The facts of Michael Stewart by his litigation guardian Carol Schwarzman v Metro North Hospital and Health Service are available in our earlier blog post (linked). In summary the health service 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.
At the time of the initial decision, the Plaintiff was living in an aged care facility. However, he claimed damages for future care based on being able to live in 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, it 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. This approach is consistent with the decision of the High Court in Sharman v Evans (1977) 13 ALR 57, which held that the cost of the more expensive alternative must be matched against the health benefits to the plaintiff in order to decide which alternative it was “reasonable” for a defendant to provide.
The grant of special leave suggests the High Court will reconsider its decision in Sharman v Evans. We understand that the appeal is likely to be heard in June 2025. It will be interesting to see if the High Court adopts a different approach to the assessment of future costs of care. Should a different approach be taken, this will have significant implications for defendants and the costs of claims.
