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CITE

Unreported Judgment
Appeal Determined (QCA) - Appeal Determined (HCA)

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

SUPREME COURT OF QUEENSLAND

CITATION:	Stewart v Metro North Hospital and Health Service [2024] QSC 41
PARTIES:	MICHAEL STEWART BY HIS LITIGATION GUARDIAN CAROL SCHWARZMAN (plaintiff) v METRO NORTH HOSPITAL AND HEALTH SERVICE (ABN 18 499 6277 942) (defendant)
FILE NO/S:	BS No 4665 of 2022
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	30 and 31 October 2023; 1, 2, 3, 6, 7, 8 and 9 November 2023. Further review on 23 February 2024. Further written submissions on 28 February 2024, 12 March 2024 and 15 March 2024.
JUDGE:	Cooper J
ORDER:	Judgment for the plaintiff in the sum of $2,190,505.48, before management fees.
CATCHWORDS:	DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – LIFE EXPECTANCY CALCULATION – where no significant difference in expert opinion existed between two of three experts as to plaintiff’s life expectancy – where plaintiff exceeded life expectancy estimated by third expert – where third expert did not use mathematical process to estimate plaintiff’s reduction in life expectancy due to his pre-existing conditions – whether to adopt a life expectancy of 5 years for the plaintiff based on evidence of two experts DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – FUTURE CARE – COST OF CARE, LOCATION ETC – where plaintiff suffered from difficulties in comprehending and communicating but expressed a desire to live in his own home – where plaintiff’s deficits in comprehension and communication meant that he did not have a full appreciation and understanding of the logistical issues and challenges involved with moving into his own home – where relatively less weight given to plaintiff’s expressed wishes – where plaintiff contended that his quality of life would improve and that there would be associate health benefits of living in his own home – where proposed comprehensive care and therapy for the plaintiff in his own home would lead to physical and mental health benefits for him – where proposed additional therapy is able to be provided in the care facility that the plaintiff currently resides in – where care assistants for an integrated therapy program could attend the care facility – where difference between the proposed cost of providing the plaintiff care in his own home and the cost of care in his current facility amounts to $3,828,466.96 – where plaintiff would likely receive the same health benefits at his home as he would if he received and engaged in a similar amount of additional therapy at the facility at which he presently resides – where the plaintiff residing in his own home would not be likely to result in health benefits that are significantly better than those likely to be achieved from receiving additional care at the facility where he resides – whether it is reasonable for the cost of the plaintiff’s future care to be calculated on the basis that the plaintiff reside at and receive care in his own home rather than the facility at which he presently resides DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – FUTURE CARE – GENERALLY – where plaintiff suffered multiple injuries from defendant’s negligence – where dominant injury needs to be determined to determine where in the Injury Scale Values that injury is to fall – where plaintiff’s dominant injury was “Extreme Brain Injury” within the meaning of Item 5.1 in Sch 4 of the Civil Liability Regulation 2014 (Qld) – where plaintiff assessed to have whole person impairment of 96% – where plaintiff has some insight, retains some functional mobility, has not suffered seizures since 2016, is not doubly incontinent, and can respond to his environment – whether plaintiff’s injuries are to be assessed at or near the top of the range of the Injury Scale Values provided in Item 5.1 in Sch 4 of the Civil Liability Regulation 2014 (Qld) DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – FUTURE CARE – COST OF CARE, LOCATION ETC – where plaintiff claims cost of future speech therapy – where plaintiff claims present value of future occupational therapy – where plaintiff claims present value for future physiotherapy – where plaintiff claims costs of hydrotherapy in circumstances where benefits of engaging in that therapy for the plaintiff are unclear – where plaintiff claims present value of future aids and equipment in circumstances where there is a risk that plaintiff may not use some of the equipment – where plaintiff claims costs of motorised wheelchair in circumstances where it is unclear whether he would be likely to be able to operate it – where plaintiff claims costs of the provision of a wheelchair – accessible vehicle – whether it is reasonable to award all or part of the claimed costs for the present value of future therapy, aids and equipment, and transportation costs Civil Liability Act 2003 (Qld), s 61, s 62 Civil Liability Regulation 2014 (Qld), Sch 4 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, cited Farr v Schultz (1988) 1 WAR 94, cited Sharman v Evans (1977) 138 CLR 563, cited Wieben v Wain (1991) 13 MVR 393; [1991] Aust Torts Rep 81-086, considered
COUNSEL:	G Mullins KC with J Liddle for the plaintiff CC Heyworth-Smith KC with MG Zerner and MA Eade for the defendant
SOLICITORS:	Maurice Blackburn Lawyers for the plaintiff Corrs Chambers Westgarth for the defendant

Introduction

[1]
The plaintiff (Mr Stewart) claims damages for personal injury arising from his treatment while he was a patient at the Redcliffe Hospital between 22 March 2016 and 19 April 2016. That treatment led to Mr Stewart suffering bowel perforations, sepsis and ultimately cardiac arrest and stroke. Those events caused Mr Stewart to suffer significant injuries, including brain damage.
[2]
The defendant, the Metro North Hospital and Health Service (MNHHS) admits that it breached its duty of care to Mr Stewart, and that Mr Stewart suffered injuries as a consequence of that breach. The MNHHS accepts it is liable to pay damages to Mr Stewart for his injuries.
[3]
The parties are in dispute as to the quantum of Mr Stewart’s damages. The difference is significant. Putting to one side a refund payable to Medicare of $583,159.92 about which there is no dispute, the amount of damages claimed by Mr Stewart at the end of the trial ($6,511,363.95) exceeds the amount for which the MNHHS submitted it was liable ($827,500.00) by more than $5.6 million.
[4]
Much of this difference is due to the parties’ positions on two critical issues which affect the assessment of damages.
[5]
The first issue is Mr Stewart’s life expectancy. Mr Stewart was born on 26 August 1952. He is 71 years old. Mr Stewart submitted that his damages should be assessed on the basis that his life expectancy is 6 years. The MNHHS submitted that Mr Stewart’s life expectancy is no more than 4 years.
[6]
The second issue is whether Mr Stewart’s claim should be assessed on the basis that he will live independently. Mr Stewart has lived in residential care facilities since 29 November 2016. He presently resides at Ozanam Villa Aged Care Facility at Clontarf (Ozanam), having moved there in March 2017. Although he presently resides at Ozanam, Mr Stewart submitted that his damages should be assessed based on the costs of him moving to his own home so that he is able to live in the community in appropriately modified accommodation supported by his own carers. The MNHHS submitted that Mr Stewart’s claim should be assessed on the basis that he will continue to reside at Ozanam.
[7]
There are also issues as to:
1. the cost of the provision of care to Mr Stewart, and his associated needs, if damages are to be assessed on the independent living scenario;
2. the level of physiotherapy, speech therapy, occupational therapy and other future treatment which Mr Stewart reasonably requires and the cost of that therapy;
3. whether Mr Stewart will reasonably require expenditure on other miscellaneous items of equipment identified in the Special Damages Bundle.

Background

[8]
For much of his adult life, Mr Stewart worked as an artist including, for many years, at major advertising firms in New York City.
[9]
While living in New York, Mr Stewart met Carol Schwarzman. He and Ms Schwarzman developed a relationship, married, and had a child together, Jesse Stewart (Jesse). Jesse is Mr Stewart’s only child.
[10]
Mr Stewart, Ms Schwarzman, and Jesse moved to Australia in late 2005.
[11]
In about 2006, Mr Stewart developed a detached retina and had issues with his eyesight. This, together with a general industry trend towards the use of computers, led to Mr Stewart finding work more difficult to perform and harder to come by. He became depressed, stopped working, and qualified for a disability support pension.^[1]
[12]
Mr Stewart and Ms Schwarzman separated in 2008. Despite this, they remained on good terms.
[13]
In addition to his depression and detached retina, Mr Stewart had other pre-existing medical conditions. He smoked approximately 10 to 15 cigarettes each day. He had type 2 diabetes, a history of a transient ischaemic attack, elevated cholesterol and hypertension. He suffered from diffuse vascular disease. He had previously undergone abdominal surgery (a laparotomy approximately 20 years prior and bilateral inguinal hernias 14 years prior) from which he suffered extensive adhesions involving the entire abdominal cavity including the wall of his small bowel being involved with interloop adhesions (irregular bands of scar tissue formed between bowel loops).

Treatment at Redcliffe Hospital

[14]
On 22 March 2016, Mr Stewart, who was then 63 years old, presented to the Redcliffe Hospital Emergency Department complaining of nausea and generalised abdominal pain. He was admitted to the surgical ward. A CT scan performed the following day revealed several prominent air and fluid filled loops of the small bowel in the left abdomen consistent with an early partial small bowel obstruction. The CT Scan also revealed multiple small anterior wall hernias containing mesenteric fat, a previous right inguinal hernia repair and extensive aortoiliac calcification (narrowing of the aortic valve).
[15]
On 24 March 2016, Mr Stewart complained of blurred vision and was found to have a “right eye reduced visual field”. He was not further neurologically reviewed. Thereafter, Mr Stewart suffered a stepwise progression of stroke. The first step was the right homonymous hemianopia (loss of visual field) he developed prior to surgery.
[16]
On 25 March 2016, Mr Stewart underwent a laparotomy. That procedure identified that Mr Stewart had extensive adhesions involving his entire abdominal cavity, with the wall of his small bowel involved with interloop adhesions. The adhesions were removed. Two bowel perforations occurred.
[17]
On 27 March 2016, Mr Stewart experienced right arm weakness and was unable to grip or close his fingers. He underwent a CT scan of his brain which was reported to have demonstrated no acute intracranial pathology.
[18]
On 29 March 2016, Mr Stewart was reviewed by the Stroke Team Registrar. The notes from that consultation recorded that Mr Stewart was likely experiencing a major stroke.
[19]
On 1 April 2016, Mr Stewart’s abdomen had distended, he had an elevated white cell count and had free air under his diaphragm. A CT scan demonstrated a large volume of intraperitoneal free gas consistent with a visceral perforation. He underwent a further laparotomy and bowel resection. A small enterotomy was observed in the small bowel in the upper quadrant. The operation notes recorded that the site of the enterotomy was surrounded in bile-stained small bowel fluid. Mr Stewart was admitted to the Intensive Care Unit.
[20]
On 4 April 2016, Mr Stewart developed tachycardia (fast heartbeat), tachypnoea (rapid breathing), and hypertension. He underwent a CT scan which demonstrated a large amount of intra-abdominal free air and fluid present which indicated a “hollow viscus” bowel perforation.
[21]
On 5 April 2016, Mr Stewart underwent an explorative laparotomy, washout, evacuation of a haematoma and oversew of bleeding vessels. Blood was present in the peritoneal cavity and a large clot was found in the splenic bed. He suffered an iatrogenic splenic injury and ultimately had his spleen removed as the bleeding was unable to be controlled. A bowel perforation in the descending colon was identified and a Hartmann’s procedure was performed with colostomy. Mr Stewart was admitted to the Intensive Care Unit post-operatively where he was intubated and ventilated.
[22]
On 6 April 2016, Mr Stewart underwent a further laparotomy and small bowel repair and returned to the Intensive Care Unit.
[23]
Between 8 April and 11 April 2016, Mr Stewart suffered multiple episodes of cardiogenic pulmonary oedema, bradycardia, and hypotension. On 10 April 2016 he suffered asystole cardiac arrest, requiring two to three minutes of cardio-pulmonary resuscitation before the return of spontaneous circulation.
[24]
On 19 April 2016, Mr Stewart was transferred to the Royal Brisbane and Women’s Hospital (RBWH). The report of a CT scan of his brain undertaken on 26 April 2016 stated:

“The appearances are suggestive of a combination of subacute and chronic cerebral ischaemic changes in the left cerebral hemisphere, predominately in the periventricular region, basal ganglia and left frontal parasagittal region. In the setting of recent perioperative arrest, the left frontal changes in particular may represent watershed subacute cerebral ischemia.”

Injuries suffered by Mr Stewart

[25]
The MNHHS admits that Mr Stewart has suffered the following injuries because of his treatment at the Redcliffe Hospital:
1. brain damage;
2. hemiparesis, confusion, and dysphasia;
3. right shoulder subluxation;
4. right homonymous hemianopia (loss of visual field);
5. need for a colostomy bag;
6. pain through the right side of his body and no active movement in the right upper limb, contractures of the right wrist, and increased tone in his figures and right elbow;
7. right lower limb contractures; and
8. speech and motor difficulties.
[26]
As a result of his brain damage, Mr Stewart suffers from receptive and expressive aphasia, being an impairment of his ability to comprehend and produce language. In light of this, there is a dispute as to the level of Mr Stewart’s cognition: that is, the extent to which he is able to understand questions that he is asked and to consider his response and communicate that response. I will return to this dispute when I consider the question whether damages should be assessed on the basis that Mr Stewart will live in his own home.

Life expectancy

[27]
The statistical life expectancy for a 71-year-old male would be a further period of between 15.49 years and 15.87 years depending on which statistical tables are used. Nothing turns on this relatively minor difference.
[28]
The parties agree that Mr Stewart’s life expectancy has been reduced by the injuries he suffered because of the negligence of the MNHHS and his pre-existing comorbidities. The issue in dispute is the extent of that reduction.
[29]
In assessing Mr Stewart’s life expectancy, I am required to consider all the evidence relevant to that issue, including the opinions of experts which they are qualified to give. Having considered that evidence, I must come to my own conclusion on the question, not being bound by any expert opinion.^[2]

Relevant evidence

[30]
Evidence on life expectancy was given by the following expert witnesses:
1. Dr Jan Rotinen Diaz, a rehabilitation physician called by Mr Stewart;
2. Dr Jeff Karrasch, a general physician called by the MNHHS; and
3. Professor David Straus, an expert in the statistical calculation of life expectancy called by the MNHHS.

