Contentious catastrophic injury damages assessment

15 April 2024

The plaintiff suffered extensive injuries during his hospital admission, including brain damage. The defendant admitted liability, however the plaintiff’s assessment of damages was in dispute. The Queensland Supreme Court considered this issue and ultimately damages were awarded.

In issue

  • Assessment of the plaintiff’s damages for significant injuries including brain damage following a stroke.
  • The plaintiff’s life expectancy - whether it was 6 years, or no more than 4 years.
  • Whether it was reasonable for the cost of the plaintiff’s future care to be calculated on the basis that the plaintiff resides at and receives care in his own home rather than a residential care facility
  • the cost of the provision of care to the plaintiff if damages were to be assessed on the independent living scenario;
  • the extent of the plaintiff’s future treatment needs and its associated costs; and
  • whether the plaintiff would reasonably require expenditure on other miscellaneous items of equipment.

The background

The plaintiff, Mr Michael Stewart, commenced proceedings by his litigation guardian in the Supreme Court of Queensland against the defendant, Metro North Hospital and Health Service. The plaintiff claimed damages for injuries arising from treatment he received while he was a patient at the Redcliffe Hospital between 22 March 2016 and 19 April 2016. That treatment led to the plaintiff suffering bowel perforations, sepsis and ultimately cardiac arrest and stroke. Consequently, the plaintiff suffered significant injuries, including brain damage.

The defendant admitted that it breached its duty of care to the plaintiff and that such a breach was causative of his injuries. The defendant therefore accepted that it was liable to pay damages to the plaintiff for his injuries. However, the quantum of the plaintiff’s damages was in dispute.

At the end of hearing, the plaintiff claimed $6,511,363.95 in damages, while the defendant claimed it was liable for $827,500 amounting to a difference of more than $5.6 million. The divergence in these amounts primarily came down to the differing positions adopted by the parties on two critical issues: the plaintiff’s life expectancy; and whether the plaintiff’s claim ought to be assessed on the basis that he would live independently.

The decision

The parties agreed that the plaintiff’s life expectancy had been reduced by the injuries he suffered because of the negligence of the defendant and his pre-existing co-morbidities, however the extent of that reduction was in dispute.

There were three expert witnesses who gave evidence on life expectancy: Dr Jan Rotinen Diaz (rehabilitation physician) called by the plaintiff; Dr Jeff Karrasch (general physician) called by the defendant; and Professor David Strauss (expert in statistical calculation of life expectancy) called by the defendant. Dr Diaz concluded that the plaintiff’s life expectancy from age 70 was reduced to 5.9 years. Dr Karrasch concluded that the plaintiff’s life expectancy from age 71 was reduced to one to two years. Professor Strauss concluded that the plaintiff’s life expectancy from age 71 was reduced to 5.3 years.

The Court found that Professor Strauss and Dr Diaz provided the most reliable evidence regarding their assessment of the plaintiff’s life expectancy. Therefore, it accepted a life expectancy of 5 years from the age of 71.

The plaintiff submitted that it was reasonably necessary for him to be cared for in his own home, and that his claim ought to be assessed on that basis.

The plaintiff had been living in residential care facilities since November 2016. It was the plaintiff’s position that he had expressed his desire to reside in his own home, and that further beneficial therapy and activities could be provided to the plaintiff, beyond that which was possible in his current residential care facility.

The defendant submitted that moving the plaintiff to his own home would not provide him with any physical health benefit, and that the claim should be assessed on the basis that he would continue to live in residential care.

His Honour considered a range of factors in reaching a conclusion on whether it was reasonable for future care, treatment and equipment requirements to be assessed based on the plaintiff living in his own home.

Cooper J recognised that, as a result of the plaintiff’s significant cognitive impairment, his ability to accurately express a desire to live independently was hindered. However, His Honour considered the value of the plaintiff’s desire to live in his own home. Cooper J accepted that living at home would allow the plaintiff to undergo further therapy and activities beyond that which could be provided to him in his current residential care setting. His Honour also accepted that these further therapies would be beneficial for the plaintiff. However, despite the plaintiff’s preference for living at home with his son and dog, His Honour was not satisfied that this would be sufficient motivation for him to engage with the additional therapy and exercise beyond that which could be provided to him in his current residential care setting.

Weighing the significant difference in costs between residing in his own home and continuing to live at his current residential care facility, his Honour found that it was unreasonable for damages to be assessed on the basis that the plaintiff lived in his own home.

Judgment was entered for the plaintiff, and damages were awarded in the sum of $2,190,505.48, comprising the following heads of damages:

  • General damages $284,700.00
  • Refund to Medicare $583,159.92
  • Past out-of-pocket expenses (including interest) $36,500.00
  • Future care $1,081,895.56
  • Future therapy $145,250.00
  • Aids and equipment $14,500.00
  • Future medical expenses $9,500.00
  • Transportation $35,000.00

Implications for you

This decision reinforces the importance of considering a plaintiff’s individual health and circumstances when assessing damages. It is a further reminder that future treatment and care costs are not assessed only by reference to the availability and feasibility of beneficial therapies. The individual plaintiff’s willingness and motivation to engage with the proposed treatment must be considered in deciding whether it is reasonably necessary.

For insurers and defendant lawyers, it is prudent to instruct experts assessing the plaintiff to comment on the plaintiff’s level of motivation or attitude in response to any new or increased treatments and therapies. Evidence that a plaintiff is unlikely to engage with a proposed treatment or therapy regime may impact the award for future treatment expenses.

Stewart v Metro North Hospital and Health Service [2024] QSC 41

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation