Oak Hyun Jo v Ross Gregory Turton [1992] ACTSC 53 (29 May 1992)

SUPREME COURT OF THE ACT

OAK HYUN JO v. ROSS GREGORY TURTON
No. SC 44 of 1988
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Damages - Assessment - Personal injury - Motor vehicle accident - Lumbar spine - Fusion - Post traumatic stress disorder - Chronic pain syndrome - Exaggeration of symptoms - No issue of principle.

HEARING

CANBERRA
29:5:1992

Counsel for the Plaintiff: Mr R. Mildren

Instructing Solcitors: Snedden Hall and Gallop

Counsel for the Defendant: Mr L. Morris QC and Mr P.R. Garling

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff for $325,682.
2. The defendant to pay the plaintiff's costs.

DECISION

This is the assessment of damages for personal injury received by the Plaintiff in a motor vehicle accident on 2 July 1986.

2. The plaintiff was born in Korea in 1953. She was educated there, graduating from a University of Art. She married in 1977, her son was born in December 1977, and in 1981 she was divorced in Korea.

3. She came to Australia with her son in December 1982 and after some months obtained employment first as a waitress and then as a cook in a Korean restaurant in Canberra. After working at a Chinese restaurant and as housemaid at the Lakeside Hotel, in March 1986 she obtained employment as a milkbar assistant at the Easy Done Gourmet in Canberra.

4. On 2 July 1986 she was crossing Marcus Clarke Street on her way to work on a pedestrian crossing when a car struck her on the right hip, knocking her to the ground. She did not lose consciousness. She was taken by ambulance to Royal Canberra Hospital where x-rays were taken and she was kept for some time for observation before being sent home.

5. Two days later she was feeling a lot of pain in her neck and returned to the hospital where more x-rays were taken and she was given a collar.

6. About five days after the accident, on Monday 7 July, she returned to work. She thinks she was unable to finish the full day, and the next day, on 8 July 1986, she consulted Dr Turtle, a general practitioner. He notes that initially her symptoms were worse in the neck and left shoulder, with lesser pains in the left lower rib cage, low back and right hip. He prescribed rest, physiotherapy and pain killers.

7. The neck pain settled gradually with the use of the soft collar and physiotherapy. The shoulder pain, due to capsular strain, and the rib pain, due to bruising, both also settled.

8. As those symptoms improved the low back and right hip became more noticeable and debilitating. Dr Turtle referred her to Dr Brook, rheumotologist, who first saw her on 1 August 1986.

9. In examination Dr Brook noticed that she rose normally from a chair but limped as a result of pain in the region of the right hip. She was tender over the trochanteric region, especially the posterior, and tender over the lower lumbar spine and upper sacro iliac region. He noted that the x-rays taken at the Royal Canberra Hospital did not show any abnormality. She was anxious to get back to work because she was a solo parent with a child of 8 1/2 years, and she claimed that she had to support her brother who had also come from Korea.

10. She went back to work during August but continued to suffer discomfort. In late August a CT scan was performed, which Dr Brook reported as showing marked diffuse posterior bulging of the disc at L4-5, probably embarrassing the nerve root on the right. Dr Brook's diagnosis was one of mechanical low back pain due to indirect injury to the disc at L4-5 and soft tissue pain over the trochanter on the right due to direct injury in the motor vehicle accident. He attempted to treat the trochanteric pain by injection of local anaesthetic. That was of transient benefit only.

11. On 10 October 1986 he admitted her to Woden Valley Hospital and performed an epidural injection at L4-5, but this did not help either the pain in the back or the right leg. When he saw her again on 27 October 1986, he suggested that she wear a corset.

12. He comments in his report of 22 December 1986 that her description of the main disability, that is, pain which increased after she had been standing for any length of time, was typical and he accepted the level of disability as she described it, although no objective tests were made.

