Chapman v Katheappa - [2002] WADC 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LUKE BURLEY CHAPMAN by his next friend ANTHONY CHAPMAN -v- KATHEAPPA [2002] WADC 47

CORAM: NISBET DCJ

HEARD: 3-7 DECEMBER 2001

DELIVERED : 14 MARCH 2002

FILE NO/S: CIV 4464 of 1998

BETWEEN: LUKE BURLEY CHAPMAN by his next friend ANTHONY CHAPMAN
Plaintiff
AND
ANDRESH PERRY KATHEAPPA
Defendant

Catchwords:

Damages - Assessment of for personal injuries - 20-year-old male (24 at trial) seriously injured as pedestrian run down by motorist - Good physical recovery - Deep seated psychiatric and psychological sequelae - Retained earning capacity - Likely career path if uninjured - Dependence upon mother - Trustee - Appointment of - Choice of

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Award of $778,676.84

Representation:

Counsel:

Plaintiff: Mr E M Heenan QC & Mr P L Harris
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Ilberys
Defendant: John G Staude

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

Bresatz v Przibilla (1962) 108 CLR 541
De Sales v Ingrilli (2000) 23 WAR 417
Hendrie v Ruslie [2000] WASCA 202
Malec v J C Hutton Pty Ltd (1990) 92 ALR 545
Marsland v Andjelic (1993) 31 NSWLR 162
Morris v Zanki (1997) 18 WAR 260
Wilson v McLeay (1961) 106 CLR 523

Case(s) also cited:

Arvind & Kundo v Greco (1995) A Tort Rep 81-357
Batchelor v Burke (1981) 148 CLR 448
Beck v Farrelly (1975) 13 SASR 17
Benham v Gambling [1941] AC 157
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Broadribb v Hanna [1969] 1 NSWR 35
Campbell v Nangle (1985) 40 SASR 161
Dell v Dalton (1991) 23 NSWLR 528
GIO of New South Wales v Rosniak (1992) 27 NSWLR 655
Griffiths v Kerkemeyer (1977) 139 CLR 161
Heather v Vita Pacific Ltd (1996) 6 Tas R 52
Jones v Moylan (1997) 18 WAR 492
Jongen v CSR Ltd (1992) A Tort Rep 81-912
Kars v Kars (1996) 187 CLR 354
Kelly v Dowell Australia Ltd (1988) A Tort Rep 80-184
Kelly v Fletcher, unreported; FCt SCt of WA; Library No 970535; 22 November 1997
Kember v Thackrah [2000] WASCA 198
Lawson v Flavel [2001] WASCA 272
Le Clerc v French & Anor, unreported; SCt of Tas; BC9606407; 24 December 1996
Lulich v Bell Brothers Pty Ltd (1967) 41 ALJR 268
Marsland v Andjelic (No 2) (1993) 32 BSWLR 649
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Medlin v State Government Insurance Commission (1995) 69 ALJR 118
Newman v Nugent (1992) 12 WAR 119
Nguyen v Nguyen (1990) 169 CLR 255
Nicholson v Nicholson (1994) 35 NSWLR 308
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Public Trustee v Paniens (1971) 1 SASR 297
SGIC v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Skelton v Collins (1996) 115 CLR 911
Smith v Robb, unreported; DCt of WA; Library No D970107; 11 April 1997
Southgate v Waterford (1990) 21 NSWLR 427
Steele & Ors v Stacey, unreported; DCt of WA; Library No 5038; 30 August 1996
Taylor v Walawski, unreported; FCt SCt of WA; Library No 8992; 17 July 1991
Thomas v O'Shea (1989) A Tort Rep 80-251
Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522
Van Gervan v Fenton (1992) 175 CLR 327
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485

NISBET DCJ:

General medical history

At age 20 years 5 months the plaintiff, who was born on 11 March 1977, was struck down by a motor vehicle in the early hours of the morning of 9 August 1997 when he was walking home along Stubbs Terrace in Claremont after a night out with friends.
He was admitted to Sir Charles Gairdner Hospital and placed in intensive care after undergoing extensive clinical examination and radiological diagnostic testing. The tests revealed a severe injury with suspected frontal lobe contusion and a large occipital scalp laceration. A CT‑scan of his cranium revealed no skull fractures but 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. Of more immediate concern was a large transverse laceration of his anterior neck with almost complete transection of his trachea. On admission to the intensive care department at Sir Charles Gairdner Hospital he was being mechanically ventilated via a tube placed through the anterior neck wound into the trachea. A bronchoscopy was performed and extensive blood and clots recovered from his tracheo‑bronchial tree. The large anterior laceration in the neck was explored on the first day in intensive care by an ear, nose and throat surgeon with a formal tracheostomy being performed following repair of deeper structure in the neck. His subsequent course in the intensive care department was marked by a reduction in sedation and gradual weaning from mechanical ventilation. As sedation was weaned it was apparent that short term neurological recovery was poor, with extensor posturing. The plaintiff developed a gram‑negative nosocomial pneumonia during his stay in intensive care which was treated with and responded well to antibiotics. He was discharged from the intensive care department to the neurosurgical high dependency unit on 15 August 1997 (report of Dr P V van Heerden 4 February 2000, part Exhibit P16 refers). Mr Ian Mitchell who performed the tracheostomy subsequently reported that the plaintiff had no significant post‑operative problems with his laryngeal injury, the laryngeal nerves not having been injured. This, he said, enabled the plaintiff to retain a normal voice without compromise of his laryngeal airway. In Mr Mitchell's opinion the plaintiff's only remaining disability from his laryngeal injury "is an acceptable neck scar. There is no compromise of his voice or of his airway." (Exhibit P3)
Of lesser concern were other injuries sustained by the plaintiff namely a comminuted fracture of his left scapula which was associated with peripheral nerve damage to his left suprascapular and left axillary nerves. There were a number of other skin lacerations.
The plaintiff remained in the high dependency neurological unit until 8 September 1997 when his condition had stabilised sufficiently for him to be transferred to the Shenton Park Campus of Royal Perth Hospital for further treatment. At that stage he still had a tracheostomy tube in-situ for airway protection. He was noted to have a significant weakness of his left side limbs and "a marked left sided visual neglect". It was further noted that cognitively he was in a confused and agitated state and appeared to have little awareness of his surroundings.
Dr Kim Fong was the specialist in rehabilitation medicine who was supervising the plaintiff at the Shenton Park Campus of Royal Perth Hospital. In his report of 11 January 2000, Dr Fong reports that thereafter the plaintiff was extubated from his tracheostomy at or near the end of September 1997 after his tracheal injuries had adequately healed. An EMG study confirmed peripheral nerve injuries affecting his left suprascapular and left axillary nerves. In the five weeks thereafter the plaintiff made significant improvements in his recovery. He was able to walk independently by mid‑October 1997 but continued to have balance and gait impairments. His left hemiplegia had largely resolved by the time of the plaintiff's discharge home on 11 October 1997 [sic – 11 November 1997? There is considerable confusion about this date in the reports. The plaintiff's mother however was certain it was 11 November.] Evaluation of the plaintiff's cognitive abilities at about that time confirmed that he had sustained significant impairments in short term memory, new learning, rate of information processing and concentration in consequence of which a comprehensive out‑patient therapy programme was set up for the plaintiff in the areas of physiotherapy, occupational therapy and clinical psychological counselling. This programme involved attendances in out‑patient clinics from Monday to Friday until July the following year, 1998.
Dr Fong continued to review the plaintiff during the course of his rehabilitation programme as an out patient and in his report dated 11 January 2000 (Exhibit P19) he details reviews on 21 January 1998, 23 April 1998, 3 December 1998 and 14 July 1999. By January 1998 Dr Fong was of the opinion that the plaintiff was functionally independent for all of his routine activities of daily living at home. By April of 1998 Dr Fong found that the plaintiff's left shoulder function had improved significantly with him being left with only a mild level of residual weakness. Dr Fong reviewed the plaintiff's neuropsychological testing, arranged an EEG examination and noted the results as being only mildly abnormal with no post traumatic epileptiform features which (I infer) Dr Fong thought indicated that the plaintiff could undergo evaluation to see whether or not he could resume driving, there being no medical impediment to this course being followed.
By December of 1998, however, the plaintiff's psychiatric and psychological difficulties had become manifest. I will deal with them in more detail later but Dr Fong notes that it was at this time that it came to light that the plaintiff had developed some "maladaptive traits during his recovery. He had become almost obsessional with exercise, sometimes spending up to five or six hours daily on exercise activities. This coincided with a significant degree of weight loss, raising the possibility of an overt eating disorder. He had also become very socially isolated, often sleeping at an early hour and displaying little interest in interacting with his former friends". (Report 11 January 2000, Exhibit P19, p 3.)
At this time Dr Fong thought the plaintiff was physically close to being fully recovered and accordingly the manifestations of psychological disturbance were put under closer scrutiny.
Dr Fong next reviewed the plaintiff on 7 June 2000. He noted the plaintiff's unsuccessful attempts to return to tertiary education and then, upon examination found the following residual symptoms and impairments:
1.Physically, a moderate impairment of his balance and limb coordination with a persistent sign of nystagmus on left lateral gaze, both being indicative of continuing cerebellar dysfunction.
2.A regression of cognitive improvement probably caused by the plaintiff's adverse psychological reactions to his disability.
3.Poor adjustment to the plaintiff's residual symptoms and impairments accompanied by a preoccupation of comparison between his pre and post‑accident social and sporting capacities.
Overall though, it was Dr Fong's impression that the plaintiff had made a good physical recovery from serious injury but that his future lay in an improvement in his emotional state in respect of which he noted that the plaintiff was at that time under the care of Dr Paul Skerritt, a consultant psychiatrist.
As far as I could tell from the evidence, Dr Fong did not physically examine the plaintiff after 7 June 2000 although he continued to monitor his progress and provide advice on his continuing rehabilitation. Essentially, I think it was Dr Fong's view at that time that as psychiatric and psychological factors had overtaken his physical progress their management was best left to the specialists in those areas.
The plaintiff was seen after that date by a general physician however, Dr Michael McComish, who examined him on 16 November 2000. Dr McComish had been provided with copies of reports of other medical specialists before his examination and in consequence of his examination of these materials and his own examination of the plaintiff, he concluded that:
"1.He has significant behavioural disturbances directly attributable to the affects (sic) of his brain injury. These are likely to be of long standing and possibly permanent.
2.He has significant and intrusive neurological disabilities directly related to the accident. The behavioural and neurological deficits could be attributed to the direct affects (sic) of his closed head injury or possibly a period of anoxia at the time of the accident leading to hypoxic encephalopathy.
3.At present he is underweight, almost certainly as a result of his excessive exercising, and fastidious eating habits."
Dr McComish thought the plaintiff "… 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". (Exhibit P15)
Dr Ernest Rozsa has been the plaintiff's general practitioner since about six years before his accident. Dr Rozsa noted in his report of 4 February 2000 (Exhibit P11) that before the accident the plaintiff was an above average student and an excellent sportsman with good social skills. Following his accident Dr Rozsa's role, as he saw it, was to act in support of the specialists who had the care and management of the plaintiff. Nevertheless, Dr Rozsa did examine the plaintiff's physical and mental state on occasions after his accident. Physically he thought that the plaintiff had recovered remarkably well considering the severity of his initial injuries but went on to note that the plaintiff:
"… does have restricted shoulder movements with supra‑scapular neuropathy and possibly minor nerve damage to his serratus anterior resulting in excessive winging of his scapular. He has several scars related to surgical repairs to his neck. His balance was reasonable although walking heel to toe was only achieved with some degree of difficulty. He had some elements of dysphasia, mainly expressive, stating that although he could think of what to say the words just did not come out properly."
With regard to his mental and emotional state Dr Rozsa noted the plaintiff had not recovered from the effects of his accident and injuries. He noted frustration and social isolation.

