Fung So Yin v Shek Hay Yau

District Court
Employees’ Compensation No 1425 of 2005
Judge Simon Leung
Employee's Compensation
3–4 September, 19 December 2012

Whether death arose out of and in course of employment

The deceased (“X”), was employed by the Defendant (“D”) as the captain of a fishing vessel. While docked in Shanwei in Mainland China, X disembarked from the vessel onto a sampan to go ashore for dinner. He suddenly fainted and was later in hospital certified dead. The Plaintiff (“P”), X’s widow, sought employees’ compensation against D. P’s daughter in her statement alleged that X jumped from the vessel onto the sampan, while X’s colleague stated that X climbed down onto the sampan.

Held, dismissing the application, that:

An accident denoted an unexpected act or event or occurrence of a mishap which produced the injury or death, and the burden of proving injury or death by such mishap or untoward event was on the applicant.

The evidence of P’s daughter and X’s colleagues concerning how X transferred from the vessel onto the sampan was contradictory and none was an eyewitness or had given evidence in court. In any event, even described as a jump, the exact manner of such act was unknown. It could have been a direct jump, or one while X was halfway down from the vessel or simply descending though seemingly quickly and effortlessly.

Further, medical records and the death certificate stating that X might have died of fatigue at work were hearsay and difficult to reconcile with the undisputed fact that X collapsed on the sampan going ashore. Expert reports from a cardiologist and a pathologist suggested a number of possible causes of death.

In all, P had not proved that an accident had produced the condition which caused X’s death. The statutory presumption under Section 5(4) of the Employees’ Compensation Ordinance (Cap.282) did not apply and liability under Section 5(1) was not established.

 

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