Stewart v Metro North Hospital and Health Service

Case [2025] HCA 34

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, JAGOT AND BEECH‑JONES JJ

MICHAEL STEWART BY HIS LITIGATION GUARDIAN

CAROL SCHWARZMAN  APPELLANT

AND

METRO NORTH HOSPITAL AND HEALTH

SERVICE  RESPONDENT

Stewart v Metro North Hospital and Health Service

[2025] HCA 34

Date of Hearing: 11 June 2025

Date of Judgment: 3 September 2025

B10/2025

ORDER

1.Appeal allowed with costs.

2.Set aside order 1 of the orders of the Court of Appeal of the Supreme Court of Queensland in appeal no CA 4488/24 made on 15 November 2024 and order 1 of the orders of the Court of Appeal in appeal no CA 4488/24 made on 6 December 2024 and in their place order that:

(a)the appeal be allowed with costs;

(b)the order of the Supreme Court of Queensland in matter 4665/22 made on 20 March 2024 be set aside; and

(c)orders 1 and 2 of the costs orders of the Supreme Court of Queensland in matter 4665/22 made on 22 May 2024 be set aside and in their place it be ordered that the defendant pay the plaintiff's costs.

3.The matter be remitted to the Supreme Court of Queensland for assessment of damages and consequential orders.

On appeal from the Supreme Court of Queensland

Representation

B W Walker SC with G R Mullins KC and J J Liddle for the appellant (instructed by Maurice Blackburn Lawyers)

C C Heyworth-Smith KC with K E Slack for the respondent (instructed by Corrs Chambers Westgarth)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Stewart v Metro North Hospital and Health Service

Damages – Assessment – Tort – Personal injury – Where appellant suffered personal injuries arising from his treatment as patient at hospital operated by respondent – Where prior to injury appellant lived in his own home with his brother where his son and dogs could stay – Where after injury appellant transferred to nursing home – Where appellant's physical condition deteriorated because of lack of therapy and exercise – Whether reasonable for damages awarded to appellant to include component for medical and nursing care and treatment in own home – Whether assessment of reasonableness confined to balancing only health benefits against cost.

Words and phrases – "assessment of damages", "assessment of reasonableness", "care at home", "compensation", "compensatory principle", "cost of home care", "cost of nursing and medical care", "costs of future care", "extreme brain injury", "general damages", "health benefits", "home care", "home or in a home setting", "injury scale", "institution or in an institutional setting", "institutional care", "matters of amenities", "mitigation of loss", "nursing and medical expenses", "onus", "other matters", "pain, suffering and loss of amenities of life", "proof of loss", "quantum", "reasonable", "reasonableness", "reasonably incurred", "repair the consequences of the tort", "unreasonably refused".

Civil Liability Act 2003 (Qld), ss 61, 62.

Civil Liability Regulation 2014 (Qld), Sch 3, Pt 2, Sch 4.

GAGELER CJ, GORDON, EDELMAN, JAGOT AND BEECH-JONES JJ.  

Introduction

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Stewart v Metro North Hospital and Health Service [2025] HCA 34
Case
[2025] HCA 34
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal brought by Mr Stewart against Metro North Hospital and Health Service (MNHHS). Mr Stewart suffered severe personal injuries due to negligent treatment at a hospital operated by MNHHS. The central dispute concerned the assessment of damages, specifically whether the compensation awarded to Mr Stewart should include a component for medical and nursing care in his own home, as opposed to institutional care. Mr Stewart's physical condition had deteriorated in a nursing home due to a lack of therapy and exercise, and he expressed a strong desire to live in his own home where his son and pets could be present.

The legal issues before the High Court were whether the assessment of the reasonableness of damages for future care should be confined solely to balancing health benefits against cost, and whether Mr Stewart's choice to receive care in his own home was a reasonable response to the consequences of the tort. The court was required to determine the proper approach to assessing the reasonableness of a plaintiff's chosen method of future care, particularly when that choice involves a preference for home-based care over institutional care.

