Facts / The Trial / Court of Appeal

Mr Stewart suffered catastrophic injuries, including brain damage, bowel perforations, sepsis, cardiac arrest and stroke as a result of the negligence of Metro North Hospital and Health Service (‘MNHHS’) and started a proceeding in the Supreme Court of Queensland. MNHHS admitted liability. The only issue in dispute at trial was the assessment of damages.

The key issue at trial, and on appeal, was the assessment of future care damages.

At the time of trial, Mr Stewart was 71 years of age. It was uncontroversial that Mr Stewart’s injuries caused a need for substantial assistance with both personal care tasks and activities of daily living over his future 5 year life expectancy. Following the sustaining of injury, Mr Stewart resided at the Ozanam Villa Aged Care Facility at Clontarf (‘Ozanam’) which provided commercial care, whereas before the injury Mr Stewart had resided independently in a rented home with his brother. His son would often stay with him. He had kept a pet dog which was not permitted to reside with him nor visit Ozanam. Family visits were said to be more difficult at Ozanam.

Three options for caring for Mr Stewart were considered at trial, which, after applying appropriate discounts and contingencies, were costed as follows:

• Maintaining the level of care received at the time of trial at Ozanam for five years at a cost of $304,650.46
• Maintaining the level of care received at the time of trial at Ozanam for five years plus an external care assistant and the provision of more frequent therapy and exercise sessions at a cost of $1,081,895.56
• Provision of commercial care in a rented home at a cost of $4,910,342.52.

Mr Stewart argued that the compensation principle operated to entitle him to damages such as to allow him to satisfy his preference to live independently in a rented home. He called evidence that his quality of life (and health) would be substantially improved in his own home, because he would have access to his dog and greater access to family members.

MNHHS argued at trial that the evidence did not support a finding that living at home would result in improvements which would make it a reasonable basis for the assessment of a significantly higher award of damages. In that regard, MNHHS relied on Sharman v Evans (1977) 138 CLR 563. In Sharman, the majority of the High Court of Australia rejected a claim for damages for the cost of receiving care at home full-time because there was no evidence that it would result in any health benefits.

The Trial Judge preferred the submission of MNHHS. His Honour found that whilst there would be some enhancements to Mr Stewart’s life by living at home, those enhancements were not significantly better than what could be achieved at Ozanam if additional care, therapy and exercise sessions were provided. Therefore, the Trial Judge awarded the cost of care based on the second option, in the sum of $1,081,895.56.

Mr Stewart appealed the decision on future care to the Queensland Court of Appeal. His appeal was dismissed. The Queensland Court of Appeal unanimously found no error on the part of the Trial Judge and did not disturb the original judgment to award the cost of care based on the second option.

High Court

Mr Stewart appealed to the High Court of Australia. In a joint judgment by Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ, the High Court of Australia allowed the appeal and allowed future care in the sum of $4,910,342.52.

The High Court of Australia identified that determining Mr Stewart’s entitlement to damages for care was to be assessed by reference to the ‘compensatory principle’, being:

"the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if ... the tort had not been committed".

The High Court of Australia identified that the relevant considerations included:

• The fact that before the injury, Mr Stewart had lived at home
• Continuing to live at home provided the company of his dog and better access to his family, particularly his brother and son
• But for MNHHS’s negligence, Mr Stewart would have continued to reside at home
• The evidence established that there would be real and physical, not merely ‘slight or speculative’, improvements in Mr Stewart’s quality of life and mental health by living at home, rather than at Ozanam.

These factors led to the High Court of Australia’s finding that Mr Stewart’s choice to live at home was reasonable and he was entitled to recover the cost of receiving care at home.

The High Court found no error in Sharman v Evans. The assessment of damages turns on the facts of each case, however, in discussing this aspect, the Court observed that it was wrong to assess an entitlement to damages for care at home only in cases with ‘special needs’. Interestingly, the High Court noted [at paragraph 50] that whatever the position in Sharman v Evans, a choice to receive care at home in 2025 is not unusual particularly given the improvements in the level of care that can be provided in the home by comparison to a care facility.

Comments

Stewart clarifies how Courts will assess the award of damages for care particularly in catastrophic injury cases.  The decision of the High Court identifies a clear pathway for a plaintiff’s preference to be at least relevant if not determinative of the reasonable course of care, albeit the plaintiff is still required to present evidence that their choice of care is reasonable.  It is plainly no longer enough for a Court to commence its consideration by casting the plaintiff’s choice to one side because there is a cheaper type of care arrangement available.

Once the plaintiff establishes that their choice is arguably reasonable, the onus transfers to the defendant to satisfy the Court that all or part of the costs could be avoided/reduced by an alternative method of care that was unreasonably refused by the plaintiff. There may be cases where it is not suitable or practicable for a plaintiff to receive care in the home if there is a real risk that care in the home would put the plaintiff’s health at risk or not actually provide any mental or physical benefit for a plaintiff.  Similarly, it may not be practicable for carers to provide care in the home due to the remoteness of the location or the availability of carers.  There may be positive health or social benefits for the plaintiff by participating in an alternate care model put forward by a defendant.  Each matter will turn on its specific facts and consideration should be given to obtaining expert evidence addressing each plaintiff’s particular circumstances.

Takeaways

Stewart is likely to place strain on self-insureds and insurers receiving catastrophic claims. What impact that will practically have, particularly on premiums, remains to be seen. However, self-insureds and insurers with claims involving catastrophic injuries in Australia would be well advised to ensure they review their reserves in light of this decision.

Some key takeaways are:

• You should not be surprised to see increased costs for care claims particularly where there are catastrophic injuries
• You need to look at the evidence and whether the plaintiff’s choice is a reasonable one. Just because there is a cheaper method of care available to a plaintiff is not enough. On the other hand, there may be good reason why it is not practicable for carers to provide care in the home. Each case will turn on its own facts
• In theory, the decision could have an impact on other heads of damage including the cost of aids and equipment that may traditionally be seen as unreasonable. Again, whether those expenses can be recovered will depend on the facts of each case.