Bosk v Burgess & 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 – -- 1 of 35 -- 2 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, cited Sutton v Hunter & Anor (2021) 97 MVR 451; [2021] QSC 249, cited Yamaguchi v Phipps & Anor [2016] QSC 151, cited COUNSEL: M Grant-Taylor QC with G J Barr for the plaintiff R Morton for the second defendant SOLICITORS: Maurice Blackburn Lawyers for the plaintiff McInnes Wilson Lawyers for the second defendant -- 2 of 35 -- [1] The plaintiff is a 31-year-old German national, who was injured while holidaying in Australia. On 26 May 2014, the plaintiff was walking along a footpath at Noosa Heads when the first defendant lost control of her car at a roundabout, drove onto the footpath and collided with him. The plaintiff sustained severe injuries, the most serious of which resulted in a below-knee amputation of his left leg. [2] The plaintiff claims damages for personal injury against the second defendant (the first defendant’s insurer). Liability is admitted, as are the following heads of damages: (a) general damages of $167,760.00 based on an injury scale value of 61; (b) past special damages of €169,085.75 for expenses paid by the plaintiff’s private health insurer, €3,305.38 for prosthetic expenses paid by the plaintiff, $3,234.63 for the plaintiff’s father’s travel, $5,338.32 for the plaintiff’s mother’s travel, $20,000.00 for other travel expenses, and $4,500.00 for pharmaceutical and like expenses; (c) past gratuitous care of $40,000.00 for care provided by the plaintiff’s parents and partner; (d) future gratuitous care of $80,000.00; and (e) future special damages of $8,995.00 for scar revision surgery, $4,632.00 for right knee and hip replacement surgery, $10,000.00 for pharmaceutical expenses, $5,000.00 for travel, $3,000.00 for home modifications, $1,261.33 for shower chairs, $443.17 for forearm crutches. [3] The parties agree that interest is to be calculated pursuant to section 60 of the Civil Liability Act 2003 (Qld) at 0.745 per cent. The parties also agree that loss of pension entitlements should be calculated at 9.5 per cent of past and future economic loss. [4] The issues that remain to be determined are the quantum of the following heads of damages: (a) past economic loss; (b) impairment to future earning capacity; (c) the future costs of some home aides and equipment; and (d) future prosthetic costs. [5] I will consider each of these items in turn. [6] I note at the outset that I intend to award damages under some heads of loss in Euros and some in Australian dollars. The court has the power to express an award for damages in a foreign currency, although it should give judgment in the currency which best expresses the plaintiff’s loss.1 In my view, 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 are best expressed in Australian dollars. It will be for the parties to agree upon an exchange rate. 1 Yamaguchi v Phipps & Anor [2016] QSC 151 at [204]. -- 3 of 35 -- 4 The plaintiff’s injuries and treatment [7] As a result of the accident, the plaintiff sustained the following injuries: (a) an open, comminuted fracture of the mid shaft of the right radius and ulna; (b) an open, multi-fragmentary fracture of the left tibia and fibula with accompanying vessel injuries; (c) a comminuted fracture of the mid shaft of the right femur; (d) an injury to the right knee involving disruption of the anterior cruciate ligament and a postero-lateral corner injury; (e) chest injuries involving a sternal fracture, fractures of the fourth and fifth ribs, bilateral haemopneumothoraces and a right pulmonary contusion; (f) abdominal injuries involving a Grade II splenic laceration, a right perinephric haematoma, and multiple mesenteric and serosal tears; and (g) multiple abrasions, contusions, lacerations and bruising. [8] The injury to the plaintiff’s left leg was so severe that, upon admission to the Nambour General Hospital, he underwent an amputation of the limb below the knee. Immediately after the accident, the plaintiff’s father (who is a paediatrician in Germany) flew to Nambour to be with his son. The plaintiff was then transferred to the Wesley Hospital in Brisbane. After some time, the plaintiff’s father had to return to Germany and his mother flew to Brisbane to be with him. [9] The plaintiff was repatriated to Germany about seven weeks after he was injured. He remained in hospital for a period after his return, underwent inpatient rehabilitation and a further surgery, and engaged in the difficult process of fitting and repeatedly refitting a lower limb prosthesis. After some time, he returned to study and he has since obtained employment. Past economic loss The plaintiff’s evidence [10] The plaintiff was born in Henstedt Ulzburg in the north of Germany. He completed high school in Germany in 2019 at the age of 19. After completing high school, the plaintiff took a “gap year”. He worked for a period to earn money for his travels, then spent seven or eight months living in Uruguay in South America. [11] He then returned to Germany and, in October 2010, he commenced a Bachelor of Economics Degree at the Albert Ludwig University in Freiburg. The plaintiff gave evidence that, when he started his degree, his intention was to work in international business when he graduated. He had chosen to take his gap year in South America to become fluent in Spanish, which he believed would assist with this goal. [12] I note that the plaintiff is also fluent in German (his first language), English, French and Portuguese. The plaintiff gave evidence in English, which I must say was near- perfect. He considers that his proficiency in French and Portuguese is comparable to his proficiency in English. He considers himself to be more proficient in Spanish than in English. -- 4 of 35 -- 5 [13] Whilst at university, the plaintiff worked as a bartender. He earned approximately €800.00 per month including tips, which was tax free. [14] The plaintiff completed his bachelor’s degree in April 2014. The plaintiff then decided to complete a master’s degree, again at Albert Ludwig University. [15] Before starting his master’s degree, Mr Bosk travelled to Australia, intending to stay in Australia for around five months, before returning to his studies. It was on this trip to Australia, on 26 May 2014, that Mr Bosk was injured. [16] Had Mr Bosk returned to Germany after five months as planned, he would have expected to finish his master’s degree after two years, in approximately September or October 2016. [17] The plaintiff gave evidence that, upon returning to his studies after his repatriation, he was unable to go to class as it was too difficult to make his way to the university buildings or library for some time. Making further inroads into his effective participation in his studies was the fact that he was undertaking physiotherapy treatment three times per week and was seeing a psychologist. As a result, the plaintiff only started his master’s degree at the end of 2014 and completed it in March or April 2018. [18] Due to his difficulties standing for long periods, the plaintiff was unable to return to his pre-injury occupation as a bartender while completing his master’s studies. [19] Despite having submitted between