Stewart v Metro North Hospital and Health Service
[2024] QCA 225
•15 November 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Stewart v Metro North Hospital and Health Service [2024] QCA 225
PARTIES:
MICHAEL STEWART by his litigation guardian CAROL SCHWARZMAN
(appellant)
v
METRO NORTH HOSPITAL AND HEALTH SERVICE
(ABN 184 996 277 942)
(respondent)FILE NO/S:
Appeal No 4488 of 2024
SC No 4665 of 2024DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2024] QSC 41 (Cooper J)DELIVERED ON:
15 November 2024
DELIVERED AT:
Brisbane
HEARING DATE:
23 August 2024
JUDGES:
Mullins P and Boddice JA and Ryan J
ORDERS:
1. The appeal is dismissed.
2. 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.
3. The parties are to provide written submissions as to costs, limited to no more than three pages, by 22 November 2024.
CATCHWORDS:
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – FUTURE CARE – COST OF CARE, LOCATION ETC – where the appellant suffered personal injuries, arising from his treatment as a patient at a hospital operated by the respondent – where, at trial, the respondent admitted duty, breach and causation – where at issue was the assessment of damages for the injuries – where the primary judge awarded damages in the sum of $2,190,505.48, before management fees to the appellant – where the basis of the primary judge’s award of damages was to provide enhanced care and therapy while the appellant resided at a care facility – where the appellant seeks significantly higher damages, on the basis the appellant has communicated a desire to live independently, rather than in a care facility – whether the primary judge erred in assessing the damages
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – EVIDENCE – BURDEN OF PROOF – where, in the awarding of damages, the primary judge decided the appellant could receive extra therapy and care from external therapists and care assistants while residing in a care facility – where the appellant contends the care facility will not permit access to external therapists and care assistants – where the primary judge found the appellant bore the onus of calling evidence to establish that the care facility would not permit access to external therapists and care assistants – whether the primary judge erred in finding the appellant bore the evidentiary onus
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – FUTURE CARE – COST OF CARE, LOCATION ETC –where the primary judge determined that the provision of care and therapy in the appellant’s own residence would result in health benefits – where the primary judge found the improved health benefits of the appellant residing in his own home compared to receiving enhanced therapy at the care facility were negligible when regard was had to the significant increase in costs – where the primary judge determined it was unreasonable for the respondent to pay the additional costs attached to the appellant residing in his own home – whether the primary judge erred
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – FUTURE CARE – COST OF CARE, LOCATION ETC – where the primary judge awarded damages in the sum of $2,190,505.48, before management fees to the appellant – where the primary judge miscalculated the cost of care by allowing 377 days per year – where it was accepted by the appellant that there was a miscalculation – where, in addition, the primary judge calculated an allowance for two hours per week for coordination and monthly staff meetings – where a conclave report of specialists determined a different cost of coordinating a care model to that decided by the primary judge – where the primary judge’s total calculation of damages was based on the assumption the appellant would participate in the enhanced care and therapies – where the appellant has a history of refusing to participate in therapies – where the primary judge found enhanced care and therapy would have health benefits which are more than slight or speculative – whether the primary judge erred in the calculations of the cost of care – whether the primary judge’s inferences were against the evidence
Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15, cited
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, cited
Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8, cited
Wang v Hur[2024] QCA 126, cited
Wieben v Wain (1991) 13 MVR 393; [1991] QSCFC 12, citedCOUNSEL:
B W Walker SC and G R Mullins KC, with J J Liddle, for the appellant
C C Heyworth-Smith KC, with K E Slack and M A Eade, for the respondentSOLICITORS:
Maurice Blackburn for the appellant
Corrs Chambers Westgarth for the respondent
MULLINS P: I agree with Boddice JA.
BODDICE JA: On 20 March 2024, the primary judge gave judgment in favour of the appellant (Mr Stewart) 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 respondent (Metro).
At trial, Metro 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 Mr Stewart would live independently, rather than in a care facility.
Mr Stewart 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.
Mr Stewart relies on five grounds. Grounds 1–3 contend error in finding that Mr Stewart 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 Mr Stewart’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 Metro 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.
Metro cross-appeals against the assessed damages on the basis the primary judge erred in finding: that Mr Stewart would engage in the proposed care program; that Mr Stewart 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.
Mr Stewart and Metro also filed notices of contention.
Metro contends that the decision of the primary judge should be affirmed on the ground that the financial cost of Mr Stewart 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 Mr Stewart would in fact move into his own residence and it is unreasonable to assess damages on that basis.
Mr Stewart 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.
Claim
At the time of his admission to hospital, Mr Stewart was 63 years of age. He was aged 71 years as at the date of judgment. Mr Stewart had significant pre-existing medical conditions, including type 2 diabetes, elevated cholesterol, a history of transient ischaemic attack and diffuse vascular disease. He also had a prior history of abdominal surgery with extensive adhesions in the abdominal region.
