HK court deals with short-term worker who suffered workplace injuries
A District Court in Hong Kong recently dealt with an employees' compensation case involving a worker who suffered injuries after working for less than a week.
The case presented challenges for determining appropriate compensation when employment history was extremely limited, raising fundamental questions about how courts should calculate earnings for very short-term employees.
The worker argued he would have been required to work every day without rest days, claiming his employer's staff had told him they wanted him to work daily.
He maintained that despite working only days before his accident, there was sufficient evidence to establish his potential monthly earnings based on his brief employment period.
The worker also sought compensation for extended sick leave periods, arguing his injuries had caused chronic pain and weakness that significantly impacted his daily life.
Workplace accident claims and brief employment
The 44-year-old worker had started employment as a metal recycling worker on 29 January 2020 at a warehouse in Yuen Long.
There was no written contract of employment, but the employer's legal filings confirmed the employment relationship was not disputed.
Just five days into his employment, on 3 February 2020, the worker was instructed by a foreman to climb a wooden ladder to clear metal scrap from inside a processing machine.
The accident occurred when the machine was suddenly turned on while the worker was climbing down from the ladder. As the court noted: "the vibration from the machine caused the ladder to tip over. [The worker] thus fell from the ladder and landed on the ground."
The worker sustained injuries to his upper limb, left shoulder, left hip, calf, right wrist, left wrist and elbow. Despite discouragement from workers on site, he immediately called for ambulance services.
The case became complicated because the employer had no valid workers' compensation insurance policy in force at the time of the accident.
This meant the Employees Compensation Assistance Fund Board (ECAFB) had to join the proceedings under section 25A(a) of the Employees Compensation Assistance Ordinance to contest the compensation amount.
Medical records showed the worker was sent to the hospital at 10:40 am with complaints of pain over his left shoulder, elbow, wrist and hip, and he was hospitalised until 6 February 2020.
Calculating earnings for short-term employees
The central challenge was determining the worker's monthly earnings when he had worked for less than a single calendar month.
The Employees' Compensation Ordinance (ECO) provides two approaches under sections 11(1)(b) and 11(2).
The worker's legal team argued he could have worked 30 days each month, claiming the employer's staff told him they wanted him to work every day.
However, the ECAFB argued the worker could have worked at most 22 days a month.
The discrepancy in evidence was stark. The worker maintained he had worked six consecutive days since starting employment, stating in his witness statement that "he was required to work every day without any rest day and he accepted this arrangement."
However, the employer's List of Earnings filed by their solicitors indicated the worker had worked only two days.
The employer's legal documents stated the worker "would only work when he was available" without indicating any specific number of expected working days per month.
The court examined relevant case law, particularly Or Wing Ming v Ho Bing Chi, where the Court of Appeal addressed similar calculation difficulties. The court noted:
"When a worker who is paid a daily wage has been employed for less than one month, there is simply no basis for ascertaining the amount of work that his employer assigns to him, and sheer speculation on this will lead to unfairness."
The judgment emphasised that section 11(2) was specifically designed to address situations "where by reason of the shortness of the time during which an employee has been in the employment of his employer... it is impracticable to compute the rate of remuneration of such employee at the date of the accident."
Assessment of worker credibility in compensation
The court's assessment of the worker's credibility became pivotal in determining the final award.
The worker's background showed inconsistent employment patterns - he was previously a medical doctor before migrating to Hong Kong and had worked in various trades, including decoration and solar panels, since 2019.
However, there was minimal documentary evidence supporting his employment history before the accident.
The worker's only available tax return from 2017/2018 showed he had worked as a salesman for three months, earning HK$30,000.
The court observed that "he failed to show a consistent employment record and objective evidence suggested he was unemployed for years before the Accident." During cross-examination, the judge found the worker's behaviour concerning.
The judgment stated: "[The worker] displayed an evasive and defensive manner even to some most simple questions put to him. He was in bare denial to every allegation put to him even when some indisputable documentary evidence was shown to him."
The court's credibility finding was decisive: "[The worker] was not a reliable witness and inclined to exaggerate his evidence, and I was unable to accept his evidence without giving a pinch of suspicion."
This assessment influenced both the earnings calculation and the determination of appropriate sick leave duration, with the court taking a more conservative approach to the worker's claims about his working capacity and injury severity.
Medical evidence in compensation determinations
Expert medical evidence played a crucial role in determining appropriate compensation. The single joint orthopaedic expert found that the worker suffered from a moderate degree left hip contusion injury, a mild degree left shoulder injury, and minimal left elbow and wrist contusions.
He agreed with the Employees' Compensation Board's assessment of 2% whole person impairment for the left shoulder and left hip injuries.
However, the orthopaedic expert questioned the extent of the worker's ongoing complaints, concluding that "the soft tissue injury sustained by [the worker] over his left shoulder and left hip should not have caused him the pain or disabilities as alleged."
The expert suggested the worker's complaints were "likely a form of psychosomatic pain or somatic manifestation of his psychiatric illness, alternatively, a symptom of magnification or exaggeration of disabilities."
The psychiatric expert diagnosed adjustment disorder mainly caused by the accident and assessed 1% permanent impairment. The court had to resolve a disagreement between the parties about the duration of psychiatric sick leave.
The ECAFB argued for 90 days, while the worker's legal team sought 180 days. Given concerns about the worker's credibility, the court noted: "I do not consider [the worker] a credible witness, demonstrated by his bare denial in almost every aspect of documented medical records."
Final compensation award and calculations
The court applied section 11(2) of the ECO, finding it impractical to compute the worker's earnings under section 11(1)(b) due to insufficient, reliable evidence.
The judge explained: "the evidence adduced to this court and when considered in the context of the overall factual matrix of this case has not rendered it practicable to apply section 11(1)(b) of the Ordinance."
Using Census and Statistics Department data, the court noted the average daily wage for operatives was HK$740 with 26 standard working days per month. However, the judge adjusted these figures based on industry context, stating:
"Considering the difference in the job natures of a construction worker and metal recycling worker, I am of the view that those working in the former industry has more fluctuating job opportunities when comparing to the recycling industry."
The court determined 23 working days per month would be appropriate, representing "working 5 days a week with an additional half day on alternate Saturdays."
The court calculated monthly earnings using a daily wage of HK$850 for 23 working days, resulting in HK$19,550. For sick leave duration, the court accepted 285 days for physical injuries but limited psychiatric sick leave to 90 days.
The final compensation totalled HK$223,675, comprising HK$28,152 under section 9 for permanent loss of earning capacity, HK$195,500 under section 10 for temporary incapacity, and HK$23 for agreed medical expenses.
The worker was also entitled to interest at half judgment rate from the accident date to assessment, then at judgment rate until full payment.
