Wattam v Jorgensen [2012] ACTSC 111

(b) Pain and restriction of movement in right and left rotation, flexion and extension of neck and in upper back;

(c) Pain in the posterior aspect of the neck and between the scapula;

(d) Pain and restriction of movement in upper back and upper limbs;

(h) Restricted ability to carry out pre-injury employment as a logistics warehouse manager, particularly involving prolonged standing, sitting, keyboard work, bending, lifting and pushing of heavy equipment, including plasma televisions;

(i) Restricted ability to engage in pre-injury recreations such as driving, netball, running, caring for and lifting her two children;

(j) Restricted ability to perform household domestic duties including cleaning, cooking, shopping, washing, gardening and ironing due to pain in neck and upper back;

(l) Requirement for ongoing physiotherapy and massage to neck and upper limbs and to take pain relieving and anti-depressant medication.

3. At the date of the collision the plaintiff was employed by an organisation called Service Point Australia (Service Point) as a Logistics and Warehouse Manager. She commenced her employment with Service Point in December 2007 on a three month trial, with a salary of $60,000.00 per annum exclusive of superannuation. At the end of her three month trial, the plaintiff was offered, and took up, an opportunity in the Logistics Department of Service Point. She was employed as the Procurement Officer and a National Workforce Manager. She was managing a contract that Service Point had with Telstra to provide voice technicians around the country. In that role she managed 21 field technicians around the country. She would regularly meet with representatives from the Department of Defence and Telstra, and was also responsible for all of the procurement for the Service Point warehouse, including all the manual handling, and working with other teams to integrate the warehouse and logistics components.

4. In that role the plaintiff was responsible for the manual handling of equipment related to Service Point's offices, transferring it into the building and locking it up within their storage facilities. She was also obliged to communicate with others face to face, by telephone and email, including occasions when she had to fly to different states and attend meetings with Telstra representatives.

5. The plaintiff testified that immediately after the accident she was quite stiff and sore through her upper shoulders and neck area. She saw her general practitioner, Dr Southi, the following day. He diagnosed a whiplash injury, and prescribed exercise, Panadol and Neurofen. He suggested that the plaintiff's symptoms were likely to resolve in a matter of weeks. The exercises prescribed by Dr Southi did not alleviate the plaintiff's symptoms. She subsequently saw a second general practitioner, Dr Watson, about three months after the collision. Dr Watson referred her to a chiropractor, Dr Shane Collins.

6. The plaintiff commenced treatment with Dr Collins twice a week. She continued to undertake full time employment, despite the fact that the manual handling component of her duties would cause her neck to flare up badly. At those times she would see Dr Collin's three times a week instead of two.

7. Although the collision occurred in the course of a work journey, the plaintiff was initially reluctant to make a claim for workers' compensation. She was concerned that making a claim may have some impact on her employment prospects. She initially paid for treatment by Dr Southi and Dr Watson as well as the chiropractic treatment from Dr Collins. This changed in or around April 2009 when her manager Julie Howard spoke to her and told her that she (Ms Howard) could see that she (the plaintiff) was in pain. Ms Howard was concerned that the plaintiff was not getting the right treatment and recommended that she lodge a workers' compensation claim to make sure that she had a proper assessment and was obtaining appropriate treatment.

8. When the plaintiff lodged her application for workers' compensation, the workers' compensation insurer refused to pay for some treatment, and the plaintiff continued to pay for her own chiropractic treatment.

9. Symptoms in the plaintiff's neck became worse. During the course of a holiday in Brisbane in 2009 the plaintiff woke one morning unable to turn her neck at all. She immediately sought treatment by way of massage in Brisbane. She then returned to her medical practitioner.

10. In 2008 when the plaintiff saw Dr Watson he also recommended an exercise physiologist. That person recommended the plaintiff look at a series of exercises to strengthen and stabilise her neck. Unfortunately this program did not succeed.

11. In December 2008 the plaintiff was involved in another motor vehicle accident. The plaintiff was again driving a motor vehicle when another vehicle ran into the back of her car. Her symptoms flared up and she immediately sought treatment from her chiropractor. However, her symptoms decreased overnight so she simply continued with her ordinary treatment plan.

12. The plaintiff testified that after the accident in May 2008 she started getting headaches, which became progressively worse as she got stiffer through the shoulders. She would start to see little spots, like stars, and her vision would narrow to tunnel vision, at which time she would need to take migraine medication or she would be incapacitated. From time to time she was prescribed medication for her headaches, but found herself unable to continue taking some of the more effective medications whilst she was pregnant. Before she became pregnant in 2009 the plaintiff would suffer from headaches once or twice a week on average, depending on how much physical activity she undertook.