In the days following his admission to hospital, Mr Stewart underwent several surgeries. He suffered multiple episodes of cardiogenic pulmonary oedema and bradycardia. He also suffered asystole cardiac arrest.
Mr Stewart claimed that as a consequence of his treatment, whilst an inpatient between 22 March 2016 and 19 April 2016, he sustained brain damage, hemiparesis, confusion and dysphasia. He was left with speech and motor difficulties, as well as other significant physical disabilities. His brain damage led to an impairment of his ability to comprehend and produce language, with a consequent impact on cognition.
Metro admitted that as a consequence of his treatment at the hospital, Mr Stewart suffered brain damage; hemiparesis, confusion and dysphasia; right shoulder subluxation; right loss of visual field; the need for a colostomy bag; pain to the right side of his body; no active movement in the right upper limbs; right lower limb contractures; and speech and motor difficulties.
Evidence
Pre-admission
Mr Stewart worked overseas for many years. Whilst there, he formed a relationship with Ms Schwarzman. They had one child, Jesse, in 2001. In late 2005, Mr Stewart, Ms Schwarzman and Jesse relocated to Australia.
In about 2006, Mr Stewart developed eyesight problems which, together with changes in his occupational requirements, led to difficulties in continuing in his employment. He became depressed and ceased work. Ultimately, he qualified for a disability support pension.
In 2008, Mr Stewart separated from Ms Schwarzman. Mr Stewart went to live with his brother, in the family home. However, he continued to share parenting responsibilities with Ms Schwarzman and they remained on good terms. Jesse would stay with Mr Stewart on weekends.
Hospital admission
Mr Stewart presented to hospital complaining of nausea and generalised abdominal pain. A CT scan was consistent with an early partial small bowel obstruction, together with multiple hernias. Two days later, he complained of blurred vision. Despite that complaint, he was not neurologically reviewed and he suffered the progression of stroke. On the following day, Mr Stewart underwent a laparotomy.
After the initial surgery, Mr Stewart complained of experiencing right arm weakness. A CT scan of his brain was reported to have demonstrated no acute intracranial pathology. Two further days later, Mr Stewart was reviewed by the Stroke Team Registrar. Mr Stewart was recorded as likely experiencing a major stroke. Subsequently, Mr Stewart underwent further surgeries. However, his condition deteriorated and he was left with profound injuries.
Mr Stewart spent many months receiving rehabilitation. In March 2017, he was transferred to the care facility. He lived there from that date.
Life Expectancy
A rehabilitation physician, Dr Rotinen Diaz, opined that Mr Stewart’s life expectancy was 5.9 years. If he was to move into his own home and received comprehensive care and therapy, it was likely that his life expectancy would be higher than the 5.9 years estimate, although it is difficult to calculate how much higher.
A general physician, Dr Karrasch, opined that Mr Stewart’s pre-existing conditions reduced his life expectancy significantly. The devastating effect of the stroke reduced his life expectancy even further. In evidence, Dr Karrasch accepted that Mr Stewart had already exceeded Dr Karrasch’s life expectancy assessment, as at the date of trial. However, he maintained that Mr Stewart had a life expectancy of no more than one to two years, from that date. Mr Stewart had deteriorated mentally, physically and cognitively. It was extremely unlikely that Mr Stewart’s condition would improve, even if he was afforded the additional therapy and care recommended by Dr Rotinen Diaz. If he did improve as a consequence of that therapy, it would only increase his life expectancy by one year.
A statistical expert, Professor Strauss, opined that Mr Stewart’s life expectancy was in the order of 5.7 years. The fact that he had experienced a myocardial infarction reduced that life expectancy to 5.3 years. The impact of the other pre-existing conditions was probably not significant.
Living Preference
Ms Schwarzman gave evidence that she communicated with Mr Stewart by asking yes-no questions with, on occasions, gestures to a photograph or object. This process had resulted in Mr Stewart giving a positive response to whether he would like to stay in a home where Jesse and a dog could stay with him and a negative response to whether he wished to stay at the care facility. Mr Stewart had also indicated that he did not enjoy participating in activities at the care facility. Ms Schwarzman accepted that Mr Stewart was, at times, uncooperative. He would often refuse to participate in activities. Part of his reluctance was due to his inability to converse with others.
Jesse gave evidence that he had a close relationship with Mr Stewart. They spent a lot of time together when Jesse was growing up. Mr Stewart had a deep love of animals. Jesse said he would take Mr Stewart to a park where they would watch Jesse’s dog play. On occasions, he had taken Mr Stewart out for a meal and to the cinema. He would also take Mr Stewart for walks in his wheelchair. Mr Stewart used sounds and gestures to indicate “yes” or “no”.
Jesse said he wished to live with Mr Stewart again. His intention was to live with him for the first few months, whilst Mr Stewart was being set up in his own residence. Thereafter, he would split his own residential arrangements between Ms Schwarzman’s house and Mr Stewart’s house.
