Chapman by his next friend Anthony Chapman v Katheappa - [2003] WASCA 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: CHAPMAN by his next friend ANTHONY CHAPMAN -v- KATHEAPPA [2003] WASCA 50

CORAM: MURRAY J
ANDERSON J
STEYTLER J

HEARD: 12 FEBRUARY 2003

DELIVERED : 21 MARCH 2003

FILE NO/S: FUL 74 of 2002

BETWEEN: LUKE BURLEY CHAPMAN by his next friend ANTHONY CHAPMAN
Appellant
AND
ANDRESH PERRY KATHEAPPA
Respondent

Catchwords:

Damages - Appeal - Personal injury as a result of motor vehicle accident - Whether trial Judge erred in assessment of damages - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Damages increased in relation to loss of future earning capacity and superannuation benefits

Category: B

Representation:

Counsel:

Appellant: Mr M J McCusker QC & Mr P L Harris
Respondent: Mr J G Staude

Solicitors:

Appellant: Ilberys
Respondent: John G Staude

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

Lyszkowicz v Colin Earnshaw Homes Pty Ltd [2002] WASCA 205
Villasevil v Pickering (2001) 24 WAR 167

Case(s) also cited:

Arvind v Greco (1995) A Tort Rep 81357
Beck v Farrelly (1975) 13 SASR 17
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81-043
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
Campbell v Nangle (1985) 40 SASR 161
De Sales v Ingrilli (2002) 77 ALJR 99
Dell v Dalton (1991) 23 NSWLR 528
Gamser v The Nominal Defendant (1977) 136 CLR 145
GIO (NSW) v Rosniak (1992) 27 NSWLR 665
Gray v Motor Accident Commission (1998) 196 CLR 1
Griffiths v Kerkemeyer (1977) 139 CLR 161
Heather v Vita Pacific Ltd (1996) 6 Tas R 52
Hendrie v Ruslie [2000] WASCA 202
Jongen v CSR Ltd (1992) A Tort Rep 81912
Kars v Kars (1996) 187 CLR 354
Kelly v Fletcher, unreported; FCt SCt of WA; Library No 970535; 22 October 1997
Kember v Thackrah [2000] WASCA 198
Le Clerc v French, unreported; SCt of Tas (Zeeman J); BC960647; 24 December 1996
Lloyd v Faraone [1989] WAR 154
Marsland v Andjelic (1993) 31 NSWLR 162
Medlin v SGIC (1995) 182 CLR 1
Miller v Jennings (1954) 92 CLR 190
Morris v Zanki (1997) 18 WAR 260
Newman v Nugent (1992) 12 WAR 119
Nguyen v Nguyen (1990) 169 CLR 245
Nicholson v Nicholson (1994) 35 NSWLR 308
Smith v Robb (1997) 17 SR (WA) 316a
Southgate v Waterford (1990) 21 NSWLR 427
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Steele v Stacey (1996) 16 SR (WA) 194c
Struthers v Harris [1983] WAR 123
Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522
Van Gervan v Fenton (1992) 175 CLR 327
Wilson v Peisley (1975) 50 ALJR 207
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

MURRAY J: I have had the advantage of reading in draft the reasons for decision of Steytler J. I agree with them and with his Honour's conclusion that the appeal should be allowed. The award of damages made by the trial Judge should be set aside and in lieu thereof the appellant should have judgment in the sum of $921,669.34.
ANDERSON J: I have read the judgment of Steytler J and agree with it. There is nothing I can usefully add.
STEYTLER J: This is an appeal against an assessment of damages by a District Court Judge arising out of injuries suffered by the appellant after he was struck by a motor vehicle in the early hours of the morning of 9 August 1997. Liability for the damages resulting from the accident had been fixed, with the respondent being 70 per cent liable and the appellant having been 30 per cent liable.
The appellant, who was born on 11 March 1977, was only 20 years old at the time of the accident. Until that time, he had been a happy, popular and outgoing young man.
He had been a very good tennis player, having played A‑grade pennants at the age of 16. He was then a state‑ranked junior. He was also a gifted sportsman in other fields, including football.
The appellant had also been an above average student at school. So much is apparent from the evidence given at the trial by his primary school teacher and by each of two successive principals at the high school attended by him, being John XXIII College. He had achieved a TEE score of 313, although it was said of him that he had had the potential to do significantly better than this.
In 1995 the appellant enrolled at the University of Western Australia for the degree of Bachelor of Science in natural resource management. However, he deferred three of his exams and withdrew from another, having performed poorly over the course of the year because of a failure to apply himself to his studies rather than to his social pursuits.
In 1996 he enrolled for the degree of Bachelor of Business at Edith Cowan University and, after an unsuccessful year, re‑enrolled on 1 September 1997. However, he later withdrew from the course. Of the 12 units undertaken by him prior to his withdrawal, he obtained two passes and three credits. In the case of one unit the result was not available. The appellant withdrew from the rest of the units.

Thereafter the appellant took up employment. At the time of his accident, he had just completed a period of employment, lasting some seven or eight months, with a developer and builder, Terrence Hebiton. Mr Hebiton spoke highly of the appellant and said that, by the time the appellant left his employment, he was in charge of a building site, with other builder's labourers working under his direction. The appellant's employment with Mr Hebiton came to an end when a particular project on which he had been working finished and the plaintiff decided to visit family friends in Sweden for a period of around three months. However, the accident intervened.