Dr Rotinen Diaz

[31]
Dr Rotinen Diaz was initially briefed by the MNHHS to assess Mr Stewart for the purposes of this proceeding. Several weeks before the trial commenced the MNHHS indicated that it would not call Dr Rotinen Diaz in its case. In that circumstance, Dr Rotinen Diaz was called by Mr Stewart.
[32]
Dr Rotinen Diaz prepared a report dated 2 December 2022, almost a year prior to the trial. In that report, Dr Rotinen Diaz:
1. agreed with a report of Dr Karrasch which concluded that Mr Stewart’s statistical life expectancy would reduce by 30% due to the presence of pre-existing cardiovascular risk factors;
2. estimated that the stroke suffered by Mr Stewart would further reduce Mr Stewart’s life expectancy by 5.5 years;
3. concluded that Mr Stewart’s life expectancy from age 70 was reduced to 5.9 years.
[33]
On 31 August 2023, Dr Rotinen Diaz participated in a conclave of the medical experts addressing the issue of life expectancy. The report of that conclave stated Dr Rotinen Diaz’s opinion to be that Mr Stewart had a life expectancy of less than five years.
[34]
The conclave report recorded that Dr Rotinen Diaz’s opinion aligned generally with Dr Karrasch concerning the assessment of the effect of Mr Stewart’s pre-existing health conditions on his present life expectancy; that is, he considered those pre-existing conditions to be sufficiently serious as to impact on Mr Stewart’s present life expectancy in a measurable way.
[35]
During the conclave Dr Rotinen Diaz stated that the seriousness of the disabilities Mr Stewart suffered from the stroke required a heavy increase in the approximately one third reduction in life expectancy identified in a study considered by the experts (the Peng et al study). Dr Rotinen Diaz referred to a study relied on by Professor Strauss (the Shavelle et al study) which reported on life expectancies for stroke survivors according to the severity of the stroke-related disabilities as categorised by the modified Rankin Scale. At the conclave, the experts agreed that Mr Stewart fell within grade 5 on the modified Rankin Scale, that being the most severe stroke-related disabilities. On that basis, Dr Rotinen Diaz stated that it was appropriate to use the results of the Shavelle et al study which indicated that, due to the severity of the symptoms of the stroke suffered by Mr Stewart, his life expectancy had reduced by approximately two-thirds. That was the basis of Dr Rotinen Diaz’s opinion at the conclave that Mr Stewart’s life expectancy was less than five years.
[36]
Following the conclave, Dr Rotinen Diaz took part in a conference with Mr Stewart’s legal representatives and signed a memorandum recording the matters discussed in that conference. That memorandum stated Dr Rotinen Diaz’s opinion that a key issue not discussed during the conclave was what he considered to be the likely improvement in Mr Stewart’s condition if he was to move from Ozanam into his own home and receive comprehensive care and therapy.^[3] Dr Rotinen Diaz’s belief was that, given Mr Stewart’s condition was likely to improve, Mr Stewart’s life expectancy is likely to be higher than the 5.9 year estimate given in his December 2022 report, although it is difficult to calculate how much higher.
[37]
In cross-examination, Dr Rotinen Diaz referred to the possibility of Mr Stewart moving into his own home as a factor that would have a beneficial impact on life expectancy but said that he could not quantify its effect. Ultimately, Dr Rotinen Diaz’s evidence was that his opinion on Mr Stewart’s life expectancy had not changed from the figure of 5.9 years stated in his December 2022 report.

Dr Karrasch

[38]
Dr Karrasch prepared a report dated 16 June 2020, more than three years prior to the trial. He described the trajectory of Mr Stewart’s pre-existing conditions as follows:

“The plaintiff’s intra-abdominal adhesions causing the small bowel obstruction were chronic and permanent and would have caused persistent and increasing symptoms of gut pain and obstruction on a regular and in all probability increasingly frequent basis.

The diffuse vascular disease, contributed to by the multiple risk factors of diabetes, hypercholesterolaemia, hypertension, and particularly his continued cigarette smoking would similarly have progressed inexorably with an increasing risk of heart attack, stroke or death within a few years, and has of course been demonstrated to have done so since the incident.

This outlook is worsened by both his depression and his non-adherence to prescribed medications.”

[39]
Dr Karrasch assessed Mr Stewart’s life expectancy at the date of the stroke when Mr Stewart was 63.7 years old. Dr Karrasch’s opinion was that the combination of Mr Stewart’s pre-existing comorbidities reduced Mr Stewart’s statistical life expectancy at that age (20.9 years) by approximately 15 years to 5.9 years. Dr Karrasch also considered that the devastating effect of the stroke suffered by Mr Stewart further reduced his life expectancy by at least another two years. That is, Dr Karrasch’s opinion in June 2020 was that Mr Stewart had a life expectancy of only 3.9 years from age 63.7, or a total life expectancy of 67.6 years.
[40]
Dr Karrasch also participated in the conclave of life expectancy experts. The conclave report states Dr Karrasch’s opinion as to Mr Stewart’s life expectancy from age 71 to be:
1. one to two years having regard to both the impact of the injuries caused by his treatment at the Redcliffe Hospital and his pre-existing conditions;
2. if the injuries caused by his treatment at the Redcliffe Hospital had not occurred, three years (reflecting the opinions stated in his June 2020 report on the serious impact of Mr Stewart’s pre-existing conditions).
[41]
In cross-examination, Dr Karrasch explained that the process by which he had estimated the reduction in Mr Stewart’s life expectancy was not a mathematical exercise. It was based upon his consideration of peer-reviewed literature addressing the statistically determined average outcomes on life expectancy for the various conditions suffered by Mr Stewart. Those different conditions affect Mr Stewart concurrently, not in a cumulative way. Dr Karrasch said 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 Mr Stewart’s life expectancy.
[42]
Dr Karrasch accepted that, by the time of trial, Mr Stewart had already exceeded the estimated life expectancy stated in his June 2020 report. He explained there will always be outliers who exceed expected life expectancy derived from statistical averages. Dr Karrasch ultimately adhered to the opinion he expressed in the conclave report that Mr Stewart has a life expectancy of one to two years.
[43]
Dr Karrasch was referred to aspects of Mr Stewart’s health since the stroke including: that he had not had any acute respiratory illness over the past four to five years; that he had not been hospitalised over the past five years; that he had not had any adverse cardiopulmonary event over the past five years; and that he had not had any adverse vascular event since the injuries resulting from his treatment at the Redcliffe Hospital. Dr Karrasch accepted that those matters were positive indicators for Mr Stewart’s life expectancy but they did not change his estimate, saying that Mr Stewart:

“… still has a list of several life-threatening conditions which could get him into trouble imminently. I mean, it’s nice that he hasn’t had some of them, but that doesn’t mean that he’s not going to have tomorrow.”

[44]
In his re-examination, Dr Karrasch said he thought it was extremely unlikely that Mr Stewart’s condition would ever improve in the manner suggested by Dr Rotinen Diaz in the memorandum referred to in [36] above. However, based on the statistical evidence set out in the Shavelle et al study, Dr Karrasch stated that if Mr Stewart’s condition did improve in the manner Dr Rotinen Diaz referred to it would increase his life expectancy by one year.

Professor Strauss

[45]
Professor Strauss prepared a report dated 1 August 2023. In that report, he relied on statistical analysis in the Shavelle et al study indicating 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 for a 70-year-old man in the general population. Professor Strauss 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 Mr Stewart’s life expectancy to 5.7 years.
[46]
Professor Stewart also referred to the elevated long-term mortality risk and reduced life expectancy resulting from Mr Stewart having experienced a myocardial infarction during his treatment at the Redcliffe Hospital. Based on statistical analysis in the Smolina et al study, Professor Strauss considered that the effect of the myocardial infarction was to further reduce Mr Stewart’s life expectancy by 0.4 years to 5.3 years.
[47]
Professor Strauss considered the additional effect of Mr Stewart’s other pre-existing conditions on his life expectancy to be minimal once account is taken of the effect of his stroke and myocardial infarction.
[48]
Professor Strauss expressed the same opinion in the conclave, namely that Mr Stewart’s life expectancy was 5.3 years. However, the conclave report further stated that Professor Strauss:

“… thought it was not practical to make a numerical adjustment for the more serious of the co-morbidities. He did suggest that the result which he arrived at might thus be too high by a number of years. He did concede that Dr Karrasch's clinical experience could inform the numbers and thus was prepared to make some modest downward adjustment without being specific noting that he and Dr Karrasch were not far apart in their estimation.”

[49]
In cross-examination, Professor Strauss appeared to depart from the concession recorded in the conclave report. He described Dr Karrasch’s approach as unsatisfactory because there was no data available on the mortality rates for some of the pre-existing conditions which Dr Karrasch had regard to in his estimate of life expectancy. Professor Strauss stated that one should be cautious in accepting an estimate based on a kind of clinical intuition where the effect on life expectancy cannot be quantified by reference to data-based analysis. Professor Strauss confirmed his view was that the effect of Mr Stewart’s stroke was catastrophic and that the impact of other pre-existing conditions was probably not significant.
[50]
Upon re-examination, Professor Strauss repeated that, in the absence of statistical evidence of the impact of Mr Stewart’s pre-existing conditions on his life expectancy, he would not wish to make a numerical adjustment to his estimate of life expectancy to take account of those pre-existing conditions.

Consideration

[51]
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 the plaintiff’s individual health and circumstances. However, a clinical assessment does not ensure a precise and correct answer either.^[4]
[52]
In this case there is not a significant difference between two of the experts who adopt the different forms of assessment. Professor Strauss 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 Mr Stewart. As Dr Rotinen Diaz accepted, his estimate from age 70 would need to be reduced to give a life expectancy from age 71. I accept the submission of the MNHHS that this reduction should be of the order of 9 months giving an estimate in the range of 5 years from age 71.
[53]
I note that, contrary to a submission by the MNHHS, the estimate given by Dr Rotinen Diaz in his December 2022 report took account of both the impact of the stroke and the impact of Mr Stewart’s pre-existing conditions.
[54]
I am not persuaded that the approach adopted by Dr Karrasch gives a reliable basis to estimate Mr Stewart’s life expectancy. When Dr Karrasch provided his June 2020 report, Mr Stewart had already exceeded the estimated total life expectancy set out in that report (67.6 years) and has now exceeded that initial estimate by some years. With respect to Dr Karrasch, his explanation that this is explained on the basis that Mr Stewart is some sort of statistical outlier overlooks the fact that, as he acknowledged, he did not use a mathematical process to estimate the reduction in Mr Stewart’s life expectancy due to his pre-existing conditions. It seems more likely to me that the result of Dr Karrasch’s approach has been to produce an overly pessimistic assessment of Mr Stewart’s life expectancy. This is consistent with Dr Karrasch not taking account of positive aspects of Mr Stewart’s health condition over the past five years.
[55]
In the end, it seems to me that the most reliable evidence upon which to base my assessment of Mr Stewart’s life expectancy are the estimates to which Professor Strauss and Dr Rotinen Diaz adhered in their oral evidence (adjusting Dr Rotinen Diaz’s evidence as already noted). I do not accept that Dr Karrasch’s evidence concerning the impact of Mr Stewart’s pre-existing conditions, or statements by Professor Strauss and Dr Rotinen Diaz in the conclave report about the effect of those pre-existing conditions which do not accord with the position they ultimately adopted in their oral evidence, warrants a further reduction in my assessment of Mr Stewart’s life expectancy.
[56]
Having considered all the evidence, I adopt a life expectancy of 5 years from age 71.
[57]
I do not accept that an additional year should be added to this figure to take account of the possibility that if Mr Stewart was to receive comprehensive care and therapy in his own home his condition might improve to a level 4 on the modified Rankin Scale. I address the question whether Mr Stewart’s condition is likely to improve to that degree later in these reasons.

Should damages be calculated based on Mr Stewart residing in his own home?

[58]
Mr Stewart is entitled to recover damages for the cost of future care which is reasonably necessary and which flows from the injuries he suffered from his treatment at the Redcliffe Hospital. The question is not what would be ideal.^[5] The Court’s task is to make a fair and reasonable compensation as between the parties.^[6] In the present circumstances, Mr Stewart contends that it is reasonably necessary for him to be cared for in his own home.
[59]
A matter to be considered in determining whether proposed future care is reasonably necessary is the cost of that proposed care weighed against the health benefits to Mr Stewart. Care which involves significant costs and has only slight or speculative health benefits will likely be unreasonable, particularly if an alternative form of care is available which is less costly but will afford equal or only slightly lesser health benefits. Where the factors are more evenly balanced, the task of determining whether proposed care is reasonable becomes more difficult.^[7]
[60]
In Wieben v Wain,^[8] it was observed that, depending upon the circumstances, it may be unreasonable to award a plaintiff damages on the basis of being cared for in his own home simply because he prefers that course to being cared for at an institution. In that case, the Court identified two additional considerations which made it reasonable that the plaintiff’s wish to be cared for in his own home be accommodated in the assessment of his damages: first, the serious adverse effect that nursing home care would likely have on the plaintiff where there was evidence that his previous experience of some years in an institution had depressed him to the point of his contemplating suicide; secondly, the plaintiff had married and was living with his wife at the time the case was decided, something which the Court concluded almost certainly would not have occurred had he remained in an institution and which would be largely nullified if he returned to one.
[61]
The questions that arise for consideration in determining whether it is reasonably necessary that Mr Stewart be cared for in his own home are: What are the relevant benefits which Mr Stewart will derive from being cared for in his own home? Would Mr Stewart’s continued residence and care at Ozanam 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 of Mr Stewart being cared for in his own home be commensurate with the extra cost?^[9]
[62]
In this case, it was submitted for Mr Stewart that it is reasonable to assess his damages on the basis that he will live in his own home, having regard to the following factors:
1. it is Mr Stewart’s wish to leave Ozanam and live in his own home;
2. Mr Stewart’s quality of life will be substantially improved in his own home because he will be able to spend substantially greater time with his family, in particular his son Jesse, and be able to keep a dog. In this way, his environment will resemble much more closely the living and family situation he had before he was injured;
3. improvement in Mr Stewart’s quality of life is likely to lead to improvements in his mood and psychological health, in turn leading to him engaging in more activities, both therapeutic and recreational;
4. Mr Stewart is likely to derive significant physical health benefits from living in his own home because most of the therapy proposed is to be carried out by dedicated carers who would be attending Mr Stewart in his own home, overseen by allied health professionals. This is to be contrasted with the kind of care that can be provided in the nursing home setting, where carers have responsibilities to multiple residents.
[63]
The MNHHS submits that, having regard to the degree to which Mr Stewart’s cognitive functioning has been impaired, I could not be satisfied as to his intentions or wishes. It further submits that the evidence does not support a finding that living in his own home will result in functional or cognitive improvements which would make it a reasonable basis for the assessment of damages. In any event, the MNHHS submits, there is not a sufficient basis to find that on the balance of probabilities, Mr Stewart is likely to move out of Ozanam to his own home.

