WOO WAI KUEN v. LIU SIU KEUNG ALEX t/a ALEX'S KITCHEN

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 489 OF 2000

________________________

J U D G M E N T

________________________

1. This is an application for compensation under the Employees' Compensation Ordinance.

2. The Respondent does not appear in the hearing and so there is no evidence to contradict the Applicant's case. I accept the Applicant to be an honest and truthful witness and so I find that the accident occurred in the course of her employment with the Respondent.

3. So far as quantum is concerned, the Applicant complains that she still suffers from pain in the lower back region when the weather changes. She cannot lie flat and experiences numbness of both big toes while walking.

4. The injury suffered by the Applicant is a non-scheduled injury and the Applicant is not relying on the "special circumstances" in section 9(1)(a) in assessing the compensation for permanent partial incapacity. In such case, the court has to assess the loss under section 9(1)(b). In the case of Tang Shan-chan v Wealthy Construction Company Limited (unreported) CACV No. 58 of 2000, Rogers JA mentioned that the court should not rely on the assessment made by doctors in assessing the compensation under section 9. In such circumstances, the court can only rely on the guidelines listed in section 9(1)(b) in assessing the compensation.

5. In my judgment, the permanent partial incapacity suffered by the Applicant is relatively minor and is certainly less serious than the loss of one phalanx of the ring finger (see item 25 of the first schedule). I therefore agree with the assessment made by the Assessment Board and assess the Applicant to have suffered a 2 per cent loss of earning capacity under section 9.

6. Miss Wong for the Applicant also submits to the court that the Assessment Board has not taken into account the numbness of the toes in assessing the loss of earning capacity. However, there is no evidence to show that such injury was caused by the accident itself.

7. The Applicant was aged 39 at the time of the accident and her monthly income by that time was $5,500. She was granted sick leave from 29 September 1999 to 11 November 1999. In such circumstances, the quantum of the Applicant claim can be assessed as follows:

I therefore grant judgment accordingly.