13. Throughout 2009 the plaintiff tried different treatments, including gym programs and medications to address her ongoing symptoms, until she found that she was pregnant in November or December of 2009. Many of the medications she had been taking up to that point she could not continue to take during pregnancy. Her symptoms changed throughout her pregnancy. The further the pregnancy went the less symptoms she was having, and her headaches became less frequent. However, within one to two weeks of her son being born she was again in extreme pain and returned to seek further treatments, and to see what medications she could take while breastfeeding.

14. Until the birth of her son in June 2010 the plaintiff was working full-time. Her employer did not have anyone prepared to take over her positions, so out of good will she offered to work as far into her pregnancy as she could. She planned on taking a couple of months off after the birth of her child, but at the request of her employer returned to work six weeks after her son's birth. At that time she had an agreement with her employer that she would work 20 hours a week from home. The plaintiff accepts that this return to work at 20 hours per week was for her convenience, and was not indicative of an inability to work longer hours due to her injuries. However, within a matter of weeks she was obliged to return to her workplace to train a new warehouse manager and complete a stock-take after the old warehouse manager resigned. After she trained the new warehouse manager the plaintiff continued working from home until December 2010.

15. During the period that the plaintiff returned to her workplace to train the new warehouse manager and complete the stock-take, she was required to do physical work. As soon as she returned to manual handling of goods, her symptoms increased.

16. The plaintiff testified that during the pregnancy her headaches decreased. She was able to control them with Panadol. After her son was born the headaches came back "with a vengeance". They became a lot more intense and frequent. As she was breast feeding she could not take the medication she had been previously prescribed for migraines, but was restricted to using Panadol.

17. The plaintiff testified that in late 2010 there was no physical reason why she couldn't work more than 20 hours per week. She discussed with her employer a return to work in December 2010, and they suggested a 30 hour per week trial to see how her symptoms progressed. The plaintiff found that the increase of 10 hours a week caused the same stiffness and soreness through her neck that she had previously experienced and she had to take pain medication. She stopped breastfeeding so that she could go back onto pain medication and return to work.

18. During this trial of 30 hours a week her employer offered her the opportunity to work in a project administration role. She accepted that offer. In that role there was a lot more administration duties but less manual labour. Her salary did not change with that move. Initially she found it difficult to cope with the extra hours, but eventually with the assistance of medication she was able to manage better. She found, however, that on those occasions that she exceeded 30 hours per week the migraines would return, she would be in a lot more pain and experience stiffness in the neck.

19. The plaintiff testified that she is subject to a work restriction of a seven kilogram weight-lighting restriction since her workers' compensation claim in 2009, and is also restricted to working 30 hours per week. She says that some days are better than others, and she now has a better idea of what sets off her pain. She can also tell when headaches are coming on, so that she can manage them a lot better.

20. Prior to the accident in May 2008 the plaintiff described herself as fit and healthy. She regularly played netball, three or four times a week. She also regularly went out and was an active person. After the accident she reduced playing netball, initially to one or two games a week. She testified that she continued playing netball after the accident with assistance from her chiropractor, Shane Collins. She was subsequently advised by a "rehabilitation person allocated to her workers' compensation case" that she should not be playing netball as it may hinder her recovery. Her doctor agreed that she should take a break from netball and see how the injury coped. She found that the symptoms did not get any better, and actually got worse, so she tried to resume playing netball. However her neck then stiffened up so much she could not move it the following day. Subsequently she has been unable to return to playing netball. The plaintiff testified that she was very disappointed about this as netball was the one recreation activity that she had away from her family and her employment.

21. The plaintiff, I am satisfied, is a career oriented person, who takes pride in her work and pushes herself to meet the demands of her employment, and her expectations of herself. She aspires to work as a project manager. Her current job description is Project Manager, a designation given to her position in April this year. Previously her position had been designated as Project Coordinator. When the designation of the plaintiff's position changed in April this year, her salary and duties remained the same. Project manager is a more responsible position than Project Coordinator, usually involving longer working hours and commanding a greater salary. The plaintiff testified that a project manager would be required to work 45-50 hours per week, which she currently cannot do because of her injuries.

22. The plaintiff is, I am satisfied, qualified by experience and qualifications to work as a project manager. She has a Diploma in Project Management obtained in 2011 and has worked with project managers consistently since 2007. The plaintiff gave evidence that she had been approached by a number of employers with a view to employing her as a project manager, but that these approaches did not progress after the plaintiff advised her potential employers that she could only work 30 hours per week. I accept that evidence.

23. The plaintiff testified that she made enquiries about the starting salary for a junior project manager, and that a salary of $120,000.00 per year could be expected. At the current time her salary is $105,000.00 per year.

24. The medications the plaintiff takes for her symptoms currently cost $25.00 per week. She also occasionally undertakes massage therapy. A massage session for her neck costs $75.00 for a one hour session, and she has attended between 10 and 12 of those sessions. She has also attended a number of half-hour sessions.

