DUGAN -v- PITCHER - [2021] WADC 106

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DUGAN -v- PITCHER [2021] WADC 106
CORAM:   STAUDE DCJ
HEARD:   27-29 JULY 2021
DELIVERED          :   4 NOVEMBER 2021
FILE NO/S:   CIV 2394 of 2019
BETWEEN:   BRIANNA ANN DUGAN
Plaintiff
AND
JAMIE-LEE CHARLOTTE PITCHER
Defendant

Catchwords:

Torts - Personal injury - Assessment of damages - Loss of earning capacity - Turns on own facts

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff	:	Mr T H Offer
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Vertannes Georgiou Lawyers (Perth)
Defendant	:	Moray & Agnew Lawyers

Case(s) referred to in decision(s):

Graham v Baker (1961) 106 CLR 340

STAUDE DCJ:

Introduction

On 15 July 2016 the plaintiff Ms Dugan was a front seat passenger in a Lexus motor vehicle driven by the defendant Ms Pitcher on Belmont Avenue, Belmont, when it was involved in a crash with another vehicle at the intersection of Alexander Road. The defendant contravened a red traffic control signal at the intersection. As a result, the Lexus was struck on the passenger side by another vehicle. Although the side airbag was deployed, the plaintiff suffered injuries.
The defendant's liability for negligence is admitted. The assessment of damages proceeded on the basis that none of the medical evidence was disputed. Accordingly, the only witness to give evidence was the plaintiff herself, the medical records and reports and other documentary evidence being tendered by consent.
While the nature of the plaintiff's injuries is uncontroversial, the claim for damages is disputed as to quantum in the areas of non‑pecuniary loss, past and future loss of earning capacity and future treatment expenses. There is no claim for gratuitous or paid services. Special damages have been agreed.
The nature of the economic loss claim is rather unusual. Ms Dugan was only 17 years of age and unemployed at the time of the crash. She had, however, in March 2016 served for a short period of time in the Australian Army. She had been interviewed on 5 October 2015 when she was in Year 11. She underwent a psychological assessment at that time. Ms Dugan was accepted for enlistment and commenced Army training at Kapooka with her mother's consent on or about 1 March 2016. She chose to train as a medical operator. Due to emotional and other difficulties she was unable to continue training and her mother withdrew her consent on 10 March 2016. It is the plaintiff's case that but for the crash she would have applied to re-enlist in the Army upon turning 18 years on 7 January 2017.
Since the date of the crash Ms Dugan has worked as a barista in a café and as a manager of a licensed burger bar. Also, after obtaining her ATAR (Australian Tertiary Admission Rank) at Curtin University in the second semester of 2016 she commenced bachelor degree courses in science and commerce before going on to complete a Bachelor of Arts in journalism. Since December 2020 Ms Dugan has worked as a journalist, writing for The West Australian.
Ms Dugan's claim for past economic loss is based on a differential between what she would have earned had she re-enlisted in the Army in January 2017 and remained there, and what she has in fact earned since that date. Future economic loss is claimed in a lump sum for loss of scope of employment due to residual symptoms and disabilities.
The Defence pleads that:
•the alleged loss and damage is due to pre-existing problems, namely, 'back ache, anxiety, unexplained weight loss and/or low blood pressure';
•Ms Dugan did not suffer any injury that would prevent her working in the Army, and has not suffered any economic loss by reason of not working as a soldier due to injury;
•alternatively, Ms Dugan has failed to mitigate her loss by failing to apply to the Army at all, and failing to pursue alternative pathways to join the Army, such as by the Female Initial Training Preparation Program; and
•further, if Ms Dugan is prevented from joining the Army it is by reason of pre-existing conditions unrelated to her crash injuries.
At trial, the defendant's main contention was that on the evidence as a whole, although the injuries may have rendered Ms Dugan unfit for Army recruitment, she was unlikely to have re-applied and been accepted or, if she did, to have remained in the Army for long. The defendant denies that the plaintiff has suffered any loss of earning capacity by reason of any injuries that may have been caused by the crash.

