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.

The Plaintiff's History and Present State of Health 10 The plaintiff was born on 10 January 1916. In 1940 she married, giving birth to her first son two years later and her second son two years after that. In 1951, when the plaintiff was 35 years of age, she gave birth to a third child, who died shortly after birth. 11 In April 1952 the plaintiff consulted an orthopaedic surgeon regarding low back pain following the birth of the third child. She was treated by physiotherapy. There was some recurrence of this pain in January 1957. 12 In June 1961 when the plaintiff was 45 years of age, she experienced gynaecological symptoms of uncertain origin. In September of that year, she underwent a diagnostic curettage. 13 At the age of 48, the plaintiff sustained an apparently insignificant injury to her right knee and abrasions to her head. That same year she was treated for swelling above both knees, although there was no significant pain. 14 In May 1970, the plaintiff (now 54) reported discomfort with her neck. Examination demonstrated degenerative changes at C5-6. The plaintiff was again treated with physiotherapy. 15 In February 1979, the plaintiff presented at hospital following a fall. The neck of the right femur was fractured, requiring the plaintiff's hospitalisation for about twelve days. No explanation was given for the fall. 16 Between September 1982 and August 1994, the plaintiff's health was basically sound, save for some minor ailments to her eyes, some swelling on her knees and dislocation of her left middle finger. In July 1993, an X-ray showed moderate kyphosis with degenerative changes to the dorsal spine and upper lumbar region. These were thought to be secondary to osteoporosis. 17 In March 1995, when the plaintiff was 79 years of age, an X-ray of her pelvis revealed marked degenerative changes in the left hip joint and moderate osteoarthritic changes in the right hip joint. There were also severe osteoarthritic changes in the lower lumbar and sacral region. Later that year the plaintiff was assessed for a hip replacement and was taking analgesics for pain in her hips. However, hip replacement was not considered necessary, rather physiotherapy was prescribed for her back problems. By the end of 1995, the plaintiff had responded well to physiotherapy and that treatment was discontinued. 18 An MRI scan of the plaintiff's lumbar spine in August 1996 revealed marked degenerative changes but no neural compression. In September, the plaintiff underwent an epidural and manipulation of the lumbar spine, after which she reported some improvement in her lower back. 19 In April 1998, the plaintiff complained of giddiness and breathlessness on exertion. In January 1999, following a viral infection, she was prescribed Ventolin. 20 In April 1999, the plaintiff was troubled by pain in her right arm and neck pain. Cervical spondylosis was noted and physiotherapy administered. The physiotherapist reported "a marked kyphotic thoracic spine" and recommended an X-ray. The X-ray showed evidence of osteoporosis and scoliosis of the dorsal spine. The plaintiff's pain in the shoulders and lower back improved on medication. 21 In October 1999 the plaintiff reported a fall and pain in her right elbow, although nothing was broken. The reason for the fall was not revealed by the notes. 22 In April 2001 the plaintiff reported giddy spells, but no relevant abnormalities were found. 23 In summary, prior to the accident, the plaintiff's physical condition was what one might expect in a robust 86-year-old woman who had borne three children and had remained physically active throughout her life. From a relatively young age, the plaintiff had worked as a barmaid and later as a cook several nights a week in a relative's hotel. She was still engaged in that work shortly before leaving the UK for Australia in early 2002, albeit on a voluntary basis and only one or two nights per week. The plaintiff and her husband travelled frequently to Europe following her husband's retirement. They travelled to Australia on six occasions before 2002, in alternate years to visit Mr Benefield's sister and her husband. Those visits lasted from three weeks to three months. (It was during the last of these visits that the accident occurred.) 24 The plaintiff did all the housework and cooking. Until a few years before the accident, the plaintiff did all the clothes washing by hand. The plaintiff and her husband went shopping twice a week. The plaintiff's husband tended the garden, while the plaintiff worked in the glasshouse raising seedlings. All in all, they both lived an active and socially varied life for people of their age group. 25 Accepting that, by the late 1990's, osteoporosis had set in, with resultant degeneration of the spine at the neck and lower back, the plaintiff was otherwise remarkably healthy. There was very little objective evidence of loss of mobility, or of problems with gait or balance until 1998 when the plaintiff was 82. Significantly, there was nothing to indicate any neurological or cognitive deficits.