Communication of Mr Stewart’s wishes

[64]
It was submitted for Mr Stewart that his desire to live in his own home may be inferred from his statements to others, his behaviour including his tendency to immerse himself in photographs from his past life and possessions that remind him of that, and the common-sense starting point that most people prefer the privacy and comfort of their own home.
[65]
Ms Schwarzman and Jesse said that they can communicate with Mr Stewart by asking yes/no questions which elicit responses from Mr Stewart. Sometimes the questions are accompanied by gestures, such as pointing to a photograph or object. Ms Schwarzman and Jesse interpret Mr Stewart as saying “yes” by making a rising sound, accompanied with a vertical nod, and as saying “no” by making a low sound accompanied with a horizontal shake of the head. Videos showing Ms Schwarzman asking questions and Mr Stewart responding in this manner were tendered as evidence. In one of those videos, Mr Stewart appears to give a positive response when Ms Schwarzman asks him whether he would like to stay in a home where Jesse and a dog could stay with him. In another, Mr Stewart appears to give a negative response when Ms Schwarzman asks him: “Do you want to stay here” – referring to Mr Stewart’s room at Ozanam where the video was recorded.
[66]
Emily Bathersby, who has been Mr Stewart’s treating physiotherapist since February 2019, said she asks yes/no questions and Mr Stewart indicates “yes” by nodding his head and making a sound which is positive in nature, or “no” by shaking his head and making a sound which is more negative in nature.
[67]
Emma Orr is a care assistant at Ozanam who has provided care to Mr Stewart for five days a week over a period of four years. Ms Orr has a friendly relationship with Mr Stewart. Ms Schwarzman described observing Ms Orr’s interactions with Mr Stewart and being astounded at how much time she had for him and how much Ms Orr was able to understand Mr Stewart and to communicate with him.
[68]
Ms Orr described Mr Stewart making an “mmm” or “ah” sound which escalates for “yes”, accompanied with a nod of his head. She described how Mr Stewart shakes his head and makes a different pitched sound for “no”. Ms Orr also described some simple non-verbal methods of communication that Mr Stewart has adopted, such as tapping his buzzer to indicate he wants her to clean his teeth. Ms Orr described how Mr Stewart will generally become agitated and scream if she takes the hoist into his room, but when she explains to him that he is going out with Jesse or Ms Schwarzman he is happy in response.
[69]
Ms Cameron, a speech pathologist who assessed Mr Stewart for the purposes of this proceeding, observed that Mr Stewart was able to indicate a reasonably clear yes/no response for very basic needs and wants. He was able to reliably answer personal yes/no questions but was unable to reliably follow one-stage commands or answer abstract yes/no questions. The accuracy of Mr Stewart’s responses decreased with increasing complexity and abstract questions. She considered that Mr Stewart has difficulty following conversations that are not related to the “here and now”.
[70]
Ms McCorkell, a neurological physiotherapist who provided reports for this proceeding, stated that Mr Stewart provided “yes” and “no” answers through a nod or shake of his head during her interview, although she observed these responses to be inconsistent.
[71]
Ms Coventry, an occupational therapist, observed from her assessment:

“Due to Mr Stewart’s severe receptive and expressive communication impairment a formal cognitive screening assessment was unable to be completed. Mr Stewart appeared to understand basic questions e.g. ‘Do you want your lunch?’ He responded to questions by nodding his head. Mr Stewart was non-verbal throughout the assessment, gesturing or pointing with his left hand to indicate what he wanted. Mr Stewart was unable to read during the assessment. He showed photos of himself and his family from the past but was unable to talk about them and discuss who was in them or where they were taken.”

[72]
Dr Rotinen Diaz accepted that Mr Stewart suffers from severe receptive and expressive aphasia. He stated that Mr Stewart can only produce simple guttural sounds as well as “yes” or “no” and simple words as answers to direct questions but has some understanding of familiar and simple phrases.
[73]
Dr Rotinen Diaz considered this understanding extended to questions about choice of residence. In his December 2022 report, Dr Rotinen Diaz stated:

“Mr Stewart gave me a very clear verbal and non verbal answer when I asked where he would like to live. He does not want to live in a nursing home and would like to live in a private dwelling.”

[74]
In his supplementary report dated 30 August 2023, Dr Rotinen Diaz stated:

“I asked Mr Stewart if he was happy living at the Ozanam villa and he produced a very strong and clear ‘no’. At the same time his body language changed, and he appeared angry and agitated. I repeated this question three times and I obtained the same answer on all three occasions.”

[75]
Ms Coles, an occupational therapist, observed Mr Stewart confirm information provided by Ms Schwarzman by:

“indicating ‘yes’ or ‘no’ by obvious facial expression, nodding or shaking his head or pointing or otherwise indicating responses as appropriate.”

[76]
Like Dr Rotinen Diaz, Ms Coles reported that Mr Stewart indicated a desire to live in his own home.
[77]
It was submitted for Mr Stewart that, under s 92 of the Evidence Act 1977 (Qld), the videos of him responding to Ms Schwarzman’s questions and the documented communications set out in the expert reports are admissible for the truth of the statements contained in those documents. If that is accepted, the use to be made of that evidence is a matter of weight.
[78]
The weight I should give to this evidence of Mr Stewart’s expression of his wishes is impacted by medical evidence of the cognitive impairment which he suffered because of the stroke.
[79]
Professor Chambers, a neurologist, described the aphasia which Mr Stewart suffered because of his left hemisphere stroke as a significant post-stroke cognitive impairment. He observed that with a large stroke involving the left hemisphere as occurred in Mr Stewart, his cognitive impairment could be of the order of 75%. He described Mr Stewart as having profound cognitive impairments.
[80]
Ms Anderson, a neuropsychologist, undertook clinical testing. In summary, Ms Anderson reported the results of that testing to be:
1. Mr Stewart has profound persisting expressive and receptive aphasia. He was unable to respond to simple questions or even single words consistently and reliably, most likely due to the aphasia. Mr Stewart therefore cannot be demonstrated to reliably comprehend even at a single word level, let alone more complex information;
2. Mr Stewart would frequently perseverate on answers: that is, he would repeat the same response regardless of the instructions;
3. it may be possible that Mr Stewart has practised social responses to questions and can indicate, albeit unreliably, familiar items. However, he could not demonstrate any more complex cognitive skills;
4. there appeared to be more generalised cognitive deficits than the severe expressive and receptive aphasia. That is because Mr Stewart was unable to complete tasks which, in Ms Anderson’s experience, can usually be completed by individuals with localised left cerebrovascular events (i.e., the location of Mr Stewart’s severe stroke and which is responsible for language). Put another way, some of the testing engaged in by Ms Anderson were intentionally selected to involve other parts of Mr Stewart’s brain (right-sided function responsible for visual) which were not affected by the stroke, but his results were poor and not at the level expected.
[81]
Based on those results, Ms Anderson expressed the following opinions:
1. Mr Stewart did not have the capacity to consistently understand even the most basic question nor to consistently indicate a clear response;
2. consequently, she had no way of assessing Mr Stewart’s insight and understanding of his health condition and living situation;
3. she had concerns about accepting assent in an individual who clearly has difficulties in comprehending information in various forms and is perseverative;
4. Mr Stewart’s repetitive behaviour had been observed by several examiners and might reflect the responses to the gestures of the person posing questions rather than Mr Stewart’s own opinion;
5. essentially, it was not possible to demonstrate that Mr Stewart has any insight into his situation nor his views on the subject.
[82]
It was submitted on behalf of Mr Stewart that I should not accept the evidence of Ms Anderson for reasons which included:
1. Ms Anderson’s observations being based on his performance on tests administered for a period of less than one hour on a single occasion;
2. it being impossible to determine whether and to what extent Mr Stewart’s visual deficits may have limited his performance on the specific tasks he was asked to perform by Ms Anderson;
3. the possibility that Mr Stewart’s ability to hear and understand Ms Anderson’s voice might have been compromised in circumstances where she may have been wearing a mask due to the requirements of COVID precautions in place at Ozanam at the time the tests were administered;
4. the possibility that Mr Stewart was mentally disengaged from the testing process in circumstances where it was planned that he would go outside with Jesse and a new puppy, but Ms Anderson insisted on the testing being performed indoors;
5. the opinion of the neurologist, Professor Chambers, that Mr Stewart’s aphasia raised difficulties in accepting the validity of the neuropsychological testing performed by Ms Anderson.
[83]
As to the last of these matters, Professor Chambers said in cross-examination:^[10]

“… in a person who has receptive aphasia - in other words, severe comprehension deficits … they’re going to have great difficulty in actually understanding what is required of them. So, as I’ve said in one or more of my memorandums, I think neuropsychological testing is fraught with difficulty in someone who has such severe aphasia.”

[84]
I accept this evidence of Professor Chambers. It seems to me that Mr Stewart’s receptive aphasia casts doubt on whether the neuropsychological testing performed by Ms Anderson has produced a reliable indication of the level of Mr Stewart’s insight into his situation or his level of cognitive functioning beyond his difficulties in understanding and expressing language.
[85]
It was submitted for Mr Stewart that, even though it may be accepted that he has no real way of communicating an understanding of the details of what living in his own home would entail in his circumstances, it should not be assumed that, just because he cannot articulate it, Mr Stewart lacks an appreciation of his circumstances and the broad difference between living in his own home and living in a nursing home. It was submitted that a deficit in language comprehension does not equate to a deficit of general comprehension and that, absent any evidence that Mr Stewart is incapable of understanding the difference between living at Ozanam and living in his own home, the evidence that Mr Stewart has expressed his wish to live in his own home should be accepted.
[86]
While I do not assume that Mr Stewart is unable to appreciate the broad difference between living at Ozanam and living in his own home, that does not make it easier to assess, in light of the evidence set out above, whether the expressions of his desire to live in his own home reflect a proper understanding of everything that might be involved in such a move, including: the prospect that he would no longer be cared for by staff at Ozanam with whom he had developed a positive relationship, such as Ms Orr; the prospect that he might not gel particularly well with new carers; and the prospect that his medical conditions might require that he return to full-time care in a residential facility which he found less to his liking than Ozanam. Having regard to the evidence of the impact of Mr Stewart’s receptive and expressive aphasia, it is difficult to assess Mr Stewart’s understanding of such matters which involve considerations beyond the “here and now”. In any event, each of Ms Schwarzman, Ms Coles and Dr Rotinen Diaz confirmed in cross-examination that they had not discussed such matters with Mr Stewart when they asked whether he wished to move out of Ozanam.
[87]
Ultimately, the evidence concerning the extent and impact of the impairment of Mr Stewart’s receptive and expressive communication skills causes me concern as to whether Mr Stewart’s expressions of his wish to live in his own home reflect a full understanding of what such a move might mean for his future care. This reduces the relative importance of that evidence somewhat when compared to evidence of the benefits Mr Stewart would receive from being cared for in his own home. Nevertheless, in determining the proper basis for the assessment of Mr Stewart’s damages, I have proceeded on the basis that Mr Stewart would prefer to live in his own home rather than at Ozanam even if he does not appreciate all the potential difficulties such a move might pose for him.

Mr Stewart’s present condition and the benefits of living in his own home

Lay evidence

Ms Orr

[88]
Ms Orr gave evidence concerning Mr Stewart’s level of mobility and his engagement in activities offered to residents of Ozanam. She said that for years Mr Stewart has refused to be transferred out of bed unless he was going to go outside with Ms Schwarzman or Jesse. There was a relatively brief period when, following a conversation with Jesse about Mr Stewart’s love of music, Ms Orr was able to persuade him to get out of bed to attend music concerts arranged by Ozanam’s activities team. That arrangement also involved an Ozanam staff member taking Mr Stewart for a walk outside in his wheelchair once the concert had finished. This practice ceased after one occasion when the staff member was unable to take Mr Stewart outside for a walk. Mr Stewart then returned to refusing to leave his bed unless he was informed that his family were coming to take him outside.
[89]
Mr Stewart eats all his meals at Ozanam in his room and watches television. He also spends a great deal of time looking at photographs from his earlier life, including photographs of his family. When Ms Orr is in his room Mr Stewart often points to photographs displayed on the wall or shows Ms Orr a photograph which he is holding. Ms Orr perceives this to be an indication by Mr Stewart that he wants to talk about his family.

Ms Bathersby

[90]
Ms Bathersby, through her employment at a practice called Mobile Rehab, has been providing physiotherapy to Mr Stewart in his room at Ozanam since February 2019. Those sessions occurred on a weekly basis, except when Ms Bathersby was unable to attend at Ozanam due to COVID restrictions or when she took annual leave.
[91]
Ms Bathersby also referred to Mr Stewart often pointing to photographs around his room when she attends for treatment sessions. Like Ms Orr, Ms Bathersby interprets this as Mr Stewart attempting to engage her in conversation during her visits.
[92]
By reference to her treatment notes, Ms Bathersby described the type of exercises she has Mr Stewart perform during his physiotherapy sessions. Mr Stewart usually performs those exercises when he is lying in bed. On the rare occasion when Mr Stewart has done a session sitting in his wheelchair, Ms Bathersby has modified the exercises because of more limited space. Ms Bathersby has never been prevented from undertaking a treatment session because of space constraints in Mr Stewart’s room.
[93]
As to Mr Stewart’s physical condition, Ms Bathersby confirmed that she had observed some improvement over the first 12 months she treated him up to about February 2020. She said his condition remained stable over the second 12 months of treatment up to about February 2021. I note that this period was particularly affected by COVID restrictions. Over the full period she has treated Mr Stewart, Ms Bathersby has observed a small improvement in the strength of his left arm and his left leg but said she had not seen any notable improvement in terms of his overall function.
[94]
The treatment sessions provided by Ms Bathersby have generally lasted for between 30 and 40 minutes. Mr Stewart sometimes becomes drowsy or drifts off to sleep towards the end of a session. Ms Bathersby said she had seen that happening more commonly in the 12 months up to about July 2023. Ms Bathersby was unable to say whether the length of her treatment sessions with Mr Stewart reflected the limit of his stamina or his tolerance for treatment. She said that if longer sessions were provided it would be possible to provide forms of treatment which did not require Mr Stewart to be as actively engaged, such as stretching, range of motion exercises and positioning.
[95]
In the time Ms Bathersby has been treating Mr Stewart, there have been occasions when he has been reluctant to participate in physiotherapy sessions. Ms Bathersby said Mr Stewart’s reluctance was usually explained by factors not related to the physiotherapy itself. She gave the example of occasions when she has attended and Mr Stewart has been pointing to, or pulling on, his colostomy bag to indicate that it was causing him discomfort. Ms Bathersby determined it was not appropriate for her to go ahead with the planned treatment session in those circumstances.