Psychiatric/psychological diagnoses and treatment

In a discharge summary prepared by Dr Fong for the plaintiff and addressed to Dr Rozsa, Dr Fong noted that the plaintiff's insight into his disabilities was quite poor and that his family had raised concerns about his psychological adjustment to his injury in consequence of which Dr Fong had referred the plaintiff to a clinical psychologist, Ms Helen Pryer, who had seen the plaintiff as an in‑patient and continued to treat him as an out‑patient. By May of 1998 the plaintiff had been reviewed by the Registrar in Clinical Psychology at the State Head Injury Unit, Ms Leanna Dusz, who performed a number of tests on the plaintiff mostly directed to determining his level of intellectual function and the conclusion she reached, supported by the then clinical psychologist at the State Head Injury Unit was:
"Within the plaintiff's results, there were specific signs of moderate inefficiency in his functioning. In this respect there was indication of weaknesses in non‑verbal and verbal short term recall, problem solving abilities and slowness in his speed of information processing. His approach to a complex graphic figure and geometrical designs also suggested the presence of some difficulty with visuo‑spatial material. The results may reflect a more accurate and recovering profile, with speed related tasks affected more prominently. The long term prognosis with regard to his return to an academic programme will be influenced significantly by his recovery with the area of memory function particularly verbal short and long term recall."
The plaintiff's psychological care was taken over at the State Head Injury Unit in May of 1999 by Mr Rodrigo Becerra. He saw him for the first time on 21 May 1999 and, at the time of trial, was continuing to review the plaintiff. Initially Mr Becerra noted that there was a manic flavour to the plaintiff's presentation to him at his second attendance on 18 June 1999 when the plaintiff told him that he did not want to return because "things were just fine" and notwithstanding Mr Becerra's suggestion that it would be a good idea for the plaintiff to continue seeing him on a regular basis, the plaintiff declined.
By the time the plaintiff next attended upon Mr Becerra on 22 March 2000 the plaintiff had been examined by Dr Paul Skerritt, a consultant psychiatrist, who had prescribed medication which the plaintiff was not taking. In Mr Becerra's examination of this date he noted that the plaintiff was engaging in excessive and ritualistic exercising and looked underweight so much so that he asked the physiotherapist attached to the State Head Injury Unit to examine him. She reported that the plaintiff was fit and slightly underweight. From that time the plaintiff attended upon Mr Becerra with somewhat more regularity in consequence of which Mr Becerra was again able to observe that he was almost manic in his behaviour. In his opinion the plaintiff had made a conscious decision to compensate for his lack of control after the accident. This results in him telling everyone that "he is fine". Mr Becerra then considered that the plaintiff's behaviour had aspects of obsessive compulsive disorder which he was concerned would develop into a full manifestation of that complaint. In his report of 27 June 2000 (Exhibit P3) Mr Becerra noted that:
"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."
Additionally, it was Mr Becerra's opinion that the plaintiff exhibited clear signs of depression but there was a difficulty in achieving a firm diagnosis because of the plaintiff's own strong denial and lack of openness about his depressive moods.
During this period Mr Becerra was responsible for persuading the plaintiff to return to Dr Skerritt and for getting the plaintiff to comply with the medication regime prescribed by Dr Skerritt. In giving evidence at trial Mr Becerra noted some large gaps in the plaintiff's attendances upon him but an increasing frequency of consultation prior to trial. For example, Mr Becerra said that he did not see the plaintiff for about eight months from December 2000 to 28 August 2001 but he had then seen him three times thereafter. The last time the plaintiff consulted him he had not eaten for two days and had not even taken any water which made Mr Becerra even more concerned for his well-being. He thought the plaintiff then very anxious and weak. He affirmed his previous advice that eating and obsessive compulsive disorders are by their nature very secretive and the combination in this plaintiff of the three disorders of depression, obsessive compulsive disorder and the sub‑category of eating disorder all suggested a particularly poor prognosis for the plaintiff.
The plaintiff was referred to Dr Paul Skerritt by Dr Rozsa and first saw him on 11 February 2000. After a number of consultations with the plaintiff and after reviewing the results of neuropsychological testing and the progress of the plaintiff's recovery as outlined by Dr Fong, Dr Skerritt reported (Exhibit P8) that the symptoms which had led others to consider that the plaintiff may have had obsessive compulsive disorder were such that:
"These symptoms reveal that the term obsessional used by my colleagues was literally correct. They indicate in fact that a significant source of [the plaintiff's] disability is frank obsessive compulsive disorder. The obsessions are the repetitive thoughts and the compulsions the actions which generate them. It is not difficult to see his preoccupation with his genitalia in the same light and fortunate that the translation of this obsession into compulsive behaviour was resisted by my urological colleague."
Dr Skerritt noted that the plaintiff was obsessed with the belief that he has a smaller than average penis, notwithstanding that all medical practitioners who have examined the size of his organ have said that it is perfectly normal in size and, after observation following drug injection, perfectly capable of obtaining a full, complete and normal sized erection. But the plaintiff does not believe them. He thinks that they are deliberately lying just to make him feel better. He said in evidence that he knew his penis was small and the doctors were telling him lies just to make him feel good about himself. Dr Skerritt thought the plaintiff presented with:
"… A very clear picture of a common mixture of psychiatric symptoms which are sometimes said 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."