approximately six and 10 job applications, it took Mr Bosk approximately six months following the attainment of his master’s degree before he obtained employment. In October 2018, he eventually obtained employment with Rogon Sports Management (“Rogon”) as a sports manager for soccer players. Mr Lee’s report [20] Mr Lee is a forensic account who prepared reports dated 31 March 2017, 19 April 2017, 21 April 2017 and 4 November 2020. Mr Lee calculated past economic loss on the basis of the difference between the plaintiff’s notional pre-injury earnings and his actual earnings. In calculating the plaintiff’s notional pre-injury wages following the completion of his master’s degree, Mr Lee identified three possible scenarios: (a) scenario one (gross annual income of €39,500.00 with subsequent pay increases) where the plaintiff obtained employment as an economist and earned a wage in the lower quartile of economists with less than two years of professional experience; (b) scenario two (gross annual income of €49,000.00 with subsequent pay increases) where the plaintiff obtained employment as an economist and earned a wage in the upper quartile of economists with less than two years of professional experience; and (c) scenario three (gross annual income of €52,000.00 with subsequent pay increases) where the plaintiff obtained employment as an industrial engineer. -- 5 of 35 -- 6 [21] Appendix 4 to Mr Lee’s report of 4 November 2020 is a copy of a payslip for the plaintiff dated 17 September 2020. It shows, consistently with an annual salary of €39,000.00 that the monthly gross salary (Steuer Brutto) was then €3,250.00. It also shows: (a) income tax (Lohnsteuer) at €470.91; (b) church tax (Kirchensteuer) at €42.38 (1.24 per cent of gross); (c) solidarity surcharge (Solidaritatszuschlag) at €25.9 (5.5 per cent of income tax); (d) health insurance contribution (KB-beitrig) at €248.63 (7.3 per cent gross); (e) pension insurance contribution (RV-beitrig) at €302.25 (9.3 per cent gross); (f) unemployment insurance contribution (AV-beitrig) at €39.00 (1.25 per cent gross); and (g) long-term care insurance contribution (PV-beitrig) at €57.69 (1.75 per cent of gross). [22] Mr Lee’s calculations do not take the deductions in (d) to (g) above into account. In oral evidence, Mr Lee explained that he had not included these deductions because they create assets for the future that can be accessed in the event of ill health or unemployment. He said that it would be “double counting” to deduct these amounts and then also apply a discount for the vicissitudes of life. [23] Under cross-examination, however, Mr Lee admitted that the plaintiff’s mandatory health insurance, pension insurance, unemployment insurance and long-term care insurance contributions did not create a personal asset that an individual employee could access in the future. Instead, the contributions are made to a common resource pool, which creates a minimum standard of care or income protection for everyone. The parties’ submissions [24] The plaintiff’s primary submission was that past economic loss should be calculated in accordance with scenario three of Mr Lee’s report (the industrial engineer scenario) in the amount of €108,237.00. Alternatively, the plaintiff submits that scenario two (economist – high quartile) should be adopted. [25] The defendant makes a number of points in response to these submissions. First, the defendant submits that there is no evidence to justify the selection of the significantly higher earnings of an industrial engineer in scenario three. The plaintiff had just graduated with a master’s degree in economics and there is no evidence to suggest he was likely to have become an engineer. I agree that there is no evidence to support the adoption of scenario three. [26] Second, the defendant submits that it is inappropriate to adopt scenario two and assume that the plaintiff’s income would have been in the high quartile of economists with less than two years of experience. The plaintiff was starting out in his career and could hardly have been expected to start at the top. His actual earnings after four years of employment are in the middle range of the lower quartile in scenario one. -- 6 of 35 -- 7 The evidence shows that he is progressing in his earnings as might be expected. I agree that it was unrealistic to adopt scenario two. [27] Third, the defendant submits that Mr Lee’s report artificially inflates the plaintiff’s net monthly income because it fails to deduct the plaintiff’s mandatory health, pension, unemployment and long-term care insurance contributions. The defendant submits that Mr Lee’s reasoning is based on the incorrect premise that these deductions create assets for the future. It became apparent during cross-examination that it was inaccurate to describe these deductions as creating a personal asset for an individual employee to access in the future. Instead, the contributions are to a common resource pool, much like any other tax. [28] In any event, the defendant submits that Mr Lee’s reasoning is inapplicable to the calculation of past economic loss, as no discount for vicissitudes of life is customarily applied to awards for past economic loss. The defendant does not contend that any discount for vicissitudes should be applied, although it does submit that a small discount should be applied to take into account the possibility that the plaintiff would not have obtained employment immediately after graduating from his master’s degree. [29] In my view, Mr Lee’s methodology should not be accepted for the reasons outlined by the defendant. In particular, I note that health, pension, unemployment and long- term care insurance contributions should have been deducted from the plaintiff’s gross pay in order to calculate his net notional earnings. [30] 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. -- 7 of 35 -- 8 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. Conclusion on past economic loss [31] 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. [32] I am not satisfied that any discount should be applied to take into account the possibility that the plaintiff would not have obtained employment immediately after graduating from his master’s degree. All of the evidence indicates that the plaintiff was a promising young man, who is unlikely to have experienced any significant period of unemployment following the completion of his degree. [33] I adopt the plaintiff’s alternative methodology and order that the defendant pay the plaintiff damages of €74,683.48 for past economic loss. Interest on past economic loss [34] Applying the agreed interest rate of 0.745 per cent for the 7.64 years between the date of injury and judgment, I award interest of €1,138.59 on past economic loss. 