Description
LAWS OF HONG KONG
EMPLOYEES' COMPENSATION ORDINANCE
CHAPTER 282
REVISED EDITION 1988
PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER
HONG KONG
CHAPTER 282
EMPLOYEES' COMPENSATION ORDINANCE
ARRANGEMENT OF SECTIONS
Section
PART I
PRELIMINARY
1. Short title ................... ... 4
2. Meaning of 'employee .. 4
...................................................................................
3. Interpretation 5
..................................................................................................
4. Application to employees employed under the Crown 9
....................................
PART II
COMPENSATION FOR INJURY
5. Employer's liability for compensation for death or incapacity resulting
from accident
........................................................................................................9
6. Compensation in fatal cases 11
7. Compensation in case of permanent total incapacity 12
8. Employee requiring constant attention ....... 12
9.Compensation in case of permanent partial incapacity 13
10. Compensation in case of temporary incapacity 14
10A Payment of medical expenses ..........................................................................16
10B Determination by Commissioner of medical expenses payable .......................17
11..................Method of calculating earnings ............................ .......17
12..................Persons entitled to compensation .........................................................19
13. Distribution of compensation 19
14. Requirements as to notice of accident and application for compensation 21
15. Employer to report the injury to or death of an employee and method of
notification
...................................................................................................22
16. Medical examination and treatment ................................................................23
16A. Determination of claims in respect of minor injuries
.......................................24
16B. Cancellation of minor injuries claim certificate by the Court ............26
16C. [Repealed] 27
16D. Employees' Compensation (Ordinary Assessment) Boards .............................27
16E. Employees' Compensation (Special Assessment) Boards ................................27
16F. Certificates of assessment
................................................................................28
16G. Review of assessments
.................................................................................. ..29
16GA. Review of assessments other than under section 16G. 30
16H................Certificates as evidence .................. 31
16I. Attendance of employee for purposes of assessment, etc. 31
17. Agreements as to compensation for certain injuires 32
17A. Agreement to include surcharge provision
......................................................33
17B. Cancellation of agreement by the Court ..............................................34
Section page
18. Appeals to the Court 34
18A. Determination of claims by the Court 35
19. Review 35
20. Limitation of power of employer to end or decrease periodical payments 36
21. ...... Jurisdiction of the Court 36
22. ................................................................................. Power of the Court to
submit questions of law .......................37
23. ........................ Appeals 37
24. Liability in case of employees employed by sub-contractors 37
25. ............ Remedies against both employer and third party 38
26. ..................... Remedies independently of Ordinance against
employer ............ 40
27. .......... Limitation of right of indemnity against
third party under section 25 ...... 41
28. ... Provision as to cases of bankruptcy of
employer ............ 41
29. .. Application to persons employed
on ships .....42
30. ....................................... Application to persons
employed on foreign ships ..43
30A. .................................... Testimony of
witness outside Hong Kong .43
30B. Application to an employee injured outside Hong Kong 44
31. ... Contracting out 44
PART III
COMPENSATION FOR OCCUPATIONAL
DISEASES
32. Compensation in the case of occupational disease 45
33. Medical examination before employment 46
34. Presumption as to cause of occupational disease 47
35. Amendment of Second Schedule 47
36. Saving in case of diseases other than occupational diseases 47
PART IIIA
PROSTHESES AND SURGICAL
APPLIANCES
36A. Interpretation of Part IIIA 47
36B. Employer's liability to pay for the cost ot supplying fitting and prosthesis or
surgical appliance 48
36C. Limit of employer's liability to pay under section 36B 48
36D. Manner in which a claim under section 36B may be made 49
36E. Employer to pay amount in 1 month unless he disputes the claim 49
36F. Disputes to be determined by the Court 49
36G. Application to the Court 50
36H. Claim under section 36B to be made within 5 years 50
36I. Employer's liability to pay for the cost of repair or renewal of prostheses or
surgical appliances 50
36J. Limit of employer's liability to pay under section 36I 50
36K. Treatment of claims under section 36I 50
36L. Payment of costs from and into general revenue 51
36M. Prostheses and Surgical Appliances Board 51
36MA. Attendance of employee for purposes of section 36M
.....................................52
36N. Director to take steps to ensure supply, etc . ....................................................52
360. Application of certain provisions ....................................................................53
Section page
PART IV
COMPULSORY
INSURANCE
37. Commencement of Part IV 53
38. Interpretation 53
39. Application of this Part 53
40. Compulsory insurance against employer's liability 53
41...............Notice of insurance
........................................................................54
42. Certain conditions in policy to be void 54
43. Conditions under which liability for payment by insurer arises 55
44. Right of injured party to proceed against insurer 55
45............................Inspection of premises other than domestic premises . 56
45A. Inspection of domestic premises 56
45B.Offences against sections 45 and 45A 56
45C.Notice to produce documents etc . ..... 57
45D. Notice of premium increases
...........................................................................57
PART V
MISCELLANEOUS
46. Compensation not to be assigned, charged or attached 58
47. Deduction of insurance premiums from earnings to be an ofrence 58
48. Contract of service not to be terminated during incapacity 59
48A. Legislative Council may amend amounts of compensation etc . 59
49. Regulations 60
50. Rules of Court 60
51. Forms 60
52. Regulations as to transfer of funds 60
53. Offences 61
54.
Amendment of references in Ordinances and documents to Workmen's
Compensation Ordinance or Workmen's Compensation Regulations 61
55. Transitional 62
First Schedule. List of injuries ....................................................................................63
Second Schedule. List of occupational diseases
............................................................. 65
Third Schedule. Medical expenses payable by an employer in respect of an injury due
to accident arising out of and in the course of employment
........... 69
CHAPTER 282
EMPLOYEES' COMPENSATION
To provide for the payment of compensation to employees who are injured in the
course of their employment.
(Amended, 44 of 1980, s. 2)
[1 December 1953] G.N.A. 160/53
Originally 28 of 1953 - 50 of 1954, 11 of 1958, 2 of 1959, 19 of 1964, 23 of 1965, 13 of 1966, 55 of
1969, L.N. 14/70, 67 of 1971, 4 of 1973, 20 of 1974, L.N. 142/74, 92 of 1975, L.N. 124/76, 6 of
1977, 74 of 1977, 4 of 1978, 44 of 1980, 51 of 1980, 78 of 1981, L.N. 248/82, 76 of 1982, L.N.
79/83, L.N. 386/83, R. Ed. 1983, L.N. 336/84, L.N. 84/85, 31 of 1985, 49 of 1985, L.N. 321/85,
60 of 1986, LN. 52187, L.N. 390/87,59 of 1988
PART I
PRELIMINARY
Short title
(Added, 19 of 1964, s. 2)
1. This Ordinance may be cited as the Employees' Compensation Ordinance.
Meaning of 'employee'
(Amended, 44 of 1980, s. 15)
2. (1) In this Ordinance, unless the context otherwise requires, the expression
'employee', subject to section 4 and the proviso to this subsection, means any
person who has, either before or after the commencement of this Ordinance, entered
into or works under a contract of service or apprenticeship with an employer in any
employment, whether by way of manual labour, clerical work, or otherwise, and
whether the contract is expressed or implied, is oral or in writing: (Amended, 11 of
1958, s.2)
Provided that the following persons are excepted from the definition of
,,employee'
(a) [Repealed, 44 of 1980, s. 3]
(b)any person whose employment is of a casual nature, and who is employed
otherwise than for the purposes of the employer's trade or business, not
being a person employed for the purposes of any game or recreation and
engaged or paid through a club; or .
(c) an outworker; or
(d) a member of the employer's family employed by such employer and
who resides with the employer.(Amended, 55 of 1969, s. 2)
(2) If, in any proceedings for the recovery of compensation under this
Ordinance, it appears to the Court that the contract of service or apprenticeship
under which the injured person was working, at the time when the accident causing
the injury happened, was illegal, the Court may, if having regard to all the
circumstances of the case it thinks proper so to do, deal with the matter as if the
injured person had at the time aforesaid been a person working under a valid
contract of service or apprenticeship.
(3) Save for the purposes of section 17 or where the context otherwise requires,
any reference to an employee who has been injured shall, where the employee is
dead, include a reference to his legal personal representative, or to his dependants
or any of them or the Official Administrator or such other officer as the Governor
may appoint to act on behalf of the dependants of the employee.
(4) Where, in any employment, personal injury by accident arising out of and
in the course of the employment is caused to any person, and at the time of the
accident
(a)that person would, but for paragraph (d) of the proviso to subsection (1),
have been an employee within the meaning of that subsection; and
(b)there is in force in relation to that person a policy of insurance which
indemnifies the employer against liability in respect of such injury
whether or not the indemnity is for an amount which is less than the full
amount of the liability in respect of which the employer would, under
section 40(1), be required to be insured if such person were an employee
within the meaning of subsection (1),
this Ordinance shall, notwithstanding paragraph (d) of the proviso to subsection
(1), apply in relation to that person for all purposes as if he were an employee within
the meaning of the subsection. (Added, 76 of 1982, s. 2)
(Amended, 44 of 1980, s. 15)
Interpretation
3. In this Ordinance, unless the context otherwise requires-
'accident insurance business' means the business of effecting contracts of
insurance against the liability of an employer for personal injury by accident to
any employee in his employment arising out of and in the course of such
employment; (Added, 55 of 1969, s. 3)
'Commissioner' means the Commissioner for Labour; (Replaced, 13 of 1966,
Schedule. Amended, 55 of 1969, s. 3 and L.N. 142/74)
'compensation' means any of the following
(a)compensation payable under section 6, 7, 8, 9 or 10, including the
expenses of burial and medical attendance payable under section 6(5);
(b) medical expenses payable under section 10A;
(c) wages or salary payable under section 161(3), 17(7) or 36MA;
(d)the cost of the supplying and fitting of a prosthesis or surgical appliance
payable under section 36B, and the probable cost of repair and renewal
thereof payable under section 36I;
(e)any surcharge or interest payable under this Ordinance on the
compensation referred to in paragraph (a), (b), (c) or (d); (Replaced, 76 of
1982, s. 3)
'contract of apprenticeship' includes a contract of improvership or learnership;
(Added, 55 of 1969, s. 3)
'Court' means
(a)in relation to any proceedings for the recovery of compensation in or
required to be in the District Court, the District Court; or
(b)in relation to any proceedings for the recovery of compensation in any
other court or tribunal, or to be determined by the Commissioner, that
court or tribunal, or the Commissioner, as the case may be; (Replaced,, 76
of 1982, s. 3)
'damages' means any damages recoverable by an employee independently of this
Ordinance in the case of personal injury to the employee by accident arising
out of and in the course of his employrnent; (Added, 55 of 1969, s. 3)
'dependants' means those members of the family of an employee who were wholly
or in part dependent upon his earnings at the time of his death, or would but
for the incapacity due to the accident have been so dependent, and, where the
employee, being the parent or grandparent of an illegitimate child, leaves such
child so dependent upon his earnings, or being an illegitimate child, leaves a
parent or grandparent so dependent upon his earnings, shall include such an
illegitimate child or parent or grandparent respectively:
Provided that a person shall not be deemed to be a partial dependant of
another person unless he was dependent partially on contributions from that
other person for the provision of the ordinary necessaries of life suitable for
persons in his class and position:
And provided further that where on application being made by a woman
in accordance with rules made under this Ordinance the Court is satisfied that
(a)such woman and the deceased were living together as man and wife
at the time of the accident; and
(b)such woman was wholly or partially dependent on the earnings of
the deceased at the time of his death or would but for the incapacity
due to the accident have been so dependent,
the Court may, in its absolute discretion, order that such woman be deemed to
be a dependant for the purposes of this Ordinance;
,,earnings' means any wages paid in cash to the employee by the employer and any
privilege or benefit which is capable of being estimated in money and includes
the value of any food, fuel, or quarters supplied to the employee by the
employer if as a result of the accident the employee is deprived of such food,
fuel or quarters; and any overtime payments or other special remuneration for
work done, whether by way of bonus, allowance or otherwise, if of constant
character or for work habitually performed and
including tips if the employment be of such a nature that the habitual giving
and receiving thereof is open and notorious and is recognized by the
employer: but shall not include remuneration for intermittent overtime, or
casual payments of a non-recurrent nature, or the value of a travelling
allowance, or the value of any travelling concession or a contribution paid by
the employer of an employee towards any pension or provident fund, or a sum
paid to an employee to cover any special expenses entailed on him by the
nature of his employment;
,,employer' includes Her Majesty in Her Government of Hong Kong and any body
of persons corporate or incorporate and the legal personal representative of a
deceased employer. and, where the services of an employee are temporarily
lent or let on hire to another person by the person with whom the employee
has entered into a contract of service or apprenticeship, the latter shall, for the
purposes of this Ordinance, be deemed to continue to be the employer of the
employee whilst he is working for that other person; and in relation to a person
engaged, employed or paid through a club or hostel, the manager or members
of the managing committee of the club or hostel shall, for the purposes of this
Ordinance, be deemed to be the employer; (Amended, 76 of 1982, s. 37)
'hospital' means any hospital registered under the Hospitals, Nursing Homes and
Maternity Homes Registration Ordinance (Cap. 165) or maintained by the
Crown; (Added, 74 of 1977, s. 2)
'insurance company' and 'insurer' mean a person carrying on accident insurance
business in Hong Kong; (Replaced, ' 55 of 1969, s. 3. Amended, 76 of
1982, s. 37)
'medical expenses' means all or any of the following expenses incurred in respect
of the medical treatment of an empolyee-
(a) the fees of a medical practitioner or registered dentist;
(b) the fees for any surgical or therapeutic treatment;
(c) the cost of nursing attendance;
(d) the cost of hospital accommodation as an in-patient;
(e)the cost of medicines, curative materials and medical dressings; (Added,
74 of 1977, s. 2)
'medical practitioner' means a medical practitioner who-
(a) is registered under the Medical Registration Ordinance (Cap. 161); or
(b)is deemed to be a registered medical practitioner by virtue of section
29(a) or (d) of the said Ordinance; (Replaced, 13 of 1966, Schedule)
'medical treatment', in relation to an employee to whom a personal injury is caused
by accident arising out of and in the course of his employment, means medical
treatment of any kind whatsoever given to the employee by, or under the
supervision of, a medical practitioner or registered dentist in a hospital,
whether as an in-patient or other than as an in-patient, or elsewhere; (Added,
74 of 1977, s. 2)
'member of the family' means
(a)a wife, husband, father, mother, grandfather, grandmother, stepfather,
stepmother, son. daughter, grandson, granddaughter, stepson,
stepdaughter, brother, sister, half-brother, half-sister, daughter-in-law or
sister-in-law and any such person is included whether the relationship is
created by blood or by any adoption recognized as valid by the law of
Hong Kong; and (Amended, 76 of 1982, s. 37)
(b)any other person who at the time of the injury resides with the employee
as a member of his household; (Replaced, 55 of 1969, s. 3)
'occupational disease' means any of the diseases specified in the second column
of the Second Schedule and any recurrence or sequelae thereof, (Added, 19 of
1964, s. 3)
'Ordinary Assessment Board' means an Employees' Compensation (Ordinary
Assessment) Board appointed under section 16D; (Added, 76 of 1982, s. 3)
'outworker' means a person to whom articles or materials are given out to be made
up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for
sale in his own home or on other premises not under the control or
management of the person who gave out the materials or articles;
'partial incapacity' means, where the incapacity is of a temporary nature, such
incapacity as reduces the earning capacity of an employee in any employment
in which he was engaged at the time of the accident resulting in the incapacity,
and, where the incapacity is of a permanent nature, such incapacity (which
may include disfigurement) as reduces his earning capacity, present or future,
in any employment which he was capable of undertaking at that time;
(Amended, 55 of 1969, s. 3 and 49 of 1985, s. 2)
'principal contractor' means a person referred to as a principal contractor in
section 24; (Added, 76 of 1982, s. 3)
'registered dentist' means a dentist who is admitted to the register of dentists
under section 9 of the Dentists Registration Ordinance (Cap. 156); (Added, 74 of
1977, s. 2)
'Special Assessment Board' means an Employees' Compensation (Special
Assessment) Board appointed under section 16E; (Added, 76 of 1982, S. 3)
'sub-contractor' means-
(a)any person who enters into a contract, express or implied, with a principal
contractor to perform all or any part of the work which the principal
contractor has undertaken to perform; and
(b)any other person who enters into a contract, express or implied, to
perform all or any part of the work which a sub-contractor within the
meaning of paragraph (a) has undertaken to perform; (Added, 76 of 1982,
s.3)
'total incapacity' means such incapacity whether of a temporary or permanent
nature as incapacitates an employee for any employment which he was
capable of undertaking at the time of the accident resulting in such incapacity.
(Amended, 49 of 1985, s. 2)
(Amended, 44 of 1980, s. 15)
Application to employees employed under the Crown
4. (1) This Ordinance shall apply to employees employed by or under the
Crown in the same way and to the same extent as if the employer were a private
person, except in the case of
(a) members of the armed forces of the Crown; and
(b)persons in the civil employment of Her Majesty, otherwise than in Her
Government of Hong Kong, who have been engaged in a place outside
Hong Kong:
Provided that this Ordinance shall not apply in the case of an employee in the
service of the Government of Hong Kong where, in consequence of injury received
by any such employee in the discharge of his duties, a pension or gratuity which
would not be payable if such injury were received otherwise, is paid to him or, in the
case of his death, to any of his dependants as defined in this Ordinance, under any
Ordinance or regulation providing for the grant of such pension or gratuity.
