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, citedMalec v JC Hutton Ptd Ltd (1990) 169 CLR 638; [1990] HCA 20, cited
Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211,…
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- Case
- [2021] QSC 338
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.