25. Gunther Brandsetter gave evidence on behalf of the plaintiff. He is a business analyst who previously worked for Service Point. In that capacity he worked closely with the plaintiff. Mr Brandsetter spoke very highly of the plaintiff's abilities and said that if he needed a project manager the plaintiff would be one of the first people he would ask to work for him. He spoke highly of her communication abilities, her work attitude and her people skills. He stated that during the time he worked with the plaintiff he observed that she was incapacitated and showed signs of being in pain. However, she did not complain and focused on getting the job done. Mr Brandsetter believed that a starting salary of $110,000.00 to $120,000.00 per year for a project manager in private enterprise was not unreasonable.

26. David Hebner, the plaintiff's partner, also gave evidence. He and the plaintiff attended school together, and he has been living with her since before the accident in 2008. He described the plaintiff as an active, energetic person prior to the motor vehicle accident. He specifically denied that the plaintiff had any problems with her neck prior to the accident. He testified that there had been an obvious change in her since the motor vehicle accident. He described her as continuing to be a hard working person, who does not like to complain, but it is clear that she is in pain. He stated that she becomes agitated and frustrated as a result of not being able to do the things that she used to be able to do.

27. Mr Hebner said that prior to the accident in 2008 the plaintiff undertook most of the domestic duties in the household. She would usually get dinner started, do the dishes, and also the vacuuming, mopping, sweeping, dusting, and cleaning. Mr Hebner thought that at that time she did approximately 75 per cent of the domestic duties. Since the accident things have changed in that he now undertakes 75 per cent of the domestic duties in the household.

28. In August 2010 Mr Hebner had two knee reconstructions, restricting him to a wheelchair for a period of time. As such his ability to assist in the household was severely restricted. At that time they employed a cleaner. Mr Hebner estimated that he now does approximately 10 hours per week more in the household than he did before the plaintiff suffered her injuries. In cross examination Mr Hebner agreed that with the arrival of their second and third children he would have expected to undertake more duties in the household in any event.

29. The plaintiff's father, Raymond Andrew Wattam, also gave evidence. He described the plaintiff as being very career oriented, with a strong drive to achieve the best that she can. He said that before the accident the plaintiff was very outgoing and played a fair amount of sport, especially netball. Since the accident she had given up netball and has a lot of pain at times. Mr Wattam had a stroke in 2006 and the plaintiff helped him do various chores around the house, but he now notices that the plaintiff is in pain when she undertakes those activities. Mr Wattam notes that the plaintiff also becomes more cranky than she used to.

30. Julie Howard, the former Corporate Services manager for Service Point, also gave evidence. She worked for Service Point for eight and a half years, until she resigned last December. In that capacity she knew, and worked with, the plaintiff. Ms Howard testified that she was aware that the plaintiff was involved in a motor vehicle accident on her way home from work in 2008. The plaintiff told her that she did not initially want to make a workers' compensation claim as she was concerned it might affect her reputation and career prospects. However, it became clear that the plaintiff was struggling at work with her injuries. Ms Howard described the plaintiff at that time as appearing drawn, showing signs of stiffness, and appearing to be in pain. She would, from time to time, see her stretching, and the plaintiff did not appear to be as happy as she was prior to the accident. Ms Howard testified that she spoke to the plaintiff about her workers' compensation entitlements, as a consequence of which the plaintiff made an application for workers' compensation.

31. Ms Howard was the plaintiff's supervisor for approximately 18 months. She described the plaintiff as "a doer", a person who gets the work done. She said that the plaintiff would push herself to get her job done, even if it caused her pain afterwards.

32. Ms Howard testified that she is aware of salaries paid to project managers at Service Point during the period she was employed there. She testified that Mr Gunther Brandsetter was paid between $130,000.00 and $135,000.00 per year, and that two contractors employed as project managers were each paid $180,000.00 per year. As part of her duties Ms Howard made enquiries, from time to time, about how much project managers were being paid in the ACT. She testified that a starting level for a project manager in the ACT would be approximately $120,000.00 per year.

33. On behalf of the plaintiff a report dated 1 December 2008 from Dr Tim Watson was tendered. Dr Watson saw the plaintiff on 28 August 2008 and noted the history of the plaintiff's involvement in a rear-end motor vehicle collision. She told him that following the accident she had a "slight burning pain" in her neck. After a few hours she started to feel significant neck and upper back pain. She indicated that she felt an "achy burning pain" to her neck and upper back. Dizziness and headaches were present later that day. The following few days she felt a feeling of pain and stiffness afflicting her arms, shoulders and mid back. Dr Watson felt that by the time he saw her on 28 August 2008 the plaintiff's neck and upper back symptoms had reached their maximum intensity and were quite debilitating. Cervicogenic headaches had been present the majority of the time after the accident, which had affected her ability to sleep and left her feeling quite fatigued. He noted that the plaintiff suffered mild mental health symptoms since the accident, including symptoms of low mood, interpersonal withdrawal, anhedonia, fatigue, unrefreshed sleep, insomnia, psychomotor agitation, poor concentration and irritability. He noted that over the following months he saw her only once and her symptoms remained stable with intermittent flare-ups. She was referred to therapy and prescribed medications to help with the symptoms.