Dr Rotinen Diaz accepted that Mr Stewart suffered from severe receptive and expressive aphasia. He could only produce simple guttural sounds. He had some understanding of familiar and simple phrases. Dr Rotinen Diaz said Mr Stewart had given a very clear verbal and non-verbal answer to him when asked where he would like to live. He wanted to live in a private dwelling.
Dr Rotinen Diaz said Mr Stewart gave a very strong and clear “no” to whether he was happy living at the care facility. His body language changed and he appeared angry and agitated. Dr Rotinen Diaz obtained the same answer on all three occasions he asked that question. Dr Rotinen Diaz did not present any alternative living arrangements to Mr Stewart. He agreed that the factors relevant to assessing alternative arrangements were beyond Mr Stewart, to an extent.
Ms Bathersby, Mr Stewart’s treating physiotherapist, gave evidence that she had been treating Mr Stewart since 2019. During those treatments, she would ask yes-no questions. Mr Stewart would indicate “yes”, by nodding his head and making a positive sound or “no”, by shaking his head and making a negative sound. Mr Stewart would also indicate his pain level by using a visual pain scale.
Ms Orr, a care assistant at the facility, gave evidence that she had been providing care to Mr Stewart on a weekly basis for over four years. They had a friendly relationship. She was able to communicate through simple non-verbal methods of communication. Mr Stewart seemed to understand.
Ms Cameron, a speech pathologist, gave evidence that Mr Stewart was able to indicate his wishes for very basic needs. There was a reliability in his answers to personal yes-no questions, but an unreliability in following commands. The accuracy of his responses to questions decreased with complexity and abstraction. As a consequence, Mr Stewart had difficulty following certain conversations. The implementation of communication aids and skilled communication partners would likely see improvements in his interactions and his quality of life.
Ms McCorkell, a neurological physiotherapist, gave evidence that Mr Stewart could respond with yes-no answers to questions. However, his responses were inconsistent.
Ms Coventry, an occupational therapist, gave evidence that Mr Stewart appeared to understand basic questions and could respond by nodding his head or gesturing and pointing, but he was unable to read and could not complete a formal cognitive screening assessment.
Professor Chambers, a neurologist, gave evidence that Mr Stewart had profound cognitive impairments. It is likely he had post-stroke cognitive impairment. However, the normal array of testing was not applicable due to Mr Stewart’s aphasia.
Ms Anderson, a neuropsychologist, gave evidence that Mr Stewart had profound, persisting, expressive and receptive aphasia. He was unable to respond to simple questions, or even single words, consistently and reliably. He would frequently prevaricate on answers. Whilst it was possible that his practised social responses could indicate familiar items, he could not demonstrate more complex cognitive skills. It was impossible to assess his insight. Ms Anderson had concerns about accepting assent from him. He had clear difficulties in comprehending information. Further, his repetitive behaviour in responses, might reflect response to gestures rather than his own opinion.
Ms Coles, an occupational therapist, gave evidence that Mr Stewart clearly communicated a desire to live in his own home, rather than the care facility.
Care facility/residence options
Dr Rotinen Diaz opined that whilst the care facility provided a safe environment, it might not be the best environment to maintain and improve Mr Stewart’s mental wellbeing or quality of life. In the period Mr Stewart had resided at the care facility, his body had deconditioned due to a lack of therapy and rehabilitation. If he was given the opportunity to be reconditioned, there would be an improvement in his mobility and movement. As a consequence, he would have a significantly better quality of life, together with less medical complications and less pain.
Dr Rotinen Diaz recommended Mr Stewart receive additional care and treatment. Apart from hydrotherapy, any additional care, together with the care Mr Stewart was currently receiving, could be provided both at the care facility or in a private residence. However, there would be health benefits from Mr Stewart living in his own home. Mr Stewart’s living environment was a crucial factor in his motivation, which would itself be central to participation in the recommended additional care and treatment.
Dr Rotinen Diaz accepted it was unlikely that Mr Stewart would exhibit any further neurological recovery. There would, however, be functional improvements, through re-learning and re-training. Further, although Mr Stewart would never be able to talk or walk again, regular and repeated speech therapy could possibly result in an improvement in his basic level of communication. With intensive physiotherapy, it might also be possible for him to weight bear, although he may not be able to tolerate the associated pain.
Ms Bathersby opined that Mr Stewart’s physical condition had shown some small improvement, to left side strength. There had not been any notable improvement in terms of overall function. On occasions, Mr Stewart would become drowsy. That had been happening more in recent times. Ms Bathersby was unable to say whether the length of the treatment sessions reflected a limit of his stamina or tolerance. If longer sessions were provided, it would be possible to provide treatment such as stretching, range of motion exercises and positioning. Ms Bathersby accepted that, on occasions, Mr Stewart had been reluctant to participate in sessions. On those occasions, Ms Bathersby determined it was not appropriate to proceed with the planned treatment.