26 Following the accident, the plaintiff's independence was completely compromised, owing to the extensive and serious nature of her injuries. Reports of the accident indicate that the vehicle in which the plaintiff was travelling left the road at speed and collided head-on with a tree. The plaintiff suffered compound and comminuted fractures of the left distal tibia and fibula, the left radius, the sternum (with associated abdominal bleeding), fractures of T10 and T11 and a large degloving injury to the left leg. She was nursed in an induced coma and ventilated via a tracheostomy until stabilised to the point where surgery was performed on 18 February 2002. 27 During that surgery, the fractures to the left tibia and fibula were repaired with the use of intramedullary nails, a closed reduction of the fracture to the wrist was performed and it was set in plaster, and the wounds to the right leg were debrided. The plaintiff remained in intensive care until 5 March, at which time she was weaned off the respirator. 28 On 20 March 2002 the plaintiff underwent further surgery, comprising debridement and split skin grafts to her leg wounds. The donor site was the plaintiff's right thigh. The plaintiff spent a further two days in intensive care. 29 On 24 April 2002 the plaintiff was administered two modified barium swallow tests that indicated a tendency to aspirate. On 10 May a feeding tube was inserted to prevent aspiration and thereafter the plaintiff received all her food in that way. 30 On 16 May 2002 the plaintiff was assessed and found to be stable in her respiratory functions and cardiac function, although she had suffered a recent bout of pneumonia through aspiration and was having difficulty swallowing (dysphagia), resulting in aspiration. The plaintiff also had a right ulnar nerve deficit. The plaintiff underwent physiotherapy and was noted to be "very well motivated and enthusiastic". 31 Following the plaintiff's return to the care of her medical practice in the UK, she suffered from chest infections, breathlessness and wheezing. However, in May of 2003 Dr Su thought that the plaintiff had made an excellent recovery as far as her airway and cough was concerned. The plaintiff's airway was said to be mildly restricted due to the long-standing tracheostomy, and that condition was appropriately managed with Ventolin. 32 On 8 May 2003 the plaintiff was assessed by an occupational therapist retained by the defendant's insurer. The therapist was called upon to recommend home adaptations and other measures to maximise the plaintiff's rehabilitation and independence. The therapist noted that both the plaintiff and her husband "presented with no evidence of cognitive or psychological difficulties; had no wish to leave their home and indeed were adamant that that's where they wanted to remain". The plaintiff was said to be :- very short of breath and unable to walk more than about 20 yards without having a rest. Although she is able to mobilise with the use of rollater walking frame she requires supervision at all times due to being unsteady on her feet. She is limited in the transfer she can carry out due to the low height of the services at home such as bed, chairs and bath. She is not left on her own due to the risk of her falling. ……………………………………………………………………. Prior to the accident Mr and Mrs Benefield were an active social couple, who enjoyed gardening, travelling and spending time with their children and grandchildren. Their lives have changed significantly since the accident.

