Provision of care needs for elderly: What is reasonable?

Motor Vehicle Directions

The Court of Appeal of New South Wales last week overturned a decision* awarding an 88 year old woman who, at the time of the hearing, was residing in an aged care facility, damages based on an assumption she would leave the nursing home, rent out an apartment and employ full time commercial carers.

Background

On 7 September 2007, the plaintiff (Mrs Chea) was a pedestrian in a car park in Cabramatta struck by a vehicle driven by the defendant, Ms Dang. The plaintiff sustained serious injuries including a brain injury The defendant’s insurer admitted liability.

The plaintiff was 83 years of age at the time of the accident, but by the time the matter was heard by Judge Balla in the District Court of NSW, she was 88 years old and suffering dementia.

At the time of her injury, she resided with one of her children, and was essentially independent in the performance of her daily activities. After her discharge from hospital, she returned to her son’s home, but about two years after the accident, she suffered a fall in her son’s home and fractured her left femur, and after she was treated in hospital for that injury, she was moved by the family into an aged care facility. Her placement in that facility cost around $1,680 per week. She had been a resident there for about 2½ years at the time of the District Court hearing.

At trial

There was an issue between the parties as to the plaintiff’s life expectancy, the plaintiff contending it was over six years, and the defendant contending it was much shorter due to the inevitable progression of the plaintiff’s dementia, and other issues. The judge found her life expectancy was 3.5 years, and that finding was not challenged by the parties on appeal.

In relation to care, the plaintiff contended that it was reasonable that she be allowed damages based on the assumption that she would move out of the aged care facility, and into private (rental) accommodation, where her care would be provided commercially on a full time basis. The plaintiff contended the aged care facility was not providing adequate care, in that the plaintiff had suffered many falls, and that a private placement was the only reasonable way to meet the care needs created by the severe injuries sustained in the accident. The cost of the regime for which the plaintiff contended amount to approximately $6,350 per week.

The defendant contended that given her age, and the fact that the claimant suffered dementia and there was evidence that she was distressed by change, it was reasonable that she remain in the aged care facility, as the additional cost (nearly $5,000 per week, or about $800,000 over her life expectancy) could not be justified when weighed against the anticipated benefit to the plaintiff. The aged care facility had better resources and equipment to deal with medical emergencies which the plaintiff might confront, and there was evidence that she became very upset by change of routine, and some doctors commented that a move from the nursing home into rental accommodation would be unsettling and deleterious to her psychological state and challenging behaviours, evidence which the trial judge accepted.

Notwithstanding this, and the very substantial cost of the change in the delivery of the plaintiff’s care, Judge Balla accepted the plaintiff’s contention, and awarded damages of approximately $1.09 million for future care alone, which included an allowance of $250 per week for rental of a suitable home, and almost $6,100 per week for full time commercial care.

In doing so Judge Balla accepted that there were ‘real and significant health benefits’ for the plaintiff in being transferred to private rental accommodation, being particularly swayed by the evidence of the plaintiff’s several falls in the nursing home and the risk she would sustain further injury if a better scheme of care were not in place.

The total damages award to the 88 year old plaintiff were in the order of $1.9 million.

On appeal

The defendant appealed on the basis that her Honour’s award of damages for future care and accommodation was manifestly excessive, and had been based on an erroneous interpretation of the evidence in relation to the incidence of the plaintiff’s falls. The Court of Appeal (Justice Garling, with whom McColl JA and Preston CJ in LEC agreed) upheld the appeal.

Garling J noted the relevant principal in the assessment of damages was ‘not to fulfil the ideal requirements for an injured plaintiff, but rather the reasonable requirements.’

His Honour held that Judge Balla erred when considering evidence concerning the plaintiff’s alleged falls at the aged care facility. Although the facility notes documented some falls, there were also other episodes where the plaintiff was noted to have been found sitting on the floor. Her Honour had concluded these were also evidence of falls, and Garling J consider that conclusion was unsafe. On his Honour’s analysis of the medical records, there had been a decrease in the incidence of confirmed falls over time, and her Honour’s error played a significant part in her concluding that there were real and significant health benefits in moving the plaintiff to private accommodation with commercial carers.

His Honour noted that the trial judge was required to make an assessment, in money terms, of the differential cost between the alternatives, and to keep in mind and give weight to the proportionate relationship between that monetary assessment and the overall assessment of damages, and he commented that the parties had not given the judge the assistance they should have in this regard.

His Honour determined that the provision of 24 hour commercial care in a private home represented ‘very much an ideal circumstance, rather than a reasonable one.’ He also stated that the detriment of the plaintiff being moved from her current nursing home to rented accommodation was significant. The Court therefore upheld the appeal.

Conclusion

The decision of the Court of Appeal emphasises that the guiding principal in what damages are awarded is what is reasonable, rather than what might be ‘ideal’. In this case, the additional cost associated with accommodating the plaintiff in rented premises and providing a 24 hours per day commercial care regime could not be justified when weighed up against the benefit (and detriment) of that arrangement to the plaintiff.

In this case, the plaintiff sought to convince the court that residential and care arrangements which had been in place for the 2 ½ years leading up to the hearing ought to be overturned in favour of a far more expensive and untested care regime.

One wonders whether, had the plaintiff been living at home with commercial assistance in place at the time of the hearing (perhaps funded by the insurer as a s83 expense) with or without significant assistance from family members (which, with the best will in the world, the family could not sustain in the longer term), the Court of Appeal would have endorsed an assessment of damages which assumed she would have relocated to a nursing home where her care needs could have been met much more economically?

*Dang v Chea [2013] NSWCA 80

Authored by Elizabeth Herbert, Senior Associate, Sydney.


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