Introduction

Section 5(1) of the Employees’ Compensation Ordinance (Chapter 282 of the Laws of Hong Kong) (the “ECO”) stipulates that subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance. It is therefore essential that a claimant must establish, among others, that there was an accident which caused the personal injury. The recent case of Chow Kin Hang Ali v Secretary for Justice for and on behalf of Food and Environmental Hygiene Department [2025] HKCA 324 addresses the issues of what constitutes an accident and the necessity of establishing a direct link between an accident and a new injury.

Background

This case involves an appeal concerning the dismissal of a claim for compensation under the ECO. The applicant, being a civil servant working as a foreman in the Food and Environmental Hygiene Department (the “Department”) had been diagnosed with adjustment disorder following an incident in 2015. He had since January 2016 received regular psychological treatment.

On 8 June 2017, the applicant was notified by the Department that he would be assigned to the District Enforcement Team (the “DET”), effective from 20 June 2017. Knowing the proposed posting, the applicant requested to be exempted from the new posting citing his health reasons but was denied. On the first day of his new posting, the applicant made an oral request to be transferred out of the DET but was told to submit a written application with supporting documents. He then threatened to jump off from the roof and displayed a banner complaining of his assignment. He was subsequently taken to the hospital and was discharged on the same day. After the written application made on 29 June 2017, he was posted out of the DET on 11 July 2017.

In 2019, the applicant commenced proceedings to claim compensation under the ECO in respect of the incident on 20 June 2017.

Parties’ contentions

The basis relied upon by the applicant was that on 20 June 2017 and in the three days prior to that, the Department forcibly posted him to the DET in disregard of his health concerns, and that the Department was guilty of serious negligence with regard to his work arrangement and direction which caused him to suffer mental injury.

The respondent contested the claim as to both liability and quantum. For the purpose of this newsletter, the discussion below will focus on the issue of liability. The respondent asserted that in respect of liability, (1) the events on or before 20 June 2017 did not come within the meaning of accident in section 5(1) of the ECO; and (2) the applicant’s diagnosis of mental disorder was not caused by the events on or before 20 June 2017.

Rulings

The Court of Appeal upheld the District Court’s decision, dismissing the applicant’s appeal based on the following grounds:

1.    The law on injury by accident

In discussing what amounts to an accident, the District Court judge considered various authorities, finding that (1) the applicant knew and it was within his expectation that the new posting would commence on 20 June 2017 such that his dissatisfaction and response would not amount to an accident; (2) the interactions between the applicant and a supervisor on the day did not cause any untoward or sudden mishap; (3) there was no impropriety in the conversations and contacts that the supervisors had with the applicant; and (4) the applicant’s acts of going to the roof, writing and displaying banner as well as his response to the posting arrangement were probably due to his personality and pre-existing mental illness and did not fall within the meaning of accident.

2.    Pre-existing conditions

It is not in dispute that the applicant had been diagnosed with adjustment disorder prior to the new posting. Medical evidence supported that the mental disorder suffered by the applicant following the incident on 20 June 2017 was a pre-existing condition and was not an injury caused by any alleged accident. 

3.    Procedural grounds of appeal

It is notable that the applicant’s grounds of appeal did not raise any challenges against the findings in the District Count that the applicant did not meet any “accident” nor “suffered any personal injury arising out of and in the course of his employment”.  Instead, he raised several procedural improprieties related to admission of evidence and witness statement as well as the conduct of the respondent’s legal team and the judge during the trial in the District Court. The Court of Appeal nevertheless held that all alleged grounds are unfounded and without substance. 

Takeaway

This case serves as an important reminder that accidents should be unexpected or untoward events that are not expected or designed and matters that are normal or routine in the course of work generally do not fall within the meaning of accidents. It also emphasizes the need for claimants to substantiate a direct link between an accident and a new injury and pre-existing conditions would not suffice. Having said that, given the complexities in real life situations, there may not be straightforward answers. When in doubt, it is always advisable to seek legal advice.