Uncertain as to whether the plaintiff's preoccupation with the size of his penis was delusional or not, Dr Skerritt thought there was a potential for the diagnosis of body dysmorphic disorder but in any event remained of the view after further consultations and after a review of the progress of treatment with various drugs that the plaintiff presented with a mix of anxiety/depression/obsessive compulsive disorder/eating disorder/body dysmorphic disorder which Dr Skerritt said are all well demonstrated in the psychiatric literature to be comorbid with each other.
Dr Skerritt had placed the plaintiff on a regime of drugs to combat the depressive illness and the obsessive compulsive disorder. At trial the plaintiff was on an extensive and expensive regime of Olanzapine, Venlafaxine and Mirtazapine.
In evidence Dr Skerritt confirmed the contents of his reports (Exhibit P8) 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 two 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 plaintiff's parents confirmed all aspects of the specialists' observations of the plaintiff's behavioural problems detailing his eating disorder, his preoccupation with food, his refusal to eat, his obsession with exercise, the size of his penis and his anxiety about being separated from his mother, the plaintiff's father saying that the plaintiff would ring him to find out where his mother was. They detailed too his depression, alternatively frustration, with his constant comparison of his pre‑accident abilities with his post‑accident performance. The plaintiff gave evidence about these matters too. He was disarmingly frank. He said that he did not really believe he had obsessive compulsive disorder but that his weight was his life. Running and going to gymnasium and watching his weight are all compensation, he said, for not playing sport. All of these activities were directed to meeting a female and forming a relationship with her and having a child with her. He said the only way any of this would happen would be if he was to improve his appearance. He said that he knew he was overweight and that "I've got a gut on me" but he then conceded he weighed only 68 kilograms and yet still said that he wanted "my gut to disappear". The plaintiff further conceded that a lot of people had told him that he did not have a weight problem but he said, "They're lying to me. I know for a fact that they're wrong". From my own observation of the plaintiff I can state categorically that he was lean, not overweight, and had no "gut".
The plaintiff then proceeded to tie in his dysfunctional eating habits with his attendances at the gymnasium and exercise generally in that he said that if he had been to the gymnasium then he is allowed to eat. He then proceeded to describe his toilet routine and other aspects of his eating behaviour all of which illustrated a considerable degree of disordered thought, albeit it charmingly revealed.
Speaking about the size of his penis he said:
"Once again I think it's like – the doctors have – well, they're supposed to make the patient feel better about themselves and try and get rid of that depressed state and so – I mean, I know for a fact I have got some – I mean, I have not seen a penis my size. It's a very, very small penis … …That's why I believe he was telling a mistruth to me just to make me feel better about myself. (t/s 285)
Again too, the plaintiff confirmed the observation of others about his dependence upon his mother and his obsessive behaviour with regard to her whilst at the same time detailing his dysfunctional relationship with his brother and sister.
A report of the plaintiff's attendances upon a urologist with regard to his concern over his penis size, Mr Alistair Tulloch, came into evidence as part of Exhibit P3. Mr Tulloch's report confirms that the plaintiff had been to see him with a view to obtaining an enlargement of his penis which Mr Tulloch headed off by showing the plaintiff magazine pictures of penile enlargement surgery gone wrong. Mr Tulloch referred the plaintiff to Dr Stephen Adams whose reports also formed part of Exhibit P3. Dr Adams thought the plaintiff's penis size entirely normal and recommended a programme of behaviour modification which the plaintiff has obviously not taken up largely because he is convinced the specialists are wrong.
Finally, I should note for the sake of completeness that the plaintiff was also examined by Ms Jura Tender, a clinical psychologist, in February of 2000. Ms Tender's opinion coincided with those of Mr Becerra and Dr Skerritt.

