1. What is meant by "an accident arising out of and in the course of employment"?

1. What is meant by "an accident arising out of and in the course of employment"?

According to section 5(4)(b) of the Employees' Compensation Ordinance, an accident to an employee is deemed to arise out of and in the course of employment, notwithstanding that the employee was at the time of the accident acting in contravention of any statutory or other regulation applicable to the relevant employment, or of any orders given by or on behalf of the employer, or that the employee was acting without instructions from the employer, if the act was committed by the employee for the purposes of and in connection with the employer's trade or business.

A Court of Final Appeal judgment ( LKK Trans Ltd v Wong Hoi Chung) has also pointed out that an employee's entitlement to compensation, in an accident arising out of and in the course of employment, is not affected by the employee's pre-existing disease.

The question which arises for decision in the appeal of the above case is as follows: Where an employee is injured in an accident at work resulting in permanent incapacity which is caused both by that injury and by a pre-existing disease, should the court limit the entitlement to Employees' Compensation by apportioning the incapacity attributable solely to the injury as distinct from the disease? The 5 judges in the Court of Final Appeal unanimously held that the answer to the above question should be NO.

Further, injuries and death sustained from an accident when commuting to or from work during the period of “extreme conditions” arising from a super typhoon or other natural disaster of a substantial scale are now covered by the Employees’ Compensation Ordinance.

Under section 5(4)(f) of the Ordinance, in cases of a gale/rainstorm warning or extreme conditions, an accident to an employee will be regarded as linking to his employment if it happens to him when he is travelling to/from work by a direct route within 4 hours before or after his working hours or in such other circumstances as the Court thinks reasonable.

The section also expressly spells out that:-

1. “gale warning” refers to the situation when any of the tropical cyclone warning signals commonly referred to as No. 8NW, 8SW, 8NE, 8SE, 9 or 10 is in force; and
2. “rainstorm warning” refers to the situation when any of the heavy rainstorm warning signals commonly referred to as Red or Black is in force.