Court of Final Appeal rejects widow's claim for work-injury compensation

Court of Final Appeal rules against woman seeking work-injury compensation after the unexplained death of her husband

PUBLISHED : Tuesday, 23 April, 2013, 12:00am
UPDATED : Tuesday, 23 April, 2013, 4:13am

The city's top court yesterday dismissed an appeal by a widow seeking work-injury compensation from the employer of her late husband, whose body was cremated without undergoing an autopsy in 2007.

Sibly Sit Wing-yi lost her claim against Berton Industrial, which had employed her husband, Randie Cheung Ka-wai, who died at the age of 37.

The Court of Final Appeal will give reasons for its decision at a later date.

Cheung was a merchandiser for Berton, which makes inexpensive products such as plastic toys. He was found collapsed in a toilet at their offices in Dongguan , Guangdong province, in July 2007 and certified dead soon after. He is survived by Sit and their son.

The case centres on a clause in the Employees' Compensation Ordinance which states an employer must pay compensation "if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee".

Cheung's body was cremated shortly after it was returned to Hong Kong. No autopsy was conducted. A doctor in Dongguan could not certify the cause of death.

Two pathologists who examined Cheung's medical history said there was not enough evidence to ascertain the cause of death. Neither was there evidence to determine whether his death was it was due to a previous medical condition or was related to his job.

Sit was seeking compensation for herself and other family members. She lost in the lower courts, which found no evidence of an accident causing or leading to her husband's death.

Sit claimed through her lawyers that an employee could sustain an "injury by accident" not only when the injury was the result of a specific accident where the cause was known, but also when a worker sustained an accidental injury in the sense of a mishap or unexpected event.

Denis Chang SC, Sit's barrister, said there was no requirement that a specific accident must be identified.

"The burden is on us to prove the death was an accident. In the present case, we have discharged that burden by showing the injury was sudden and unexpected and undesired."

Richard Tsoi Yiu-cheong, a community organiser with the Society for Community Organisation, said he and Sit were disappointed with the ruling.

He said the government, particularly the Labour Department, should ensure Hongkongers working on the mainland had adequate legal protection for injuries sustained during their employment.

Sit, who attended the hearing yesterday, could not be reached for comment.

The case was heard before Mr Justice Patrick Chan Siu-oi, Mr Justice Roberto Ribeiro, Mr Justice Michael Hartmann, Mr Justice Kemal Bokhary and Lord Justice Hoffmann.