Evidence

Ms Dugan is presently 22. She lives with her partner and is employed as a journalist. Her father died when she was two years old. At the time of his death he was in business with her mother. Some time prior to that he was an enlisted serviceman in the Australian Army. As a child Ms Dugan would dress up in her father's uniform. She said that from a young age she wanted to be in the Army. She was close to her father's best friend who had served in the Navy. He encouraged her to go into the armed forces.
Ms Dugan said that she enjoyed school. She was very studious and did a lot of sport. Outside of school activities, she worked casually at Baker's Delight, Kmart and IGA.
In 2014 Ms Dugan consulted a physiotherapist for low back pain and left shoulder pain. At that time she was active in sport. A report from Ms Victoria Marmion, physiotherapist, Central City Physiotherapy, was provided to Defence Force Recruitment on 7 October 2015 (exhibit 3):
[Ms Dugan] suffered from a postural disorder due to going through a growth spurt and performing a large volume of high impact sports which put undue strain on her back and joints in 2014.
The symptoms she experienced were varied, depending on what sports she had done, but tended to consist of pain in her L anterior shoulder, and ache in her lower back and frequent headaches and neck pain.
The usual triggers were playing vigorous games of netball and volleyball, especially several days in a row without a break.
She received dry needling, massage, joint mobilisation and manipulation. She also performed supervised clinical Pilates to help strengthen her back and core muscles. She attended the physiotherapy treatment and Pilates somewhat regularly between 3/5/2014 and 9/9/2014 coming once a week or once a fortnight.
Ms Dugan said that she made an enquiry at Defence Force Recruitment in Year 10. The position of medical technician appealed to her. She said:
I'm just good in that sort of frontline pressure, I want to be able to help people, and it was just always exciting to me to be a frontline medic saving soldiers or people who were bombed in the war or something like that.
When Ms Dugan was asked what attracted her to the armed forces, she said:
Like I said, I don't know how to explain it, I just know that it's where I belong. I am good in that pressure. It is exciting. It gives me adrenaline. It doesn't scare me, I don't shy away from it, if anything, I want to be in it more. The idea, as clichéd as it sounds, is just to serve my country and do something that is bigger than myself was appealing. It is not something that everyone can do, it's not something everyone can stand up and go 'this is who I am', but I can or could and that was exciting for me.
After Ms Dugan had made her application, she engaged a personal trainer two to three times a week. Her mother trained with her. On 1 October 2015 she saw a Dr Adeyama Adesanya for a physical examination to see if she was fit to join the Police Cadets. According to the doctor's notes (exhibit 20, page 77), she was able to plank for 30 seconds. She had a full range of cervical spine movement and could duck walk. When questioned in cross-examination she said that the Police Cadets was an alternative to the Army if she did not get in.
It appears from Army records (exhibit 19) that Ms Dugan was interviewed on 5 October 2015. The summary of the interview report by Ms Janine Monneron is as follows:
[Ms Dugan] is a youthful candidate seeking to fulfil a life-dream of being in the Army as a means to continue her father's legacy. From her reports she is exceptionally fit, above the average male even and can well exceed the PFA. She is drawn to the Medical Corps based on her human biology studies throughout school in conjunction with exposure to paramedics throughout her childhood; which made a positive impact on her from a young age. She delivered a good knowledge base today and it was assessed that her appreciation of Army lifestyle was realistic. Slight risk remains with emancipation given her young age and current dependency at home; however, discussion reveals that she has resilience and adequate coping mechanisms to propel her through pressured times. Solid work history and an active lifestyle complement the ADF outlook and she is given BOD based on her developing maturity and independence.
On the same day Ms Dugan was psychologically assessed. The psychological report by Mr Dean Moore concluded:
[Ms Dugan] is a Year 11 student who wants to follow a long-held interest in the military by embarking on a career in the ARA next year. She has adequate intellectual capacity and academic achievement to have the potential to cope with the formal learning aspects of training for medical operator, but no prior experience in a health support role. She reports a suitable sports/fitness orientation for the ADF. [Ms Dugan's] ability to cope with separation and her potential resilience under sustained pressure are both untested, but there were no indicators that she was more at risk for these factors than other candidates her age, and she presents with the confidence to cope. Overall [Ms Dugan] appears an acceptable risk for military training and integration in the role of Army medical operator at this time.
The report of Ms Marmion provided to Defence Force Recruitment (exhibit 3) indicated general fitness for training. She wrote:
I assessed her today 6/10/15 and a lot of her symptoms have now resolved, due to her consistent personal training over the past three months. She has shown a level of commitment to improving her physical health and has had a great impact on the health of her spine. She has good range of movement and her spinal alignment was much improved. Judging by this, I am confident that her back will not impede her with the tasks involved in her military training.
Ms Dugan said that she passed a fitness test that involved push ups, sit ups and a beep test. Although the evidence at trial did not explain what a beep test is, it is a matter of general knowledge that it involves continuous running between two lines 20 metres apart in time to recorded beeps. The plaintiff told the interviewer that she had achieved a beep score of 16 which the interviewer noted as being 'very bold', such that she queried Ms Dugan further on this point and was told that she was a runner. This led the interviewer to state in her summary that Ms Dugan was 'exceptionally fit'.
At the end of February 2016, Ms Dugan travelled to Melbourne and then to the Army training camp at Kapooka. On the first day she said that the recruits were placed into platoons, taken to their barracks and issued uniforms. She found the training hard. She said she was homesick and missed her mother, as others did. She had trouble with her fitness. She said that she struggled to eat in the morning. She said:
It was mainly dairy-based. I don't remember them having soys or almond milk, stuff like that, and I don't, like eat - I don't like to eat dairy or anything heavy in the morning and it was all eggs and stuff like that. And a big part of that was you're not allowed to go to the bathroom when you wanted to so I didn't want to risk having to go to the bathroom and not being able to and that just gave me - I was pretty anxious about that …
She said that as a result of not eating in the morning she had no energy for her physical training and failed the beep test. She failed again on her second try. Despite having no trouble eating lunch and dinner, she lost a lot of weight which meant that she could not perform physically. She said:
My pack became heavier. Like, carrying my gun and stuff, my muscles just weren't getting what they needed. And then just lack of sleep and stuff as well because I was so hungry my stomach would just be growling and then, yeah.
In cross-examination, Ms Dugan admitted losing 10 kg of body weight in the 10 days that she was at Kapooka. She also experienced anxiety due to being away from home for the first time at a young age.
As a result of failing her second beep test Ms Dugan was 'back‑squadded' which meant being put into a 'rehab platoon'. She was disappointed by being back‑squadded and was homesick, but said 'I was still able to do it and willing to do it'. She spoke to her commanding officer about how she was struggling and her homesickness. At that time she was not allowed to speak to her mother. She said:
They said I could speak to a chaplain who could talk about my troubles but I didn't feel comfortable doing that because I didn't want to divulge all of this information just for the chaplain to tell it back to them kind of thing. But I'm pretty sure at that point they contacted my mum and told her of my struggles.
Ms Dugan was later informed that her mother had withdrawn her consent and as a consequence she had to leave. Ms Dugan's Army medical record (part of exhibit 19) reveals that on 8 March 2016, one week after commencement, she presented at Kapooka Clinic with left shoulder pain after carrying a heavy bag the previous day. She described pain extending down the back to left chest wall on inhalation. The notes state:
Tightness in L shoulder, starting to spread into upper back and hurts during inspiration. Yesterday onset. ?from carrying civi bag and water bag from barracks to Ashley platoon. Uncertain when leaving, parents withdrawing consent today. Denies any paraesthesia, altered sensation, power loss or radicular symptoms.
The record also shows that on 10 March 2016, Dr Timothy Caton at Kapooka Clinic noted, 'Fit for full duties within current MEC/SPEC and restrictions'. The shoulder problem had apparently resolved.
The Army records also note the following remarks to which Ms Dugan's platoon sergeant, Sgt S M Newton, and commanding officer, Maj K Watson, subscribed:
PTE(R) Dugan's mother has removed parental consent for PTE(R) Dugan to continue military training on the grounds that the member is not mature enough for recruit training. PTE(R) Dugan has struggled with recruitment training having failed the beep test component of the PFA and had been transferred to Ashley pl. The member has had little opportunity for appraisal and reporting. It is recommended that PTE(R) Dugan be transferred to WD pl for discharge administration.
WD pl means Weary Dunlop platoon. The following comments were signed by Lt Col Stephens CO RITB on 9 March 2016:
Noting w/d of parental consent mbr to be transferred to WD IAW 87(1)(a). Her mother's positive comments w/t those involved in REC Dugan's training are noted. I also note that member wishes to rtn to t/g once her issues at home have been dealt with. This is supported.
There is also a record of Ms Dugan being told at that time by Sgt Newton:
The CO 1RITB has commended your efforts and recommends that upon separation, utilise that time to train hard, work on your physical abilities and strongly consider re-enlisting at a later stage in life.
She returned to Perth on 11 March 2016. She was disappointed and angry at her mother's withdrawal of consent. Over a period of time she decided that she would apply to go back into the Army when she was 18. She planned to restart her physical training. In July 2016 (prior to the crash) she started working in a café called Sparrows Nest owned by her mother's partner. On 10 November 2016, Ms Dugan wrote an email to Defence Force Recruitment that read:
As you are aware I enlisted on 29 February this year and began basic training in the Australian Army.
During my time at Kapooka I endured a personal battle within myself regarding homesickness. My mother being aware of this felt it was necessary to pull consent, thus I have since returned home.
Since being home I have reflected on those areas that were of most concern to me whilst I was away. I have sought advice and further discussed the matter with my family members and those closest to me.
I am now in a position where I believe I would like to reassess my career in the Australian Defence Force. I was hoping if you could please tell me my options regarding this.
This was one of two emails Ms Dugan sent regarding re‑enlistment. It was sent four months after the crash. In neither email did she mention having been injured in a motor vehicle crash. She said she sent the emails before she realised that she would not be able to re‑join the Army.
As to the circumstances of the crash, Ms Dugan said that she and the defendant were talking and singing when the defendant drove through the red traffic light. The vehicle was struck on the passenger side. She said:
The side airbags deployed really fast. They - I think it skidded across my face so my left side of my face was burning, a bit razed. My left ear was ringing. I couldn't hear anything out of it. I remember hitting my head really hard which I think it would have been on a car pillar or something like that. My neck on both sides was really tight. I had left‑sided shoulder pain as well as my left upper left arm was burning because I think the airbag must have burnt that as well. I also had left‑sided leg pain.
Ms Dugan's mother came to the scene and took her to Royal Perth Hospital. The hospital records are exhibit 16. Ms Dugan presented with no tenderness of the cervical spine, but some pain down both sides of the neck, headache behind the eyes, ringing in the left ear, some numbness and swelling of the left upper arm, and numbness of the left lower leg. She was discharged within a few hours. The hospital discharge letter to her general practitioner stated the diagnosis as a minor bruise to the left upper arm with left sided hearing loss of unknown cause. She was advised to see an ENT specialist because she could not hear anything in her left ear.
On 18 July 2016 Ms Dugan saw her general practitioner, Dr Jaspreet Mudhar. Her main complaint was of deafness in the left ear. She also complained of slight headache (exhibit 9).
In evidence Ms Dugan said her left leg pain resolved, but she continued to have the symptoms that she complained of at Royal Perth Hospital. On 12 August 2016 she attended for an audiometric test. Her right‑sided neck pain subsided, but the left-sided pain became worse as did her jaw pain. Her left arm symptoms resolved. She said 'a month or two or longer' after the crash she started to get bad temporal migraines on the left that would make her eye go blurry. She said she was reluctant to see doctors at that time because she wanted to go back to the Army and did not want anything on her record. She thought the injuries were minor and that they would eventually go away.
Ms Dugan obtained her ATAR through Curtin University in 2016. She said:
And that was more just to show that while the time I was off - when I went back to the Army to show them that the time I was off, I didn't just sit around. I was training, I got my ATAR, I was building up CV skills, stuff like that.
Ms Dugan saw another general practitioner, Dr Chris Turner, who referred her for an MRI of the brain on 3 October 2016. At that time, she was experiencing hearing loss, headaches and stabbing pains in the eye. She described left-sided shoulder pain going up to her neck and left‑sided neck pain that would cause a left-sided temporal migraine. She would lose vision in her left eye and have to sit in a dark room and tape her eye down, so it did not open and move as light would irritate it. For her migraine headache she initially tried Nurofen, Panadol and aspirin. None worked, so she would sit in a dark room and 'wait for it to go away'.

