This week the High Court has reaffirmed the “compensatory principle” when determining that it was appropriate and reasonable for a plaintiff to be awarded significant damages to enable him to be cared for in his own home, rather than in an institutional setting at a far lower cost.
This does not mean that home care will be found to be reasonable over institutional care in every case – but the High Court was at pains to remind us that the reasonableness test firstly focuses on whether, in the circumstances, the plaintiff’s preferred option will put the plaintiff back in the position they would have been in, but for the tort having been committed.
"Where a person lived in their own home or in a home setting prior to the tort, and the restoration of that position, or a similar position, will be beneficial or at least not worsen their physical or mental health, it would be unusual to find that the choice by that person to receive treatment at home or in a home setting is unreasonable."[1]
The onus is then on the defendant to prove that the damages claimed are unreasonable, because the plaintiff has unreasonably failed to mitigate their loss.
Prior to his accident, Mr Stewart lived in a house with his brother. He rented a room in the house. He had shared custody of his 14 year old son, and also enjoyed the company of the family dog. After his accident, Mr Stewart was cared for in a nursing home. His son was unable to visit the nursing home on a frequent basis, and although Mr Stewart could be visited by the family dog, he could not keep a dog for himself. Mr Stewart was not faring well in the nursing home setting, as he was not engaging in therapy. His mental health was suffering.
Mr Stewart expressed a preference to return home – where he could spend more time with his son and the family dog. Or could even get a dog of his own.
Continued residence in the nursing home until the end of his life – even allowing for the cost of an external carer to increase Mr Stewart’s access to therapy - was estimated to cost just over $1 million. Returning to a house and being cared for at home was estimated to cost $5 million.
There was medical support indicating that returning home would have clear health benefits for Mr Stewart. There was also evidence that the health benefits of remaining in the nursing home with support from an external carer could generate similar health benefits for Mr Stewart.
At first instance, the trial judge found that there was a roughly equivalent health benefit from both scenarios, and therefore it was not reasonable for Mr Stewart to be returned home when he could be provided with a similar benefit at a lower cost to the defendant. This decision was upheld by the Court of Appeal.
The High Court found that the trial judge and the appellate court approached the determination of reasonableness incorrectly.
The focus should have been on whether the preference expressed by the plaintiff was reasonable in all of the circumstances, rather than the focus being solely on balancing the health benefits of expenditure against the cost of the expenditure.
Relevant circumstances that supported Mr Stewart’s preference being reasonable included that:
The court then looked at whether the defendant discharged its onus of proving that Mr Stewart acted unreasonably when refusing to accept the cheaper option of living in the nursing home with enhanced care from an external care work.
The court found that although it was possible that Mr Stewart might be equally motivated to engage in therapy if it was being provided by an external worker while still living in the nursing home, the outcome for his physical health would likely be similar to him receiving care at home. Therefore, preferring to receive care at home was not unreasonable on that basis.
Further, the benefits to his mental health and wellbeing that would result from him living in his own meant that it was not unreasonable for him to prefer to live at home.
___
[1] [2025] HCA 34, [45].