Parents' hospital visits, travelling expenses and gratuitous services

During the period the plaintiff was at Sir Charles Gairdner Hospital from 9 August 1997 to 8 September 1997 (31 days) the plaintiff's mother and father were at his bedside practically 24 hours a day, Mrs Chapman taking up the bulk of this. She was only home for a few hours a day, at the very most three or four. She was there almost entirely all the time (t/s 95). She arranged things with her husband so that when she had to leave to return to her home her place was usually taken by her husband although there would have been the occasional gap. The difficulty was, however, that it was Mrs Chapman's presence at the plaintiff's bedside vigil which seemed to provide benefit to him. She testified (and was not cross‑examined about it) that:
"Yes, I was there all the time because he was in a very agitated state and often I would have spent 16 hours there and I would finally get home and I'd get a phone call to say, 'Come back, because you are the only one that can settle him,' which could have been two or three in the morning. I often did that."
Mrs Chapman maintained her bedside vigil talking to the plaintiff and helping nursing staff calm him. He was so agitated on occasion, she said, that they had to bind him down because there was a danger of him taking out the tubes that were ventilating and feeding him. Another matter of great concern to Mrs Chapman was that the level of the plaintiff's care seemed to decrease on weekends such that she asked the staff to teach her what she could do so that the care could continue. Mrs Chapman would massage her son's feet and wipe his brow because he was in a constant state of perspiration and she would talk to him endlessly.
This pattern of attendance continued when the plaintiff was transferred from Sir Charles Gairdner Hospital to Royal Perth Rehabilitation Hospital on 8 September 1997 until his discharge from there on 11 November that year, a period of 63 days. (I exclude the day of discharge in my calculations.) During this period Mrs Chapman was at Royal Perth Rehabilitation Hospital every day. She was there for the maximum period she was allowed to be there which she said she thought was from 10.00 am until 12.00 noon and then again from 2.00 pm until 8.00 pm. During this period, however, her role was limited to that of talking to and encouraging her son because he was receiving intensive treatment. The plaintiff's father, whilst frequently at Royal Perth Hospital, had a business to run and also picked up some of the duties in keeping the household running so that his wife could devote her time to the plaintiff's rehabilitation but he nevertheless visited his son at Royal Perth Rehabilitation Hospital almost every day that he was an in‑patient. The plaintiff's brother and sister whilst present at the hospital fairly consistently in the early stages did not attend as regularly and certainly not whilst the plaintiff was at Royal Perth Rehabilitation Hospital. The position with the plaintiff's brother and sister obviously became difficult, Mrs Chapman explaining that with her daughter at least she released her from any obligation to attend saying:
"I think it was very hard for them but they did come. I think Ali was trying to study. It was very hard so I told her eventually, 'If this is going to affect, you know, your day to day living, then just do what you can and leave it at that.' "
Ultimately the evidence suggests that the burden placed on the household by the plaintiff's accident caused a significant deterioration in the relationship between the plaintiff and his brother and sister. The plaintiff said in evidence that he thought his brother almost hated him now and he could not understand why and that his sister had little to do with him. This is not at all an unusual phenomenon.
Following the plaintiff's discharge from Shenton Park Rehabilitation Hospital on 11 November 1997, the plaintiff's parents continued with their commitment to his rehabilitation although during this period most of the responsibility fell upon Mrs Chapman. There is, however, clear evidence that Mr Chapman Sr continued to be actively involved, taking the plaintiff to appointments with psychologists and things of this nature. The pattern for Mrs Chapman however, was that from Monday to Friday the plaintiff was required back at Shenton Park Rehabilitation Hospital as an out‑patient. She would drop him off there in the mornings, pick him up at lunchtime and then take him back in the afternoon for his next session. This went on until July of 1998. There was a short time during this period when it was suggested to the plaintiff that he use public transport but this distressed the plaintiff as he felt that people were looking at him.
Additionally, the plaintiff's parents would take him to consultations with experts not stationed at the Shenton Park Rehabilitation Hospital, namely Dr Skerritt whose rooms are in Joondalup, Mr Rodrigo Becerra who is at the State Head Injury Unit at Sir Charles Gairdner Hospital, Dr Adams at the Hollywood Private Hospital and others.
The most intensive aspects of the plaintiff's outpatient care finished on or about 30 June 1998. After this period Mrs Chapman gave evidence that on average she would spend eight or 10 hours a day during daylight hours and more in the evening in attending to the plaintiff's needs. She says that the plaintiff is with her:
"Basically all the time unless he is going to work for a few hours or he occasionally goes out with his friends but I would say any other time he is with me – all the time.
… I think he just needs my emotional stability to – he gets very panicky about situations and he feels probably most comfortable when I'm around because I can help him out of situations where he can't deal with and he does rely on me to do that constantly.
…
When I am not there he would ring me at least three or four times to find out how long I'm going to be, where am I, could he maybe come and join me – that's just the normal pattern." (t/s 108)
Whilst I think the plaintiff does make considerable and excessive demands upon his mother which is obviously of concern to Dr Skerritt and Mr Becerra, not to mention the members of his family, I do not think it correct to regard all of these hours described by Mrs Chapman as being compensable. Firstly, in my opinion, Mrs Chapman has (unconsciously) exaggerated the extent of the plaintiff's dependence upon her. I have come to this conclusion for a number of reasons. The first is that for a period of three months he was totally independent of her whilst he was working as a volunteer on the mission at Turkey Creek. Next, he has had fairly consistent part time and occasional full time employment and based upon the evidence I was given I would suggest that presently he is working half time. Next, a considerable body of evidence was given about the plaintiff's commitment to exercise. Again, an area of considerable concern not just to the plaintiff's parents but to his medical advisers as well. Whilst of concern it does demonstrate again that the plaintiff is away from his mother who estimated the amount of time he spent in exercise as "close to four hours a day" (t/s 109). It is to be remembered too, that Dr Fong is of the opinion that the plaintiff has the capacity and the means for independent living and full time employment. There was nevertheless a need created by the accident for the delivery of gratuitous services by the plaintiff's mother, and to a lesser extent his father, occasioned by the injuries he sustained in his accident. I will return to the quantification of the value of those services when I come to assess damages.

Education

The plaintiff was described by a number of witnesses as being an above average student. For example, he was so described by Dr Rozsa, Mr Ian Dickson, his primary school teacher and each of two successive principals at the school he attended namely John XXIII College, Dr Anthony Baker and Mr Gregory Clune. It was further said that the plaintiff's poor TEE score of 313 was simply a reflection of a student distracted from his potential but who would ultimately be a high achiever once he found his niche and applied himself. In my opinion, however, a close examination of Exhibits P6 and P7 and a careful consideration of the testimony of the witnesses I have named balanced against the testimony of the plaintiff and his parents all suggest to me that the plaintiff was not a person who would ever have been a high academic achiever. Rather, I think the plaintiff was a person who was always anxious to please as a student and liked to be thought well of by his teachers such that in most cases the teachers liked him and thought him easy to teach, but ultimately he did not have the application for academic pursuits and frankly would have been unlikely to have graduated from a tertiary institution.
I have come to this opinion by looking at the results and a careful examination of the school reports which are replete with comments such as "His final test results were disappointing and highlighted lack of preparation rather than inability to handle the work" (Social studies Year 8). "Luke is happy in his work but needs to put in a more consistent effort in order that he may obtain success at a higher level" (Mathematics Year 8). And a comment which, early on, really sums up the impression one gets from a close study of these reports: "Luke needs to strike a better balance between socialising and working in class. Also, there is much room for improvement in exam preparation" (Italian Year 8). These observations continue intermittently until Year 11 when his home room teacher commented at the end of the first semester report: "The comments above are in line with Luke's general behaviour. He can be charming at times, but needs to drop the 'big man' image which may help him settle down to work." There was an improvement in his second semester Year 11 report reflecting a more diligent approach which continued into Year 12 until his TEE results gave him a mark of 313.
313 is not a particularly good mark for a student seeking to pursue a tertiary education at any of the three major universities in Western Australia (UWA, Murdoch and Curtin). The plaintiff said that when he enrolled at the University of Western Australia with this mark he sought to get himself into the highest course possible with that mark and accordingly he enrolled in the degree of Bachelor of Science in Natural Resource Management in the Faculty of Science. In his first full time academic year at the University of Western Australia he deferred three of his exams and withdrew from another. Which is probably just as well because on my reading of the statement of his academic record dated 18 January 2000 the three units in which he had deferred had carried with them a provisional assessment of failure and the sanction noted on his record was "Exclude – unsatisfactory". The plaintiff's parents were very concerned about his failure to apply himself to his studies and the plaintiff's father said that there was talk of the plaintiff eventually joining him in his business as a real estate manager, in consequence of which the plaintiff and his father decided on a business course at Edith Cowan University. Mr Chapman senior described the plaintiff as having "taken his eye off the ball" during the course of his tertiary studies.
In 1996 the plaintiff enrolled in the degree of Bachelor of Business at Edith Cowan University, Churchlands Campus, and after an unsuccessful year he re-enrolled again in the first semester of 1997 following which he withdrew from the course. The statement of academic record dated 21 January 2000 shows that of the 12 units he had undertaken in that period he obtained two passes, three credits and withdrew from the rest, save for one in respect of which the result was not available. His father described the plaintiff as "under‑achieving". I regret, I think, the position was in fact that the plaintiff was achieving at the level which could be expected having regard to his aptitude for, and altitude towards, study. This is not to say that the plaintiff was devoid of talent, of course. Academic achievement is but a part of a well rounded life for those who choose to go down that path. The plaintiff impressed me as being devoted to his close circle of friends and that he was far more interested in socialising and sport than he ever was in study. And, I shall shortly come to, though he showed great promise as a young sportsman, even that fell away for the sake of his socialising with his friends.
After his accident the plaintiff did attempt to return to study. In 1999 he enrolled in the Faculty of Economics largely because he was very fond of that unit at school. He passed one unit but then withdrew from the course. It was in that year that he travelled to the north of the State and worked on an Aboriginal Mission at Turkey Creek. Enthused with the idea of becoming a primary school teacher. He said:
"I decided that – I thought the most empowering job I could have in my situation was to become a teacher and just help out kids, primary school kids – just help them out and so that's what I thought. I was looking around for a job so I decided to do primary school teaching at Notre Dame College." (t/s 276)
He then enrolled in a primary school teacher's course at Notre Dame University in the year 2000 but he found that difficult. At the level he was coping with, as I understood his evidence, he thought it would take him "about 15 years to finish the course" and for that reason he enrolled in a course as an assistant teacher to assist teachers of children with special needs. This course was conducted on every third or fourth weekend over the whole of the year 2001 and was examined on assignments. He completed the certificate successfully.