The MRI was reported by Dr Elizabeth Dillon on 4 October 2016. She reported no acute intracranial injury with no clear cause for the headaches.
Dr Turner referred Ms Dugan to a neurologist, Dr Burton, but she said she did not see him because she did not have enough money to pay for a specialist, and because:
I knew having a neurologist on my medical records when I went back to the Army, it was just going to be a no hope, so I didn't want to pursue it any further. I thought I could just get through the pain and make it back to the Army before anything happened.
On 18 November 2016 Dr Shiong Tan referred Ms Dugan for an MRI scan of her temporo-mandibular joint (TMJ). Her symptoms were noted as left-sided headache, left ear pain, and tenderness of the left TMJ. At that stage she still thought that her injuries would go away.
In 2017 Ms Dugan started a science degree course in molecular genetics and biotechnology. After six months she changed to a business law (commerce) course, but decided that it was not for her. Ms Dugan said that she had to adjust to the fact that her childhood dream was shattered and that she needed to make a new plan. In 2017 she was seeing physiotherapists and chiropractors and doctors. She would also do stretches and use a heat rub and heat packs.
At university she joined a social touch rugby competition. She said:
But it was more just going on the field, having a run for 40 minutes, but you would rotate because there was more females so you wouldn't run for that long. There was no tackling or anything. It was just touch, put the ball down, run, kind of thing like that. No training. Nothing like that.
After playing Ms Dugan would experience symptoms of left-sided shoulder pain, neck pain and headaches. She said that she would push through as she did not want to stop being physically active.
On 21 March 2017 Ms Dugan saw Dr Tan. She was referred for pain x-rays of her cervical and thoracic spine. Consultations at the same practice on 19 April and 30 June 2017 were unrelated to the crash injuries.
On 10 May 2017 Ms Dugan consulted a chiropractor at Belmont Chiropractic (exhibit 18). She had four subsequent treatments on 14, 17, 21, and 24 March 2017. It is not clear from the notes to what areas the treatment was directed.
On 22 and 29 August 2017 Ms Dugan attended Ms Heather Jeffries of Belmont Physiotherapy. She complained of ongoing left cervical pain and constant headache worsening over the last two months with increased study and blurred vision with sharp pain.
On 26 February 2018 Ms Dugan saw Dr Tan complaining of ongoing TMJ pain and persistent neck pain with occasional paraesthesia in the left second, third and fourth fingertips.
Ms Dugan saw Dr Delcanho, a consultant in pain management, on 2 March 2018, having been referred for assessment and management of orofacial pain. Dr Delcanho's report of that date (exhibit 8) states:
[Ms Dugan] presents with likely internal derangement affecting her left TM joint and secondary masticatory myalgia. She has a poor functional occlusion. There is a suggestion of migraine headaches. I feel that [Ms Dugan] would benefit from wearing an occlusal splint and a home exercise program. I have prescribed compounded topical analgesic and anti-inflammatory cream to apply to the affected area. She will do some jaw and neck stretching exercises. I will keep you updated regarding her progress.
Dr Delcanho noted the history as being of bilateral jaw pain, particularly in the left pre-auricular region periorbitally. Ms Dugan reported shooting pains in her jaw and around the eye and pain aggravated by jaw movements and function, such as opening the mouth widely and chewing food. Dr Delcahno also noted occasional headaches with associated nausea and light sensitivity suggestive of migraine. Dr Delcanho noted that MRI of the head was normal. Dr Delcanho's report indicated no history of trauma, although the referral letter of Dr Tan mentioned the crash, as did the MRI report dated 22 March 2018 which concluded:
Bilateral reducing anterolateral disc displacement with small associated joint effusions and low‑grade synovitis as described above. Mild condylar remodelling but no erosive or degenerative arthritis.
Ms Dugan said that the splint that Dr Delcanho recommended worked at first, but then it gave her headaches. She wore it for just a few months. Ms Dugan's evidence was that it was only when she saw Dr Delcanho (March 2018) that she realised that she would never be able to go back to the Army. She said:
That was the day I realised it was never going to happen. In 2017 when I was seeing, like, physios and doctors and stuff, I started to realise, you know, like, I might have to start thinking of a plan B what else I might want to do. And then in 2018 after seeing him, I was like, that's it.
Ms Dugan said she did not notify the Insurance Commission of Western Australia of a claim for damages until after she saw Dr Delcanho. She did not want to make a claim because she still wanted to go into the Army and would not be allowed in with a compensation claim.
Ms Dugan said she took four months off from study. From April 2018 she worked full-time as a barista and manager at her mother's café called Dark Horse Espresso. She said it was difficult to cope with her physical symptoms. She said she was in pain, but there was no alternative as she had to work. She said she struggled, especially behind the barista machine and with the noise of the coffee grinder and the banging of the coffee heads. The noise of the machines was too loud for her left ear. It would give her a headache associated with stabbing pain in the temple. She experienced pain every day.
Dr Tan saw Ms Dugan on 10 August 2018. She was complaining of left sided neck pain at C4-C5 and was tender from C3 to C5. On 17 August 2018 Dr Tan noted there was nothing specific on cervical CT scan. Ms Dugan complained of left C3-C4 neck pain with radiation to the left temple and blurred vision. The reason for the visit was noted as migraine. Propranolol was prescribed.
On 13 September 2018 Ms Dugan complained to Dr Tan of side‑effects from Propranolol. Dr Tan wrote to Dr Clare Jones of Curtin University supporting an application to extend Ms Dugan's assessment dates on the basis of persistent headaches that had been 'treated with medications that had led to a number of unintended consequences' (exhibit 14).
On 4 October 2018 Dr Michael Light issued a medical certificate of unfitness to complete an assessment by the due date (exhibit 15). That day Ms Dugan had complained to him of 'anxiety, poor sleep, racing thoughts, reduced appetite, lethargy, migraines' and stresses at home.
On 21 February 2019 Dr Light saw Ms Dugan and noted migraines associated with visual loss, dysphasia and pain in the left upper neck. He thought it was likely cervicogenic migraine. She had tried Indocid, Voltaren Sumatriptan and Propranolol to no effect.
Ms Dugan consulted another physiotherapist, Mr Ned Prendergast, on 22 February 2019, complaining of daily headaches worse in the morning and ulna nerve numbness in the left hand. The history was of left sided cervicogenic dysfunction and left sided migraines that had worsened over three years. She was seen again on 1 and 20 March 2019.
On 12 October 2019 Mr Chris Imms of Enhance Physiotherapy wrote to Dr Light stating that he had seen Ms Dugan on 2 October 2019 for left side neck pain with headaches, neck and jaw pain following a motor vehicle crash. He thought she had 'a compressive pattern of cervical facet joint syndrome on a background of neural sensitivity'. He treated Ms Dugan with 'gentle mobilisation soft tissue therapy, dry needling, neural desensitisation techniques and education surrounding home exercises and management strategies' (exhibit 13).
At the request of her solicitors Ms Dugan was examined by Dr Geoffrey Hee, otolaryngologist, on 12 December 2019. His opinion of Ms Dugan's left sided hearing loss was that she had suffered a noise injury to the left ear resulting in mild left sided sensorineural hearing loss, as well as left sided tinnitus, hyperacusis and a variant of middle ear myoclonus. He said the only positive finding on examination was that the 'Weber test lateralises to the right ear at 1 kHz'. He attributed the hearing problems to the motor vehicle crash. He went on to say:
Despite mild hearing loss and tinnitus, Ms Dugan appears to be coping relatively well with this without any specific treatment. I do not think her hearing loss is severe enough to warrant the wearing of a hearing aid. Her tinnitus at present is intermittent and not too intrusive. Her main issue currently is that of left sided temporo-mandibular joint pain with associated spasm and pain in the left upper shoulder and adjacent neck. She is completing her studies in journalism and is planning to study law at Curtin University next year. She works as a barista at her mother's café three to four days per week and copes relatively well even in this noisy environment. She does have some difficulty hearing at times, particularly when using the grinder.
Dr Hee did not think Ms Dugan's mild hearing loss significantly affected her day‑to‑day social and recreational activities, or was likely to affect her employability as a journalist or a soldier. He assessed her permanent disability with respect to left sided hearing loss as a 5% permanent hearing loss.
On 19 February 2020, again at the request of her solicitors, Ms Dugan was examined by Dr Steven Overmeire, occupational physician. Ms Dugan told Dr Overmeire that she suffered daily left suboccipital neck pain that intensified as the day progressed. He wrote:
She reports a pattern of escalating pain that radiates from her suboccipital region to the left side of the face, jaw and temple, resulting in a left frontal headache. She describes the headache as a 'pinched brain' sensation. It is associated with 'fuzzy' left vision and photophobia. It eases when she closes her left eye or lies down in a dark room. It resolves after a night's sleep, but the headache gradually recurs on the next day.