(Replaced, 50 of 1954, s. 3. Amended, 11 of 1958, s. 4; 55 of 1969, s. 4; 44 of 1980, s. 15 and
76 of 1982, s. 37)
(2) The exercise and performance of the powers and duties of any public body
shall for the purposes of this Ordinance, unless a contrary intention appears, be
deemed to be the trade or business of such public body. (Added, 55 of 1969, s. 4)
PART II
COMPENSATION FOR
INJURY
Employer's liability for compensation for death or
incapacity resulting from accident
(Added, 19 of 1964, s. 4)
5. (1) 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, subject
as hereinafter provided, be liable to pay compensation in accordance with the
provisions of this Ordinance and, for the purposes of this Ordinance, an accident to
an employee shall be deemed to arise out of and in the course of his employment,
notwithstanding that the employee was at the time when the accident happened
acting in contravention of any statutory or other regulation applicable to his
employrnent, or of any orders given by or on behalf of his employer, or that he was
acting without instructions from his employer, if such act was done by the
employee for the purposes of and in connection with his employer's trade or
business: (Amended, 55 of 1969, s. 5)
Provided that
(a)the employer shall not be liable under this Ordinance in respect of any
injury, other than an injury which results in partial incapacity of a
permanent nature, which does not incapacitate the employee for a period
exceeding 3 consecutive days from earning full wages at work
at which he was employed; and(Amended, 76 of 1982, s. 4)
(b)if it is proved that the injury to an employee is attributable to the serious
and wilful misconduct of that employee, or that an injury by accident
arising out of and in the course of his employment is deliberately
aggravated by the employee, any compensation claimed in respect of that
injury shall be disallowed; except that where the injury results in death or
serious incapacity, the Court on consideration of all the circumstances
may award the compensation provided by this Ordinance or such part
thereof as it shall think fit. (Replaced, 55 of 1969,s.5)
(2) No compensation shall be payable under this Ordinance in respect of any
incapacity or death resulting from a deliberate self-injury.
(3) No compensation shall be payable under this Ordinance in respect of any
incapacity or 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.
(4) No compensation shall be payable under this Ordinance in respect of any
injury, not resulting in death or serious and permanent incapacity, caused by an
accident which is directly attributable to the employee's addiction to drugs or his
having been at the time of the accident under the influence of alcohol.
(5) When an employee meets with an accident-
(a)while, with the consent of his employer, being trained in first aid,
ambulance or rescue work or engaged in any competition or exercise in
connection therewith;
(b)in, at or about any premises other than his employer's while, with the
consent of his employer, engaged in any first aid, ambulance, or rescue
work or in any competition or exercise in connection therewith; or
(c)in, at or about his employer's premises while engaged in any first aid,
ambulance or rescue work,
whereby such employee sustains injury such injury shall, for the purposes of this
Ordinance, be deemed to arise out of and in the course of his employment,
notwithstanding that in the case of rescue work the employee was acting in
contravention of any statutory or other regulation applicable to his employment, or
of any orders given by or on behalf of his employer, or that he was acting without
instructions from his employer, if when such act was done the employee reasonably
acted in order to rescue, succour or protect any other person who had suffered, or
who was reasonably believed to be in danger of, injury, or to avert or minimize
serious damage to property of the employer. (Added, 55 of 1969, s. 5)
(5A) Where an accident happens to an employee while he is, with the express
or implied permission of his employer, travelling as a passenger by any means of
transport to or from his place of work, such accident shall, for the purposes of this
Ordinance, be deemed to arise out of and in the course of his employment if at the
time of the accident the means of transport is being operated
(a)by or on behalf of his employer or by some other person pursuant to
arrangements made with his employer; and
(b)other than as part of a public transport service. (Added, 76 of 1982, s.5)
(6) For the purposes of this Ordinance 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. (Added, 55 of 1969, s. 5)
(Amended, 44 of 1980, s. 15)
Compensation in fatal cases
6. (1) Where death results from the injury, if the employee leaves any
dependants wholly dependent on his earnings, the amount of compensation shall
be
(a)in the case of an employee under 40 years of age at the time of the
accident, a lump sum equal to 84 months' earnings or $345,000 whichever is
the less;
(b) in the case of an employee of or over 40 years of age but under 56 years
of age at the time of the accident, a lump sum equal to 60 months'
earnings or $345,000 whichever is the less;
(c)in the case or an employee of or over 56 years of age at the time of the
accident, a lump sum equal to 36 months' earnings or $345,000 whichever is the less.
(Amended, L.N. 79/83; L.N. 321/85 and L.N. 390/87)
(2) The amount of compensation payable under subsection (1) shall in no case
be less than $116,000. (Amended, L.N. 79/83; L.N. 321/85 and
L.N. 390/87)
(3) Notwithstanding ' anything in subsection (1) or (2), where in respect of
the same accident compensation has been paid under section 7 or 9, there shall
be deducted from the sum payable under subsection (1) any sums so paid as
compensation.
(4) Where death results from the injury, if the employee does not leave any
dependants wholly dependent on his earnings, but leaves any dependants in part
so dependent, the amount of compensation shall be such sum, not exceeding in any
case the amount payable under subsections (1), (2) and (3), as may be determined
by the Court to be reasonable and proportionate to the injury to the said
dependants.
(5) Where death results from the injury, if the employee leaves no dependants,
the reasonable expenses of the burial of the deceased employee and the reasonable
expenses of medical attendance on the deceased employee, not exceeding in all the
sum of $3,000, shall be paid by the employer to any person to whom such expenses;
are due thin 21 days after receipt by the employer of a request in writing by such
person. (Amended, 76 of 1982, s. 5)
(6) Expenses due to any person under subsection (5) shall be recoverable as a
civil debt in any court or tribunal of competent jurisdiction. (Added ,76of 1982,s.5)
(Replaced, 44 of 1980, s. 4)
Compensation in case of permanent total incapacity
7. (1) Where permanent total incapacity results from the injury, the amount of
compensation shall be
(a)in the case of an employee under 40 years of age at the time of the
accident, a lump sum equal to 96 months' earnings or $394,000,
whichever is the less;
(b)in the case of an employee of or over 40 years of age but under 56 years'
of age at the time of the accident, a lump sum equal to 72 months' earnings
or $394,000, whichever is the less;
(c)in the case of an employee of or over 56 years of age at the time the
accident, a lump sum equal to 48 months' earnings or $394,000
whichever is the less. (Amended, L.N. 79/83; L.N. 321/85 and L.N.
390/87)
(2) The amount of compensation payable under subsection (1) shall
in no case be less than $132,000. (Amended, L.N. 79/83; L.N. 321/85 and
L.N. 390/87)
(3) For the purposes of this section, permanent total incapacity shall be
deemed to result from an injury where the percentage or aggregate percentage of
the loss of earning capacity amounts
(a)in the case of an incapacity of a permanent nature which results from an
injury specified in the First Schedule, to 100 per cent or more as specified
in that Schedule; or
(b)in the case of an incapacity of a permanent nature which results from an
injury not specified in the First Schedule, to 100 per cent or more as
assessed by an Ordinary Assessment Board, a Special Assessment
Board or the Court,
and a reference in this subsection to an injury shall include a reference to a
combination of injuries whether they are mentioned in paragraph (a) or (b) or in
both those paragraphs. (Added, 49 of 1985, s. 3)
(Replaced, 44 of 1980, s. 4)
Employee requiring constant attention
8. (1) Where permanent total incapacity which results from the injury is of such
a nature that the employee is unable to perform the essential actions of life, without
the constant attention of another person, in addition to any compensation under
other provisions of this Ordinance, such compensation as the Court considers
necessary to meet the cost of such constant attention shall be payable under this
section.
(2) Compensation under this section shall be-
(a)a lump sum payment calculated with regard to the probable duration and
cost of the constant attention; or
(b) (i) periodical payments, payable at such intervals as the Court may
order, to cover periods not exceeding a total of 2 years after the date
on which the employee becomes entitled to receive compensation
under section 7; and
(ii) if on the expiry of the period of 2 years prescribed in subparagraph
(i) the Court considers that the employee is still in need of constant
attention, such lump sum payment, as the Court may order, calculated
with regard to the probable duration and cost of the constant attention.
(3) No compensation under this section shall be payable in respect of any
period during which the employee is receiving free medical treatment as an in-
patient in a hospital or otherwise.
(4) The amount of compensation payable under this section shall
not exceed (Replaced, 44 of 1980, s. 5.Amended, L.N. 79/83
L.N. 321/85 and L.N. 390/87)
(Added, 55 of 1969, s. 8. Amended, 44 of 1980, s. 15)
Compensation in case of permanent partial incapacity
9. (1) Subject to subsection (IA), where permanent partial incapacity results
from the injury the amount of compensation shall be- (Amended, 76 of 1982, s. 6)
(a)
in the case of an injury specified in the First Schedule, such percentage of
the compensation which would have been payable in the case of
permanent total incapacity as is specified therein as being the percentage
of the loss of earning capacity caused by that injury;
aggregate of the compensation which would have been payable in
respect of the injuries; and (Added, 4 of 1973, s. 2)
(b)in the case of an injury not specified in the First. Schedule, such
percentage of the compensation which would have been payable in the
case of permanent total incapacity as is proportionate to the loss of
earning capacity permanently caused by the injury in any employment
which the employee was capable of undertaking at that time: (Amended, 19
of 1964, s. 7; 55 of 1969, s. 9 and 44 of 1980, s. 15)
Provided that-
(i) in the case of injury to any part of the body specified in the First
Schedule not amounting to the loss of that part, the loss of earning
capacity permanently caused by that injury, expressed as a percentage,
shall not exceed the appropriate percentage specified in the First
Schedule in respect of the loss of such part; (Added, 4 of 1978, s. 3)
(ii) in the case of injury not specified in the First Schedule, the loss of
earning capacity permanently caused by such injury shall be assessed as
a percentage having regard so far as possible to the scale of percentages
specified in that Schedule and to the Note thereto. (Replaced, 49 of 1985, s.
4)
(1A) Where
(a)permanent partial incapacity results from an injury or a combination of
injuries (whether or not specified in the First Schedule); and
(b)the percentage of the loss of earning capacity specified or assessed in
relation to that injury or combination of injuries in accordance with
subsection (1) would be substantially less than the percentage of the
loss of earning capacity permanently caused by the injury or injuries in
the special circumstances of the employee, including, without limiting
the generality of the foregoing-
(i) the nature of the injury or injuries in relation to the nature of his
former usual employment; and
(ii) his qualifications, previous training and experience,
the amount of compensation shall be such percentage. of the compensation
which would have been payable in the case of permanent total incapacity as
is proportionate to the loss of earning capacity permanently caused by the
injury or injuries in any employment which, having regard to those special
circumstances, the employee was capable of undertaking at that time. (Added,
76 of 1982, s. 6)
(2) Where more injuries than one are caused by the same accident, the
amount of compensation payable under the provisions of this section shall be
aggregated, but not so in any case as to exceed the amount which would have
been payable if permanent total incapacity had resulted from the injuries.
(3) For the purposes of this section, permanent partial incapacity shall be
deemed to result from an injury where the percentage or aggregate percentage of
the loss of earning capacity amounts-
(a)in the case of an incapacity of a permanent nature which results from
an injury specified in the First Schedule, to less than 100 per cent as
specified in that Schedule; or
(b)in the case of an incapacity of a permanent nature which results from
an injury not specified in the First Schedule, to less than 100 per cent
as assessed by an Ordinary Assessment Board, a Special Assessment
Board or the Court,
and a reference in this subsection to an injury shall include a reference to a
combination of injuries whether they are mentioned in paragraph (a) or (b) or in
both those paragraphs. (Added, 49 of 1985, s. 4)
(4) In assessing the loss of earning capacity for the purposes of subsec-
tion (3)(b), an Ordinary Assessment Board, a Special Assessment Board or
the Court, as the case may be, may but shall not be obliged to give weight
to any actual earnings of the employee earned after the accident causing the
injury. (Added, 49 of 1985, s. 4)
Compensation in case of temporary incapacity
10. (1) Where temporary incapacity whether total or partial results from
the injury, the compensation shall be the periodical payments hereinafter
mentioned, or a lump sum calculated accordingly, having regard to the prob-
able duration, and probable changes in the degree, of the incapacity. Such
periodical payments shall be, or shall be at the rate proportionate to, a monthly
payment of two-thirds of the difference between the monthly earnings which the
employee was earning at the time of the accident and the monthly earnings
which he is earning, or is capable of earning, in some suitable employment or
business during the period of the temporary incapacity after the accident. (Amended,
55 of 1969, s. 10 and 76 of 1982, s. 7)
(2) For the purposes of this section a period of absence from duty certified to
be necessary by a medical practitioner, a registered dentist, an Ordinary
Assessment Board or a Special Assessment Board shall be deemed to be a period
of total temporary incapacity irrespective of the outcome of the injury. (Added, 55 of
1969, s. 10. Amended, 31 of 1985, s. 2)
(3) Periodical payments under this section shall be payable on the same days
as wages would have been payable to the employee if he had continued to be
employed under the contract of service or apprenticeship under which he was
employed at the time of the accident:
Provided that
(a)by agreement or by order of the Court, the periodical payments may be
made at shorter intervals; and
(b) the interval between periodical payments shall not exceed 1 month
(Added, 55 of 1969, s. 10)
(4) In the event of death or permanent incapacity following a period of
temporary incapacity whether total or partial, no periodical or lump sum payments
paid or payable under this section shall be deducted from any amount of
compensation payable under section 6, 7, 8 or 9. (Added, 55 of 1969, s. 10)
(5) An employee who has received periodical payments under this section for a
period of 24 months from the date of the commencement of the temporary incapacity
shall no longer be entitled to periodical payments under this section but shall be
deemed to have suffered permanent incapacity and the provisions of section 7 or 9,
as the case may be, shall apply to the employee. (Added, 55 of 1969,s.10)
(6) In fixing the amount of the periodical payment, the Court shall have regard
to any payment, allowance or benefit which the employee may receive from the
employer during the incapacity.
(7) On the ceasing of the incapacity before the date on which any periodical
payment falls due, there shall be payable in respect of that period a sum
proportionate to the duration of the incapacity in that period.
(8) Where an employee in receipt of periodical payments under the provisions
of this section intends to leave Hong Kong, for the purpose of residing elsewhere,
he shall give notice of such intention to the Court which shall have jurisdiction to
order the redemption of such periodical payments and to determine the amount to
be paid: (Amended, 76 of 1982, s. 37)
Provided that any lump sum so ordered to be paid together with the periodical
payments already made to the employee shall not exceed the lump sum which
would be payable in respect of the same degree of incapacity under the provisions
of section 7 or 9, as the case may be, if the incapacity were permanent.
(9) If an employee in receipt of periodical payments under the provisions of
this section leaves Hong Kong, for the purpose of residing elsewhere, without
giving notice as provided in subsection (8), he shall not be entitled to any
benefits under this Ordinance during or in respect of the period of his absence. If
the period of such absence shall exceed 3 months, the employee shall cease to be
entitled to any benefits under this Ordinance. (Amended, 76 of 1982, s. 37)
(10) Without prejudice to any other provision of this Ordinance, an
employer who without reasonable excuse fails to make to the employee or to the
Court any periodical payment or any proportionate part thereof under this
section within a period of 7 days after the date on which such payment falls
due (whether under subsection (3) or by agreement or by order of the Court),
commits an offence and is liable to a fine of $5,000. (Added, 76 of 1982, s. 7)
(Amended, 44 of 1980, s. 15)
Payment of medical expenses
10A. (1) Subject to this Ordinance, if, in any employment, personal
injury is caused to an employee by accident occurring on or after the date on
which this section comes into operation and arising out of and in the course of
his employment his employer shall be liable to pay the medical expenses for the
medical treatment in respect of such injury. (Amended, 76 of 1982, s. 8)
(2) Medical expenses which an employer is liable to pay under sub-
section (1) shall be payable in addition to any other compensation which the
employer is liable to pay under this Ordinance. (Replaced, 76 of 1982, s. 8)
(3) Medical expenses which the employer is liable to pay under subsec-
tion (1) shall be payable in accordance with the Third Schedule in respect of
the period during which the employee receives medical treatment until the
attending medical practitioner or registered dentist certifies that in his opinion
no further treatment is required. (Replaced, 76 of 1982, s. 8)
(4) An employer shall not be liable to pay medical expenses under
subsection (1)-
(a) . if the employer has provided adequate free medical treatment to the
employee; or
(b)if, by a written undertaking, the employer has agreed to provide
adequate free medical treatment and the employee fails, without
reasonable excuse, to submit himself for such medical treatment.
(5) Where an employer proposes to provide free medical treatment to an
employee for personal injury caused to the employee by accident arising out of
and in the course of his employment he shall give to the employee a written
undertaking to provide free medical treatment or to pay the medical expenses
for the medical treatment and shall not recover any part of the cost of the
medical expenses from the employee.
(6) Where an employee has paid for any medical treatment received by
him he shall be entitled to recover the medical expenses which his employer is
liable to pay under subsection (1) from his employer by serving on the employer
a request in writing for the payment of the medical expenses together with a
receipt for the payment for the medical treatment.
(7) If an employer does not pay an employee the medical expenses he is
liable to pay under subsection (1) within 21 days after the date of receipt of a
request for payment under subsection (6) or, where an application is made to the
Commissioner under section IOB for the determination of a dispute, within 21 days
after the date of determination of the dispute, the medical expenses may be
recovered by the employee from the employer
(a)as a civil debt in the Small Claims Tribunal established under the Small
Claims Tribunal Ordinance (Cap. 338); or
(b)where the amount claimed exceeds the jurisdiction of the Small Claims
Tribunal, as a civil debt in the District Court.
(8) A claim for medical expenses in the District Court may be brought either
independently of or in conjunction with any other claim for compensation which is,
under this Ordinance, to be brought in the District Court.
(9) [Deleted, 76 of 1982, s. 8]
(Added, 74 of 1977, s. 3. Amended, 44 of 1980, s. 15)
Determination by Commissioner of medical expenses
payable
10B. (1) In the event of any dispute as to the liability to pay medical expenses
under section 10A or as to the amount of such medical expenses, the employee or
the employer may apply to the Commissioner for the determination of the dispute.
(2) Where an application is made under subsection (1), the Commissioner shall
determine whether or not medical expenses are payable by the employer and if he
determines that medical expenses are payable he shall issue a certificate to the
employee and the employer stating the amount of such medical expenses.
(3) A certificate purporting to be issued under subsection (2) and to be signed
by or for the Commissioner shall be admitted in evidence without further proof on
its production in any court and
(a)until the contrary is proved, it shall be presumed that the certificate is so
issued and signed;
(b)shall be evidence of the amount of the medical expenses payable by the
employer.
