11 September 2025
In a win for catastrophically injured plaintiffs, the High Court has delivered a clear and powerful decision, affording injured plaintiffs dignity and a right to choose where they live. The High Court found that a decision to live at home, with his family and pets was both reasonable and legitimate, despite it being more expensive.
The High Court made it clear that the concept of reasonableness is not just a cost balancing exercise, where the plaintiff is required to prove that the additional health benefits from residing at home justify the extra cost. The Court reiterated the fundamental principle of compensation is to put the injured person, as far as money can do, in the same position they would have been if the tort had not been committed.
The High Court were unanimous in their decision that damages should be awarded to allow Mr Stewart to reside at home, despite the significantly increased cost of this, compared to remaining in the nursing home.
Brief facts
Mr Stewart was 63 in March and April 2016 when he attended Redcliffe Hospital in Queensland for treatment of nausea and generalised abdominal pain. As a result of the negligent treatment of him, he suffered catastrophic injuries, including bowel perforations, sepsis, cardiac arrest and a stroke.
Mr Stewart was left significantly disabled and required 24-hour care. At the time of the trial in 2023 he had a reduced life expectancy of five years and was living in a nursing home.
Metro North Hospital and Health Services admitted liability for the negligent medical treatment, so the trial proceeded on the question of quantum only.
Queensland Supreme Court of Appeal
At first instance, the judge awarded damages based on Mr Stewart remaining in the nursing home, with the provision of an external care assistant to provide additional therapy and assistance. The cost of this was calculated at just over $1,000,000. The cost for home-based care was calculated at just under $5,000,000.
The trial judge balanced the health benefits associated with residing in his own home against the significant additional costs associated with this and found that it was unreasonable to require MNHHS to pay these extra costs. This balancing exercise was upheld by the Queensland Court of Appeal.
The High Court's approach to reasonableness
The High Court found that the approach to reasonableness taken by the trial judge and Court of Appeal was in error and reflected the approach taken by some of the authorities decided after Sharman v Evans.
The High Court reiterated that ‘[t]he compensatory principle in tort entitles an injured party to compensation in a sum which, so far as money can do, will put the party in the same position as they would have been if the tort had not been committed’ (at [1]).
The High Court made it clear that it was not enough to just balance the health benefits against the costs. They used a two-stage approach.
The first stage has the onus on the plaintiff and is ‘an assessment of whether the choice to incur the expense of care at home is a reasonable response to repair the consequences of the tort’ (at [44]). If the plaintiff can satisfy the Court that it was a reasonable response, the onus then shifts to the defendant for the second stage of the test. It is then for the defendant to establish that the failure by the plaintiff to take an alternative option was unreasonable, or that the plaintiff has failed to mitigate his loss.
The High Court considered the following factors in determining reasonableness:
- Prior to the negligence, Mr Stewart lived in a home.
- When he lived at home, his son and dog would regularly stay with him.
- Living in the nursing home did not restore him to the living position he was in prior.
- Mr Stewart’s physical and mental health would be enhanced through home-based care.
- Mr Stewart’s quality of life would be enhanced through home-based care.
- Being cared for at home is not unusual in society today.
The High Court made it clear that it would be unusual for a finding that it was unreasonable for a person to live in their own home or home setting when they lived like this prior to the tort, and their physical or mental health would be benefited, or at least not worsened by living at home.
Final thought
This case reminds us that compensation is more than just economics, it is about a person’s life and their right to be restored as close as possible, to the life they had before the tort.
The ALA thanks Sarah Vinall for this contribution.
The views and opinions expressed in this article are the authors and do not necessarily represent the views and opinions of the Australian Lawyers Alliance.
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