13. Over the rest of 1986 and the early part of 1987, she attended physiotherapy, took the medication prescribed by Dr Turtle, and used a Tens machine. She did not improve, so Dr Turtle referred her to Dr Chandran, neurosurgeon, who saw on 6 April 1987.

14. Initially he advised a program of exercises, swimming and a corset. He saw her again two months later. There had been no improvement and he therefore discussed with her further investigations with a view to considering surgery. A lumbar radiculogram showed a protrusion of the L4-5 disc with nerve root compression. Dr Chandran therefore recommended an operation, to which the plaintiff consented, and on 17 September 1987 at John James Memorial Hospital, Dr Chandran performed an L4-5 interbody fusion and decompression of the nerves.

15. She spent a week in hospital. Dr Chandran noted that the post operative recovery was uneventful, except for the reluctance of the plaintiff to mobilise in the usual fashion. She needed a lot of encouragement and seemed to have a low pain threshhold. She was quite apprehensive about walking. Her evidence was that she performed the walking exercises as directed and her description of the results of the operation were that her low back pain was worse than before the operation, but the pain on the right hip side was much better than before the operation. She said that the rest of her symptoms remained the same.

16. Dr Chandran reviewed her on 27 November 1987 and 2 February 1988. She was complaining of stiffness in the back and numbness in the legs, but he could find no neurological deficits to explain the numbness. He referred her to the Rehabilitation Unit at Woden Valley Hospital, where she attended twice a week from about the middle of February 1988. The treatment consisted of physiotherapy and hydrotherapy and she was given a full corset. She did not find the treatment particularly helpful.

17. In September 1988 her solicitors referred her for an opinion to Dr Vote, an orthopaedic surgeon. She told him that her general health was good but that her main problem was back ache, and to a lesser extent, leg pain. On examination he noted that she walked slowly holding her spine stiffly. She was wearing a lumbar corset. Her movements, he said, were grossly restricted to approximately one quarter of normal, but he did not specify which movements.

18. He examined a recent scan, which indicated to him that the fusion was probably not solid, as the vertebral margins were still quite apparent and there had been no facet joint fusion. He accepted her complaints as being genuine. He suspected that the source of her constant spinal discomfort was movement at the fusion site. He suggested that a further, different, operation be considered.

19. It was about at this time, namely on 19/21 September 1988, that the segment of video tape was recorded that will be discussed later in these reasons.

20. Dr Vote saw her again about a year later. There had been little change in the condition, as she reported it to him. He examined the results of a NMR scan. That test showed quite pronounced scarring at the operative site involving the nerve roots at the L4-5 level. He thought that this in itself could be a cause of chronic back pain. He was also still concerned that the fusion was not solid, and he sent the x-rays back to the radiologist for further comment. The radiologist, Dr Ho, interpreted the scan as showing that the fusion was solid. He therefore thought it reasonable to ascribe the plaintiff's chronic discomfort to epi and peri dural scarring. With such a diagnosis he did not think that any further surgical intervention would be of great value and could only suggest the injection of epi-dural steriods.

21. On 28 September 1989 Dr Ho reported to Dr Turtle that the fusion of the L4-5 segment was solid. He also confirmed that he observed changes of epi-dural and peri-neural scarring.

22. Dr Vote gave evidence and was cross-examined. He had also seen the plaintiff on 6 November 1991 and continued to make enquiries about the radiological evidence. That evidence included a more recent MRI scan. He thought, both on symptomatic grounds and radiological grounds, that it was probable that there had not been union established at the site of the operation. He gave evidence that such a non-union can be a very potent source of back pain.

23. He also thought that she had a secondary problem of an organic nature arising from the scarring at the operative site which could be considered arachnoiditis. That also is a known cause of back ache and referred pain and vague symptoms of paraesthesia in both lower limbs. However, in his opinion, the non-union at the graft site was more probably the major cause of her symptoms.