The injuries sustained by the Appellant

The injuries sustained by the appellant in the accident were very severe. On admission to Sir Charles Gairdner Hospital he was found to have a large occipital scalp laceration. While his skull was not fractured, there was fluid in the right maxillary antrum, soft tissue swelling over the left parieto‑occipital region and a possible small contusion of the left frontal lobe. He had a large transverse laceration of his anterior neck, with almost complete transection of his trachea. He had a comminuted fracture of his left scapula, which was associated with peripheral nerve damage to his left suprascapula and left axillary nerves. He also suffered from a number of skin lacerations.
He was required to be mechanically ventilated and a bronchoscopy and a tracheostomy were performed. After this initial emergency surgery he was kept in the intensive care department of the hospital, with reduced sedation and a gradual weaning from mechanical ventilation. It soon became apparent that his short‑term neurological recovery was poor, with extensor posturing. He developed a gram‑negative nosocomial pneumonia while still in intensive care, but this was successfully treated.
He was discharged from the intensive care department and admitted to the neurosurgical high dependency unit on 15 August 1997. He remained there until 8 September 1997, by which time his condition had stabilised sufficiently for him to be transferred to the Shenton Park Campus at Royal Perth Hospital for further treatment. He then still had a tracheostomy tube inserted for airway protection. His only remaining disability from his laryngeal injury was an acceptable neck scar, but he then still suffered from a significant weakness of his left side limbs and had "a marked left‑sided visual neglect". More significantly, he was cognitively confused, in an agitated state and appeared to have little awareness of his surroundings.
Towards the end of September 1997, the appellant was extubated from his tracheostomy, his tracheal injuries having, by then, adequately healed. However, an EMG study confirmed that he suffered from peripheral nerve injuries affecting his left suprascapula and left axillary nerves.
By mid‑October 1997 the appellant was able to walk independently, although he suffered from balance and gait impairments. While there is some doubt as to the date of his discharge home, it seems probable (as the trial Judge found) that this was on 11 November 1997. By that time his left hemiplegia had largely resolved. However, his cognitive abilities showed problems, with significant impairments in his short‑term memory, new learning, rate of information processing and concentration. He was required to attend a comprehensive outpatient therapy programme for physiotherapy, occupational therapy and clinical psychological counselling. This programme involved attendances every Monday to Friday until July 1998. During much of this period, the appellant was supervised by Dr Kim Fong, a specialist in rehabilitation medicine. By January 1998 Dr Fong was of the opinion that the appellant was functionally independent for all of his routine activities of daily living at home. By April 1998 his left shoulder function had improved significantly, with only a mild level of residual weakness.
However, by December 1998 it was apparent that the appellant suffered from significant psychiatric and psychological difficulties. These manifested themselves in a number of ways. He had become obsessive in respect of exercise, sometimes spending up to five or six hours a day on exercise activities. His eating habits were irregular and he suffered from a significant degree of weight loss, raising the possibility of an eating disorder. He had also become socially isolated, often sleeping at an early hour and showing little interest in interacting with his former friends.
The appellant was reviewed by Dr Fong on 7 June 2000. Physically, he was not in bad shape. However, he suffered from a moderate impairment of his balance and limb coordination with a persistent sign of nystagmus on the left lateral gaze, these symptoms being indicative of continuing cerebellar dysfunction. His cognitive improvement had also regressed, probably because of his adverse psychological reactions to his disability. He had shown poor adjustment to his residual symptoms and impairments and had become preoccupied with a comparison between his pre- and post‑accident social and sporting capacity. The appellant was then under the care of Dr Paul Skerritt, a consultant psychiatrist.
Dr Michael McComish, a general physician, examined the appellant on 16 November 2000 and, in the light of his own examination of the appellant coupled with his assessment of reports provided by other medical practitioners, concluded that the appellant's significant behavioural disturbances were directly attributable to his brain injury and were likely to be of long‑standing and possibly permanent duration. Dr McComish described the appellant as "… an earnest and troubled young man, aware of a changed personality and several disabling behavioural traits, who has significant physical disability and an uncertain future".
The appellant's general practitioner, Dr Ernest Rozsa, in a report dated 4 February 2000, said that, while the appellant had recovered remarkably well, physically, he had ongoing mental and emotional problems. Physically, the appellant had restricted shoulder movements with suprascapula neuropathy and possible minor nerve damage to his serratus anterior, resulting in excessive winging of his scapula, several scars relating to the surgical repairs to his neck and some difficulties with walking "heel to toe". However, mentally, he had some elements of dysphasia and suffered from frustration and social isolation.
The appellant has also had the assistance of two clinical psychologists, the first being Ms Helen Pryer and the second, from May 1999, being Mr Rodrigo Becerra.
Mr Becerra observed some manic aspects of the appellant's behaviour, in the form of excessive and ritualistic exercising which, Mr Becerra believed, was the result of a conscious decision to compensate for the appellant's lack of control after his injuries. It also resulted in the appellant's failure to acknowledge any problem and in his insistence that he was "fine". In his report of 28 July 2000, Mr Becerra said:
"The ritualistic nature of his exercises, in addition to his excessive preoccupation with his body, eating habits and other matters, clearly point to the possibility of an incipient Obsessive Compulsive Disorder. Given the secretive nature of this disorder he might be already experiencing the other criteria for a full diagnosis but he might not be ready to openly discuss this at this point in time."
Mr Becerra also observed clear signs of depression.
Dr Skerritt arrived at similar conclusions, having formed the opinion that a significant source of the appellant's disability was "frank obsessive compulsive disorder". Dr Skerritt also referred to a preoccupation which the appellant had with his genitalia in that he was obsessed with the belief that he had a smaller than average penis, although all medical practitioners who had examined him had said that he was perfectly normal. Notwithstanding that he was repeatedly told this, the appellant believed, and still believes, that the doctors were deliberately lying in order to make him feel better.
In a report dated 15 March 2000 Dr Skerritt said that the appellant presented with:
"… a very clear picture of a common mixture of psychiatric symptoms which are sometimes to be functional, that is[,] not associated with readily demonstrable brain disorder. That is, the predominating area of symptoms coincide with a diagnosis of obsessive compulsive disorder with very significant but intermittent depression in the meantime."
Dr Skerritt had placed the appellant on a regime of drugs in order to combat both the depressive illness and the obsessive compulsive disorder.
The trial Judge described the effect of Dr Skerritt's evidence at the trial as follows ([25] and [26]):
"In evidence Dr Skerritt confirmed the contents of his reports … and said in summary that the plaintiff presented with a 'powerful set of symptoms' each one individually very serious and having quite a considerable impact upon the plaintiff's life. He thought the plaintiff's prognosis grave following 2 years of treatment with quite limited effect. He thought the plaintiff's prospects of marriage difficult unless the plaintiff found someone quite exceptional and there was a clear but unexpressed concern that the plaintiff may transfer his obsessional behaviour with his mother to any woman with whom he formed a strong emotional bond. Dr Skerritt noted with concern the plaintiff's dependence upon his mother such that he almost followed her from room to room. He thought too that the plaintiff's prospects for employment were quite grave although he conceded that the plaintiff had done a bit better than he thought. Whilst recognising the plaintiff was full of ambition to teach in Aboriginal communities or missions he thought the ambition unrealistic whilst not being entirely hopeless.
Cross‑examined about the seriousness of the plaintiff's eating disorder Dr Skerritt said that eating disorders reveal the highest mortality of any of the psychiatric illnesses and in response to a question from me said that they had a higher mortality rate even than depression."
The trial Judge also remarked [27] that the appellant's parents confirmed all aspects of the medical observations of his behavioural problems, including his eating disorder, his preoccupation with eating only certain kinds of food, his refusal to eat, his obsession with exercise and with the size of his penis and his anxiety at being separated from his mother, Mrs Hendrika Chapman. They spoke, also, of his depression or frustration and of his constant comparison of his pre‑accident abilities with his post‑accident performance.
The appellant's obsessions became apparent, too, in the course of his own evidence at the trial. He firmly believed that he had "a gut" when all of the evidence indicated that he was in fact underweight and otherwise extremely fit. He said that his weight was "his life" and that his exercise activities were a compensation for not playing sport and were also directed to meeting a female and forming a relationship with her and having a child with her. He believed that the only way in which he could achieve those objectives was by improving his appearance. He believed that people who said that he did not have a weight problem were lying to him.
Because there was, and is, little doubt about the nature and severity of the appellant's condition, it is unnecessary to detail other medical evidence which, essentially, confirms the diagnoses to which I have already referred.