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). -- 8 of 35 -- 9 Future economic loss [35] The plaintiff was 24 years old at the time of the accident and is currently 31 years old. The parties both proceed on the basis that he has just over 35 years of working life remaining until retirement at the age of 67. The plaintiff’s evidence [36] The plaintiff works as a sports manager at Rogon, which is an agency that negotiates contracts for professional soccer players. His role at Rogon involves mostly “back office” work. For example, his team brings soccer players in contact with insurers and helps them with tax declarations. He currently earns €2,326.96 net per month. [37] As he speaks Portuguese, the plaintiff works a lot with Brazilian players. He has to travel for work to countries within Europe such as England, Turkey and France to meet with players or watch their games. He gave evidence that he has problems travelling due to his prosthetic leg, which makes it difficult and painful to sit in an aeroplane. [38] The plaintiff tries to hide his injury from his colleagues (although he thinks they know that there is something wrong with his leg). He has not told anyone at work about his injury and avoids wearing shorts or taking off his prosthetic leg in public. He gave evidence that it was, unfortunately, totally unacceptable to have a disability in professional soccer. He expressed an opinion that professional soccer is built on the vision that everybody is very fit and in good shape. He said that it would be a “very weird thing” for someone who cannot even walk normally to look after the players. [39] The plaintiff gave evidence that he suffers from ongoing problems due to changes in his stump, which mean his prosthetic limb does not always fit well. This causes bad skin irritations, with painful open wounds at the end of his stump. The plaintiff tries to manage the irritation of his stump by taking his prosthetic limb off as soon as he comes home. On particularly bad days, he takes pain blockers to cope with the pain. [40] There are periods of time where he simply cannot wear his prosthetic limb due to skin irritations. There was a period in late 2018 or early 2019 for approximately three months where he could not wear his prosthetic limb due to skin irritations and he had to have injections for the pain. During this time, he mobilised by hopping around the house or using crutches. [41] The plaintiff gave evidence that he would enjoy his work if he did not have problems with his leg but it is very hard for him to cope with his injury at work. Details of the plaintiff’s accident, including his name and the fact of his injury, were reported by news outlets and appear on the internet. If he had not been injured, he gave evidence that he would have preferred to be in a job where he got to do lots of travelling. He always loved travelling and going to foreign places and his language skills would have come in useful. [42] The plaintiff also suffered from a wrist injury during the accident. He gave evidence that he suffers from ongoing numbness in his little finger on his right hand and has less power in his right hand. This makes it difficult to do activities such as grabbing a pen. It is also difficult to carry heavy items. -- 9 of 35 -- 10 Orthopaedic evidence [43] The parties obtained the following reports from orthopaedic surgeons Dr Morgan (commissioned by the plaintiff) and Dr Boys (commissioned by the defendant): (a) reports of Dr Morgan dated 2 March 2017 and 21 March 2018; (b) reports of Dr Boys dated 23 September 2015, 8 March 2017 and 10 May 2018; and (c) joint report of Dr Morgan and Dr Boys dated 11 February 2020 (“the joint orthopaedic report”). [44] In the joint orthopaedic report, Dr Morgan and Dr Boys expressed a joint opinion that, given the plaintiff’s tertiary qualifications, it is probable that he could engage in remunerative activities of a sedentary nature through to a normal retirement age. They concluded that his future remunerative prospects remain “relatively bright” given his advanced tertiary qualifications. I note that this is consistent with the opinions expressed by both doctors in their earlier reports. [45] The orthopaedic surgeons also opined that the plaintiff was at risk of requiring a right sided total hip replacement and right sided total knee replacement due to his injuries. Evidence of plastic and reconstructive surgeon [46] The parties also tendered reports of plastic and reconstructive surgeon Associate Professor Richard Lewandowski dated 8 March 2017 and 5 March 2020. He observed that the plaintiff suffered from “breakdowns” around the posterior knee, which required him to cease wearing his prosthetic leg for prolonged periods of time. Associate Professor Lewandowski observed that the plaintiff’s amputation scar and ill-fitting prosthesis causes him irritation and pain when travelling considerable distances for work. [47] Professor Lewandowski observed: “As mentioned in previous reports Mr Bosk had a Bachelor of Economics and a Masters of Economics which he was going to turn into a soccer business. He was fluent in many languages which would have helped him travel the world in his soccer business. His ability to continue in that work has been curtailed in some ways although he freely admits he is now gainfully employed in a similar area whereby he does travel in a sports management role. Given his constraints with ill-fitting prostheses and the difficulties associated with that he has had to curtail some of his activities accordingly… Given that he is in the industry he wishes I believe this will continue until such time as he has any flare ups from a prosthetic point of view which occasionally do recur. These areas are easily managed by him at the moment but may require larger interventions should they become more troublesome. He is not unfit for the pre-injury occupation, however he has had to modify this to allow him to undertake a travelling sports management business.” -- 10 of 35 -- 11 [48] The report does not provide details of how the plaintiff has had to curtail or modify his work. Psychiatric evidence [49] The parties tendered the following reports from psychiatrists Dr De Leacy (commissioned by the plaintiff) and Dr Chalk (commissioned by the defendant): (a) report of Dr De Leacy dated 8 March 2017; (b) reports of Dr Chalk dated 25 September 2015 and 5 March 2017; and (c) joint report of Dr de Leacy and Dr Chalk dated 29 February 2020 (“joint psychiatric report”). [50] Neither psychiatrist was required for oral examination. [51] The joint psychiatric report observed that the plaintiff is a nervous pedestrian and nervous on planes but was able to drive an automatic vehicle within his local area without difficulty. He described ongoing pain and stress and spending a considerable amount of time at home. He reported fluctuating sleep, with difficulties getting to sleep due to nightmares and flashbacks, as well as wakefulness during the night. The plaintiff had depleted energy levels and struggled to motivate himself. He reported that his concentration tended to fluctuate and sometimes losing focus, but his memory was reasonably good. He was not suicidal but reported a degree of irritability. The plaintiff had seen a psychologist and taken anti-depressants previously but was not having any psychiatric or psychological treatment at the time of the joint report. [52] I note that Dr Chalk’s report of 5 March 2017 opined that the plaintiff would struggle to work for more than 20 hours per week. Similarly, Dr De Leacy’s report of 8 March 2017 opined that the plaintiff was self-conscious and distractible and would have difficulty coping with work both