24. Dr Ho had again expressed his opinion to Dr Turtle on 1 August 1991. He remained of the view that the graft was well consolidated but saw evidence of clumping of the nerve roots at the operation site which he also thought suggested arachnoiditis.

25. In cross-examination Dr Vote specified that the movements that he had noted as having been grossly restricted were forward flexion, lateral flexion and extension of the spine. He was shown at least part of the video tape segment of the plaintiff's activities that had been recorded on 19 September 1988, about eight days before the plaintiff first saw him. He agreed that in the film she appeared to walk quite freely and squatted down on her haunches. She appeared to be pruning trees or bushes with long pruning shears and to carry the prunings and place them on a pile, moving quite freely. He conceded that the movements that he saw on the video were quite inconsistent with the presentation that she gave to him on the examination.

26. He thought that some explanation of the difference might lie in the fact that when he saw her it was at the end of a lengthy journey, but he also agreed that she had a major emotional problem. He conceded that she would be capable of doing light physical work such as that of a shop assistant, provided that she was able to sit or stand at will and was not required to do any bending and stooping. There was no attack during the cross-examination on his opinion that there was an organic basis for continuing pain, arising either from non-union or arachoiditis.

27. In her evidence the plaintiff claimed that she did not feel capable of going back to work during 1988 or 1989, because of the pain. She continued to consult Dr Turtle, who noted on 1 June 1989 that she had remained in chronic severe pain and was becoming increasingly severely depressed. He had prescribed anti-depressants as well as counselling. He tried treatment at Dr Cassar's clinic but laser and acupuncture treatment did not fulfill his hopes.

28. Dr Turtle gave evidence and was cross-examined. He also was shown the video segment taken in September of 1988. In his evidence in chief he said that nothing he observed would cause him to change his opinion about the plaintiff's disabilities.

29. During cross-examination he agreed that since her operation he had never seen her move as freely as she did in the movie. She had always presented consistently to him as being very greatly restricted in her movements. However he observed some signs of discomfort in the movie, and when asked to agree that she could certainly work as a shop assistant on the basis of what was perceived in the movie, he disagreed and responded, "The movie only shows us 30 minutes, and it does show that with an activity which was not one which is particularly likely to cause any significant aggravation, she nevertheless did show signs of being aggravated".

30. On 6 June 1989 she was examined by Dr Spira, consultant neurologist, on behalf of the defendant. He did not note any organic abnormalities but he observed a number of functional features. He inspected a number of CT scans, the myelogram and x-rays. He found it difficult to gauge the severity of the impact from the description of the symptoms given to him by the plaintiff, which he regarded as somewhat vague. He was certain that there was no demonstration of nerve root compression. He thought that there was an element of exaggeration on her part, and considered that, no only was she fit for work, but if she could return to it, it would help to make her better.

31. Dr Spira gave evidence and was cross-examined by telephone. He did not have the opportunity of observing any of the video tape sequences. However when asked how she presented to him in terms of freeness of physical movement, agility and gait on his examination, he replied that he did not observe any abnormality in those respects.

32. She was in fact video taped walking in Oxford Street on that same day. It was a leisurely walk, with many stops to look in shop windows, and she was surrounded by the usual number of pedestrians seen in a city street in the daytime. I could not detect any difference between her behaviour while being video taped and the behaviour she seems to have demonstrated to Dr Spira.

33. In cross-examination he agreed that he was not in a position to demonstrate that she did not feel pain. He said, "I didn't gain the impression that she was deliberately trying to deceive me with respect to her symptoms, but I did gain the impression that her symptoms were greatly over valued by her". He also gained the impression that there was some emotional component to the symptoms.

34. On the basis of what he saw of the pre operative x-ray, he did not really think that there had been sufficient indication for the fusion operation to have been performed. That difference of medical opinion, of course, does not matter to the plaintiff's case, as she no doubt acted quite reasonably in accepting the surgeon's advice to undergo it. He also agreed that there might have been some arachnoiditis, but he would have expected any symptoms resulting from that to be in the lower limbs rather than in the back.