Ms Schwarzman

[96]
Ms Schwarzman gave evidence that, during his initial period of rehabilitation at the Geriatric and Rehabilitation Unit (GARU) at the RBWH, she had observed Mr Stewart walking with the aid of a walking frame.
[97]
When she was referred to Mr Stewart’s refusal during a mobility review in early 2020 to trial sitting on the edge of the bed or to use a standing hoist, Ms Schwarzman said that, although she had tried to explain to Mr Stewart the importance of using the standing hoist to assist him to bear weight on his injured leg, Mr Stewart did not appear to want to use the hoist from that time. Ultimately, Ms Schwarzman had to accept Mr Stewart’s decision about that.
[98]
As to Mr Stewart’s unwillingness to participate in activities at Ozanam, Ms Schwarzman said he indicated to her that he does not enjoy participating in the activities. Ms Schwarzman attributed this, in part, to Mr Stewart’s inability to converse with the other residents or Ozanam’s activities staff. She said that the head of the Ozanam’s activities team, a woman named Trudi, informed her that they were aware that Mr Stewart did not like taking part in the group activities and that they were proposing to put a regular schedule in place to take him out each week on his own. Ms Schwarzman described Trudi as being an outgoing, upbeat person and someone who could interact with Mr Stewart in a way that he appeared to enjoy. She understood that Trudi had taken Mr Stewart out on a regular basis for a couple of months before she became too busy.

Jesse Stewart

[99]
Jesse gave evidence that Mr Stewart had considerably more strength during his initial period of rehabilitation at the RBWH than he presently has. He described Mr Stewart as having deteriorated physically over the past few years.
[100]
Jesse said that he visits Mr Stewart at Ozanam on a weekly basis. He described taking Mr Stewart out to a park around the corner from Ozanam where they sit down on camping chairs and watch Jesse’s dog run around. He said that he also takes Mr Stewart out for a meal and, more recently, to the cinema. He also takes Mr Stewart for walks in his wheelchair.
[101]
When asked about his intention with respect to visiting Mr Stewart if he moved to his own home, Jesse expressed his desire to live with his father again for at least the first months to get Mr Stewart set up after the move, and then probably live back and forth between his mother’s house and his father’s house like he did when he was younger. Jesse said that, for the limited time he and Mr Stewart have left together, he wanted to try and make his father’s life as good as it could possibly be.
[102]
This evidence is relevant because, whatever treatment or therapy any expert might recommend, if Mr Stewart’s wishes must be respected if he indicates that, despite encouragement, he does not wish to be transferred out of bed or to otherwise engage in therapy. Mr Stewart cannot be forced to do something he does not wish to do. Mr Stewart must be motivated to get up out of bed and otherwise engage in therapy. His willingness to get up when informed that Jesse is coming to visit suggests that Jesse’s presence works as a powerful motivator for Mr Stewart in this regard.
[103]
It was suggested to Jesse in cross-examination that his evidence about wanting to live with Mr Stewart was financially motivated because he stood to benefit from his father’s estate. Jesse acknowledged that he was aware that a damages award calculated on the basis that Mr Stewart will live in his own home would be far greater than if he continues to reside at Ozanam. However, he said that he did not spend time dwelling on what would happen after his father dies. He wants to live with his father to spend time with him and support him. When it was suggested to Jesse that he had never spoken about his intention to live with Mr Stewart to any of the experts, Jesse said that he had talked to his mother and to other people about his intention.
[104]
In final submissions, the MNHHS argued that Jesse’s evidence of his intention to live with Mr Stewart was a recent invention, motivated by the prospect of financial gain, and should be rejected. In support of that position, the MNHHS stated that the prospect of Jesse living with his father full time, even for a short period, had not been identified by any expert when considering potential care models. That submission overlooks the following exchange during the cross-examination of Ms Coles, which occurred the day before Jesse gave evidence:^[11]

“And it wasn’t your impression by what you were told by her or what she did tell you that Jessie was going to be there all the time providing care to him?---It wasn’t my impression that Jessie was going to provide care. It was my impression that he wanted to live with his father in the - if he had his own home away from Ozanam. So to - to be there and live with him, but not to provide the - the physical care.”

[105]
Ms Coles’ awareness of Jesse’s desire to live with Mr Stewart if he resided in his own home weakens the suggestion of recent invention.
[106]
The MNHHS further submitted that Jesse was evasive in answering questions, feigned a lack of understanding and was dishonest in his evidence as to how often he has visited Mr Stewart.
[107]
The attack on Jesse’s credit, particularly the assertion that he was financially motivated in giving his evidence, was regrettable. It is clear from the evidence that Jesse and Mr Stewart enjoyed a close relationship before Mr Stewart suffered the stroke. Mr Stewart visited Ms Schwarzman and Jesse during the week, frequently sleeping on their couch so he could spend time with Jesse. Jesse would in turn stay with Mr Stewart on weekends. They went camping regularly on school holidays. Given that relationship, it is entirely understandable that Jesse would now want to provide as much assistance to Mr Stewart as he can, including by living with him if that becomes possible.
[108]
I accept, based on evidence of Ozanam’s sign-in records, that Jesse’s evidence of having visited his father on a weekly basis is not accurate. Those records show that in the period from 1 April 2022 to 31 March 2023, Jesse visited Mr Stewart on 16 occasions, or about once every three weeks. From 1 April 2023 to 31 October 2023, Jesse visited Mr Stewart on 16 occasions, about once every fortnight. Jesse was obviously mistaken in his recollection as to how frequently he visited. I do not accept, however, that Jesse dishonestly exaggerated the frequency of his visits for the purpose of assisting Mr Stewart’s case. Nor does the actual frequency of his visits shown by the sign-in records cause me to doubt the genuineness of Jesse’s stated intention to live with Mr Stewart.

Other evidence

[109]
There was evidence, in the form of a photograph in Ozanam’s monthly newsletter for September 2023, that Mr Stewart recently participated in an outdoor activity arranged by Ozanam’s activities team where he and other residents had fed pigeons in the park adjacent to Ozanam. It seems clear from the other evidence that Mr Stewart’s participation in that activity was an exception and that, at least for the most part, he spends his time lying in his bed unless he is told that his family is coming to visit him.

Expert evidence

[110]
Mr Stewart’s present lack of mobility raises issues for his physical health and his psychological health. These matters were addressed by Dr Rotinen Diaz (rehabilitation physician), Ms McCorkell (neurological physiotherapist) and Dr Gray (psychiatrist). Ms Coles (occupational therapist) gave more general evidence on what she considered to be the impact which continuing to reside at Ozanam would have on Mr Stewart’s quality of life.

Dr Rotinen Diaz

[111]
In his first report prepared in December 2022, Dr Rotinen Diaz thought that Ozanam might not be the best environment to maintain or improve Mr Stewart’s mental wellbeing or his quality of life because it lacks meaningful or fulfilling cognitive or physical stimuli. He stated that although Ozanam provides a safe environment for Mr Stewart, it is not adequate to his needs because it does not allow him to maintain or improve his physical or cognitive capabilities. In Dr Rotinen Diaz’s opinion, Mr Stewart is not receiving a reasonable amount of physical therapy, occupational therapy or speech therapy at Ozanam. He said that the further therapy which he considered appropriate for Mr Stewart would be targeted to the prevention of further complications such as joint contractures, skin pressure areas, physical deconditioning and to improving general cardiovascular health, osteoporosis prevention and pain control as well as general well-being and mood improvement.
[112]
Elsewhere in his December 2022 report, Dr Rotinen Diaz stated that Mr Stewart’s conditions were unlikely to change from a functional point of view and that Mr Stewart had reached the maximum level of medical improvement. Those statements did not represent Dr Rotinen Diaz’s opinion by the time he gave his evidence at trial.
[113]
In his supplementary report prepared in August 2023, Dr Rotinen Diaz referred to staff constraints at Ozanam and recommended that Mr Stewart receive additional care from a dedicated external nurse and an external support worker for at least six hours per day to allow him to participate in a seating program and to go outdoors in a wheelchair. Dr Rotinen Diaz’s stated that, except for hydrotherapy, any treatment or cares that Mr Stewart is currently receiving, or might need in the future, can be provided both at Ozanam or in a private residence.
[114]
In the note of a teleconference with Mr Stewart’s lawyers dated 10 October 2023, Dr Rotinen Diaz refers to Mr Stewart having made gains through his intense rehabilitation at the RBWH in the period prior to him being transferred to reside in an aged care home. Based on evidence that, during this initial rehabilitation period, Mr Stewart was able to mobilise and walk to some degree with the aid of a walker, Dr Rotinen Diaz provided the following views:
1. in the period Mr Stewart has resided at Ozanam, his body has been deconditioned due to a lack of therapy and rehabilitation;
2. if Mr Stewart is given the opportunity to recommence consistent therapy, he has a good chance of being reconditioned to a capacity similar to that at the rehabilitation unit at the RBWH. This could be done by initially spending time working on his ability to sit and establish trunk control, before progressing to strengthening his legs and feet, and getting him into a standing position again;
3. if Mr Stewart is given the opportunity to be reconditioned, and his mobility and movement improved, he would have a significantly better quality of life, with less medical complications, less pressure areas and less pain.
[115]
In a memorandum of a conference with Mr Stewart’s lawyers dated 5 November 2023, Dr Rotinen Diaz stated that the health benefits that are likely to come from Mr Stewart living in his own home and receiving associated therapy and care include:
1. benefits from a musculoskeletal point of view including joint and bone health;
2. posture and sitting control to assist in remaining upright;
3. managing contractures;
4. respiratory and cardiovascular health including managing the risk of aspiration pneumonia, better oxygen levels, improved cardiovascular tone and exercise tolerance;
5. improvement with his digestive system including less constipation, even with a stoma;
6. reducing risk of venous thrombosis and pulmonary embolism and reducing health risks overall;
7. better blood pressure control;
8. better diabetes control;
9. psychological benefits from exercising, living in his own home environment, establishing some control in his own environment, being provided with his own personal carers and sharing his living space with his family and animals, including his dog;
10. exercise leading to a better contribution to sleep and a reduction in pain.
[116]
Dr Rotinen Diaz’s opinion was that, taking into account the condition which Mr Stewart had reached during the course of his initial rehabilitation at the RBWH, the provision of comprehensive care and therapy would improve Mr Stewart’s condition from a Modified Rankin Scale score of 5 (severe disability; bedridden; incontinent and requires nursing care and attention) to a score of 4 (moderately severe disability; unable to walk without assistance and unable to attend to own bodily needs without assistance).
[117]
In his oral evidence, Dr Rotinen Diaz accepted that it was unlikely that Mr Stewart would exhibit any neurological recovery which might lead to functional improvements beyond 24 months from his stroke. However, consistently with his evidence at [114] above, he said that functional improvements could be achieved through relearning and retraining.
[118]
As to Mr Stewart’s ability to communicate, Dr Rotinen Diaz accepted that Mr Stewart would never be able to talk again but said that with regular and repeated speech therapy it would be possible that his basic level of communication would show some improvement from its current level.
[119]
As to Mr Stewart’s mobility, Dr Rotinen Diaz accepted that Mr Stewart will not be able to walk independently but referred to the evidence of him previously having walked with assistance and stated that a person with his level of disability should be able, with assistance, to take a couple of steps. Later, he stated that with intensive physiotherapy it would be possible to treat the spasticity in Mr Stewart’s right foot to permit it to be moved into a sufficiently plantigrade position for him to weight bear on that foot. However, he ultimately accepted that Mr Stewart may not tolerate pain which might be caused by bearing weight on his right foot.
[120]
Dr Rotinen Diaz described as simplistic the suggestion that any physiotherapy and other treatment, including Mr Stewart moving from his bed and transferring to a seated chair, could be performed at Ozanam as easily as in his own home. He considers Mr Stewart’s environment to be a crucial factor in his motivation.

Ms McCorkell

[121]
Ms McCorkell’s recommendations concerning the provision of physiotherapy to Mr Stewart were set out in a report prepared in May 2023. That initial report did not address the benefits, if any, of such therapy being provided to Mr Stewart in his own home rather than at Ozanam. However, in a supplementary report prepared in September 2023, Ms McCorkell stated that the lack of access to appropriate equipment and time for therapy sessions at Ozanam have limited Mr Stewart’s opportunity to engage in more functional rehabilitation.
[122]
In her oral evidence, Ms McCorkell agreed that it was not a realistic goal for Mr Stewart to be able to walk again. She stated that, from the therapy she proposed, Mr Stewart would derive benefits in being able to stand and weight bear with the assistance of a standing frame or a tilt table, being able to position himself more easily while he was in a wheelchair and being able to spend time out of his bed. She considered it inappropriate for someone to be positioned in bed all day. She stated that if Mr Stewart was resistant to being transferred out of bed into a seated position she would work with those treating and supporting Mr Stewart to create a graduated sitting program so that he was able to achieve some of the health benefits of being out of bed. In her view, insufficient efforts had been made to establish the most comfortable resting position for Mr Stewart whilst he is seated.
[123]
As to whether it was appropriate for Mr Stewart to continue to reside at Ozanam, Ms McCorkell’s opinion was that his health outcome would be better if he resided in his own home. She referred to the importance of the therapy and interventions she proposed being implemented across the course of each 24-hour period and at times that are most suitable for Mr Stewart to be able to engage in and benefit from that program. In her experience, the care program she was proposing would be most effective if it was delivered by a carer who is able to implement that program autonomously and independently of another system such as a residential care facility. Ms McCorkell also expressed the view that a private residence would provide a setting that is more conducive to Mr Stewart understanding the goals of the therapy and engaging in the implementation of the proposed treatment program. In that regard, Ms McCorkell said a physiotherapist will take advantage of what is happening in the environment where therapy is being provided as a means of motivating the patient and enhancing the level of engagement. That might include seeking engagement through the presence of a family member or a pet during therapy.
[124]
As to the specific health benefits that Mr Stewart would receive from receiving treatment in his own home, rather than at Ozanam, Ms McCorkell identified:
1. an enhanced ability and willingness on Mr Stewart’s part to sit and physically interact with other people;
2. a program of sitting and joint positioning integrated across the course of the waking hours of each day leading to improved bone and joint health, with the minimisation of contracture and the impact of spasticity meaning Mr Stewart’s joints can maintain as much flexibility as possible;
3. the optimisation of Mr Stewart’s cardiovascular and respiratory health through increased time sitting;
4. better global health and wellbeing derived from an increased ability and willingness on Mr Stewart’s part to participate in activities of interest.

Dr Gray

[125]
In his report prepared in September 2023, Dr Gray concluded that Mr Stewart’s reduced participation in activities and social interaction, resulting from the physical impairment he suffered because of the stroke, has had a negative impact on his mental state. Dr Gray considered it likely that Mr Stewart’s overall wellbeing, including his psychological wellbeing, would be aided by greater engagement with therapy, activities and outings, ideally on a daily basis with the minimum activity being Mr Stewart being transferred out of bed and into a chair so that he could spend some time outside. He also considered it likely that the provision of a dedicated carer, at least for a few hours per day a few times per week would materially improve Mr Stewart’s feelings and quality of life.
[126]
Dr Gray acknowledged that a change in Mr Stewart’s residence from Ozanam to a private home could carry a risk that his pre-existing psychiatric condition (likely Major Depressive Disorder) would be made worse. However, in Dr Curtis’ view, there was a reasonable chance that Mr Stewart’s pre-existing condition could relapse wherever he is cared for. Assuming that Mr Stewart’s wish is to move to his own residence and that such a move means that he has more support and engagement in activities and outings, Dr Gray considered that Mr Stewart’s mental health would benefit in the medium to long term from such a move.