Care from the Appellant's family

Evidence was also led, at the trial, of the fact that the appellant's condition had necessitated constant care from his family, particularly his mother. During the period that he was in Sir Charles Gairdner Hospital, the appellant's mother and father were at his bedside constantly. His mother spent only a few hours of each day at home as her presence at the hospital was often insisted upon by the appellant. When he became agitated, she was the only person who could settle him down.
The trial Judge found that this pattern of attendance continued when the appellant was transferred to Royal Perth Rehabilitation Hospital on 8 September 1997 and remained until his discharge from there on 11 November that year. The appellant's mother spent as much time as was permitted with the appellant. Apart from attending to various of his needs she spent time talking to and encouraging him. His father, too, visited him whenever he could. The burden placed on the household by these events was so great as to cause a significant deterioration in the relationship between the appellant and his brother and sister.
After the appellant's discharge from Shenton Park Rehabilitation Hospital on 11 November 1997, Mrs Chapman continued to bear a heavy load as regards the care of her son. She took him to appointments with psychologists and other medical practitioners and was constantly in his company, as he became agitated whenever she was not with him. The appellant would not use public transport because he was distressed by the prospect that people were looking at him. His mother said that, when she was not with the appellant, he would telephone her at least three or four times to find out how long she was going to be away, where she was and whether he could join her.

The Appellant's post‑accident employment

Since recovering from his physical injuries, the appellant has worked in different capacities. A number of people who have employed him since his accident gave evidence at the trial. He had worked in relatively menial occupations, as a general garden hand, groundsman and cleaner. The evidence of all of his employers was to very similar effect. He was reliable, personable and trustworthy, but had only a limited capacity for self‑organisation and required constant supervision for tasks which were not merely simple and repetitive.

The trial judge's findings of fact

The trial Judge, having dealt with the appellant's background and much of the medical and other evidence concerning him (and most of the aforegoing repeats observations made by his Honour), arrived at a number of findings of fact which are material to the appeal. I will deal with these in turn.

(a) The appellant's dependence on his mother

The trial Judge found, firstly, that Mrs Chapman had unconsciously exaggerated the extent of her son's dependence upon her. This was so, he said, because the appellant had been able to be independent of his mother over certain periods. The most significant of these was a period of three months while the appellant worked as a volunteer on a mission at Turkey Creek. He had also had what the trial Judge described as "fairly consistent" part‑time and "occasional" full‑time employment and was, at the time of the trial, "working half‑time". The trial Judge referred, also, to the appellant's commitment to exercise for a period which was close to four hours a day. He remarked, also, that Dr Fong had expressed the opinion that the appellant had the capacity and the means for independent living and full‑time employment.

(b) Education

Next, the trial Judge found that, contrary to the belief of the appellant's parents and the appellant himself, the appellant was "not a person who would ever have been a high academic achiever". He said that, in his opinion, the plaintiff did not have the application for academic pursuits and would have been unlikely to have graduated from a tertiary institution.
In arriving at this conclusion, the trial Judge relied upon school reports. These related primarily to year 8, although, the trial Judge said, similar observations continued intermittently until year 11. In that year there was, in the second semester, an improvement in the appellant's performance reflecting what the trial Judge described as "a more diligent approach which continued into year 12".
The trial Judge also said that a score of 313 was "not a particularly good mark for a student seeking to pursue a tertiary education at any of the three major universities in Western Australia". The trial Judge also relied upon the unsatisfactory attempts made by the appellant at tertiary study to which I have earlier referred. He said that the appellant impressed him "as being devoted to his close circle of friends" and as being "far more interested in socialising and sport than he ever was in study".
The appellant had, in fact, returned to study after his accident. He enrolled for an economics course in 1999 but, after passing one unit, withdrew from the course and later travelled to the north of the State in order to work on an aboriginal mission at Turkey Creek. There, he became enthused with the idea of becoming a primary school teacher. He enrolled in a primary school teacher's course at Notre Dame University in the year 2000. However, he found this difficult and changed to a course through which he might qualify as an assistant teacher, assisting teachers of children with special needs. He successfully completed the course.

(c) Social and sporting life

The trial Judge, after referring to the fact that the appellant had been a gifted sportsman, said that the appellant felt the loss of his sporting abilities "very keenly". However, he remarked [51] that, by the time of the accident, the appellant had given up all competitive sport and was playing various sports only as an adjunct to his social life. This kind of life, the trial Judge said, was very important to him and, he said [51]:
"Whilst all the signs were there for the plaintiff having a remarkably enjoyable life surrounded by friends, enjoying sport and interacting well with the opposite sex, there were no signs that he would be a high academic achiever or a high achiever in business as was being promoted in the prosecution of the plaintiff's claim."