(Added, 74 of 1977, s. 3. Amended, 44 of 1980, s. 15)
Method of calculating earnings
11. (1) Subject to this section, for the purposes of this Ordinance the monthly
earnings of an employee at the time of the accident shall be the earnings
(a) for the month immediately preceding the date of the accident; or
(b)computed in such manner as is best calculated to give the rates per month
at which the employee was being remunerated during the previous 12
months if he has been so long employed by the same employer, but, if
not, then for any lesser period during which he has been employed by the
same employer,
whichever calculation is more favourable to the employee. (Replaced, 76 of 1982,s.9)
(2) Where by reason of the shortness of the time during which an employee
has been in the employrnent of his employer or of the casual nature of the
employment, or of the terms of employment, it is impracticable to compute the rate
of remuneration of such employee at the date of the accident, regard may be had to
the average monthly amount which, during the 12 months previous to the accident,
was being earned by a person of similar earning capacity in the same grade
employed at the same work by the same employer, or, if there is no person so
employed, by a person of similar earning capacity in the same grade employed in the
same class of employment and in the same district. (Added, 55 of 1969, s. 11)
(3) Where an employee was, at the date of the accident, under the age of 18
years his earnings shall, for the purposes of assessing compensation payable in the
case of death or permanent incapacity, be deemed to be such amount as, if the
accident had not occurred, he would probably have received upon attaining the age
of 18 years, or at the end of a period of 5 years after the accident, whichever
calculation is more favourable to the employee. (Added, 55 of 1969,s.11. Amended, 76
of 1982,s.9)
(4) Where an employee was, at the date of the accident, employed under a
contract of apprenticeship his earnings shall, for the purposes of assessing
compensation payable in the case of death or permanent incapacity, be deemed to
be such amount as, if the accident had not occurred, he would probably have
received upon the completion of his contract of apprenticeship. (Added, 55 of 1969,
s. 11. Amended, 76 of 1982, s. 9)
(4A) Where an employee was, at the date of the accident, under the age of 18
years and employed under a contract of apprenticeship, his earnings shall, for the
purposes of assessing compensation payable in the case of death or permanent
incapacity, be deemed to be the amount calculated under subsection (3) or (4),
whichever calculation is more favourable to the employee. (Added, 76 of 1982, s. 9)
(5) Where the earnings of an employee calculated under any of the provisions
of this section amount to less than $920 per month, the earnings of such employee
shall, for the purposes of this Ordinance, be deemed to be $920.
per month. (Added, 55 of 1969, s. 11. Amended, 76 of 1982,s. 9;L .N.
321/85
and L.N. 390/87)
(6) For the purposes of subsections (1) and (2), employment by the same
employer shall be taken to mean employment by the same employer in the grade in
which the employee was employed at the time of the accident, uninterrupted by
absence from work due to illness or any other unavoidable cause. (Amended, 55 of
1969, s. 11)
(7) Where the employee had entered into concurrent contracts of service with
2 or more employers under which he worked at one time for one such employer and
at another time for another such employer, his monthly earnings shall be computed
as if his earnings under all such contracts were earnings in the employment of the
employer for whom he was working at the time of the accident:
Provided that the earnings of the employee under the concurrent contract shall
be taken into account only so far as the employee is incapacitated from performing
the concurrent contract:
Provided further that this subsection shall not apply where an employee is in
the full time employment of that employer for whom he was working at the time of
the accident, in which case the earnings of such employee shall be his earnings in
such full time employment. For the purposes of this proviso, full time employment
means employment for not less than 40 hours during a minimum period of 5 days in
any 1 week. (Amended, 76 of 1982, s. 9)
(7A) An employee shall, at the written request of his employer, give his
employer sufficient written information to enable the employer to comply with
section 40 regarding any of the employee's concurrent contracts of service referred
to in subsection (7) that are then in force or subsequently entered into. (Added, 59
of 1988, s. 2)
(7B) Subsection (7) does not apply where an employee fails to comply with
subsection (7A). (Added, 59 of 1988, s. 2)
(8) Within 14 days after the date of issue of a written request of the employee
or of the Commissioner to the employer liable to pay compensation, that employer
shall furnish in writing a list of the earnings which have been earned by that
employee upon which the amount of the monthly earnings may be calculated for the
purpose of this section. (Amended, 76 of 1982, s. 9)
(9) An employer who without reasonable excuse contravenes subsection (8)
commits an offence and is liable to a fine of $5,000. (Added, 76 of 1982, s. 9)
(Amended, 44 of 1980, s. 15)
Persons entitled to compensation
12. (1) Except where otherwise provided by or under this Ordinance,
compensation shall be payable to or for the benefit of the employee, or, where death
results from the injury, to or for the benefit of his dependants as provided by this
Ordinance. (Amended, 76 of 1982, s. 10)
(2) Where there are both total and partial dependants nothing in this
Ordinance shall be construed as preventing the compensation being allotted partly
to the total and partly to the partial dependants.
(3) Where a dependant dies before a claim in respect of death is made under
this Ordinance, or, if a claim has been made, before an order for the payment of
compensation has been made, the legal personal representative of the dependant
shall have no right to payment of compensation, and the claim for compensation
shall be dealt with as if that dependant had died before the employee.
(Amended, 44 of 1980, s. 15)
Distribution of compensation
13. (1) Compensation payable where the death of an employee has resulted
from an injury shall be paid to the Court, and the Court may order any sum so paid
in to be apportioned among the dependants of the deceased employee or any of
them in such proportion as the Court thinks fit, or in the
discretion of the Court, to be allotted to any one such dependant, and the sum so
allotted to any dependant shall be paid to him or be invested, applied or otherwise
dealt with for his benefit in such manner as the Court thinks fit.
Where, on application being made in accordance with rules made under this
Ordinance, it appears to the Court that, on account of the variation of the
circumstances of the various dependants, or for any other sufficient cause, an order
made under this subsection ought to be varied, the Court may make such order for
the variation of the former order as in the circumstances of the case the Court may
think just:
Provided that no such order shall be made which requires the repayment by a
dependant of any compensation already paid to him except where such payment
has been obtained by fraud, impersonation or other improper means.
(2) Except where otherwise provided by or under this Ordinance, any other
compensation payable under this Ordinance shall be paid to the Court, and any
sum so paid shall- (Amended, 76 of 1982, s. 11)
(a) be paid by the Court to the person entitled thereto; or
(b)if the compensation is payable under the provisions of section 7, 8 or 9 or
is a lump sum payable under the provisions of section 10, be invested,
applied or otherwise dealt with by the Court for his benefit in such
manner as the Court thinks fit:
Provided that
(i) where periodical payments are payable under the provisions of section
8(2)(b)(i) or section 10, such payments may be paid by the employer
direct to the employee; and
(ii)where compensation has been agreed and approved in accordance with
the provisions of section 17, the Commissioner may direct in writing that
the compensation shall be paid by the employer direct to the employee.
(Amended, 55 of 1969, s. 12)
(3) An employer may make a payment not exceeding $20,000 direct to an
employee or dependant on account of a claim which is pending settlement or
determination, and the Court or, if the compensation is not paid to the Court, the
Commissioner may order that the whole or any part of such payment shall be
deducted from the amount of compensation payable to the employee or dependant
under the provisions of this Ordinance: (Replaced, 55 of 1969, s. 12. Amended, 76 of
1982, s. 11 and 59 of 1988, s. 3)
Provided that no such payment shall
(a) constitute a periodical payment for the purposes of this Ordinance; or
(b)relieve the employer of an obligation to make any periodical payment
under thisOrdinance. (Added, 76 of 1982,s.11)
(4) The receipt of the Registrar of the Court shall be a sufficient discharge in
respect of any amount paid to the Court under the provisions of this Ordinance.
(5) No appeal shall lie from any order or direction of the Court or of the
Commissioner made or given under this section. (Amended, 50 of 1954, s. 5)
(Amended, 44 of 1980, s. 15)
Requirements as to notice of accident and application for
compensation
14. (1) Except where otherwise provided by this Ordinance, proceedings for the
recovery under this Ordinance of compensation for an injury shall not be
maintainable unless notice of the accident has been given to the employer by or on
behalf of the employee, in the manner hereinafter provided, as soon as practicable
after the happening thereof and before the employee has voluntarily left the
employment in which he was injured, and unless the application for compensation
with respect to such accident (being an application to the Court by an employee
under section 18A(2)) has been made within 24 months from the occurrence of the
accident causing the injury or, in the case of death, within 24 months from the date
of death: (Amended, 55 of 1969, s. 13; 4 of 1978, s. 4 and 76 of 1982, s. 12)
Provided that the want of, or any defect or irregularity in, a notice shall not be
a bar to the maintenance of proceedings
(a)if the application is made in respect of the death of an employee resulting
from an accident which occurred on the premises of the employer, or at
any place where the employee at the time of the accident was working
under the control of the employer or of any person employed by him, and
the employee died on such premises or at such place, or on any premises
belonging to the employer, or died without having left the vicinity of the
premises or place where the accident occurred; or
(b)if the employer is proved to have had knowledge of the accident from any
other source at or about the time of the accident, or if it is found in the
proceedings for settling that claim that the employer is not prejudiced or
would not, if a notice or an amended notice were then given and the
hearing postponed, be prejudiced in his defence by the want, defect or
irregularity, or that such want, defect or irregularity was occasioned by
mistake, absence from Hong Kong, or other reasonable cause. (Amended,
76 of 1982, ss. 12 and 37)
(2) A notice under this section may be given either in writing or orally to the
employer (or, if there is more than one employer, to one of such employers), or to
any foreman or other official under whose supervision the employee is employed, or
to any person designated for the purpose by the employer, and shall specify the
name and address of the person injured, and shall state in ordinary language the
cause of the. injury and the date on which and the place at which the accident
occurred.
(3) Where section 24 applies, notice of an accident to an employee employed
by a sub-contractor given in accordance with this section to the sub-contractor, or
to any foreman or other official under whose supervision the employee is employed,
or to any person designated for the purpose by the sub-contractor, shall be deemed
to be notice to the principal contractor. (Replaced, 76 of 1982, s. 12)
(4) The Court may receive and determine any application for compensation in
any case notwithstanding that the notice required by subsection (1) has not been
given, or that the application has not been made in due time as
required by that subsection, if it is satisfied that there was reasonable excuse for
the failure so to give notice or to make an application, as the case may be.
(Amended, 44 of 1980, s. 15)
Employer to report the injury to or death of an employee
and method of notification
15. (1) Notice of any accident which results-
(a) in the death of the employee within 3 days after the accident; or
(b)in the total or partial incapacity of the employee for a period
exceeding 3 consecutive days immediately following the accident,
(Amended, 76 of 1982, s. 13)
shall be given in the prescribed form to the Commissioner by the employer not
later than 7 days after the accident irrespective of whether the accident gives rise
to any liability to pay compensation:
Provided that if the happening of such accident was not brought to the
notice of the employer or did not otherwise come to his knowledge within such
period of 7 days then such notice shall be given not later than 7 days after the
happening of the accident was first brought to the notice of the employer or
otherwise first came to his knowledge. (Replaced, 55 of 1969, s. 14)
(IA) The Commissioner may, by notice in writing to an employer, require
the employer to give notice to the Commissioner of an accident causing injury
to an employee, being an accident-
(a) which may give rise to a liability to pay compensation;
(b) to which subsection (1) does not apply; and
(c) which does not result in the death of the employee,
in the prescribed form within such period, not being less than 7 days, as is
specified in the notice to the employer. (Added, 76 of 1982, s. 13)
(2) When the death of an employee in any circumstances other than those
specified in subsection (1)(a) is brought to the notice of, or comes to the
knowledge of, his employer, the employer shall, not later than 7 days after the
death, give notice thereof in the prescribed form to the Commissioner, irrespec-
tive of whether the death gives rise to any liability to pay compensation:
Provided that if the death was not brought to the notice of the employer or
did not otherwise come to his knowledge within such period of 7 days then such
notice shall be given not later than 7 days after the death was first brought to the
notice of the employer or otherwise first came to his knowledge. (Replaced, 55
of 1969, s. 14)
(3) On receipt of a notice under subsection (1) or (2) the Commissioner
may make such inquiry as he thinks fit and if it appears to him that a claim for
compensation may arise in respect of-
(a) the death of the employee, he may-
(i) make such inquiry as he thinks fit to ascertain whether there are
any dependants of the deceased employee and, if so, the degree of their
dependency;
(ii) inform such dependants, if any, of the reported cause and
circumstances of the death of the employee and advise them of their
right to compensation; and
(iii) if such dependants, or any of them, so wish, make a claim for
compensation on their behalf, or
(b)the incapacity of the employee, he may, if the employee so requests,
make a claim for compensation on behalf of the employee. (Added,
55 of 1969, s. 14)
(4) In any claim for compensation under section 6 the Court may, for
the purposes of section 13(1), take into consideration a written report from
the Commissioner of his findings on an inquiry under subsection (3)(a)(i).
(Added, 55 of 1969, s. 14)
(5) For the purposes of subsections (1)(a) and (2), the death of an
employee on the premises of his employer shall be deemed to be within the
knowledge of such employer. (Amended, 55 of 1969, s. 14)
(6) Any employer who-
(a)without reasonable excuse fails to give notice as required by sub-
section (1) or (2) or as required by a notice of the Commissioner under
subsection (IA); or
(b)in or in connection with any notice given by him under subsection (1),
(IA) or (2), makes any false or misleading statement or furnishes any
false or misleading information,
commits an offence and is liable to a fine of $5,000. (Replaced, 76 of 1982, s. 13)
(7) Nothing contained in this section shall prevent any person from
making a claim for compensation under this Ordinance.
Medical examination and treatment
(Amended, 44 of 1980, s. 15)
16. (1) Where an employee has given notice of an accident he shall, if the
employer, before the expiry of 7 days from the time at which notice has been
given, offers to have him examined free of charge by a medical practitioner
named by the employer, submit himself for such examination, and any
employee who is in receipt of a periodical payment under section 10 shall, if so
required by the employer, submit himself for such examination from time to
time.
(2) The employee shall, when required, attend upon that medical practi-
tioner at the time and place notified to the employee by the employer or that
medical practitioner, provided such time and place is reasonable.
(3) In the event of the employee being, in the opinion of any medical
practitioner, unable or not in a fit state to attend on the practitioner named
by the employer, that fact shall be notified to the employer, and the medical
practitioner so named shall fix a reasonable time and place for a personal
examination of the employee and shall send him notice accordingly.
(4) If the employee fails to submit himself for such examination, his right
to compensation shall be suspended until such examination has taken place; and
if such failure extends over a period of 15 days from the date when the employee
was required to submit himself for examination under subsection (2) or (3), as the
case may be, no compensation shall be payable, unless the Court is satisfied that
there was reasonable cause for such failure.
(5) The employee shall be entitled to have his own medical practitioner present
at such examination, but at his own expense.
(6) Where the employee is not attended by a medical practitioner he shall, if so
required by the employer, submit himself for treatment by a medical practitioner
without expense to the employee.
(7) If the employee fails to submit himself for treatment by a medical
practitioner when so required under the provisions of subsection (6), or having
submitted himself for such treatment disregards the instructions of such medical
practitioner, then if it is proved that such failure or disregard was unreasonable in
the circumstances of the case and that the injury has been aggravated thereby, the
injury and resulting incapacity shall be deemed to be of the same nature and
duration as they might reasonably have been expected to be if the employee had
submitted himself for treatment by, and duly carried out the instructions of, such
medical practitioner, and compensation, if any, shall be payable accordingly.
(8) Where under this section a right to compensation is suspended, no
compensation shall be payable in respect of the period of suspension.
(9) Notwithstanding the previous provisions of this section, where a claim for
compensation is made in respect of the death of an employee, then if the employee
failed to submit himself to examination by a medical practitioner when so required
under the provisions of this section, or failed to submit himself for treatment by a
medical practitioner when so required under the provisions of this section or having
submitted himself for such treatment disregarded the instructions of such medical
practitioner, and if it is proved that such failure or disregard was unreasonable in
the circumstances of the case and that the death of the employee was caused
thereby, the death shall not be deemed to have resulted from the injury, and no
compensation shall be payable in respect of the injury.
(Amended, 44 of 1980, s. 15)
Determination of claims in respect of minor injuries
16A. *(1) Where a claim for compensaiton arises in respect of an accident causing
injury to an employee which-
(a) results in temporary, whether total or partial; and (amended,
31 of 1985, s. 3)
(b) in the opinion of the Commissioner in not likely to result in any
permanent incapacity
the Commissioner may, if has notice of the claim, assess the compensation
payable under section 10:
* To be repealed and replaced by 59 of 1988, 4(a) w.e.f. 1.1.1989-see L.N.
226/88.
Provided that
compensation under this
subsection unless happening
of the accident.
(2) Where the Commissioner assesses compensation under subsection (1) he
shall issue to the employer and the employee a certificate in such form as he may
specify stating the amount of the compensation and details of the assessment, and
shall retain one copy of the certificate for his records.
compensation shall not be assessed by the
Commissioner unless the claim arises within 24
months after the
(3) An objection to the amount of compensation assessed under subsection
(1) may be made by the employer or the employee to the Commissioner in writing
within 14 days after the date of issue of the certificate issued under subsection (2),
or within such further time as the Commissioner, in the circumstances of any
particular case, thinks fit, stating the, grounds of the objection, and a copy of the
objection shall be sent by the objector--
(a) where the objector is the employer, to the employee; or
(b) where the objector is the employee, to the employer.
*(4) On receipt receipt of an objection under subsection (3) the Commissioner
shall review his assessment under subsection (1) and, after taking into account the
objection, may confirm or vary the assessment.
(5) Upon completing a review under subsection (4), the Commissioner shall
issue to the employer and the employee a certificate in such form as he may specify
stating
(a) that the original assessment is confirmed and giving details thereof, or
(b) details of the assessment as varied,
and shall retain one copy of the certificate for his records.
(6) Upon the issue of a certificate under subsection (5), the certificate issued
under subsection (2) shall be cancelled.
(7) A certificate purporting to be issued-
(a)under subsection (2), other than a certificate cancelled under subsection
(6); or
(b) under subsection (5),
and to be signed by or for the Commissioner shall be admitted in evidence without
further proof on its production in any court, and
(i)until the contrary is proved it shall be presumed that the certificate is so
issued and signed; and
(ii) shall be evidence of the matters stated therein.
(8) A certificate issued-
(a)under subsection (2), other than a certificate cancelled under subsection
(6); or
(b) under subsection (5),
TO be repealed and replaced by 59 of 1988, s. 4(b) w.e.f. 1.1.1989. -see L.N. 226/88.
may, on application to the Court by the employer, the employee or the
Commissioner, be made an order of the Court and, for the purposes of this
subsection, the amount payable under any such certificate shall include any
surcharge payable in respect thereof under subsection (10).