Ms Coles

[127]
As noted in [76] above, Ms Coles said Mr Stewart clearly communicated his desire to live in his own home rather than at Ozanam. Ms Coles was supportive of that course, stating that Mr Stewart’s quality of life would be substantially improved by residing in his own home with 24-hour care provided by appropriately trained personal support workers.
[128]
In the conclave report prepared by the occupational therapy experts, Ms Coles and Ms Coventry stated that neither of them considered Mr Stewart continuing to reside at Ozanam would be in his best interests. When giving her oral evidence, Ms Coventry confirmed the correctness of a file note dated 18 October 2023 of a conversation with the MNHHS’ lawyers which referred to this statement in the conclave report and recorded Ms Coventry as having advised that this was never her opinion. That apparent inconsistency was clarified in cross-examination when Ms Coventry clearly stated that she did not consider it to be in Mr Stewart’s best interests for him to stay at Ozanam because of what she considered to be a lack of specialised equipment and a lack of ongoing regular therapy services.^[12]

Consideration

Health benefits of Mr Stewart living in his own home

[129]
The MNHHS submitted that Mr Stewart is 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 MNHHS argues that moving Mr Stewart to his own home will not provide him with any physical health benefit.
[130]
The phrase “window of opportunity” refers to Professor Chamber’s evidence that someone who suffers a stroke is likely to see the most improvement in his or her condition in the first three to six months after the stroke and is very unlikely to have any further improvement once two years have passed since the stroke. As already noted at [117] above, Dr Rotinen Diaz accepted that proposition.
[131]
While this expert evidence can be accepted, it does not support the MNHHS’ submissions in the circumstances of this case. Those submissions wrongly assume that any functional improvement in Mr Stewart’s current condition would involve an improvement beyond the functional level he had achieved during the 24-month window after his stroke. That is not the effect of Dr Rotinen Diaz’s evidence, as set out at [114] to [119] above: the provision of a higher level of individual care and therapy in Mr Stewart’s own home in the future would be likely to see his level of physical function return to that which he had previously achieved during the initial stage of his rehabilitation.
[132]
The MNHHS submitted that I should prefer the evidence of Dr Karrasch to the effect that it would be extremely unlikely Mr Stewart’s functional improvement would be of any significance with additional therapy. The passage in Dr Karrasch’s oral evidence which the MNHHS relied upon is as follows:^[13]

“… This particular gentleman, where he’s at in his trajectory after the stroke – can you see that there could be any improvement with any sort of therapy that that Rankin Scale would change at all?‑‑‑I think it’s extremely unlikely. He – he can’t talk. His vision is impaired. He’s probably still depressed, although they can’t assess that. He is paralysed down one side. He needs assistance with all his care, and there’s evidence that he’s deteriorated over recent years rather than get better, and I think the chances of him improving from the Rankin 5 to 4 are very, very low.”

[133]
Dr Karrasch did not perform a clinical assessment of Mr Stewart. Further, there was no indication in Dr Karrasch’s report or in his oral evidence that he was aware or had taken account of evidence that Mr Stewart had walked with the assistance of a walking frame during the initial stage of his rehabilitation. These factors reduce the weight of this aspect of Dr Karrasch’s evidence.
[134]
In any event, the question which Dr Karrasch was asked, and the response he gave, were directed to the issue whether additional therapy would be likely to result in an improvement of Mr Stewart’s condition from a Modified Rankin Scale score of 5 (severe disability; bedridden; incontinent and requires nursing care and attention) to a score of 4 (moderately severe disability; unable to walk without assistance and unable to attend to own bodily needs without assistance). I do not accept that, to be of significance, improvement in Mr Stewart’s condition must result in him progressing from a score of 5 to a score of 4 on the Modified Rankin Scale.
[135]
The description of the different levels of impairment on the Modified Rankin Scale suggest that Mr Stewart would only progress to a score of 4 if his condition improved to the point that he was able to walk with assistance. That seemed to be the basis upon which Dr Rotinen Diaz gave his evidence.^[14] I do not consider that Dr Rotinen Diaz’s evidence about the potential for Mr Stewart to take a couple of steps with the assistance of a walking stick provides a proper basis to find that, with further therapy, he is likely to improve to a Modified Rankin Score of 4. Ms McCorkell’s evidence that it would not be a realistic goal for Mr Stewart to be able to walk again is contrary to such a finding. Nevertheless, the MNHHS submissions discount entirely the increased level of mobility, in terms of Mr Stewart’s capacity to spend time out of bed and in a seated position, which the evidence of Dr Rotinen Diaz and Ms McCorkell suggest Mr Stewart is likely to achieve with additional therapy. Having regard to Mr Stewart’s present circumstances, and the general opinion of the experts that it is not appropriate for a person in his position to spend as much time as he does lying in his bed, I consider that this increased capacity would be a significant functional improvement.
[136]
For these reasons, I prefer the evidence of Dr Rotinen Diaz and that of Ms McCorkell to that of Dr Karrasch on the question of the benefits which Mr Stewart would receive from additional care and therapy. I accept that increased care and therapy would be likely to address the deconditioning which Mr Stewart has experienced while he has resided at Ozanam and the resulting decrease in his level of mobility over that time. I also accept that this is likely to result in physical health benefits of the kind described by Dr Rotinen Diaz and by Ms McCorkell, as well as mental health benefits as suggested by Dr Gray.
[137]
It is true, as the MNHHS submitted, that for Mr Stewart’s physical condition to improve he will have to engage in therapy. He must understand both the benefits of the therapy and the instructions provided to him. I do not consider that evidence of Mr Stewart’s unwillingness to participate in social activities at Ozanam supports a conclusion that he would be unwilling to engage in therapy. Mr Stewart’s regular engagement in physiotherapy sessions provided by Ms Bathersby indicates that he is willing to undertake therapy and that he has the necessary level of understanding to do so.
[138]
I consider it likely that the provision of care and therapy to Mr Stewart in his own home would increase his willingness to engage in therapy, as well as his willingness to move from his bed to participate in activities of interest. I base this conclusion on the evidence of both Dr Rotinen Diaz and Ms McCorkell concerning the importance of the environment in which therapy is provided as a factor which impacts a patient’s motivation to engage, along with my acceptance of the genuineness of Jesse’s expressed desire to live with his father and the evidence that Jesse’s presence acts as a strong motivator for Mr Stewart to participate in activities.
[139]
I also accept the submission on behalf of Mr Stewart that his becoming drowsy or falling asleep towards the end of the 30-to-40-minute physiotherapy sessions provided by Ms Bathersby does not demonstrate that he lacks the stamina to engage in more frequent therapy and exercise sessions of shorter duration. There is no convincing evidence that Mr Stewart would refuse to engage in physiotherapy or exercise if it was administered in shorter but more frequent sessions.
[140]
In the end, I am satisfied that the provision of comprehensive care and therapy to Mr Stewart in his own home would result in health benefits for Mr Stewart. I do not consider that those health benefits can properly be characterised as slight or speculative. This is not a case where the benefit to Mr Stewart of receiving care and therapy in his own home is entirely one of amenity.^[15]

Residence and care at Ozanam as an alternative

[141]
The MNHHS submitted that the physical health benefits from the provision of care and therapy to Mr Stewart in his own home would be no more than equally effective as the care he already receives at Ozanam.
[142]
This submission placed significant emphasis on the level of medical and nursing care which Mr Stewart has received at Ozanam. As and when required, Mr Stewart has had access to a general practitioner, the Residential Aged Care District Assessment and Referral Service (RADAR),^[16] allied health services and nursing care. That has meant Mr Stewart has, for the most part, suffered only minor or general health issues while residing at Ozanam.^[17] Those issues have been appropriately identified, treated and resolved. There is not, and could not be, any suggestion of neglect, inattentiveness or an inadequate level of treatment from Ozanam’s staff.
[143]
Mr Stewart also receives consistent care and assistance from, and consequential interaction with, Ozanam staff each day consisting of:
1. the attendance of a Registered Nurse at regular times for the administration of medication; and
2. the attendance of care assistants, such as Ms Orr, who assist him with his daily hygiene needs, reposition him every two hours, deliver his meals to him in his room and respond to any requests by him for assistance.
[144]
I am satisfied that Mr Stewart’s medical and nursing care needs are being appropriately addressed at Ozanam. Dr Rotinen Diaz accepted as much. Ms Schwarzman also generally agreed with that assessment. She referred to one occupational therapist at Ozanam who she was not impressed with and who Mr Stewart did not appear to like. However, she said that this was about the only occasion during Mr Stewart’s residence at Ozanam when they have experienced something like that. She stated that Mr Stewart’s care at Ozanam has been very good.
[145]
Nevertheless, I do not accept the submission by the MNHHS that the physical health benefits to Mr Stewart from receiving care and therapy in his own home would be no greater than he receives from the current arrangements at Ozanam. That ignores the deconditioning which Mr Stewart has experienced over the time he has spent at Ozanam and his decreased level of mobility because of a lack of therapy and exercise.
[146]
There is a question then as to whether, in assessing the appropriate basis for calculating Mr Stewart’s damages, the only alternative care arrangements which I must consider are the arrangements which presently exist at Ozanam.
[147]
The MNHHS submitted that Mr Stewart could receive any additional therapy he requires while he continues to reside at Ozanam. It further submitted that, if I conclude that a greater level of care assistance is reasonably required, I should assess Mr Stewart’s damages on the basis that such additional assistance could be provided by a care assistant engaged on Mr Stewart’s behalf to attend at Ozanam.
[148]
The submissions on behalf of Mr Stewart referred to Dr Rotinen Diaz’s opinion that to suggest it would be appropriate for any additional therapy to be provided at Ozanam was too simplistic because Mr Stewart’s environment is a crucial factor in his motivation to be transferred out of his bed. It was further submitted for Mr Stewart that the provision of carers who can take him into the community for activities he has a genuine interest in (such as a movie), and a dog that he would enjoy going for a walk with is likely to get him out of his bed and into a chair substantially more often than he is doing at present. There was said to be an important distinction between having a physiotherapist work with Mr Stewart for an hour, and having a physiotherapist instruct Mr Stewart and his carers to perform exercises regularly throughout the week. It was submitted for Mr Stewart that the latter scenario is not a realistic option if he remains at Ozanam given the limited staff to perform these exercises with him on a regular basis.
[149]
As to the proposition that additional assistance could be provided by a care assistant engaged on Mr Stewart’s behalf to attend at Ozanam, it was submitted for Mr Stewart that there was no proper foundation in the evidence for me to consider that alternative care scenario as a basis upon which to assess Mr Stewart’s damages. This submission involved two arguments. First, it was submitted that the appropriate care model was a matter for the medical experts and no medical expert had said it would be appropriate for Mr Stewart to receive whatever additional therapy and care assistance he requires at Ozanam. Secondly, it was submitted that there was no evidence that Ozanam’s administration would allow an external care assistant to attend the facility and provide additional assistance to Mr Stewart.
[150]
The first argument overlooks evidence in Dr Rotinen Diaz’s supplementary report recommending that Mr Stewart receive additional care from a dedicated external nurse and an external support worker for at least six hours per day, and stating that, with the exception of hydrotherapy, any treatment or cares that Mr Stewart is currently receiving, or might need in the future, can be provided both at Ozanam or in his own home (see [113] above). That can only be understood as evidence, from the rehabilitation physician called on behalf of Mr Stewart, that the provision of additional care assistance and therapy at Ozanam would be medically appropriate. Dr Rotinen Diaz’s later evidence was that Mr Stewart would be more motivated to participate in additional therapy and activities in his own home. Nothing in that later evidence suggests, however, that Dr Rotinen Diaz changed his position on the appropriateness of additional care and therapy being provided to Mr Stewart at Ozanam, as distinct from the comparative desirability of that care scenario. I do not accept this first argument.
[151]
In support of the second argument, it was submitted for Mr Stewart that issues concerning workplace health and safety, insurance, the management of interactions with Ozanam staff and other residents raise questions about the viability of this alternative care scenario. On that basis, it was argued, the MNHHS was required to lead evidence from someone at Ozanam who would be responsible for approving such an arrangement before it could be considered.
[152]
In response, the MNHHS submitted that it did not bear the persuasive onus on the question of Mr Stewart’s loss. It accepted that it had assumed an evidential onus to demonstrate on a prima facie basis that such additional care and therapy as Mr Stewart required could be provided to him at Ozanam and submitted that it had discharged this evidential onus.
[153]
On the issue of the provision of additional therapy, the MNHHS relied on Ms Bathersby’s evidence that she has provided physiotherapy to Mr Stewart at Ozanam on a regular basis since February 2019. I accept that evidence is sufficient to demonstrate, prima facie, that additional therapy could be provided to Mr Stewart at Ozanam. If it was to be argued on behalf of Mr Stewart that, notwithstanding Ozanam’s apparent willingness to allow therapists access to the facility to provide treatment to Mr Stewart, the assessment of his damages should proceed on the basis that such access would not be permitted then he bore the onus of calling evidence from someone at Ozanam to establish that position. No such evidence was led.
[154]
I am satisfied it would be possible for Mr Stewart to receive additional therapy, in the form of physiotherapy, speech therapy and occupational therapy, while he continued to reside at Ozanam. Although the space available in Mr Stewart’s room at Ozanam is much less than is likely to be available if he were to move to his own home, I am not satisfied that those space constraints would prevent Mr Stewart from receiving any additional therapy he requires at Ozanam.
[155]
On the issue of the provision of additional care assistance, the MNHHS relied on the evidence of Mr Hart, the manager of a care services provider. Mr Hart gave evidence that his business implements care models which involve the placement of care providers into community nursing homes or hospitals. Mr Hart was asked what type of care model his business would facilitate if it was engaged to provide a care assistant to provide care and assistance to Mr Stewart at Ozanam. In addressing that question, Mr Hart said that, based on his experience, he did not think there was any care, therapy or service that could be provided to Mr Stewart in his own home but which could not be provided to him at Ozanam. He referred to the need for the care services provider to reach an arrangement in respect of the nursing home about issues such as insurance and workplace health and safety but said that he had only had one experience, about 15 years ago, where a facility had refused to allow a care assistant from his business to be involved in the physical transfer of a client because of insurance and workplace health and safety concerns. That refusal did not affect the provision of comfort, the provision of outings or the administration of therapies.
[156]
Mr Hart’s evidence establishes that care models involving the provision of assistance by external care assistants to residents of nursing homes are employed within the care services industry. In this case, Ozanam’s willingness to permit Ms Bathersby to access the facility provides a basis to infer that it would permit an external care assistant similar access at least for the purpose of engaging Mr Stewart in exercises, as directed by a physiotherapist or an occupational therapist, on a more regular basis through the week. Likewise, it is difficult to see any reason to think that Ozanam would object to an external care assistant attending for the purpose of seeking to engage Mr Stewart in the use of communication tools as directed by a speech pathologist, or to take Mr Stewart out into the community as his family does now. Even if Ozanam refused to allow an external care assistant to be involved in transferring Mr Stewart from his bed to his wheelchair, that would not negate the benefit of the care assistant’s attendance. The transfer could be performed by two Ozanam staff. The external care assistant could then take Mr Stewart out into the community to participate in activities of interest to him.
[157]
Accordingly, if it was to be argued on behalf of Mr Stewart that the assessment of his damages should proceed on the basis that Ozanam would not permit the attendance of an external care assistant then he bore the onus of calling evidence from someone at Ozanam to establish that position. No such evidence was led.
[158]
I therefore consider that the requirement for care assistants to be trained and available to assist in the implementation of an integrated therapy program over the course of a week could be met by the provision of care assistants engaged on Mr Stewart’s behalf to attend at Ozanam. I accept the submission by the MNHHS that Ms McCorkell’s concern about the activities and interventions of Ozanam staff interfering with the implementation of an integrated program of care could be addressed by effective communication through case conferencing and liaison between the respective therapist(s) and care assistant(s) and Ozanam’s staff.
[159]
In my view, the provision of additional therapy and care assistance to Mr Stewart while he continues to live at Ozanam is an alternative model which must be considered in assessing the reasonableness of the cost of providing therapy and care to him in his own home.