33 At this point in time, the plaintiff's husband was providing 24-hour care. The plaintiff was said to be "very motivated to increase the level of independence in personal care and domestic activities". The therapist recommended renovations to the bathroom and the provision of a manual and powered wheelchair for the plaintiff. Ultimately, when the wheelchair was provided, the plaintiff found it difficult to negotiate through the small house and into the garden using the wheelchair. 34 In September 2003, the therapist noted that the plaintiff had "progressed on to using a walking stick instead of a frame for walking around the home. She continues to use her nebuliser daily and has oxygen as and when required. …………[The plaintiff] continues to have difficulty with her breathing, cannot blow her nose and continues to suffer with sore throats." In the report of November 2003, it was noted that the plaintiff had continued to progress in terms of her mobility. 35 In a report of 13 February 2004 (five days after the death of her husband), the therapist referred to the plaintiff's wishes regarding her future accommodation. The plaintiff was :- adamant that she wants to remain in her own home-she has been there 50 years and is not prepared to move out now. ….. [the plaintiff and her husband] were fit and healthy prior to the accident to the extent they were holidaying in Australia, and this included driving and swimming and generally being very active. If it were not for the accident I have every confidence that [the plaintiff] would, even without her husband, be more than capable of looking after herself. Clearly this is no longer the case and she is very much in need of someone there 24 hours per day. 36 In May 2004, the same occupational therapist reported that the plaintiff had undertaken several months of physiotherapy and had made considerable progress in terms of her mobility and safety. In July it was noted that the plaintiff continued to do all her physiotherapy exercises on a daily basis, although she had a fall in the kitchen and suffered minor bruising. The plaintiff did not attend the doctor. 37 In early August 2004 the plaintiff was examined by Dr Boston, a Consultant Trauma and Orthopaedic Surgeon. Dr Boston described the plaintiff as "frail" at the time of his examination. He noted that the plaintiff had told him that before the accident "she was fit and was self-sufficient. She did gardening and all household duties." Dr Boston considered the plaintiff's injuries from the accident were life-threatening and that she was fortunate to have survived. It was further noted that :- She had a tracheostomy. As a result she has difficulty with breathing and has difficulty eating and swallowing. … She sustained fractures of the thoracic spine. She continues to have back pain and has a thoracic kyphosis. … There were genuine severe persisting symptoms and signs .. [and] these will be permanent. … It is quite clear that if she did not have [full-time] care she would need to be admitted to an institution (Nursing Home). … It is the case that, in my opinion, her life expectancy has been reduced by say 2-3 years as a result of her serious injuries. 38 In September 2004 the defendant's insurer approved 24 hour live-in care for the plaintiff. That care commenced on 15 October at a cost of six hundred and thirty pounds per week. The single bedroom above the plaintiff's bedroom was furnished to meet the carer's needs. That arrangement continues, to the detriment of the privacy and amenity of the plaintiff and the carer. 39 A report by Dr J F Davis was prepared following an examination of the plaintiff on 5 October 2004. Dr Davis commented that the plaintiff had developed dysphagia as a result of the prolonged tracheostomy, required the use of a nebuliser and was significantly disabled and impaired as a result of the accident. In his opinion, the plaintiff had achieved maximal medical improvement. The plaintiff's physical dependency was contrasted with her extreme and fierce independence before the accident. 40 The plaintiff was unable to face the prospect of Christmas alone, since the death of her husband. She travelled to Thailand on 16 December 2004 to spend the festive season with her sons, but the journey proved too onerous and she remained there for three months before she was well enough to return. The plaintiff's treating doctors generally advised against the trip. The plaintiff now accepts that she is unable to travel as she once did.

The Evidence of Dr Ernest Tam 41 Dr Tam, a specialist geriatrician, was engaged on behalf of the defendant to provide an opinion, based upon his perusal of the plaintiff's medical records, in support of the contention that the defendant was not responsible for the plaintiff's long-term care. Two reports, dated 2 August 2005 and 15 May 2006, were prepared solely on the basis of those records. Dr Tam did not examine the plaintiff and did not see the videotape of the plaintiff's evidence until some five days prior to giving evidence in the proceedings. The viewing of the plaintiff's evidence was not the subject of a revised report. 42 In his report of 2 August 2005, Dr Tam reviewed the majority of the reports to which reference has been made above. Under the heading "Pre-MVA Status" and "Opinion" Dr Tam stated :- [The plaintiff's] pre-MVA medical conditions included moderate thoracolumbar scoliosis with vertebral fractures, untreated osteoporosis and thoracolumbar spondylosis. She could have silent small vessel ischaemic brain disease. ……………………………………………………………………… Her swallowing problem from the MVA and tracheostomy should have had (sic) resolved after the tracheostomy was closed. ENT specialist could not identified (sic) organic cause for the dysphagia. She has had neurogenic dysphagia with silent aspirations demonstrated by the Modified Barium Swallows (Video Barium swallow done in UK was probably not a Modified Barium Swallow which required the involvement of Speech Pathologist. The video Barium swallow might not demonstrate neurogenic dysphagia.) The neurogenic dysphagia probable (sic) had been asymptomatic (symptomatic after the MVA) for many years from pre-MVA diffuse small silence strokes which would not be shown in CT Brain Scan (MRI Brain may unveil ischaemic changes in the brain). The neurogenic dysphagia allows her to tolerate thicken (sic) fluid diet but not safe with solid or liquid. Her aspiration risk is high . The small vessel disease of the brain also could cause co-ordination, balance and gait disorder which might not be apparent before the MVA. Routine neurological examination might not show any lateralising sign or focal neurological deficit. There was no mentioning of her cognitive capacity in the reports. It is probable that at her old age with small vessel brain disease she would have had mild cognitive impairment or even dementia if proper cognitive assessment were carried out. ……………………………………………………………………… Her remaining life expectancy would be less than two years from today. She has ongoing high morbidity and mortality risk from sudden death, brain and/or heart attacks, instability and falls, injuries and fractures, aspiration pneumonia (very high risk ), sepsis, iatrogenesis, and prone to de-conditioning and immobilisation. 43 Dr Tam went on to state that, in his opinion, the plaintiff's current reasonable requirements amounted to no more than personal/domestic assistance from one person for two hours per day. Immediately thereafter, Dr Tam commented that the plaintiff "may need high-level aged care facility (nursing home care) in the next six to 12 months." The explanation for these apparently contradictory statements lay in Dr Tam's opinion that the plaintiff would deteriorate over the course of the year (from the date of the report), to the extent that she would move from being "quite independent" and "very functional" to frail. This explanation was given in evidence on 25 August 2006, at which time the plaintiff had not entered a nursing home. Dr Tam agreed that 24-hour personal live-in care would also be appropriate. 44 Absent the accident, Dr Tam assessed the plaintiff's remaining life expectancy at four years from the date of the report. In his view, the accident would have accelerated the plaintiff's need for care and domestic assistance or later admission to a high-level aged care facility by two to three years. Following the provision of further treatment notes, Dr Tam adhered to his view in the report of 15 May 2006. 45 In the course of his evidence, Dr Tam repeated the conclusions reached in his reports, namely that the diagnosis of pre-accident probable silent small ischaemic brain disease was based upon the plaintiff's post-accident dysphagia, aspirations whilst in hospital, and the giddiness and fall noted in April 2001.