(9) Subject to section 18, the employer shall pay to the employee within a
period of 21 days after
(a) the date of issue of the certificate issued under subsection (2); or
(b)where an objection is made under subsection (3), the date of issue of the
certificate issued under subsection (5),
the balance (if any) of the amount of compensation stated in the certificate after
deducting from such amount
(i)the total sum of any periodical payments made by the employer to the
employee under section 10 in respect of the injury to which the certificate
relates; and
(ii) any sum which the Commissioner has ordered to be deducted under
section 13(3).
(10) An employer who fails without reasonable excuse to comply with
subsection (9) shall pay to the employee, in addition to the amount of
compensation payable under that subsection- (Amended, 59 of 1988, s. 4)
(a)upon the expiry of the payment period, a surcharge of 5 per cent of the
amount of compensation then remaining unpaid or $200, whichever is the
greater; and
(b)upon the expiry of 3 months after the expiry of the payment period, a
further surcharge of 10 per cent of the amount then remaining unpaid of
the aggregate of the amount of compensation referred to in paragraph (a)
and the surcharge imposed under that paragraph or $400, whichever is
the greater. (Amended, L.N. 390187)
(11) For the purposes of subsection (10) 'payment period' means the
appropriate period for payment referred to in subsection (9).
(12) An employer who fails without reasonable excuse to comply with
subsection (9) or (10) commits an offence and is liable to a fine of $10,000. (Added,
59 of 1988, s. 4)
(Added, 76 of 1982, s. 14)
Cancellation of minor injuries claim certificate by the Court
16B. (1) Notwithstanding anything in section 16A, the Court may, on
application by the employer, the employee or the Commissioner, cancel a certificate
issued under section 16A(2) or (5) and make such order (including an order as to
any sum already paid under the certificate) as in the circumstances the Court may
think just, if it is proved that
(a)the sum paid or to be paid was or is not in accordance with the provisions
of this Ordinance; or
(b) the certificate was issued in ignorance of, or under a mistake as to, the
true nature or the extent of the injury,. or(Amended, 60 of 1986, s. 2)
(c)the certificate was based upon any false or misleading information or
statement given or made.
(2) An application under subsection (1) shall be made within 6 months of the
date of issue of the certificate in respect of which the application is made, or within
such further time as the Court, in the circumstances of any particular case, thinks fit.
(Added, 76 of 1982, s. 14)
16C. [Repeated, 31 of 1985, s. 41
Employees' Compensation (Ordinary Assessment) Boards
16D. (1) The Commissioner shall for the purposes of this section appoint one
or more boards to be known as Employees' Compensation (Ordinary Assessment)
Boards.
(2) An Ordinary Assessment Board shall consist of-
(a)2 persons each of whom shall be either a medical practitioner or a
registered dentist; and
(b)a Senior Labour Officer or a Labour Officer. (Amended, 31 of 1985, s.5)
(3) A member of an Ordinary Assessment Board shall hold office on such
terms and for such period as the Commissioner may determine.
(4) The Commissioner may refer to an Ordinary Assessment Board any claim
for compensation for an injury to an employee of which he has notice if in the
opinion of the Commissioner such injury is likely to result in permanent total or
partial incapacity.
(5) In respect of a claim referred to it under subsection (4), an Ordinary
Assessment Board shall, subject to subsection (6), assess the percentage of the
loss of earning capacity permanently caused by the injury in accordance with this
Ordinance.
(6) Where it appears to an Ordinary Assessment Board that a claim referred to
it under subsection (4) is one to which section 9(1A) applies, it shall refer the claim
to a Special Assessment Board.
(7) A decision of an Ordinary Assessment Board, if not unanimous, shall be
that of the majority of the members thereof.
(8) Subject to this section, the procedure of an Ordinary Assessment Board
shall be such as the Commissioner may determine.
(Added, 76 of 1982, s. 14)
Employees' Compensation (Special Assessment) Boards
16E. (1) The Commissioner shall for the purposes of this section appoint one or
more boards to be known as Employees' Compensation (Special Assessment)
Boards.
of-
(2) Subject to subsection (4), a Special Assessment Board shall consist
(a) one of the following, that is to say(i) the Occupational Health Consultant;
or (ii) a Senior Occupational Health Officer; or (iii) an Occupational
Health Officer;
(b) a Senior Labour Officer; and
(c)a Labour Officer who is a member of an Ordinary Assessment Board
appointed under section 16D(2).
(3) A member of a Special Assessment Board referred to in subsection (2) shall
hold office on such terms and for such period as the Commissioner may determine.
(4) The Commissioner may appoint as additional members of a Special
Assessment Board not more than 2 persons who are, in his opinion, qualified to
give expert advice on any matter relating to a claim for compensation referred to the
Special Assessment Board, and may at any time revoke any such appointment.
(5) A member appointed under subsection (4) may at any time resign by giving
notice in writing to the Commissioner.
(6) The Commissioner shall appoint a member of a Special Assessment Board
to be the chairman of the Special Assessment Board.
(7) At all meetings of a Special Assessment Board 3 members shall form a
quorum.
(8) In respect of a claim referred to it by an Ordinary Assessment Board under
section 16D(6), a Special Assessment Board shall, subject to subsection (9), assess
the percentage of the loss of earning capacity permanently caused by the injury in
accordance with this Ordinance.
(9) Where it appears to a Special Assessment Board that a claim referred to it
by an Ordinary Assessment Board under section 16D(6) is a claim to which section
9(1A) applies, the Special Assessment Board shall assess the percentage of the
loss of earning capacity permanently caused by the injury for the purposes of
section 9(1A).
(10) A decision of a Special Assessment Board shall be that of the majority of
the members in attendance or, if there is no majority, shall be that of the chairman
thereof.
(11) Subject to this section, the procedure of a Special Assessment Board shall
be such as the Commissioner may determine.
(Added, 76 of 1982, s. 14)
Certificates of assessment
16F. An Ordinary Assessment Board, where it has made an assessment under
section 16D(5) or a Special Assessment Board, where it has made an assessment
under section 16E(8) or (9), shall issue to the employee, the employer
and the Commissioner a certificate in such form as may be specified by the
Commissioner giving details of the assessment.
(Added, 76 of 1982, s. 14)
Review of assessments
16G. *(1) An objection to an assessment by an Ordinary Assessment
Board under section 16D(5) or by a Special Assessment Board under section
16E(8) or (9) may be made by the employer, the employee or the Commis-
sioner in writing to the Ordinary Assessment Board or the Special Assessment
Ordinary Board, as the case may be, within 14 days after the date of issue to him of the
relevant certificate under section 16F, or within such further time as the
Ordinary Assessment Board or the Special Assessment Board, in the circum-
stances of any particular case, thinks fit, stating the ground of the objection,
and a copy of the objection shall be sent by the objector-
(a) where the objector is the employer, to the employee and the Com-
missioner;
(b) where the objector is the employee, to the employer and the Commis
sioner; or
(c) where the objector is the Commissioner, to the employer and the
employee. (Rep Replaced, 31 of 1985, s. 6)
(2) On receipt of an objection under subsection (1), the Ordinary Assessment
Board or the Special Assessment Board, as the case may be, shall review its
assessment and, after taking into account the objection, may confirm or vary the
assessment.
(3) Upon completing a review under subsection (2) the Ordinary Assessment
Board or the Special Assessment Board, as the case may be, shall issue to the
employee, the employer and the Commissioner a certificate in such form as may be
specified by the Commissioner stating
(a) that the original assessment is confirmed and giving details thereof, or
(b) details of the assessment as varied.
(4) Upon the issue of a certificate under subsection (3), the certificate referred
to in subsection (1) shall be cancelled.
(5) Notwithstanding anything in subsection (2), (3) or (4), where upon a review
of an assessment by an Ordinary Assessment Board under subsection (2), it
appears to the Ordinary Assessment Board that the claim for compensation to
which the assessment relates is one to which section 9(1A) applies, it shall not
complete the review but shall refer the claim to a Special Assessment Board.
(6) The provisions of sections 16E, 16F and this section shall apply to a claim
referred to a Special Assessment Board under subsection (5) as if it were a claim
referred to a Special Assessment Board under section 16D(6).
(7) Upon the issue by the Special Assessment Board of a certificate under
section 16F in respect of a claim referred to it under subsection (5), the certificate
issued under section 16F in respect of that claim by the Ordinary Assessment
Board shall be cancelled.
* To be repealed and replaced by 59 of 1988, s. 5(a) w.e.f. 1.1.89-see L.N. 226/88.
+ To be amended by 59 of 1988, s. 5(b) w.e.f. 1.1.1989-see L.N. 226/88.
(8) Subsections (2), (3), (4), (5), (6) and (7) shall not apply where an assessment
is reviewed under section 16GAQ(2). (Added, 31 of 1985, s. 6)
(Added, 76 of 1982, s. 14)
Review of assessments other than under section 16G
16GA. (1) Without prejudice to section 16G, an Ordinary Assessment Board or
a Special Assessment Board may, on its own initiative, review its assessment under
section 16D(5) or section 16E(8) or (9), as the case may be, within 3 months after the
date of issue of a certificate under section 16F, or within such further time as the
Ordinary Assessment Board or the Special Assessment Board, in the circumstances
of any particular case, thinks fit, if the assessment
(a)was made in ignorance of, or under a mistake as to, the true nature or the
extent of the injury; or (Amended, 60 of 1986, s. 3)
(b)was based upon any false or misleading information or statement given
or made,
and may confirm or vary the assessment.
(2) An Ordinary Assessment Board or a Special Assessment Board may review
its assessment under subsection (1) and at the same time take into account any
objection under section 16G(I).
(3) Before proceeding with a review under subsection (1), the Ordinary
Assessment Board or the Special Assessment Board, as the case may be, shall
notify the employer, the employee and the Commissioner in writing of the review
and the ground of the review specified in subsection (1), and (where applicable)
that an objection under section 16G(I) is being taken into account.
(4) Upon completing a review under subsection (1) or (2), the Ordinary
Assessment Board or the Special Assessment Board, as the case may be, shall
issue to the employer, the employee and the Commissioner a certificate in such
form as may be specified by the Commissioner stating
(a) that the original assessment is confirmed and giving details thereof; or
(b) details of the assessment as varied.
(5) Upon the issue of a certificate under subsection (4), the certificate referred
to in subsection (1) shall be cancelled.
(6) Notwithstanding anything in subsection (1), (2), (4) or (5), where upon a
review of an assessment by an Ordinary Assessment Board under subsection (1) or
(2), it appears to the Ordinary Assessment Board that the claim for compensation to
which the assessment relates is one to which section 9(1A) applies, it shall not
complete the review but shall refer the claim to a Special Assessment Board.
(7) The provisions of sections 16E and 16F and of this section shall apply to a
claim referred to a Special Assessment Board under subsection (6) of this section
as if it were a claim referred to a Special Assessment Board under section 16D(6).
(8) Upon the issue by the Special Assessment Board of a certificate under
section 16F in respect of a claim referred to it under subsection (6) of this section,
the certificate issued under section 16F in respect of the claim by the Ordinary
Assessment Board shall be cancelled.
(Added, 31 of 1985, s. 7)
Certificates as evidence
16H. A certificate purporting to be issued
(a)under section 16F, other than a certificate cancelled under section 16G(4)
or (7) or section 16GA(5) or (8); or
(b)under section 16G(3) or section 16GA(4), (Amended, 31 of 1985, s.8)
and to be signed by or for an Ordinary Assessment Board or a Special Assessment
Board, as the case may be, shall be admitted in evidence without further proof on
its production in any court and
(i) until the contrary is proved, it shall be presumed that the certificate is so
issued and signed; and
(ii) shall be evidence of the matters stated therein.
Attendance of employee for purposes of assessment, etc.
(Added, 76 of 1982, s. 14)
161. (1) The Commissioner, an Ordinary Assessment Board or a Special
Assessment Board may by notice in writing to an injured employee require the
employee to attend for the purposes of an examination or assessment on such date
and at such time and place as is specified in the notice.
(2) An employee who receives a notice under subsection (1) shall as soon as
possible notify his employer (if any) of the date, time and place for such attendance.
(3) For the purposes of an attendance referred to in subsection (1) an employer
shall, if the employee is not already-
(a) on leave of absence from work; and
(b) receiving periodical payments under section 10,
grant to the employee leave of absence from work and, subject to subsection (4),
shall pay to the employee, within 7 days after the day on which wages are normally
paid to the employee next following such absence from work, the wages or salary in
respect of such absence from work or the wages or salary he would have earned if
he had worked during such period.
(4) No wages or salary shall be payable under subsection (3) by an employer
unless he was the employer of the employee at the time of the accident.
(5) A claim for wages or salary payable under subsection (3) may be brought
(a)as an action for civil debt in any court or tribunal of competent
jurisdiction; or
(b)as a claim for compensation in the Court, either independently of or in
conjunction with any other claim for compensation brought in the Court.
(6) Any employer who without reasonable excuse contravenes subsection (3)
commits an offence and is liable to a fine of $5,000.
Agreements as to compensation for certain injuries
(Added, 76 of 1982, s. 14)
17. *(1) Subject to subsection (2), in the case of an injury to an employee
to which section 16D(4) applies his employer shall, within 21 days after the,
relevant date, take all such steps as are necessary and reasonable on his part to
enter into an agreement with the injured employee as to the compensation-
payable by him under sections 7, 9 and 10 as may be appropriate for the
injury: (Amended, 31 of 1985, s. 9)
Provided that the amount of such compensation to be agreed upon shall not
be less than the amount payable under sections 7, 9 and 10.
(2) Subsection (1) shall not apply in any case where the employer notifies the
Commissioner, in writing, within 14 days after the relevant date, that he does not
intend to enter into an agreement, giving his reasons therefor.
(3) For the purposes of subsections (1) and (2) 'relevant date' means
(a)
the date of issue to the employer of the relevant certificate of assessment
under section 16F;
(b)where an objection to the assessment is made under section 16G(1), the
date of issue to the employer of the relevant certificate under section
16G(3) or of a further certificate under section 16F, as the case may be; or
where a review of an assessment is made under section 16GA(1) or (2),
the date of issue to the employer of the relevant certificate under section
16GA(4) or of a further certificate under section 16F, as the case may be:
Provided that in the case of a claim for an injury in respect of which a notice
has been served on a principal contractor by the employee under section 24(6), the
relevant date shall be the date determined in accordance with paragraph (a), (b) or
(e), as the case may be, or the date of service of the notice under section 24(6),
whichever date is the later. (Replaced, 31 of 1985, s. 9)
(4) Every agreement under subsection (1) shall be submitted in triplicate by the
employer so as to reach the Commissioner within 3 days after the execution thereof.
(5) Where an agreement is submitted to the Commissioner, he may-
(a)subject to subsection (6), approve the agreement and signify his
approval in writing; or
(b) refuse to approve the agreement.
* To be amended by 59 of 1988, s. 6 w.e.f. 1.1.1989- see L.N. 226/88.
(6) Where the Commissioner has reason to believe that the interests of the
employee require that the agreement be read over and explained to him, the
Commissioner shall not signify his approval of the agreement under subsection
(5)(a) until he has so read and explained it to him.
(7) For the purposes of subsection (6), the Commissioner may by notice in
writing to an employee require the employee to attend on such date and at such time
and place as is specified in the notice, and the provisions of section 161(2), (3), (4),
(5) and (6) shall apply in respect of a notice under this subsection as they apply in
respect of a notice under section 161(1).
(8) Where the Commissioner refuses to approve an agreement under
subsection (5)(b), he shall notify the employer in writing of his refusal giving his
reasons therefor, and at the same time may return the agreement to the employer for
amendment in such manner as he may specify.
(9) An employer shall, where under subsection (8) an agreement is returned to
him, take all such steps as are necessary and reasonable on his part to amend the
agreement in the manner specified by the Commissioner under that subsection, and
to submit the amended agreement, in triplicate, so as to reach the Commissioner
within 10 days after the date on which the agreement is returned to the employer.
(10) Subsections (5),(6),(7) and (8) shall apply to an agreement submitted to the
Commissioner under subsection (9).
(11) No agreement made under this section shall be binding on any party
thereto until the Commissioner has signified his approval thereof in writing under
subsection (5).
(12) The Commissioner shall, as soon as possible after signifying his approval
to an agreement under this section, forward one copy thereof each to the employer
and the employee and retain one copy for his records.
(13) Any agreement made under this section which has been approved by the
Commissioner may, on application to the Court by any party thereto or by the
Commissioner, be made an order of the Court.
(14) An employer who
(a)without reasonable excuse fails to comply with subsection (1), (4) or (9);
or
(b)in connection with any notification by him under subsection (2) makes
any false or misleading statement or furnishes any false or misleading
information,
commits an offence and is liable to a fine of $5,000.
Agreement to include surcharge provision
(Replaced, 76 of 1982, s. 15)
17A. (1) An agreement approved by the Commissioner under section 17 shall
be read and construed as providing (whether or not it so provides in fact) that,
where the employer fails without reasonable excuse to pay any amount of
compensation within a period of 21 days after the date of the signification of the
Commissioner's approval of the agreement under section 17(5) (in this section
referred to as 'the payment period'), the employer shall pay to the employee, in
addition to any other compensation payable under the agreement
(a)upon the expiry of the payment period, a surcharge of 5 per cent of the
amount then remaining unpaid or $200, whichever is the greater; and
(b)upon the expiry of 3 months after the expiry of the payment period, a
further surcharge of 10 per cent of the amount then remaining unpaid of
the aggregate of the amount of compensation referred to in paragraph (a)
and the surcharge imposed under that paragraph or $400, whichever is the
greater. (Added, 76 of 1982, s. 15. Amended, L.N. 390187 and 59 of
1988, s. 7)
(2) An employer who fails without reasonable excuse to pay compensation or
a surcharge within the time required by the provision referred to in subsection (1)
commits an offence and is liable to a fine of $10,000. (Added,59 of 1988, s. 9)
Cancellation of agreement by the Court
17B. (1) Notwithstanding anything in section 17, where an agreement has been
approved by the Commissioner under that section, the Court may, on application
by any party thereto or by the Commissioner, cancel the agreement and make such
order (including an order as to any sum already paid under the agreement) as in the
circumstances the Court may think just, if it is proved that
(a)the sum paid or to be paid was or is not in accordance with the provisions
of this Ordinance; or
(b)the agreement was entered into in ignorance of, or under a mistake as to,
the true nature or the extent of the injury; or (Amended, 60 of 1986,s.4)
(c)the agreement was obtained by such fraud, undue influence,
misrepresentation or other improper means as would, in law, be sufficient
ground for avoiding it.
