Hong Kong Ordinances

EMPLOYEES' COMPENSATION ORDINANCE - SECT 32

Compensation in the case of occupational disease

(Past version on 30/06/1997).

PART III

COMPENSATION FOR OCCUPATIONAL DISEASES

(1) If the total or partial incapacity (whether of a permanent or temporary
nature) or the death of an employee results from an occupational  disease and
is due to the nature of any employment in which the employee was employed at
any time within the prescribed period immediately preceding such incapacity or
death, whether under one or more employers, then, the employee or members of
his family, as the case may be, shall be entitled to compensation under this
Ordinance as if such incapacity or death had been caused by an accident
arising out of and in the course of employment in respect of which the
provisions of section 5 apply, and the provisions of this Ordinance (including
in particular section 15) shall, mutatis mutandis, apply thereto, subject to
the following modifications- (Amended 1 of 1995 s. 12; 52 of 2000 s. 18)

   (a)  the incapacity or the death shall be treated as the happening of the
        accident;

   (b)  if it is proved that the employee, at the time of entering into the
        employment, wilfully and with intent to deceive represented in writing
        that he had not previously suffered from the disease resulting in the
        incapacity or death, compensation shall not be payable;

   (c)  subject to subsection (3), the compensation shall be recoverable from
        the employer who last employed the employee during the prescribed
        period immediately preceding the incapacity or death in the employment
        to the nature of which the disease was due;

   (d)  the amount of the compensation shall be calculated with reference to
        the earnings of the employee under the employer from whom the
        compensation is recoverable pursuant to paragraph (c) or subsection
        (3);

   (e)  the employer to whom notice of incapacity or death is given shall be
        the employer who last employed the employee during the prescribed
        period immediately preceding the incapacity or death in the employment
        to the nature of which the disease was due, and the notice may be
        given notwithstanding that the employee has voluntarily left such
        employer's employment.

(2) Where an employee suffers incapacity or dies as a result of an
occupational disease, the employee or members of his family, as the case may
be, shall, if so required, furnish to the employer who last employed the
employee during the prescribed period immediately preceding the incapacity or
death in the employment to the nature of which the occupational disease was
due such information as to the names and addresses of all other employers who
employed him in such employment during such period as he or they may possess,
and, if such information is not furnished or is not sufficient to enable that
employer to take proceedings under subsection (3), that employer, upon proving
that the disease was not contracted whilst the employee was in his employment,
shall not be liable to pay compensation. (Amended 52 of 2000 s. 18)

(3) If the employer who last employed the employee during the prescribed
period immediately preceding the incapacity or death in the employment to the
nature of which the occupational disease was due alleges that the disease was
in fact contracted whilst the employee was in the employment of some other
employer during such period, and not whilst in his employment, he may join
such other employer as a party to the proceedings in respect of the claim for
compensation, and if the allegation is proved that other employer shall be the
employer from whom the compensation is recoverable.

(4) If the occupational disease is of such a nature as to be contracted by a
gradual process, any other employers who during the prescribed period
immediately preceding the incapacity or death employed the employee in the
employment to the nature of which the disease was due shall be liable to make
to the employer from whom compensation is recoverable pursuant to subsection
(1)(c) or subsection (3) such contribution as, in default of agreement, may be
determined by a Court at the hearing of the claim for compensation, or, if the
amount of and liability to pay the compensation is not in dispute, by the
Court at a separate hearing.

(5) Nothing in subsection (2) shall be construed as preventing the employee or
members of his family, as the case may be, from recovering compensation under
this Part from any other employer who employed the employee in the employment
to the nature of which the occupational disease was due during the prescribed
period immediately preceding the incapacity or death in the event of the
employer who last employed the employee in such employment proving that the
disease in question was not contracted whilst the employee was in his
employment. (Amended 52 of 2000 s. 18)

(6) For the purposes of this section-

   (a)  the date of the incapacity shall, in the absence of agreement, be such
        date as the Court shall determine as being the date upon which the
        incapacity commenced; and no employee shall be prejudiced in any claim
        for compensation under this Part by reason only of the fact that the
        notice of incapacity given to the employer specified some other date;

   (b)  the prescribed period shall be the period specified in the fourth
        column of the Second Schedule in relation to the trade, industry or
        process specified in the third column of that Schedule. (Added 19 of
        1964 s. 5. Amended 55 of 1969 s. 23; 44 of 1980 s. 15)