Recent CFA Case on the Effect of the Presumption in Section 5(4)(a) of the ECO and the Meaning of the Expression "Personal Injury by Accident" in Section 5(1) of the ECO

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In a recent case of the Court of Final Appeal (“CFA”), Sit Wing Yi Sibly v Berton Industrial Ltd FACV 3/2012, an appeal by a widow to claim employees’ compensation under the Employees’ Compensation Ordinance (“ECO”), Cap. 282 was dismissed. Two issues were discussed in the CFA case:-

1.          the effect of the presumption laid down by Section 5(4)(a) of the ECO; and
2.          the meaning of the expression “personal injury by accident” in Section 5(1) of the ECO.

Facts
The deceased was employed in Hong Kong and assigned to work at a factory in Dongguan City in PRC.

On 13 July 2007, the deceased was at work, meeting with customers in his office at the factory. At about 3:13pm, the deceased was talking to a customer on the telephone. Not long after that, the deceased went to the toilet in the office block. After the deceased had been away from his desk for some time, a number of his colleagues went to the toilet to look for him. At about 3:30pm, they found the deceased slumped on the floor in the toilet.

There was blood in the deceased’s mouth and nose, and a laceration on the left side of the bridge of his nose. The deceased was sent to a near-by hospital at about 4:00pm. Upon arrival, the deceased was found to have stopped breathing and his heart was found to have stopped beating. The deceased was certified dead at 4:30pm. A medical report was issued stating that the deceased’s heart had stopped beating for some unknown cause, and that the hospital was unable to certify the cause of his death.

No autopsy has ever been carried out on the deceased. Experts in Pathology have been instructed by the parties to investigate into and report on the cause of the deceased’s death. The experts concluded that there was insufficient factual information to determine the cause of death. The claim for employees’ compensation by the widow was dismissed by the District Court and the Court of Appeal. The widow appealed to the CFA.

Section 5(4)(a)
Section 5(4)(a) of the ECO presumes that an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment.

The widow argued that the above presumption operates so that where injury occurs at work there is placed on the employer an onus to adduce evidence to the effect that the injury was not caused by accident.

The CFA rejected this argument and held that whether the injury was by accident is distinct from, and logically anterior to, any question of whether what has happened arose out of or in the course of the employment. Therefore, the above presumption does not go to the distinct and anterior question of whether the injury was by accident and cannot assist the widow’s case.

Section 5(1)
Section 5(1) renders an employer liable to pay employees’ compensation “if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee”. The widow argued that the accident and the injury can be one and the same event.

The CFA made reference to cases authorities from Singapore and UK.

Case authority from Singapore
In a Singapore case of NTUC Income Insurance Co-operative Ltd v Next of kin of Narayasamy, deceased [2006] 4 SLR 507, the deceased was a 58-year-old male working as a coach driver. The deceased was seen by witness to be carrying luggages to the luggage compartment of the coach. The deceased then went out of breath and was unable to continue with his work. An ambulance was called and the deceased was brought to a nearby hospital where he was certified dead.

The Court had to decide whether the heart attack had been sustained in the course of the employment of the deceased. The Court held that there was clearly evidence to support that the deceased’s heart attack was triggered by his exertions at work and an “accident” would include the onset of an internal medical condition triggered by work, causing an unexpected injury. Accordingly, the Court held that the widow was entitled to employees’ compensation.

Case authority from UK
In Clover Clayton & Co, Limited v Hughes [1910] AC 242, it was a case regarding a workman suffering from serious aneurism. When the workman was tightening a nut using a spanner, his aneurism ruptured and he died on the spot. There was some conflict of evidence as to what had caused the death but the trial judge found that the death had been caused by the strain in tightening the nut which triggered the workman’s pre-existing condition.

The House of Lords (in the majority) agreed with the finding of the trial judge and held that an accident may be something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel. If that occurred when a person was lifting weights, it would be properly described as an accident. In the circumstances, the rupturing of an aneurism when tightening a nut with a spanner may be regarded as an accident.

CFA decision
The CFA disagreed that the accident and the injury can be one and the same event and held that the expression “injury by accident” plainly encompasses cause and effect, with accident as the cause and injury as the effect. Cases authorities from Singapore and UK show that the accident must be at least a contributory cause of the injury (i.e. heart attack from which the employee died was triggered by his exertions at work in the Singapore case and the breaking of a blood vessel while tightening a nut with a spanner in the UK case).

Conclusion

In order to satisfy the Court that a person is entitled to claim employees’ compensation and before applying the deeming provision under section 5(4)(a) of the ECO, the applicant must prove that there was an injury by accident and the accident must be distinct from the injury which it caused, with the accident being at least a contributory cause and the injury being the effect. Therefore, in fatal case when the cause of death is unknown, the fatal injury can hardly be found to be an injury by accident.

 
IMPORTANT:
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
 
For enquiries, please contact our Insurance & Personal Injury Department:
E: insurance_pi@onc.hk
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Published by ONC Lawyers © 2013