Comparative costs of the different care models

[160]
It was submitted for Mr Stewart that the average weekly cost of his future care if he moves to his own home would be $22,400. Over a lifespan of 5 years (5% discount multiplier 231), Mr Stewart’s damages for future care on that basis would amount to $5,174,400.
[161]
Mr Stewart claims the cost of future house modifications in the amount of $59,492.00.
[162]
He also claims the future cost of;
1. rent in the amount of $800 per week;
2. garden/yard work for 1 hour per week at a rate of $53.09 per hour;
3. housework for two hours per week at a rate of $54.07 per hour, being $108.14 per week.
[163]
Over a lifespan of 5 years (5% discount multiplier 231), his damages in respect of those costs would be:
1. $184,800 for rent;
2. $12,263.79 for garden/yard work;
3. $24,980.34 for housework;
[164]
The total cost would be $5,455,936.13.
[165]
It was submitted for Mr Stewart that this figure should be discounted by 10% to reflect the possibility that he may deteriorate and need to return to living in an institution. It was said that figure was appropriate because, although the risk was not quantified, such deterioration would likely precipitate Mr Stewart’s end of life and was therefore largely accounted for in the reduction of his life expectancy.
[166]
This would give total damages on a five-year life expectancy of care in a private home of $4,910,342.52. This figure must be compared with the damages which would be assessed if Mr Stewart continues to reside at Ozanam.
[167]
As explained at [208] to [212] below, the present value of the cost of Mr Stewart’s future accommodation and care at Ozanam over a period of five years is $304,650.46.
[168]
It is also necessary to add the cost of future care to be provided by an external care assistant. I adopt Dr Rotinen Diaz’s estimate of 6 hours per day as a reasonable estimate if Mr Stewart is to receive the health benefits which would come from increased engagement in activities in the community outside Ozanam, as well as more frequent therapy and exercise. Mr Hart stated in the memorandum of his conference with the MNHHS’ lawyers on 20 October 2023 that having an additional external care assistant attend upon Mr Stewart at Ozanam for an additional four hours per day would give Mr Stewart a bit more control, flexibility and independence over when he wants things done. However, this was said in response to a question about hygiene assistance (daily nursing cares) and did not account for the provision of additional therapy, exercise and increased outings from Ozanam. Ms Coventry and Ms Coles said that Mr Stewart should receive extra support from an outside agency two to three days per week for three to four hours to facilitate access for dining out, going to the movies or to visit an art gallery. This estimate takes no account of the provision of additional therapy and regular exercise as part of an integrated program of the sort referred to by Ms McCorkell.
[169]
The evidence at trial disclosed two different hourly rates for care assistants: first, the rates charged by Mr Hart’s business, QLS, to its clients; secondly, the rates charged for the provision of care to NDIS clients. The MNHHS submitted that the cost of Mr Stewart’s future care should be based on the QLS rates because Mr Stewart is not a recipient of NDIS funding and is not eligible to receive such funding. It submitted that the QLS rates should be regarded as evidence of the cost for care provided by a substantial market participant for the provision of care assistance. A difficulty with this submission arose after the parties had closed their cases and judgment was reserved. During the trial, Mr Hart gave evidence that QLS’ hourly rates were set by reference to the cost the business incurred under a collective agreement with its staff. He acknowledged and that other providers had higher rates. On 1 February 2024, the Full Bench of the Fair Work Commission terminated the enterprise bargaining agreement which had governed the conditions of care assistants employed by QLS when Mr Hart gave his evidence. The termination took effect on 28 February 2024. In response to that decision, Mr Hart informed the solicitors for the MNHHS that the termination of QLS’ enterprise agreement would adjust costs but that, in circumstances where the new costs structures were still in the development stage he was unable to provide an appropriate guide to the costs QLS would charge in future. With the leave of the Court, the decision of the Fair Work Commission and Mr Hart’s correspondence which followed that decision were tendered as further exhibits. Following the termination of QLS’ enterprise bargaining agreement, I do not regard the its rates as reliable evidence of the reasonable cost of the provision of additional care to Mr Stewart if he is to continue to reside at Ozanam. In my view, the NDIS rates give a more reliable indication of that reasonable cost than the QLS rates in the circumstances which now exist. Adopting those rates, the yearly cost of future care to be provided by an external care assistant if Mr Stewart continues to reside at Ozanam can be calculated as follows:^[18]
1. 260 weekdays x hourly rate of $70.85 x 6 hours = $110,526;
2. 53 Saturdays x hourly rate of $99.69 x 6 hours = $31,701.42;
3. 52 Sundays x hourly rate of $128.54 x 6 hours = $40,104.48;
4. 12 public holidays x hourly rate of $157.39 x 6 hours = $11,332.08;
5. Coordination – 104 hours (2 hours per week) at hourly rate of $84.38 = $8,775.52;
6. Monthly staff meetings – 48 hours (12 meetings of 2 hours for 2 staff) at hourly rate of $70.85 = $3,400.80.
[170]
This gives a total yearly cost of $205,840.30, and an average weekly cost of $3,958.47.
[171]
Over a lifespan of 5 years (5% discount multiplier 231) the cost of future care provided by an external care assistant while Mr Stewart resides at Ozanam would be $914,406.
[172]
The MNHHS submits that it is necessary to discount an award of damages for future care provided by an external care assistant for contingencies to take account of the chance that factors unconnected with the negligence of the MNHHS would have necessitated similar care and attention.^[19] This requires that the possibility that Mr Stewart would have suffered an adverse event due to his pre-existing conditions be considered.^[20]
[173]
The MNHHS referred to two specific risks.
[174]
The first is the risk of a cardiac or vascular event, such as a stroke or myocardial infarction arising from Mr Stewart's diffuse vascular disease caused or contributed to by his diabetes mellitus type two, his high blood pressure, his high cholesterol, and his smoking. Calcification of Mr Stewart’s lower limb arteries with peripheral vascular disease was documented in 2010. In 2013 he had plaque documented in both carotid arteries. Dr Karrasch assessed Mr Stewart as having had at least a 30% chance of a major adverse vascular event irrespective of the negligence of the MNHHS.
[175]
The second is a risk arising from Mr Stewart’s abdominal adhesions. Those adhesions caused Mr Stewart to suffer from abdominal issues for about six months before he attended the Redcliffe Hospital with a bowel obstruction. During surgery on 25 March 2016, he was found to have extensive dense adhesions throughout his abdominal cavity and small bowel. Dr Karrasch described those intra-abdominal adhesions as being chronic and permanent and said they would have caused persistent and increasing symptoms of gut pain and obstruction on a regular and probably increasingly frequent basis.
[176]
The MNHHS submitted that the severity of Mr Stewart’s pre-existing conditions together with his chronic depression and anxiety and his non-adherence to prescribed medications prior to his stroke gave rise to a risk in the range of 30% to 60% of him suffering an adverse event (whether that be a gut obstruction, a heart attack or stroke or other cardiac or vascular event) but for the incident. That possibility, and the likelihood of it necessitating care and assistance commensurate to an environment like Ozanam, is said by the MNHHS to be more than speculative or slight. It was submitted that the most appropriate discount would be between 15% to 30%, based upon a 30% to 60% risk that an adverse event would have occurred and a 50% likelihood that such an event would have necessitated Mr Stewart receiving a similar level of care.
[177]
I accept that it would be appropriate to apply a 15% discount to the cost of future care to be provided by an external care assistant. This reduces this cost to an amount of $777,245.10.
[178]
When the cost of Mr Stewart’s residence and care at Ozanam is added to the cost of care provided by an external care assistant the total cost of care if Mr Stewart continues to live at Ozanam is $1,081,895.56.
[179]
Accordingly, the difference between the cost of providing care to Mr Stewart in his own home ($4,910,342.52) and the cost of providing care to Mr Stewart if he continues to reside at Ozanam ($1,081,895.56) is $3,828,446.96. It is this cost difference which is relevant to the assessment whether it is reasonable to require the MNHHS to provide care to Mr Stewart in his own home.

Weighing the health benefits against the additional cost of providing care in a private home

[180]
Based on the evidence discussed above, I consider that the health benefits which are likely to result from Mr Stewart receiving care in 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 of the sort referred to by Dr Rotinen Diaz and Ms McCorkell, as well as his increased participation in activities out in the community. An important feature of the therapy and care being provided at home is the likelihood that Mr Stewart will have increased motivation to engage in therapy and exercise, and to be transferred out of his bed and to participate in activities, in that new environment. I have already referred to the motivating effect which would come from Jesse being able to live with his father. If appropriate arrangements could be made for a dog to live at Mr Stewart’s home, that would also be likely to have a motivating effect on him.
[181]
However, I consider that Mr Stewart is likely to receive the same health benefits, or at least a very similar level of health benefits, if he engages in a similar amount of additional therapy and exercise at Ozanam with the additional assistance provided by an external care assistant attending for 6 hours per day. The real question about the effectiveness of future care at Ozanam is whether Mr Stewart would be sufficiently motivated to engage in additional therapy and exercise, and to be transferred out of his bed more often so that he could be taken out to participate in activities in the community on a more frequent basis, without the advantages that would come from him living in his own home.
[182]
Although there was clear evidence of Mr Stewart’s strong relationship with Jesse and of his love for animals, I am not ultimately satisfied that this supports a finding, on the balance of probabilities, that Mr Stewart would only engage in additional therapy and exercise, and would only agree to participate more frequently in activities in the community, if he were to move into his own home.
[183]
Mr Stewart’s participation in the physiotherapy sessions provided by Ms Bathersby demonstrates that the environment at Ozanam is not a bar to him receiving therapy if he continues to reside there.
[184]
As to the provision of care and assistance by care assistants, the main criticism of the environment at Ozanam made by Ms Schwarzman, Ms Coles and Dr Rotinen Diaz was the lack of time available to the care assistants employed by Ozanam to interact with Mr Stewart beyond the provision of his daily care needs. Much of Mr Stewart’s frustration has been attributed to the fact that Ozanam’s staff do not have the time, or in some cases the knowledge of his personal history, to converse with him in a way that is likely to engage him and make him more willing to engage in therapy, exercise and activities. The evidence Ms Orr and Ms Bathersby gave about Mr Stewart showing them his photographs to try and converse with them highlights the importance of care assistants having sufficient time each day, and an awareness of Mr Stewart’s personal history, to develop a positive personal rapport with him. If that is not achieved, then it is unlikely that Mr Stewart would respond to attempts to have him perform exercises more regularly or to be transferred to his wheelchair to engage in activities. That conclusion is consistent with Ms Schwarzman’s evidence about Mr Stewart’s response to an occupational therapist (see [144] above) and evidence given by Jesse that Mr Stewart did not appear to like Ms Anderson on the single occasion she attended Ozanam.
[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.
[187]
Having reached that position, it is not necessary for me to consider the further submission by the MNHHS that it is improbable that Mr Stewart would, in fact, move into his own home.
[188]
I will assess Mr Stewart’s damages on the basis that he will continue to reside at Ozanam, but that he is entitled to the reasonable cost of the enhanced care arrangements I have discussed above.

Calculation of damages

General damages

[189]
Sections 61 and 62 of the Civil Liability Act 2003 (Qld) (CL Act) require that the court assess an injury scale value (ISV) for the injuries suffered by Mr Stewart from the range of ISVs set out in Sch 4 of the Civil Liability Regulation 2014 (Qld) (CL Reg) in order to determine the level of general damages^[21] in accordance with the rules set out in Part 2 of Sch 3 of the CL Reg.^[22]
[190]
Mr Stewart suffered multiple injuries. In such a case, it is necessary to determine the dominant injury and determine where in the range of ISVs provided for that injury it should fall. The ISV for the multiple injuries may be assessed as higher in the range of ISVs for the dominant injury than the ISV that would be assessed for the dominant injury only.
[191]
It was submitted for Mr Stewart that the dominant injury in this case is the injury to his brain and that this injury falls within Item 5.1 in Sch 4 of the CL Reg titled “Extreme brain injury”. The MNHHS did not challenge those submissions. I accept that Mr Stewart’s damages should be assessed under item 5.1 of Sch 4 of the CL Reg in circumstances where Dr Rotinen Diaz has assessed Mr Stewart with a combined Whole Person Impairment of 96%.
[192]
Item Number 5.1 provides for an ISV range of 71 to 100.
[193]
It includes the following “Comment about appropriate level of ISV for item 5.1”:

“An ISV at or near the top of the range will be appropriate only if the injured person needs full-time nursing care and has the following –

substantial insight despite gross disturbance of brain function
significant physical limitation and destruction of pre-existing lifestyle
epileptic seizures
double incontinence
little or no language function
little or no meaningful response to environment.

