The first question most people ask regarding compensation is how much money they can expect to receive. A number of current and future factors determine the total sum of a claim, which has been illustrated in the Bosk v Burgess & Anor (QBE Insurance)  QSC 388 decision handed down in December 2021.
The case involved an international Plaintiff who sustained significant injuries in a motor vehicle accident. What makes this matter interesting is the sheer magnitude of damages awarded by Her Honour, Justice Elizabeth Wilson. Her Honour acknowledged the future need for specific purpose prostheses which the Plaintiff had not used prior to Trial, took into consideration the possibility of technological innovation for prostheses in the future and awarded damages in international currency.
Her Honour awarded the Plaintiff damages to the sum of $573,616.13 in Australian Dollars (AUD) plus an additional sum to be paid in his native currency of €871,373.04 (Euros). The most significant component of the damages payable was the cost to purchase and replace (every four years over his lifetime) four different styles of prosthetic limbs for different purposes (calculated in total to be an anticipated €529,240.67).
The Plaintiff was a 31-year-old German national, who was injured while holidaying in Australia. In 2014, the Plaintiff was walking along a footpath at Noosa Heads when the Defendant lost control of her car at a roundabout. She drove onto the footpath and collided with the Plaintiff, who sustained severe injuries, the most serious of which resulted in a below-knee amputation of his left leg.
Once he was discharged from the hospital nearly two months after the incident, the Plaintiff returned home to Germany for his rehabilitation and recovery. He remained in hospital in Germany for a period after his return, underwent inpatient rehabilitation, further surgery, and engaged in the difficult process of fitting and repeatedly refitting a lower limb prosthesis. To the Plaintiff’s credit, he then returned to his intended study and found a job in sports management.
Liability was admitted by the Defendant’s compulsory third-party insurer, QBE. The parties were able to agree to many heads of damages, though the issues of economic loss and the cost of prosthetics, domestic aids and in-home equipment remained in dispute at Trial. The parties called experts of various expertise such as Orthopaedic Surgeons, Psychiatrists, Occupational Therapists, Master Orthotists and Forensic Accountants to determine the Plaintiff’s economic loss.
Her Honour considered the Plaintiff’s past and future economic loss is best expressed in Euros, as are the future prosthetic costs the Plaintiff is likely to incur. On the other hand, the future costs of home aids and equipment were considered best expressed in Australian dollars.
At to future economic loss, Her Honour proceeded on the basis that the Plaintiff will likely be forced to endure his current level of symptomology and disability for the foreseeable future. In particular, he will continue to experience significant pain, skin irritations and infections as a result of wearing his prosthetic limb for long periods at work. In addition, he will experience severe symptoms when required to travel, which he has to do with reasonable frequency in his current position. Ultimately, the Plaintiff is at a higher risk of losing his job, missing out on opportunities for career progression and experiencing periods of unemployment due to his injuries.
Consideration of Prostheses
The Defendant argued the Plaintiff would only require prostheses of everyday use and waterproof prosthetics. On the other hand, the Plaintiff argued he would also require a number of different prostheses for special purposes.
Dr Olaf Gawron, Master Orthotist, had been responsible for supervising the management of the Plaintiff’s prostheses since approximately March 2015. In that role, he has supplied the Plaintiff with every day and waterproof prosthetic limbs, which the Plaintiff currently uses. The Plaintiff gave evidence that there are additional prosthetic limbs he would have liked but could not afford because his insurer would not cover these items (such as sports limbs and cosmetic limbs). That evidence was unchallenged, and Her Honour was satisfied the Plaintiff would obtain and use cosmetic and sports prosthetic limbs.
Her Honour was also satisfied with Dr Gawron’s evidence that replacement shafts would be required every four years, as well as annual maintenance and repair of the limbs. Her Honour also allowed a further sum for “the possibility of future technological innovation” over the course of the Plaintiff’s lifetime to account for the increasing costs of improved prosthetics in the future.
This case illustrates the length the Court may go to award significant damages to a Plaintiff in certain cases. Here, the Court preferred to award damages in international currency (with a significantly higher conversion rate from Australian Dollars) to an international Plaintiff who lives overseas – rather than awarding damages in Australian currency as the incident occurred in Australia (as is usually the case).
As we learned, the Court was also prepared to make allowances in the future for the possibility of technological innovation for prostheses, rather than an allowance associated with any certainty this innovation will occur in the foreseeable future. It is also important for a Defendant to consider all the evidence (in this case, perhaps a counter opinion from a Master Orthotist) that is required at Trial, as the argument the Plaintiff advanced that he would obtain and use specialised prostheses was entirely unchallenged by the Defendant and resulted in the Court favouring the Plaintiff’s argument.