Social and sporting life

The plaintiff, had the capacity to play tennis at an exceptionally high level as he played A-grade pennants at the age of 16 and was a State ranked junior and yet by the time of his accident he was just playing social tennis. Again, there are many gifted sportsmen and women in our community for whom sporting achievement is a matter of very little consequence, preferring to participate for personal pleasure than high achievement. I think the plaintiff was in this category which I suspect makes his sense of loss even greater because, having been able to excel at sport as a naturally gifted sportsman enjoying the great pleasure that this brings, when the accident took it away he felt its loss very keenly.

Peter Dyson gave evidence about the plaintiff's level of achievement at tennis. He was the coach at the Claremont Tennis Club and coached the plaintiff for about six years. He put the plaintiff in the top five players in the club and somewhere between the 20th and 30th best player for his age in the State.
Justin McGuire was also a coach at the Claremont Tennis Club. As I understood it, he took over coaching the plaintiff from Mr Dyson who coached the plaintiff until the age of 15 when Mr McGuire took over. It was Mr McGuire who said that the plaintiff could play A-grade pennants. Both of Mr Dyson and Mr McGuire testified that they had seen the plaintiff since the accident, in the case of Mr Dyson when he came into his shop and in the case of Mr McGuire when he tried to play tennis again at the club. Both thought him changed remarkably since the accident. In the case of Mr Dyson he said that he was "not the same kid" and in the case of Mr McGuire "he's certainly not the same boy".
The plaintiff played other sports as well, all at a high level of competency. Evidence was given by Mr Ian Ayres that he coached the plaintiff in Australian Rules Football for a year and rated him very highly.
It was clear though through the school reports and some of the evidence of the plaintiff's parents and the plaintiff himself that his biggest commitment was to his social life and his circle of friends. By the time of the accident he had given up all competitive sport and was simply playing various sports as an adjunct to his social life. He said in cross‑examination did not like university and it was during this period that he started thinking about working with his father. 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.
Indeed, at the time of the accident the plaintiff had just finished a seven or eight month stint with Terence Hebiton, a developer and builder in business with his brother. He said that he engaged the plaintiff in either October or November of 1996 and he worked for him until the end of June or July of 1997 when the project for which he was engaged was completed. If Mr Hebiton's dates are correct, and I have no reason to think that they are not, because it was common ground that the plaintiff had been working for Mr Hebiton up until three or four weeks before his accident, then this makes the plaintiff's re‑enrolment at Edith Cowan University in 1997 somewhat of a gesture rather than a commitment to obtaining a tertiary qualification. In any event Mr Hebiton spoke highly of the plaintiff. During the seven or eight months that he was with him Mr Hebiton said that by the time he came to leave he was in charge of the site with other builder's labourers under his direction. Mr Hebiton said that he could confidently leave the site to the plaintiff to open it up in the mornings and be in charge of it without his presence during the day time.
That job having finished, the plaintiff had arranged to go to Sweden to spend some time with friends of the family who apparently owned a shopping centre there and with whom the plaintiff may have been able to obtain casual work for three months or so.

Retained earning capacity

A number of the plaintiff's present and past employers were called to give evidence: Ms Claire Britten, Mr Stephen Smith, Mrs Karen Barrymore and Mr James Watkins. Mrs Barrymore is a lecturer at the Law School at the University of Western Australia. She had employed the plaintiff as a general garden hand both before and after the accident. Before the accident she described him as being extremely personable, very strong and capable. Now she said he is still personable but he is a different person in terms of his capacity for work. In effect now she has to supervise his work. He has only a very limited capacity for self‑organisation, getting confused easily and failing to understand simple instructions. In her opinion if the plaintiff was directly supervised he could get employment but the employer would have to know of his disabilities and be understanding. It would probably be better for the plaintiff if he had a routine he could follow doing the same jobs every week. Now she employs him for three hours a week to sweep, rake and prune, paying him $10 an hour. This has been the pattern for the past 18 months to two years.
Mr James Watkins consulted the records of John XXIII College and was able to testify that the plaintiff had been employed in accordance with the information contained in Exhibit P 10 from 26 October 1998 to 15 October 1999 earning a gross salary of $12,092.42 during the course of part-time employment there. His direct supervisor was the head of grounds and in effect the plaintiff worked as a part‑time groundsman.
Ms Claire Britten is on the council of the owners of the strata company of an apartment complex in Claremont. She interviewed and employed the plaintiff as a yardman. He works nine hours a week at $15 an hour which averages out at $465 a month. She observed that whilst the plaintiff works alone he does need supervision in respect of non‑regularly recurring tasks. She undertakes this supervision. She thought the plaintiff accurate in his recording of hours and punctual but in need of supervision. He is always obliging and anxious to please and apparently liked by the elderly residents of the complex whom he helps out. He is not quick to catch on.
Mr Stephen Smith is the proprietor of the fitness centre attended by the plaintiff. It is a large undertaking with some 600 members and 16 staff and is open long hours. Mr Smith is an engaging person. A salt of the earth type. He said quite bluntly that he did not need a cleaner but he offered the plaintiff a job as a cleaner to give him a chance. He kept him on even though some of his members were not particularly understanding of the plaintiff and his problems and again he reiterated the plaintiff could not be left to his own initiative. The plaintiff needed supervision and memory reinforcement. Otherwise Mr Smith emphasised the plaintiff had admirable qualities. He described him as being amazing. He said he was never late. He was very clean, very personable. On this basis Mr Smith said that the plaintiff was welcome to keep working for him "for ever". Of all of the different capacities in which he could be employed in Mr Smith's business however, the only function he could perform and only then with supervision is that of the part‑time occasional cleaner that he is now. (I should interpolate that Mr Smith also gave some evidence about the plaintiff's obsessional attitude towards exercise and of having spoken to him about it.)
The plaintiff's mother detailed other aspects of the plaintiff's current disabilities which would make it difficult for him to engage in permanent full‑time employment in her opinion, these largely being centred around his need for her supervision and constant reassurance from her presence. Whilst the plaintiff's parents were understandably concerned about his capacity to live independently of them it was Dr Fong's opinion that he could and, additionally, the plaintiff had demonstrated his capacity in this regard by undertaking voluntary work as an assistant on an Aboriginal mission for three months in October 1999. The plaintiff further demonstrated his capacity in this regard by driving to Turkey Creek.
As mentioned, the plaintiff holds a qualification as an assistant teacher for children with special needs. He holds ambitions to work in the north‑west of this State as a teacher's aide with Aboriginal communities or on missions. As he described his ambitions in this regard there was no doubting his enthusiasm and commitment. A significant feature of his desire to obtain employment in the north of the State is because he said that people in the north treat him as a normal individual and have no knowledge about his accident. He had not given much thought at all to the prospect of him not obtaining employment in the north of the State. His mother had made enquiries on his behalf and was of the opinion that jobs of the type that the plaintiff was seeking were usually given to qualified aborigines first, and there was, accordingly, a scarcity of them. However, there was no reliable evidence of the availability of employment in the plaintiff's chosen field.

Medical opinion of plaintiff's retained earning capacity

The rehabilitation specialist Dr Fong thought the plaintiff capable of working on a full‑time basis as a teacher's aide. In his report of 15 November 2001 (Exhibit P19) wrote:
"It would therefore be my concluding remarks that [the plaintiff's] future earnings capacity would seem to have been significantly diminished by his episode of injury in August 1997. It would be my expectation that [the plaintiff] will be capable of working on a full time basis as a Teacher's Aide in the short to medium term, barring any unexpected changes in his condition during the course of this year, which I may be unaware of. His employment as a Teacher's Aide is likely to be reimbursed at a rate which is well below that of his previous career path, if it had not been interrupted by his injuries."
Dr Fong advised that a Level 1 teacher's aide was paid at a gross rate of $12.26 per hour over a 35.5 hour week.
The other medical specialist primarily involved in the plaintiff's treatment, Dr Skerritt, was less optimistic than Dr Fong. He wrote in his report of 20 November 2001 (Exhibit P8):
"… He has done better than expected in his course at Notre Dame University. This is a course for a Teacher's Aide and consists of a one 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 workplace, although Luke has somewhat optimism, (sic) which may well be misplaced."
Dr McComish wrote of the plaintiff's retained work capacity in his report of 22 November 2000 (Exhibit P15) that:
"He is self‑conscious about his disabilities, and he shies away from relationships and contacts with other people. If he was appropriately directed and supported then he might be able to compete in the work force in a menial way.
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."