(d) Future employment

In his evidence at the trial, the appellant was optimistic about his ability to work as an assistant teacher. His optimism was, to some extent, supported by Dr Fong, who said, in a report dated 15 November 2001, that he expected that the appellant would be capable of working full‑time in that occupation, barring any unexpected changes in his condition. Dr McComish, in his report dated 22 November 2000, said that the appellant, if appropriately directed and supported, might be able to compete in the workforce in a menial way. He said:
"He is highly motivated to work in the north-west following his recent experience, and given the success of that venture one might say, with guarded optimism[,] that he could do such work in the future. It was mainly cleaning, gardening, and working as a general factotum."
Dr Skerritt, on the other hand, was more pessimistic. In his report dated 20 November 2001 he said:
"… [The appellant] has done better than expected in his course at Notre Dame University. This is a course for a Teachers Aide [sic] and consists of a 1‑year certificate and is thus not, perhaps, at a very high academic level but it is pleasing that he has been able to apply himself to it and achieve good marks. The frontal lobe deficit will, I think, affect his ability to deliver the skills that he has learned and I am not at all optimistic about his ability to function in the open work place, although Luke has somewhat optimism, [sic] which may well be misplaced."
The trial Judge preferred the evidence of Dr Skerritt to that of the other two doctors, in this respect. I will return to this below, when dealing with the trial Judge's award in respect of loss of future earning capacity.

(e) Employment prospects prior to the accident

Evidence was given to the effect that the appellant's father had a successful real estate business and the trial Judge formed the conclusion that it was likely that the appellant would ultimately have been employed in that business. Evidence of what he could earn in a business of that kind was given by his father, by Mr Jeremy Dalton, a director of Jones Lang Lasalle, and by Mr Jonathon Smeulders, a property manager employed by of Multiplex Asset Management.
The appellant's father said that a starting salary for someone in the appellant's position would have been around $30,000 to $40,000 per annum, rising, after two or three years, to between $40,000 and $60,000 per annum. The latter range was one in which, the appellant's father said, employees could "get stuck", but he believed that, ultimately, the appellant would have taken over his business and earned roughly what he was earning, being about $250,000 per annum.
Mr Dalton said that shopping centre managers could generally expect to earn, as graduate trainees, between $23,000 and $38,000 per annum and that the majority of his company's property managers earned between $75,000 and $80,000 per annum. Mr Smeulders said that property managers would typically start on a salary of between $25,000 and $30,000 per annum, plus benefits, and that, after 12 to 18 months, they would move into a bracket of between $35,000 and $50,000 per annum. He said that improvements after that depended upon the individual, with the range available in Perth being between $70,000 and $120,000 per annum.
The trial Judge said that each of Mr Dalton and Mr Smeulders had been referring to the salaries of property managers with tertiary qualifications. He reiterated that he had come to the firm opinion that the appellant would not have succeeded in obtaining such qualifications. He also found that the appellant would not have been as good at his job as his father was and that "his role would always have been secondary, leaving him … placed in the middle range of real estate management for most of his life". He added that, whilst the appellant's father would undoubtedly have been a generous employer, his impression of him, and of Mrs Chapman, "was that he would not have been too generous because he would have been mindful of the effects on his other two children and would have to have been seen to be even‑handed". No evidence to that effect was led either from Mr Chapman or from Mrs Chapman.
It is important to mention, in this respect, that counsel for the defendant had conceded that the appellant would have earned as much as $75,000 per annum. Notwithstanding this concession, to which the trial Judge expressly referred, his Honour reached the conclusion that it was "more probable than not that the … [appellant's] earnings path would have been between the range of $25,000 to $60,000 per annum".

The trial judge's assessment of damages

Next, the trial Judge turned his attention to the amount which should be awarded to the appellant by way of damages.

(a) General damages

First, his Honour assessed the award which should be made by way of general damages. He said that the appellant had been obliged to endure very severe pain and suffering. He went on to say [74]:
"Whilst he appears to have made a relatively good physical recovery from his head injury, he has been left with a mild degree of cognitive impairment, some residual scarring, a degree of limitation of movement of the left shoulder and, most significantly, serious psychiatric and psychological problems. The prospects for his recovery from these after two years of treatment by the specialists, Dr Skerritt and Mr Becerra, suggest that they are permanent with little or no prospect of cure, and perhaps some of a little amelioration, but not much … His prospects of marriage have been significantly reduced and as Dr Skerritt said[,] for him to marry and have children will require him to find a remarkable woman …".
His Honour went on to find that the appellant's claim for general damages could be put "at about the 70th percentile of a most serious case" and, having regard for the maximum sum of $232,000 fixed by s 3C(1) of the Motor Vehicle (Third Party Insurance) Act 1943, awarded general damages of $162,400.

(b) Past gratuitous services

In considering the appellant's claim for past gratuitous services, the trial Judge repeated his finding that Mrs Chapman had unconsciously exaggerated the amount of time she spent in rendering gratuitous services on the appellant's behalf. He said [78]:
"In truth she probably cannot differentiate between the plaintiff's social demands upon her (shopping, walking on the beach, having coffee, chatting, etc.) with those periods in which she is actively engaged in his supervision, care and support by way of overseeing his medication, his visits to medical specialists and the like. Again, it is to be borne in mind that Dr Fong is of the opinion that the plaintiff has the capacity for independent living. In my opinion the evidence discloses that this would have averaged out over the period from 1 July 1998 until judgment at somewhere between one and two hours a day and an appropriate award would be based on 10 hours per week at the hourly rate conceded by the defendant at $15 per hour. $150 per week is $7,800 per annum. $7,800 per annum for the 3.45 years until judgment is $26,901. (3.45 years allows for the 13 weeks the plaintiff was in the north‑west.)"
The amount to be awarded in respect of the period between the date of the accident and the appellant's discharge from outpatient care on 30 June 1998 had been agreed at $18,810. The trial Judge awarded interest on the sum of $18,810 at the rate of 3 per cent per annum for 33 weeks, up until 1 July 1998, and thereafter at the rate of 6 per cent per annum, giving a total sum of $4533.82. He awarded interest on the sum of $26,910 at the rate of 3 per cent per annum for the period from 1 July 1998 to judgment, amounting to $2987.01.

