In what appears to be the first published District Court Employees' Compensation (DCEC) decision on the question handed down on 13 March 2026, the Court struck out an employee's claim for failure to prove workplace infection, but went on to observe, in obiter, that contracting COVID-19 can in principle amount to an "accident" under section 5(1) of the Employees' Compensation Ordinance (Cap 282) (the "Ordinance").
Background
In the Hong Kong District Court Employees’ Compensation Case No. 14 of 2024 (DCEC 14/2024), the applicant, Mr Kwok Chi Man, was employed by the Electrical and Mechanical Services Department (“EMSD”) as a Senior Technician (Air Conditioning) assigned to Kwai Chung Hospital. Following a series of workplace misconduct issues, he was removed from air conditioning maintenance duties and, from 4 November 2021 to 29 March 2022, was assigned solo clerical work in a basement welding room at the hospital, which the court referred to as the Workshop.
Mr Man alleged that on 2 March 2022, whilst working in the Workshop, he contracted COVID-19. He subsequently filed an employee compensation application on 3 January 2024, claiming personal injury arising from this alleged workplace infection. On 19 November 2025, the respondent, the Secretary for Justice on behalf of the Director of Electrical and Mechanical Services, applied to strike the claim out under Order 18, rule 19 of the District Court Rules, arguing it disclosed no reasonable cause of action, was frivolous or vexatious, and amounted to an abuse of process.
At the first hearing, the Court directed supplemental submissions on a question neither side had addressed: whether contracting COVID 19 can be an “accident” under ECO section 5(1), and adjourned the hearing for further argument.
Key arguments and evidence
The three principal grounds advanced by the respondent for striking out were that: (i) Mr Man failed to prove infection in the Workshop or to exclude community transmission, (ii) he failed to establish medical causation between COVID 19 and his alleged back pain and stiffness, and (iii) his post incident earnings showed no diminution of earning capacity.
The respondent's central argument was straightforward: there was simply no evidence, medical or otherwise, that Mr Man’s COVID-19 infection was contracted whilst he was in the workplace.
Crucially for contemporaneous reporting, EMSD’s records stated that Mr Man did not initially report the infection as work related, such that his supervisor did not process it under work injury procedures. He was dismissed for misconduct on 29 March 2022 and only on 18 July 2022, more than three months later, did he first submit a work injury notice asserting he had contracted COVID 19 in the workplace. The court reviewed Mr Man’s pleadings, his opposition affirmation with exhibits and his lengthy submissions, and noted material inconsistency between his pleaded case and the evidence filed which strayed into unrelated complaints. It was also common ground that he worked alone in the Workshop, did not interact with ward medical staff or patients during the relevant period, and conducted no maintenance work that might have heightened exposure.
The decision
The strike-out threshold under Order 18, rule 19 is well established. A claim will only be struck out in a plain and obvious case where the claim is bound to fail.
The key legal framework is section 5(1) of the Ordinance, which requires two causation links to establish the employer’s liability to pay compensation for personal injury by accident arising out of and in the course of the employment caused to an employee: (i) between employment and the accident (so that the accident arises ‘out of’ the employment), and (ii) between the accident and the injury (the accident must cause the injury), each to be proved on the balance of probabilities.
Applying those principles, the Court found that Mr Man had plainly failed to prove, on the balance of probabilities, that his infection arose out of and in the course of employment, and therefore struck out the employees’ compensation application as disclosing no reasonable cause of action and as an abuse of process.
Mr Man offered no evidence to show the infection source was the workplace and to rule out community transmission, and the available medical and administrative materials explicitly recorded that the infection source could not be ascertained. The fact of a same day positive rapid test and a respiratory infection diagnosis did not, without more, establish a workplace origin. The Court also took judicial notice of the global and local community spread of COVID 19 during the period and the consequent difficulty of attributing infection to a particular site absent strict proof.
Obiter: can COVID-19 be an "accident"?
Perhaps the more significant aspect of this decision lies not in the outcome itself but in the obiter statements made by the judge. The Court chose to address a question of wider interest that neither party had fully developed: Can contracting a virus amount to an "accident" under section 5(1) of the Ordinance?
Drawing on classic UK authorities, including Fenton v J Thorley & Co, Limited [1903] on the ordinary meaning of "accident" 1 , Innes v Kynoch [1919] on bacterial invasion as "injury by accident", and Pyrah v Doncaster [1949] on repeated bacilli "assaults" every time the applicant inhaled a tuberculosis germ, the Judge indicated a tentative view that COVID-19's invasion of the body can, in principle, satisfy the "accident" element.
Crucially, however, those authorities all proceeded on the basis that workplace origin was already established. Where that link is not clear, as Lord Birkenhead cautioned in Innes where the invading bacillus may be found "in the train, in the home or in the public house", a prudent court or tribunal will require strict proof that the accident arose out of and in the course of employment.
Takeaways
COVID-19 is not an “occupational disease” within the meaning of the Ordinance. Practitioners suggested early on in the pandemic that it could nevertheless be compensable as a "personal injury by accident. The Judgment now provides judicial support for that analytical route, while confirming that liability still turns on proof of workplace origin. The practical reality, as this case demonstrates, is that proving the employment nexus for a ubiquitous infectious disease will remain a difficult task. Claims for compensation under the Ordinance from contracting any virus are ultimately evidence-driven, and the Judge’s obiter statements brings the focus firmly back to the fundamentals of causation under the Ordinance and accident analysis.
The decision reinforces the importance of robust incident reporting channels, preserving contemporaneous records, and commissioning prompt workplace hygiene or environmental assessments by employers when an infection is alleged to be work-related.
For employers and employees alike, precise facts, timely records and cogent causation evidence will make or break a compensation claim under the Ordinance, particularly for infectious diseases. Where community transmission is prevalent, proving a workplace infection source will require specific evidence such as epidemiological tracing, environmental testing, medical materials that address source attribution, and/or clear exposure chain and timeline. Contemporaneous reporting, precise exposure narratives and objective corroboration will often be decisive.
It is also worth noting that disability discrimination claims linked to COVID-19 or long-COVID remain possible under the Disability Discrimination Ordinance, and will need to be considered alongside any employees compensation claim. Even where an employee’s claim under the Ordinance fails for want of proof of workplace origin, a parallel Disability Discrimination Ordinance claim arising from the employer's treatment of an infected or recovering employee may still be possible.
KWOK CHI MAN v SECRETARY FOR JUSTICE for and on behalf of THE DIRECTOR OF ELECTRICAL MECHANICAL SERVICES [2026] HKDC 395 – judgment available here.
1 As pointed out by Lord Macnaghten at Fenton v J Thorley & Co, Limited [1903] AC 443 [480]: “I come, therefore, to the conclusion that the expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed.”