35. In his report of 1 June 1989 Dr Turtle commented more than once on the plaintiff's increasing misery and depression. He referred her for treatment to Dr Veness, consultant psychiatrist, who first saw her on 13 July 1989. His report of 23 January 1991 sets out the dates of twelve consultations for treatment during the second half of 1989 and the whole of 1990.

36. His questioning indicated to him a series of symptoms that pointed to a serious depressive illness. He made a diagnosis of chronic pain syndrome with reactive depression. He prescribed an anti depressant drug. His opinion in Janury 1991 was that neither medication nor anything else have much changed her depression or her pain syndrome.

37. Early in 1990 she revisited Korea and there remarried a husband who had been chosen for her by her family and friends. He returned with her to Australia. In June 1990 she described him to Dr Veness as being very accepting, kind and considerate. By this time she had ceased taking analgaesics but was on a new anti depressent prothiaden.

38. She became pregnant. She felt ashamed that she had not been able to care for her son properly because of the pain and she was concerned whether she would be able to care properly for another baby. She was also advised that some of her medication might possibly cause harm to the health of the expected child. She therefore decided to terminate the pregnancy. Her relationship with her husband deteriorated.

39. The summary that Dr Veness gave in January 1991 included the following:

"Mrs Jo is in an extremely precarious emotional state. When I
first saw her in July 1989 she was very depressed and since
then her mental state has deteriorated. She feels helpless and
in a constant state of misery."
"After seeing her many times, for lengthy consultations, over
the past eighteen months I do not doubt that her complaints are
genuine. She is in a lot of pain and she is very depressed in
a state of despair and hopelessness. Suicide is a definite
danger in this patient and I suspect it is only because of the
supportive environment provided by her husband and son that she
has not made further attempts. Anti depressant drugs have not
created any improvement in her mental state and strong
analgaesics have very little effect on her level of pain."

40. The most important of the factors that Dr Veness felt were contributing to her condition was the pain and the disability she was experiencing following the accident. His prognosis was poor. He expected that she would need ongoing supportive psychotherapy and medical and psychiatric supervision for many years to come, just to survive. The cost of all this, he commented, over the years is likely to run into tens of thousands of dollars.

41. Dr Veness gave evidence and was cross-examined. He had most recently seen her about two weeks before he gave evidence. Because of her complaints of pain he conducted a physical examination and found that there was tenderness with muscle spasm in the lumbo sacral and thoracic area and in the muscles of the neck. He added that there were no exaggerated sounds or movements while he was examining her, in fact he thought that she was being rather stoic.

42. When cross-examined about the inferences to be drawn from inconsistent complaints on various examinations, he commented that her condition had fluctuated, and that sometimes when she was emotionally bad that would be translated into more pain and muscle spasm. At other times when was perhaps not as emotionally bad she would be a little more free of pain and muscle spasm. In effect the fluctuation in her physical state varied in accordance with her emotional state.

43. Dr Veness then viewed the video taped segment which showed the plaintiff pruning the shrubs at the front of her house. He agreed that he had never seen her move as freely as she did in the film while she had been consulting him. He commented that, "she's got mobility as we've agreed there, but, you know, that's not the same thing as having pain". He agreed that for the period of time shown in the film she would be capable of doing the job of a shop assistant, but commented that the consistency of the condition was the problem. He conceded the possibility that she was exaggerating her symptoms when she saw him.

44. Dr Turtle had also referred the plaintiff to a Jungian analyst, Sister Ann Moir-Bussy. She initially had twelve consultations with Sister Moir-Bussy between April and November 1991. Sister Moir-Bussy found the plaintiff to be suffering from extreme psychic distress resulting from the injuries she had suffered in the accident. The plaintiff had co-operated in the sessions of psychotherapy.