The High Court reasoned that the compensatory principle requires putting a plaintiff in the position they would have been in had the tort not occurred. Mr Stewart was entitled to prove that his choice to live and receive care in his own home was a reasonable means of repairing the consequences of the tort. The court held that the assessment of reasonableness was not limited to a simple balancing of health benefits against increased costs. It also required consideration of the plaintiff's wishes and the broader impact on their quality of life, including the ability to have family and pets present. MNHHS failed to establish that Mr Stewart had unreasonably refused an alternative option that would have mitigated his loss.

The High Court allowed the appeal, set aside the orders of the Court of Appeal of the Supreme Court of Queensland, and remitted the matter to the Supreme Court of Queensland for assessment of damages and consequential orders.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside order 1 of the orders of the Court of Appeal of the Supreme Court of Queensland in appeal no CA 4488/24 made on 15 November 2024 and order 1 of the orders of the Court of Appeal in appeal no CA 4488/24 made on 6 December 2024 and in their place order that:

(a) the appeal be allowed with costs;

(b) the order of the Supreme Court of Queensland in matter 4665/22 made on 20 March 2024 be set aside; and

(c) orders 1 and 2 of the costs orders of the Supreme Court of Queensland in matter 4665/22 made on 22 May 2024 be set aside and in their place it be ordered that the defendant pay the plaintiff's costs.