(c) Future gratuitous services

Next, the trial Judge turned his attention to future gratuitous services. After saying that he was not prepared to make any adverse contingency for so‑called "vicissitudes of life", and repeating his finding of unconscious exaggeration on the part of Mrs Chapman, he said [83]:
"Again it is to be remembered that Dr Fong thought the plaintiff capable of independent living. In my opinion, however, the need for continuing services to be rendered to the plaintiff by family members is best summed up by the helpful evidence of Dr Skerritt (at t/s165). My own assessment of this evidence coupled with the evidence of the plaintiff and his parents and, of course, that of Dr Fong is that in terms of compensating for the need generated by the plaintiff's injuries sustained in his accident over and above the ordinary continuing sort of parental guidance and assistance which would be given to the plaintiff particularly in his early years, is that there will be a continuing requirement for the provision of services to the plaintiff in the order of eight hours per week. Using the multiplier and the hourly rate conceded by the defendant of 852 and $16 respectively, the award under this head of claim will $109,056."

(d) Past loss of earning capacity

As to past loss of earning capacity, the trial Judge first expressed the conclusion [84] that "family pressure would have required … [the appellant] to return to Perth for the beginning of the 1998 academic year and resuming his studies". He went on to say that this would, in his opinion, have proved to be unsuccessful and that, some time during 1998, the appellant would have commenced employment in commerce, most probably in the real estate industry where, his Honour said, "his person to person skills, personality and pleasant appearance, coupled with his father's contacts, would have assured him at least a start somewhere at the bottom of the rung earning in the order of $25,000 per annum gross". The trial Judge made the assumption that the appellant would have commenced his working career on 1 July 1998. His Honour then went on to say (ibid):
"I think it probable that until judgment the plaintiff would have continued with such employment, his income gradually increasing to $30,000 thus meeting the hopes of his father that he would spend three years working for someone else before moving into business with him. In the circumstances I think it appropriate to average out the plaintiff's past loss of earning capacity at $27,500 per annum gross from 1 July 1998 until judgment (3.7 years). Tax on $27,500 is $4,630 which together with the Medicare levy rounds out at $5,000 leaving a net income average per annum during this period at $22,500 to which should be added an allowance for the employer's superannuation contributions at 8 per cent per annum hence $1,800, less 31.5 per cent tax of $567, total $23,733, and interest on the accruing amount at 3 per cent per annum."
This produced a total sum of $97,559.24.

(e) Loss of future earning capacity

Perhaps the biggest area of dispute had been that relating to loss of future earning capacity. The plaintiff sought an award in the order of $821,000 and the defendant suggested that a figure of $580,000, inclusive of an allowance for lost superannuation contributions, was more appropriate (the appellant had treated lost superannuation contributions separately and had sought an award, in that respect, of between $30,000 and $80,000).
Counsel for the appellant had contended that there would have been no income earned by the appellant until he completed his studies in December 1999, at which time he would have commenced employment as a trainee property manager and worked in that capacity for around four years. Thereafter, he submitted, the appellant would have been a property manager for six years with a salary in the order of $70,000, rising by five annual increments of $3333 each, whereafter he would have joined his father's business and become a principal earning $135,000 per annum. As to his retained earning capacity, counsel for the appellant submitted that the appellant was earning to the fullest extent that he could at about $12,000 per annum.
Counsel for the respondent, on the other hand, conceded at the trial that the appellant would probably have achieved an above average level of income, but submitted that an average salary of $75,000 per annum over a working life of 40 years was more appropriate, from which sum should be deducted the appellant's retained earning capacity as a full‑time gardener, groundsman, cleaner or teacher's assistant.
The trial Judge, after referring to these competing contentions, said [86]:
"I gave anxious consideration to the status of the overly generous concession of the defendant that the plaintiff would earn $75,000 per annum when my own assessment after most carefully looking at his pre‑accident history was that he was unlikely to obtain a tertiary qualification and unlikely to achieve at the same level as his father. At first glance it may have been thought appropriate to treat the defendant's concession as if it had the same status as an admission, however having regard to the fact that the defendant's concession was bound up in the submission which clearly placed great emphasis on the plaintiff's retained earning capacity in order to arrive at a quantification of loss in respect of future earning capacity, this approach would be flawed. In the end result I determined, as in valuation cases, no matter what the expectation of the expert valuers, the assessment ultimately required of the value of a thing lost is that of a court or tribunal before whom the claim is brought."
His Honour then went on to calculate an award upon the basis that, "at the most", the appellant would have earned an amount of $60,000 per annum gross after completing his three‑year period of traineeship. After taking into account tax, including the Medicare levy, on that sum, his Honour arrived at a net weekly loss of $835.85. He then turned to the question of the appellant's retained earning capacity. He said, in that respect [89]:
"For my part, whilst Dr Fong was of the opinion that the plaintiff could work full‑time as a teacher's aide he had not reviewed the plaintiff himself at the date of making that assessment nor had he examined him in the then recent past. The plaintiff's physical disabilities having resolved themselves very satisfactorily, it is to be remembered that Dr Fong left the plaintiff's future care (having regard to his psychiatric and psychological treatment requirements) to the experts in those fields namely, Dr Skerritt and Mr Becerra, and, accordingly, in this regard I prefer the view of Dr Skerritt. My own observations of the plaintiff are such that any employer would find him difficult to cope with on a permanent basis. This is confirmed by the testimony of Ms Britten and Mrs Barrymore and, to a lesser extent, by Mr Smith [each of whom had employed the appellant since his accident]. Whilst there are prospects for the plaintiff obtaining full‑time work by expanding the hours in his present cleaning type jobs and in working as a teacher's assistant, they are elusive and incapable of being valued, in my opinion …
In this regard the evidence does not persuade me that there is any realistic prospect that the plaintiff will obtain full‑time employment in any capacity within the foreseeable future such that I might assess it and ascribe a money value to that prospect."
Having rejected the contention that the appellant's current retained earning capacity might be reduced by a deterioration in his condition, the trial Judge deducted from the future loss of earnings the figure which had been agreed between the parties as regards "the present day value of the … [appellant's] work capacity as it is currently being exercised". This was the sum of $230.77 per week which, after tax, left a net weekly value of $210.77 per week. Working on a consequential net loss of $625.08 per week over a period of 41 years, the trial Judge arrived at an overall figure of $508,190.04.

(f) Superannuation

Next, based upon his Honour's assessment of the appellant's likely earnings, had he not suffered his injuries, the trial Judge awarded to the appellant a total sum of $46,267.83 in respect of a lost superannuation entitlement.

(g) Fund management expenses

Finally, the trial Judge dealt with the issue of fund management expenses. He calculated these, on the basis of the awards which had been made by him, at rates given in evidence by a representative of the Public Trustee, the Public Trustee having been appointed by the trial Judge as the appellant's trustee. His Honour calculated that these expenses would reach a total of $76,942.25 and awarded 70 per cent of that sum, being an amount of $53,859.58.