She reports left sided neck pain that radiates to the left scapular region on neck flexion, left neck rotation and left arm elevation. She reports occasional throbbing or pinching left scapular pain. This is relieved by massage.
Dr Overmeire also noted left sided jaw pain affecting eating and talking, and dull left sided hearing. Dr Overmeire noted that Ms Dugan managed her duties as a bartender despite her residual symptoms. She had experienced some difficulty with university study in 2019 when she was adjusting to new migraine medication, but this had settled. She was able to manage all domestic activities. She played competitive touch rugby without difficulty, but had left sided neck strain after games. Physical examination was unremarkable. Dr Overmeire concluded:
Ms Dugan is a 21 year old right-handed university student and casual bartender, who sustained soft tissue injuries to the neck, left temporo‑mandibular joint and left scapular region in a left sided car collision three and a half years ago. She sustained left ear acoustic trauma as a result of airbag deployment, resulting in mid left sensorineural hearing loss with intermittent tinnitus. She developed left temporo-mandibular joint derangement with secondary masticatory myalgia for which an oral pain specialist has prescribed occlusal splinting.
Despite attending physiotherapy, attempting clinical Pilates and taking a variety of pain medications, Ms Dugan has persisting left suboccipital neck pain and left cervicogenic headaches. Despite these persisting symptoms Ms Dugan manages full-time university study and casual work as a bartender.
In my opinion her lack of progress over the past three and a half years warrants further treatment. I would recommend a left upper cervical (C2/3) facet joint injection and/or a greater occipital nerve block for diagnostic and probably therapeutic purposes, followed by a further, active physiotherapy programme that focuses on Pilates-based postural reconditioning exercise. I would recommend further review by her orofacial pain specialist to manage persisting temporo‑mandibular joint dysfunction.
In my opinion Ms Dugan has suffered a permanent impairment of the neck as a result of this injury.
Dr Overmeire attributed the complaints to the motor vehicle crash. He did not consider that Ms Dugan's injuries would reduce her working life. His estimate for injections, future physiotherapy, Pilates exercise and orofacial pain management review was approximately $3,000. He also stated that Ms Dugan was likely to acquire Maxalt wafers to manage migraine headaches and he recommended an allowance of $1,000 for this medication which he said she should require at a reducing frequency as time progressed as he expected the headaches to improve with the treatment he recommended.
Dr Overmeire considered that Ms Dugan had unrestricted work capacity as a journalist and as a lawyer. With respect to the Army, Dr Overmeire said:
In my opinion, there is a reasonable prospect that Ms Dugan's cervical facet joint dysfunction will remain symptomatic to some extent in the long term. From that perspective, I doubt she will meet the stringent fitness and medical criteria to join the Army as a soldier, now and in the foreseeable future.
Dr Overmeire assessed a permanent impairment of the neck of 12.5% giving a whole person impairment of 5%. He considered that with recommended treatment Ms Dugan's headaches, neck pain and jaw pain would improve, but a full symptom free recovery was unlikely and he thought she would experience some residual neck pain and intermittent headaches in the long term.
Dr Overmeire was asked by Ms Dugan's solicitors to elaborate on his opinion. In a further report dated 8 May 2020 he said that he had no experience of defence force personnel but had dealt with firefighting recruits and had discussed the defence force fitness criteria with a colleague. Based upon what he understood of the fitness requirements of Army personnel he considered that Ms Dugan would not meet the minimum requirements without a significant aggravation of her 'mechanical neck pain, muscle spasm and headaches'.
As Dr Overmeire was not required for cross-examination, and no contradictory expert evidence was adduced by the defence, I see no reason why I should not accept his opinion. The defence did not put the case that Ms Dugan was fit for enlistment.
In a consultation on 13 August 2020 Dr Light recorded that Ms Dugan was having ongoing trouble with cervicogenic migraines.
Ms Dugan underwent a further assessment by Dr Overmeire on 26 May 2021. By that time she had ceased using Maxalt wafers for her headaches. She was doing her own neck and shoulder stretches and would apply Tiger Balm or ice spray to her neck and upper trapezius for short-term symptom relief.
Ms Dugan was working full-time as a cadet journalist. She reported occasional difficulty with conversations due to reduced left sided hearing and difficulty writing with her right hand while using her mobile phone to her right ear. However, her work performance had not been adversely affected. She had ceased playing touch rugby, but had started twice weekly gymnasium exercise with a personal trainer.
Dr Overmeire observed that the chiropractic and physiotherapy records provided by Ms Dugan's lawyers indicated that she had been treated for neck pain and headaches prior to the crash. On 11 July 2014 she reported 'a long history of stabbing ‑ burning left upper trap ‑ lower paracervical pain associated with intermittent aching left occipital headaches, throbbing left frontal headaches and occasional loss of visual focus'. Dr Overmeire observed:
It is now confirmed that Ms Dugan did attend chiropractic and physiotherapy treatment in 2014 and 2015 for various aches and pains, which included several treatment sessions for left cervical and upper trapezius pain, left frontal headaches and left visual focus loss. The previous symptoms are similar to those she reports since the motor vehicle accident. The chiropractic record and her personal recollections suggest, however, that these symptoms have resolved before the car collision. As Ms Dugan entered the armed forces in early 2016 after passing a pre-employment medical evaluation, it would appear unlikely that she was symptomatic at that stage. This prior history does indicate that Ms Dugan had an underlying, constitutional predisposition to mechanical neck pain and cervicogenic headaches.
Dr Overmeire's opinion was that but for the motor vehicle accident it is unlikely that Ms Dugan would have experienced ongoing cervicogenic headaches and neck pain to the current extent, although he said it was plausible that she would have experienced intermittent episodes of pain due to her constitutional predisposition, similar to those she experienced in 2014 and 2015. He said:
On the basis of the available chiropractic treatment record, it is my opinion that her incapacity to pursue an Army career is predominantly attributable to the motor vehicle accident, but there is an additional contribution from her constitutional predisposition and previous history of neck pain and cervicogenic headaches.
Dr Overmeire found that there were signs of a limited improvement in her condition since his previous assessment. His opinion regarding future treatment remained unchanged. He noted that his previous treatment recommendations had not yet been followed. As she had ceased to use Maxalt wafers he deleted this treatment from his recommendation. His opinion as to Ms Dugan's work capacity was unchanged.
Ms Dugan's evidence was that she struggled at university during her journalism studies and had to apply for a few assessment extensions because she could not finish the work in time. She said her neck was strained sitting at a computer. She also said that she struggled to hear the lecturer and in tutorials there would be too much peripheral noise for her to focus on the tutor. Consequentially, she would have to do extra study outside of lectures and tutorials to catch up. Her enjoyment of music was affected because loud music would hurt her ear. She tried noise cancelling headphones and earplugs unsuccessfully. At music festivals she would tend to stand back from the speakers. Ms Dugan said that she had not played touch rugby since last year due to COVID‑19.
As well as café work during her studies Ms Dugan said she also worked as the manager of a business called Burger Boss. She held the liquor licence for the business and was a director of the company that owned it. She had not worked in that business since obtaining full‑time employment in December 2020 on a three year contract. Her experience of working as a reporter did not meet her expectations. She said that she took up journalism to help people. As a cadet, her job was to 'monitor news, pitch, produce breaking news, national, local and international'. She said she had to pitch 'news that sells', such as bikie or COVID-19 stories. This was not what she preferred to write. Her plan, nevertheless, was to continue in her role for the remainder of her contract and beyond, but if she could not do journalism she would 'find a career that is more suited to my moral compass, which could be law, but I'm not too sure'. She had previously applied for a Juris Doctor course at the University of Western Australia that she deferred when she was given her present position.
Ms Dugan said she worked on a roster, on weekdays 9.00 am to 5.00 pm and weekends 2.00 pm to 10.00 pm. Overtime was unpaid. She complained of some difficulty in concentrating in the newsroom because of her hearing problem and listening to people speaking when there was other noise. Working at her computer, she sometimes experienced shoulder pain going into her neck and jaw that gave her a left sided headache. Using her mobile phone was difficult. Ms Dugan said that she could only hear in her right ear, but when questioned about this she said that she had mild hearing loss in her left ear and did not require a hearing aid. She also described tinnitus that would last for about 30 minutes.