Ms Orr said that during the period she had been caring for Mr Stewart, he had refused to be transferred out of bed, unless he was going to go outside with family. For a short time, he was persuaded, when it involved attending music concerts arranged by the care facility. Mr Stewart ceased to do that after a staff member had not taken him for a promised walk outside, following the concert. Mr Stewart ate all his meals in his room. He said no to going to the dining room. He did not participate in other activities. Other carers did not cope well with Mr Stewart’s behaviours.
Ms McCorkell accepted that Mr Stewart would not be able to walk again. However, in her opinion, additional therapy would derive benefits. It would assist in being able to stand and weight bear and encourage being able to spend time out of bed. Any resistance could be dealt with by supporting a graduated sitting program. Ms McCorkell recommended the provision of additional therapy. A lack of access to appropriate equipment and time for therapy sessions had limited Mr Stewart’s opportunity to engage in more function rehabilitation.
In Ms McCorkell’s opinion, therapeutic intervention was best implemented across the course of each 24 hour period and at times most suitable for Mr Stewart. The most effective introduction of her care program would be delivery by a carer able to implement that program autonomously and independently of another system, such as a care facility. A private residence would provide a more conducive setting. A physiotherapist would take advantage of the environment to enhance the level of engagement, including through the presence of a family member or a pet.
Ms McCorkell opined that there would be specific health benefits for Mr Stewart from receiving that treatment in his own home. Those specific benefits included an enhanced ability and willingness to sit and physically interact with others, a program integrated across the waking hours of each day, ensuring maximum flexibility of Mr Stewart’s joints and the optimisation of his cardiovascular and respiratory health, together with better global health and wellbeing due to a willingness to participate in activities of interest. Further, Mr Stewart was dissatisfied with the care facility and had expressed his frustrations.
Ms Coventry described Mr Stewart’s care needs as high dependency. Whilst two 12 hours shifts would be a long day, that care arrangement happens in the community. She accepted that that care arrangement, when part of a co-tenancy, was a different concept to having a single person with two 12 hour shifts. Ms Coventry also accepted that the most common care regime adopted following the introduction of the National Disability Insurance Scheme, was three eight hour shifts.
Ms Coventry believed that a lack of specialised equipment was an issue for Mr Stewart. It was not in Mr Stewart’s best interests to stay at the care facility. In her opinion, Mr Stewart could live in a purpose built home of his own, with full-time care. Ms Coventry could not speak about what service would be available in other care facilities.
Dr Gray, a psychiatrist, opined that Mr Stewart’s reduced participation in activities and social interaction had had a negative impact on his mental state. Mr Stewart’s overall wellbeing would be aided by greater engagement with therapy activities and outings, ideally on a daily basis. A dedicated carer, at least for a few hours per day, a few days per week, would materially improve Mr Stewart’s quality of life.
Dr Gray accepted that a change in residence from the care facility to a private home, could carry a risk of a worsening of Mr Stewart’s pre-existing psychiatric condition. However, there was a reasonable chance that Mr Stewart’s pre-existing condition could relapse wherever he was residing and Mr Stewart’s mental health would benefit in the medium to long-term from a move to his own residence, as it would mean he had more support and engagement in activities and outings.
Ms Coles opined that Mr Stewart’s quality of life would be substantially improved by residing in his own home. It was not in his best interests to continue to reside at the care facility. There was a lack of specialised equipment and ongoing regular therapy services. Ms Coles accepted that if Mr Stewart wished to undertake outside activities, he could do so from the care facility. There was no form of therapy, other than hydrotherapy, that would be provided at home, that could not be provided at the care facility. However, being at home would provide a choice of carer.
John Hart, a director of a disability support service, opined that 24 hour day care requirements are regularly met by three eight hour shifts, for organisations bound by Award systems. His organisation mainly used two 12 hour shifts. That arrangement provided significant benefits for residents in their own home. It minimised the number of people through their home and in the street. He agreed that system was often used by his organisation where two clients shared a house. His proposed model for Mr Stewart was not a co-tenancy model. Mr Hart accepted that fewer carers could increase the risk of abuse by a carer. Mr Hart did not accept that the two 12 hour shift model raised difficulties with carer retention.
Primary decision
The primary judge accepted that Mr Stewart, prior to sustaining his injuries, remained on good terms with his former partner in respect of sharing the custody of Jesse and that whilst he lived with his brother in the family home, Jesse regularly came to stay and they shared the care of a dog. The primary judge found that as a consequence of Mr Stewart’s significant injuries, he had been unable to return to his former home and in March 2017, had commenced occupation in the care facility, where he had been and remained, unhappy.
The primary judge accepted that Mr Stewart’s capacity to communicate was poor and there appeared to be more generalised cognitive deficits than severe expressive and receptive aphasia. As a result, there were doubts as to the reliability of any assessment of Mr Stewart’s insight, or his level of cognitive functioning, beyond difficulties in understanding and expressing language. The primary judge proceeded on the basis that Mr Stewart would prefer to live independently, rather than at the care facility, even if he did not appreciate all of the potential difficulties with such a move.