The Grounds of Appeal and the Notice of Contention

Virtually all of these awards have been challenged. The appellant, in his grounds of appeal, contends, firstly, that the award of general damages was too low, having regard for the very severe injuries and disabilities suffered by him. He contends, secondly, that the award for loss of future earning capacity was wholly inadequate, essentially because the trial Judge erred in finding, against what was said to be the overwhelming weight of evidence, that the appellant would probably have never got beyond a middle‑ranking property manager with maximum earnings of $60,000 per annum gross. He contends, in this respect, that his Honour should have found that he would have joined his father's business and become a principal earning in excess of $135,000 per annum. The appellant's third contention is that, as a consequence of the trial Judge's mistaken assessment of loss of future earning capacity, the award for lost superannuation entitlement was inadequate. The appellant's fourth contention is that the amount awarded for past gratuitous services from 1 July 1998 until judgment was inadequate, having regard to the uncontradicted evidence of Dr Skerritt and Mr Becerra and having regard to what was said to have been the erroneous finding that Mrs Chapman had unconsciously exaggerated the amount of time she spent in rendering gratuitous services to the appellant. The amount awarded by way of interest in this respect was said, consequently, also to be too low. Next, the trial Judge's award for future gratuitous services was challenged, on similar grounds. Finally, the appellant contended that, as a consequence of the inadequate awards made by the trial Judge, the award for fund management expenses was also inadequate.

There was a challenge, by way of ground 8 of the grounds of appeal, to the trial Judge's choice of trustee. However, that ground has since been abandoned.
The respondent, in his notice of contention, makes two alternative submissions. These are expressed as follows:
"1.The judgment below should be affirmed on the grounds that the award of damages fell within the range of a sound discretionary judgment and was appropriate in all the circumstances of the case for the reasons given by the learned trial judge and also for the reasons that:
(a)the learned trial judge's assessment of damages for non‑pecuniary loss in the amount of $162,400.00 (based on a proportional severity of injury of 70% of a most extreme case) was not substantially below the figure of $175,000.00 submitted by senior counsel for the appellant at trial (based on a proportional severity of injury of approximately 75% of a most extreme case);
(b)the learned trial judge allowed damages for past loss of earning capacity (including interest and superannuation) of $97,559.24 on the basis that the appellant would not have returned to university, when no such damages had been claimed by the appellant on the basis that in the period prior to trial he would have been studying at university; and
(c)notwithstanding:
(i)the learned trial judge erred in favour [sic] the appellant in finding that he was unlikely to obtain full‑time work in any capacity and had a retained capacity of only $11,000.00 net per annum, when the evidence showed that the appellant was capable of working, and had worked, full‑time as a groundsman, and had qualified as a teacher's assistant with the intention of obtaining such work, and that he was not medically unfit for full‑time work within the range of his retained capacity as a groundsman, cleaner, gardener, or teacher's assistant;
(ii)the learned trial judge erred in favour of the appellant in failing to apply any discount for the vicissitudes of life in assessing future loss of earning capacity and future services when such a discount was appropriate;
(iii)the learned trial judge erred in favour of the appellant in not discounting the allowance for the future cost of fund management to reflect the diminution of the corpus over the life of the trust, as authorised by Morris v Zanki (1997) 18 WAR 260 at 278 ‑ 279; and
(iv)the learned trial judge erred in favour of the appellant in allowing future fund management expenses on the basis that the management of the corpus invested outside the common fund would require quarterly portfolio reviews at a cost of $2,400.00 per annum which amount was excessive and disproportionate in the circumstances.
2.Alternatively, should the appeal be allowed, any increase in the award of damages should be offset by an amount which reflects the errors pleaded in paragraph 1(c)(i ‑ iv) above."
Counsel for the respondent has informed the Court that the contention advanced in par 1(c)(iv) of the notice is no longer pressed.

General damages

I will deal with each of these issues in turn.
Turning, first, to the issue of general damages, I have mentioned that the amount awarded by the trial Judge was based upon his conclusion that the injuries suffered by the appellant put him at about 70 per cent of a most serious case. The appellant contends that this is too low, given the serious nature of the injuries sustained by the appellant and the very significant ongoing psychiatric and psychological difficulties which he must continue to face.
There is no doubt that the appellant's injuries, and his consequential disabilities, are very serious indeed. He has undergone a considerable degree of pain and suffering. He has also suffered intrusive neurological disabilities and severe behavioural disturbances. He has significant cognitive defects. He suffers from obsessive‑compulsive disorder, as well as what appears to be a severe eating disorder. He has a body dysmorphic disorder. He has some coordination difficulties and he has lost the ability, which he previously enjoyed, of playing sport at a very high level. Moreover, the effect of his injuries and disabilities has been such as effectively to put paid to any hope of a significant business or commercial career and has seriously jeopardised his prospects of marriage.
As appalling as these problems are, and have been, for the appellant, it is difficult to say that it was not open to the trial Judge to reach the conclusion that this put the appellant in the category of around 70 per cent of a most extreme case. As has been pointed out by counsel for the respondent, the appellant is still able to enjoy some activities and occupations which are denied to other accident victims. He is able to drive his own motor vehicle, complete a course of study, engage in running, walking, fishing and golf, as well as other exercise activities. He is able to work, albeit at a relatively limited level. As his evidence before the trial Judge reveals, he is still articulate and able to function, intellectually, at a reasonable level.
It is also noteworthy, in this respect, that, at the trial, the then senior counsel for the appellant contended that an appropriate award would be one of $175,000, approximating to an assessment of 75 per cent of a most extreme case.
In all of these circumstances, I am not persuaded that the assessment arrived at by the trial Judge was not open to him or that his Honour made any error in the exercise of his discretion in that respect such as should entitle this Court to interfere.