psychically and psychologically. At the time of these reports, the plaintiff was still studying. He has now commenced full-time work. However, I note that he has given evidence that he experiences difficulties at work, particularly with travelling. [53] The joint psychiatric report did not expressly consider the impact of the plaintiff’s psychological injury on his future earning capacity but noted that he was working full-time and “thus there is no deficit in his adaptation”. It also observed that “travel remains a significant issue for him because of both pain and anxiety”. [54] The psychiatrists agreed on a diagnosis of residual symptoms of post-traumatic stress disorder and assessed the plaintiff with a five per cent impairment under the PIRS guidelines. I note that the joint psychiatric report was broadly consistent with the opinions expressed by the psychiatrists in their previous reports, although Dr De Leacy initially assessed the plaintiff with a six per cent impairment according to the PIRS guidelines. Evidence of family members about mental state [55] The plaintiff’s father gave evidence via video link from Germany. His said that, before the accident, the plaintiff was very happy and satisfied with his life. He made a lot of friends while studying in Spain and in Freiburg before the accident. -- 11 of 35 -- 12 [56] Since the accident, he has suffered from depression. He talked about committing suicide and asked his parents to take him to Switzerland, where that is legal, which was very distressing for his parents to hear. He has stopped talking about this now but is still depressed sometimes. He now retreats into his flat, with the shutters or awnings down so that no one can see he has a disability. He only takes his prosthesis off when he is with his family and girlfriend. He tries to hide his disability from other people, and particularly his employer. [57] The plaintiff’s girlfriend also gave evidence via video link from Germany. She lives in a different city to the plaintiff now, but they visit each other frequently, approximately three weekends in a month. She also speaks with him almost every day on the phone and texts him on WhatsApp. [58] She gave evidence that, before the accident, the plaintiff was very confident, optimistic, open and adventurous. The plaintiff made friends quickly, was very social and loved to be with other people. He never had any difficulties with anxiety about travelling. [59] Since the accident, the plaintiff has become anxious, particularly around traffic. He is fearful when he crosses the street as a pedestrian and even when driving in a car. He is no longer open, he does not speak much anymore and is frightened to get to know people. He is worried about people finding out about his disability and wants to be normal. [60] 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 [61] 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”). [62] 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. [63] 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: -- 12 of 35 -- 13 “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.” [64] 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. [65] In Mr Zietek’s report of 29 August 2020, Mr Zietek recorded the following information provided by the plaintiff about his work situation: “Mr Bosk detailed that he accessed employment on 1 October 2018, working for an agency (Rogon Sport Management). He drives to and from work in an automatic transmission vehicle. His role was described as associated with working with professional football (soccer) players, dealing with their contracts, transfers and coordination of their daily lives. He works on a fulltime basis, Monday to Friday, for in the order of 40 hours per week and some weekends, noting that he will work overtime at times. He stated that overtime was particularly required ‘…in summer, quite a lot, as that is the main transfer period’. He detailed that he may work 50 to 55 hours per week during the peak transfer season. He notably speaks multiple languages, which is a significant benefit in the role when communicating with international players who do not primarily speak English. He detailed requirements for travel to meet with players and their families. He said that the requirements for travel were variable. He detailed no -- 13 of 35 -- 14 requirement for work-related travel since the introduction of the COVID-19 pandemic-related social restrictions. His role involves communicating and working with international players, such as from Germany, France, Brazil, Italy etc. He described that he limits travel to necessary trips only, due to his ongoing mobility restrictions. In the office, he detailed working at a standard workstation/fixed height desk with a standard adjustable clerical chair. He specified use of a standard keyboard in the workplace. His role requires frequent use of his mobile telephone. If he experiences acute symptomatic exacerbation or difficulties / illness, he is capable of working from his home office. In his home office, he specified that he has a fixed height desk and a fixed height chair. He requires provision of an adjustable height clerical chair at a cost of around $500.00, replaceable every 10 years. He reportedly attends work on a consistent basis, with occasional absenteeism. He stated that he plans to continue in his role. He described lack of confidence for obtaining promotion within the industry to a role that would require more substantial travel, due to ongoing mobility restrictions. He did not describe marked inefficiency/incapacity in the workplace or associated formal address by his employer/management in such regard.” [66] Based on this information, Mr Zietek concluded: “Mr Bosk detailed that the majority of his current occupational activities with Rogon Sports Management were of a sedentary physical nature, working between 40 – 55 hours per week depending upon seasonal demands in his role. Given his described difficulty with tolerance of the prosthetic lower limb, he is likely to remain restricted with work tasks and roles requiring more frequent/longer periods of travel and mobility (including traversing stairs at stadiums, prolonged periods of sitting with the knee in a flexed position, prolonged periods of walking and standing etc.). His ability to speak multiple languages, his motivation to continue working in the industry, and his high level of qualifications (Master’s degree) remain supportive factors for Mr Bosk sustaining employment in the current industry on an ongoing basis. His current role is predominantly of a sedentary physical demand nature, with intermittent periods of travel. He has continued in his role without requirement for travel more recently given the impact of COVID-19 related social and travel restrictions. It is expected that Mr Bosk is physically capable of continuing in his current role, including working longer hours during the peak transfer season. He will need to pay increased attention to skin care measures at the amputation site during periods of longer working hours. Ongoing reviews for fitting of the prosthesis to ensure best possibility of fit, are likely to be required over time. A Prosthetist may be able to comment in this