34. The plaintiff told Dr Watson that she was having ongoing debilitating symptoms. She was finding it difficult to undertake gardening, cleaning, vacuuming, shopping, driving the car for 40 minutes, doing and hanging out the washing. Recreational pursuits such as attending friends' houses, going out to dinner, golf or tennis had been curtailed. At times some of those activities would trigger cervicogenic headaches. He noted that in recent times her ability to work and undertake home duties had improved significantly. At his examination on 28 August 2008 Dr Watson noted that the cervical spine was tender on palpation. Spasm and tenderness were present in the paravertebrals, trapezius and levator scapulae musculature. The cervical range of movement was extension 90 per cent of normal, left rotation 90 per cent of normal, flexion 90 per cent of normal, right rotation 95 per cent of normal, left lateral flexion 85 per cent of normal, right lateral flexion 75 per cent of normal. Thoracic movements were full. Dr Watson diagnosed a cervical spinal sprain of moderate severity, a thoracic spinal sprain of mild severity and an adjustment disorder with depressed mood.

35. Dr Watson provided a follow up report dated 11 March 2010. He confirmed that he had seen the plaintiff on a regular basis since his report of 1 December 2008. The plaintiff had undergone rehabilitation in an attempt to reach pre-injury capacity; however, she continued to have fluctuating symptoms predominantly involving ongoing spine pain. He noted that mental health issues had checked her progress over the last year. The main components of the plaintiff's treatment had been chiropractic therapy, medication, a gym program initially with an exercise physiologist, followed by a self paced gym program.

36. Dr Watson noted that during the previous 12 months the plaintiff had found work difficult although she had worked full-time. The plaintiff complained that when she sat or stood for any length of time, or undertook poor posture activities her symptoms would flare up. She found that very difficult as she very much enjoyed her work. The plaintiff had complained of constant pain and discomfort to her neck, discomfort to her upper back and lumbar regions, cervicogenic headaches, anhedonia, insomnia, fluctuating moods, fatigue and lack of motivation. The plaintiff had indicated that her functional capacity at home had improved slightly over the last 12 months. She found it possible, for a shorter period than before the accident, to undertake household duties such as cleaning, washing up, cooking and hanging out the washing. She was able to drive her car for up to 20 minutes, go out to dinner, watch movies and undertaking low impact recreational pursuits such as walking. However, if she did too much her symptoms flared up. Dr Watson noted that recreational pursuits such as netball, running and picking up her daughter were not undertaken as a result of her symptoms.

37. Dr Watson noted that an MRI of the cervical spine had occurred on 24 August 2009, with no abnormalities being detected. He examined the plaintiff on 26 February 2010 and noted that the plaintiff exhibited tenderness on palpation of the C2, C5, C6 and C7 spinous processes. Some residual minor tenderness of the L3, L4, L5 and S1 spinous processes was also noted. Some residual muscle spasm tenderness was evident in the paravertebral muscle groups. Also some residual tenderness in the traps and levator scapulae musculature was present. The plaintiff's range of movement was slightly reduced in the cervical spine. She was noted to have pain with bilateral rotation, flexion and extension of her cervical spine. Thoraco-lumbar movements were normal.

38. At that time Dr Watson diagnosed the plaintiff as having an adjustment disorder with depressed mood, a chronic moderately severe sprain of the cervical spine, and a chronic moderately severe thoraco-lumbar spine sprain. He recommended continued chiropractic treatment, medication, a gym program and a formal pain management program. It was Dr Watson's opinion that the plaintiff's prognosis was guarded.

39. A further report dated 5 July 2011 was provided by Dr Watson. He continued to review the plaintiff on a regular basis. He noted that the plaintiff continued to have the following symptoms:

1. Neck and upper back symptoms - stiffness and an aching burning pain. These symptoms are increased with lifting, computing, carrying her baby, driving and cleaning/vacuuming. They are improved with chiropractic treatment or physiotherapy, rest and analgesia. The symptoms had not significantly improved since his previous report.
2. Headaches which were predominately cervicogenic. They tended to be present with increased neck and upper back symptoms. Rest and analgesia helped to relieve those headaches.
3. Upper limb symptoms which are related to the tight cervical and upper thoracic spinal structures. When the plaintiff has a flare up of her neck/upper back symptoms she tends to suffer referred pain to the bilateral upper limbs.
4. Lower back symptoms involving a combination of tightness and aching pain across the lumbar region with referral to the buttocks and proximal aspects of the lower limbs. Sitting, standing, bending, cleaning, work at her work station, carrying her baby, and driving for longer than 30 minutes would flare up her lumbar spine symptoms. Chiropractic or physiotherapy treatment, analgesia, and stretching her lower back provided some relief.
5. Mental health symptoms including some continued low mood, fatigue and poor concentration continued to afflict the plaintiff as a result of her ongoing physical symptoms.