The primary judge accepted that increased care and therapy would likely address any deconditioning which Mr Stewart had experienced in the care facility. Such care and therapy was likely to result in physical and mental health benefits. The primary judge found that the provision of comprehensive care and therapy in Mr Stewart’s own home would result in health benefits to him which could not properly be characterised as slight or speculative. Further, the benefit was not entirely one of amenity. However, Mr Stewart was likely to receive the same health benefits, or at least a very similar level of health benefits, if engaged in a similar amount of additional therapy and exercise at the care facility.
The primary judge concluded:
“[185] I can see no reason to conclude that securing the services of external care assistants capable of forming the necessary positive rapport with Mr Stewart would be an insurmountable obstacle. The consistent provision of additional care from external care assistants who develop a positive rapport with Mr Stewart would be likely to engage him to a much greater degree than has been the case under the present arrangements at Ozanam. Even though Mr Stewart’s interactions with these external care assistants would necessarily be different than his interactions with Ms Schwarzman and Jesse, I consider that his increased level of engagement under enhanced care arrangements at Ozanam would be likely to improve his mood and increase his motivation to engage in more frequent exercise and to participate in activities in the community and, consequently, provide health benefits similar to those which he would receive if he was to be cared for in his own home.
[186]For these reasons it seems to me that, although living in his own home with Jesse and a dog would enhance Mr Stewart’s quality of life in an overall sense when compared with his continued residence at Ozanam, I am not satisfied that it would be likely to result in health benefits for Mr Stewart that are significantly better than those likely to be achieved at Ozanam with additional therapy and a dedicated external care assistant. In those circumstances, I do not consider it reasonable to require that the MNHHS pay the significant additional cost that would be involved in Mr Stewart moving from Ozanam into his own home.”
Consideration
Mr Stewart’s appeal
Grounds 1–3
These grounds concern the primary judge’s conclusion that additional care and therapy, as proposed by Metro, could be undertaken at the care facility and was a suitable alternative to the care and therapy to be provided in his own residence.
Mr Stewart submits that the primary judge ought to have found that such a proposed model was not a suitable alternative, in the absence of evidence that any proposed care or therapy model was likely to be approved by the care facility’s management. Further, the primary judge erred in finding that if it was to be argued that access would not be permitted to allow that care or therapy model to be undertaken in the care facility, Mr Stewart bore the evidential onus to establish that position.
Mr Stewart’s submissions are premised on a misinterpretation of the primary judge’s conclusions on these issues.
First, the primary judge accepted that Mr Stewart’s medical and nursing care needs were being appropriately addressed at the care facility, but specifically did not accept that the physical health benefits to Mr Stewart from receiving care and therapy in his own home, would be no greater than the care he receives from the current arrangements at the care facility (my emphasis). It was in that context that the primary judge considered whether the additional assistance, recommended by the expert evidence and accepted by the primary judge, could be provided at the care facility.
Second, in considering this issue, the primary judge found that the recommended additional care and any care Mr Stewart might need in the future (with the exception of hydrotherapy) could be provided both at the care facility and in his own home. Dr Rotinan Diaz’s evidence was to that effect. Although Dr Rotinen Diaz considered Mr Stewart’s environment to be a crucial factor in his motivation, the primary judge’s conclusion that nothing in that evidence changed the evidence as to the appropriateness of additional care and therapy being provided to Mr Stewart at the care facility, was consistent with Dr Rotinen Diaz’s evidence as a whole.
Third, the primary judge’s finding that having regard to the evidence of the provision of physiotherapy to Mr Stewart at the care facility on a regular basis since February 2019, additional therapy could be provided to Mr Stewart at the facility was consistent with the evidence. Mr Stewart had been receiving regular physiotherapy from an external provider, at the care facility. Access to that facility had not been problematic.
Fourth, evidence given by Mr Hart that, in his experience, only on one occasion, some 15 years earlier, had a facility refused to allow a care assistant to be involved with a client because of insurance and workplace health and safety concerns, supported a conclusion that care models involving the provision of assistance by external care assistants to residents of care facilities, are employed within the care services industry.
Fifth, that evidence, together with evidence of the care facility’s previous willingness to allow access to external providers, formed a proper basis for an inference that the care facility would permit an external care assistant, similar access, on a more regular basis in the future. Those inferences properly arose on the evidence, and were not displaced by evidence in the contrary.
Sixth, it was in the context of those findings that the primary judge spoke of an evidential onus on Mr Stewart. In context, that observation was not erroneous.
Ground 4
The task to be undertaken by an appellate court when dealing with a ground of appeal that a finding was contrary to the evidence, was summarised in Wang v Hur [2024] QCA 126 at [24]:[1]
“(a)On an appeal by way of rehearing, it is for the appellant to satisfy the appellate court that the order that is the subject of appeal is the result of some legal, factual or discretionary error.
(b)On such an appeal, the appellate court is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether it should be so satisfied.
(c)If the appellate court concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.
(d)When determining whether a judge has erred in fact, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.
