Reasonableness and the right to care in your own home Stewart v Metro North Hospital and Health Services [2025] HCA 34

In a recent decision, the High Court of Australia has clarified the test of reasonableness for the purpose of assessing common law damages under the Civil Liability Act 2003 (Qld).

In Stewart v Metro North Hospital and Health Service [2025] HCA 34, the Court determined that it was reasonable for the catastrophically injured plaintiff who, at the time of trial, resided in a nursing home, to recover compensation for the future cost of nursing and medical care to allow him to live in his own home as he had done prior to the injury.

The High Court unanimously held the trial judge and Queensland Court of Appeal judges had erred in their assessment of reasonableness by weighing up the health benefits of the plaintiff living at home against the very significant additional cost of nursing care at home, and concluding those costs were not reasonable. This approach was wrong at law.

In determining reasonableness, the High Court held that the proper question to be asked is whether the plaintiff’s choice (to live at home) was a reasonable response to repair the consequences of the tort (and put him back into the position he was in prior to the defendant’s negligence) and whether the cost claimed was proved to be a reasonable cost of that response. If so, it was recoverable compensation unless the defendant could establish that the plaintiff had been unreasonable in refusing to take steps that might otherwise mitigate the losses in some way. The defendant had failed to prove this.

Background

In 2016, the plaintiff, a 63-year-old, sought treatment at Redcliffe Hospital in Queensland for nausea and generalised abdominal pain. As a result of his treatment, he sustained a perforated bowel, cardiac arrest, stroke and brain damage including loss of function of his right arm. The plaintiff was subsequently discharged to a nursing home.

Before his injury, the plaintiff lived in rented accommodation with his brother and shared custody of his 14year-old son, who often stayed with him and brought his dog.

The plaintiff sued the Health Service in relation to his injury.

Decisions at First Instance and on Appeal

At the trial, at which time the plaintiff was 71 and had a life expectancy of 5 years, there was a considerable body of evidence that the plaintiff did not wish to continue living in the nursing home and he would derive significant physical and mental health benefits from being cared for at home, where his son could stay with him from time to time, and the dog could also visit. Further, it was not disputed that the plaintiff’s physical condition had worsened at the nursing home, and he at least required additional carers and therapy. The plaintiff asserted his medical, health, social and nursing needs were not being met at the nursing home.

The trial judge had accepted that treating the plaintiff at home (albeit a rented home) for the remainder of his life would reap more health benefits than treating him at the nursing home even with supplemented carers and therapy, and the choice was not purely a question of amenity. However, the costs of care at home were assessed at $5m, which was 5 times the cost of the nursing home (even with supplemented care), and the trial judge determined the gain in health benefits was not substantial enough to justify the huge difference in costs.

The trial judge held (and the appeal court agreed) that it was not reasonable to require the defendant Health Service to pay these costs and refused to allow the plaintiff to recover the cost of living at home.

The plaintiff sought and was granted Special Leave to appeal to the High Court, with the sole ground of appeal to the High Court being that the lower courts had erred in their consideration of ‘reasonableness’ by failing to account for the following factors:

• the plaintiff had expressed a wish to be cared for at home, and did not want to stay at the nursing home so he could more easily have visits from his son and the dog
• this expressed care arrangement was ordinarily expected in the community
• this was his living arrangement prior to the injury; and
• this care arrangement offered uncontradicted and significant psychological and emotional benefits to the plaintiff.

High Court decision

The High Court confirmed the long held compensatory principle in tort, which aims to put a plaintiff in the same position as if the impugned conduct had not occurred. This is limited by the test of reasonableness, which requires a plaintiff to prove the reasonable costs of the steps taken to put them in the same position. Once the plaintiff establishes this, then the defendant has the burden to establish that the failure of the plaintiff to take an alternative option (which might reduce or eliminate the claimed costs) was unreasonable. This is often referred to as a failure to mitigate.

The High Court contrasted this case with that of Sharman v Evans (1977) 138 CLR 563. In Evans, the choice of a 20 year-old, catastrophically-injured plaintiff to continue living with her mother was accompanied by an increased risk to her health. Largely for that reason, the Court was not satisfied to do so was a reasonable choice, although the decision was complicated by a lack of unanimity. The High Court noted that the approach adopted in Evans by Justices Gibbs and Stephen, which considered the ‘touchstone of reasonableness’ as the process of weighing the cost of treatment against the health benefits to the plaintiff, was plainly wrong.

At [44], the High Court stated:

In a case such as this that proper approach requires 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. In assessing the reasonableness of that choice, all the circumstances should be considered and compared with those circumstances that existed prior to the tort. The assessment of reasonableness is not confined to balancing only the health assess benefits against the cost. The assessment of reasonableness will be significantly affected by what is ordinary in those circumstances. The same is true for the question of whether it was unreasonable for a person not to take alternative action which could have mitigated the loss.

The defendant failed to establish that the plaintiff’s refusal of the nursing home option was unreasonable. In reaching this view, the Court noted the “ordinary nature” of living in one’s own home reinforced the lack of unreasonableness in the plaintiff ‘s choice of this care option.

Implications

Undoubtedly, the decision reflects the evidence at trial that the plaintiff’s clear desire was to return home, he could be safely cared for at home and he would derive meaningful benefits from this arrangement. It did not delve into the often-contentious issue of what model of home care should be provided, and the costs of each, which is more commonly the focus of these cases.

The High Court also noted the comments made in Evans (decided in 1977) that a lifetime of nursing home care would also inform any award for general damages, and “this approach properly reduces the possibility of double counting in the assessment of damages”. However, it did not acknowledge that the sums involved in 2025 dwarfed the award of general damages, which in this case, was the sum of only $284,700, as limited by the statutory regime in Queensland.

For both plaintiffs and defendants, the High Court has now clarified that the test for reasonableness does not turn on proportionality, so much as it does restoration. That is, that damages will be considered reasonable if the costs associated assist in restoring the plaintiff to the position they had been in prior to the tort being committed and where the outcome would be considered ordinary in the circumstances.

The Court’s decision offers plaintiffs and defendants alike clarity as to the question of reasonableness where the plaintiff’s pre-injury position can be readily assessed and quantified such as living in one’s own home as against having to live in a nursing home as a result of the injuries sustained (not, for example, where a plaintiff would come to live in a nursing home in any event).

However, establishing reasonableness may be more difficult in cases where damages are sought for losses claimed on a hypothetical basis (such as loss of future income or for loss of a chance) or where the outcome of an award of damages would place the plaintiff in a position that was not consistent with the ordinary course of their pre-injury life (accounting for the obvious implications of a catastrophic injury).

In each circumstance however, it is for the defendant to establish that the losses could have been reduced or eliminated by steps that the plaintiff refused to take (for example, by refusing to undergo further medical treatment that might mitigate the loss) and proving that refusal was unreasonable.