(2) An application under subsection (1) shall be made within 6 months after
the date of the signification of the Commissioner's approval of the agreement under
section 17(5), or within such further time as the Court, in the circumstances of any
particular case, thinks fit.
(Added, 76 of 1982, s. 15)
Appeals to the Court
18. (1) Subject to this section, an appeal shall lie to the District Court from any
decision or assessment of the Commissioner, an Ordinary Assessment Board or a
Special Assessment Board under section 16A, 16D, 16E, 16G or 16GA. (Amended,
31 of 1985, s. 10)
(2) No appeal shall lie after the expiry of 6 months from the date of the decision
or, in the case of an assessment, of the date of issue of the relevant certificate under
section 16A, 16F, 16G or 16GA, as the case may be: (Amended, 31 of 1985, s. 10
and 59 of 1988, s. 8)
Provided that the Court may, if it thinks fit, extend the time within which to
appeal under this section notwithstanding that the time has elapsed.
(3) On an appeal under this section, the Court may confirm or reverse any
decision, or confirm or vary any assessment, of the Commissioner, an Ordinary
Assessment Board or a Special Assessment Board, or may substitute its own
assessment, and may determine the amount of compensation payable and may
make such order in respect thereof, including any order as to costs, as it thinks
fit.
(Replaced, 76 of 1982, s. 16)
Determination of claims by the Court
18A. (1) Except where otherwise provided under this Ordinance, all
claims for compensation, except to the extent that such claims are determined-
(a) by certificate under section 16A; or
(b) by agreement under section 17,
and any matter arising out of proceedings in respect of such claims shall be
determined by the District Court, whatever may be the amount involved, and
the Court may, for that purpose, call upon any person to give evidence, if the
Court is of the opinion that such person is, by virtue of his expert knowledge,
able to assist the Court.
(2) An employee may, in the prescribed form and manner, make an
application for enforcing his claim for compensation to the Court:
Provided that no application shall be made-
(a)in the case of a claim in respect of an injury to which section 16A
applies, until after the expiry of the payment period within the
meaning of subsection (11) of that section; and
(b)in the case of a claim for compensation under section 7, 9 or 10 in
respect of injury to which section 16D(4) applies, until after the expiry
of 21 days after the relevant date within the meaning of section 17(3),
unless the employer has given notice under section 17(2) that he does
not intend to enter into an agreement in respect of the compensation
to be paid by him for the injury. (Amended, 31 of 1985, s. 11)
(Added, 76 of 1982, s. 16)
Review
19. (1) Any periodical payment payable under this Ordinance either
under agreement between the parties or under an order of the Court, may be
reviewed by the Court on the application either of the employer or of the
employee:
Provided that where the application for review is based on a change in
the condition of the employee any such application shall be supported by a
certificate of a medical practitioner.
(2) Subject to the provisions of this Ordinance, any periodical payment
may, on review under this section, be continued, increased, diminished, con-
verted to a lump sum, or ended. If the accident is found to have resulted in
permanent incapacity, the provisions of section 7 or 9 shall apply, as the case may
be. (Replaced, 55 of 1969, s. 16)
(3) Where application is made by an employer under this section for any
periodical payment to be ended or diminished and the application is supported by
the certificate of a medical practitioner, the employer may pay into Court the
periodical payment, or so much thereof as is equal to the amount by which he
contends that the periodical payment should be diminished, to abide the decision
of the Court made on a review under this section.
(4) In making a review under this section, the Court shall have regard only to
the capacity for work of the employee as affected by the accident.
(Amended, 44 of 1980, s. 15)
Limitation of power of employer to end or decrease
periodical payments
20. Subject to the provisions of sections 10(5) or (9), 16(4) and 19(3), an
employer shall not be entitled, otherwise than in pursuance of an order of the Court,
a certificate under section 16A or an agreement made under section 17- (Amended,
55 of 1969, s. 17 and 76 of 1982, s. 17)
(a) to end periodical payments except
(i) where an employee resumes work and his earnings are not less than
the earnings which he was obtaining before the accident; or
(ii) where an employee dies;
(b) to diminish periodical payments except
(i) where an employee in receipt of periodical payments in respect of
total incapacity has actually returned to work; or
(ii) where the earnings of an employee in receipt of periodical payments
in respect of partial incapacity have actually been increased.
(Amended, 44 of 1980, s. 15)
Jurisdiction of the Court
21. (1) Save as is provided in this Ordinance and any rules made thereunder,
the District Court shall, upon or in connection with any question to be investigated
or determined thereunder, have all the powers and jurisdictions exercisable by the
District Court in or in connection with civil actions in such Court in like manner as if
the Court had by the District Court Ordinance (Cap. 336) been empowered to
determine all claims for compensation under this Ordinance whatever the amount
involved and the law, rules and practice relating to such civil actions and to the
enforcement of judgments and orders of the Court shall mutatis mutandis apply.
(Amended, 76 of 1982, s. 18)
(2) The Court shall have jurisdiction to hear and determine any action
notwithstanding that the amount claimed exceeds the sum mentioned in section 33
of the District Court Ordinance. (Added, 55 of 1969, s. 18. Amended, 79 of 1981, s.
3)
(3) The Court may, in any proceedings brought in the Court for the recovery of
any compensation, order that there shall be included in the sum for
which an order for payment is made interest at such rate as it thinks fit on the
whole or any part of such sum for the whole or any part of the period between
the date of the accident and the date of the order. (Added, 76 of 1982, s. 18)
Power of the Court to submit questions of law
22. (1) The Court may, if it thinks fit, submit any question of law for the
decision of the Court of Appeal.
(2) Such submission shall be in the form of a special case in accordance
with rules made under this Ordinance.
Appeals
23. (1) Subject to the provisions of this section and of section 13, an
appeal shall lie to the Court of Appeal from any order of the Court.
(2), Except with the leave of the Court or of the Court of Appeal (which
shall not be granted unless in the opinion of the Court of Appeal some
substantial question of law is involved in the appeal) no appeal shall lie if the
amount in dispute is less than $1,000.
(3) No appeal shall lie in any case in which the parties have agreed to
abide by the decision of the Court, or in which the order of the Court gives effect
to an agreement come to by the parties.
(4) No appeal shall lie after the expiration of 30 days from the date of the
order of the Court:
Provided that the Court of Appeal may, if it thinks fit, extend the time
within which to appeal under this section notwithstanding that that time has
elapsed.
Liability in case of employees employed by sub-contractors .
24. (1) Where any person (in this section referred to as the principal
contractor), in the course of or for the purposes of his trade or business,
contracts with a sub-contractor for the execution by or under the sub-
contractor of the whole or any part of any work undertaken by the principal
contractor, the principal contractor shall be liable to pay to any employee
employed by that sub-contractor or by any other sub-contractor in the
execution of the work any compensation under this Ordinance which the
principal contractor would have been liable to pay if that employee had been
immediately employed by him; and where compensation is claimed from or
proceedings are taken against the principal contractor, then, in the application
of this Ordinance, references to the principal contractor shall be substituted for
references to the employer, except that the amount of any compensation
calculated by reference to earnings shall be calculated by reference to the
earnings of the employee under the employer by whom he is immediately
employed.
(2) Where the principal contractor is liable to pay compensation under
this section, he shall be entitled to be indemnified by any person who would
have been liable to pay compensation to the employee independently of this
section.
(3) An employee employed by a sub-contractor may issue a written request to
the sub-contractor to supply to the employee the name and address of the principal
contractor.
(4) A sub-contractor shall within 7 days after the date of issue of a written
request under subsection (3)
(a)supply to the employee the name and address of the principal contractor;
and
(b) deliver a copy of the written request to the principal contractor.
(5) A sub-contractor who without reasonable excuse fails to comply with
subsection (4) commits an offence and is liable to a fine of $5,000.
(6) An employee shall, before making any claim or application by virtue of this
section against a principal contractor, serve on the principal contractor a notice in
writing stating
(a) the name and address of the employee;
(b) the name and address of the sub-contractor by whom he is employed;
(c) the address of the place of employment of the employee;
(d) the particulars of the accident and the injury suffered; and
(c) the amount of compensation to be claimed.
(7) Where a claim or application is made by virtue of this section against a
principal contractor, the principal contractor shall give notice thereof to the sub-
contractor specified in the notice served on the principal contractor under
subsection (6), who shall thereupon be entitled to intervene in any application made
against the principal contractor.
(8) Nothing in this section shall be construed as preventing an employee
recovering compensation under this Ordinance from a sub-contractor instead of the
principal contractor.
(Replaced, 76 of 1982, s. 19)
Remedies against both employer and third party
25. (1) Where the injury in respect of which compensation is payable was
caused in circumstances creating a legal liability in some person other than the
employer (in this section referred to as the third party) to pay damages to the
employee in respect thereof--
(a)the employee may both claim compensation under this Ordinance and
take proceedings against the third party in the High Court or, subject to
the provisions of the District Court Ordinance (Cap. 336) relating to the
limits of jurisdiction, in the District Court to recover damages:
Provided that where any such proceedings are instituted the court in
which the action is tried shall, in awarding damages, have regard to the
amount which, by virtue of paragraph (b), has become or is likely to
become payable to the employer by the third party; and
(b)the employer by whom compensation is payable, and any person who
may be called upon to pay an indemnity under section 24 in the,case of
(2)
an employee employed by a sub-contractor, shall have a right of
action against the third party for the recovery of any sum which he
is obliged to pay as a result of the accident, whether by way of
compensation or indemnity or by virtue of any agreement made with
the employee prior to the accident, and may exercise such right either
by joining in an action begun by the employee against the third party
or by instituting separate proceedings:
Provided that the amount recoverable under this paragraph shall
not exceed the amount of damages, if any, which in the opinion of the
court would have been awarded to the employee but for the provisions
of this Ordinance.
An employee shall, before instituting proceedings for damages under
subsection (1), in writing notify the employer of his intention to do so and shall
likewise notify the employer if he decides to abandon such proceedings or to
relinquish or settle his claim for damages, and shall in connection with any such
notification furnish such particulars as the employer may require.
(3) If an employee who has-
(a)failed to notify the employer of his intention to institute proceedings
under subsection (1); or
(b)in connection with any such notification, failed to furnish such
particulars as the employer may require,
recovers damages against a third party in any such proceedings, then-
(i) where the amount of damages recovered is equal to or greater than the
amount of compensation which would, but for this subsection, be
payable, no compensation shall be payable; or
(ii) where the amount of damages recovered is less than the amount of
compensation which would, but for this subsection, be payable, the
amount of compensation payable shall be a sum equal to the dif-
ference between the amount of damages recovered and the amount
of compensation which would, but for this subsection, be payable.
(4) In any proceedings to which subsection (3) applies the court may,
where any sum of compensation referred to in that subsection has already been
paid, make such order with respect to the repayment of such sum or any part
thereof as is necessary to give effect to that subsection.
(5) Notwithstanding anything to the contrary in any other enactment,
where written notice of intention to institute proceedings under subsection
(1)(b) has been given by an employer, or by any person who may be called upon
to pay an indemnity under section 24, to a third party within 12 months of the
receipt by the employer or such person of due notice of the accident concerned,
no such proceedings shall lapse, or be barred, under any enactment relating to
the limitation of actions, until after the expiry of a period of 3 months from
the date upon which a claim for compensation in respect of such accident has
been-
(a) determined by certificate under section 16A; or
(b) settled by agreement under section 17; or
(c) finally determined by a court
as the case may be.
(6) Where notice is given to the employer under subsection (2) and the
provisions of section 24 apply, the employer shall give notice thereof to any person
who may be called upon to pay an indemnity under that section.
(Replaced, 76 of 1982, s. 19)
Remedies independently of Ordinance against employer
26. (1) Where any injury. is caused to an employee by the negligence, breach
of statutory duty or other wrongful act or omission of the employer, or of any
person for whose act or default the employer is responsible, nothing in this
Ordinance shall limit or in any wise affect any civil liability of the employer
independently of this Ordinance:
Provided that any damages awarded to an employee in an action at common
law or under any enactment in respect of any such negligence, breach of statutory
duty, wrongful act or omission, shall be reduced by the value, as decided by the
High Court or the District Court, as the case may be, of any compensation which
has been paid or is payable under the provisions of this Ordinance in respect of the
injury sustained by the employee. (Replaced, 55 of 1969, s. 20. Amended, 44 of 1980, s.
15 and 76 of 1982, s. 20)
(2) If, within the time limited for taking proceedings under this Ordinance by
section 14(1), an action is brought to recover damages independently of this
Ordinance for injury caused by an accident, and it is determined in such action or
on appeal that the injury is one for which the employer is not liable in such action,
but that he would have been liable to pay compensation under the provisions of
this Ordinance, the action shall be dismissed; but the court in which the action is
tried, or, if the determination is the determination (on an appeal by either party) by
an appellate tribunal, that tribunal, shall, if the plaintiff so choose, proceed to
assess such compensation, but may deduct from such compensation all or part of
the costs, which, in its judgment, have been caused by the plaintiff bringing the
action instead of proceeding under this Ordinance. In any proceeding under this
subsection, when a court or appellate tribunal assesses the compensation, it shall
give a certificate of the compensation it has awarded and the directions it has given
as to the deduction of costs, and such certificate shall have the force and effect of
an order of the District Court under this Ordinance:
Provided that an appellate tribunal may, instead of itself assessing such
compensation, remit the case to the District Court for the assessment of the
compensation, and in such case may order the District Court to deduct from the
amount of compensation assessed by it all or part of such costs as aforesaid.
(Amended, 76 of 1982, s. 20)
(3) Where, within the time limited for taking proceedings under this Ordinance
by section 14(1), an action is brought to recover damages independently of this
Ordinance in respect of an injury giving rise to a claim for compensation under this
Ordinance, and it is determined in that action that
(a)damages are recoverable independently of this Ordinance subject to such
reduction as is mentioned in section 21(1) of the Law Amendment and
Reform (Consolidation) Ordinance (Cap. 23); and
(b) the employer would have been liable to pay compensation under this
Ordinance,
subsection (2) shall apply in all respects as if the action had been dismissed, and, if
the plaintiff chooses to have compensation assessed and awarded in accordance
with the said subsection (2), no damages shall be recoverable in the said action.
(4) Without prejudice to section 21(3), where a court or appellate tribunal
assesses compensation in accordance with subsection (2) it may include in the sum
awarded interest at such rate as it thinks fit on the whole or any part of such sum for
the whole or any part of the period between the date of the accident and the date of
the certificate given under that subsection. (Added, 76 of 1982, s. 20)
[cf. U.K. 1925 c. 84, s. 291
Limitation of right of indemnity against third party under
section 25
27. Where an employee or his personal representative or dependant has
recovered compensation under this Ordinance or any sum by virtue of an
agreement referred to in section 25(1)(b) in respect of an injury caused under
circumstances which would give a right to recover reduced damages in respect
thereof by virtue of section 21 of the Law Amendment and Reform (Consolidation)
Ordinance, from some person other than the employer (hereinafter referred to as the
third party), any right conferred by section 25 of this Ordinance on the person by
whom the compensation or sum was paid, or on any person called on to pay an
indemnity under section 24 of this Ordinance, to be indemnified by the third party
shall be limited to a right to be indemnified in respect of such part only of the
compensation, sum or indemnity paid or payable as bears to the total
compensation, sum or indemnity so paid or payable the same proportion as the said
reduced damages bear to the total damages which would have been recoverable if
the employee had not been at fault.
(Replaced, 76 of 1982, s. 21)
[cf. U.K. 1945 c. 28, s. 2 (2)]
Provision as to cases of bankruptcy of employer
28. (1) Where any employer has entered into a contract with any insurers in
respect of any liability under this Ordinance to any employee, then, in the event of
the employer becoming bankrupt, or making a composition or scheme of
arrangement with his creditors, or, if the employer is a company, in the event of the
company having commenced to be wound up or a receiver or manager of the
company's business or undertaking having been duly appointed, or possession
having been taken, by or on behalf of the holders of debentures secured by a
floating charge, of any property comprised in or subject to the charge, the rights of
the employer against the insurers as respects that liability shall, notwithstanding
anything contained in any laws relating to bankruptcy and the winding-up of
companies for the time being in force, be transferred to and vest in the employee,
and upon any such transfer the insurers shall have the same rights and remedies
and be subject to the same liabilities as if they were the employer:
Provided that the insurers shall not be under any greater liability to the
employee than they would have been under to the employer.
(2) If the liability of the insurers to the employee is less than the liability of the
employer to the employee, the employee may prove for the balance in the
bankruptcy or liquidation, or, as the case may be, he may recover the balance from
the receiver or manager.
(Amended, 6 of 19 77, s. 2 and 44 of 1980, s. 15)
[cf. U.K. 1925 c. 84, s. 71
Application to persons employed on ships
29. (1) This Ordinance shall apply to masters, seamen and apprentices to the
sea service who are employees within the meaning of this Ordinance and are
members of the crew of a Hong Kong ship, subject to the following modifications-
(Amended, 44 of 1980, s. 15)
(a)the notice of accident and the claim for compensation may, except where
the person injured is the master, be given to the master of the ship as if
he were the employer, but where the accident happened and the
incapacity commenced on board the ship it shall not be necessary for any
seaman to give notice of the accident;
(b)in the case of the death of the master, seaman or apprentice, the
application for compensation shall be made within 2 years after the
occurrence of the death or, where the ship has been or is deemed to have
been lost with all hands, within 2 years of the date on which the ship was,
or is deemed to have been, so lost;
(c)whenever in the course of any legal proceeding under this Ordinance the
testimony of any witness is required in relation to the subject matter of
the proceeding, then, upon due proof that the witness cannot be found in
Hong Kong, any deposition which the witness may have previously
made on oath in relation to the same subject matter before any justice or
magistrate in Her Majesty's dominions or in any place where Her Majesty
exercises jurisdiction or before any British Consular Officer elsewhere and
which, if the proceeding had been under the Merchant Shipping Act 1894
(1894 c. 60 U.K.), would have been admissible in such proceeding by
virtue of sections 691 and 695 of that Act, shall be admissible in evidence
subject to similar conditions as are laid down in the said sections 691 and
695;
(d)in case of the death of a master, seaman or apprentice leaving no
dependants, no compensation shall be payable, if the owner of the ship
is, under any law in force for the time being in Hong Kong relating to
merchant shipping, liable to pay the expenses of burial. (Amended, 76 of
1982, ss. 22 and 37)
(2) This Ordinance shall also apply to any person, not being a master, seaman,
or apprentice to the sea service, employed or engaged in any capacity on board and
on or about the business of a Hong Kong ship and if he is otherwise an employee
within the meaning of this Ordinance. (Amended, 44 of 1980,s.15)
(3) [Deleted, 76 of 1982, s. 221
(4) In this section
'Hong Kong ship' includes
(a)any ship or vessel registered or licensed in Hong Kong and any other
British ship or vessel the working of which is managed by a person who
resides or has his principal place of business in Hong Kong; and
(b)any ship or vessel not forming part of Her Majesty's Navy which is
owned by Her Majesty in respect of Her Government of Hong Kong, or
the working of which is managed by the armed forces of the Crown in
Hong Kong; (Amended, 50 of 1954, s. 6 and 76 of 1982, s. 37)
'ship', 'vessel', 'seaman' and 'master' shall have the respective meanings
ascribed to them by the Merchant Shipping Act 1894 (1894 c. 60 U.K.).