Ms Dugan said her neck and shoulder symptoms would get worse progressively during the day. By midday she was affected by fatigue. At the end of the day she was exhausted by having to put up with pain. This affected her motivation, yet she was still able to do her work. She said her editor‑in‑chief was proud of her work and thought she was doing well. At home she had little motivation to cook or do anything other than go to bed. At home she said her left ear was affected by noise from vacuuming or plates banging together. She had difficulty putting laundry on a clothesline. She did not do gardening because it strained her neck.
Ms Dugan said she occasionally took Panadol or Nurofen, but generally found that medications did not help her symptoms. In the week after the trial she was expecting to have a cortisone injection for her neck and shoulder as recommended by Dr Overmeire. She said she had been going to the gym regularly before having her wisdom teeth removed, but since then had not returned. Going to the gym generally helped to ameliorate the severity of her symptoms.
Ms Dugan's evidence about how she was feeling prior to the crash was as follows:
Like I said, I was a go‑getter. I was up. I was motivated. Everything ‑ I would write a set of goals and I would achieve them. I'd work out. I'd go do stuff just because I wanted to. If I wanted to go to the beach I would call a friend, we would go to the beach. I was happier. I wasn't to irritated by the little things I find I am now. I had a good relationship with my mum. I had a lot more friends. Stuff like that, so ‑ and then after the accident ‑ not initially after it but progressively after, and sort of when I realised I couldn't go back to the Army, I was ‑ it's like I had given up. I was just a lump of a person. I didn't know what I wanted to do so I just kept throwing myself into uni degrees thinking I'd find along the way. I was lost. I was not motivated in the slightest. I lost a fair chunk of friends. I lost a lot of my values as well. I stopped being who I wanted to be.
Ms Dugan said that the Army had been her dream. After the crash she had to adjust to a 'plan B'. As to other effects that the crash has had on her life, she said that she struggled with an eight‑hour shift at work and had difficulty interacting with others. She was unable to play netball which had been her favourite sport.
Summarising her symptoms, Ms Dugan said she had daily headaches of varying severity. She had migraine headaches twice a week at most. She experienced jaw pain every day, associated with her shoulder and neck symptoms. She struggled to eat certain foods. The jaw pain varied. It affected her talking or eating a few times a week.
Ms Dugan verified her tax records which showed that in 2016 she earned $1,404 from Contempo Unit Trust and $1,636 from the Department of Defence. In 2017 as a barista she earned $16,218. In 2018 as a barista she earned $17,245 and received a youth allowance of $1,178, a total of $20,327. In 2019 as a manager Ms Dugan earned $29,979, and in 2020 as a barista she earned $20,505. Ms Dugan also produced her income statement from The West Australian Newspapers Ltd that showed that from 14 November 2020 to 25 June 2021 she earned $32,965.23. The tax returns and income statement are exhibit 1.
Exhibit 2 is a report from LabourNet Australia Pty Ltd dated 23 September 2020. It is by Professor Charles Mulvey, a labour market consultant. The undisputed contents of this report may be summarised as follows. A person entering the Australian Army as a soldier at aged 18 would be required to complete a recruit training course for 80 days. After recruit training the recruit would undertake a 12 month initial employment training course on completion of which the recruit would become a private. On completion of employment training the recruit would be paid according to the salary scales of Other Ranks Pay Groups within the Defence Force pay structure starting at $50,333 in 2019. A service allowance of $10,380.74 per annum was payable in 2017/18. After the recruit became a private it increased to $14,566. There were compulsory reductions from salary for tax, meals, accommodation and utilities. The salary and allowances information was summarised in the following table:

YEAR

AGE

RANK

SALARY

SALARY + ALLOWANCE

2017

18

Recruit

$38,033

$38,033

2017-18

19

Trainee

$46,219

$56,599

2019

20

Private

$50,333

$64,899

2020

21

Private

$53,027

$67,593

The report goes on to state that bonuses are payable for certain duties, including overseas deployments or deployment in Australia on exercise, and that the employment package included free medical and dental treatment. Soldiers were required to contribute 5% of salary to a superannuation fund to which the employer also contributed. The employer's contribution was not stipulated.
Exhibit 20 includes a letter from the editor-in-chief of The West Australian dated 23 December 2020 covering Ms Dugan's contract of employment. Schedule A to that contract provides that the remuneration package was a salary of $59,634.97 and superannuation of $5,665.32, total $65,300.29.

Credit

On the whole I found Ms Dugan to be a truthful witness, but somewhat given to overstatement.
Ms Dugan was cross‑examined as to the cogency of her reasons for joining the army as a 17 year‑old, her misrepresentation of her fitness (false beep test score), and the circumstances that resulted in her mother withdrawing consent for her to remain at the Kapooka training programme after only a few days, including home sickness, weight loss, failing the beep test and hurting her left shoulder. She was also questioned about the work and study she did subsequently, leading to her securing a cadetship with The West Australian Newspapers in 2020.
Ms Dugan said that in 2017 she started a science degree course as she was thinking of doing medicine. She said 'anything in medical, so if I went to the army, I could perhaps take an officer route'. At the end of 2019 she applied to do law at Curtin University, but was not accepted. When she was asked why she thought she could get back into the army, having lasted only a week in 2017, she said 'I just knew I could. It was my dream, it's what I wanted to do'. She said that she knew what to expect.
When Ms Dugan was cross‑examined about her beep test score she agreed that what she told the recruitment interviewer was not accurate. She accepted that she would never have reached a score of 16. She said that she was possibly confused and that it was not her intention to lie or deceive.
Ms Dugan's representation of having achieved a beep test score of 16 is a significant overstatement. It was clearly made in order to embellish her credentials and had the desired effect of impressing the recruitment interviewer as the Army records show. Although it reflects on Ms Dugan's credibility to some extent, I do not give it much weight in my assessment of her evidence due to her age at the time and her enthusiasm for enlistment.
Incidentally, Ms Dugan told the interviewer also that her grandfather had been in the Army (as well as her father), but when she was specifically asked in examination-in-chief whether any other family members had connections with the armed forces she mentioned only her father's friend whom she called 'uncle'. As she was not cross‑examined on this discrepancy, I give it no weight in my assessment.
In cross-examination it was suggested that Ms Dugan embellished the curriculum vitae she provided to West Australian Newspapers Ltd in 2020 (exhibit 20, page 1) by overstating her achievements in the short period of time she was in the Army. While it was reasonable to make the point, I am reluctant to place much weight on this feature of Ms Dugan's curriculum vitae as a factor affecting her credibility generally. Such puffery reflects, in my view, her talent as a wordsmith and might be expected of an aspirant journalist.
Of greater significance, or at least of more interest in this case, is the apparent incongruence between Ms Dugan's evidence that she is not happy in her current role and the letter that she sent to Curtin University earlier this year in support of an application for a unit to be credited for recognised learning (exhibit 20, page 54). She based this application upon her experience working as an intern at The West Australian during the second semester of 2020. The letter went into considerable detail in terms of her reporting experience and was countersigned by the editor-in-chief of The West Australian as a form of verification.
In the letter Ms Dugan expressed unequivocal enthusiasm for her job that she described as 'adventurous and educating'. It was put to Ms Dugan on the basis of this letter, and with reference to a selection of published articles carrying her by-line (exhibit 2), that she was thoroughly enjoying her work. At ts 92:
Counsel:An independent reader may be prompted to think you're loving what you're getting to do at the West Australian and have been thrown in the deep end and are thriving on it. Would that be a wrong thing to take from reading this?
Ms Dugan:It wouldn't be a wrong thing, no, but to be perfectly candid, this was something for credit and obviously I wanted the credit so ‑ not that I have lied or anything in this, I would say, I've talked myself up a bit but also my boss, editor in chief, Anthony, signed it and I wouldn't add any of my pain or daily struggles because it's hard enough to be a woman in the newsroom, I don't need to be the one that struggles with pain and then obviously it's not relevant to getting credit, he ‑ he won't care.
As I heard the evidence, there were really two complaints Ms Dugan made about her work as a journalist. One was that she had difficulty concentrating due to her hearing loss, experienced occasional shoulder pain extending to her neck and jaw resulting in a left-sided headache, experienced occasional tinnitus and was fatigued by her symptoms. The other was that experience of working as a reporter did not meet her expectations in that a lot of her work involved having to write 'news that sells'.
I would not have expected either of these factors to have featured in a letter seeking academic credit for recognised learning, yet the letter reads as a positive report of Ms Dugan's experience of journalism that is at odds with her evidence in which she tended to downplay her success and to emphasise her reasons for dissatisfaction.
It reflects well on Ms Dugan that she was able to obtain an internship at The West Australian and within a short period of time be given a three year contract as a journalist. A significant number of prominent news articles have carried her by‑line, including reports relating to the murder of a high profile member of an outlaw motor cycle gang, a feature article on the 2020 'Telethon kids', articles relating to mental health problems within the police service, and a feature based on a first person account of the safety of young females at night in the Scarborough area, to give just a few examples. Within a little over six months (to the date of trial), Ms Dugan has obtained a good deal of experience and exposure. At the same time, as a cadet journalist, she has doubtless had to do menial, or even dispiriting, work as well.
Ms Dugan's residual disabilities and symptoms have been documented in the medical reports of Dr Delcanho, Dr Hee and Dr Overmeire. These specialists each appear to have been given a frank history of symptoms. Their respective opinions are unchallenged and afford, in my view, a reliable basis for an assessment of the impact of the injuries on Ms Dugan's overall wellbeing and capacity. Dr Overmeire, in particular, professes appropriate expertise to opine on Ms Dugan's capacity for work.

