Florence Benefield v William Newman [2006] NSWSC 1294

New South Wales Supreme Court

CITATION : Florence Benefield v William Newman [2006] NSWSC 1294 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 23, 25, 28 August 2006, 24 and 28 November 2006.

JUDGMENT DATE : 24 November 2006

DECISION : Damages assessed.

CATCHWORDS : Damages - plaintiff injured in motor vehicle accident - life expectancy - extent to which plaintiff's health post-accident attributable to pre-accident undiagnosed conditions - modifications to plaintiff's home to allow for 24 hour live-in care.

LEGISLATION CITED : Motor Accidents Compensation Act 1999

CASES CITED : Zhang v Golden Eagle International Trading Pty Ltd & Ors. [2006] NSWCA 25

PARTIES : Plaintiff - Florence Benefield Defendant - William Newman

FILE NUMBER(S) : SC 20338/04

COUNSEL : Plaintiff - DA Wheelahan QC / D O'Dowd Defendant - JN Gleeson QC / BG Smith

SOLICITORS : Plaintiff - Cox Lawyers Defendant - Moray &Agnew

- 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST

LATHAM J

24 NOVEMBER 2006

20338/04 FLORENCE BENEFIELD v WILLIAM NEWMAN

JUDGMENT Introduction 1 At the age of 86, the plaintiff, who had travelled from the UK with her husband to visit friends in NSW, was injured in a motor vehicle accident on 16 February 2002. The vehicle, driven by her brother-in-law, left the road and struck a tree. Her injuries were primarily to the lower left side of her body and included fractures to the left leg and left arm, a fractured sternum and fractured vertebrae. 2 The defendant has admitted liability. Accordingly, these proceedings are concerned only with the assessment of damages pursuant to Chapter 5 of the Motor Accidents Compensation Act 1999. 3 The plaintiff was hospitalised from the day of the accident until 2 June 2002. She underwent surgery on 18 February. For approximately six weeks following the accident, the plaintiff was treated by way of a tracheostomy. Various other tests and surgical procedures were administered to the plaintiff during her stay in hospital. 4 The plaintiff travelled to Southend Hospital in the UK on 2 June 2002 where she stayed until 15 July. She was then discharged to her son's home, thence to her own home in Romford on 30 October 2002. 5 In May 2003, the plaintiff was assessed by an occupational therapist, who recommended certain modifications to the plaintiff's home to take account of her physical limitations. These modifications were undertaken. The plaintiff's husband had been providing 24-hour care, with some paid assistance, and continued to do so until his death in February 2004. Thereafter, the plaintiff's two adult sons (both of whom by then lived in Thailand) provided 24-hour care, with some paid assistance, for the plaintiff, by rotating shifts of six weeks duration. The expense associated with their respective travel arrangements makes up part of the plaintiff's claim in these proceedings. 6 In October 2004, the defendant's insurer commenced to provide the 24-hour care that the plaintiff required, by way of paid full time live-in carers. The modest and relatively confined nature of the plaintiff's home renders it necessary for the live-in carer to descend from an upstairs bedroom and pass through the plaintiff's bedroom to gain access to the only bathroom in the house, and to gain access to the kitchen and lounge. Despite these unsatisfactory conditions, the plaintiff refuses to move from her home of 50 years. The plaintiff claims the cost of extensive renovations to the home, in order to allow her to remain in the home and provide suitable separate accommodation for the live-in carer. The defendant submits this is unnecessary and unreasonable in the light of readily available nursing home care. 7 The plaintiff claims an amount for the 24-hour care provided by her husband and sons since her discharge from Southend Hospital until the provision of 24-hour care by the defendant as and from 15 October 2004. The plaintiff also claims the full cost of 24-hour care for the future, on the basis that the plaintiff is able to remain living in her home. 8 The principal submission advanced by the defendant in relation to these claims, and as to the claim for non-economic loss, is that the plaintiff would have required such care and that a proportion of her pain and suffering would have existed, regardless of the accident, after her husband's death. In that regard, the defendant maintains that he is not liable for the plaintiff's care after February 2004. 9 The resolution of these issues, that is, the extent to which the plaintiff's present condition is attributable to the accident, her life expectancy and the need for extensive renovations to the home, largely turn on the weight to be attached to the evidence of competing medical experts. The plaintiff's evidence was video-recorded at her home on 10 April 2006 over a period of four hours. The plaintiff's responses to the questions put to her, and her demeanour in the course of her evidence, constitute an additional important source of material on these issues.