40. Dr Watson noted that he had examined the plaintiff on 23 May 2011. He noted that there was still tenderness on palpation of the C1, C2, and C3 spinous processes, and that T3, T4 and T5 were tight and tender. There was also tenderness of the L4 and L5 spinous processes. Some muscle spasm tenderness was evident in the paravertebral muscle groups. Some tenderness in the traps and levator scapulae musculature was also present. The plaintiff continued to have a reduced range of movement of the cervical spine. She was noted to have pain with bilateral rotation, flexion and extension of her cervical spine. Thoraco-lumbar movements were normal.

41. Dr Watson's final report is dated 26 March 2012. He continued to review the plaintiff on a regular basis since his last report. He noted that the plaintiff continued to suffer significant neck, upper limb and lower back symptoms which were disabling and restricting her work and home life. Dr Watson noted that it was now four years since the plaintiff was involved in the motor vehicle accident, and as such she would be expected to suffer from her symptoms on an ongoing basis. He felt that it could now be argued that her injuries were permanent. Her main treatment had been physiotherapy with Mr Jac Cousins at Canberra Physiotherapy Centre. She also took medication. He last reviewed the plaintiff on 9 March 2012 at which time it was clear that she continued to suffer from her neck, thoracic, lumbar spine and bilateral upper limb pain. She indicated that she was unable to work any more than 30 hours a week at her job at Service Point. Her work was predominantly computer-based and as such she needed to undertake any work with strict restrictions in place.

42. Dr Watson was of the opinion that the plaintiff suffers from a permanent partial loss of efficient use of her cervical spine and upper thoracic spine, bilateral upper limbs and lumbar spine.

43. A report dated 1 April 2009 from Dr Leon Le Leu, an occupational physician, was tendered on behalf of the plaintiff. Dr Le Leu noted the circumstances of the accident, and the plaintiff's employment circumstances. He noted the plaintiff's complaints of pain and restriction of movement and her restricted ability to undertake normal household duties. The plaintiff told him she usually had pain over the posterior aspect of the neck with one additional area of pain between the scapulae. The pain in those areas varied in intensity. Much depended on whether she was doing a lot of computer work and looking down a lot. The range of movement in her neck was reduced. Coughing or sneezing usually made no difference to her level of pain, however if the area between the scapulae flared up that area would hurt more if she coughed. Dr Le Leu noted that the plaintiff's range of movement was very close to normal. She was tender along the nuchel line and over the lateral aspect of her neck on both sides. She was also tender in the right mid-interscapular region.

44. It was Dr Le Leu's opinion that the most likely diagnosis was that of a whiplash injury and that she was slowly recovering. He thought that it was most likely that she would experience complete recovery, however he did note that 43 per cent of people who suffered whiplash injuries still had a significant discomfort affecting work two years after the injury. He felt the plaintiff was fit for the type of work that she was doing with restrictions as to not lifting a weight greater than five kilograms, no repetitive or sustained neck bending or twisting, no work on ladders at heights or overhead, and regular breaks from keyboard work of at least 10 minutes every hour.

45. Dr Le Leu provided a subsequent report dated 9 March 2010. He noted that the plaintiff was working full-time and that her official title was still "Logistics Manager". De Le Leu al noted that the plaintiff was still moving and lifting items, but on a weight restriction of seven kilograms. He further noted that she was undergoing treatment with Canberra Injury Management Centre which had resulted in the plaintiff noticing a big improvement in her neck, although it was still not 100 per cent. At that time the plaintiff was 25 weeks pregnant. Dr Le Leu noted that the plaintiff had a second rear end collision just before Christmas of 2008, which caused her neck symptoms to flare up for only 24 hours. They then returned to the previous level they had reached immediately prior to that second accident.

46. Dr Le Leu noted that the plaintiff was still suffering pain over the posterior aspect of the neck, and with one patch of pain between the scapulae. That patch of pain between the scapulae was "really good" unless she had a bad flare up. The pain varied in intensity and depended upon whether she was doing a lot of computer work or looking down a lot. The range of movement in her neck was still reduced. She still had headaches once or twice a week. It remained Dr Le Leu's opinion that the diagnosis was of a cervical whiplash injury. As it was almost two years after the accident he believed that further recovery was likely to be marginal.

47. Dr Le Leu's third report was dated 13 February 2011. After again noting the plaintiff's continuing symptoms and disabilities Dr Le Leu noted there had been some improvement in her symptoms during her pregnancy but, following delivery, her symptoms increased. Dr Le Leu noted that the plaintiff still had pain over the posterior aspect of the neck but she also had pinching over the medial parts of both trapezii which is most apparent when she is driving. The patch of pain between the scapulae was somewhat better. She also had a better range of movement in the neck. He noted that the plaintiff was still getting one or two headaches per week, aggravated by doing more than 30 hours of work per week on the computer.

