Lo Siu Wa v Employees Compensation Assistance Fund Board
Court of Appeal
Civil Appeal Nos. 39 & 40 of 2016
Cheung, Yuen and Kwan JJA
12 January 2017

Employees’ compensation – insurer’s and employer’s liability under Pt. IV of Employees’ Compensation Ordinance (Cap. 282) – approach in Law Lai Ha v Zurich Insurance Co [2011] 2 HKLRD 450 correct — what insurance policy provided under heading “Scope of cover” to be read together with what it provided in its schedule

P was injured while engaged in carpentry work in the course of his employment with NDL (the “Employer”). He obtained against the Employer a judgment for employees’ compensation and a judgment for damages at common law. Neither judgment was satisfied. P then sued the Employees Compensation Assistance Fund Board (the “Board”) and AXA (the “Insurers”) with which the Employer had taken out an insurance policy for the purpose of Pt. IV of the Employees’ Compensation Ordinance (Cap. 282) (the “Policy”) covering, among other risks, liability to pay employees’ compensation. Under the heading “Scope of cover”, the Policy referred to “any Employee in the Insured’s immediate employ”. On their own, those words would cover P. But the schedule to the Policy referred to employees’ compensation payable to one Creative Director, one Creative Director (Overseas), one Designer (Overseas), two Designers, one Clerk (Indoor) and one Coordinator, stating the total estimated earnings of each of them. P was not covered by that reference. As to s. 43 of the Ordinance, the Board contended that the Policy was, while the Insurers contended that the Policy was not, “in relation to” P. The Judge, following the approach in Law Lai Ha v Zurich Insurance Co [2011] 2 HKLRD 450, held that the Policy was not “in relation” to P, and entered judgment for him against the Board rather than the Insurers. The Board appealed.

Held, dismissing the appeal (by a majority consisting of Yuen and Kwan JJA, Cheung JA dissenting), that the approach in Law Lai Ha v Zurich Insurance was correct. What the Policy provided under the heading “Scope of cover” was to be read together with what it provided in its schedule. Thus read, the Policy was not “in relation to” P. Accordingly, the Insurers were not liable and the Board was liable (Law Lai Ha v Zurich Insurance Co [2011] 2 HKLRD 450, New World Harbourview Hotel Co Ltd v ACE Insurance Ltd (2012) 15 HKCFAR 120 applied).

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