“22. 在聯合報告中,雙方醫生專家同意以下事情:
(i) 本次意外引致原告人的下背軟組織受傷,加劇了原告人早前已存在的腰椎椎間盤退化。[I/D/193; D/194]
“He sustained back sprain during the fall, aggravating the pre-existing condition, resulting in temporary increased back pain and irritation of the left side L4 + L5 nerve root.”(黃醫生)[I/D/193]
“Dr Lam opines that the subsequent clinical picture and progress with treatment are consistent with significant soft tissue injury to the low back. There was gradual improvement but partial with various treatments. Dr Lam agrees with Dr Wong that the MRI scan findings were consistent with mild lumbar spondylosis with mild disc herniation causing narrowing of bilateral L4/5 lateral recesses and bilateral L4/5 neuroforamina.”(林醫生)[I/D/194]
(ii) 在觀看了由偵探顧問拍攝有關原告人日常生活的片段,雙方醫學專家同意原告人誇大了自己活動能力受影響的情況:
“The above observations suggested Mr Law habitually brought along a stick going out but his ambulatory capacity was essentially normal and he did not physically depend on the stick to walk. His performance was inconsistent with some of his subjective complaints and examination findings in this joint examination.”(黃醫生)[I/D/189]
“Dr Lam agrees with Dr Wong’s opinions that the surveillance recording suggests that Mr Law habitually brought along a stick going out but his ambulatory capacity was essentially normal and he did not physically depend on the stick to walk; his performance was inconsistent with some of his subject complaints and examination findings in our joint assessment.(林醫生)[I/D/194]
“Considering the surveillance recording and findings at the present assessment, on the one hand, there were many signs of symptom magnification / exaggeration - for instance, physically, certainly Mr Law did not need to rely on a stick for walking.”(林醫生)[I/D/194]
(iii) 除此之外,原告人亦誇大了自己的其他主觀病症:
“Considering the documented finding of neurosurgical clinic PWH in more recent years, the surveillance observations and the current clinical and radiological findings, Mr Law has probably exaggerated / overstated the continuity and severity of his low back pain. His claim of continuous leg cramping and inability to walk without using a stick are not substantiated. His urinary and bowel symptoms should NOT be related to the alleged injury. Our clinical findings suggested no definite lower limb neurological deficit. His subjective continuous severe back pain, in the absence of muscle spasm and presence of positive simulation tests for non-organic low back pain, is likely contributed to some extent by non-organic elements. ... In conclusion, his current subjective symptom are exaggerated, likely to be contributed by a combination of his pre-existing disc degeneration, and adverse non-organic psycho-social elements (such as litigation involved).”(黄醫生)[I/D/199]
“Dr Lam agrees with Dr Wong that Mr Law’s present subjective symptoms are magnified”(林醫生)[I/D/199]
(iv) 實際上,只有輕微程度的背痛是由本次意外引致:
“The aggravation effect of the alleged injury almost 4 years ago should have very little direct contribution.”(黃醫生)[I/D/199]
“It was documented that he had recovered well by the time he was discharged from orthopaedic clinic of UCH with only mild residue, which was largely background symptoms because of the pre-existing condition. He may have mild increased back pain and left leg numbness upon his background symptoms as a result of the alleged “accident”.” [I/D/200]
“As discussed above, based on the evidence available, surveillance recording, and finding at the present assessment; and discounting an element of symptom magnification / exaggeration, the contribution of the subject accident to the present residue pain / impairment in the low back is estimated to be mild.”(林醫生)[I/D/199]
“As assessed today, based on the present findings and findings on surveillance recording, there was probably still pain / impairment in the low back, with mild contribution by the triggering / aggravating effect of the subject accident.”(林醫生)[I/D/201]
(v) 原告人能夠繼續案發前駕駛的士的工作,工作能力只會有很輕微的降低:
“Mr Lam can return to work on his pre-accident job as a taxi driver as there was no lower limb neurological deficit detected... His work efficiency and capacity is mildly reduced as a result of his lumbar spine condition.”(黃醫生)[I/D/204]
“Dr Lam opines that Mr Law is able to return to his pre-accident job with very mild reduction in work capacity (eg May need more short breaks for rest or stretch after prolonged sitting / driving).”(林醫生)[I/D/205]
脊椎退化
23. 雙方醫學專家同意原告人有脊椎。在Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958一案中,法庭把意外前的退化對賠償的影響分為以下三類:
“When considering the effect of a pre-existing condition on an award of damages there are three possible scenarios. The first is where the plaintiff was almost certain to have gone through life unaffected by the condition. The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state. The third is where this would certainly have occurred at some stage in any event. In the first, the defendant would be liable for all damage caused. In the second it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life. In the third, clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.”
24. 雙方醫學專家大致上同意原告人的情況是Chan Kam Hoi一案中的第二類情況。[I/D/201-204]
25. 但雙方專家對原告人現時病情有多大程度是由於本次意外引致持有不同意見:
(i) 黄醫生認為原告人現時的病症只有1/3是由本次意外引致。假如沒有本次意外,原告人的脊椎退化亦會在2-3年內發展至現時情況:
“It is estimated for apportionment purpose that 2/3 of his current symptoms is contributed his pre-existing condition, and 1/3 is contributed by the injury sustained in the alleged “accident”. If the alleged injury did not occur, Mr Law is expected to develop symptoms similar to his present (non-exaggerated) condition within 2-3 years from the alleged injury.”(黃醫生)[1/D/202]
(ii) 林醫生認為原告人現時的病症有80% 是由本次意外引致:
“Dr Lam estimates that the category should be between category 1 and category 2; but as mentioned above, even if he eventually develops symptoms as a result of natural degeneration, but for the subject accidents, the condition is likely to be not as bad as his present state. For the sake of apportionment, Dr Lam estimates that for the low back, based on the evidences available, the subject injury should account for about 80% of the present impairment and disability in the back, the pre-existing degenerative changes should account for about 20%”(林醫生)[I/D/204]”