Loss of future earning capacity

As to loss of future earning capacity, I have mentioned that the appellant contends that the trial Judge erred in finding that the appellant would probably never have got beyond the position of a middle‑ranking property manager with maximum earnings of $60,000 per annum gross.
The finding by the trial Judge appears to have been based primarily upon his finding that the appellant was unlikely to have graduated from a tertiary institution when coupled with his finding that, whilst it was probable that the appellant would have been employed by his father, his father "would not have been too generous because he would have been mindful of the effects on his other two children". Each of these findings is challenged by the appellant.
As to the question whether or not the appellant would have achieved tertiary qualifications, counsel for the appellant contended that the trial Judge attached too much significance to the appellant's TEE result and to his academic results at secondary and tertiary levels prior to the accident. While it is, no doubt, true that there are many young people who do not at first apply themselves in tertiary studies, but later succeed in doing so, I am not persuaded that it was not open to the trial Judge to reach the conclusion arrived at by him. As will be apparent from what I have earlier said, the appellant had made three unsuccessful attempts at tertiary study. While his poor performance at the University of Western Australia might be put down to the selection of a course of study to which the appellant was not suited, the fact remains that, by the time he withdrew from the course, his performance had been relatively disastrous. Moreover, when, in 1996, he enrolled at Edith Cowan University in a business course more suited to his interests, he was, once again, unsuccessful. His re‑enrolment in 1997 was, as I have said, relatively short lived and the appellant withdrew from the bulk of the units undertaken by him.
It seems to me that, in the light of all of this evidence, it was open to the trial Judge to conclude that, if the appellant had again re‑enrolled after his visit to Sweden, a similar outcome was more probable than not. Having reached that conclusion, it was also open to the trial Judge to calculate damages for loss of past earning capacity upon the basis that the appellant would not have returned to university for very long (I have already said that he assumed that the appellant would abandon his university studies by 1 July 1998), notwithstanding that his claim had been put up on a somewhat different basis.
However, it seems to me, with due respect, that the trial Judge erred in concluding that, merely because the appellant was unlikely to have made a successful return to university, he would have achieved only moderate success in his chosen career, such that his income would have peaked at a gross sum of $60,000 per annum. That is not a conclusion which, on my understanding of the evidence, was reasonably open to his Honour.
The relevant evidence came from the appellant's father and from the two independent witnesses, Mr Smeulders and Mr Dalton. None of those witnesses said that a tertiary qualification was a prerequisite for success in the property management business. While Mr Dalton and Mr Smeulders frequently referred to "graduate" trainees, it seems that this was because both the examination and cross‑examination of those witnesses proceeded upon the assumption that the appellant would have achieved a tertiary qualification. Moreover, Mr Dalton, in his evidence, said that he had been engaged in employing or selecting trainees for employment with Jones Lang Lasalle, that he had employed "quite a lot of new recruits over the years" and that it was not "a graduate only entry", although, he said, ideally Jones Lang Lasalle looked for tertiary qualifications. I have mentioned that Mr Smeulders said that successful property managers in Perth could achieve a salary range of between $70,000 and $120,000 per annum.
Each of Mr Chapman, Mr Dalton and Mr Smeulders identified good interpersonal skills as the crucial element in a successful career in the property industry. The trial Judge recognised (par 64) that the appellant was (and still is) "a very good 'people person'" and that "his undoubted social skills and the ease and frankness with which he related to people would have stood him in very good stead in the world of commerce".
The trial Judge also accepted that it was more probable than not that the appellant would have taken employment in his father's business. There had been no real issue in this respect at the trial. The appellant's father was asked what he believed would have been the likely situation if the appellant had "for some reason or another not completed a degree … but had the introductions that you could arrange ….". His answer was that he would have expected the appellant to have obtained a job in a property organisation at a property management level, where he could learn the skills required in that industry, by a mixture of work and non‑university courses. Then, he said (AB384), once the appellant had had two or three years' experience working for an associated company, he would have hoped that the appellant would have joined him in his business. He went on to say that he wanted to retire in five years' time and that he would have thought that, by the time that the appellant had reached the age of 28 or 30, he would have been in a position to take over the company. I should reiterate, in this respect, that the trial Judge's finding that the appellant's parents, and Mr Chapman in particular, "would not have been too generous" seems not to have been based upon any evidence and, indeed, to have been contrary to Mr Chapman's evidence with respect to his plans for his son.
It seems to me that, in the light of this evidence, the trial Judge was in error in reaching the conclusion that the appellant's role would always have been "secondary", with his income reaching a maximum of $60,000 per annum. The evidence to which I have referred seems to me to make it very probable that the appellant would, notwithstanding the absence of a tertiary qualification, have earned considerably more than that sum, particularly after joining, and then probably taking over, his father's business.
That said, there remain various imponderables. The appellant may or may not have followed the career plan which his father had for him. The two men may or may not have worked together successfully. Moreover, the appellant's father's business was a relatively small one, involving only a handful of clients, with whom he maintained a good working relationship. Given that circumstance and given the circumstance that Mr Chapman senior was, on the evidence, personable, hard working and highly proficient at what he did, to the extent that he has put himself in an income bracket which very few can expect to achieve, it can by no means be assumed that his son would have been as successful as he was, even in operating the same business.
In all of these circumstances, it seems to me that an appropriate award for loss of future earning capacity would be one which assumed a broad average income of around $85,000 over the appellant's working life. While this is a somewhat rough and ready assessment, it does, I think, take into account the imponderables to which I have referred, and the appellant's lack of formal qualifications, while at the same time taking into account the favourable attributes to which I have referred and the prospect that he would have entered his father's business.
I shall return to this issue in order to do the necessary calculations after dealing with the issue of retained earning capacity.

Retained earning capacity

As will be apparent from the respondent's notice of contention, counsel for the respondent contended that, even if the trial Judge had erred in his assessment of loss of future earning capacity, this should be considered in the light of the fact that the trial Judge had erred in underestimating the appellant's retained earning capacity.
I have mentioned that the trial Judge arrived at a figure, in that respect, of $12,000 per annum, being what his Honour described as "the present day value of the plaintiff's work capacity as it is currently being exercised". Counsel for the appellant contended that this overlooked the fact that the appellant had qualified as a teacher's aide and wanted to work as such, that he had worked full‑time as a groundsman and that he was not medically unfit for full‑time work.
It does not seem to me that his Honour overlooked any of those matters. I have mentioned that his Honour preferred the view of Dr Skerritt to that of Dr Fong, having regard for the different qualifications of the two men and the fact that Dr Skerritt had had more recent dealings with the appellant. Dr Skerritt said, in this respect, that he had "a suspicion that … [the appellant's] ambitions are unrealistic and that it would be difficult for him to be able to persist and to be able to organise himself to a more realistic program of achievement such as work". He went on to say that he thought that the appellant's work prospects were "quite grave", although not entirely hopeless. He said that "a lifetime in employment where somebody would have to pay him … would be not very likely at all".
When this evidence is taken together with the trial Judge's conclusion, based upon his own observations of the appellant, that any employer would find him difficult to cope with on a permanent basis, there is, in my opinion, no basis for suggesting that his Honour erred in his assessment of the appellant's retained capacity.