Application to persons employed on foreign ships
30. (1) If the employer submits or has agreed to submit to the jurisdiction of the
Court, then, notwithstanding that the accident causing the personal injury occurred
outside Hong Kong, this Ordinance shall apply, subject to the modifications in
subsections (2) and (3) and section 30A, to seamen and apprentices to the sea
service who are employees within the meaning of this Ordinance and, having been
recruited or engaged in Hong Kong, are members of the crew of a foreign ship.
(Amended, 44 of 1980, s. 15 and 59 of 1988, s. 9)
(2) The notice of accident and the claim for compensation may be given to the
master of the ship as if he were the employer, but where the accident occurred and
the incapacity commenced on board the ship it shall not be necessary to give any
notice of the accident. (Replaced, 76 of 1982, s. 23)
(3) In the case of the death of a seaman or apprentice to whom this section
applies, the application for compensation shall be made within 2 years after the
death occurred or, where the ship has been or is deemed to have been lost with all
hands, within 2 years after the date on which the ship was, or is deemed to have
been, so lost.
(4) [Repealed, 59 of 1988, s. 9]
(5) In this section
'foreign ship' means any ship other than a Hong Kong ship as defined in section
29(4);
'seaman' has the meaning that it has for the purposes of the Merchant Shipping
Act 1894 (1894 c. 6,0 U.K.).
(Added, 55 of 1969, s. 21A)
Testimony of witness outside Hong Kong
30A. (1) Where in a proceeding under this Ordinance in relation to an injury
that occurred outside Hong Kong the testimony of a witness is required, on proof
that the witness cannot be found in Hong Kong a deposition, or a certified copy of
it, which the witness may have previously made on oath outside Hong Kong in
relation to that injury before a justice or magistrate in Her Majesty's dominions or in
any place where Her Majesty exercises jurisdiction or
before any British Consular Officer elsewhere is, subject to subsection (2),
admissible in evidence without proof of the signature or official character of the
person appearing to have signed the deposition.
(2) The person before whom the deposition was made shall sign it and
certify that the witness was present at the making of the deposition.
(Added, 59 of 1988, s. 10)
Application to an employee injured outside Hong Kong
30B. (1) In this section-
'foreign compensation' means compensation paid to an employee in respect of
an injury under the law of a place outside Hong Kong where the injury
occurred;
'person carrying on business' has the same meaning as in the Business
Registration Ordinance (Cap. 3 10).
(2) This Ordinance also applies where personal injury by accident arising
out of and in the course of employment is caused to an employee outside Hong
Kong where the employee's contract of employment is entered into in Hong
Kong with an employer who is a person carrying on business in Hong Kong.
(3) Compensation payable under this Ordinance to an employee referred
to in subsection (2) shall be reduced by the amount of any foreign compensation
paid to him in respect of the same injury.
(4) Where foreign compensation is paid to an employee after compensa-
tion in respect of the same injury is paid under this Ordinance, the amount paid
under this Ordinance, not exceeding the amount of the foreign compensation
paid, shall be repaid to the employer by the employee and the amount is
recoverable as a civil debt.
(Added, 59 of 1988, s. 10)
Contracting out
31. (1) Any contract or agreement whether made before or after the
commencement of this Ordinance, whereby an employee relinquishes any right
to compensation from an employer for personal injury by accident arising out
of and in the course of his employment, shall, subject to subsection (2), be null
and void in so far as it purports to remove or reduce the liability of any person
to pay compensation under the provisions of this Ordinance.
(2) The Commissioner may, if satisfied that, by reason of old age or
serious physical defect or infirmity, a person, if employed as an employee, is
specially liable to meet with an accident, or, if he meets with an accident is
specially liable to sustain injury, in connection with any contract of such
employment, authorize the person and the employer to enter into an agreement
in writing reducing or giving up the right of such person to compensation under
the provisions of this Ordinance in respect of any accident which is caused or
contributed to by the old age or serious physical defect or infirmity.
(3) An agreement entered into under subsection (2) shall be ineffective
unless the Commissioner certifies that in his opinion such agreement is fair and
reasonable.
(Amended, 55 of 1969, s. 22 and 44 of 1980, s. 15)
PART 111
COMPENSATION FOR OCCUPATIONAL DISEASES
Compensation in the case of occupational disease
32. (1) If an employee contracts an occupational disease which results in
the total or partial incapacity (whether of a permanent or temporary nature)
or the death of the employee and is due to the nature of any employment in
which the employee was employed at any time within the prescribed period
immediately preceding such incapacity or death, whether under one or more
employers, then, the employee or his dependants, as the case may be, shall be
entitled to compensation under this Ordinance as if such incapacity or death
had been caused by an accident arising out of and in the course of employment
in respect of which the provisions of section 5 apply, and the provisions of this
Ordinance (including in particular section 15) shall, mutatis mutandis, apply
thereto, subject to the following modifications-
(a)the incapacity or the death shall be treated as the happening of the
accident;
(b)if it is proved that the employee, at the time of entering into the
employment, wilfully and with intent to deceive represented in writing
that he had not previously suffered from the disease resulting in the
incapacity or death, compensation shall not be payable;
(c)subject to subsection (3), the compensation shall be recoverable from
the employer who last employed the employee during the prescribed
period immediately preceding the incapacity or death in the employ-
ment to the nature of which the disease was due;
(d)the amount of the compensation shall be calculated with reference to
the earnings of the employee under the employer from whom the
compensation is recoverable pursuant to paragraph (c) or subsec-
tion (3);
(e)the employer to whom notice of incapacity or death is given shall be
the employer who last employed the employee during the prescribed
period immediately preceding the incapacity or death in the employ-
ment to the nature of which the disease was due, and the notice may be
given notwithstanding that the employee has voluntarily left such
employer's employment.
(2) Where an employee suffers incapacity or dies as a result of an
occupational disease, the employee or his dependants, as the case may be, shall,
if so required, furnish to the employer who last employed the employee during
the prescribed period immediately preceding the incapacity or death in the
employment to the nature of which the occupational disease was due such
information as to the names and addresses of all other employers who employed
him in such employment during such period as he or they may possess, and, if
such information is not furnished or is not sufficient to enable that employer to
take proceedings under subsection (3), that employer, upon proving that the
disease was not contracted whilst the employee was in his employment, shall not
be liable to pay compensation.
(3) If the employer who last employed the employee during the prescribed
period immediately preceding the incapacity or death in the employment to the
nature of which the occupational disease was due alleges that the disease was in
fact contracted whilst the employee was in the employment of some other employer
during such period, and not whilst in his employment, he may join such other
employer as a party to the proceedings in respect of the claim for compensation,
and if the allegation is proved that other employer shall be the employer from whom
the compensation is recoverable.
(4) If the occupational disease is of such a nature as to be contracted by a
gradual process, any other employers who during the prescribed period immediately
preceding the incapacity or death employed the employee in the employment to the
nature of which the disease was due shall be liable to make to the employer from
whom compensation is recoverable pursuant to subsection (1)(c) or subsection (3)
such contribution as, in default of agreement, may be determined by a Court at the
hearing of the claim for compensation, or, if the amount of and liability to pay the
compensation is not in dispute, by the Court at a separate hearing.
(5) Nothing in subsection (2) shall be construed as preventing the employee or
his dependants, as the case may be, from recovering compensation under this Part
from any other employer who employed the employee in the employment to the
nature of which the occupational disease was due during the prescribed period
immediately preceding the incapacity or death in the event of the employer who last
employed the employee in such employment proving that the disease in question
was not contracted whilst the employee was in his employment.
(6) For the purposes of this section-
(a)the date of the incapacity shall, in the absence of agreement, be such date
as the Court shall determine as being the date upon which the incapacity
commenced; and no employee shall be prejudiced in any claim for
compensation under this Part by reason only of the fact that the notice of
incapacity given to the employer specified some other date;
(b)the prescribed period shall be the period specified in the fourth column of
the Second Schedule in relation to the trade, industry or process specified
in the third column of that Schedule.
(Added, 19 of 1964, s. 5. Amended, 55 of1969, s. 23 and 44 of 1980,s. 15)
Medical examination before employment
33. (1) Any employer may, before employing an employee in any trade,
industry or process specified in the third column of the Second Schedule, require
the employee to undergo a medical examination by a medical practitioner at the cost
of the employer.
(2) (a) Subject to paragraph (b), any employee who refuses * to undergo a
medical examination required under subsection (1) shall not be
entitled to recover from that employer compensation under this
Ordinance for incapacity or death suffered as a result of an occupa-
tional disease.
(b)Paragraph (a) shall not apply unless the refusal to undergo the medical
examination is evidenced by writing under the hand of the employee.
(Added, 19 of 1964, s. 5. Amended, 44 of 1980, s. 15)
Presumption as to cause of occupational disease
34. If an employee who suffers incapacity or dies as a result of an occupational
disease was within the period specified opposite to that disease in the fourth
column of the Second Schedule immediately preceding such incapacity or death
employed in any trade, industry or process specified opposite to that disease in the
third column of that Schedule, it shall be presumed, until the contrary is proved,
that such disease was due to the nature of such employment. (Added, 19 of 1964, s.
5. Amended, 55 of 1969, s. 24 and 44 of 1980, s. 15)
Amendment of Second Schedule
35. The Governor in Council may from time to time by order, which shall be
published in the Gazette, amend the Second Schedule.
(Added, 19 of 1964, s. 5)
Saving in case of diseases other than occupational diseases
36. (1) Subject to subsection (2), nothing in this Part shall prejudice the right of
an employee to recover compensation under this Ordinance in respect of a disease
to which this Part does not apply, if the disease is a personal injury by accident
within the meaning of section 5. (Added,' 19 of 1964, s. 5. Amended, 44 of 1980, s.
15 and 5 1 of 1980, s. 48)
(2) Subsection (1) shall not apply to any incapacity resulting from
pneumoconiosis in respect of which compensation is recoverable under the
Pneumoconiosis (Compensation) Ordinance (Cap. 360). (Added, 51 of 1980, s.48)
PART IIIA
PROSTHESES AND SURGICAL
APPLIANCES
Interpretation of Part IIIA
36A. In this Part-
(Amended, 44 of 1980, s. 6)
'Board' means the Prostheses and Surgical Appliances Board appointed under
section 36M(1); (Added, 44 of 1980, s. 7)
'Director' means the Director of Medical and Health Services; (Added 44 of
1980,s. 7)
'prosthesis' means any artificial item which replaces a part of the body removed or
amputated as a result of an injury;
'surgical appliance' means any artificial item which supports directly or indirectly
the structure or function or a part of the body impaired as a result of an injury.
(Added, 67 of 1971, s. 2)
Employer's liability to pay for the cost of supplying fitting and prosthesis or
surgical appliance
36B. (1) Subject to the provisions of this section, if, in any employment,
personal injury is caused to an employee by accident arising out of and in the
course of the employment, the employer shall, notwithstanding any other
compensation he may be liable to pay under this Ordinance, be liable to pay for the
cost of supplying and fitting to the employee a prosthesis or surgical appliance
required by him as a result of his injury. (Amended, 76 of 1982, s. 24)
(IA) Notwithstanding anything in paragraph (a) of the proviso to section 5(1),
the employer shall be liable under subsection (1) whether or not the injury has
resulted or is likely to result in any period of temporary incapacity exceeding 3
consecutive days or in any permanent incapacity causing a loss of earning
capacity. (Added, 76 of 1982, s. 24)
(2) The employer shall not be liable under subsection (1) unless-
(a)the employee submits himself to treatment by a medical practitioner or a
registered dentist;
(b)the prosthesis or surgical appliance is supplied and fitted to the
employee; and
(c) the prosthesis or surgical appliance so supplied and fitted is-
(i) manufactured or on sale in Hong Kong; and
(ii) certified by the Board under section 36M(4). (Replaced, 44 of 1980, s.
8)
(3) If the prosthesis or surgical appliance required by the employee is not
manufactured or on sale in Hong Kong, and the Director gives his approval, the
employee may be supplied and fitted with a prosthesis or surgical appliance which
is manufactured or on sale at a place other than Hong Kong, in which case, the
employer shall, notwithstanding subsection (2)(c)(i), be liable to pay for the cost of
supplying and fitting the same to the employee.
(Added, 67 of 1971, s. 2. Amended, 44 of 1980, ss. 8 and 15)
Limit of employer's liability to pay under section 36B
36C. The amount of the cost which the employer is liable to pay under section
36B shall not, in the case of any one employee, exceed an aggregate of $14,000 in
respect of any one accident.
(Added, 67 of 1971, s. 2. Amended, 44 of 1980, s. 15; L.N. 321/85 and L.N. 390/87)
Manner in which a claim under section 36B may he made
36D. (1) A claim for the cost of supplying and fitting any prosthesis or surgical
appliance which the employer is liable to pay under section 36B may be made by the
Director payment of the cost.
by serving on the employer a request in writing for the
(2) A request for payment under subsection (1) shall specify-
(a) [Repealed, 59 of 1988, s. 111
(b) the amount claimed; and
(e)the address at which the Director may be served under section
36E(2)(b) if the employer disputes the claim.
(3) A request for payment under subsection (1) shall be supported by a
certificate issued by the Board under section 36M(4).
(Added, 67 of 1971, s. 2. Amended, 44 of 1980, s. 9)
Employer to pay amount in 1 month unless he disputes the
claim
36E. (1) The employer shall, on receipt of a request for payment under section
36D and before the expiry of 1 month from the time of receipt, pay the amount of the
cost to the Director, unless he disputes his liability to pay or the necessity or cost
of the prosthesis or surgical appliance.
(2) If the employer so disputes, he shall within the period specified in
subsection (1)
(a)deposit the amount of the cost claimed with the Director who shall hold
the same until any such dispute is determined; and
(b)serve on the Director at the address specified in section 36D(2) a notice
setting out the grounds of dispute.
(3) If the employer so disputes, but fails without reasonable excuse to comply
with the provisions of subsection (2), he shall be deemed to have agreed to pay the
amount of the cost claimed in the request for payment.
(Added, 67 of 1971, s. 2. Amended, 44 of 1980, s. 10)
Disputes to be determined by the Court
36F. (1) Where any dispute arises as to the liability to pay or the necessity or
cost of any prosthesis or surgical appliance supplied and fitted to the employee
under this Part, the dispute shall be determined by the Court.
(2) At the determination of the dispute, the Court may make such order as it
may deem fit in respect of the deposit under section 36E(2)(a), but shall order the
return of the deposit to the employer if it finds the employer not liable or that the
prosthesis or surgical appliance is not necessary for the employee.
(Added, 67 of 1971, s. 2.Amended, 44 of 1980, s. 15)
Application to the Court
36G. Where the employer on whom a request for payment under section 36D is
served fails to pay within the period specified in section 36E(1), or disputes the
claim, an application to the Court in the prescribed form and manner may be made
by the Director for enforcing his claim to the amount of the cost or for the
determination of the dispute.
(Added, 67 of 1971, s. 2. Amended, 44of 1980, s.11)
Claim under section 36B to be made within 5 years
36H. All claims for the cost of supplying and fitting any prosthesis or surgical
appliance to an employee under this Part shall be made within 5 years from the
occurrence of the accident giving rise to the injury.
(Added, 67 of 1971, s. 2. Amended, 44 of 1980, s. 15)
Employer's liability to pay for the cost of repair or renewal
of prostheses or surgical appliances
36I. Subject to section 36J, where in respect of an accident occurring on or
after the date on which this section comes into operation an employer is liable to
pay for the cost of supplying and fitting a prosthesis or surgical appliance to an
employee under section 36B, he shall also be liable to pay for the probable cost of
the normal repair and renewal of the prosthesis or surgical appliance during a period
of 10 years after the date on which the prosthesis or surgical appliance is originally
fitted.
(Replaced, 44 of 1980, s. 12)
Limit of employer's liability to pay under section 361
36J. The amount of the cost which the employer is liable to pay under section
361 shall be the total amount assessed by the Board under section 36M(2)(c) and
(3) and shall not, in the case of any one employee, exceed an in respect of any one
accident.
aggregate of
(Replaced, 44 of 1980, s. 12. Amended, L.N. 321185 and L.N. 390187)
Treatment of claims under section 361
36K. (1) A claim for payment of the cost which an employer is liable to pay
under section 361 shall be treated as a claim for the cost of supplying and fitting a
prosthesis or surgical appliance under section 36B, and, subject to subsection (2),
sections 36D, 36E, 36F, 36G and 36H shall, with the necessary modifications, apply
in respect of a claim under section 361. (Amended, 76 of 1982, s.25)
(2) An employer may not, in respect of any claim made under section 361,
dispute the necessity for renewal and repair of the prosthesis or surgical appliance.
(Added, 44 of 1980, s. 12)
Payment of costs from and into general revenue
36L. (1) Where, in respect of an accident occurring on or after the date on
which this section comes into operation, an employer is liable to pay for the cost of
(a)supplying and fitting any prosthesis or surgical appliance to an injured
employee under section 36B; and
(b) the normal repair and renewal of such prosthesis or surgical appliance
under section 361,
then, subject to the rights of the Director in respect of the recovery of any
amount from the employer under this Part, the cost-
(i) of the supplying and fitting; and
(ii) whenever incurred, of the normal repair and renewal, of such prosthesis or
surgical appliance shall be payable out of the general revenue of Hong Kong.
