Stewart v Metro North Hospital and Health Service

High Court of Australia · 2025

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

A catastrophically injured man wanted care in a rented home where his son and dog could stay, not in an aged care facility. What decides whether the extra cost of that choice is recoverable from the hospital?

What happened?

In 2016 Michael Stewart was 63 and lived at Margate in Queensland in a property he shared with his brother and paid rent for; his son Jesse, then 14, and the family dogs would often stay with him ([2], [5]). In March and April 2016 he sought treatment at Redcliffe Hospital for nausea and abdominal pain and was treated negligently, and the Metro North Hospital and Health Service (MNHHS) accepted liability ([6]). He suffered bowel perforations, sepsis, cardiac arrest and a stroke, and was left with brain damage and other injuries; at the trial in 2023, aged 71, his life expectancy was found to be five years ([6]).

He was discharged to a nursing home in November 2016 and from March 2017 lived at the Ozanam Villa Aged Care Facility, where he was not permitted to keep a dog and where Jesse was able to stay overnight on one occasion in the six years before trial ([7]). His physical condition deteriorated there through lack of therapy and exercise ([8]). He claimed, among other things, the cost of nursing and medical care in a rented home of his own where Jesse and a dog could stay ([2], [8]); his guardian in the litigation was Ms Schwarzman, from whom he had separated in 2008 but with whom he remained on good terms ([5]).

Cooper J, in the Supreme Court of Queensland, considered three options: the existing care at Ozanam, Ozanam with an external care assistant and more frequent therapy, and care in his own rented home ([13]). His Honour accepted that Mr Stewart wished to live at home and that the health benefits of care at home were not "slight or speculative" ([10], [12]). He nonetheless weighed those benefits against the substantial additional cost, was not satisfied that they were significantly better than those likely at Ozanam with additional therapy and an external care assistant, and held it not reasonable to require MNHHS to pay the additional cost of home care ([15]-[16]). The Court of Appeal of Queensland (Boddice JA, with whom Mullins P and Ryan J agreed) upheld that reasoning and conclusion and dismissed the appeal ([20]-[22]). Special leave to appeal to the High Court was granted on one ground, that the Court of Appeal erred in its consideration of reasonableness ([23]).

What did the Court decide?

The High Court allowed the appeal with costs ([56]). It held that the approach of the trial judge and the Court of Appeal to reasonableness was erroneous ([4], [48]), and it found for Mr Stewart on the question of reasonableness ([4], [49]-[52]). It set aside order 1 of each of two orders of the Court of Appeal and the order of the Supreme Court of 20 March 2024, ordered in place of the Supreme Court's costs orders that the defendant pay the plaintiff's costs, and remitted the matter to the Supreme Court of Queensland for assessment of damages and consequential orders, the parties having agreed the quantum of the relevant heads of damages ([55]-[56]).

Proposition

What is the principle?

1. A claim for the cost of care at home is tested by whether the choice is a reasonable response to repair the consequences of the tort. In the single joint reasons of Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ ([44]): where a plaintiff claims the cost of being cared for at home or in a home setting rather than in an institution, the assessment starts from the premise that the plaintiff is entitled to compensation that, so far as money can do, puts them in the position they would have been in had the defendant not acted negligently. It asks whether the choice to incur the expense of care at home is a reasonable response to repair the consequences of the tort, with all the circumstances considered and compared with those that existed before the tort. The assessment is not confined to balancing only the health benefits against the cost ([44]). Intermediate appellate decisions that had treated the reasoning of Gibbs and Stephen JJ in Sharman v Evans as requiring that balance, independently of the plaintiff's choice, were held not correct ([43]); the joint reasons read the Sharman majority as having used unreasonableness in the first sense, as a limit requiring that the steps taken be reasonably required to repair the consequences of the tort ([39]-[41]). Where a plaintiff lived at home before the tort and restoring that position or a similar one will be beneficial or at least not worsen their health, it would be unusual to find the choice of care at home unreasonable ([45]).

2. Reasonableness works in two places: the plaintiff proves the reasonable cost of reasonably required steps, and the defendant proves an unreasonably refused alternative. In the same joint reasons ([25]-[28]): reasonableness limits the compensatory principle in two distinct ways. First, the plaintiff must prove the reasonable cost of steps that they have taken or will take and that are reasonably required to repair the consequences of the tort ([25]-[27]). Second, once that is proved, it is for the defendant to establish that the plaintiff unreasonably failed to take an alternative that would have avoided or reduced the cost; this second limit is a rule of mitigation of loss ([28]). Applying that allocation, the joint reasons held that once Mr Stewart's choice of home care was shown to be reasonable, the onus fell on the hospital service to establish that part or all of the claimed cost could be avoided by an alternative that was unreasonably refused, and that it did not discharge that onus as to the cheaper second option ([51]-[52]).

Why does this case matter?

The sums involved explain why the point reached the High Court: the trial judge's three options were costed, as discounted, at $304,650.46, $1,081,895.56 and $4,910,342.52 ([13]). A student who answers a home-care problem from Sharman v Evans (1977) alone is likely to lose marks, because this decision addresses how that authority is to be read ([39]-[43]). An examiner rewards an answer that uses the later decision.

Exam and application relevance

The case was decided on a claim for the cost of care at home or in a home setting after catastrophic injury, where the reasonable cost of that care was not in dispute ([27]). Use it for a claim of that kind. The two limits in the second proposition are stated in general terms and illustrated with other losses, such as the hire of a substitute vehicle ([26]-[28]).

In a problem, set out the plaintiff's circumstances before the injury, whether the proposed care would restore that position or a similar one, and what the evidence shows about the effects on physical and mental health and quality of life, as the joint reasons do at [49]-[50]. Then identify any cheaper alternative the defendant relies on, and ask whether the defendant has shown that it was unreasonably refused, as at [51]-[52].

The joint reasons discuss only the Queensland provisions for general damages, as context for applying the compensatory principle to the claim for care ([54]-[55]). A claim governed by another jurisdiction's civil liability legislation may turn also on that legislation.

Check your understanding

1. In what way, according to the joint reasons, had the trial judge and the Court of Appeal approached reasonableness, and what did the High Court say about that approach? 2. What did the joint reasons say the assessment of reasonableness starts from, and what is it then asked to decide about the plaintiff's choice? 3. What did the joint reasons say about the Sharman v Evans majority's use of reasonableness, and about intermediate appellate decisions that had followed Gibbs and Stephen JJ? 4. Who must prove the reasonable cost of the care claimed, and who must prove that an alternative was unreasonably refused? 5. How did the joint reasons apply the second limit to the cheaper option of staying at Ozanam with an external care assistant? 6. Which Justices gave reasons in Stewart, and what did the order do about the assessment of damages?