Therapy costs in question

Keywords

Independent living v care facility – reasonableness of additional costs of therapy and care to be provided in own residence.

Facts

The primary judge was not satisfied that the health benefits for Mr Stewart in seeking therapy and care assistance at his own home were significantly better than those likely to be achieved at a residential facility. The primary judge declined to order the “significant additional cost”.

One of Mr Stewart’s grounds for appeal contented error in that the primary judge should have awarded damages on the basis of him receiving care and therapy in his own residence given his expressed wishes and the associated health, psychological and emotional benefits in moving into his own residence.

Decision

Mullins P, Boddice JA and Ryan J, delivered on 15 November 2024.

Appeal dismissed where no error established in primary judge’s findings and orders. Cross appeal was also dismissed however, there was an agreed miscalculation as to the assessment of damages in the primary judgment.

Ratio

The Court of Appeal considered expenses which may be reasonably incurred by a plaintiff, in the nature of medical and nursing expenses, are recoverable, subject to a touchstone of reasonableness.

Evidence of Dr Rotinen Diaz and Ms McCorkell addressed the health benefits derived from receiving additional care and assistance. Dr Rotinen Diaz accepted that the enhanced therapy and care could be provided to Mr Stewart, either at his own residence or at the care facility.

The Court of Appeal concluded it was not reasonable to require Metro to pay the significant additional cost of Mr Stewart moving home where the health benefit of moving into his own home or remaining at the care facility were substantially the same.