No employer proof, no claim: HK court rules on workplace injury

A Hong Kong District Court recently dealt with an employment compensation claim that questioned when and how a worker can prove employment status when seeking injury compensation.

The case raised questions about workplace safety responsibilities and what evidence workers need to show they were employed at the time of injury.

The worker argued he regularly filled in for his friend at work, getting paid for each day he worked. He claimed his injuries occurred during one of these work shifts, but proving who actually employed him turned out to be a key issue in the case.

Background of the work arrangement

The case involved garbage collection services, where the worker, who was 29 years old at the time, occasionally worked as a truck attendant. He arrived in Hong Kong from India in 2017 and sought asylum, receiving a recognisance from the Immigration Department but was not legally permitted to work.

In his testimony, the worker said he filled in for his friend 4-5 times when the friend took leave, always working on the same truck (registration number PH2500).

His friend, who received monthly wages, calculated the substitute days and paid him HK$500 per day. The worker admitted in court that he never met the truck owner and didn't know who employed him.

Work accident and injuries

The incident occurred on 1 April 2018, when the worker allegedly slipped while getting off the truck at a garbage collection centre near Lockhart Road, suffering a serious head injury. During cross-examination, however, he said he couldn't remember what happened after 9am that day.

A legal executive from the worker's law firm brought forward police records that documented the incident. According to these records:

"An incident was reported by a passer-by that at No 492 Lockhart Road, Causeway Bay, a male fell from a garbage truck and was found bleeding at his nose and mouth, seemingly unconscious."

The truck driver presented a different version of events, stating:

"I disagreed that [the worker] was a casual worker standing in for the regular attendant... I had previously seen [the worker] once or twice on the street. On the day of the accident, I was giving him a ride to Causeway Bay for convenience. It was the first time that [the worker] had rode on the Truck."

Worker’s employment evidence to prove status

The case hinged on whether the worker could prove he was employed by the truck owner. The court noted:

"There is no contemporaneous evidence to support that [the truck owner] was [the worker's] employer at the material time. All that is relied upon is that the registration search of the Truck which revealed [the truck owner] as the registered owner of the Truck as at 1 April 2018. From the enquiries... with the Food & Environmental Hygiene Department, the Truck was not a vehicle registered under any of their contractors responsible for street cleaning or waste collection service in Wanchai."

The court dismissed the claim, explaining:

"[The worker] has plainly failed to discharge his burden of proof... [The worker] confirmed that he had never met [the truck owner] and did not know who was employing him at the time of the accident."

The judgment further clarified that while the driver admitted being employed by the truck owner:

"It is entirely possible that the driver and the attendant of the Truck were employed by different employers. Even if the attendant of the Truck was employed by [the truck owner], the court still has to be satisfied that [the worker] was an attendant employed by [the truck owner]. There is no evidence of this."

Worker’s compensation and lack of proof

Though the claim was unsuccessful, the court assessed what compensation might have been due based on medical evidence. The worker suffered significant injuries, including vision loss in his right eye, headaches, and neurocognitive impairment.

Had the employment relationship been proven, the court determined compensation would have amounted to HK$260,041.60 under the Employees' Compensation Ordinance.

The medical assessment showed the worker suffered a 26% permanent impairment, including complete vision loss in his right eye, which alone would have entitled him to significant compensation had he established his employment status.

This assessment followed the American Medical Association's Guides to the Evaluation of Permanent Impairment, which the Hong Kong courts use as a reference for injury assessment.