(2) All amounts-
(a) paid to the Director under section 36E(1); and
(b) recovered by him under sections 36F(2) and 36G, shall
be paid by him into the general revenue of Hong Kong.
(Added, 44 of 1980, s. 12)
Prostheses and Surgical Appliances Board
36M. (1) The Director shall appoint a board to be known as the Prostheses
and Surgical Appliances Board which shall consist of
(a) 2 medical practitioners or registered dentists; and
(b)
the Senior Occupational Health Officer or any Occupational H
Officer. (Amended, L.N. 248182)
(2) The functions of the Board shall be-
(a)
(b)
to determine whether a prosthesis or surgical appliance required by an
injured employee is necessary for him having regard to the nature and
extent of his injury and, if so, to determine the cost of supplying and
fitting the same;
in any case where a prosthesis or surgical appliance has already been
fitted to an injured employee, to determine whether the prosthesis or
surgical appliance is necessary for him having regard to the nature and
extent of his injury and, if so, to determine whether the cost of the same is
reasonable; and
(c)in any case to which section 361 applies, to assess the total amount of
the probable cost of the normal repair and renewal of any prosthesis or
surgical appliance during a period of 10 years after the date of the original
fitting of the same.
(3) The Board shall, when assessing the total amount of the probable cost of
the normal repair and renewal of a prosthesis or surgical appliance under
subsection (2)(c), have regard to
(a) the durability of the prosthesis or surgical appliance originally fitted;
(b)
the probable number of replacements of such prosthesis or surgical
appliance required during a period of 10 years after the date of the
original fitting; and
(c)the cost of the prosthesis or surgical appliance at the time of the
assessment.
If the Board is satisfied-
(4)
(a)in any case to which subsection (2)(a) applies, that the prosthesis or
surgical appliance is necessary; or
(b)in any case to which subsection (2)(b) applies, that the prosthesis or
surgical appliance is necessary and that the cost of supplying and fitting
the same is reasonable,
it shall issue a certificate to the Director, stating in respect of such prosthesis or
surgical appliance
(i) that it is necessary; (ii) the cost of the
supplying and fitting;
(iii)that such cost has been determined by the Board under subsection
(2)(a) or has been determined by the Board to be reasonable under
subsection (2)(b), as the case may be; and
(iv) where applicable, the Board's assessment of the total amount of the
probable cost under subsection (2)(c).
(5) A certificate purporting to be issued under subsection (4) and to be signed
by or for the Board shall be admitted in evidence without further proof on its
production in the Court and
(a)until the contrary is proved, it shall be presumed that the certificate is so
issued and signed.,
(b) shall be evidence of the matters stated therein.
(Added, 44 of 1980, s. 12)
Attendance of employee for purposes of section 36M
36MA. The Board may for the purposes of section 36M, by notice in writing to
an injured employee, require the employee to attend for an examination or
assessment on such date and at such time and place as is specified in the notice,
and the provisions of section 161(2), (3), (4), (5) and (6) shall apply in respect of a
notice under this section as they apply in respect of a notice under section 161(1).
(Added, 76 of 1982, s. 26)
Director to take steps to ensure supply, etc.
36N. The Director shall take such steps as to him seem necessary to ensure
(a)the supply and fitting of a prosthesis or surgical appliance to an injured
employee under section 36B; and
(b)the normal repair and renewal of such prosthesis or surgical appliance
under section 361.
(Added, 44 of 1980, s. 12)
Application of certain provisions
360. Notwithstanding anything in section 24, 28 or 3 1, in the application of
those sections in respect of any claim for the cost of supplying and fitting a
prosthesis or surgical appliance and for the cost of repair and renewal of such
prosthesis or surgical appliance under this Part
(a)the rights possessed by or vested in an employee under sections 24 and
28 shall be vested in the Director; and
(b)the right of any person to compensation referred to in section 31(2) shall
be deemed to include the right of the Director to claim for such cost under
this Part.
(Replaced, 76 of 1982, s. 27)
PART IV
COMPULSORY
INSURANCE
Commencement of Part IV
37. This Part shall come into operation on a day to be appointed by the
Governor by notice in the Gazette.*
Interpretation
38. In this Part, unless the context otherwise requires-
'domestic premises' means any premises used exclusively for residential purposes.
Application of this Part
39. (1) Subject to subsection (2), this Part shall apply to all employments other
than any employment exempted under subsection (3).
(2) Notwithstanding section 4, this Part shall not apply to any employment by
or under the Crown.
(3) The Governor in Council may, by notice in the Gazette, exempt any
employment from the application thereto of this Part.
Compulsory insurance against employer's liability
40. (1) No employer shall employ any employee in any employment unless
there is in force in relation to such employee a policy of insurance issued by an
insurer for the full amount of the liability of the employer under this Ordinance and
independently of this Ordinance for any injury to such employee by accident
arising out of and in the course of his employment.
* Note: The appointed day is 1 January 1984-see L.N. 285183.
is liable-
(IA) Subsection (1) does not require an employer to obtain insurance for
any liability he may have in respect of damages awarded by a court outside
Hong Kong to an employee referred to in section 30B. (Added, 59 of 1988,
s. 12)
(2) An employer who contravenes subsection (1) commits an ofrence and
(a)on conviction upon indictment to a fine of $50,000 and to imprison-
ment for 2 years; and
(b)on summary conviction to a fine of $20,000 and to imprisonment for
1 year.
Notice of insurance
41. (1) Subject to subsection (2), an employer to whom a policy of
insurance is issued for the purposes of this Part shall display, in a conspicuous
place on each of his premises where any employee is employed by him, a notice,
in such form as may be specified by the Commissioner, showing in both the
English and Chinese languages-
(a) the name of the employer;
(b) the name of the insurer;
(e) the policy number;
(d) the date of issue of the policy;
(e) the dates of commencement and expiry of the period of insurance;
the number of employees insured under the policy at the time of issue
thereof; and
(g) the amount of the liability insured.
(2) Subsection (1) shall not apply where the policy of insurance, in so far
as it is issued for the purposes of this Part, relates solely to domestic servants
employed in, or in connection with, the private household of the employer or
relates to an employee referred to in section 30B whose work is performed
outside Hong Kong. (Amended, 59 of 1988, s. 13)
(3) An employer who without reasonable excuse contravenes subsec-
tion (1) commits an offence and is liable to a fine of $10,000.
Certain conditions in policy to he void
42. Any condition in a policy of insurance issued for the purposes of this
Part providing that no liability shall arise under the policy, or that any liability
so arising shall cease, in the event of some specified thing being done or omitted
to be done after the happening of the accident giving rise to a claim under the
policy, shall be of no effect upon the claim made by an employee under sec-
tion 44:
Provided that nothing in this section shall be taken to render void any
provision in a policy requiring the insured employer to repay to the insurer any
sums which the latter may have paid under the policy in satisfaction of any such
claim.
Conditions under which liability for payment by insure
arises
43. (1) Subject to this section, where in relation to an employee there is in
force a policy of insurance for the purposes of this Part and the employer of the
employee becomes liable to pay any sum under this Ordinance or independently
of this Ordinance in respect of an injury to the employee arising out of and
in the course of his employment, such sum shall forthwith become due and
payable by the insurer, including any sum payable in respect of interest and
costs, notwithstanding anything to the contrary in the policy of insurance.
(2) No sum shall be payable by an insurer under this section-
(a)unless, in the case of compensation agreed upon between the employer
and an employee, such insurer has consented to pay the sum agreed
upon as compensation to the employee;
(b)unless, in the case of compensation or damages determined or
adjudged by a court or tribunal to be payable to the employee or any
other person, the insurer had sufficient notice of the institution in the
court or tribunal of proceedings for compensation or damages, as the
case may be, to enable such insurer to be added as a party to the
proceedings;
(c)in respect of any judgment to pay compensation or damages, while
execution thereon is stayed by the court or pending appeal; or
(d)if before the happening of the accident which was the cause of the
injury giving rise to the liability, the policy of insurance was cancelled
by mutual consent or by virtue of any provision contained therein.
(3) If sufficient notice of the institution of proceedings for the recovery of
compensation or damages is given to an insurer to enable such insurer to apply
to be added as a party to the proceedings, the court or tribunal, as the case may
be, shall, on such application being made, add the insurer as a party and the
insurer shall have the same right to defend the proceedings as if such insurer
were the employer.
(4) Where any sum is paid by the insurer which would, were it not for the
provisions of this section, not be payable under the policy of insurance, such
sum shall be recoverable by the insurer from the employer.
Right of injured party to proceed against insurer
44. Every policy of insurance issued for the purposes of this Part shall be
deemed to provide that any employee or other person having a claim against the
person insured in respect of the liability in regard to which such policy was
issued shall be entitled to recover in his own name, as though he were a party to
the policy, directly from the insurer any amount which he would have been entitled
to recover from the person insured.
Inspection of premises other than domestic premises
45. The Commissioner, and any public officer authorized in writing by him in
that behalf (which authority shall be produced by such public officer on demand)
may for the purposes of this Part
(a)enter and inspect without a warrant at any reasonable time any premises
of an employer where persons are employed, other than domestic
premises;
(b)require the production of, inspect, examine or take copies of any record or
other document on such premises, relating to the compliance by the
employer with the requirements of this Part in respect of his employees;
(c)require any person who manages or appears to be in charge of such
premises or of employees on such premises to furnish such information
or particulars as he may specify relating to the compliance by the
employer with the requirements of this Part in respect of his employees;
and
(d)make such other inquiries from any other person on such premises as he
thinks fit.
Inspection of domestic premises
45A. A magistrate may, if he is satisfied by information on oath that there may
be found in any domestic premises any evidence of an offence under section 40,
issue a warrant authorizing the Commissioner or any other person named in the
warrant to
(a) enter the domestic premises at any reasonable time; and
(b)require the production of, inspect, examine or take copies of any
insurance policy, cover note or other document issued for the purposes
of this Part in respect of any employee employed in such domestic
premises.
Offences against sections 45 and 45A
45B. Without prejudice to section 45C, any person who in connection with
any inspection under section 45 or 45A
(a)fails without reasonable excuse to produce any record or other document
referred to in that section when required to do so by the Commissioner or
any person authorized under that section;
(b)furnishes to the Commissioner or any such person any information
which he knows or reasonably ought to know to be false or misleading
in any material particular; or
otherwise hinders or impedes the Commissioner or such person in the
performance of his duties or the exercise of his powers under that
section,
commits an offence and is liable to a fine of $5,000.
Notice to produce documents etc.
45C. (1) The Commissioner may, by notice in writing to an employer,
require the employer to produce for inspection by the Commissioner, on such
date and at such time and place as is specified in the notice-
(a)a policy of insurance issued and in force for the purposes of this Part
as at the date of the notice or as at a date specified in the notice or a
cover note in respect of any such policy of insurance, or such other
evidence as to the existence of any such policy as the Commissioner
may specify in the notice; and (Amended, 59 of 1988, s. 14)
(b)any other document, or any article or record, specified in the notice,
relating to employees of the employer or to such insurance.
(IA) An employer is not required to produce anything under subsec-
tion (1)(a) in respect of a date specified by the Commissioner in his notice that
is earlier than 3 years preceding the date of the. Commissioner's notice.
(Added, 59 of 1988, s. 14)
(2) An employer who fails without reasonable excuse to comply with the
requirements of a notice under subsection (1) commits an offence and is liable-
(a)where the offence relates to a document or matter referred to in
subsection (1)(a)~-
(i) on conviction upon indictment to a fine of $50,000 and to
imprisonment for 2 years; and
(ii) on summary conviction to a fine of $20,000 and to imprison-
ment for 1 year; or
(b)where the offence relates to a document or matter referred to in
subsection (1)(b), to a fine of $5,000.
(3) The Commissioner may inspect, examine or take copies of any article,
record or document produced under subsection (1).
(4) Any person who hinders or impedes the Commissioner in the exercise
of his powers under subsection (3) commits an offence and is liable to a fine of
$5,000.
Notice of premium increases
45D. (1) Notwithstanding anything in section 49, the Governor in
Council may by regulations require an insurer to give notice in advance to the
Commissioner of any increase proposed in the premium generally charged by
the insurer for a policy of insurance issued for the purposes of this Part, whether or
not such increase is to apply in relation to a particular trade, industry or
occupation.
(2) Regulations made under this section may provide that a contravention of
any specified provision shall be an offence, and may prescribe penalties therefor
not exceeding a fine of $20,000 and imprisonment for 6 months.
(3) When at any time a body corporate commits an offence under regulations
made under this section with the consent or connivance of, or because of neglect
by, any individual, the individual commits the like offence if at that time
(a)he is a director, manager, secretary or similar officer or main agent of the
body corporate or is purporting to act as such officer or as agent of such
body corporate; or
(b) the body corporate is managed by its members, of whom he is, one.
(Part IV replaced, 76 of 1982, s. 28)
PART V
MISCELLANEOUS
Compensation not to he assigned, charged or attached
(Added, 19 of 1964, s. 6)
46. Compensation payable under the provisions of this Ordinance shall not be
capable of being assigned, charged or attached, and shall not pass to any other
person by operation of law nor shall any claim be set off against such
compensation.
Deduction of insurance premiums from earnings to he an
offence
47. (1) An employer who, for the purpose of defraying or partly defraying the
cost of insurance in respect of his liability to pay compensation under the
provisions of this Ordinance, makes any deduction from the earnings of an
employee in his employ, shall be guilty of an offence and shall be liable on summary
conviction to a fine of $5,000 and to imprisonment for 6 months. (Amended, 44 of
1980, s. 15 and 76 of 1982, s. 29)
(2) An employer convicted of an offence under subsection (1) shall, in addition
to any penalty imposed under that subsection, if the court or magistrate before
which the conviction was obtained so orders, pay to the employee any sum
deducted from the employee's earnings--
(a) in respect of which the offence was committed; and
(b) which has not at the time of the conviction been repaid.
Contract of service not to be terminated during incapacity
sioner
before-
(Added, 76 of 1982, s. 29)
48. (1) An employer shall not, without the consent of the Commis-
(a)terminate the contract of service or apprenticeship of an employee who has
suffered incapacity in circumstances which entitle him to compensation
under this Ordinance; or
(b) give notice to the employee of such termination,
(i) where the employee suffers temporary incapacity only, the date certified
by a medical practitioner, a registered dentist, an Ordinary Assessment
Board or a Special Assessment Board as the date on which the period of
temporary incapacity ceased or will cease; or (Amended, 31 of 1985, s.
12)
(ii) where the employee suffers permanent incapacity, the date of issue to the
employer of the relevant certificate of assessment under section 16F or,
where an objection to the assessment is made under section 16G(1), the
date of issue to the employee of the relevant certificate under section
16G(3) or of a further certificate under section 16F, as the case may be.
(Replaced, 76 of 1982, s. 30)
(2) Any employer who contravenes any of the provisions of subsection (1)
shall be guilty of an offence and shall be liable on conviction to a fine of $5,000.
(Added, 55 of 1969, s. 26. Amended, 44 of 1980, s. 15 and 76 of 1982, s.30)
Legislative Council may amend amounts of compensation
etc.
48A. The Legislative Council may by resolution amend-
(a) the amounts of compensation specified in sections 6, 7 and 8;
(b) the amount of the earnings specified in section 11(5);
(c) the amount of the payment specified in section 13(3);
(d) the percentages and amounts specified in sections 16A(10) and 17A;
(e) the amount specified in section 23(2);
(f) the amount of the cost specified in sections 36C and 36J;
(g) the daily rates specified in the Third Schedule.
(Replaced, 76 of 1982, s. 31)
Regulations
49. (1) The Governor in Council may make regulations-
(a)requiring employers to make periodic or other returns as to such matters
as he may think fit, and prescribing a time limit for the making of such
returns;
(b) [Repealed, 76 of 1982, s. 321
(c) [Repealed, 76 of 1982, s. 321
(d) prescribing procedure and fees; (Amended, 13 of 1966, Schedule)
(e)prescribing anything which is to be or may be prescribed under this
Ordinance;
(f)generally, for carrying into effect the provisions of this Ordinance and of
any regulations made thereunder.
(2) Any regulations made under this Ordinance may provide that such
contraventions thereof as may be specified shall constitute an offence and may
provide for the punishment of any such offence on summary conviction by a fine of
$5,000 and by imprisonment for a term of 3 months. (Amended, 76 of 1982, s.32)
Rules of Court
50. the Chief Justice may make Rules of Court for regulating proceedings
before the Court and appeals to the Court under the provisions of this Ordinance,
and for the fees payable in respect thereof.
(Amended, 76 of 1982, s. 33)
Forms
51. (1) Notwithstanding the provisions of section 49(1), the Commissioner may
by regulation prescribe forms for the purposes of this Ordinance. (Added, 13 of
1966, Schedule)
(2) The Commissioner may specify any certificate or form required to be
specified by him under this Ordinance. (Added, 76 of 1982, s. 34)
Regulations as to transfer of funds
52. Where an arrangement has been made whereby sums awarded under the
law relating to employee's compensation in Hong Kong to beneficiaries resident or
becoming resident in any other part of the Commonwealth, and sums awarded under
the law relating to employee's compensation in such other part of the
Commonwealth to beneficiaries resident or becoming resident in Hong Kong may, at
the request of the authority by which the award is made, be
transferred to and administered by a competent authority in such other part of
the Commonwealth or in Hong Kong, as the case may be, the Governor in
Council may make regulations-
(a)for the transfer, in such manner as may be provided by the arrange-
ment, to that part of the Commonwealth with which the arrangement
is made, of any money in the disposition of the Court, applicable for
the benefit of any person resident in or about to reside in such other
part of the Commonwealth; and
(b)for the receipt and administration, by an officer appointed by the
Governor for such purpose, of any money which under any such
arrangement has been transmitted from the part of the Common-
wealth with which the arrangement has been made as money applica-
ble for the benefit of any person resident or about to reside in Hong
Kong. (Amended, 44 of 1980, s. 15 and 76 of 1982, s. 37)
Offences
53. (1) Any person required to make a return by virtue of any regulation
made under section 49 who-
(a)fails to make such return within the time within which he is required to
make it; or
(b)makes or causes to he made a return which he knows to be false in any
material particular; or
(c)on being so required fails to give any information or explanation
respecting the return which it is in his power to give,
shall be guilty of an offence and shall be liable on summary conviction to a fine
of $ 100 for every day during which the default continues.