48. De Le Leu maintained his previous diagnosis of cervical whiplash injury, and noted that further recovery was likely to be marginal. He considered that it was now less likely that she would experience complete recovery and she would probably be left with mild to moderate residual symptoms for at least three to five years.

49. Dr Le Leu's final report was dated 19 March 2012. Dr Le Leu noted the results of his examination were very similar to his previous examination of the plaintiff. There had been some improvement in neck movement, but a decrease in handgrip. He considered it likely that the plaintiff's symptoms would continue indefinitely.

50. A report dated 7 January 2009 from Dr Shane Collins, a chiropractor, was tendered on behalf of the plaintiff. Dr Collins consulted with the plaintiff upon referral from Dr Watson. As at the date of his report, Dr Collins noted that the plaintiff was still suffering from neck and thoracic pain and headaches as a result of the motor vehicle accident. He believed that there had been an approximately 80 per cent improvement in her condition since she started treatment with him. He believed that the plaintiff had sustained strain/sprain injuries to the cervical and thoracic spines with the subsequent development of myofacial pain syndrome. She also had cervicogenic headaches. He noted that the plaintiff had made considerable improvement, and this was likely to continue. He believed that it was important that the plaintiff start a strength/conditioning program as soon as possible to stabilise gains already made and to continue progression of recovery. He believed that the plaintiff was likely to make a full recovery, although there was a small possibility that she may be left with a mild continuing impairment and disability.

51. On 5 November 2008 the plaintiff was seen by Ms Alli Watson, an exercise physiologist. Ms Watson's initial assessment and treatment report was tendered. Ms Watson noted that the plaintiff presented with a history of soft tissue soreness in her upper back and neck, secondary to excessive computer work/activities at work. She noted the history of the plaintiff's involvement in a motor vehicle accident. She also noted that the plaintiff reported that activities such as cleaning, dressing and undressing, keyboarding, hanging washing on the clothesline and any repetitive activities, or activities that required lifting of her arms caused aggravation of her pain. Ms Watson's initial diagnosis was a cervical sprain. She recommended exercise physiology sessions twice a week for eight weeks and provision of some basic equipment for a home program to facilitate self management.

52. A report dated 7 August 2009 from Associate Professor Owen White, a physician, was tendered on behalf of the plaintiff. He noted the plaintiff's history and in particular the history of her injury on 28 May 2008. He noted that she complained of cervical pain aggravated by lifting more than 10 kilograms and then not responding to large amounts of Neurofen, and headaches. He thought that it was clear that the plaintiff had suffered a significant musculo-ligamentous injury to the spine. He felt that it was probable that she would have recovered earlier if appropriate treatment had been instituted with rest, anti-inflammatory medication, physiotherapy and neck muscle strengthening exercises. He anticipated further improvements over the next six months to full recovery.

53. A psychiatrist, Dr Linda Thomas, provided a report dated 6 April 2010. Dr Thomas noted the plaintiff's history, including the fact that she had no prior history of psychological issues, although both her mother and father had a history of depression. Dr Thomas also noted the history of the plaintiff being injured in a motor vehicle accident on 28 May 2008. She noted that since the accident the plaintiff experienced ongoing cervical pain and headaches. She was unable to continue with her major recreational and social outlet, namely netball. She also struggled to perform domestic duties without exacerbating her condition. Her level of pain disrupted her sleep and made her restless. Dr Thomas also noted that the plaintiff remained fearful of driving, and was a very nervous passenger in a motor vehicle. The plaintiff reported an increase in tension with her fiancé, their relationship being strained because of the impact of the plaintiff's injuries.

54. The plaintiff undertook a series of tests, and was examined by Dr Thomas. Dr Thomas stated that the results suggested the plaintiff was mildly to moderately depressed and anxious. She diagnosed the plaintiff as suffering from an adjustment disorder with mixed anxiety and depressed mood. It was her opinion that these conditions were directly related to the motor vehicle accident in May 2008. Dr Thomas said that the plaintiff's condition was chronic, but with adequate and appropriate treatment her condition may improve. She considered that the plaintiff would require psychological treatment from a psychologist trained in cognitive behavioural therapy. She believed the plaintiff would require one hour per week of treatment for a duration of six to twelve months at an hourly rate of $256.00 per hour, and then review. She noted that treatment was likely to be successful in ameliorating the plaintiff's symptoms, however it was likely that she would be more susceptible to depressive episodes in the future.

