My employee got injured at work. Is the legal procedure for my employees’ compensation claim against myself the same as the legal procedure for his/her personal injury claim regarding the same injury against the other relevant parties?

If your employee is injured at work and they wish to claim against you for employees’ compensation as well as to claim against other relevant parties for personal injury, the legal procedures for the two claims are different. For work-related injuries, the Employees’ Compensation Ordinance (Cap. 282) governs the relevant legal procedure for employees’ compensation. For personal injuries, Practice Direction 18.1 sets out the relevant legal procedure.

Legal procedure for employees’ compensation

When an employee suffers work-related injury, the legal procedure for employees’ compensation is generally governed by the Employees’ Compensation Ordinance (Cap. 282). Even if your employee might have committed acts of negligence or faults at the time of the accident, you are generally liable to pay them compensation. Nevertheless, your employee is responsible for notifying you as soon as possible that they have sustained a work-related injury. You, as an employer, is also responsible for notifying the Labour Department of any accident relating to your employee (section 15 of the Employees’ Compensation Ordinance (Cap. 282)).

Some common legal procedures for an employee’s compensation claim may include:

• The employer taking his/her injured employee to a clinic, a government hospital or an appointed doctor immediately for medical treatment.
• The employer informing the Labour Department of the injured employee’s work-related incapacity or death by submitting Form 2 or Form 2B within 14 days from the date of the accident.
• The employer notifying and submitting a copy of Form 2 or Form 2B, a copy of the identity document, the original medical certificate and the original medical expense receipts to the insurance company for the employees’ compensation claim.
• The injured employee attending a medical assessment or clearance at the Labour Department’s Occupation Medicine Unit.
• The employer sends the original Form 5 (Certificate of Compensation Assessment) and Form 7 (Certificate of Assessment) to the relevant insurance company.

Legal procedure for personal injury

In addition to your employee’s compensation claim, your employee may also be able to separately claim for damages from the responsible party under common law. They may do so if the work-related injury is caused to them by the breach of statutory duty, negligence or other omission or wrongful act of you or any other entity or person. The relevant legal procedure is set out in Practice Direction 18.1, which include:

• The parties attempting to mediate or negotiate so that the matter can be settled out of court.
• If mediation or negotiation fails, the claiming party initiating the proceedings at the suitable court based on their amount of claim: The action should be commenced in the Small Claims Tribunal if it is $75,000 or below, in the District Court if it is higher than $75,000 but not more than $3 million, and in the Court of First Instance of the High Court if it is $3 million or above.
• The parties attending the Check List Review Hearing, the Case Management Conference and the Pre-Trial Review.
• The parties attending the trial and presenting their case to a judge by adducing evidence and putting forward their arguments.
• The judge considering the evidence and arguments, and making a decision.
• The losing party being ordered by the court to pay the legal costs to the winning party.

Making two claims simultaneously

Your employee may make the claim for employees’ compensation and the claim for personal injury simultaneously (section 25 of the Employees’ Compensation Ordinance (Cap. 282)). However, the damages awarded against you in an action under any enactment regarding breach of statutory duty, negligence, or omission or wrongful act, or under common law, will be reduced by the amount of compensation that your employee has received under their employees’ compensation claim (section 26 of the Employees’ Compensation Ordinance (Cap. 282)).

Key takeaways

• If your employee is injured at work, they can claim against you for employees’ compensation as well as claim against other relevant parties for personal injury. This can be done at the same time.
• The legal procedures for an employees’ compensation claim is governed by the Employees’ Compensation Ordinance (Cap. 282); the legal procedures for a personal injury claim is governed by Practice Direction 18.1.

Bibliography

1. Labour Department, ‘A Concise Guide to the Employees’ Compensation Ordinance’: https://www.labour.gov.hk/eng/public/ecd/pco360.pdf
2. Labour Department, ‘Points to Note on Medical Clearance and Assessment of Work Injury’: https://www.labour.gov.hk/eng/public/ecd/ClaimInjury.pdf

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