An injured person with an injury for which an ISV at or near the top of the range is appropriate may have some ability to follow basic commands, recovery of eye opening, return of postural reflex movement and return to pre-existing sleep patterns.”

[194]
It then provides the following examples of factors which affect the ISV assessment:

the degree of insight;
life expectancy; and
the extent of bodily impairment.

[195]
It was submitted for Mr Stewart that the medical evidence supports a finding that he has substantial insight despite gross disturbance of brain function; significant physical limitation and destruction of pre-existing lifestyle; double incontinence; little or no language function and a need for full-time nursing care. It was further submitted that the multiple injuries sustained by Mr Stewart, the expressive and receptive aphasia, in conjunction with the debilitating consequences thereof, would lead the Court to consider that he fell within the category of an injury of the “gravest conceivable kind”. Nevertheless, it was accepted that the ISV should be reduced from what would otherwise have been an ISV of 100 to reflect the fact that Mr Stewart was 63 years old when he suffered the injury and therefore had less life expectancy than a younger person who suffered a similar injury. Ultimately, it was submitted that an ISV of 95 is reasonable.
[196]
Although the MNHHS accepted that Mr Stewart’s injuries are properly characterised as catastrophic and appalling, it submitted that those injuries should not be assessed at or near the top of the range of ISVs provided for in Item 5.1. In addition to the matter of Mr Stewart’s reduced life expectancy, the MNHHS submitted that the ISV assessment should be informed by the following matters:
1. although Mr Stewart appears to have a degree of insight into his condition, his awareness and comprehension of what happened to him and his injuries cannot be said to be substantial. The evidence supports an inability on his part to comprehend language and an inability to process abstract concepts and ideas that go beyond his “here and now”. His comprehension is limited to gestural and tonal communication;
2. while Mr Stewart has significant physical limitation and a destruction of his pre-existing lifestyle, he retains functional mobility in his left limbs and is able to gesticulate. He is not “locked in”;
3. Mr Stewart has previously suffered seizures, but has not since May 2016;
4. Mr Stewart is not doubly incontinent. He has a stoma and is able to urinate provided a urinal bottle is provided to him;
5. there is evidence that Mr Stewart does respond to his environment. He is aware of visitors, including Ms Schwarzman and Jesse. He is able to watch television and control the remote. He enjoys pointing to and viewing his pictures, drawings, photographs, and other memorabilia. He also enjoys nature and the presence of animals.
[197]
Ultimately, the MNHHS submitted that the appropriate ISV in light of the extensive 96% impairment, a less than substantial level of insight, the destruction of his pre-existing lifestyle and his significant physical limitations and severe aphasia and brain damage, when balanced with the factors above, is at best an ISV of 85, being in the middle of the range.
[198]
I accept the submissions of the MNHHS. Even accepting the submission for Mr Stewart that there is likely to be a range of cases which attract an ISV of 100, some being worse than others, I am not persuaded on the evidence that Mr Stewart’s injuries, as extreme as they are, fall within that highest range. In this regard, Mr Stewart’s demonstrated capacity to respond meaningfully to his environment indicates that an ISV at or near the top of the range would not be appropriate. That factor, together with Mr Stewart’s reduced life expectancy, means that an ISV of 85 is appropriate in the present circumstances.
[199]
This equates to an award of general damages of $284,700.

Refund to Medicare

[200]
Mr Stewart has incurred expenses which have attracted payments totalling $583,159.92 which are refundable to Medicare.
[201]
The MNHHS accepts that Mr Stewart is entitled to recover this refund amount in full.

Past out-of-pocket expenses

[202]
Mr Stewart has claimed the cost of physiotherapy which to date has been funded by his friend and former employer, Ms Rutherford. The total cost of that physiotherapy was $32,624.20. Mr Stewart also claims interest calculated in accordance with s 60 of the CL Act of $3,875.75.
[203]
The MNHHS has agreed that this amount ought to be repaid to Mr Stewart with interest.
[204]
I allow the amount of $36,500 for these past expenses, including interest.

Future care

[205]
The first aspect of Mr Stewart’s claim for future care while he resides at Ozanam is the amount required to be paid to Ozanam.
[206]
Mr Stewart has been a resident at Ozanam since 27 March 2017. From that time to the present Mr Stewart has had few assets and his source of income has been the Disability Support Pension. Consequently, Mr Stewart has been a low-means resident. This means that the cost of his residency (room, food and all cares and therapies) at Ozanam is assessed at $825.72 each fortnight. This sum is paid from his Disability Support Pension of $1,064.00 per fortnight.
[207]
Upon the payment of an award of damages, Mr Stewart’s Disability Support Pension will cease due to his increased assets. Mr Stewart will then have to pay for his care at Ozanam from his award of damages.
[208]
As explained by Ms Mendl, Aged Care Financial Planner, there are three categories of payments he will be required to make:
1. a “basic daily care fee”. This is what he currently pays from his pension. It is a contribution towards living expenses, such as meals, cleaning, laundry, heating/cooling and electricity. That is a cost of $23,904 per year or $65.49 per day;
2. a “means-tested care fee”. The care Mr Stewart receives at Ozanam is presently paid for by Medicare. Because Mr Stewart’s assets, upon an award of damages, will substantially increase, he will be required to contribute towards the cost of that care. That fee will depend upon Mr Stewart’s assets (i.e., the amount of any award of damages). The fee is capped annually at $32,718.57 and is subject to a lifetime cap of $78,524.69. Once the lifetime cap is reached, the “means-tested care fee” will be nil for the remainder of Mr Stewart’s life. Based on Ms Mendl’s calculations, the lifetime cap would be reached if Mr Stewart’s damages exceed $1,796,000; and
3. an accommodation payment. At present, Mr Stewart cannot be charged for accommodation because he has been assessed as a low-means resident. There are two methods for Mr Stewart to pay the accommodation payment in the future. The first method is the payment of a “daily accommodation contribution” which for Mr Stewart would be a maximum of $66.94 per day. The second method is the payment of a “refundable accommodation contribution” which is in effect a lump sum payment. In this case it was submitted for Mr Stewart, and agreed by the MNHHS, that the appropriate basis for calculating the cost of care at Ozanam is to assume that Mr Stewart does not pay the refundable accommodation contribution.
[209]
Ms Mendl has calculated the costs of care and accommodation for Mr Stewart at Ozanam upon an award of damages being made by reference to the (current) fees and charges and indexed by 3% each year. Those fees are as follows:
1. year one: $1,526.25 per week: total of $79,366;
2. year two: $1,572.06 per week: total of $81,747;
3. year three: $1,276.48 per week: total of $66,377;
4. year four: $980.25 per week: total of $50,973;
5. year five: $1,009.61 per week: total of $52,500.
[210]
I accept those calculations. They were not challenged during cross-examination of Ms Mendl.
[211]
When discounted to present value at a rate of 5%, Ms Mendl’s calculations of the costs in years two to five reduce to: $77,854.29 in year two; $60,205.90 in year three; $44,032.39 in year four; and $43,191.88 in year five.
[212]
The present value of the total cost to be paid to Ozanam over five years is $304,650.46.
[213]
The second aspect of Mr Stewart’s claim for future care while he resides at Ozanam is additional private paid care to supplement the inhouse care provided to him by Ozanam’s staff. As explained in [168] to [177] above, I have assessed Mr Stewart’s entitlement to the cost future care to be provided by an external care assistant to be $777,245.10.
[214]
The total amount of damages for future care is $1,081,895.56.

Future therapy

Speech therapy

[215]
In closing submissions, Mr Stewart claimed the present value of future speech therapy in the amount of $35,000. That amount was claimed for a life expectancy of six years. Over a life expectancy of five years (multiplier 231) the present value reduces to approximately $33,750.
[216]
The MNHHS raised criticisms of the claim for the cost of speech therapy, including that, from the evidence of Mr Stewart’s response to previous speech therapy and his present refusal to use any communication tools, the likely benefits of further speech therapy should be regarded as slight or speculative. In those circumstances it submitted that damages for future speech therapy should be assessed as a global sum. It argued that, given the level of speculation as to whether Mr Stewart would both engage in and see any improvement both with respect to therapy and the provision of aids and equipment, that global sum should be calculated as no more than $30,000.
[217]
I do not regard the difference between these two figures to be significant. I allow the cost of future speech therapy over a period of five years in the amount of $33,750.

Occupational therapy

[218]
In closing submissions, Mr Stewart claimed the present value of future occupational therapy in the amount of approximately $41,000.
[219]
Of that sum, an amount of $2,909.85 relates to the development of a house plan if Mr Stewart were to live in his own home. A further amount of $1,939.90 relates to setting up and trialling equipment with Mr Stewart once he moves into his new home. Having rejected that as the basis for assessing Mr Stewart’s damages I will exclude those amounts.
[220]
The remaining amount of approximately $36,000 relates to the attendance of a hand therapist on Mr Stewart and the cost of hand therapy training for the external care assistants. The amount Mr Stewart has claimed is calculated over a life expectancy of six years. Over a period of five years (multiplier 231) the present value reduces to approximately $31,500.
[221]
The MNHHS submitted that the claim for the cost of hand therapy was inflated. I do not accept that submission. The claim was calculated based on the number of hours of therapy required by Mr Stewart to which Ms Coventry, the occupational therapist called by the MNHHS, agreed with in the conclave of experts. The rates used in the calculations were provided by Mr Hart, another witness called by the MNHHS.
[222]
I allow the cost of future occupational therapy in the amount of $31,500.

Physiotherapy

[223]
In closing submissions, Mr Stewart claimed the present value of future physiotherapy in the amount of approximately $140,000 based on the recommendations of Ms McCorkell. That claim comprised:
1. $68,342.68 for future neurological physiotherapy and $26,285.65 for the cost of travel for the neurological physiotherapist;
2. $44,715 for future exercise physiology.
[224]
As to the costs of neurological physiotherapy, the MNHHS submitted that the award of damages should be based on the level of physiotherapy he presently receives from Ms Bathersby because Mr Stewart is aging with limited stamina and is likely to continue to fatigue. The MNHHS also submitted that Mr Stewart has routinely refused to be transferred out bed for a shower, and to be placed in his wheelchair. He has also refused to wear splints. It asserted that there is a high probability despite best efforts that Mr Stewart will not agree to participate in most or all of the additional physiotherapy proposed by Ms McCorkell.
[225]
As noted in [139] above, I do not accept that Mr Stewart’s stamina is a convincing reason to limit his damages for future physiotherapy to the level he currently receives. Nor do I accept that his refusal, under the current care arrangements, to be transferred out of bed and placed in his wheelchair supports the argument that he will not participate in additional physiotherapy. My conclusion that Mr Stewart is likely to enjoy similar health benefits at Ozanam as he would if he lived in his own home rests on the likelihood that he will engage in further therapy if that is offered to him.
[226]
I allow the cost of future neurological physiotherapy and associated travel costs based on the recommendations of Ms McCorkell. Over a period of five years (multiplier 231) the present value of these costs reduces to approximately $80,000.
[227]
I accept that, despite Ms McCorkell’s reference to a need for the attendance of an exercise physiologist, Mr Stewart’s claim for those costs is not supported by the other evidence. In particular, I cannot see any reason why exercise programs for Mr Stewart cannot be prepared by the physiotherapist and implemented by the external care assistant. I will not allow any amount for future exercise physiology.

Hydrotherapy

[228]
The occupational therapy witnesses supported Mr Stewart undergoing hydrotherapy. Dr Rotinen Diaz also stated that hydrotherapy would provide Mr Stewart with a fall safe environment with the benefits of muscular relaxation, stretching and cardiovascular training to some extent.
[229]
If hydrotherapy was to be undertaken, this would likely occur in a suitable public pool. The amount claimed is based upon a weekly cost of $20. Over a period of five years (multiplier 231) the present value of those costs would be $4,620.
[230]
It was accepted for Mr Stewart that this amount should be discounted by 30% to reflect the risk that he will not undergo hydrotherapy because of potential barriers, including logistical difficulties and the need for him to comprehend the therapy. That would reduce this part of Mr Stewart’s claim to $3,234.
[231]
The MNHHS submitted that this part of Mr Stewart’s claim should not be accepted because:
1. he has never trialled hydrotherapy, nor has he been assessed as safe to do so;
2. in the absence of any evidence that he has the physical and functional capacity to engage in hydrotherapy combined with his extremely limited mobility, the likelihood of him successfully engaging in hydrotherapy should be viewed as slim;
3. there is no evidence that hydrotherapy will improve his functioning or at least maintain his current capacity.
[232]
I accept the submissions of the MNHHS on this aspect of the claim. I am not satisfied on the evidence that it would be reasonable to require the MNHHS to pay any amount in respect of the cost of hydrotherapy.

Total damages for future therapy

[233]
The total amount I allow for future therapy is $145,250.

Aids and equipment

[234]
In closing submissions, Mr Stewart claimed a total amount of $120,000 for the present value of future aids and equipment.
[235]
A substantial part of that claim relates to aids and equipment which Mr Stewart would only require if he was to move into his own home. If he remains at Ozanam, many of those items will be provided to him and included in the cost of his accommodation and care. There are other items which will not be provided to Mr Stewart at Ozanam, such as a pool hoist, but which he will not require on the basis that he does not move into his own home.
[236]
The items which Mr Stewart will not reasonably require on the basis that he continues to reside at Ozanam are: an electrically adjustable bed; bed maintenance; an anti-pressure mattress; mattress maintenance; height adjustable over-bed table; a manual wheelchair; manual wheelchair maintenance; a mobile shower-commode chair; mobile shower-commode chair maintenance; an electronically adjustable day chair; a fixed pool hoist; a mobile hoist; a sling; a moderate level pressure relief cushion for wheelchair; a plate guard; urinal bottles; a dycem non-slip mat; a foot drop splint; a positioning system/pillows; a tilt table or standing frame; and a stoma belt for hydrotherapy.
[237]
I have excluded those items from the assessment.
[238]
That leaves several other items for consideration.

