Significant costs allowed for prostheses in Euros

Bosk v Burgess & Anor [2021] QSC 338

The plaintiff was significantly injured walking on a footpath when a motor vehicle lost control on a roundabout and drove into him.

The most serious injury was to his left leg, resulting in a below-knee amputation.

At the time of the injury, the plaintiff was holidaying in Australia. The plaintiff was repatriated to Germany seven weeks after the injury, and remained in hospital on his return, undertaking rehabilitation, surgery and the process of fitting a prosthesis to his lower limb.

The issues for determination were loss of earning capacity (past and future) and certain special damages and in particular, future prosthetics and their care and maintenance.

Wilson J approach the payment of damages by reference to Yamaguchi v Phipps & Anor [2016] QSC 151 and the currency which best expressed the plaintiff’s loss. Hence, some heads of damage were paid in Australian dollars and others in Euros, notably economic loss and future prosthetic costs.

The orthopaedic evidence from Drs Morgan and Boys was the plaintiff would be able to engage in sedentary employment until normal retirement age. The experts also opined the plaintiff was at risk of a hip and knee replacement.

The psychiatric evidence from Drs Chalk and De Leacy was the plaintiff had a diagnosis of residual post-traumatic stress disorder (PTSD). At the time of the experts’ assessments, the plaintiff was studying for his master’s degree. Dr Chalk considered the plaintiff would struggle to work for more than 20 hours per week. Since then the plaintiff had commenced full-time work, but gave evidence of difficulties at work, especially with travelling. The PIRS assessment was 5% and 6% respectively.

The plaintiff was assessed by occupational therapists, namely Mr Hoey and Mrs Zietek. Both agreed that much came down to the integrity of the healing of the stump and its ongoing integrity. If infections could be kept low and maintained with well-fitted prosthesis, independence and working life could be achieved. The experts diverged on the impact of the psychiatric condition. Mr Hoey considered the plaintiff suffered from “significant psychiatric symptoms”. In cross-examination, it was put to him that the psychiatrists’ reports were there was a low residual PSTD of 5%. Nevertheless, Mr Hoey maintained the impairment was irrelevant to questions of disability and capacity for employment. The symptoms included difficulties with concentration, low mood, distractibility, anxiety and not wanting to socialise. Based on these observations, Mr Hoey considered the plaintiff’s risk of losing his job would be increased because of his sick days increasing, being less able to work longer hours and travel.

While each case turns of the facts giving rise to the claim for loss of earning capacity, in this instance, the plaintiff relied on a forensic accountant’s report. However, her Honour was not persuaded to accept the report because some of the author’s assumptions were incorrect. Instead, the alternative claim which was formulated relied on the plaintiff returning to Germany, allowing for a period where he would not have worked because of the holiday, and then commencing and concluding a master’s degree, while supplementing his income in his pre-injury employment as a bartender. Her Honour accepted that on completing his master’s degree the plaintiff would have been remunerated in a similar type of sedentary employment he was now engaged in. It was also accepted that the plaintiff’s salary would have increased similar to the pay rises the plaintiff had experienced.

Her Honour noted that section 55(1) of the Civil Liability Act 2003 (CLA) did not displace the common law principle in Malec v JC Hutton Ptd Ltd.[3]

In applying subsection (3), her Honour had regard Ballesteros v Chidlow & Anor,[6] per Fryberg J.

The assumptions and methodology applied for the future loss of earning capacity were based on the past working history. Her Honour again rejected the forensic accountant’s formulations, together with the alternative that the plaintiff’s career would have mirrored his cousin.  In considering the plaintiff’s earning capacity, her Honour allowed an uplift of 30% to account for pay rises over 35 years. As to the loss of earning capacity, the defendant submitted it should be 20%. An award of 35% was made primarily based on the opinion of Mr Hoey and the need for further surgery.  A discount of 15% for the vicissitudes of life was also applied.

The most significant head of special damages was the cost of future prosthetic expenses. Evidence was given by master orthotist, Mr Gawron, an employee of the orthopaedic technology company, Pohlig. He was involved in managing the plaintiff’s prostheses since 2015. The divergence centred on the costs for cosmetic and sports prostheses in circumstances where the plaintiff had not used them in the past. The plaintiff gave evidence that he could not afford them and that he is exceedingly self-conscious and tries to hide his prosthesis at work. The evidence of Mr Gawron was the initial prosthesis and issues were directed to treating the plaintiff’s stump, but that it was contemplated that there would be further cosmetic and sports prostheses. Her Honour found that it was just a question of when and accordingly allowed a discount of 20% under Malec v JC Hutton Pty Ltd.[16]

As to the annual cost of replacement, it was the ultimate evidence of Mr Gawron that the limbs needed to be replaced every four years and the shafts every two years.

Damages were given as follows:

 

HEAD OF DAMAGES AUD ($) EUROS (€)  
Pain and suffering and loss of amenities of life $167,760.00  
Past economic loss €74,683.48  
Interest on past economic loss €1,138.59  
Future economic loss €181,931.84  
Pension loss €24,378.46  
Barmenia refund $262,082.90  
Wilson v McLeay $8,572.95  
Interest thereon[21] $493.85  
Past Prosthetic Cost $5,169.36  
Interest on past prosthetic costs[22] $294.23  
Past expenditure $24,500.00  
Interest on past expenditure[23] $1,411.34  
Future expenditure $33,331.50  
Future costs of replacing and maintaining everyday, waterproof, cosmetic and sports protheses €529,240.67  
Future prosthetics costs due to technological advancements €40,000.00  
Future prosthetics costs due to above-knee amputation €20,000.00  
Past care $40,000.00  
Future care $80,000.00  
Subtotal $623,616.13 €871,373.04  
Less advance on damages ($50,000.00)  
TOTAL $573,616.13 €871,373.0

 

David Cormack

Brisbane Barrister and Mediator 

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