Bosk v Burgess and Anor - [2021] QSC 338

SUPREME COURT OF QUEENSLAND

CITATION:

Bosk v Burgess & Anor [2021] QSC 338

PARTIES:

VINCENT ENZO BOSK

(plaintiff)

v
NOLA BARBARA BURGESS

(first defendant)
QBE INSURANCE (AUSTRALIA) LIMITED
ABN 78 003 191 035
(second defendant)

FILE NO:

SC No 5036 of 2017

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 to 11 November 2021

JUDGES:

Wilson J

ORDER:

Judgment for the plaintiff against the second defendant in the sum of $573,616.13 and €871,373.04

CATCHWORDS:

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME AND LOSS OF EARNING CAPACITY – GENERALLY – where the plaintiff underwent a below-knee amputation – where the plaintiff intended to commence a master’s degree in economics before he was injured – where the plaintiff’s studies were delayed because of his injury – what damages should be awarded for past economic loss

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME AND LOSS OF EARNING CAPACITY – GENERALLY – where the plaintiff completed a master’s degree in economics after his injury – where the plaintiff obtained full-time employment as a sports manager – where the plaintiff was capable of sedentary employment – where the plaintiff had difficulty travelling for work – where the plaintiff suffered from ongoing problems with his stump due to issues with prosthetic fitting – what damages should be awarded for future economic loss

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – MEDICAL, HOSPITAL AND LIKE EXPENSES – where the plaintiff’s treating orthotist gave evidence that he would require four types of prosthetic limb – where the plaintiff was not specifically asked whether he would like two of these limbs – whether a Jones v Dunkel inference arose – whether the future costs of all four prosthetic limbs were recoverable

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – MEDICAL, HOSPITAL AND LIKE EXPENSES – where the plaintiff claimed damages for prosthetic costs associated with future technological improvements – whether these costs were recoverable

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – MEDICAL, HOSPITAL AND LIKE EXPENSES – where the plaintiff claimed damages for future costs associated with an above-knee amputation – where the plaintiff’s treating orthotist opined that the surgery was indicated – where two orthopaedic surgeons opined that the surgery was not indicated – whether these costs were recoverable

Civil Liability Act 2003 (Qld), s 55

Ballesteros v Chidlow & Anor (2006) 46 MVR 149; [2006] QCA 323, cited
Beaven v Wagner Industrial Services Pty Ltd [2018] 2 Qd R 542; [2017] QCA 246, cited
Honnery v McKenzie, unreported, Court of Appeal, Qld, CA No 12 of 1997, 16 December 1997, cited

Malec v JC Hutton Ptd Ltd (1990) 169 CLR 638; [1990] HCA 20, cited

Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QSC 338
Decision Date: 14 December 2021

CaseChat Overview and Summary

The case of Bosk v Burgess and Anor involves the plaintiff, Mr Bosk, who suffered a below-knee amputation as a result of injuries sustained in a car accident. Mr Bosk's injury delayed his intended academic pursuits and subsequently affected his employment opportunities and earning capacity. The primary issues for the court were to determine the appropriate amount of damages for past economic loss, future economic loss, and other medical expenses related to the injury.

The court had to decide on the proper methodology to calculate past economic loss, taking into account the plaintiff's intended academic progress and subsequent employment. It was determined that Mr Bosk's alternative methodology, which factored in potential pay rises and accurately estimated his past economic loss, was more appropriate than the defendant's expert's approach. The court also examined the evidence regarding future economic loss, considering the differing opinions of the occupational therapists on the plaintiff's fitness for his current role and the potential limitations on his ability to travel or work long hours. The court concluded that while Mr Bosk could continue in his current role with some limitations, he might need to seek a sedentary role if his condition deteriorated. Additionally, the court addressed the recoverability of future medical expenses, including the costs of prosthetic limbs, potential technological improvements, and the possibility of an above-knee amputation.

The court ultimately awarded damages to the plaintiff, taking into account the past economic loss calculated by the plaintiff's alternative methodology, the likelihood of future economic loss, and the recoverable future medical expenses. The judgment recognised the impact of the injury on the plaintiff's life, including difficulties with stump healing and prosthetic fitting, and the resulting limitations on his work and home life. The court's decision provided a comprehensive assessment of the damages owed to the plaintiff, reflecting the specific circumstances of his injury and its long-term effects.