45. Her assessment in November 1991 was that the plaintiff needed long term psychotherapy to help her accept and live with permanent pain and disability, and to enable her to regain some self confidence. She also was seriously concerned about the state of her mental and emotional health. In 1992 she increased the frequency and the time of the counselling sessions.

46. Sister Moir-Bussy gave evidence and was cross-examined. She is continuing to care for the plaintiff, and over the period that she has been treating her has perceived some little improvement. Her evidence was that the plaintiff needs a lot more counselling in order to gain a sense of self identity and in order to be able to accept and cope with what had happened to her and with the pain she constantly feels. So far as she could assess the position that counselling should last for about two to three years.

47. In cross-examination she agreed that once the processes of litigation were over, she would expect her work to be more effective because it would be taking place in a better environment.

48. Although in forming her opinion it was necessary for her to rely upon what the plaintiff told her, she was not dealing principally with physical manifestations, which could be exaggerated, but with dreams. In her view it would be possible for a person to verbalise the dreams incorrectly but that it would be easy for a psychotherapist to detect that process if it were happening. She agreed that what had emerged in the course of the counselling sessions was a very complex matrix of influences on her mood and psyche but commented that the central theme all the way through had been "the pain".

49. In October 1990 the plaintiff's solicitors referred her for an opinion to Dr Corry, consultant in rehabilitation medicine. He had the opportunity to read reports of Drs Brook, Chandran, Vote, Ho and Turtle. He observed that her posture and gait were satisfactory, although her gait was a little slow. She had marked limitation of movement of the lumbar spine but her straight leg raising was reasonably satisfactory. There were no motor or reflex disturbances of the lower limbs but there was a decreased sensation in both legs below the knees.

50. She presented to him as a woman who was completely dominated by her pain symptoms and she exhibited multiple pain behaviour. In his opinion she was suffering from a chronic pain syndrome with psychological overtones. He commented that the type of passive dependent response that she showed to chronic pain is common to all cultural groups, but appears to be particularly common in migrant Asian and Indian women. He thought that there was very little that could be done to modify the pathological changes as a consequence of her injury and the surgery. He thought she appeared to have no significant work capacity and that unless her responses could be significantly modified that situation was likely to be permanent.

51. When asked during cross-examination whether he had accepted the plaintiff as describing accurately and truthfully the constancy of her problems and the unremitting nature of them he responded that, "Whatever physical problems she has have been compounded by the development of what is called a chronic pain syndrome, which is a situation where the presence, or the belief in the presence, of pain further inhibits their function".

52. When asked later about deliberate exaggeration he responded, "The problem of conscious exaggeration or magnification of symptoms is a difficult one. Certainly in people who suffer from chronic pain disorders there often are at times variable amounts of exaggeration or magnification of symptoms which are by and large probably unconscious, but at times may well be conscious as an attention seeking mechanism."

53. When asked about an identifiable difference in recorded behaviour, such as the shuffling and restricted walking gait that she demonstrated on many occasions to Dr Turtle and her free and unrestricted gait on other occasions, he commented, "Exaggeration. Now you then have to start saying, well why is that, and why does she present in that way every time she sees the doctor, because it is unlikely that she is thinking about compensation or litigation on those occasions. She is thinking more about getting pills, whatever it might be. So that there are a whole range of other factors that would affect the behaviour that she presents to that doctor, which is a pain behaviour. And it might be that she is seeking some sort of emotional support from the doctor; it might be all sorts of things."

54. He then observed the video tape of the plaintiff doing pruning in the garden. He did not concede that her presentation as recorded was quite different from the way she had presented to him, but he did comment that the plaintiff was doing more in the film than he would have anticipated from the notes that he had taken.

55. On 18 October 1991 Dr White, consultant neurologist, examined her at the request of her solicitors.

56. She presented to him as extremely anxious and tearful. The general physical examination was not remarkable. There was tenderness of the cervical spine but a full range of active and passive movement. He detected no evidence of muscle spasm. Examination of the lumbar and sacral spine revealed a total incapacity to make any active movements. Passive/leg raising was full. Reflexes were normal. His overwhelming impression was one of emotional distress, to the point of complete decompensation.