3. The matter be remitted to the Supreme Court of Queensland for assessment of damages and consequential orders.

Background

Background to the litigation

The approach taken to reasonableness was erroneous. The proper starting point was that Mr Stewart was entitled to compensation in a sum which, so far as money can do, would put him in the same position as he would have been in had MNHHS not acted negligently. From that starting point, Mr Stewart was required to prove that his choice to live and receive the required care in a rented home of his own, rather than in an institution or an institutional setting, was a reasonable response to repair the consequences of the tort and to restore him to his position prior to the tort. The evaluation of the reasonableness of Mr Stewart's response was not discharged by balancing only the health benefits against the increased cost. In his circumstances, the choice of home care by Mr Stewart was a reasonable means of repairing the consequences of the tort. MNHHS did not establish that part or all of that claimed cost of home care could be avoided but for an unreasonable decision by Mr Stewart to refuse a proffered alternative option. The appeal should be allowed. Background facts In 2016, prior to the events that are the subject of this litigation, Mr Stewart was 63 years old and living in the Queensland coastal suburb of Margate. Mr Stewart lived in a property which he shared with, and paid rent to, his brother. Mr Stewart had separated from his wife (and now litigation guardian), Ms Schwarzman, in 2008 but they remained on good terms. Mr Stewart and Ms Schwarzman shared the custody of their only child, 14-year-old son Jesse. Mr Stewart loved animals and he shared the love of family dogs with Ms Schwarzman and Jesse. During March and April 2016, Mr Stewart sought treatment at Redcliffe Hospital in Queensland for nausea and generalised abdominal pain. He was treated negligently and MNHHS accepted liability for that negligence. As a consequence of the negligence, Mr Stewart suffered numerous injuries including bowel perforations, sepsis, cardiac arrest, and stroke. Mr Stewart was left with many injuries including brain damage, pain on the right side of his body with no active movement in the right upper limb, the need for a colostomy bag, and right lower limb contractures. As a 71-year-old man at the time of trial in 2023 he was found to have an estimated life expectancy of five years. In November 2016, Mr Stewart was discharged from hospital to a nursing home. In March 2017, Mr Stewart was transferred to Ozanam Villa Aged Care Facility ("Ozanam"), where he remained at the time of trial. At the time of trial, Ms Schwarzman and Jesse had a dog called Sasha who would sit on Mr Stewart's lap or on Mr Stewart's bed. But Mr Stewart was not permitted to keep a dog at Ozanam. Mr Stewart also alleged that Jesse was not permitted to stay, and it is clear that, at the least, it was very difficult for Jesse to stay. Although Jesse gave evidence that he "just would love to stay ... with my dad overnight" at Ozanam, over the course of six years before trial Jesse was only able to stay overnight in an unoccupied room at Ozanam for one night at Christmas in 2017 or 2018. Even a visit to Ozanam by Jesse generally required advance notice of one day.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GORDON, EDELMAN, JAGOT AND BEECH-JONES JJ
Mr Stewart's physical condition deteriorated at Ozanam as a consequence of lack of therapy and exercise. At trial, Mr Stewart claimed that he intended to move from Ozanam to his own residence (a rental apartment or rental home) and that his medical, health, social, and nursing needs were not being well met at Ozanam. There is no remaining dispute that Mr Stewart intended to use a sufficient award of compensation for that purpose. The central issue in dispute at trial and on appeal was expressed as whether it was "reasonable" for the damages awarded to Mr Stewart to include a component for medical and nursing care and treatment of Mr Stewart in his own (rented) home. The decisions of the trial judge and the Court of AppealThe evidence and findings about Mr Stewart's wishes Despite Mr Stewart's constrained ability to express himself due to the impact of his receptive and expressive aphasia, there was a substantial volume of evidence at trial that Mr Stewart wished to live in his own home rather than at Ozanam. As the trial judge (Cooper J) noted, that evidence included: (i) Mr Stewart's "tendency to immerse himself in photographs from his past life and possessions"; (ii) Mr Stewart's communication by sounds and gestures to Ms Schwarzman that he would like to stay in a home where Jesse and a dog could stay with him and that he did not want to stay at Ozanam; (iii) Mr Stewart's communication to Dr Rotinen Diaz (a rehabilitation physician) by "a very clear verbal and non verbal answer" that he did not want to live in a nursing home and wanted to live in a private dwelling, and "a very strong and clear 'no'" indicating that he was not happy at Ozanam; and (iv) Mr Stewart's facial expressions communicating answers to Ms Coles (an occupational therapist) that he wished to live in his own home.[2] [2]Stewart v Metro North Hospital and Health Service [2024] QSC 41 at [64]-[65], [73]-[76]. Although the trial judge had concern about whether Mr Stewart had a "full understanding" of all the potential difficulties that a move to his own home might involve, the trial judge accepted the evidence from Ms Coles that Mr Stewart had "clearly communicated his desire to live in his own home rather than at Ozanam", a decision supported by Ms Coles on the basis that it would improve Mr Stewart's quality of life.[3][3]Stewart v Metro North Hospital and Health Service [2024] QSC 41 at [87], [127].The evidence and findings about Mr Stewart's health benefits from living at home The trial judge heard evidence from numerous experts about the health benefits to Mr Stewart that would come from living in his own home. Dr Rotinen Diaz described Mr Stewart's environment as a crucial factor in Mr Stewart's motivation for therapy and considered that with comprehensive care and therapy Mr Stewart would see functional improvements in his health and physical condition. Ms McCorkell (a neurological physiotherapist) expressed the opinion that Mr Stewart's "health outcome would be better if he resided in his own home" and in an environment which could include engagement "through the presence of a family member or a pet during therapy". Dr Gray (a psychiatrist) concluded that Mr Stewart's mental health would benefit in the medium to long term from living in his own home. And Ms Coles and Ms Coventry (also an occupational therapist) gave evidence that they did not consider it to be in Mr Stewart's best interests to stay at Ozanam because they considered that there was a lack of specialised equipment and a lack of ongoing and regular therapy services.[4] [4]Stewart v Metro North Hospital and Health Service [2024] QSC 41 at [116]-[117], [120], [123], [126], [128]; Stewart v Metro North Hospital and Health Service [2024] QCA 225 at [50].

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON, EDELMAN, JAGOT AND BEECH-JONES JJ

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