Plaintiff's income earning potential if uninjured

Each of the plaintiff's father, Mr Jeremy Dalton, a director of Jones Lang La Salle and Mr Jonathon Smulders of Multiplex Asset Management gave evidence of the range of earnings the plaintiff could have expected to earn in the real estate industry were it not for his accident. The starting point here is of course to determine what the plaintiff's likely future path would have been but for his accident. As already indicated I have come to the firm opinion that the plaintiff would not have succeeded in obtaining any tertiary qualification from any of the major universities in Western Australia, or from Edith Cowan University. He did not have the application or the aptitude. He was however, and still is, a very good "people person" and 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. I think it more probable than not that a person such as the plaintiff, not finding his feet with tertiary study and, having difficulty finding a suitable vocation, with concerned parents and a person in the position of his father capable of easing him into his business, would have drifted into if not jumped at employment in his father's business. I have formed the distinct impression, however, that the plaintiff would not be as good at this line of business as his father obviously has been and is, and that his role would always have been secondary, leaving him I think placed in the middle range of real estate management for most of his life. Whilst his father would undoubtedly have been a generous employer my impression of him (and his wife) 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. Whilst the plaintiff's father said that he had not employed anyone for a long time his estimation of the market place value of the services of someone in the position of his son who he would place for the first two or three years in his business would be earning between $30,000 and $40,000 per annum and, after that period between $40,000 and $60,000 per annum. Mr Chapman said that this is the range in which a person could "get stuck". Looking directly at his son's potential for joining his business before the accident Mr Chapman said that ideally he would have liked the plaintiff to have had two or three years elsewhere, then he hoped that he would have joined him on a salary somewhere around $50,000 per annum at which mark he would stay for five years. This would coincide with his plans for retirement when the plaintiff could take over the whole business and earn roughly what he was earning, namely about $250,000 per annum. My own assessment of that scenario is that that was unlikely as the plaintiff did not have the aptitude to reach this level of performance in this industry.
Mr Dalton gave evidence of the potential earnings of shopping centre managers which ranged between $23,000 and $38,000 for graduate trainees. For management of smaller shopping centres the salary was in the range of $30,000 to $42,000, $45,000 per annum with the majority of his company's property managers earning between $75,000 and $80,000 per annum.
Mr Smulders gave evidence that property managers would typically start earning between $25,000 and $30,000 per annum plus benefits and after 12 to 18 months would move to manage a number of properties, gradually building up a portfolio of managed properties and would earn in this part of their career between $35,000 and $50,000 per annum. He said any step above that depends on the individual with the range available in Perth being between $70,000 and $120,000 per annum. Each of Mr Dalton and Mr Smulders, however, were certainly giving evidence of the experience of property managers with tertiary qualifications.
Doing the best I can in what is essentially an exercise in foretelling the future, I think it more probable than not that the plaintiff's earnings path would have been between the range of $25,000 to $60,000 per annum, notwithstanding the defendant's concession that he would have earned as much as $75,000 per annum.

Appointment of trustee

By an order made by this Court, 16 March 2001, the plaintiff's father was appointed to act as his next friend in this action. The appointment of a next friend was supported by medical evidence in the way of reports from each of Drs Skerritt, McComish and Rozsa. In the trial further evidence of the plaintiff's inability to manage his own affairs was led and each of Drs Fong, McComish and Skerritt expressed their opinions in their written reports and in the case of Dr Fong in evidence, that the plaintiff was incapable of managing his own affairs and would need the services of a trustee. The evidence of each of the plaintiff's parents taken as a whole, describing the plaintiff's current capabilities and the like supports this conclusion as indeed did my own observations. In this regard therefore I have no hesitation in finding as I was invited to find that the plaintiff is a person incapable of managing his affairs within the meaning of O 70 r 1(c) of the Rules of the Supreme Court and a declaration to this effect will be made as part of my final orders.

Choice of trustee

The plaintiff's father expressed a preference for the appointment of National Australia Bank Trustees Limited as the trustee of the plaintiff's award of damages. Daryl Francis Hughes gave evidence that he is the personal trust manager for National Australia Trustees which is a subsidiary of the National Australia Bank. National Australia Trustees has two full time employees in Western Australia with most of its work being centralised in Melbourne. The company has only been operating 11 years in Australia and from this claims expertise in the management of court appointed trusts for disabled people. Mr Hughes described the process of setting up an investment portfolio, anticipated rates of capital growth and income and he testified as to the fees charged. He indicated that National Australia Trustees have eight managed funds for disabled persons in Western Australia at the time of trial.
Stephen Charles Taylor gave evidence that he is the manager of investments with the Public Trustee. He too gave evidence of how a fund for someone like the plaintiff would be invested with anticipated rates of return and earnings and the Public Trustee's fee structure. The Public Trustee has 108 large trust funds under management in Western Australia with a median trust estate in excess of $1,000,000 (t/s 250).
Whilst the plaintiff's father expressed a preference for National Australia Bank Trustees I was quite unimpressed with that company's experience and the fact that it has but two employees in Western Australia with the bulk of its operations being centralised in Melbourne. This does not strike me as being a good arrangement at all. The Public Trustee, on the other hand, has long experience in the administration of trusts of disabled persons in Western Australia. It is a statutory body created by Parliament to perform this function.
In any event the plaintiff's father's preference for National Australia Trustees was expressed as being based on two grounds, the first being that the representatives of the National Australia Trustees impressed him as being very commercial and the second being that he did not hear Mr Taylor for the Public Trustee say that there would be any consultation with the family, which Mr Chapman thought was important. He made no criticism that the fee structure of the Public Trustee indicating that it was difficult to compare the two because they were calculated differently. He made no criticism of the Public Trustee lacked commercialism and did not point to any factor in the Public Trustee's investment strategy which caused him concern or which pointed to the choice of National Australia Trustees as being of obviously greater benefit to the plaintiff. As to Mr Taylor not having mentioned that there would be consultation with the family as far as I am concerned at any rate this did not have to be stated by Mr Taylor because it would be obvious that there would be consultation. In my long experience of dealings with the Public Trustee as a solicitor, then as counsel and now as a Judge of this Court, seeing the way in which it conducts itself in the management of trust estates I know of my own knowledge that the Public Trustee consults with families as to the needs of disabled beneficiaries of trusts. How else would it inform itself of the needs of its beneficiaries?
In my opinion the Public Trustee should and will be appointed trustee of the plaintiff's affairs by reason of its superior experience in the management of trust funds for disabled people when there has not been demonstrated to me that there is any increased benefit to the plaintiff in the appointment of National Australia Trustees. (See generally the discussion of choice of trustee in Morris v Zanki (1997) 18 WAR 260 at 283).

Assessment of damages

General damages

The plaintiff's injuries and their sequelae calls for a significant award of general damages. The pain and suffering he has endured in consequence of the injuries he sustained detailed earlier in these reasons, were very severe. 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. There is a claim for loss of expectation of life although the medical evidence about this was very slight. 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. Of this I have little doubt.
Section 3C(1) of the Motor Vehicle (Third Party Insurance) Act 1943 requires me to assess the plaintiff's general damages by reference to a most serious case, the maximum amount of compensation for which is $232,000. It is to be observed that the Act does not require me to assess with regard to the most serious case, an important distinction: see for example, Marsland v Andjelic (1993) 31 NSWLR 162 and Hendrie v Ruslie [2000] WASCA 202. In my opinion the plaintiff's claim under this head can be put at about the 70th percentile of a most serious case which reveals an award of general damages of $162,400.