(e)However, in determining whether the judge has erred in fact, an appellate court is required to exercise restraint when invited to interfere with a primary judge’s findings of fact, at least where those findings are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. Such appellate restraint applies not merely to findings of primary facts but also applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.
(f)In such cases, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. The finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused [his or her] advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’, or which was ‘glaringly improbable’, or which was ‘contrary to compelling inferences’.” (citations omitted).
[1]By reference to Sutton v Hunter [2022] QCA 208 at [46] to [51], citing Warren v Coombes (1979) 142 CLR 531 at 551.
The first finding that Mr Stewart submits was not supported by the evidence was that Mr Stewart’s increased level of engagement, under enhanced therapy and care arrangements at the care facility, would be likely to improve his mood or result in health benefits significantly better than his current situation.
The primary judge’s finding was premised on two conclusions. First, that the primary judge was not satisfied on the balance of probabilities that Mr Stewart would only engage in additional therapy and exercise and agree to participate more frequently in activities in the community if he were to move into his own home. Second, that the consistent provision of additional care, from external care assistants who had developed a positive rapport with Mr Stewart, would be likely to engage him to a much greater degree than was presently the case.
Both those premises were consistent with the accepted evidence, as a whole. Mr Stewart would engage in therapy and join in activities with external care assistance, when he had a good rapport with the provider. Such a scenario would be likely to improve his mood or engagement.
Once that conclusion is reached, it was neither glaringly improbable, nor inconsistent with the evidence, for the primary judge to draw the inference that an increased level of engagement under enhanced therapy and care arrangements at the care facility, would result in health benefits significantly better than his current situation. The evidence of Dr Rotinen Diaz and Ms McCorkell was that the delivery of enhanced therapy and care would result in health benefits significantly better than his current situation. Dr Rotinen Diaz accepted that the enhanced therapy and care could be provided to Mr Stewart, either at his own residence or at the care facility.
The second challenged finding, is that living in his own home with Jesse and a dog would not result in health benefits significantly better than Mr Stewart’s current situation, with additional therapy or assistance.
In considering this challenge, it is important to note that the evidence was that after the new arrangements were settled, Jesse and his dog would stay alternate weeks rather than live permanently with Mr Stewart. Once regard is had to that evidence, the primary judge’s conclusion in respect of this issue was consistent with the evidence, as a whole.
The health benefits for Mr Stewart were derived from the provision of, and engagement with, the additional care and assistance. Dr Rotinen Diaz accepted that the additional care and assistance could be provided at either location. It was Mr Stewart’s motivation and mood which provided the differential. That differential was practically removed by an increased level of engagement, under the enhanced care and assistance arrangements, at the care facility.
The third challenged finding is that any care, therapy or service that could be provided to Mr Stewart in his own residence, could be provided at the care facility. It is submitted that Mr Hart’s evidence, which formed the basis for that finding, related to public hospitals, not residential care facilities. A consideration of Mr Hart’s evidence, as a whole, does not support that contention.
Mr Hart, in evidence, spoke of current arrangements, whereby his organisation provided support to people within hospital arrangements, in answer to an assertion that there would be difficulties in an external care attendant providing care and assistance to Mr Stewart within the care facility, having regard to organisational requirements such as workplace health and safety. Mr Hart’s response was giving an example of how those difficulties were dealt with by his organisation.
Nothing in Mr Hart’s evidence limited that example to only hospital institutions. In fact, Mr Hart spoke of having only experienced difficulties on one occasion, about 15 years previously, where insurance and workplace health and safety concerns had been raised in respect of the physical transfer of a client.
The fourth challenged finding is that concern about activities and intervention by the care facility staff, in respect of the provision of the additional care and assistance, could be addressed by effective communication.
The trial judge’s conclusion in respect of this issue, arose in the context of Ms McCorkell’s evidence that therapeutic intervention was best implemented across each 24 hour period, at times most suitable for Mr Stewart. The primary judge found that the requirement for care assistants to be trained and available to assist in such a program over the course of the week, could be met by the provision of care assistants engaged on Mr Stewart’s behalf, to attend the care facility. That conclusion was consistent with the evidence as a whole. Properly trained care assistants were required to provide the additional care and therapy, whether at Mr Stewart’s home, or at the care facility.
The primary judge’s express finding that any concern as to implementation of the additional care and therapy in the care facility could be addressed by effective communication through case conferencing and liaison between therapists, care assistants and the care facility staff, addressed Ms McCorkell’s evidence that a private residence provided a more conducive setting, having regard to the strictures of the implementation of programs in a care facility.
The inference drawn by the primary judge on this issue was consistent with the evidence as a whole. It was neither glaringly improbable, nor contrary to other compelling inferences. The care facility’s records evidenced regular use of case conferences. Ms Orr also accepted that if a new routine was set, detailing a schedule in relation to the attendance of certain therapists, she could ready Mr Stewart.[2] Further, both Ms Cameron and Ms Coventry referred to liaison, collaboration and education with other allied health professionals in ensuring a coordinated approach.[3]
[2]AB 2657–2658.