55. A reported dated 21 June 2011 from Dr Ron Brooder, a consultant neurologist, was tendered on behalf of the plaintiff. Dr Brooder noted the history of the plaintiff being involved in a motor vehicle accident on 28 May 2008 and her subsequent history of treatment. He also noted the results of CT scans taken on 29 August 2008 and 2 June 2011, and an MRI scan of the cervical spine undertaken on 22 August 2009. He noted that previous investigations had revealed no abnormality in the plaintiff's cervical spine. Dr Brooder was of the opinion that the plaintiff had a 20 per cent permanent partial loss of efficient use of her neck, causally related to the injury sustained in the accident on 28 May 2008. He was also of the opinion that the plaintiff had a 10 per cent permanent partial loss of efficient use of her upper limbs, again related to the injury she sustained in the accident on 28 May 2008.

56. Dr Brooder stated that the plaintiff's diagnosis was consistent with a musculo-ligamentous injury involving the supporting structures of her cervical spine and particularly the ligamentous support of the facet joints and the interspinous ligaments associated with secondary muscle spasm involving the cervical paraspinal muscles extending to involve the trapezii muscles bilaterally. She had also developed intermittent secondary vascular headaches associated with recurrent migrainous headaches. As a result of her continuing symptoms and the associated disability she had developed secondary psychological changes with anxiety and depression. Her prognosis remained guarded. He noted that there was a significant risk that she would remain subject to continuing symptoms and associated disability to some degree indefinitely.

57. On behalf of the defendant four medical reports were tendered. The first was a report dated 29 June 2009 from Dr David Ruttenberg, a consultant occupational physician. He noted that the plaintiff had been seen by Dr Le Leu, an occupational physician, in April that year. He noted Dr Le Leu's opinion that the plaintiff had suffered a whiplash injury, and that it was likely that further recovery would occur. After taking a history from the plaintiff and examining her, Dr Ruttenberg concluded that the plaintiff may well have suffered a minor soft tissue injury following the motor vehicle accident on 28 May 2008. He noted that she currently had a non specific pain disorder in her upper shoulder girdle and neck musculature. He did not believe that she had suffered a significant whiplash injury. He concurred with Dr Le Leu's long term prognosis but noted that she could well have symptom aggravation and perpetuation for many months or years to come. He believed that her background symptoms may have been subsequently aggravated by the exercises shown to her by her personal trainer. He did not see any benefit in ongoing chiropractic manipulations. He believed that she was fit to undertake her normal duties, so long as she made use of regular "micro pauses", stretching exercises and "macro breaks" in the working environment. She should also task rotate as required.

58. The second report tendered by the defendant is a report dated 29 November 2010 prepared by Dr David Wilcox, a consultant surgeon. Dr Wilcox saw the plaintiff on one occasion on 29 November 2010. He took a history of the accident, and the plaintiff's complaints and treatment after the accident. He stated that the plaintiff described intermittent neck pain, occurring when she is more active than usual. She described these episodes beginning as a headache in both temporal regions and behind the eyes, followed about two hours later with gradually increasing neck pain. This pain lasts on average for three days and is associated with neck stiffness. He noted that the plaintiff was able to undertake all of her normal activities of daily living, albeit some tasks could bring on her symptoms. Dr Wilcox conducted an examination of the plaintiff's neck and upper limbs and found no significant abnormalities. He noted that x-ray, CT and MRI investigations of the spine had proved normal.

59. Dr Wilcox clearly doubted the plaintiff's statement to him that she was currently experiencing pain when he examined her. He said that he could find no evidence of muscle guarding in the neck region, and he raised the possibility of exaggeration, embellishment or fabrication. He concluded that it was reasonable to conclude that the plaintiff may have sustained a minor neck strain in the accident of 28 May 2008, the physical effects of which had long since fully resolved. His opinion was that the plaintiff's ongoing complaints could not be explained on the basis of chronic physical pathology. Consequently, he believed that she either had normal neck pain unconnected with the motor vehicle accident of 28 May 2008 or she had developed an abnormal pain behaviour habit. He believed that it was probably the latter, which probably had a conscious element. He noted that the treatment that she had been afforded over the past two and a half years had been of no benefit. His belief was that this was because there was no physical pathology to treat.

60. The third report relied upon by the defendant is a report dated 25 February 2011 from Dr A Keith Lethlean, a consultant neurologist. Dr Lethlean noted the history of a motor vehicle accident on 28 May 2008 followed by neck and back pain. He noted the treatment she received and her work status. He noted that at the time that he saw her she was still suffering neck pain. This occurred in the lower cervical area, particularly on the left, and also in the left upper cervical paraspinal muscle. He also noted that she had significant headaches. He conducted a physical examination of the plaintiff, and also noted the x-ray, CT and MRI investigation results. His examination showed a reduced, asymmetrical range of cervical movement without other abnormality. He concluded that the plaintiff had suffered soft tissue injury to her cervical spine, but that there was no evidence of significant disk injury, nor neural involvement. He noted that injuries of this nature should settle within a year, although there is much variation. His impression was that the plaintiff gave a straight forward account of her symptoms and their sequence, without exaggeration or undue emphasis. Her attitude towards recovery appeared to be positive. He believed that she had suffered an impact based, musculo-ligamentous strain injury. He noted that the accident had occurred almost three years prior to his examination of the plaintiff, and whilst he considers there could be further improvement he assessed her permanent impairment as five per cent whole person impairment. He noted that this impairment may not change substantially in the next 12 months.