Family hospital visits

The defendant submitted that the allowance under this head of claim should be modest whilst at the same time admitting that the attendances of the plaintiff's parents whilst he was in hospital would have provided solace and comfort to him and assisted in his convalescence. The defendant further submitted that there was no medical evidence on the need for the plaintiff's parents to be present for the times they were. But these damages have long been available, as the defendant acknowledged: Wilson v McLeay (1961) 106 CLR 523. There was the uncontradicted evidence of Mrs Chapman that there were occasions when she had left her son's bedside only to be called back to the hospital because he was restless and couldn't settle and she was the only one who was able to calm his distress. I accept too that on weekends the plaintiff's mother did more than just provide solace and comfort to the plaintiff. Neither party advanced any basis upon which these damages should be calculated by reference to a daily allowance for the expenses of such visits. It seems to me, however, that an appropriate allowance is $150 per day for the period whilst the plaintiff was at Sir Charles Gairdner Hospital and $75 per day until the plaintiff's discharge from the Royal Perth Rehabilitation Hospital at Shenton Park on 11 November 1997, periods of 31 and 63 days respectively and the total allowance under this head of claim therefore will be $9,375.
Interest on the above will be allowed at 6 per cent per annum from 11 November 1997 until judgment (4.34 years) namely $2,441.25).

Past gratuitous services

Section 3D(3) of the Motor Vehicle (Third Party Insurance) 1943 limits awards of damages for gratuitous services provided "by a member of the same household or family as [the plaintiff]." Where those services are rendered for not less than 40 hours per week the award is limited to a sum calculated by reference to the average weekly total earnings of all employees in Western Australia for the relevant period, agreed in this case at $570. The period from the date of the accident until the plaintiff's discharge from out‑patient care on 30 June 1998 has been agreed at $18,810 (33 weeks at $570 per week). The period from 1 July 1998 until judgment is in dispute, the plaintiff claiming that the allowance should be based on a provision of gratuitous services to the plaintiff for five hours a day, seven days a week. The defendant submits that the allowance should be for five hours per week, reduced by the three month period the plaintiff was working as a volunteer at Turkey Creek. I have already found that Mrs Chapman has unconsciously exaggerated the amount of time she spends in rendering gratuitous services to the plaintiff. 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 of $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.)
With regard to interest on these amounts, the conventional way of dealing with this matter is to allow half the interest for the whole period during which the debt accrued and hence there will be an award of interest on the sum of $18,810 at 3 per cent for 33 weeks, a total of $358. From 1 July 1998 interest on that sum will be calculated at 6 per cent per annum which for 3.7 years reveals an amount of $4,175.82.
For the period from 1 July 1998 to judgment, a period of 3.7 years, interest will be allowed at 3 per cent per annum on the sum of $26,910 which results in an award of $2,987.01.
Hence:$18,810.00
$358.00interest for 33 weeks
$4,175.82interest for 3.7 years
$26,910.00
$2,987.01 interest for 3.7 years
Total $53,240.83

Future gratuitous services

This being the first head of claim in respect of future costs it is as well to note here that senior counsel for the plaintiff referred to that line of authority which suggested that awards of damages for future losses may be reduced by some Judges on account of the risk of adverse contingencies called in some authorities "the vicissitudes of life". Whilst it was a case of a different type this convention was discussed in De Sales v Ingrilli (2000) 23 WAR 417 at 437. I confess that I have never understood the rationale for such a deduction. I adopt what Windeyer J said in Bresatz v Przibilla (1962) 108 CLR 541 at 544 and Professor Luntz' opinion expressed at par 6.4.17 in "Assessment of Damages for Personal Injury and Death" 3rd ed. A deduction of a fixed percentage of the award to take account of the prospect of adverse contingencies in a plaintiff's life in respect of awards for compensation for anticipated future expenses or lost earnings seems to me to ignore the fact that life is generally a balance of fortunate and unfortunate circumstance and takes an unduly pessimistic outlook on life. Why this should be done in awards of damages for future costs and losses, when the thing that brought a plaintiff before a court for an assessment of damages in the first place is the fact that the plaintiff has had more than his share of bad luck, never seems to have been considered by those authorities which endorse the deduction.
In the event that I am wrong in principle I must say that in this case the plaintiff has had all of the misfortune he could have anticipated in his life bestowed upon him in one fell swoop with this accident. Additionally, I should state as may be obvious from earlier parts of this judgment, I have done my best to anticipate what the plaintiff's likely future path was, were it not for the accident, and there is no call for a further deduction "on account of contingencies".
The plaintiff contends that he will require the gratuitous services of family members for four hours a day for the rest of his life. The defendant denies the contention and is prepared to concede that the evidence establishes only a need for supervisory assistance for four hours a week. The evidence of the plaintiff's future need for gratuitous services to be rendered by family members was relatively scant. Both Mr and Mrs Chapman thought the plaintiff's condition such that their daily almost constant supervision was required, but as I have already found in connection with the claim for damages for gratuitous services rendered up until judgment, the assessment of the amount of time spent by the plaintiff's family in providing services to him gratuitously, has been unconsciously exaggerated by reason of the failure to differentiate between the plaintiff simply wanting to be with his parents, particularly his mother, and his need for them to actively intervene in the supervision and management of his daily life. 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/s 165). 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 be $109,056.

Past loss of earning capacity

The first matter to be determined under this head of claim is when the plaintiff would have commenced his working life. At the time of the accident he had finished work and was about to go overseas for three months or so. I think family pressure would have required him to return to Perth for the beginning of the 1998 academic year and resuming his studies. As I have already indicated I think it unlikely the plaintiff would have completed any tertiary education as he had neither the attitude nor the aptitude for it and I think this would have gradually revealed itself during 1998 such that some time during that year he would have commenced employment probably in commerce and probably in the real estate industry where 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. Acknowledging that the commencement date is somewhat arbitrary, having regard to these findings I think it fair to choose 1 July 1998 as the commencement of the plaintiff's working career. 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. The calculation is then:
$23,733 x 3.7 = $87,812.10 x 3 per cent x 3.7 = $9747.14, total $97,559.24.