[3]AB 423; 425; 424; 1023–1024.
The final challenged finding was that Dr Rotinen Diaz’s evidence “can only be understood as evidence … that the provision of additional care assistance and therapy at [the care facility] would be medically appropriate”.[4] It is submitted that finding was inconsistent with Dr Rotinen Diaz’s expressed opinion.
[4]AB 43 at [150].
Although Dr Rotinen Diaz preferred an arrangement whereby the additional care and therapy was provided to Mr Stewart in his own residence, Dr Rotinen Diaz did accept that apart from hydrotherapy, any recommended additional care and therapy could be provided both at the care facility, or at Mr Stewart’s residence. A compelling inference, from that concession, was that the provision of that additional care and assistance at the care facility, was “medically appropriate”. A contrary inference would be inconsistent with the concession made by Dr Rotinen Diaz.
Further, Dr Rotinen Diaz’s preference, for the provision of the additional care and therapy at Mr Stewart’s residence, arose out of his concern that Mr Stewart had not been receiving a reasonable amount of physical, occupational and speech therapies at the care facility and an assessment that his living environment was a crucial factor to his motivation and central to participation in any recommended additional care and treatment. That preference had nothing to do with whether the provision of that additional care and therapy was medically appropriate in one place, but not the other.
Once it is accepted that the primary judge’s characterisation of Dr Rotinen Diaz’s evidence on this aspect was consistent with his evidence as a whole, there is no basis to find that the primary judge’s conclusion on this aspect involved an inference which was glaringly improbable, or inconsistent with compelling inferences to the contrary.
There is no basis to set aside any of the primary judge’s challenged findings.
Ground 5
Compensatory damages are awarded to restore a plaintiff to the position that person would have been in, had the wrong not been committed, with the consequence that they had suffered damage.[5] Accordingly, expenses which may be reasonably incurred by a plaintiff, in the nature of medical and nursing expenses, are recoverable, subject to a touchstone of reasonableness.
[5]Haines v Bendall (1991) 172 CLR 60 at 63.
Reasonableness is to be viewed in the context of the health benefits to the plaintiff. Where the health benefits to the plaintiff are significant, damages for medical and nursing expenses are properly to be awarded, even if the cost is great. Conversely, if the cost is great and the benefits to health are slight or speculative, awarding the costs of such treatment would be unreasonable.[6] However, cost is not a sufficient ground for automatically excluding matters of amenities.[7] For that reason, any assessment of reasonableness turns primarily on the factual circumstances of the particular case.
[6]Sharman v Evans (1977) 138 CLR 563 at 573.
[7]Wieben v Wain (1991) 13 MVR 393 at 396–7.
In the present case, Mr Stewart submits that the primary judge erred in failing to have regard to the health benefits to be afforded by the obtaining of treatment whilst living independently, such as enhancing “his quality of life in an overall sense”. Those considerations, it is submitted, supported a conclusion that the health benefits afforded by treatment at home, were greater than the benefits of additional care and therapy in a care facility.
A consideration of the evidence as a whole and of the primary judge’s reasons does not support those submissions.
First, the primary judge expressly recognised that living in a private home, with Jesse and a dog, was likely to increase Mr Stewart’s motivation to engage in therapy and exercise. However, the primary judge was not satisfied, on the balance of probabilities, that Mr Stewart would only engage in such additional therapy and exercise, if he were to move into his own home. That finding was supported by evidence from those who had been involved in Mr Stewart’s care at the care facility. Nothing in a consideration of the evidence as a whole supports a conclusion that that finding was glaringly improbable, or contrary to the weight of the evidence.
Second, that factual finding was pivotal to the primary judge’s ultimate conclusion that it had not been established, on the balance of probabilities, that living in his own home with Jesse and a dog, would be likely to result in health benefits for Mr Stewart that are significantly better than those likely to be achieved at the care facility, with additional therapy and a dedicated external care assistant.
Central to that conclusion was the primary judge’s finding that the health benefits which were likely to result from Mr Stewart receiving care from his own home, would be the result of him receiving an increased amount of therapy and more frequent exercise as part of an integrated program, as well as his increased participation in activities out in the community. That finding was based on an acceptance of expert evidence as to the impact of the additional therapy and assistance.
Nothing in a consideration of the evidence as a whole supports a conclusion that the acceptance of that evidence was contrary to the weight of the evidence. Both Dr Rotinen Diaz and Ms McCorkell gave evidence that the health benefits to Mr Stewart were derived from receiving the additional care and assistance. Dr Rotinen Diaz accepted that additional care and assistance could be provided at the care facility.
Once it is found that those factual conclusions were consistent with the evidence, as accepted by the primary judge, there is no basis to conclude that the finding, that it was not reasonable to require Metro to pay the significant additional cost involved in Mr Stewart moving into his own home, was contrary to the evidence. The health benefits were substantially the same.