61. The final report relied upon by the defendant was a report dated 26 February 2011 from Associate Professor Michael Robertson, a consultant psychiatrist. He examined the plaintiff on 25 February 2011, and noted her history of a motor vehicle accident on 28 May 2008, followed by pain to her neck which resulted in her being unable to undertake normal activities without pain. Associate Professor Robertson concluded that the plaintiff demonstrated features of a pain disorder with a general medical condition. He accepted that her pain was significant and occasioned some impairment of social and occupational functions. He agreed with Dr Thomas that cognitive behavioural therapy would be of assistance, although he thought that six to twelve sessions with a clinical psychologist skilled in the management of chronic pain would be sufficient.

62. I accept the evidence given by the plaintiff as to her symptoms and disabilities following the accident on 28 May 2008. I also accept her evidence as to her ongoing disabilities and limitations. As such I accept that she has ongoing neck pain and headaches that currently limit her to working 30 hours per week, although she can, and has, worked longer hours as needed by her employer, with consequent increase in symptoms. These symptoms also limit the extent of domestic duties she can undertake, such that her partner is now obliged to undertake many of the duties the plaintiff used to undertake. I accept that the plaintiff's partner has undertaken an average of five hours of extra duties per week referable to the plaintiff's injuries.

63. I do not accept the suggestion made by Dr Wilcox that the plaintiff may be consciously exaggerating her condition. His evidence is contrary to all of the other medical evidence, and, more importantly, contrary to the evidence of the plaintiff herself. It is possible that the plaintiff may have symptoms indefinitely, but I think that is not probable. Based on the evidence of Dr Thomas and Associate Professor Robertson I am satisfied that the plaintiff's condition, both in terms of her mental health and her physical health, will improve if she has appropriate treatment. In addition, there has been improvement in the plaintiff's condition since the accident, albeit that it has been slow and variable. I think that it is probable that her symptoms will ameliorate over the next three years such that, while they may not disappear completely, they no longer pose an impediment, in practical terms, to her career and her return to pre-accident functioning.

64. Turning to the question of the plaintiff's economic loss, after considerable hesitation I have determined that it is inappropriate to approach her prospects of advancement to a position as a project manager, and her consequent loss because of her injuries, on a mathematical basis. Whilst the plaintiff is currently called a project manager by her employer, she is not being remunerated at the level that would be available to her elsewhere. I think it highly probable that she would have been promoted to a position of project manager on a salary of approximately $120,000.00 per year, either with Service Point or with another employer, sometime in the last 12 months if she had not been injured. She would have had an opportunity to increase that wage over time. However, I accept that she currently can only work 30 hours a week on average. I accept that, from time to time, she has exceeded this weekly limit, but at the cost of increasing symptoms and probably lengthening her recovery period. I allow $65,000.00 for the plaintiff's loss of opportunity for employment as a project manager, noting that I think it probable that her condition will improve over the next three years to the extent that she could undertake that work.

65. I have therefore assessed her economic loss on the basis of eight hours per week from 11 July 2010 to date. The workers compensation insurer, CGU, paid $27,308.00 to the date of the hearing. I increase that to $29,200.00 to allow for the period from the hearing to judgment. I also allow a sum of $2,630.00 for superannuation on that sum. I assess general damages at $70,000.00, of which I attribute $45,000.00 to the past. I allow $2,500.00 interest on that sum.

66. For past domestic assistance I allow five hours per week for 200 weeks at $20.00 per hour, making a total of $20,000.00. I include $3,445.00 interest on that sum, and also allow $4,788.00 for domestic assistance provided by CGU. I allow a further five hours a week for the next three years at $25.00 per hour, making a total of $19,500.00 for future domestic assistance. Past out of pocket expenses have been agreed at $53,774.07.

67. I will allow $5,000.00 for future medical expenses, a modest sum based on the plaintiff's evidence of the cost of her medication and the evidence of Associate Professor Robertson concerning her need for psychological treatment.

General damages $70,000.00

Interest on general damages $2,500.00

Past Out of Pockets $53,774.07

Future Medicals $5,000.00

Past Economic Loss $29,200.00

Superannuation $2630.00

Past domestic assistance plus interest $28,233.00

Future domestic assistance $19,500.00

Loss of opportunity $65,000.00

Total $275,837.07

69. There will be judgment for the plaintiff in the sum of $275,837.07. I will hear the parties on the question of costs.

I certify that the preceding sixty nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the plaintiff: Maurice Blackburn Lawyers

Solicitor for the defendant: Moray & Agnew Solicitors