57. The radiological investigations showed findings that to him were consistent with the sort of neural scarring that can occur with arachnoiditis. There was no conclusive evidence of neurological disfunction arising from it, but that did not rule out the probability that there is organic pain related to the peri neural scarring. A continuance of any such organic pain he thought would only heighten the neurotic response. Nothing that he saw in the video taped sequences would cause him to change his opinion.

58. He also noticed in one of them what appeared to me to be significant, namely that on the occasion when the plaintiff was filmed as she waited for a bus she did not sit down and she did not stand still. She constantly moved about, at times with her shoulders hunched and her head bowed, seeming to me the very picture of misery.

59. Over the 1/2 August 1991 she underwent a functional and vocational assessment which had been arranged by the solicitors for the defendant. The assessment consisted of an examination by Dr McCarthy, a rehabilitation specialist, a functional assessment by a physiotherapist and a vocational assessment by a psychologist.

60. The physiotherapist noted that throughout the assessment the plaintiff frequently demonstrated:

1. Shaking of the body as if shivering violently.
2. Hyperventilation.
3. Shuffling gait with forward bending at the waist.
4. Bending at the neck and arms, grasping various upper body and
upper limb areas.

61. Because of her limited participation in the activities of the assessment, it was not possible for the experts to determine the degree of validity of the conclusions that could be drawn from it.

62. The psychologist, Mr de Giovanni, noted in his report that during his examination the plaintiff demonstrated signs of psychological distress and numerous signs of apparent physical discomfort. He also found himself unable to comment on her aptitude for retraining because of her unwillingness to co-operate during the psychological testing. He gave evidence and was cross-examined.

63. His report listed a number of occupations that the Centre's computer program produced as being suitable for a person of the plaintiff's capabilities. He agreed that those results were not valid overall because the plaintiff had not co-operated in the testing process. What he had observed of her physical capacity in the video taped sequences was consistent with ability to do the jobs listed. The effect of pain, and indeed the existence or non-existence of pain, was outside his area of speciality.

64. The rehabilitation specialist, Dr McCarthy, also gave evidence. In her written summary of findings, in answer to question, "Is there anything wrong with the person now?" she wrote:

"Mrs Jo has little objective evidence to support either a
severe muscular skeletal or neurological diagnosis.
Most of her physical and objective findings are non-organic in
nature.
A chronic pain syndrome is the most likely diagnosis. However,
given some of the inconsistencies we observed (see later in
summary), an alternative to the diagnosis of chronic pain
syndrome is that she has minimal disability, and that we have
been misled."

65. She listed a number of inconsistencies in the plaintiff's behaviour that had been observed during her presence at the assessment centre. On the basis of those inconsistencies she thought it probable that the plaintiff was attempting to mislead and that her disability was in fact minimal. Dr McCarthy had been informed by one of the centre's staff that the plaintiff had been observed to run. She commented that if in fact she was suffering from a chronic pain syndrome she would not have been able to run. That was a proposition with which Dr Corry would not agree. I accept Dr Corry's comment that a person could have quite severe pain behaviours but still maintain a reasonable level of physical activity, and one could still call it a chronic pain syndrome.

66. On the defendant's behalf the plaintiff was also examined in 1988 by Dr Andrea and Dr Andrews, and in 1990 or 1991 by Dr Robbie, psychiatrist, and Dr Keiller, surgeon. The defendant did not lead any evidence or tender any reports from any of those doctors. Perhaps the more significant inference that is available is that Dr Robbie would not be able to say anything to cut down the force of the evidence given by Dr Veness.

67. However the defendant's general attack upon the plaintiff's case is based upon the lack of any real organic cause for her pain, the demonstrated inconsistencies in her behaviours, and the number of other factors contributing to her emotional state which are not connected with the accident.