Orders

Orders of the court

Judgment for the plaintiff against the second defendant in the sum of $573,616.13 and €871,373.04

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

His girlfriend gave evidence she thinks the plaintiff is very stressed, particularly during the working week. When she sees the plaintiff on the weekends, his is really tired because he has to wear his prosthetic leg for such a long time during work. He also struggles psychologically because his is confronted with soccer on the weekends, which makes him feel sad. Over the course of the weekend, his mood usually improves with his girlfriend’s support, but when she leaves he feels bad again.Evidence of occupational therapists The parties tendered the following reports from occupational therapists Mr Hoey (commissioned by the plaintiff) and Mr Zietek (commissioned by the defendant): (a)report of Mr Hoey dated 24 April 2017 and 30 June 2020;(b)report of Mr Zietek dated 7 April 2017, 7 August 2017 and 29 August 2020; and(c)joint report of Mr Hoey and Mr Zietek dated 12 November 2020 (“the joint occupational therapy report”). The occupational therapists consider the issue of future economic loss in detail. Both occupational therapists were called to give oral evidence and, in my view, their reports provide the most detailed consideration the extent of the future economic loss the plaintiff is likely to suffer. In the joint occupational therapy report, Mr Hoey and Mr Zietek expressed different opinions about the impact of the plaintiff’s injuries on his future earning capacity. The report stated: “Mr Zietek has formed the opinion that Mr Bosk is generally fit to continue in his current sports management role. He described the capacity to sustain such employment with consistent attendance since October 2018. Difficulties in the role as described to Mr Zietek are contained within previous reports. Mr Bask had described intention to remain in the role. Mr Zietek acknowledges that Mr Bask is not suited to recurrent/prolonged periods of travel, and will better manage in his current role if this requirement can be limited. The occupational therapist felt that he will need to pay increased attention to skin care measures at the amputation site during periods of longer working hours, including removal of the prosthesis during times when working from home.Mr Hoey considers Mr Bosk unfit for long working hours, placing more weight on the psychiatric symptoms and concentration difficulties. Mr Hoey felt that the need to regulate his working hours and limit travel may mean the claimant needs to seek out a role of lower responsibility, which is solely sedentary in nature.The experts agree that Mr Bosk could work as a translator.The experts agree that if there is deterioration of his condition, then he will be restricted to purely sedentary employment, potentially with a greater proportion of duties completed from home at times of acute difficulty or with related absenteeism from the workplace.” Despite these differences, both occupational therapists agreed that: [A]ll aspects of an amputee's life are affected to the degree of the healing of the stump. That is, with good stump integrity, low infection rate, and with a well fitted prosthesis, many patients can achieve high levels of independence. However, in reverse, a significantly adverse event (or outcome) for any of these considerations can cause significant disability in a person's home and work life.

