove that the accident did arise, not only in the course, but also arising out of, his employment.
As the Applicant pleaded that the accident was the cerebral stroke suffered, which was something “internal”, the Court considered that this cannot constitute an “accident” and was in fact the “injury”. As such, the Applicant failed to properly identify the accident under Section 5 of the ECO, and hence the claim was dismissed.
In addition, the Court also found that the Applicant failed to prove that overtime work and related stress taken up by the Applicant (assuming they are properly identified as “accident”) caused or had any real contribution to his cerebral stroke.
In this regard, the Court preferred the Respondent's expert evidence over the Applicant's, and accepted that the most probable cause for the stroke was due to a pre-existing condition.
Takeaway for Defendants, Employers and Insurers in Any Work Injury Claims
The Court clarified and re-affirmed the position that an accident under Section 5 of the ECO must be external and perceivable by an observer – and rejected the notion of an “internal accident”, namely by pleading the stroke/infarction as the accident when it fact it was the injury.
In this regard, the Court clarified previous confusion over rulings such as Yu Po Ching v. China State Construction Engineering (Hong Kong) Ltd and Kwong Hing Marble Work Company DCEC 1673/2013 (unreported, 13 February 2017).
In addition to the three-stage test laid down, the Judge considered another hurdle for the Applicant to establish an EC claim in this type of case was medical causation – confirming that accident must have some causal relationship with injury, which may be difficult to prove under some circumstances when work stress/overtime work is involved, such as this case.
In this regard, it is also a reminder to defendants, employers or insurers that while the Applicant can rely on the presumption or deeming provision under section 5(4)(a) of the ECO, if there is evidence to the contrary (such as expert medical evidence on causation), then the presumption or deeming provision will not apply.
It is then for the Applicant to prove the accident arose not only in the course – but also arising out of – his or her employment.
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