Findings

The nature and extent of the crash-caused injuries

Having regard to Dr Hee's opinion as to the extent of Ms Dugan's hearing loss, I find it difficult to accept that she would not be able to put her phone to her left ear and not be able to hear well enough so as to be able to follow conversations. On the basis of Dr Hee's evidence, I do not consider that Ms Dugan's mild hearing loss and tinnitus constitute anything more than inconvenience when it comes to doing her work. As her hearing loss is mild, such that a hearing aid is not required, her difficulty in concentrating appears more likely to be caused by the newsroom environment than impaired hearing.
I accept that Ms Dugan did suffer a noise injury in the course of the crash which has resulted in 5% hearing loss in her left ear and occasional tinnitus. These conditions are not disabling. They do not diminish her earning capacity. There is no evidence that they are likely to make her less competitive in the professional labour market or to restrict the scope of her employment. They are compensable, however, in terms of non‑pecuniary loss.
Ms Dugan has also experienced a symptom complex which appears to be consistent with the circumstances of the crash and which is marked by left shoulder pain, left temporo-mandibular joint pain and left-sided temporal headaches of a migrainous nature.
The jaw problem has been explained by Dr Delcahno as being due to derangement of the left temporomandibular joint with secondary masticatory myalgia. He said Ms Dugan had poor functional occlusion. He recommended splint therapy (with which Ms Dugan did not persist), topical analgesic and anti-inflammatory treatments, and a home exercise programme. Ms Dugan has not been reviewed by Dr Delcahno since March 2018. As Dr Delcanho was not called, the court has no evidence of the prognosis of this condition, or of what could reasonably be expected of the treatment he recommended.
Dr Overmeire has observed that Ms Dugan's history indicates that she had a constitutional pre-disposition to experiencing mechanical neck pain with regional muscle spasm and cervicogenic headaches. She had treatment for left shoulder pain, neck pain and headaches in 2014. Left shoulder symptoms were also complained of at Kapooka in 2016 prior to the crash. She appeared to respond well to therapy prior to the crash, but did not report any significant pain-free periods since that event suggesting, according to Dr Overmeire, that the crash injuries were more significant than the problems she experienced in 2014, 2015, and indeed, 2016. It was on this basis that he reached his opinion that the crash injuries were a significant contributing factor to her symptomatic condition.
While I accept that Ms Dugan has cervicogenic headaches of a migrainous nature, the fact that she has not seen a neurologist, despite having been referred to Dr Burton in 2016, and no longer takes prescription medication for them, suggests that they are tolerable.
I find on the basis of Ms Dugan's evidence as a whole that despite her symptoms causing some difficulty, her capacity for study, casual hospitality work and full‑time work as a journalist has not been diminished. Ms Dugan's evidence was that her crash-related symptoms do not prevent her from doing her work, but cause fatigue and affect her motivation. At the date of trial Ms Dugan had only been working fulltime for about seven or eight months. It is reasonable to infer that at least some of her fatigue has been caused by the demands of the work itself.
At university Ms Dugan was not only able to study and work to support herself, but also participate in touch rugby, including at the university games at the Gold Coast in September 2017, and enjoy associated social activities.
According to Dr Overmeire, whose evidence I accept as reliable, Ms Dugan's symptoms have not impaired to a significant extent her capacity to study and work, and are not likely to do so in the future. They may prevent her from playing netball, but have not prevented her from playing touch rugby. Ms Dugan is still able to do personal training. The symptoms do cause her to experience fatigue during the working day, making her work more difficult and less enjoyable than it would otherwise be, but do not, on the medical evidence, impair her capacity to work in a professional capacity.
I accept that Ms Dugan has suffered and will in the future continue to suffer from mild injury-induced hearing loss and occasional tinnitus, TMJ dysfunction with symptoms of pain and limitation of movement, and cervicogenic left-sided headaches of a migrainous nature, associated with left shoulder and left sided neck pain. These symptoms have become chronic. They have diminished and will continue to diminish Ms Dugan's enjoyment of life to a significant extent. They have, I accept, caused Ms Dugan to limit the range of activities in which she engages and they do make her day-to-day life, including her professional work, less enjoyable than it would otherwise be. On the evidence of Dr Overmeire, they are likely to improve with treatment, but persist for the foreseeable future. In relative terms, her symptoms, while distressing, are not significantly disabling or incapacitating.
In terms of assessing the proportional severity of Ms Dugan's injuries for the purposes of determining an award for non-pecuniary loss, I take into account the constitutional pre-disposition to left shoulder and neck pain and headaches noted by Dr Overmeire. On the basis of Ms Dugan's history I find that she would have suffered such symptoms from time-to-time, as she did on occasions prior to the crash, but the defendant, of course, must take Ms Dugan as she finds her. I do not consider that her loss is substantially diminished by the likelihood that she would probably have had acute episodes of those symptoms in any event.
Taking all matters into account I would assess damages for non‑pecuniary loss on the basis of a proportional severity of injury of 18% of a most extreme case, warranting damages of $78,840. After subtraction of the statutory deductible, the net award is $68,180.

