The assessment of damages is largely a mathematical process. However, variables specific to individual plaintiffs must be factored in. These variables include matters such as the age of the plaintiff at the time of injury and how long they may be expected to live. Other issues such as the plaintiff’s ability to continue with employment and continue with their pre-injury activities are also matters which may influence how much money they may receive.
The recent decision of Stewart v Metro North Hospital and Health Service [2024] QSC 41 highlights the different approaches which can be taken when assessing damages, with the amount of damages claimed by the Plaintiff at trial ($6,511,363.95) exceeding the amount for which the Defendant submitted it was liable ($827,500.00) by more than $5.6 million.
Background
The Plaintiff claimed damages for personal injury arising from his treatment at Redcliffe Hospital between March and April 2016. It was alleged that the treatment the Plaintiff received led to him suffering from bowel perforations, sepsis and ultimately cardiac arrest and stroke.
The Defendant admitted that it had breached its duty of care to the Plaintiff and accepted its liability to pay damages to the Plaintiff for his injuries. However, the parties were in dispute as to the amount of the damages payable.
There were two critical issues that affected the assessment of damages – the Plaintiff’s life expectancy, and whether the Plaintiff’s claim should be assessed on the basis that he would live independently. At the time of the decision, the Plaintiff had been living in an aged care facility, and the Defendant argued that the Plaintiff should remain in aged care rather than receive individual care at his own home.
After consideration of evidence from multiple experts and lay witnesses, the Court determined that the Plaintiff’s life expectancy was a further 5 years (he was 71 at the time of the decision), and although the Plaintiff’s desire was to live independently and receive care at home, damages were assessed on the basis that the Plaintiff would continue to reside at the aged care facility, but would receive additional therapy and care assistance every day.
Issue 1: Life expectancy
The parties agreed that the Plaintiff’s life expectancy had been reduced by the injuries he suffered as a result of the Defendant’s negligence and his pre-existing morbidities, which included smoking, type II diabetes, elevated cholesterol and hypertension. The issue in dispute was the extent of that reduction.
Expert evidence
Three experts gave evidence on life expectancy – Dr Jan Rotinen Diaz, rehabilitation physician called by the Plaintiff, Dr Jeff Karrasch, general physician and Professor David Straus, an expert in the statistical calculation of life expectancy, both called by the Defendant. The experts participated in a conclave – a pre-trial conference of sorts for experts – to address the issue of life expectancy.
In his evidence, Dr Rotinen Diaz:
- agreed with a report of Dr Karrasch that concluded that the Plaintiff’s statistical life expectancy would reduce by 30% due to the presence of pre-existing cardiovascular risk factors;
- estimated that the stroke suffered by the Plaintiff would further reduce the Plaintiff’s life expectancy by 5.5 years; and
- concluded that the Plaintiff’s life expectancy from age 70 was reduced to 5.9 years.
Dr Karrasch prepared a report dated 16 June 2020, which was over three years prior to trial. In his report, Dr Karrasch was of the view that the Plaintiff’s life expectancy was only 3.9 years. At the conclave, Dr Karrasch opined that the Plaintiff’s life expectancy from 71 would be:
- one to two years having regard to both the impact of the injuries caused by his treatment at Redcliffe Hospital and his pre-existing conditions; or
- if the injuries caused by his treatment at Redcliffe Hospital had not occurred, three years.
Dr Karrasch explained during cross-examination that the process by which he had estimated the Plaintiff’s life expectancy was not a mathematical exercise, but based on his consideration of peer-reviewed literature addressing the statistically determined average outcomes on life expectancy for the various conditions suffered by the Plaintiff. Dr Karrasch also stated that he relied on his clinical experience and judgment to assimilate those various effects together and form a view of the overall impact those pre-existing conditions, operating concurrently, have on the Plaintiff’s life expectancy.
Dr Karrasch did accept that by the time of trial, the Plaintiff had already exceeded the estimated life expectancy that Dr Karrasch had stated in his report. He explained that there will always be outliers who exceed the expected life expectancy derived from statistical averages. At trial, Dr Karrasch ultimately adhered his opinion of a life expectancy of one to two years.
Professor Straus relied on statistical analysis in a study that indicated that the life expectancy for a 70-year-old man suffering stroke-related disabilities equal to grade 5 on the modified Rankin scale was 35.7% of the life expectancy in the general population. Professor Straus then applied that percentage to the life expectancy for a 71-year-old man in the general population in Australia (approximately 16 years) to conclude that the effects of the stroke reduced the Plaintiff’s life expectancy to 5.7 years.
Professor Straus also referred to the elevated long-term mortality risk and reduced life expectancy that resulted from the Plaintiff having experienced a myocardial infarction during his treatment at Redcliffe Hospital. Based on the statistical analysis in another study, Professor Strauss considered that the effect of the myocardial infarction further reduced the Plaintiff’s life expectancy by 0.4 years to 5.3 years. Professor Strauss also considered the additional effect of the Plaintiff’s other pre-existing conditions on his life expectancy to be minimal once account was taken of the effect of his stroke and myocardial infarction.
Consideration by the Court
The Court noted that in principle, the estimate of a plaintiff’s likely survival ought not simply reflect a statistical analysis but should also involve a clinical assessment of a plaintiff’s individual health and circumstances. However, a clinical assessment does not ensure a precise and correct answer either.
In this case, the Court commented that there was not a significant difference between two of the experts who adopted the different forms of assessment. Professor Straus ultimately adhered to his estimate of 5.3 years from age 71, adopting a statistical approach. Dr Rotinen Diaz ultimately adhered to his estimate of 5.9 years from age 70 based on his clinical assessment of the Plaintiff.