68. I accept that the plaintiff has from time to time exhibited inconsistent behaviours. The picture that she presented in Court was in marked contrast to most of the video taped sequences. However I do not think that she was deliberately exaggerating for the purpose of financial gain. I am convinced by the evidence of Dr Veness and Sister Moir-Bussy, confirmed as it is by other experts such as Dr White, that her psychological disability is real to her. Under the tension of an appearance at court or at an assessment centre she dramatises and exaggerates her disabilities. Even though that behaviour may be to some extent conscious, it does not lead me to disbelieve her case or to place any less weight upon the evidence given by the medical experts called on her behalf.

69. While it is true that she has been under no grave financial pressure that would force her to go back to work, I do not think that she has stayed away from work in order to increase her compensation. I am persuaded that her chronic pain syndrome has disabled her from any useful occupation. I also doubt very much that completion of these legal proceedings on its own will lead to any great improvement in her condition.

70. In summary the original accident was not a particularly violent one so far as collisions between a motor vehicle and a pedestrian are concerned. It did in fact damage her spine and she came to operation. The tests that have been done do not enable it to be said with certainty whether fusion has been complete, and whether because of an incomplete fusion, or because of peri neural scarring, she has continued to suffer pain for which there is an organic basis. Her psychological makeup, and her capacity for dealing with that pain has been such that the results upon her have been devastating. The probabilities are that she will not return to work.

71. She is now aged 39 years. For her pain and suffering I would award $60,000, of which about $20,000 relates to the future.

72. For interest on the past component of that I award $6,000.

73. It follows that I allow the whole of the amount claimed for past loss of income, which on that basis is agreed at $70,182.

74. The out of pocket expenses are agreed at $23,257, and were paid by the compensation insurer.

75. The Fox v. Wood component is agreed at $6,243.

76. No interest is awarded on these items.

77. The evidence does not disclose any services rendered by the plaintiff's family that it would have been reasonable to pay for, and I make no award, past or future, based on the principles in Griffiths v. Kirkemeyer.

78. It is clear that the plaintiff will continue to need medical, psychiatric and counselling treatment, intensely for some years, and then, hopefully, with less intensity but nevertheless continuing for the forseeable future. I do not think I should approach the question on the basis that she will probably need hospital treatment. That is no more than a possibility.

79. Also, it is on the cards that the treatment will eventually be of benefit to her, and she may even be able to return to some form of light work. I agree that what prevents her from doing any at present is not so much her physical condition, as her emotional state.

80. There are a number of imponderables about the cost of future treatment. For example, Dr Veness contemplates consultations that might number between 30 and 100. Doing the best I can, I assess the present value of the cost of future consultations with Dr Turtle, Sister Moir-Bussy, Dr Veness and health club fees at $10,000.

81. For calculating the loss of future income earning capacity, the starting point is a present net loss of the order of $274.00 per week.

82. The present value of that sum for 20 years at 3 percent is $215,815.

83. Because of her language and cultural difficulties she would be greatly restricted in her capacity to earn income even by the back pain for which there is organic reason.

84. Even if I take a hopeful view of her psychological future, I do not think that there is anything more than a possibility that she will return to work, especially work that would earn her the same amount of money as she could have earned uninjured. But the possibility remains that she might eventually get back to some income earning activity.

85. Taking that possibility into account together with the normal vicissitudes I would discount the capital sum by 30 percent.

86. I therefore award the rounded off sum of $150,000 for loss of future income earning capacity.

87. The total award is therefore made up as follows:

Pain and suffering $60,000
Interest 6,000
Past loss of income 70,182
Out of pocket expenses 23,257
Fox v. Wood 6,243
Future treatment 10,000
Future loss of income 150,000
Total $325,682

88. I direct the entry of judgment for the plaintiff for $325,682.

89. Unless some reason to the contrary appears I propose to order that the defendant pay the plaintiff's costs.