(2) Where a person convicted of an offence under this section is a
company, the chairman and every director and every officer of the company
shall be guilty of a like offence unless he proves that the act or omission
constituting the ofrence took place without his knowledge or consent.
Amendment of references in Ordinances and documents to
Workmen's Compensation Ordinance or Workmen's
Compensation Regulations
54. Every reference in an Ordinance or in any document to the Workmen's
Compensation Ordinance or the Workmen's Compensation Regulations shall,
unless the context otherwise requires, be read as a reference to the Employees'
Compensation Ordinance or the Employees' Compensation Regulations, as the
case may be.
(44 of 1980, s. 15(2), incorporated)
Transitional
55. (1) Nothing in the Workmen's Compensation (Amendment) Ordinance 1980
(44 of 1980) (hereinafter called the 'amending Ordinance') shall apply with respect
to claims for compensation or other rights, obligations or liabilities in respect of
accidents happening before the date of commencement* of sections 4, 5, 8 and 12 or
of section 14 of the amending Ordinance, as the case may be; and without limiting
the provisions of the Interpretation and General Clauses Ordinance (Cap. 1), the
provisions of the Workmen's Compensation Ordinance repealed or deleted by the
amending Ordinance shall continue to apply to such claims, rights, obligations or
liabilities as if such provisions had not been repealed or deleted by the amending
Ordinance. (44 of 1980, s. 16, incorporated)
(2) Nothing in the Employees' Compensation (Amendment) Ordinance 1982 (76
of 1982) shall apply with respect to claims for compensation or other rights,
obligations or liabilities in respect of accidents happening before the
commencement* of that Ordinance; and the provisions of this Ordinance in force
immediately before the commencement of that Ordinance shall continue to apply to
such claims, rights, obligations or liabilities as if such provisions had not been
repealed or amended by that Ordinance. (Added, 76 of 1982, s. 35)
(3) The amendments made by sections 4(a) and (b), 5, 6, 8, 9, 10, 12 and 13 of
the Employees' Compensation (Amendment) Ordinance 1998 (59 of 1988) do not
apply to claims for compensation or other rights, obligations or liabilities in respect
of accidents happening before the commencement* of the amendments; and the
provisions of this Ordinance in force immediately before the commencement of the
amendments continue to apply to those claims, rights, obligations or liabilities as if
they had not been repealed or amended by that Ordinance. (Added, 59 of
1988, s. 15)
* Note: Commencement Of
1980(i) sections 4, 5, 8 and 12: 1.11.80 (See L.N.
209180); (ii) section 14: 1.11.81 (See L.N. 209180);
(b) Employees' Compensation (Amendment) Ordinance 1982: 1.7.83 (See L.N. 10
7183);
(c) Employees' Compensation (Amendment) Ordinance 1988-
(i) section 8: 8.7.88;
(ii) sections 9, 10, 12 and 13: 6.10.88 (See L.N. 226188);
(iii) sections 4(a) and (b), 5 and 6: 1.1.89 (See L.N. 226188).
FIRST SCHEDULE
Item
1.
5.
6.
7.
Injury
Loss of 2 limbs ...
2. Loss of both hands or of all fingers and both thumbs
3...........Loss of both feet ... - ... ... ... ...
4. Total loss of sight ... ... ... ... ... ... ... ...
Total paralysis ... ... ...... ... ... ... ...
Injuries resulting in being permanently bedridden ... ...
Paraplegia ... ... ... ...... ... ... .... ... ...
8. Any other injury causing permanent total disablement
9. Loss of arm at shoulder
10. Ankylosis of shoulder jointin
optimum position ... in
worst position ... ...
....
..IS-
91
.......
Percentage
........of
loss Of
.......
earning
.......
capacity
.......
100
.......
75
........................................35
........................................55
11......................Loss of arm between elbow and shoulder ... ... ... ... ... ... ... 70
12.............Loss of arm at elbow ......... ... ... ... ... ... ... ... ... ... 65
13. Ankylosis of the elbow joint-
in optimum position ... ...
in worst position ... ... ...
14. Loss of arm between wrist and elbow
15. Loss of hand at wrist
16. Ankylosis of wrist jointin
optimum position in
worst position
17. Loss of 4 fingers and thumb of one hand
18. Loss of 4 fingers of one hand
19. Loss of thumb-
both phalanges
one phalanx ...
11 .; 1 of +,,
20. Ankylosis of-
guillotine loss of tip p without loss of
bone ...
interphalangeal joint of the thumb ... ... metacarpophalangeal
joint of the thumb ... all these 2 joints of the thumb ... ... ... ... ...
... ... ...
21. Loss of index finger-
3 phalanges ... ... ... ... ... ...
2 phalanges ... ... ... ... ... ...
one phalanx ..................... ... ... ... ... ... ... ...
guillotine amputation of tip without loss of bone
22. Ankylosis of- distal interphalangeal joint of the index
finger ... ... proximal interphalangeal joint of the
index finger ... metacarpophalangeal joint of the
index finger ... ... all these 3 joints of the index
finger
23. Loss of middle finger-
3 phalanges
2 phalanges
one phalanx
guillotine amputation of tip without loss of bone
30
50
60
60
30
40
so
40
30
20
8
4
8
12
14
10
7 4
2
3
4
9
........ ... ...
8
5
2
Item
24. Ankylosis of-
Injury
distal interphalangeal joint of the middle
finger proximal interphalangeal joint of the
middle fin metacarpophalangeal joint of the
middle finger all these 3 joints of the middle
finger ...
25.Loss of ring finger-
3 phalanges
2 phalanges
one phalanx
26. Ankylosis of-
guillotine amputation of tip without loss of bone
distal interphalangeal joint of ring finger ...
proximal interphalangeal joint of ring
finger metacarpophalangeal joint of ring
finger ... all these 3 joints of the ring finger
27. Loss of little finger3 phalanges ... 2 phalanges ... one
phalanx ... guillotine amputation of tip without
loss of bone
28. Ankylosis of- interphalangeal joint of little finger
... proximal interphalangeal joint of little
finger metacarpophalangeal joint of little
finger ... all these 3 joints of the little
finger
29. Loss of metacarpals-
first (additional)
second, third, fourth or fifth (additional) ...
30. Loss of leg at hip ... ... ... ...
31. Loss of leg at or above knee ...
32. Ankylosis of hip jointin
optimum position
in worst position ...
33. Loss of leg below knee
34. Ankylosis of knee jointin
optimum position ... in
worst position ... ...
35.........Loss of foot ... ... ...
36. Ankylosis of ankle jointin
optimum position ... in
worst position ... ...
37. Loss of toes-
all of one foot
great, both phalanges
great, one phalanx ... ...
other than great, for each one toe lost
38. Loss of sight of one eye
39. Loss of hearing of one ear
40. Total loss of hearing, both ears
Percentage
of loss of
earning
capacity
2
2
3
7
8
6
4
2
1
2
2
5
2
4
8
3
80
70
35
50
50
25
35
40
15
25
20
8
4
3
............ ... 30
20
100
member.
(1 A) Partial loss of a member or partial permanent loss of the use of a member shall
be treated as the loss of such proportion of the percentage of loss of earning
capacity prescribed in this Schedule as the partial loss of the member, or partial
permanent loss of the use of the member, bears to the total loss of that member.
(Added, 49 of 1985, s.5)
(2)Where there is loss of 2 or more parts of the hand, the percentage shall not be
more than the loss of the whole hand.
(3)Loss of remaining arm, leg or eye, if one has already been lost, shall be the
difference between the compensation for the total incapacity, and
compensation already paid or that which would have been paid for the previous
loss of limb or eye.
(4)Where there is loss of a thumb and one or more fingers of the same hand, the
aggregate percentage shall not be more than that in respect of the loss of 4
fingers and the thumb of the same hand.
SECOND SCHEDULE
OCCUPATIONAL
DISEASES
Description
of occupational
Item disease
A. CAUSED BY
PHYSICAL AGENTS
AI Inflammation, ulceration or
malignant disease of the
skin or subcutaneous tissues
or of the bones, or blood
dyscrasia, or cataract, due
to electro-magnetic
radiations (other than
radiant heat), or to ionising
particles
A2 Heat cataract
A3 Dysbarism, including
decompression
sickness, barotrauma
and osteonecrosis
A4 Cramp of the hand or forearm
due to repetitive
movements
A5 Subcutaneous cellulitis of the
hand (Beat hand)
A6 Bursitis or subcutaneous
cellulitis arising at or about
the knee due to severe or
prolonged external friction
or pressure at or about the
knee (Beat knee)
(Replaced, 44 of 1980, s.
14)
[ss. 3, 32, 33 & 341
Prescribed period
Nature of trade, for purposes of
industry or processsection 32
Any occupation involving exposure 10 years.
to electro-magnetic radiations
other than radiant heat, or to
ionising particles.
Any occupation involving 3 years.
frequent or prolonged exposure to
rays from molten or red-hot
material.
Any occupation involving subjection
to compressed or rarefied air or
other gases or gaseous mixtures.
Any occupation involving
prolonged periods of handwriting,
typing or other repetitive
movements of the fingers, hand or
arm.
1 year. In the
case of
arthritis -5
years.
1 year.
Any occupation involving 1 year.
manual labour causing severe or
prolonged friction or pressure on
the hand.
Any occupation involving year.
manual labour causing severe or
prolonged external friction or
pressure at or about the knee.
Description
of occupational
Item disease
A7 Bursitis or subcutaneous
cellulitis arising at or about
the elbow due to severe or
prolonged external friction
or pressure at or about the
elbow (Beat elbow)
AS Traumatic inflammation of
the tendons of the hand or
forearm, or of the
associated tendon sheaths
B. CAUSED BY
BIOLOGICAL
AGENTS
BI Anthrax
B2 Glanders
B3 Infection by leptospira
B4 Pulmonary disease due to the
inhalation of the dust of
mouldy hay or other
mouldy vegetable produce,
and characterized by
symptoms and signs
attributable to a reaction
in the peripheral part of the
bronchopulmonary system,
and giving rise to a defect
in gas exchange (Farmer's
lung)
B5Infection by organisms
of the genus brucella
C. CAUSED BY
CHEMICAL
AGENTS
Poisoning by lead or a
compound of lead
Prescribed
Nature of trade, for purposes
industry or process section
Any occupation involving manual
labour causing severe or prolonged
external friction or pressure at or
about the elbow.
1 year.
Any occupation involving 1 year.
manual labour, or frequent or
repeated movements of the hand or
wrist.
Any occupation involving contact
with animals infected with anthrax
or the handling (including the
loading and unloading or transport)
of animal products or residues.
Any occupation involving contact 1 month.
with equine animals or their
carcasses.
1 month.
Any occupation involving- 3 months.
(a)work in places which are, or are
liable to be, infested by rats, field
mice or voles, or other small
mammals;
(b)work at dog kennels or the care
or handling of dogs;
(c)contact with bovine animals or their
meat products or pigs or their meat
products.
Any occupation involving 1 year.
exposure to the dust of mouldy hay
or other mouldy vegetable produce
by reason of employment-
(a) in agriculture, horticulture or
forestry; or
(b) loading or unloading or
handling in storage such hay or
other vegetable produce; or
(c) handling bagasse.
Any occupation involving contact year.
with-
(a) animals infected by brucella, or
their carcasses or parts thereof,
or their untreated products; or
(b) laboratory specimens or
vaccines of, or containing,
brucella.
Any occupation involving the use or
handling of, or exposure to the
fumes, dust or vapour of, lead or a
compound of lead, or a substance
containing lead.
2 years. In the
case of nephritis -
4 years.
Description
of occupational
Item disease
C2Poisoning by manganese or a
compound of manganese
C3 Poisoning by
phosphorus or an inorganic
compound of phosphorus
or the anti-cholinesterase or
pseudo anti-cholinesterase
action of organic
phosphorus compounds
C4 Poisoning by arsenic or a
compound of arsenic
C5Poisoning by mercury or a
compound of mercury
C6 Poisoning by carbon
bisulphide
C7 Poisoning by benzene
or a homologue of benzene
C8 Poisoning by a nitro- or
amino- or chloro-derivative
of benzene or of a
homologue of benzene, or
poisoning by nitro-
chlorobenzene
C9 Poisoning by dinitrophenol or
a homologue or by
substituted dinitrophenols
or by the salts of such
substances
C10 Poisoning by halogen
derivatives of hydrocarbons
of the aliphatic series
C11 Poisoning by diethylene
dioxide (dioxan)
C12 Poisoning by chlorinated
naphthalene
C13 Poisoning by oxides of
nitrogen
Prescribed
Nature of trade, for purposes
industry or process section
Any occupation involving the use or 2 years.
handling of, or exposure to the
fumes, dust or vapour of,
manganese or a compound of
manganese, or a substance
containing manganese.
Any occupation involving the use or 3 years.
handling of, or exposure to the
fumes, dust or vapour of,
phosphorus or a compound of
phosphorus, or a substance
containing phosphorus.
Any occupation involving the use or 1 year.
handling of, or exposure to the
fumes, dust or vapour of, arsenic or
a compound of arsenic, or a
substance containing arsenic.
Any occupation involving the use or 2 years.
handling of, or exposure to the
fumes, dust or vapour of, mercury
or a compound of mercury, or a
substance containing mercury.
Any occupation involving the use or 1 year.
handling of, or exposure to the
fumes, or vapour of, carbon
bisulphide or a compound of
carbon bisulphide, or a substance
containing carbon bisulphide.
Any occupation involving the use or 1 year.
handling of, or exposure to the
fumes of, or vapour containing,
benzene or any of its homologues.
Any occupation involving the use or
handling of, or exposure to the
fumes of, or vapour containing, a
nitro- or amino- or chloro- derivative
of benzene or nitro-
chlorobenzene.
Any occupation involving the use or
handling of, or exposure to the
fumes of, or vapour containing,
dinitrophenol or a homologue or
substituted dinitrophenols or the
salts of such substances.
Any occupation involving the use or 1 year.
handling of, or exposure to the
fumes of, or vapour containing,
halogen derivatives of
hydrocarbons of the aliphatic series.
Any occupation involving the use or 1 year.
handling of, or exposure to the fumes
of, or vapour containing, diethylene
dioxide (dioxan).
Any occupation involving the use or 1 year.
handling of, or exposure to the
fumes of, or dust or vapour
containing, chlorinated
naphthalene.
Any occupation involving the use or 1 year.
handling of, or exposure to the
fumes of, or dust or vapour
containing, oxides of nitrogen.
1 year. In the
case of neoplasm
-10 years.
1 year.
Description
of occupational
Item disease
C14 Poisoning by beryllium or a
compound of beryllium
C15 Poisoning by cadmium
C16 Dystrophy of the cornea
(including ulceration of
the corneal surface) of the
eye
C17 Primary epitheliomatous
cancer of the skin
C18 Chrome ulceration including
perforation of nasal
septum
C19 Primary neoplasm of the
epithelial lining of the
urinary tract, (renal pelvis,
ureter, bladder and urethra)
including papilloma,
carcinoma-in-situ and
invasive carcinoma
D. CAUSED BY
MISCELLANEOUS
AGENTS
DI Inflammation or ulceration of
the skin produced by dust,
liquid or vapour (including
the condition known as
chloracne but excluding
chrome ulceration)
D2 Inflammation or ulceration of
the mucous membrane of the
upper respiratory passages
or mouth produced by dust,
liquid or vapour
D3 Carcinoma of the nasal cavity
or associated air sinuses
(nasal carcinoma)
Prescribed
Nature of trade, for purposes
industry or process section
Any occupation involving the use or 1 year.
handling of, or exposure to the
fumes, dust or vapour of, beryllium
or a compound of beryllium or a
substance containing beryllium.
Any occupation involving the use or 1 year.
handling of, or exposure to the dust
or fumes of, cadmium.
Any occupation involving the use or 1 year.
handling of, or exposure to, arsenic,
tar, pitch, bitumen, mineral oil
(including paraffin), soot or any
compound, product, (including
quinone or hydroquinone) or
residue of any of these substances.
Any occupation involving the use or 10 years.
handling of, or exposure to, arsenic,
tar, pitch, bitumen, mineral oil
(including paraflin), soot or any
compound, product, or residue of
any of these substances.
Any occupation involving the use or 1 year.
handling of chromic acid, chromate
or bichromate of ammonium,
potassium, sodium or zinc, or any
preparation or solution containing
any of these substances.
Any occupation involving the produc- 20 years.
tion, se or handling of alpha-
naphthylamine , beta-
naphthylamine
or me bis-ortho-chloraniline,
or diphenyl substituted by at least
occu
patio
n
U
naphthyla
mine,
methylene-
bis-ortho-
one nitro or primary amino group
or by at least one nitro and
primary amino group (including
benzidine) and any of the above
substances if further ring substituted
by halogeno methyl or methoxyl
group and the salts of any of the
above substances and the
production of auramine and
magenta.
Any occupation involving exposure to 1 year.
dust, liquid or vapour, capable of irritating
the skin.
Any occupation involving exposure to 1 year.
dust, liquid or vapour.
Any occupation involving the 10 years.
manufacture or repair of wooden
goods or the manufacture or repair
of footwear or components of
footwear made wholly or partly of
leather or fibre board.
(Replaced, L.N. 386183.Amended, L.N. 52187)
THIRD SCHEDULE
MEDICAL EXPENSES PAYABLE BY AN EMPLOYER IN RESPECT OF AN INJURY
DUE TO
ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT
[ss. 10A & 48A]
1 . Subject to paragraph 3, where an employee is given medical treatment as an in-patient
in a hospital, the medical expenses payable by the employer are--
(a) the total amount of medical expenses incurred in respect of the medical treatment; or
(b) the total amount at the rate of $40 for each day of stay in the
hospital, whichever total amount is the less.
2. Subject to paragraph 3, where an employee is given medical treatment other than as an
in-patient in a hospital, the medical expenses payable by the employer are
(a) the total amount of the medical incurred in respect of the medical
treatment; or
(b) the total amount at the rate of $20 for each day on which medical treatment is given,
whichever total amount is the less.
3. Where an employee is given medical treatment on any day both as an in-patient in a
hospital and other than as an in-patient in a hospital, the daily rate for the purpose of this
Schedule
shall be $40
(Added, 74 of 1977, s. 4. Amended, 44 of 1980, s. 15; 76 of 1982, s, 36; L.N. 321/85 and
L.N. 390/87)