46 The departure point for this diagnosis appears to be the fact that the dysphagia had not resolved following the closure of the tracheostomy and the ENT specialist had not identified an organic cause. On that basis, according to Dr Tam, subtle neurological changes were probably occurring before the accident, albeit they did not produce overt symptoms. 47 The relatively qualified nature of the opinion that, on the basis of the medical history, the plaintiff was probably mildly cognitively impaired (although there was nothing to that effect in any of the medical reports) gave way to unqualified assertions of cognitive impairment and vascular dementia, once Dr Tam was permitted to comment upon the effect of the plaintiff's recorded evidence upon his views. It is necessary to set out that evidence in some detail :- As to my clinical assessment of the person, because I actually was witnessing the person throughout, she was sitting on a lounge chair. I could assess her qualitative state. She has got cognitive impairment to the extent that she is now having vascular dementia from small vessel damage . This supports my opinion. She was frail and she had breathlessness on just sitting down answering questions. She tires easily. She has got kyphoscoliosis. …………………………………………………………………….. She has got a lot of deficits in different areas, save for the fact she is partially deaf, she may not be able to grasp the questions, but she got receptive problems. She has got executive and expressive problems . She has always got the time wrong - timeline wrong about events because, in her mind, from the time that she was 62, when she was working in a bar, she always referred the memory back to then and there was a gap. Actually, the interviewer was asking her several questions trying to bring her back to the specific answers. There was a gap in her memory from age 62 to current, a lot were mixed up. Of course, she is showing mental slowness in her thought processes, and also in comprehension, and also in response to questions, simple questions, she could not give a good answer . I could also see that her short-term memory, she has got some short-term memory impairment but not very evident. This is also consistent with vascular dementia whereby the memory area would be spared by the small strokes in many cases. ……… Her short term memory was still intact to a certain extent ….. The Defendant's Liability for the Plaintiff's Care 48 After making due allowances for Dr Tam's experience and expertise, and having taken advantage of the opportunity to view the plaintiff's evidence a number of times in the light of Dr Tam's opinions, I was unable to discern such an appreciable lack of comprehension or expression in the plaintiff. Leaving to one side the objectively observable indicia of the plaintiff's physical health, that is, her breathlessness, mobility problems, compromised hearing and scoliosis, there was nothing about the quality of her responses that caused me to doubt her cognitive state. She answered promptly and appropriately to almost every question. There was no need for the interviewer to repeat questions or to traverse the same ground in order to focus the plaintiff's attention upon a particular topic.