The Court was not persuaded that the approach adopted by Dr Karrasch gave a reliable basis to estimate the Plaintiff’s life expectancy, noting that the Plaintiff had exceeded the suggested life expectancy by some years. Dr Karrasch’s explanation that this is explained on the basis that the Plaintiff was a statistical outlier overlooked the fact that, as Dr Karrasch acknowledged, he did not use a mathematical process to estimate the reduction in the Plaintiff’s life expectancy due to his pre-existing conditions. The Court was of the view that Dr Karrasch’s approach was to produce an overly pessimistic assessment of the Plaintiff’s life expectancy, and this was consistent with Dr Karrasch not taking into account the positive aspects of the Plaintiff’s health condition over the previous five years.
After considering all of the evidence, the Court adopted a life expectancy for the Plaintiff of five years from age 71. The Court did not accept that an additional year should be added to this figure to take account of the possibility that if the Plaintiff was to receive comprehensive care and therapy in his own home, his condition might improve to a level 4 on the modified Rankin scale.
Issue 2: Living independently
The second issue to be dealt with by the Court was that the Plaintiff wanted to live in his own home and received care at home, but at the time of proceedings, he was living in and receiving care at an aged care facility.
The Plaintiff’s position was that it was reasonably necessary for him to be cared for in his own home. In determining what proposed future care was reasonably necessary, the Court had to consider the cost of that proposed care as against the health benefits for the Plaintiff. There was a significant cost difference between the two parties’ positions.
The questions that arose for the Court to consider in determining whether it was reasonably necessary that the Plaintiff be cared for in his own home were:
- What are the relevant benefits that the Plaintiff will derive from being cared for in his own home?
- Would the Plaintiff’s continued residence and care at the aged care facility be a suitable alternative to him receiving care in his own home?
- What are the comparative costs of the two alternatives?
- If the more expensive approach is adopted, would the benefits to the Plaintiff being cared for in his own home be commensurate with the extra cost?
Plaintiff’s position
The Plaintiff submitted that it was reasonable to assess his damages on the basis that he will live in his own home, having regard to the following factors:
- it was the Plaintiff’s wish to leave the aged care facility and live in his own home;
- the Plaintiff’s quality of life would be substantially improved in his own home because he would be able to spend greater time with his own family and be able to keep a dog, which would resemble much more closely his living situation before he was injured;
- improvement in the Plaintiff’s quality of life was likely to lead to improvements in his mood and psychological health, in turn leading him to engage in more activities, both therapeutic and recreational; and
- the Plaintiff was likely to derive significant physical health benefits from living in his own home because most of the therapy proposed was to be carried out by dedicated carers who would be attending the Plaintiff’s own home overseen by allied health professionals. This was to be contrasted with the kind of care that can be provided in the aged care setting, where carers had responsibilities to multiple residents.
Defendant’s position
The Defendant’s position was that having regard to the degree to which the Plaintiff’s cognitive functioning had been impaired, the Court could not be satisfied as to the Plaintiff’s intentions or wishes. The evidence did not support a finding that living in his own home would result in functional or cognitive improvements which would make it a reasonable basis for the assessment of damages. In any event, there was not a sufficient basis to find that on the balance of probabilities, the Plaintiff was likely to move out of the aged care facility to his own home.
The Defendant also submitted that the Plaintiff was very unlikely to see any physical improvement that will enhance his functional capacity because the “window of opportunity for functional and cognitive progress following stroke closed many years ago”. On this basis, the Defendant argued that moving the Plaintiff to his own home would not provide him with any physical health benefit.
Cost of the Plaintiff’s future care and treatment
The total cost of the future treatment sought by the Plaintiff was $4,910,342.52 which included a discount of 10% to reflect the possibility that the Plaintiff may deteriorate and need to return to living in an institution.
The value of the cost of residing at the aged care facility for his life expectancy was valued at $308,650.46.
The total cost for the Plaintiff to reside at the aged care facility with external care assistance was determined by the Court to be $1,081,895.56, with the cost of external care assistance valued at $777,245.10, calculated on the basis of an additional 6 hours per day of care assistance (as per the evidence of Dr Rotinen Diaz), and included a discount to account for the risk of an adverse event occurring to the Plaintiff.
Based on the evidence provided, the Court considered that the Plaintiff was likely to receive the same health benefits or at least a very similar level of health benefits if he engaged in a similar amount of additional therapy and exercise at the aged care facility as he would residing at home, with an additional 6 hours of assistance per day provided by an external care assistant.
The Court was not satisfied that the evidence of the Plaintiff’s strong relationship with his son and his son’s desire to live with his father supported a finding on the balance of probabilities that the Plaintiff would only engage in additional therapy and exercise and would only agree to participate in community activities if he were to move into his own home.
The Court concluded that although living in his own home with his son and a dog would enhance the Plaintiff’s quality of life in an overall sense when compared to the aged care facility, the Court was not satisfied that it would be likely to result in health benefits that were significantly better than those likely to be achieved at the aged care facility with additional therapy and a dedicated external care assistant. In those circumstances the Court did not think it reasonable to require the Defendant to pay the significant additional cost that would be involved in the Plaintiff moving from the aged care facility into his own home.
The Court ultimately assessed the Plaintiff’s damages for future care in the order of $1,081,895.56, and a total sum of $2,190,505.48 was awarded to the Plaintiff.
Conclusion
Life expectancy and future care requirements for complex injury are matters that are regularly considered in the assessment of damages for cases of this nature. Whilst issues such as a plaintiff’s wishes are a factor considered by the Court, ultimately a Court must undertake a cost v benefit analysis to decide what reasonable care and treatment should be funded by a defendant.
