December 16, 2021

A German holiday maker struck by a car on a footpath when its driver lost control on a Noosa Heads roundabout has been awarded over $2 mil in injury compensation damages by the Supreme Court in Brisbane.

The accident in May 2014 inflicted severe injuries on the then 24-yr-old Vincent Bosk, including serious fractures to all limbs which resulted in an immediate below-knee amputation of his left leg on arrival at Nambour Hospital.

Bosk was repatriated to Germany about seven weeks after the accident for inpatient rehabilitation, further surgery and “the difficult process of fitting and repeatedly refitting a lower limb prosthesis”.

He had completed his undergraduate economics degree in April 2014 before flying to Queensland for a five month working holiday with the intention of starting a master’s degree to pursue a career in international sports management.

Despite the severe injury, he complete that qualification and eventually obtained employment – after many rejected job applications – as a sports manager for European football players in October 2018.

QBE Insurance – as CTP insurer for the at-fault driver – did not dispute liability for motor vehicle accident damages and agreed many of the amounts it was called on to pay.

It nevertheless put Bosk to proof on the issues of economic loss and the cost of prosthetics, domestic aids and in-home equipment.

When the damages case came before her in November, Justice Elizabeth Wilson decided she should give judgment for past and future economic loss – as well as future prosthetic costs – in Euros because an award in that currency “best expresses the loss the plaintiff is likely to incur”.

Bosk – who Her Honour considered to be “a promising young man” – commissioned a report from orthopaedic surgeon David Morgan while QBE engaged his colleague Peter Boys to provide a countervailing opinion.

The orthopedists and psychiatrists – Eric De Leacy and John Chalk – largely concurred in the joint reports they produced leaving the most significant difference in opinions being those of occupational therapists Stephen Hoey and Xavier Zietek who disagreed about the impact of the plaintiff’s injuries on his future earning capacity .

Zietek on the one hand considered that Bosk could continue in his sports management occupation. Hoey – who referenced the requirement that he travel through Europe for two days at a time each month – thought he was unfit, due to anxiety and the physical demands it imposed, for any occupation that required travel.

Her Honour assessed the appropriate loss of future earning capacity at 35% ie, €245 net per week resulting in an award of €182k for future economic loss over his entire working life.

As for loss of income to trial Bosk contended – with the support of forensic accountant Michael Lee – argued for damages of €108k based on what he would have expected to earn as an industrial engineer.

Justice Wilson rejected Lee’s methodology and awarded instead, €75k.

The most notable feature of the assessment was Her Honour’s €569k award – based on the report of master orthotist, Olaf Gawron – for the cost of replacing and maintaining prosthetic limbs.

Gawron, of German orthopaedic technology company Pohlig, had been involved in managing Bosk’s prostheses since 2015.

QBE opposed Gawron’s recommendation that his patient should be supplied sports and cosmetic prostheses and contended he should make do with everyday artificial limbs for all pursuits.

That argument was dismissed with Her Honour finding “it is more likely than not that the plaintiff would use both cosmetic and sports prostheses” as well as those of the everyday and waterproof variety.

The sum awarded included the cost of replacement of each variety of the artificial limbs every four years and a €40k allowance “for the possibility of future technological innovation” over Bosk’s lifetime.

QBE scored some success in defeating Bosk’s ask – on the othotist’s recommendation – that the “technological innovation” allowance should be €50k every three years to account for the increasing cost of improved prosthetics in the future because Her Honour thought the submission was unsupported by evidence as to the likelihood of such improvements occurring.

The total award was AUD$624k and €871k.

Bosk v Burgess & Anor [2021] QSC 338 Wilson J, 14 December 2021

Categories: Pedestrian accident

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