Decision

Reasons for decision

The plaintiff makes an alternative submission that, if the court is not persuaded by Mr Lee’s methodology, damages for past economic loss of €73,520.00 should be awarded. That amount is justified as follows: (a)Had he not been injured, the plaintiff would have remained on holiday in Australia until approximately 30 September 2014. No claim for economic loss is made for this period. (b)Had he not been injured, the plaintiff would have commenced his master’s degree in October 2014 and would have been awarded his degree by the end of October 2016 (a period of 24 months). While studying, the plaintiff would have returned to his pre-injury employment as a bartender and earned €800.00 net per month. Due to his injuries, the plaintiff did not work and earned no income during this period. The plaintiff therefore claims a loss of €800.00 net per month for 24 months, totalling €20,000.00. (c)After completing his master’s degree, the plaintiff would have secured employment similar to his present employment. Up to the present day, he would have been remunerated in that employment in amounts similar to those in which he has in fact been remunerated. In terms of the progress of his remuneration:(i)for the first 10 months of his employment at Rogon, the plaintiff earned €1,856.96 net per month;(ii)from about August 2019 for the next 17 months, his salary increased to €2,063.24 net per month; and(iii)from January 2021, his salary increased to €2,326.96 net per month. I note that, unlike Mr Lee, in calculating these net amounts, the plaintiff has deducted the health insurance contribution, pension insurance contribution, unemployment insurance contribution and long-term care insurance contribution.(d)The plaintiff would have applied for, and would have been granted, pay increases similar to those in fact granted to him, at points along the timeline of his employment comparable to those at which his pay increases were awarded by Rogon. (e)But for his injuries, the plaintiff would therefore have earned the following amounts as a sports consultant from November 2016 to present: (i)For 10 months from 1 November 2016 to 31 August 2017, €1,856.96 net per month, totalling €18,570.00. (ii)For the 17 months from 1 September 2017 to 31 January 2019, €2,063.24 net per month, totalling €35,075.00.(iii)For the 34 months from 1 February 2019 to present (14 December 2021), €2,326.96 net per month, totalling €80,280.48.[2] (f)In total, but for his injuries, the plaintiff would have earned €153,925.48 from the date of his injury to present. He in fact earned €79,242.00. As such, his total economic loss was €74,683.48. [2]I note that the plaintiffs’ calculations were taken to 31 November 2021 (which was clearly an error and intended to be 30 November 2021) and I have updated them to include a further 14 days to the date of judgment (additional €1,163.48). Conclusion on past economic loss I am satisfied that the plaintiff’s alternative methodology provides an accurate calculation of the plaintiff’s past economic loss. In my view, this methodology avoids the problems with Mr Lee’s report, while providing an accurate estimate of the plaintiff’s past economic loss that takes into account the likelihood of him receiving pay rises.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bosk v Burgess & Anor [2021] QSC 338
PARTIES:	VINCENT ENZO BOSK (plaintiff) v NOLA BARBARA BURGESS (first defendant) QBE INSURANCE (AUSTRALIA) LIMITED ABN 78 003 191 035 (second defendant)
FILE NO:	SC No 5036 of 2017
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	8 to 11 November 2021
JUDGES:	Wilson J
ORDER:	Judgment for the plaintiff against the second defendant in the sum of $573,616.13 and €871,373.04
CATCHWORDS:	DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME AND LOSS OF EARNING CAPACITY – GENERALLY – where the plaintiff underwent a below-knee amputation – where the plaintiff intended to commence a master’s degree in economics before he was injured – where the plaintiff’s studies were delayed because of his injury – what damages should be awarded for past economic loss DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME AND LOSS OF EARNING CAPACITY – GENERALLY – where the plaintiff completed a master’s degree in economics after his injury – where the plaintiff obtained full-time employment as a sports manager – where the plaintiff was capable of sedentary employment – where the plaintiff had difficulty travelling for work – where the plaintiff suffered from ongoing problems with his stump due to issues with prosthetic fitting – what damages should be awarded for future economic loss DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – MEDICAL, HOSPITAL AND LIKE EXPENSES – where the plaintiff’s treating orthotist gave evidence that he would require four types of prosthetic limb – where the plaintiff was not specifically asked whether he would like two of these limbs – whether a Jones v Dunkel inference arose – whether the future costs of all four prosthetic limbs were recoverable DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – MEDICAL, HOSPITAL AND LIKE EXPENSES – where the plaintiff claimed damages for prosthetic costs associated with future technological improvements – whether these costs were recoverable DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – OTHER HEADS OF DAMAGES – MEDICAL, HOSPITAL AND LIKE EXPENSES – where the plaintiff claimed damages for future costs associated with an above-knee amputation – where the plaintiff’s treating orthotist opined that the surgery was indicated – where two orthopaedic surgeons opined that the surgery was not indicated – whether these costs were recoverable Civil Liability Act 2003 (Qld), s 55 Ballesteros v Chidlow & Anor (2006) 46 MVR 149; [2006] QCA 323, cited Beaven v Wagner Industrial Services Pty Ltd [2018] 2 Qd R 542; [2017] QCA 246, cited Honnery v McKenzie, unreported, Court of Appeal, Qld, CA No 12 of 1997, 16 December 1997, cited Malec v JC Hutton Ptd Ltd (1990) 169 CLR 638; [1990] HCA 20, cited Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211,…