Work-Injury Legal Analysis (I): How Is an Injury Recognised as "Arising Out of Employment"

Whenever an employee is injured during work, the first question is often: "Is this a work injury?" The Employees' Compensation Ordinance (Cap. 282) establishes a compensation scheme that is independent of common law, centred on whether an accident "arose out of and in the course of employment". Yet real situations vary endlessly — an employee may be hurt during lunch, after work, or even while collecting belongings after dismissal; some provide services as self-employed persons, only to discover after an injury that the Ordinance may protect them. This article unpacks the core principles of work-injury recognition.

Section 5(4)(b) goes further: even where, at the time of the accident, the employee acted in contravention of statutory regulations or internal rules, against the employer's instructions, or without express instruction, the accident is still treated as arising out of and in the course of employment so long as the act was done for the purposes of, and in connection with, the employer's business. The only exception is section 5(3): an employer is relieved of liability only where the injury or death is wholly attributable to the employee's own "deliberate self-injury" or "serious and wilful misconduct" — a very high threshold, with the burden of proof resting entirely on the employer.

Hong Kong courts determine the employment relationship under common law. Even without a written contract, or where a worker is pressed to sign a "self-employment declaration", the courts apply an "overall evaluative-impressionistic approach", weighing factors such as the employer's control over working hours and methods, supervision of the work, the duty to report, how much equipment is provided, and whether the workplace is premises owned by the employer.

In Fan Lian v Wong Ka Keung [2025] HKDC 1336, the District Court likewise adopted the overall evaluative-impressionistic approach. Although the defendant argued the plaintiff was an independent contractor who bought his own tools and bore the cost of materials, the court found that the defendant in fact arranged the working days, monitored progress and gave instructions on details — sufficient to constitute the supervision and control of an employment relationship.

"In the course of employment" extends to acts that are reasonably and naturally incidental to the work — preparation before duties begin, escorting a colleague after a shift, or returning to collect personal belongings after dismissal have all been held to fall within protection in decided cases.

Sections 5(4)(d), (e) and (f) bring certain transport situations within "the course of employment". Generally, an injury suffered on the ordinary commute is not a work injury. However, travelling as a passenger in transport provided or arranged by the employer, driving a vehicle the employer arranged, and travelling during rainstorm or typhoon warnings within four hours of work, may each be treated as a work injury.

On the authorities, the misconduct that defeats a claim is confined to matters such as serious intoxication or being under the influence of drugs. Mere negligence, error of judgement, or continuing to work despite a known risk generally does not reach the threshold — the conduct must be deliberate and endanger life or safety.

The scope of an "injury arising out of employment" is far wider than commonly assumed. The Ordinance contains presumptions favourable to employees, and protection survives breaches of instruction so long as the act is connected to the work. Understanding these principles helps employees assess their rights accurately and seek professional legal advice where necessary.

The information, analysis and content above are a general overview only, provided for reference and do not constitute legal advice for any individual case. Please seek independent legal advice for further assistance.