regard. Mr Bosk described anticipated difficulties in seeking promotion to roles involving more significant requirements for travel (including increased player contact and attendance at sporting fixtures), due to his mobility restrictions. His concerns are currently considered reasonable in light of the injuries sustained in the subject accident and -- 14 of 35 -- 15 ongoing report of symptomatology. His ability to tolerate work in an alternate role within Sports Management with more substantial amounts of travel will be directly related to his ability to source a better tolerated fitting of his lower limb prosthesis (and consequent improvement in weight bearing tolerances and comfort), and therefore ability to consistently manage the skin integrity at the stump with exposure to related tasks. Advancements in the area of prosthetic fitting may assist in this regard, however comment in this matter is deferred to a specialist prosthetist or orthopaedic specialist working in this area. Based upon his current presentation, he is not currently suited to a role with significant demands for travel and prolonged periods of walking and standing. Mr Bosk’s long term capacities for both work and activities of daily living will depend upon factors such as management of skin integrity at the amputation site, and tolerance/comfort associated with use of a definitive lower limb prosthesis and his level of motivation to attend to related tasks. If he continues in the manner as currently described, detailed requirements for assistance with activities of daily living and capacity for his current style of employment are likely to persist. If he achieves improvement (including with a better-tolerated lower limb prosthesis), then this may open up a wider variety of suitable employment opportunities and increase his independence with respect to completion of a range of activities of daily living. Consequently, if there is deterioration of his condition, then it is likely that 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, with potential for periodic increases in requirements for assistance in the domestic environment.” [67] In relation to Mr Zietek’s observations about the impact of COVID-19 on the frequency of the plaintiff’s work-related travel, I note that by the time of the hearing, travel restrictions had eased across Europe. The plaintiff gave evidence that he is again required to travel regularly within Europe to countries such as England, Turkey and France. To put that in context, he gave evidence that he had travelled to Istanbul approximately three weeks before the hearing, and to England two or three weeks before that. [68] Under cross-examination, Mr Zietek also explained that when he assessed the plaintiff, the plaintiff did not stress that he had problems with concentration affecting his work performance. As such, he did not place as much weight on that as Mr Hoey did. [69] In cross-examination, Mr Zietek was also asked to assume that, at the present day, the state of the plaintiff’s amputation stump was such that the plaintiff would look favourably upon accepting advice that he undergo an above-knee amputation. Mr Zietek was cross-examined on the basis of this assumption. In particular, Mr Zietek said that, on that assumption, he would agree with Mr Hoey that the need to regulate working hours and limit travel, could mean the plaintiff would need to seek out a position with lower responsibility that was solely sedentary in nature. He added that, -- 15 of 35 -- 16 in the long term, the plaintiff’s ability to work long hours would depend on the outcome of any above knee amputation. [70] In my view, Mr Zietek’s answers to this line of questioning needs to be put into proper context. The assumption Mr Zietek was asked to adopt was a reference to a question the plaintiff was asked by his own counsel about whether he would undergo an above- knee amputation. The exchange was as follows: “MR GRANT-TAYLOR: If the advice that you receive is that an above-knee amputation is indicated in your case, and that you should have one to improve your situation, would you follow that advice?--- If it was a doctor or an expert I trust in, I would definitely do it, even though it’s hard. And unfortunately, I know this is likely to happen.” [71] I note that the plaintiff’s statement that he would undergo an above-knee amputation was subject to the qualification that he would only do so if advised that the surgery was indicated by a doctor or expert he trusted. The plaintiff did not say that, at the present day, the state of his stump was such that he would look favourably upon accepting advice that he undergo an above-knee amputation, which is what Mr Zietek was asked to assume. [72] In Mr Hoey’s report of 29 August 2020, Mr Hoey reported that the plaintiff was experiencing oscillating levels of pain. On the day of the examination his pain was mild, but on a bad day his pain could be severe. Mr Hoey detailed the plaintiff’s ongoing symptoms as follows: “The claimant continues to experience ongoing left below knee stump pain. Stump shrinkage remains an ongoing feature. There are ongoing issues with the integrity of the skin over his stump. He reports that last year was a particularly bad year, with multiple periods of significant skin breakdown at the stump site. Mr Bosk reports that his right lower limb pain has improved to some extent. He describes ongoing pain in the right knee with prolonged periods of standing and walking, and crouching. He reports this pain is intermittent in nature. The pain in his right thigh and hip region has improved. The claimant continues to experience intermittent right upper limb pain. He describes there has been no change to the paraesthesia in his right upper limb which remains ‘constant’. His right upper limb remains weaker than the left side. There is ongoing low back pain of an intermittent nature. His symptoms are aggravated by prolonged periods of sitting, standing and walking as well as bending and twisting. Mr Bosk reports that is avoidant of taking lyrica for pain relief. He continues to take ibuprofen when his symptoms are particularly aggravated. He obtains some relief of his stump pain with ice packs. He relays that during 2019, he trailed various lidocaine injections in an attempt to relieve the pain in his stump. He apparently obtained no relief of his symptoms following the injections. -- 16 of 35 -- 17 The claimant continues to suffer from ongoing psychiatric symptoms. He remains frustrated by his limitations. Irritability is a feature. He experiences ongoing episodes of low mood. His sleep patterns are awry. At times he experiences flashbacks and nightmares. He experiences ongoing reduced motivation. His concentration fluctuates.” [73] Mr Hoey observed that the plaintiff was required to travel within Europe for his work approximately monthly for approximately two days at a time. [74] Mr Hoey then outlined the difficulties the plaintiff experiences at work in detail, which include: (a) right lower limb pain associated with long periods of computer-based work or sitting in meetings for extended periods, which requires him to take breaks to stretch or move around, reducing his efficiency; (b) right hand fatigue due