In the recent matter of Stewart v Metro North Hospital and Health Service [2024] QCA 225, the plaintiff, Michael Stewart by his litigation guardian Carol Schwarzman commenced proceedings against the defendant, Metro North Hospital and Health Service.
On 20 March 2024, the primary judge gave judgment in favour of the plaintiff in assessed damages in the sum of $2,190,505.48, before management fees. The damages related to a claim for personal injuries, arising from his treatment as a patient at a hospital operated by the defendant. At trial, the defendant admitted duty, breach and causation. At issue was the assessment of damages for what were significant injuries, including brain damage. Within the assessment there were two critical issues. First, life expectancy. Second, whether the assessment should be on the basis that the plaintiff would live independently, rather than in a care facility. The plaintiff appeals the primary judge’s decision, contending that the primary judge erred in assessing the damages on the basis that he would continue to reside at a care facility, in which he would receive enhanced therapy and care arrangements, rather than on the basis of that enhanced therapy and care arrangements being provided in appropriate independent accommodation.
The plaintiff relies on five grounds. Grounds 1–3 contend error in finding that the plaintiff bore the onus of calling evidence to establish that the care facility would not permit him to have access to external therapists and care assistants. Ground 4 contends error in that several findings were not supported by the evidence; that the plaintiff’s increased level of engagement under enhanced therapy and care arrangements at the care facility would be likely to improve his mood and increase his motivation to engage (ground 4(a)); that living in his own home with his son Jesse and a dog would not result in health benefits significantly better than his current situation with additional therapy or assistance (ground 4(b)); that any care, therapy or service that could be provided in his own residence could be provided at the care facility (ground 4(c)); that concern about activities and intervention of the care facility staff could be addressed by effective communication between the respective therapists and care facility staff (ground 4(d)); and that the provision of additional therapy and assistance at the care facility was medically appropriate (ground 4(e)). Ground 5 contends error in that the primary judge, having determined that the provision of comprehensive care and therapy in his own residence would result in health benefits to the appellant, should have awarded damages on that basis; and in determining whether it was reasonable that the defendant pay the additional costs of therapy and care in his own residence, consideration should have been given to his express wish to live in the community; the fact that he had lived in the community prior to sustaining his injuries; that the care arrangements were of a kind commonly undertaken in the community; that he was unhappy in his current aged care facility; that there were significant health, psychological and emotional benefits in moving to his own residence and that there would be an enhancement to his life, living independently as he would be sharing the residence with his son and dog.
The defendant cross-appeals against the assessed damages on the basis the primary judge erred in finding: that the plaintiff would engage in the proposed care program; that the plaintiff would engage in occupational therapy with aids and equipment; assessing the external care arrangements and costs; and the existence of health benefits which are more than slight or speculative.
The plaintiff and the defendant have also both filed notices of contention. The defendant contends that the decision of the primary judge should be affirmed on the ground that the financial cost of the plaintiff living in his own residence is unreasonable, when weighed against the relative health benefits and, further or alternatively, not commensurate to the relative health benefits. Alternatively, it is improbable the plaintiff would in fact move into his own residence and it is unreasonable to assess damages on that basis. The plaintiff contends, in the cross-appeal, that the primary judge’s decision should be affirmed on the ground that the evidence at trial supported a conclusion that he would derive health benefits from living in his own home, that would be at least more than slight or speculative, by reason of the benefits to his mental health in the medium to long-term from such a move.
In making its conclusion, the Court commented as follows:
Mr Stewart has not established any error in the primary judge’s findings and orders. I would dismiss his appeal [at 107].
Apart from the agreed miscalculation as to the assessment of damages, Metro has not established any error in the primary judge’s findings and orders. Subject to amending that figure in the primary judge’s order, I would dismiss the cross-appeal [at 108].
These conclusions render it unnecessary to consider either notice of contention [at 109].
Ultimately, on 15 November 2024, the Queensland Court of Appeal ordered as follows:
- The appeal is dismissed.
- Subject to the primary judge’s orders being amended to insert $2,171,244.03 in place of $2,190,505.48, the cross-appeal is dismissed.
- The parties are to provide written submissions as to costs, limited to no more than three pages, by 22 November 2024.
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