In this respect, it was submitted by Mr Stewart that the substantial cost differential was impermissibly used as the determining factor for reasonableness, when motivational factors were central to any health benefits from the additional therapy and associated programs. However, a consideration of the primary judge’s reasons does not support that submission.
The primary judge’s conclusion was founded on an acceptance that the health benefits derived from the provision of additional care and assistance and enhanced engagement was able to be derived in equal measure, whether that additional care and assistance was provided at home or at the care facility. Once the health benefit was substantially the same, the differential as to cost was properly a factor in assessing reasonableness. There was no error.
Metro’s cross-appeal
Grounds 1 and 2 challenge the primary judge’s finding that Mr Stewart would engage in the additional care and assistance, including through the use of aids. Metro submits that those findings were not supported by the evidence, as Mr Stewart had consistently refused to engage or participate in the existing care and assistance regime, including refusing to use aids or engage in activities such as showering and leaving his bed.
Although it is correct that there was clear evidence of a refusal, in the past, by Mr Stewart, to engage in offered care and assistance, including through the use of aids, there was evidence that Mr Stewart had engaged with therapy treatment prior to living at the care facility and that he had continued to engage with Ms Battersby in recent years. Dr Rotinen Diaz also gave evidence that as a consequence of Mr Stewart not receiving appropriate therapy and assistance to date, he had become deconditioned, but that the provision of the additional care and therapy was likely to result in progress and a reversal of that deconditioning.
That evidence, which was accepted by the primary judge, provided a sufficient basis upon which an inference could be drawn that with appropriate motivation, Mr Stewart would engage in the proposed care program, including the use of aids. There was evidence that Mr Stewart had engaged, at the care facility, to attend concerts. His refusal to continue arose from a failure of the care attendant to provide a promised incentive after the concert.
It was submitted by Metro that concessions on Mr Stewart’s behalf, to the effect that there was a likelihood he would not engage with many aspects of the additional care and assistance if offered at the care facility and that reliance on Mr Stewart’s previous engagement in therapy with Ms Battersby, provided an uncertain basis to draw an inference of engagement in the proposed more intensive and time consuming additional care and assistance, rendered the primary judge’s conclusion not open on the evidence.
Those concessions do not make the primary judge’s findings on this issue glaringly improbable or contrary to compelling inferences. They were factors which give rise to a discount for the chance of more engagement. Those matters were properly taken into account by the primary judge, when discounting future care.
Ground 3 contends that the primary judge miscalculated the cost of care. The first miscalculation was by allowing 377 days per year. Mr Stewart accepts that there was a miscalculation. A second miscalculation contended for by Metro is not conceded by Mr Stewart. It relates to an allowance for two hours per week for coordination and monthly staff meetings. Metro submits that the allowance for such arrangements was contrary to the evidence of Mr Hart.
There is merit in Mr Stewart’s submission that care must be taken when assessing Mr Hart’s evidence on this issue, particularly having regard to the report produced following a conclave of Ms Coles, Ms Coventry and Mr Hart. The answers contained in that report were in respect of the cost of coordinating a care model of a different kind to that ultimately determined by the primary judge.
That difference supports a conclusion that the primary judge, in allowing this sum, was adapting the estimate given by those experts for the time to coordinate therapists in a private residence scenario, to being equally applicable to the provision of the same additional care and assistance at the care facility. Such an inference was open on all of the evidence. It was neither glaringly improbable, nor contrary to any compelling inferences to the contrary.
Ground 4 relates to the primary judge’s conclusion that Mr Stewart would receive health benefits from the additional care and therapy which could not be characterised as slight or speculative. Metro submits that conclusion was premised on an acceptance that Mr Stewart would engage in the additional care and therapy programs, when such engagement was itself speculative and no expert evidence was given as to Mr Stewart’s health benefits should he not engage in all or part of the program.
The difficulty with Metro’s submission on this aspect is that the primary judge’s conclusion, that the health benefits to be derived from the additional care and assistance and Mr Stewart’s engagement in that arrangement could not be characterised as slight or speculative, was based on a finding that with motivation, Mr Stewart would engage in the additional care and assistance. That finding was consistent with a consideration of the evidence as a whole. It involved an inference open on the accepted evidence.
Once it is accepted that the finding was not glaringly improbable or contrary to compelling inferences to the contrary, there was no error in the primary judge’s ultimate conclusion that the health benefits to be derived by Mr Stewart from the additional care and assistance, could not be characterised as slight or speculative. Further, to the extent that there was any element of uncertainty, the primary judge took that into account in the assessment of damages for future loss. Such an approach is consistent with the principles applicable to the assessment of damages, taking into account future or hypothetical events.[8]
[8]Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 643.
Conclusions
Mr Stewart has not established any error in the primary judge’s findings and orders. I would dismiss his appeal.
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.
These conclusions render it unnecessary to consider either notice of contention.
Orders
I would order:
1.The appeal is dismissed.
2.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.
3.The parties are to provide written submissions as to costs, limited to no more than three pages, by 22 November 2024.
RYAN J: I agree with Boddice JA.
7
8
0