This article aims to explore the liability of employer under the Employees’ Compensation Ordinance, Cap. 282 (“ECO”) when his employee is found dead at workplace. The Law The statutory framework for employees’ compensation is stipulated in ECO. Under s.5(1) of ECO, an employer shall be liable to pay employees’ compensation to his employee if there was personal injury caused to his employee by accident arising out of and in the course of the employment with that employer.  Therefore, in a found-dead case, an applicant has to prove that there was an accident that caused the death and the accident arose out of and in the course of employment. Accident causing death The word “accident” is used in its popular and ordinary sense as denoting an unlooked-for mishap or an untoward event which is not expected or designed by the employee himself. The accident must be materially contributing to the death but it need not to be the sole cause of death. It has been held that causation is essentially a matter for the judge, not for the doctors and the meaning of the word “material” should be used in the context of “sufficient and relevant”, rather than “major or primary”. In Sit Wing Yi Sibly v Breton Industrial Ltd. DCEC733/2009, an employee was found collapsed in the toilet of the office of employment in Dongguan, China and was later certified dead at a hospital in Dongguan. His body was cremated in Hong Kong and no post-mortem examination was performed either in Dongguan or in Hong Kong. Parties’ pathologists were unable to come to any conclusion of the cause of death due to insufficient information. There was no suggestion of a slippery floor in the toilet, stress induced by over-work or exposure to dangerous substance at work etc, that could have triggered an accident to the deceased. The trial judge dismissed the claim on the ground that the applicant had failed to prove on the balance of probability that there was an accident that caused or contributed to the deceased’s death.  In Yu Suet Wan v Fidelity Property Management Ltd. DCEC 815/2005, the deceased employee was a night-shift security guard working on a construction site and was found dead in early morning on the site. The common ground between the medical experts called by both sides was that the deceased suffered from chronic obstructive pulmonary disease and the cause of death was cardiac arrhythmia/sudden cardiac death. There was evidence that the place where the deceased employee found was wet and sloping from one side to another. The Judge rejected the submissions of the respondent that the deceased died from his own ailments and held that given ample circumstantial evidence about the geography and condition of the construction site, it was highly likely that the deceased employee slipped and fell before his death and the slipping materially contributed to his death. The claim was thus allowed. Arising out of and in the course of employment The phrase “arising out of and in the course of employment” means arising out of and in the course of the work which the employee is employed to do and what is incident to it. For an accident to arise out of the employment, there must be some cause and effect relation between the employment and the accident and the crucial issue is whether the accident resulted from a risk which necessarily arose out of the employment. Under s.5(4)(a) of ECO, an accident arising in the course of employment shall be deemed, in the absence of evidence to the contrary, to be arising out of the employment. In Cheung Kai Chi v Chun Wo Contractors Limited & Anor DCEC415/2003, the deceased who was employed as a welder ganger at a construction site was found dead near the back of a crawler crane at the site. The cause of death was neck and chest injury. The deceased was last seen 35 minutes before the accident examining the drill head where he was later found dead. He was wearing protective clothes and gloves when he was dead and his helmets, goggles and cap were found in the vicinity. There was nothing to suggest there was any personal grudge between him and other workers at the site. The Court held the accident arose in the deceased’s course of employment. Since the respondents had failed to adduce contrary evidence that the accident did not arise out of the employment, the accident was deemed to have arisen out of the employment. The judge went on to state that the only reasonable inference that could in fact be drawn from all the circumstances of the accident was that the accident also arose out of the deceased’s employment. Exceptions If an applicant can establish a prima facie case under S.5(1) of ECO, it is onerous on the part of employer to show that the applicant’s case falls in one of the exceptions provided in ECO to exonerate himself from liability.  It is provided in s.5(2) of ECO that no employees’ compensation shall be payable in respect of the following situations :- 1.          any death resulting from a deliberate self-injury [s.5(2)(b)]; and 2.          any death resulting from personal injury if the employee has at any time represented to the employer that he was not suffering or had not previously suffered from that or a similar injury, knowing that the representation was false [s.5(2)(c)]. Conclusion The legal principles for claiming employees’ compensation in respect of a deceased employee found dead at workplace are not different from those in other work-related injury cases, though the applicant would meet greater difficulty in proving his case as there might be little or no evidence showing what the deceased employee was actually doing shortly before the accident. The burden is on the applicant to show that there was personal injury to the deceased by accident arising out of and in the course of employment and the injury subsequently led to his death. Evidence regarding the cause of death of the deceased and his past health, the activities he was involved when he was last seen, the circumstances of the place where the deceased was found, etc would be useful in proving the applicant’s case. Neither the negligence of the employer nor the fault of the deceased employee is material in determining liability under ECO, unless the situations leading to the death of the employee fall within s.5(2) of ECO, and in such case the applicant’s claim may be disallowed.

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:

Ray Lee Partner, Head of Insurance & Personal Injury T: (852) 2107 0355 E: ray.lee@onc.hk

Ludwig Ng Senior Partner T: (852) 2107 0315 E: ludwig.ng@onc.hk

Published by ONC Lawyers © 2011