Future loss of earning capacity

As the submissions of each of the plaintiff and defendant disclose, there is a wide gap between their respective approaches to the assessment of the plaintiff's future loss of earning capacity, and his retained earning capacity the net result of each being that the plaintiff seeks an award in the order of $821,000 and the defendant $580,000 inclusive of an allowance for lost superannuation contributions. The plaintiff treats lost superannuation contributions separately and seeks an award between $30,000 and $80,000 under this head of claim depending on which scenario I choose as being the most probable. That is to say, as a principal in the family business in which case from the year 2009 onwards there would be no accretion of employer funded superannuation and the claim in this regard is then calculated at $29,534 compared with that as if the plaintiff had continued in employment in which case there was a calculation provided by the actuary, Mr Denis Barton (Exhibit P5) which showed an allowance of $79,860 under this head. The plaintiff contended for a calculation of a future loss of earning capacity based on a scenario that there would be no income until he completed his studies in December of 1999 following which he would be a trainee property manager for about four years. After this he would be a property manager for six years with a salary in the order of $70,000 rising by five annual increments of $3,333 each, whereafter he would join his father's business and become a principal earning $135,000 per annum. Dealing with his retained earning capacity the plaintiff submitted that he was earning to the fullest extent that he could at about $12,000 per annum, representing the present day value of his approximately half‑time earnings at the gymnasium, for Ms Britten and Mrs Barrymore, and taking account a significant discount for the prospects of him losing that employment. The defendant, on the other hand, conceded that the plaintiff would probably have achieved an above‑average level of income and submitted that it would be purely speculative to put the plaintiff's income in the higher income bracket having regard to his pre‑accident history. The defendant for the purpose of submissions before me was prepared to concede an average salary of $75,000 per annum over a working life of 40 years from which it claimed should be deducted a retained earning capacity as a full time gardener, groundsman, cleaner or teacher's assistant.
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 the court or tribunal before whom the claim is brought.
Accordingly, then, before proceeding to assessment of the present day value of the plaintiff's future loss of earning capacity two determinations are required: the plaintiff's likely earnings had it not been for the accident and the value of his retained capacity for and prospects of more or less gainful employment in the future.
As I have already found, I think it more probable than not that at the most the plaintiff would have earned on average after a three year period of traineeship in real estate management would be the sum of $60,000 per annum gross. Tax on this sum including the Medicare levy is $16,536. Converting these to weekly amounts for the purpose of applying the discount tables for a loss accruing on a weekly basis, the amounts are $1,153.85 gross per week less $318 tax, including Medicare levy, leaving a net loss of $835.85.
As regards the plaintiff's retained earning capacity, as I have found there is no doubting the plaintiff's enthusiasm to obtain work in the north west of this State as a teacher's assistant. There is no doubting either the circumspect way in which the various medical practitioners have approached this question. 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. 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. I am mindful of what the High Court said about this exercise in Malec v J C Hutton Pty Ltd (1990) 92 ALR 545 at 548 – 549, namely that a court:
"… assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. …The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
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. By the same token it must be said that the plaintiff urged upon me that there was a clear prospect of his current retained capacity being reduced by a deterioration in his condition. Again, the evidence does not support this contention and certainly not to the extent where I could assess the probabilities of it occurring or not occurring. In my opinion, as far as the plaintiff's retained earning capacity is concerned, the status quo will remain for the foreseeable future through until he would ordinarily have been eligible for retirement.
The parties are agreed upon one aspect of this matter and that is that the present day value of the plaintiff's work capacity as it is currently being exercised is in the order of $12,000 per annum or $230.77 per week. Tax on this amount is $20 per week leaving a net weekly value of his retained earning capacity as $210.77 per week. Deducting this sum from $835.85 leaves an amount of $625.08 per week. For 41 years until the plaintiff will attain the age of 65 years the multiplier using the 6 per cent tables with a current allowance for mortality is 813 which gives an amount of $508,190.04, and there will be an award under this head for that sum.

Superannuation

As indicated, in my opinion the plaintiff's most likely future career path had it not been for the accident was that he would remain in his employment as a mid‑level manager in the real estate industry and as such his employer would have been obliged to make provision for his superannuation at the rate of 9 per cent per annum on his gross earnings. Allowing for his retained earning capacity the gross value of the plaintiff's future economic loss on a weekly basis is $923.08 ($1,153.85 – $230.77) 9 per cent of which is $83.08. This amount is taxed at 15 per cent at the time the contribution is made going into the approved superannuation fund and 15 per cent when it is drawn down together with a 1.5 per cent Medicare levy, making a total tax of 31.5 per cent. 31.5 per cent tax on $83.08 is $26.17 leaving the net value of the plaintiff's anticipated employer's contributions to his superannuation after deduction of tax at $56.91. Strictly, it is not correct to apply the 41 year multiplier to this sum because superannuation is a deferred benefit inaccessible until at the earliest under the legislation at age 55, but having regard to the projections for the plaintiff's future career path, in this case inaccessible until age 65 years. Accordingly, this is not an accruing weekly loss that is being valued as at today, but an accruing future payment deferred. However, it seems conventional to treat it in the way that I propose and applying the 41 year multiplier of 813 the resultant present day value of this loss is $46,267.83.

Future medical and pharmaceutical expenses

The only claim made by the plaintiff in respect of future medical treatment was for Dr Skerritt's fees. The defendant factored in an allowance for psychological treatment but there was no evidence of Mr Becerra's fees and in any event I think that his fees are rendered to the plaintiff as a public patient at the State Head Injury Unit at Sir Charles Gairdner Hospital, a public hospital. Insofar as Dr Skerritt's fees are concerned the parties were largely in agreement only separated by the mathematics of calculations of monthly psychiatric consultations at $160 each for the next two years and thereafter in the case of the plaintiff allowing for quarterly attendances for the next 50 years but in the case of the defendant four monthly consultations for the next 50 years. The end result is a difference between the parties of $933. Having regard to the deep‑seated nature of the plaintiff's psychiatric and psychological problems and my own observations of them I think that in all probability he will, after the next two years, require psychiatric support every three months for the rest of his life and accordingly I will allow under this head of claim $12,933.
With regard to pharmaceutical expenses the parties were largely in agreement. The plaintiff will continue to require the rather expensive drugs prescribed by Dr Skerritt for the foreseeable future, they being Venlafaxine Mitrazapine and Olanzapine. I prefer the defendant's method of calculation showing that these drugs are available under the pharmaceutical benefits scheme at a maximum cost of $21.90 up to the safety net threshold which is now $669.70 and thereafter at $3.50 per prescription as per the evidence of the pharmacist, Mr Tomazin. This represents an annual cost of $900 which for the plaintiff's life expectancy reveals an amount of $14,657.84.

Travelling expenses

This head of claim covers the cost of travel for the plaintiff and his family for visits to Sir Charles Gairdner Hospital, Royal Perth Rehabilitation Hospital and the various specialists. The parties' agreed rate is 30 cents per kilometre and as to the allowance they are not far removed in their submissions. I prefer the calculations of the plaintiff which reveal total kilometres travelled at 8,004 which at 30 cents a kilometre results in an award of $2,401.20 under this head of claim. I note that the plaintiff made no submission that interest should be allowed on this, however it would be appropriate to allow 6 per cent per annum for the 3.7 years until judgment, $533.07, total $2,934.27.

Fund management expenses

A detailed analysis of the fees which would be charged by the Public Trustee was identified by its author, Mr Taylor, and came into evidence as Exhibit P20. The Public Trustee's fee structure is as follows:
•1.25 per cent of the amount received as a one‑off capital commission.
•1.1 per cent fee on the purchase of a dwellinghouse.
•6.6 per cent on income earned outside the common fund.
•$110 per hour for the preparation of annual income.
•Quarterly portfolio reviews by Salomon Smith Barney at $600 each.
Applying these fees to the award I will assume that at some stage within the next few years a home for the plaintiff will be purchased out of the fund.
The anticipated income of earnings from the fund (as opposed to an increase in capital value of the fund's investments) is 4 per cent per annum. Rather than averaging this income over the life of the trust as submitted by the defendant, in my opinion the proper approach is to apply the 6 per cent discount tables which take account of a diminishing return. I will apply the same approach to the other annual fees in respect of income tax returns and portfolio management. The resultant sums are therefore:
•Award (so far) $713,338.71 ($1,019,055.30 reduced by 30 per cent on account of the plaintiff's (agreed) contributory negligence).
•Less cost of acquisition of dwelling estimated at $200,000.
•Balance $513,338.71.
•95 per cent to be invested outside common fund $487,671.78.
•4 per cent income = $19,506.87 by 6.6 per cent = $1,287.45 per annum.
•Quarterly portfolio reviews at $2,400 per annum.
•Preparation of income tax returns at $330 per annum.
•Total annual fees at $4,017.45 per annum = $77.26 per week by 52 year multiplier 852 = $65,825.52.
Hence total fund management expenses:
Capital fee$8,916.73
House commission $2,200.00
Annual fees $65,825.52
Total$76,942.25
70 per cent$53,859.58

Special damages

The parties have agreed special damages at $11,329.95 and, further, have agreed interest on special damages in the sum of $148.60. Total $11,478.55.

Summary

$
General damages  162,400.00
Hospital visits  9,375.00
Interest on hospital visits  2,441.25
Past gratuitous services (including interest)             53,240.83
Future gratuitous services  109,056.00
Past loss of earning capacity
(including interest and superannuation)                   97,559.24
Future loss of earning capacity   508,190.04
Superannuation  46,267.83
Travel (including interest)  2,934.27
Future medical expenses  12,933.00
Future pharmaceutical expenses  14,657.84
Sub-total$1,019,055.30
70 per cent$713,338.71

Fund management expenses  $53.859.58
Special damages plus interest  $11,478.55
Total award  $778,676.84