to long periods of typing, which requires him to take breaks, reducing his work output; (c) right lower limb pain due to extended periods of standing and walking on his prosthetic limb, particularly whilst travelling; (d) pain-related sleep disturbances, contributing to daytime fatigue in the workplace, leading to heightened pain intensity and reduced concentration; and (e) irritability due to chronic pain, which reduces his tolerance of more complex work tasks and impacts his interactions with players, third parties and superiors. [75] Mr Hoey expressed an opinion that the plaintiff suffered from “significant psychiatric symptoms”. He was cross-examined at length about the basis for this opinion given that the joint psychiatric report concluded that, at best, there was residual PTSD and a PIRS impairment of five per cent. However, Mr Hoey maintained that impairment was irrelevant to his assessment of the distinct questions of disability and capacity for employment, which focus on the symptoms the plaintiff displayed. Those symptoms included ongoing difficulties with concentration, low mood, difficulties with distractibility, difficulties with anxiety and not wanting to socialise, all of which were important considerations in a man so young. [76] Based on these observations, Mr Hoey concluded: “[C]ommon sense dictates the conclusion that the claimant will be less efficient in his work; that he will need to regulate his working hours; and that he will need to limit the travel required in his current role. In my experience, such occupational impairments can invoke three crucial repercussions. (a) Through formal measurement (or perhaps observationally), employers or supervisors regularly measure employee efficiency. A worker less able to achieve referenced (or inferred) output targets is less valuable to the employer. Over time this increases the probability that Mr Bosk will lose his job (during restructuring, an economic downturn, or simply because an -- 17 of 35 -- 18 employer has grown tired of his compromised output). Simply, an employer will choose an efficient employee over a worker with reduced output every single time; (b) Regulated (or reduced) working hours have the apparent effect of decreasing (or precluding) the financial benefits of working longer hours (such as meeting targets) – but also invoking the subtle stigma associated with Mr Bosk regularly being unable to 'work back late' (as his co-workers do). Dr Chalk and de Leacy noted the following in their joint report: ‘. . . he described being “stressed with everything” and ultimately, in the afternoon, “chills at home”’. In my experience, such a worker is seen as less committed to their job. Less reliable. Further aggravating point one (in the paragraph above); and (c) The claimant has suffered continued difficulties with stump breakdown and pressure sores. Sick days related to the subject injuries create a noticeable loss of earnings. More subtle is the negative impression his work absences cause (in the eyes of his supervisor or work colleagues). When he is away from work there are either costs to the business (invoking the ire of his employer or supervisor) or staff around him are called upon to work harder to make up for his absence (fostering in them a sense of injustice related to the burden of increased work). These more subtle considerations further aggravate my arguments in point one (above). Psychiatrists Dr Chalk and de Leacy noted that travel remains a significant issue for Mr Bosk because of both pain and anxiety. The claimant describes that his symptoms have been so aggravated during times of travel (due to the long periods of wearing his prosthesis) that he has suffered significant stump breakdown. In my view, he is not fit for work that involves regular travel. Mr Bosk is worried about his job security (‘I don't know if they are going to keep me ... especially with this Coronavirus ... I will be first to go’). He finds the whole situation to be stressful. In a tightening economic climate (and with various sporting events being cancelled worldwide) I believe his concern for his job security is warranted. Whether or not he is able to hold onto his position during these uncertain times is unknown. Longer term, I believe that his inability for longer working hours and travel restrictions will cause great disadvantage in his career. As discussed above he is realistically not fit for work that involves regular travel and/or long working hours. Even working full time hours, he is struggling. He may need to seek out a position of lower responsibility that better accommodates his accident related needs. This could include (for example) an assistant role in the sporting management industry. He is multi-lingual and otherwise remains fit for work as a translator (a view shared by Mr Zietek), provided this work did not involve travel. The claimant has finalised his masters qualifications in economics. His concentration deficits and inability for long working hours mean -- 18 of 35 -- 19 that he not likely to be able to perform at a high level in economics or international business. That is, he is not fit for the natural progression otherwise available to a man of his economic background and intellect… I have laid out, in my opinion, Mr Bosk's various occupational impediments and the disadvantage this causes him in his present job. For reasons discussed above I believe he will need to regulate his working hours and limit travel. This may mean taking on a role of lower responsibility that is solely office based. In the context of education and experience, this disadvantage is amplified on the open labour market. In my opinion, it is readily evident that the claimant's earning capacity (resultant of injuries sustained in the subject incident) is now diminished. This man is twenty-nine years of age. Notionally there are some thirty-eight years to retirement. Over this period, it is evident to me that Mr Bosk's diminished earning capacity will (more likely than not) be productive of financial loss. I do not believe he will fulfil his lofty career aspirations in economics, finance or international business. He does not strike me as a man who will wallow in unemployment, but I do not believe he will work to his full (pre-injury) potential. The pragmatic reality is that people with chronic pain are underemployed compared with the general population. (emphasis added)” [77] I note that Mr Hoey’s report identifies a number of different sources of future economic loss, including the risk that the plaintiff will become unemployed, suffer disadvantage on the open labour market, require significant periods of sick leave, be forced to take a position with less responsibility that does not require long working hours or significant travel, or miss out on opportunities for career progression and associated pay rises. The principles [78] The High Court discussed the principles applicable to the assessment of future economic loss in Malec v JC Hutton Ptd Ltd.3 In that case, Deane, Gaudron and McHugh JJ observed: “When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future 3 (1990) 169 CLR 638. -- 19 of 35 -- 20 may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle; Davies v. Taylor; McIntosh v. Williams. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place. (citations omitted)”4 [79] Section 55 of the Civil Liability Act 2003 (Qld) does not alter this common law position,5 but provides: “55 When earnings can not be precisely calculated (1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. (2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. (3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. (4) The limitation mentioned in section 54(2) applies to an award of damages under this section.” [80] The parties agree that this is a case referred to in section 55(1), where it is not possible to calculate the plaintiff’s economic loss by reference to a defined weekly loss. In addition, the parties agree that the criteria in section 55(2) are satisfied. The evidence clearly establishes that the plaintiff will suffer future economic loss having regard to his age, work history, past economic loss and permanent impairment. In those circumstances, section 55(3) makes clear that I am entitled to make an award of damages for future economic loss, provided that I state the assumptions upon which the award is based and the methodology used to arrive at the award. 4 Malec v JC Hutton Ptd Ltd (1990) 169 CLR 638 at 642-643. 5 Sutton v Hunter & Anor (2021) 97 MVR 451 at [105]. -- 20 of 35 -- 21 [81] In Ballesteros v Chidlow & Anor,6 Fryberg J considered what was required for compliance with section 55(3): “[54] What is sufficient to enable compliance with the subsection? “Assumptions” and “methodology” operate in tandem in the provision, and the one throws light on the other. Both words have overtones of at least quasi-mathematical meaning. “Assumptions” could, of course, refer to the facts found by the judge upon which the award is based. In my view that would be a most inappropriate use of the word, and it seems unlikely that it was intended in this context. Apart from anything else, the subsection would be unnecessary if that were the meaning, since judges must in any event state their findings of fact. In the context of making a global award where, ex hypothesi, precise calculation by reference to a defined loss is impossible, it is much more likely to have been intended to refer to assumed facts underlying one or more hypothetical calculations which a judge might use in order to get a general idea of what might constitute a suitable global figure; or to similar facts or sets of facts used by the judge to confirm or cross-check a global figure selected by making an experienced guess. That in turn suggests that “methodology” does not refer to anything too demanding. In this context, an experienced guess is a legitimate methodology, although if possible it should be dissected in a manner appropriate to the circumstances of the case in order to understand what it might imply in those circumstances and thereby to confirm that the figure is of an appropriate order of magnitude.” [82] The purpose of section 55(3) is to ensure that “the assessment of damages proceeds in a manner which is sufficiently transparent that the basis of the decision is apparent, both to the parties and to an appellate court”.7 The parties advanced a number of arguments about the assumptions and methodology that I should employ. Assessment of future economic loss [83] The plaintiff’s primary submission was that future economic loss should be calculated in accordance with the Mr Lee’s report at €419,557.50 based on scenario three (the industrial engineer scenario) or, alternatively, at €333,899.00 based on scenario two (economist – high quartile). For the reasons already outlined, I do not accept that Mr Lee’s report provides a reliable basis for the calculation of economic loss. [84] In addition, I note that Mr Lee’s report assumes that, after 1 January 2022, the plaintiff will only ever work 75 per cent of usual working hours. There is no basis for that assumption. The medical evidence does not suggest that the plaintiff will be forced into part-time work and the plaintiff did not give evidence that he intends to work part-time. Instead, the evidence suggests that the plaintiff may require time off work, face periods of unemployment or have to find a job that involves less travel and shorter working hours. 6 (2006) 46 MVR 149 at [54]. 7 Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211 at [37] per Keane JA. -- 21 of 35 -- 22 [85] The plaintiff advanced an alternative argument that future economic loss should be calculated based on evidence about the earnings of the plaintiff’s 42-year-old cousin, Thore Bosk. Thore Bosk, who provided a statement to the court, obtained tertiary qualifications equivalent to a master’s degree in “medical informatics” and now works as a senior safety representative for CGM Software GmbH. He also has a second job as a quality representative. In 2018, Thore Bosk earned a net income of €60,770.00. [86] Counsel for the plaintiff acknowledges that this is substantially more than the plaintiff earns at present. However, he submits that it is not unreasonable to have expected that, over time, had it not been for his injuries, the plaintiff could have reached a similar level by the time he attained the same age. The plaintiff claims damages of €203,181.00 for future economic loss based on the assumption that the plaintiff’s notional pre-injury earning capacity was equivalent to Thore Bosk. [87] I am not persuaded that there is any real basis to assume that, but for his injury, the plaintiff is likely to have earned a net income similar to his cousin. Notwithstanding their familial relationship, the plaintiff and his cousin are individuals, with their own unique skills and abilities. They do not work in the same in industry or in the same part of Germany. Although they both have qualifications equivalent to a master’s degree, those qualifications are in different areas. Thore Bosk studied medical informatics, whereas the plaintiff studied economics with a thesis that was targeted towards finding work in the soccer industry. I do not accept the plaintiff’s alternative submission on future economic loss. [88] Finally, the plaintiff submits that, if I accept that there is little or no prospect that the plaintiff will undergo an above-knee amputation, there must be a concomitantly increased allowance in the award for future impairment of earning capacity. That is because such a finding will deny the plaintiff any opportunity, or will afford him only the most limited of opportunities, to alleviate the extent of his disability by undergoing the suggested surgery. [89] I acknowledge the defendant’s submission that, if an above knee amputation is eventually undertaken, it will be undertaken because it will be thought to improve the fitting of the plaintiff’s prosthesis. That would be expected to lessen the prospect of future economic loss. [90] In my view, for the reasons set out at paragraphs 152 to 159 of my reasons, it is very unlikely that an above-keen amputation would be indicated for the plaintiff, as it is unlikely to improve his overall function. Having reached that conclusion, I proceed 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 particularly severe symptoms when required to travel, which he has to do with reasonable