The amount which should have been awarded

Assuming, then, the loss of an average income of $85,000 per annum over the balance of the appellant's working life, and a retained earning capacity of $12,000 per annum, I would increase the award of $508,190.04 made by the trial Judge in respect of loss of future earning capacity to a rounded off figure of $690,350. A salary of $85,000 per annum would be taxed at the rate of $27,330 per annum and would bear a Medicare levy of $1275 per annum, leaving a net sum of $56,395 per annum or $1084.52 per week. If there is deducted from that sum the sum of $210.77, being the net weekly value of the appellant's retained earning capacity, there is a net loss of $873.75. Because the appellant had just turned 25 at the date of the judgment, the appropriate multiplier, using the 6 per cent tables, until age 65, is 790.1. On my calculations that produces (with a little rounding off) the total of $690,350 to which I have earlier referred.
The result is that the amount arrived at by the trial Judge in this respect should be increased by the rounded off sum of $182,160. While counsel for the respondent urged us to discount this sum by an amount of 5 per cent for the ordinary vicissitudes of life, the rough and ready calculation which I have made does, I think, sufficiently allow for this and I am consequently not prepared to make any further deduction.

Superannuation

It follows, having regard for the manner in which the appeal has been argued by the parties, that the amount awarded by the trial Judge in respect of a lost superannuation entitlement should also be adjusted. Because both parties agreed with the manner in which the trial Judge approached the calculation of lost superannuation benefits, I am prepared to adopt a similar approach (but cf the careful and thorough analysis of the law in this respect by Anderson J in Villasevil v Pickering (2001) 24 WAR 167 at [45]).
The gross value of the appellant's future economic loss on a weekly basis is $1634.61 ($85,000 divided by 52). If there is deducted from that sum the amount of $230.77 which represents the weekly gross value of the appellant's retained earning capacity, this leaves an amount of $1403.84. Nine per cent of that sum is $126.35 (slightly rounded up). Allowing for a total tax (including the Medicare levy) of 31.5 per cent (amounting to $39.80), this would leave a net value of the appellant's anticipated employer's contributions to his superannuation of $86.55 (which, if the appellant was self‑employed, or employed by a company controlled by him, would, of course, effectively be made by him, although I am prepared to assume that these contributions were achievable over and above the income to which I have referred). Applying the formula used by the trial Judge (but using what seems to me to be the correct multiplier of 790.1), this produces a result of $68,383.15, or around $22,115 more than the figure arrived at by the trial Judge. I would consequently increase the award made by his Honour by that amount.

Past and future gratuitous services

That brings me to those grounds which challenge the trial Judge's assessment of past and future gratuitous services.
The assessment of what award should be made in that respect was a particularly difficult one. This was so because, as will be apparent, the appellant has come to be very dependent upon his parents, and especially his mother. That dependency, and concerns with respect to his mental state (the evidence discloses that he becomes suicidal from time to time) and his physical state (as a result of his eating disorder) has meant that Mrs Chapman, in particular, has been required to spend a good deal of time with the appellant. There is no doubt that the appellant requires a good deal of emotional support from her and that she has been, and will continue to be, unstinting in her provision of it.
However, it is, as the trial Judge recognised, difficult to assess to what extent the provision of emotional support of that kind, as well as the provision of other items of day‑to‑day assistance, should be regarded as compensable gratuitous services.
There is no doubt that the appellant is physically capable of independent living and, as the trial Judge remarked (par 78), Dr Fong was of the opinion that the appellant had the overall capacity for independent living, although, as the trial Judge recognised, Dr Fong had not examined him in the recent past and Dr Skerritt was considerably more cautious in his views in this respect. However, the appellant had successfully negotiated a period of three months away from home, working as a volunteer at Turkey Creek, and had expressed some wish to live independently of his parents, although one attempt by him to do so had proved to be unsuccessful. Also, as the trial Judge observed, the appellant was able to spend some hours exercising, away from his parents, each day and was also able to hold down reasonably regular employment.

In all of these circumstances, I am not persuaded that the assessment arrived at by the trial Judge of eight hours per week was not open to his Honour.

Fund management expenses

The remaining ground of appeal is that which relates to fund management expenses. This ground asserts no more than that, if one or more of the other grounds should succeed, more would be required to be set aside as regards the amount awarded by way of fund management expenses.
However, counsel for the respondent contends that the trial Judge, in allowing for these expenses, should have made some reductions to reflect the diminution of the corpus of the fund over the life of the trust. While, as counsel for the appellant demonstrated, some of the charges likely to be levied by the trustee are fixed charges which pay no regard to the amount of the corpus of the trust, other expenses are calculated by reference to a percentage of the trust funds. It seems to me that, allowing for the merit in each of the competing arguments, the award made by the trial Judge was reasonable and I would not be disposed to increase it, even given the fact that the overall award will be increased by reason of what I consider to have been the trial Judge's error in assessing loss of future earning capacity and lost superannuation entitlement.

Conclusion

It follows that I am prepared to allow the appeal, but only for the purpose of increasing the overall award of damages by an amount sufficient to take into account what I have concluded to have been the trial Judge's error in assessing loss of future earning capacity and lost superannuation benefits. As will be apparent, this should lead to the result that the sub‑total of $1,019,055.30 arrived at by the trial Judge, before allowing for an apportionment, should be increased by $204,275 (the sum of $182,160, plus the sum of $22,115). That gives rise to sub‑total of $1,223,330.30. 70 per cent of that sum is $856,331.21, to which should be added the fund management expenses and special damages, plus interest awarded by the trial Judge, giving a total award of $921,669.34. In my opinion, that total sum is the amount which the respondent ought properly pay, in all of the circumstances of this case, in order to compensate the appellant for all of the harm caused by the respondent's tortious conduct: see Lyszkowicz v Colin Earnshaw Homes Pty Ltd [2002] WASCA 205 at [42], per Anderson J.