49 To the contrary, the plaintiff's general demeanour during the course of her evidence suggested that she is, generally speaking, keenly alert for a woman of 90 years of age. The cross-examination by the defendant's legal representative established that the plaintiff could not remember much of her earlier medical history relating to her lower back and neck problems, and that the plaintiff was not accurate in her recall of events without prompting by her son. However, the plaintiff maintained that she had throughout her life generally avoided medical intervention, a claim that was borne out by her medical history and the conservative management of her conditions whenever she complained of pain and discomfort. The plaintiff's generally stoic and hardy nature would not dispose her to commit to memory a catalogue of relatively minor medical complaints. 50 Under cross-examination, Dr Tam admitted that there was no mention of dysphagia in the plaintiff's history before the motor vehicle accident. In addition, Dr Tam maintained that, whilst a number of specialists and surgeons had conducted physical examinations and attributed the plaintiff's dysphagia to the long-term tracheostomy, those diagnoses could not adequately explain the plaintiff's aspiration pneumonia and could not exclude the true cause of the dysphagia. However, Dr Tam also somewhat reluctantly conceded that there was no record of aspiration following the episode at Wollongong Hospital. It was nevertheless Dr Tam's view that aspiration pneumonia would return as the plaintiff became weaker over the following four months. 51 In short, the various opinions and diagnoses that attributed the plaintiffs dysphagia to the long-term tracheostomy did nothing to dissuade Dr Tam from his views, primarily on the basis that "they were not looking at the part of the small vessel disease of the brain played in the neurogenic dysphagia which at that time could -- may not be presenting but it would still be persistent." 52 Similarly, Dr Tam conceded that, prior to the accident, there was no complaint from the plaintiff and/or no recorded symptom of restrictive lung capacity, problems with co-ordination, balance and gait, or cognitive impairment. All of these deficits were, according to Dr Tam, asymptomatic before the accident and none of them were capable of detection by specialists who were not qualified gerontologists. 53 I do not doubt that for the majority of elderly patients who had not experienced accident trauma of the severity suffered by the plaintiff, these conditions would invariably be present to varying degrees. In the result, it appears to me that Dr Tam's opinion of the plaintiff was unduly influenced by the rate of physical and mental deterioration he would expect of a woman of advanced age. The plaintiff as an individual, with an individual and unique history, including the trauma of a serious motor vehicle accident, was largely discounted. 54 The impression I formed of the plaintiff was that of a strong-willed, independent person who, before the accident, rarely let any physical limitation interfere with her quality of life. The numerous medical and occupational therapy reports that commented to similar effect, and which Dr Tam consulted, were entirely consistent with the plaintiff's presentation in the course of her evidence. It is important to bear in mind that all of those reports were prepared by professional personnel who had spoken to and examined the plaintiff in person, often on a significant number of occasions over a lengthy period of time. By way of contrast, Dr Tam reached a concluded view of the plaintiff's pre and post-accident status on the basis of written reports and a recording of the plaintiff taken on one specific occasion. 55 There is no reason to think that, but for the accident, the plaintiff would still be doing her own housework and cooking to the best of her ability, taking into account a certain amount of physical deterioration inherent in the aging process. The plaintiff would also, but for the accident, have continued travelling, particularly since both of her sons and their families live in Thailand. I cannot accept that the motor vehicle accident has had so little effect upon the plaintiff's present condition as Dr Tam's opinion would tend to suggest. In my view, the accident had a profound impact upon the plaintiff's rate of physical deterioration and upon her pre-accident state of health. 56 The plaintiff has established on the balance of probabilities that the defendant is liable for her past and future care. I do not regard it as unreasonable for the plaintiff to recover the cost of the airfares incurred by the plaintiff's sons during the period they were required to provide 24-hour care, given that the burden of that care should have fallen on the defendant. There remains the issue of the plaintiff's life expectancy.

The Plaintiff's Life Expectancy 57 According to the statistical life expectancy represented by the tables produced by the UK Government Actuary's Department (Exhibit E, tab 14) the plaintiff's present life expectancy is 4.3 years. However, some downward adjustment to that figure is required given the findings made above concerning the impact of the injuries caused by the accident upon the plaintiff's health : Zhang v Golden Eagle International Trading Pty Ltd & Ors. [2006] NSWCA 25. 58 The two opinions on life expectancy before the court, namely Dr Boston's and Dr Tams, fall within 9 months of each other. Dr Boston examined the plaintiff when she was 88 years of age, at which time her life expectancy was 5.7 years. I see no reason to assume other than that Dr Boston was expressing a view as to the plaintiff's life expectancy at the time of his report. Allowing for the two to three year reduction determined by Dr Boston, the outer limit of that assessment anticipates that the plaintiff would not live beyond May 2008. Doctor Tam's opinion was that the plaintiff would not survive beyond August 2007. 59 Dr Tam's assessment was no doubt coloured by his uncompromising view of the plaintiff's pre-accident condition. Dr Boston was in a better position to personally assess the plaintiff, although he did so on one occasion only. Whilst I am generally guided by those opinions, I have determined that a reduction of two years from the otherwise applicable life expectancy for a 90 year-old female in 2006 is appropriate to the circumstances of this case. The plaintiff has consistently demonstrated a determination to improve her mobility and remain as independent as possible. There have been no life-threatening events in recent times and her condition appears relatively stable. Accepting that her injuries were serious, she has made an excellent recovery, all things considered, and is highly motivated to maintain her present quality of life. Accordingly, I assess the plaintiff's life expectancy at 2 years and 4 months.

