Legal Update – Is stress an injury: when does ‘psychiatric trauma’ amount to a workplace injury?

In the recent case of Chan Man Sau[1] (“Chan”), the District Court looked at whether ‘psychiatric trauma’ can be regarded as a workplace injury. We summarise the key points of the decision as to whether and what conduct can cause mental injury to an employee which is capable of constituting a workplace injury and in turn give rise to an employee’s compensation claim.

Relevant facts

Chan Man Sau (“Mr. Chan”) was a teacher at Elegantia College (the “School”). He commenced proceedings against the School, claiming work injury as a result of the following incidents:-

(i) a sharp corner of the signage to the male changing room scratched his head and caused bleeding as he retrieved an item from his locker (“the Head Injury claim”);

(ii) a colleague ‘criminally’ intimidated him by making remarks about ‘pranking’ and ‘killing’ him;

(iii) various students belittled him with strange looks and mocking comments which caused him to feel ‘enormous emotional pressure’;

(iv) an allegedly faulty office phone which caused him to feel ‘a lot of pressure and stress’ and ‘very concerned for his personal safety’ as colleagues were rendered unable to remind him to attend classes; and

(v) another colleague directed an emotional outburst towards him when trying to assist him with a computer issue, which caused him to become very ‘scared’ and ‘disrespected’ and ‘adversely affected his reputation’.

Court’s decision

Ultimately, the Court only ruled in favour of Mr. Chan for the Head Injury claim, but against him in respect of his other claims relating to mental injury.

However, in reaching its decision, the Court set out the following test relating verbal behaviour or conduct by an employer or other employees cause mental injury of an employee at the workplace:

English translation of original Chinese judgement[2]:

“… in discussions between employers and employees, if the employer uses inappropriate words, this canconstitute an ‘accident,’ but it must meet the criteria for ‘accident,’ in that the discussion’s contents must be ‘sudden and unfortunate’;”

“Whether or not the incident can constitute an ‘accident’ …depends on the way the said suspension or termination or employment or criticism of such took place… such conversations’ wording must necessarily be ‘abnormal, inappropriate’ and must be ‘sudden and unfortunate;” (underlined is our emphasis).

Implications for employers

Given the judgment in Chan, where the Court noted that certain inappropriate conduct (which is out of the ordinary) in the workplace can result in ‘psychiatric trauma’ constituting an injury at work, employers should be aware of their potential duties, obligations and liability in the relevant circumstances.

(1) Employer’s duty of care

Employers owe a general duty of care to ensure the health and safety of its employees at work[3].

In particular, if an employee seems emotionally stressed or vulnerable, the duty requires the employers to avoid causing psychiatric harm to employees, such as giving them more work than they can reasonably handle[4] and to take steps to protect them[5].

If inappropriate behaviour in workplace (whether by an employer directly or by other employees) can give rise to work injury as Chan suggests, it is possible that such incidents may also give rise to breach of this duty of care, which would result in further liability to the employer.

(2) Employer’s obligations

Given the decision in Chan, there may be cases where an employer will be required to notify the Commissioner for Labour about any ‘accident’ as it is required to do so under the Employees’ Compensation Ordinance (Cap. 282) (“ECO”), regardless of whether the accident gives rise to compensation liability[6]. Further, the employer may be legally prohibited from dismissing an employee for a certain period of time until after the assessment of any incapacity of the employee[7].

(3) Employee’s rights

For workplace injuries, employees have a right to compensation as corresponding to their deemed Loss of Earning Capacity (“LOEC”). The decision in Chan means that it may be possible for an employee to claim LOEC and employees’ compensation for mental injury at work, not only physical injury.

However, for such ‘psychiatric trauma’ claims, LOEC calculation may be unpredictable. It is noted that for physical injuries, the First Schedule of the ECO has a list of injuries with corresponding LOEC percentages but there is none for ‘psychiatric trauma’. This may make accurate calculation and prediction of LOEC and compensation amounts in respect of mental injury less certain[8].

Conclusion

Chan shows that mental injury can arise at work in the appropriate circumstances which may give rise to employees’ compensation issues. Employers should be familiar with their potential liability and obligations in this regard and seek legal advice in case of doubt.

Employers may also wish to refer to the Occupational Safety and Health Branch of the Labour Department made some practical recommendations to help prevent the occurrence of work-related psychiatric injuries including having regular discussions on improving the working environment and facilities and giving clear instructions about work.

To know more about the details and scope of the employer’s duties in respect of the health and safety of employees, please see our other article here.

If you have any questions, please contact Russell Bennett or Mark Chiu.

Russell Bennett

Partner | Email

Mark Chiu

Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

[1] Chan Man Sau v. 風采中學（教育評議會主辦）法團校董會 [2025] HKDC 1354

[2] Original Chinese wording: 在僱主與僱員的談話中，僱主若用了不適當的字眼，可構成 “意外”，但要符合“意外”的定義，談話的內容要是 “突然發生且不幸; ”決定事件能否構成“意外”時…關鍵是執行或處理該停職、解僱或批評事件的方式…該說話必須要是“不一般、不適宜的”，還要是“突然發生且不幸的”；再者，此等說話需導致該僱員受到心理傷害； (underlined is our emphasis)

[3] Jerry Chen v Whirlpool (Hong Kong) Ltd [2006] HKCU 11, citing Wilsons & Clyde Coal Company v. English [1938] A.C. 57

[4] Walker v Northumberland County Council [1995] I.C.R. 702

[5] Barber v Somerset County Council [2004] I.C.R 457

[6] Section 15(1A), Employees’ Compensation Ordinance (Cap. 282)

[7] Section 48(1)(a) of the Employees’ Compensation Ordinance (Cap. 282)

[8] The Court will generally consider “factual evidence as well as the medical evidence,” such as that from “lay witnesses, medical documents, and medical experts.”