Speech therapy aids

[239]
Mr Stewart claims an amount of approximately $15,000 for electronic and non-electronic aids required for the provision of speech therapy, along with associated insurance, maintenance and replacement costs. Over a period of five years (multiplier 231) the present value of these costs reduces to approximately $13,000.
[240]
Mr Stewart’s need for the equipment and the costs of that equipment is supported by the recommendations and costings provided by Ms Cameron, the speech pathologist called by Mr Stewart.
[241]
The MNHHS did not directly challenge Ms Cameron’s evidence about Mr Stewart’s need for the equipment or the cost of that equipment. However, the MNHHS submitted that the fact that Mr Stewart has not been trialled on the use of the equipment recommended by Ms Cameron, together with evidence of what the MNHHS described as Mr Stewart’s limited progress to date using more basic aids and equipment, means there must be doubt about his willingness to use any new aids and equipment in the future. On that basis, the MNHHS submitted that aids and equipment related to speech therapy should be included in the sum I have already allowed for the future cost of speech therapy.
[242]
The evidence that Mr Stewart has refused in the past to use the communications tools provided to him has to be considered in light of Ms Cameron’s evidence that the successful use of such aids requires the person attempting to engage Mr Stewart in the use of those tools outside sessions with a speech pathologist, such as a care assistant or family member, to be properly trained by a speech pathologist in the appropriate use of those aids. Ms Cameron could not see any evidence in the speech pathology reports she reviewed that such training had been provided in the past. The damages for future speech therapy costs includes an amount for such training. This increases the likelihood that Mr Stewart will engage in the use of the new aids and equipment that Ms Cameron has recommended.
[243]
Accordingly, I do not accept that there should be no separate amount allowed for the cost of speech therapy aids and equipment. I will, however, discount the amount allowed by 50% to take account of the risk that, despite the provision of training to care assistants and family, Mr Stewart is not prepared to use the new aids.
[244]
I allow $6,500 for the future cost of speech therapy aids and equipment.

Physiotherapy equipment

[245]
Mr Stewart claims an amount of approximately $18,000 for significant items of physiotherapy equipment beyond what is provided to him by Ozanam. These items are ankle foot orthoses and a powered cycle ergometer. Over a period of five years (multiplier 231) the present value of these costs reduces to approximately $16,000.
[246]
Mr Stewart’s need for the equipment and the costs of that equipment is supported by the recommendations and costings provided by Ms McCorkell.
[247]
The MNHHS did not directly challenge Ms McCorkell’s evidence about Mr Stewart’s need for the equipment or the cost of that equipment. However, the MNHHS again relied on the fact that Mr Stewart has not been trialled on the use of the equipment. It referred to evidence from Ms Bathersby that Mr Stewart’s right sided paralysis may prevent him from using a powered cycle ergometer. It also submitted that evidence of Mr Stewart having demonstrated poor compliance and tolerance of splints in the past means that the likelihood that he would use ankle foot orthoses is speculative.
[248]
Ms McCorkell said in cross-examination that the ergometer she had recommended could be used by Mr Stewart with splints and straps employed to enable his right hand to remain attached to the pedal. The machine has a passive function where the pedals are powered by a motor. It could also be used actively by Mr Stewart just using his left arm to power the movement of the pedals. Ms McCorkell did accept that a large item of equipment such as this should be trialled on a rental basis before it was purchased for Mr Stewart.
[249]
As to the ankle foot orthoses, Ms McCorkell accepted that the process of increasing Mr Stewart’s capacity to bear weight on his right foot could be a painful process. If Mr Stewart was resistant to participating in that treatment, a physiotherapist would attempt to understand and address the barriers to Mr Stewart’s participation with other relevant specialists. If Mr Stewart persistently refused to engage in treatment using a particular technique, the physiotherapist would explore the use of other techniques.
[250]
I will discount the amount allowed for these items of physiotherapy equipment by 50% to take account of the risk that Mr Stewart is not prepared to use the equipment as part of his physiotherapy.
[251]
I allow $8,000 for the future cost of physiotherapy equipment.

Motorised wheelchair

[252]
Mr Stewart claims the cost of a motorised wheelchair, along with maintenance costs, in an amount of approximately $27,000. Over a period of five years (multiplier 231) the present value of these costs reduces to approximately $23,000.
[253]
The provision of a motorised wheelchair was suggested by Ms Coles and Ms Coventry, however each of them stress that it was “essential for Mr Stewart to be assessed for suitability”. In the report of the conclave of the occupational therapists both Ms Coles and Ms Coventry stated that they considered a fully customised manual wheelchair to be appropriate for Mr Stewart’s present needs.
[254]
Mr Stewart was assessed for a motorised wheelchair on 31 October 2016, while he was an inpatient in the GARU at the RBWH. He demonstrated the ability to learn how to use the joystick function. The impression, however, was of a need for him to improve his scanning in the use of the power chair before it could be considered a safe option. I am not satisfied on the evidence that the likelihood of Mr Stewart being able to operate a motorised wheelchair himself is sufficient to allow any amount for the provision of a motorised wheelchair on that basis.
[255]
Ms McCorkell recommended the provision of an attendant-operated motorised wheelchair to address the difficulty and manual handling risks for an attendant propelling the manual wheelchair presently provided for Mr Stewart’s use at Ozanam. In cross-examination, Ms McCorkell said that it was industry standard for an attendant-controlled wheelchair to be powered. However, the evidence of both Jesse and Ms Orr was to the effect that they did not experience difficulty propelling Mr Stewart in his manual wheelchair.
[256]
I am not satisfied on the evidence that it is reasonable for the MNHHS to pay for the cost of a motorised wheelchair.

Total damages for aids and equipment

[257]
The total amount I allow for aids and equipment is $14,500.

Future medical expenses

[258]
In closing submissions, Mr Stewart claimed $9,500 for the present value of future medical expenses, comprising attendances on a general practitioner.
[259]
This figure was set out in a document provided by the MNHHS at the commencement of the trial titled “Defendant’s Assessment of Damages at Start of Trial”.
[260]
I am satisfied that this is a reasonable amount. I allow $9,500 for the cost of future medical expenses.

Transportation

[261]
In closing submissions, Mr Stewart claimed $50,000 for the provision of a wheelchair accessible vehicle. The cost of a modified vehicle based on the evidence of Mr Greig would be approximately $80,000. That figure has been reduced to the lesser figure claimed by Mr Stewart because Mr Greig said that there is a long wait time for a new modified vehicle and Mr Stewart may need to source a second-hand vehicle that has been modified overseas.
[262]
The MNHHS submitted that, in circumstances where Mr Stewart’s transportation requirements are limited to less than one outing per week, the reasonable cost of transportation should be based on the cost of disability-adjusted maxi taxis, which Mr Stewart has used in the time he has resided at Ozanam. It proposed a weekly figure of $100 per week, being sufficient on its submissions for one or two trips.
[263]
The report of the occupational therapy conclave contained the following:
1. the participants observed that the cost of Mr Stewart owning his vehicle for a relatively few outings each week against the cost of a maxi taxi suggested it was not reasonable to recommend the ownership model of transport;
2. however, both Ms Coles and Mr Hart referred to many instances of the serious unreliability of maxi taxis where disabled clients were left waiting for hours in all weathers, missing appointments, or events;
3. all of the participants mentioned recurring problems with the drivers of maxi taxis not understanding client needs or the correct way to secure a wheelchair which varies between different wheelchairs and car makes;
4. the participants agreed, on balance, that owning a customized vehicle would provide Mr Stewart with appropriate safety, security, reliability, and freedom which could not be achieved by using a maxi taxi.
[264]
Ms Schwarzman gave evidence about the family’s experience using maxi taxis. During her cross-examination she said that there were times when it was okay to take a maxi taxi for an outing with Mr Stewart. She agreed that there were a number of regular taxi drivers that she could call upon to transport Mr Stewart who knew him and knew his needs. She said those drivers are very responsive and try to work with Mr Stewart as much as they can. However, she said that for the most part, using maxi taxis had been stressful because they arrived late a lot of the time. She also said there had been times when they were unable to access a maxi taxi for a return journey back to Ozanam after an outing.
[265]
Despite the concerns expressed by Ms Schwarzman and the occupational therapists about maxi taxis, I am not persuaded that it is reasonable to require the MNHHS to pay for the cost of a wheelchair accessible vehicle. The continued use of maxi taxis represents a reasonable alternative to the more significant cost of a modified vehicle.
[266]
Having said that, I do not consider that the weekly sum of $100 proposed by the MNHHS is sufficient. The purpose of the enhanced care arrangements at Ozanam is to permit Mr Stewart to go on more frequent outings in the community than is presently the case. A weekly figure of $150 would be reasonable to account for the likelihood that Mr Stewart will be taken on outings by Ms Schwarzman and Jesse on weekends and by his external care assistant on one or two occasions during the week. On that basis, over a period of five years (multiplier 231) the present value of the cost of Mr Stewart’s transportation is approximately $35,000.

Future rent and house modifications

[267]
Mr Stewart claimed the costs of future rent ($195,120) and housing modifications ($42,000). These costs were claimed on the basis that Mr Stewart will move into his own home. Having concluded that it would not be reasonable to assess Mr Stewart’s damages on that basis, I have not allowed any amount for these costs.

Management fees

[268]
Mr Stewart has claimed for the reasonable cost of fund management fees. The MNHHS agrees to that claim. The cost of such fees cannot be assessed until the size of Mr Stewart’s damages award has been determined. I will allow the parties the opportunity to seek to reach agreement as to the amount of these fees following delivery of this judgment. If the parties are unable to reach agreement, the matter can be relisted for further argument on that discrete issue.

Summary

[269]
I assess Mr Stewart’s total damages as follows:

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

Total damages (before management fees) $2,190,505.48

Conclusion

[270]
There will be judgment for Mr Stewart in the amount of $2,190,505.48, before management fees.
[271]
I will hear further from the parties as to the calculation of management fees and as to costs.

Footnotes

[1]Mr Stewart makes no claim for damages for loss of earning capacity.

[2]Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, 662.

[3]I consider the evidence in relation to the effect of Mr Stewart moving to his own home later in these reasons.

[4]Hills v Queensland [2006] QSC 244, [36].

[5]Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, 661.

[6]Sharman v Evans (1977) 138 CLR 563, 568.

[7]Sharman v Evans (1977) 138 CLR 563, 573.

[8](1991) 13 MVR 393, 398-399.

[9]Farr v Schultz (1988) 1 WAR 94, 113.

[10]Transcript 3-18:34-39.

[11]Transcript 3-57:4-8 (emphasis added).

[12]Transcript 6-75:44-46 and 6-76:32-39.

[13]Transcript 7-78:8-14.

[14]See for example Transcript 7-24:23-32, 7-36:34-43, 7-44:20-24.

[15]As to which see Sharman v Evans (1977) 138 CLR 563, 573; Farr v Schultz (1988) 1 WAR 94, 113 and 120.

[16]That being a multidisciplinary service providing specialist consulting services (medical, nursing and pharmacy) for subacute care to residents within aged care facilities thereby avoiding the need for such residents to be transported by ambulance to a hospital emergency department.

[17]Mr Stewart attended the Redcliffe Hospital on two separate occasions in the months after he commenced residing at Ozanam. On 8 April 2017, he underwent a CT scan of his brain following an unwitnessed fall. He was discharged back to Ozanam on the same day. Mr Stewart then returned to the Redcliffe Hospital from 21 April 2017 to 17 July 2017 for wound care of his colostomy and fistula which ultimately required surgical intervention.

[18]Based on Mr Hart’s evidence that QLS would provide two different carers attending on alternate days if the shifts were longer than four hours I have also allowed amounts estimated by Mr Hart for an external care provider business to coordinate the care assistants and for monthly staff meetings of the care assistants.

[19]Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

[20]The MNHHS accepted that it is not appropriate to discount the costs of Ozanam for contingencies. Had Mr Stewart suffered an adverse event and required nursing home care, the cost would have been covered by his pension. The only reason that the pension will no longer cover the costs is because Mr Stewart will receive an award of damages for negligence. The MNHHS submitted that the same is not true for the additional cost of an external care assistant and an activity coordinator to provide him further care.

[21]As defined in s 51 of the CL Act.

[22]CL Reg, s 7.

Editorial Notes

Published Case Name:
Stewart v Metro North Hospital and Health Service
Shortened Case Name:
Stewart v Metro North Hospital and Health Service
MNC:
[2024] QSC 41
Court:
QSC
Judge(s):
Cooper J
Date:
20 Mar 2024

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2024] QSC 41	20 Mar 2024	Trial of claim for damages for personal injuries arising out of negligent medical treatment; quantum in issue; judgment for plaintiff for $2,190,505.48 before management fees: Cooper J.
Primary Judgment	[2024] QSC 95	22 May 2024	Costs judgment: Cooper J.
Appeal Determined (QCA)	[2024] QCA 225	15 Nov 2024	Appeal against primary judgment dismissed; subject to orders below being amended to insert $2,171,244.03 in place of $2,190,505.48, cross-appeal dismissed: Boddice JA (Mullins P and Ryan J agreeing).
Appeal Determined (QCA)	[2024] QCA 226	15 Nov 2024	Appeal against costs judgment dismissed: Boddice JA (Mullins P and Ryan J agreeing).
Appeal Determined (QCA)	[2024] QCA 247	06 Dec 2024	Costs of appeal and cross-appeal determined: Mullins P, Boddice JA and Ryan J.
Application for Special Leave (HCA)	File Number: B71/2024	10 Dec 2024	Application for special leave to appeal filed.
Special Leave Granted (HCA)	[2025] HCADisp 35	06 Mar 2025	Special leave granted (on ground (c)): Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.
HCA Judgment	[2025] HCA 34	03 Sep 2025	Appeal allowed, orders below set aside, matter remitted for assessment of damages and consequential orders; Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ.

Appeal Status

Appeal Determined (QCA) - Appeal Determined (HCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Arthur Robinson (Grafton) Pty Ltd	View on:JADE(1968) 122 CLR 649	3 citations Jump To Cite 1 - (1968) 122 CLR 649 Cite 2 - (1968) 122 CLR 649 Cite 3 - (1968) 122 CLR 649
Farr v Schultz	(1988) 1 WAR 94	3 citations Jump To Cite 1 - (1988) 1 WAR 94 Cite 2 - (1988) 1 WAR 94 Cite 3 - (1988) 1 WAR 94
Hills v State of Queensland	[2006] QSC 244	1 citation Jump To Cite 1 - [2006] QSC 244
Lynch v Lynch & Anor	(1991) Aust Torts Reports 81	1 citation Jump To Cite 1 - (1991) Aust Torts Reports 81
Malec v J C Hutton Pty Ltd	View on:JADE(1990) 169 CLR 638	1 citation Jump To Cite 1 - (1990) 169 CLR 638
Sharman v Evans	View on:JADE(1977) 138 CLR 563	4 citations Jump To Cite 1 - (1977) 138 CLR 563 Cite 2 - (1977) 138 CLR 563 Cite 3 - (1977) 138 CLR 563 Cite 4 - (1977) 138 CLR 563
Wieben v Wain	(1991) 13 MVR 393	2 citations Jump To Cite 1 - (1991) 13 MVR 393 Cite 2 - (1991) 13 MVR 393

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Stewart v Metro North Hospital and Health Service	[2024] QCA 225	1 citation
Stewart v Metro North Hospital and Health Service [No 2]	[2024] QCA 247	1 citation

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