Loss of earning capacity

To establish an entitlement to damages for loss of earning capacity the plaintiff must prove that there earning capacity has in fact been diminished by the injuries caused by the defendant's negligence and that the loss of capacity is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340.
There are two issues that arise for determination, the first being whether Ms Dugan has suffered financial loss by reason of being precluded from enlisting as a soldier in the Australian Army due to her injuries, and the second is whether, in the future, Ms Dugan may suffer financial loss by reason of incapacity for work that may reduce the scope of her employment opportunities or her competitiveness, which is how I understand the pleaded a claim for 'loss of parameters of employment'.
On the question of whether Ms Dugan would have, but for the crash, re‑enlisted in the army in 2017, I find, on balance (and only barely), that she would have done so. My reasons for this finding are as follows. After the crash and up to the date of her 18^th birthday Ms Dugan on her evidence was keen to go back to the Army, as she had been encouraged to do. In that time she studied to get her ATAR which she thought would help her application. She eschewed medical treatment and in fact made no claim for her injuries believing she would get better, and not wanting to prejudice her Army prospects. Her evidence was that it was only after she saw Dr Delcanho in March 2018 that she realised that could not re-enlist. The emails she sent to Defence Force Recruiting in 2016 indicate that, notwithstanding the crash, she hoped to be able to re‑enlist when she turned 18. I consider that having initially met the physical fitness criteria, albeit that she failed the beep test at Kapooka twice, she would have readied herself physically in order to pass the fitness test on the second time around. I consider, having heard Ms Dugan's evidence that she would have been better prepared emotionally and psychologically to undergo training at age 18, than she was at 17.

At taxation the plaintiff contended that the 3.5 days referred to in the invoice related to preparation and did not include the first day of trial. To that end she provided a copy of an email addressed by her solicitor to counsel and counsel's reply. The result of that interchange is a statement by counsel in his email as follows:
… that 3.5 days was meant to cover the lead up to the trial but not the first day. The first day should have been in addition to the 3.5.
In effect thereby the specification of 3.5 days in the invoice would be transposed to a point prior to the reference to the first day of trial.
Regardless that clarification of the case for recovery of the claim, the thrust of the defendant's objection is ill-founded. Recovery under the order is available for the plaintiff's costs of the action. It is incidental that the process of determining the extent of recovery under the order is approached by reference to the procedural steps taken in the action. Although the extent of the benefit provided by the order is established by reference to the scale, the application of appropriate tests for recovery and consideration of a standard, those considerations ought not obscure the intention expressed in the order: to accord a benefit in the form of provision for the cost of representation in the action. Sufficient regard for what is characterised as a limited indemnity is had by reference to the cost of representation to which the beneficial party has been or will be exposed under its retainer.
Although the indemnity provided by an order may bring a taxation to an abrupt conclusion, a beneficial party may choose to address the issue at the point of completion of the allocator.
In certifying the result of taxation, unless reason to do so has emerged during the course of taxation, it is not the role of the taxing officer to enquire of the beneficial party whether doing so would accord with the benefit provided by the order.
Up until this point I have not been informed that the plaintiff would have me limit the extent of recovery.
To the extent that the defendant expresses a contrary view she is incorrect in her understanding of the benefit provided by the usual order for costs.
I would add that although the plaintiff does not present the claims for recovery of counsel's fee as a disbursement, the terms of the objection suggest that she had done so. Unlike the context presented by recovery under a retainer, for the purposes of taxation under an order, counsel's fee is not a disbursement.
A bill of costs presented under an order is of the beneficial party. In accordance with r 11(4) an item in a bill for the provision of a service by counsel is properly included in that part of a bill by which the beneficial party seeks to recover fees paid or payable for services provided by a practitioner. The rule is as follows:
(4)Subject to the provisions of this Order, and to any order made by the Court and the terms of any relevant scale, the fees prescribed by any relevant scale cover all work done, whether by the solicitor or by counsel.
It is of no consequence that a particular service was provided by counsel. Unless there is a reference to counsel's fee in an order, in recovering the cost of a service provided by counsel the beneficial party is not required to produce counsel's fee note.
None of the terms by which the objection is expressed is sufficient to establish an error in principle in the determination of the claim for counsel's fee on brief, first day of trial and preparation including opening submissions.
The next determination the subject of objection relates to the extent of recovery under item 33 of the bill by which the plaintiff claims for the second day of trial.
The terms of the defendant's objection are as follows:
35.The Plaintiff's claim for Counsel's attendance at the second day of trial was allowed in full, being $2,255 (five hours).
36.The Defendant submits that, whilst a daily hearing rate is provided for in the Costs Determination, this does not entitle a party to claim this as of right.
37.Clause 7(d) of the Costs Determination makes it clear that recovery at the daily rate is only applicable where a full day has been worked.
38.From the trial transcript it is clear the second day of trial ran from 10.41am to 11.26am (i.e. just over 45 minutes).
39.The Defendant submits that the Taxing Officer made an error in principle in allowing the entire claim in such circumstances.
The defendant's objection to the next item in the plaintiff's bill, for the third day of trial resonates with the objection taken to the determination made in relation to the second, the only difference being that she states that the transcript ran from 10.41 am to 12.49 pm, a period of just over two hours.
The reference that the defendant makes to the content of cl 7(d) of the costs determination is inaccurate. Clause 7(d) provides as follows:
Recovery of daily fees for counsel on the taxation or assessment of a Bill of Costs is intended to apply only when a full day has been worked, either in Court or in Court and in preparation for a subsequent hearing day.
Recovery under item 22(c) of the scale is not provided for by time costing. The maximum amount recoverable for the second and each successive day of hearing specified at item 22(c) of the scale is $4,510. For each of the second and third day the plaintiff claimed $2,255. The plaintiff recovered each amount claimed.
In the plaintiff's response to the objection, she provides detail relating to the services provided by counsel on the second and third days.
The basis upon which the claims were sought to be recovered was transparent. In each instance the preparation undertaken was for the balance of the trial. Although on a reading of cl 7(d) it may be taken that there could be no recovery of a daily fee for preparation undertaken for the final day of hearing unless undertaken prior to midnight on the penultimate hearing day, I doubt that the defendant would seriously so contend; there being no logical reason to exclude recovery for preparation undertaken on the day.
The defendant does not actually contend either that by the determination there had been recovery for a full day on the second and third day of trial or that the plaintiff could not recover for preparation undertaken for the third day of trial unless undertaken prior to midnight on the second day of trial.
In drawing the bill the plaintiff had been required by r 42(1) to specify the claim for the days of hearing other than the first day by reference to item 22(c) of the scale. The claim was advanced upon that basis at taxation. As I have stated, the plaintiff's approach to recovery for preparation and trial on the second and third days was transparent. It is no more than implicit in the defendant's contention of error that in coming to the determination an assessment had been made that is consistent with there having been a full day on the second and third days.
The plaintiff did not seek to recover on the basis of a daily fee for either the second or third day of trial but on the basis of the value of the service provided on those days to the extent that it had been provided regardless whether it was constituted by preparation or trial. There is no justification for the proposition that recovery was had for a full day on each of the second and third days of trial.
Neither of the objections of the defendant is sufficient to establish jurisdiction to review.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

FN
Associate

19 SEPTEMBER 2022

YEAR	AGE	RANK	SALARY	SALARY + ALLOWANCE
2017	18	Recruit	$38,033	$38,033
2017-18	19	Trainee	$46,219	$56,599
2019	20	Private	$50,333	$64,899
2020	21	Private	$53,027	$67,593