Case highlights proper practices and insurance for all workers, including casual hires
A District Court in Hong Kong recently dealt with a worker's compensation claim for injuries sustained in a workplace fire. The case centred on a former bar manager who had taken on casual construction work due to pandemic-related job loss.
The worker argued that despite the brief nature of his employment, he was entitled to compensation under the Employees' Compensation Ordinance for severe burn injuries suffered on his first day on the job.
The case raised important questions about employment status for casual workers and the calculation of compensation in situations of extremely short-term employment.
Before April 2020, the worker had been employed as a bar manager. However, due to the COVID-19 pandemic, his employer suspended the bar's operations, leaving him without income. On 21 December 2020, he was introduced to a new employer who hired him as a casual worker at a construction site in Shum Shui Po.
The terms of employment were straightforward: the worker would earn HK$700 per day, with a minimum commitment of two days.
The employer provided all necessary tools and equipment, set work hours from 10am to 6pm, and gave specific instructions on how to affix soundproofing sponge to walls.
On 22 December 2020, the worker's first day on the job, a fire broke out at the worksite around 5pm. The worker inhaled excessive smoke, was poisoned by carbon monoxide, and suffered severe burn injuries covering 23.5% of his body surface area, including his face and limbs.
The worker's recovery was extensive. He spent over a week in intensive care at Princess Margaret Hospital, followed by multiple surgeries and skin grafts.
Even after his discharge on 28 January 2021, he faced ongoing challenges. In April 2021, doctors diagnosed chronic unstable wounds over his upper limbs, complicated by multiple contractures at his elbows, wrists, and finger joints.
From February to November 2021, the worker attended 42 sessions of occupational therapy at David Trench Rehabilitation Centre. He also underwent additional surgeries, including scar release and skin grafting at Queen Mary Hospital in July 2021, followed by laser treatments for hypertrophic scars.
In total, the worker was granted 675 days of sick leave, spanning from the day of the accident to late 2022.
A key issue in the case was establishing whether an employer-employee relationship existed. The court applied principles from previous cases, including Poon Chau Nam v Yim Siu Cheung [2007], adopting an "overall evaluative-impressionistic approach" to determine the nature of the relationship.
The judge stated: "I find that there was plainly an employer-employee relationship between [the worker] and [the employer]."
This determination was based on several factors, including the high degree of control exercised by the employer, the provision of all tools and equipment, and the lack of financial risk or profit opportunity for the worker.
The court faced challenges in calculating compensation due to the short duration of employment. Instead of using actual earnings, the judge had to consider a "notional" worker's earnings as per section 11(2) of the Ordinance.
The judge said: "I am unable to find that the 'notional' worker who was in [the worker's] situation within the meanings of section 11(2) of the ECO was able to work 26 days a month during the 12-month period before the Accident took place."
After considering various factors, including the worker's background, market rates for casual workers, and the economic impact of COVID-19, the court decided that a "notional" worker in this situation would have worked 22 days a month at a daily wage of HK$700.
The court also had to adjust the compensation for periods beyond 12 months after the accident, as required by section 11(1A)(b) of the ECO. This involved applying a 3% increase based on the Consumer Price Index (CPI) for the period from December 2020 to December 2021.
The court awarded the worker a total compensation of HK$459,032.13, broken down as follows:
The judge noted: "Had [the employer] procured insurance coverage and/or compensated [the worker] in accordance with the provisions of the ECO, it would not have been necessary for the Fund to participate in the present proceedings."
