A ladder fall left a worker permanently injured, but his compensation claim hit a major obstacle
A District Court in Hong Kong recently dealt with a personal injury case involving a worker who suffered serious injuries after falling from a ladder while performing work duties in March 2020.
The worker argued he had lost his ability to earn at the same level as before the accident, claiming he worked an average of 26 days per month at $1,300 daily before the fall left him with permanent limitations.
He said he could no longer perform his previous duties and had been forced to take significantly lower-paying work as a delivery driver.
The case raised questions about how courts assess workplace injury damages when workers lack complete documentation of their earnings, particularly for those employed on a casual basis.
What happened in the workplace accident
On 14 March 2020, the worker, then 45 years old, was standing on a ladder using a hand grinder to cut a metal canopy when a piece of iron fell and struck the ladder. He lost his balance, fell, and landed on both heels.
He could not stand independently and was taken by ambulance to Queen Mary Hospital, where X-rays revealed fractures to both heel bones.
The employer, who operated a sole proprietorship trading as an engineering company, did not file a notice of intention to defend. Judgement on liability was entered against the employer on 9 August 2023, leaving only damages to be assessed.
By February 2024, the court deemed the employer had elected not to file documentary evidence or witness statements.
According to records, the worker underwent open reduction and internal fixation surgery on both heel bones on 16 March 2020.
He was discharged four days later with outpatient follow-up appointments. His recovery involved extensive physiotherapy starting from 27 July 2020, when medical records showed he was "a sitter indoor and wheelchair bound outdoor."
By 16 November 2020, he had progressed to being "able to walk unaided with a mild limping gait." He was granted sick leave totalling 407 days and attended 11 sessions of occupational therapy for work rehabilitation.
Medical assessment showed permanent limitations
On 21 May 2021, the Employees' Compensation Board determined the worker had suffered from 8% loss of earning capacity for "bilateral calcaneal fracture resulting in residual bilateral foot pain and ankle stiffness." This assessment was maintained at a review held on 20 August 2021.
A joint medical examination was held on 26 April 2022 by two experts—one retained by the worker and another retained by the employer.
The court noted that "it is fair to say that the medical experts do not differ materially in their assessment."
At the examination, the worker reported bilateral heel pain and stiffness that was "aggravated by weather change and prolonged standing (1+ hours)," as well as "pain during walking, especially when lifting weight," requiring him to take "analgesics 10 times a month to relieve pain."
Both medical experts agreed in their joint report that "the injury sustained by [the worker] was compatible with the diagnosis of fracture of both calcaneum" and that "the injury should be caused by the Accident and there is no evidence of pre-existing pathology in [the worker's] heels."
According to the joint medical report, "both experts agreed that due to [the worker's] residual symptoms, he would have difficulties in resuming his pre-accident job.
He should be able to take up lighter jobs or jobs with moderate manual demand, such as a cashier, a security guard, a store assistant, a petrol station attendant, etc."
The experts assessed the worker's "impairment for whole person and loss of earning capacity" at 10% and 8% respectively.
Pre-accident income disputed without documentation
The worker said that before the accident, he worked as a renovation worker earning $1,300 daily and working an average of 26 days per month.
Although his revised claim calculated pre-accident income based on 22 working days per month, he admitted in court that his "claimed number of working days per month is only an estimate."
The court identified that "there is no documentary evidence at all in support."
The cheques issued by the employer were "for payment of [the worker's] wages as well as reimbursement of expenses incurred."
However, the worker "is not able to explain or recall how much he received from the defendant was for his income, and how much was for the reimbursement of expenses."
The court also noted: "There is also no Mandatory Proficient Fund (MPF) statement or tax returns to corroborate the claimed pre-accident level of earnings."
Despite these documentary shortcomings, the court accepted the daily rate of $1,300 as reasonable based on Census and Statistics Department data for construction worker wages.
However, the presiding Master said: "However, as for [the worker's] claimed average number of working days per month, absent documentary proof and that he merely worked as a renovation worker on a casual basis (散工), I am only prepared to accept that he worked on average 18 days per month."
This yielded a pre-accident monthly income of $23,400, substantially less than the worker's claimed amount.
Post-injury earnings also lacked proof
The worker said he only started working as a self-employed delivery driver in September 2023, earning about $15,000 to $16,000 monthly.
The court noted that the worker "frankly admitted that there is no proof, as he was paid in cash. There is no MPF statement or tax returns to corroborate his claimed monthly earnings either."
Given the absence of documentary evidence, the court turned to data from the Census and Statistics Department, which showed the average monthly salaries for security guards and drivers.
The presiding Master said: "In the circumstances, absent corroborative documentary evidence from [the worker], I will take $16,845.47 [$15,071.43 + $18,619.50]/2], being the average monthly salary of a security guard and a driver as published by CSD, to be [the worker's] monthly earnings from 22 August 2021 to 23 February 2025."
In February 2025, the worker secured employment with a company as a delivery driver. His payslips showed he earned $22,746.48 and $28,558.69 for his first two months, which included salary protection for new employees.
The court accepted that his post-trial monthly earnings would be $16,600, comprising basic salary, delivery commission, meal and mid-shift allowance, and attendance bonus.
Court calculated damages across categories
For future loss of earnings, the court accepted that the worker "would have worked until 65 years old but for the Accident" and agreed that "the multiplier of 12.21 should be adopted."
The calculation compared the worker's pre-accident monthly income of $23,400 against his post-injury earning capacity of $16,600. Applying the multiplier and including Mandatory Provident Fund contributions at 5%, the court calculated future loss at $1,046,152.80.
The worker also claimed $250,000 for loss of earning capacity as a separate head of damages. The court found these arguments unpersuasive, noting: "There is no evidence to suggest that [the worker] may suffer further disadvantages in the labour market after his intended implant removal surgery."
However, the presiding Master said: "Nonetheless, having considered the injuries and residual symptoms of [the worker] as well as the experts' assessments on the impairment to the whole person and loss of earning capacity of [the worker], I accept that [the worker] will suffer a disadvantage in the labour market." The court awarded $50,000 under this head.
The presiding Master concluded: "I find that a fair and reasonable award for PSLA should be at $380,000 after taking into account [the worker's] injuries and treatment as well as inflation."
Final award totalled over $1.7 million
The court's total assessment of damages was $2,254,923.80 before deductions.
This comprised pain, suffering and loss of amenities at $380,000; pre-trial loss of earnings and Mandatory Provident Fund contributions at $692,691; future loss of earnings and Mandatory Provident Fund at $1,046,152.80; loss of earning capacity at $50,000; future medical expenses at $80,000; and special damages at $6,080.
There was no dispute that the worker had already received employees' compensation of $500,000. The presiding Master said: "I shall give credit to this sum."
After deducting the employees' compensation received, the final award came to $1,754,923.80.