Modifications to the Plaintiff's Home 60 The plaintiff sought to rely upon an extensive report from Mr Skerratt, a quantity surveyor and law graduate, on the basis that the Court would be persuaded that the plaintiff ought be permitted to remain in her own home and that extensive renovations to the plaintiff's home would therefore become necessary. In my view, the plaintiff is entitled to remain in her home, not least for the reason that her attachment to it is a significant factor in maintaining her positive outlook, thereby postponing the likely decline that institutionalisation brings. 61 However, the defendant's objections to Mr Skerratt's report are well-founded. Mr Skerratt was provided with a copy of the report of an occupational therapist who had reached her own conclusions as to the scope of work required, based upon that therapist's expertise and experience of the plaintiff's needs. Instead of costing those works, Mr Skerratt determined that many of them were inadequate and substituted his own recommendations for modifications to the home, which were both far-reaching and considerably more expensive. Some of the assumptions underlying Mr Skerratt's determinations as to the inadequacy of the proposed alterations were not supported by the evidence or were strictly irrelevant. For example, Mr Skerratt appears to have assumed that the plaintiff was confined to a wheelchair indoors and he rejected the proposal for a simple extension to the side of the plaintiff's home, on the basis that it would impede natural light to the living area. 62 Instead, Mr Skerratt proposed an extension to the west of the present bungalow that would more than double the present internal space and move the plaintiff's bedroom from the front of the home to the rear of the home. This proposal assumed that the plaintiff would retain the use of a guest bedroom (the plaintiff's present bedroom) with a new ensuite bathroom and toilet, in addition to the installation of a new ensuite bathroom off the plaintiff's re-located bedroom, a new ensuite bathroom at first-floor level, and the construction of a new kitchen. The proposed new extension was costed at more than 53,000 pounds, excluding bathroom and kitchen fittings. In total, the proposed cost was in the order of 182,000 pounds, or roughly AUS$455,000. 63 The plaintiff's submissions on this aspect of the assessment of damages faintly recognised the excesses of Mr Skerratt's report. In view of the fact that I have determined that the plaintiff will most probably enjoy the benefits of modifications to her home for little more than two years, modifications of a much lesser scope than that proposed by Mr Skerratt are called for. It is reasonable that both the plaintiff and the carer should be accorded a measure of personal privacy and that the plaintiff should be able to access a wheelchair and/or scooter in order to move from inside to the outside of the home with relative ease. However, these advantages might be reasonably achieved by the construction of an ensuite bathroom adjacent to the present upstairs bedroom, modifications to the staircase and present entry to the premises, so that the carer is able to access the living/dining room and kitchen of the premises without passing through the plaintiff's bedroom, and modifications to the internal and external doorways to allow for the passage of a wheelchair and/or scooter. 64 Having regard to the costing by Mr Skerratt for the creation of an appropriate ensuite bathroom for the plaintiff and a similar facility for the carer at first-floor level, and allowing for the necessary modifications to external walls, internal walls and doorways, an amount of 40,000 pounds is in my view more than sufficient to achieve these ends and to reflect a reduction in the amount to be awarded in order to take account of the relatively short time that the plaintiff will have to enjoy the amenity of those improvements.

Damages 65 I would assess the plaintiff's non-economic loss in accordance with the Motor Accidents Compensation Act, 1999 at $125,650.00 pursuant to Part 36 Rule 17 of the Uniform Civil Procedures Rules, 2005. I allow the plaintiff's claim with respect to out-of-pocket expenses, plus the expenses incurred by the plaintiff's sons in travelling to and from Thailand, the claim for past attendant care and gratuitous services, the claim for future attendant care at $1,621.91 per week, the claim for future out of pocket expenses at $9,000:00 and the cost of home modifications in the sum of $98,788:00. 66 The parties are to bring in short minutes of order to reflect the findings I have made. **********

30/11/2006 - Incorrect spelling in citation - Paragraph(s) citation

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