frequency in his current position. I take this into account in determining his overall level of occupational impairment. [91] The defendant sets out a number of possible methods for calculating economic loss but submits that the plaintiff’s future economic loss is ultimately incapable of precise quantification. The defendant’s primary submission is that economic loss could be calculated on the basis of an overall reduction in the plaintiff’s earning capacity. The -- 22 of 35 -- 23 plaintiff’s current earning capacity is about €537.00 net per week. If the plaintiff suffered a complete devastation of that earning capacity today, then for the remaining 35 years of his life, his loss would be €470,412.00 discounted for present receipt.8 That loss should be discounted by 15 per cent for contingencies, giving a final result of just under €400,000.00. [92] If one then considered that the plaintiff had lost 20 per cent of his earning capacity due to his injury, then an assessment of €80,000.00 (approximately $120,000.00) would be arrived at. The defendant also sets out a number of other possible calculations, which would result in lower awards of damages for future economic loss. [93] I do not accept the assumption underlying the defendant’s calculations, that the plaintiff’s pre-injury earning capacity was limited to his current earning capacity of €537.00 net per week. The defendant was a bright, motivated person, with excellent language skills and I accept that, but for his injury, he would have had a promising future ahead of him. The problem is that I do not have clear evidence of what his earning capacity would have been. In my view, neither Mr Lee’s report nor the evidence of his cousin’s income provide a reliable basis upon which to calculate the plaintiff’s pre-injury earning capacity. [94] The plaintiff gave evidence that, prior to his injury, he was considering a career in international business. However, I do not have any evidence about how much he could have earned if he had found work in that industry upon which to base a calculation of future economic loss. [95] Despite these deficiencies in the evidence, in my view, the plaintiff’s current earning capacity is not limited to his current income of €537.00 net per week. Since starting at Rogon in October 2018, the plaintiff has received significant pay rises. After 10 months working at Rogon, his pay increased from €1,856.96 net per month to €2,063.24 net per month, which is an increase of 11.1 per cent. After another 17 months, his pay increased from €2,063.24 to €2,326.96, which is an increase of 12.78 per cent. The plaintiff has obtained these pay rises notwithstanding his injuries. [96] In my view, any calculation of economic loss must take into account the likelihood that the plaintiff will obtain pay rises over the remaining 35 years of his working life. As the defendant outlined, if the plaintiff continued to earn €537.00 net per week for the remaining 35 years of his working life, his earning capacity (discounted for present receipt) would be €470,412.00.9 In my view, that figure should be uplifted by 30 per cent to €611,535.60 to take into account the pay increases that the plaintiff would inevitably have received over the course of his career. [97] The defendant submits that it would be appropriate to assume a 20 per cent reduction in that earning capacity due to his injury. The 20 per cent figure appears to have been chosen arbitrarily. There is nothing inherently wrong with this, as both parties agree that the plaintiff’s future economic loss is not capable of precise calculation. [98] However, I am satisfied that the plaintiff has suffered more than a 20 per cent reduction in his earning capacity due to the amputation of his lower leg and his other 8 Multiplier 876. 9 €537.00 x multiplier 876. -- 23 of 35 -- 24 injuries. While the plaintiff is currently working full-time and travelling for work, I accept that he is struggling to cope with the demands of his job. He pushes through considerable pain to keep his job, but the medical evidence raises serious questions about whether this will be sustainable in the long term. [99] I note that Mr Zietek opined that the plaintiff “is not currently suited to a role with significant demands for travel and prolonged periods of walking and standing”. At the time of Mr Zietek’s report, the plaintiff was not required to travel due to COVID- 19 travel restrictions and Mr Zietek described his work at Rogan predominantly of a sedentary nature, with “intermittent” periods of travel. I am satisfied that, although the plaintiff’s job remains predominantly sedentary, since Mr Zietek’s report and the lifting of COVID-19 travel restrictions, the plaintiff has been required to travel more frequently for work. I am also satisfied that the plaintiff struggles with this travel. [100] Mr Zietek also opined that the plaintiff expressed “reasonable” concerns about his prospects of obtaining promotions to roles involving more significant requirements for travel (including increased player contact and attendance at sporting fixtures). That is consistent with Mr Hoey’s opinion that the plaintiff may miss out on opportunities for career progression. I agree that it is likely the plaintiff will miss out on opportunities for career progression due to his injuries. [101] To the extent that Mr Zietek placed less emphasis on the psychological symptoms experienced by the plaintiff, I prefer the report of Mr Hoey. The reports of the psychiatrists, as well as the evidence given by the plaintiff’s father and partner, clearly establish that he struggles mentally as well as physically due to his injuries. [102] Ultimately, I accept the opinion of Mr Hoey that: (a) the plaintiff will likely require time off work due to acute exacerbations of his injuries, particularly due to the deterioration of the skin around his stump following prolonged periods wearing his prosthetic limb; (b) the plaintiff is at a higher risk of losing his job and experiencing periods of unemployment due to his injuries, which make him a less productive worker; (c) if the plaintiff becomes unemployed, he will suffer disadvantage on the open labour market compared to uninjured job-seekers; (d) the plaintiff may miss out on opportunities for career progression as a result of his injuries or be forced to take a position with less responsibility that does not require long working hours or significant travel. [103] Each of these factors will be productive of a reduction in the plaintiff’s future earning capacity. In addition, in my view, the plaintiff may require time off work following further surgeries such as the right hip and knee replacement referred to in the joint orthopaedic report.10 [104] In my view, a reduction of approximately 35 per cent of the plaintiff’s uplifted earning capacity is appropriate to reflect the overall future economic loss the plaintiff is likely to suffer. Applying a discount of 15 per cent to this amount for the vicissitudes of 10 I note that, in my opinion, the evidence does not support a finding that the plaintiff is likely to undergo an above-knee amputation. -- 24 of 35 -- 25 life, that amounts to a net loss of €181,931.84.11 I note that this reflects a discounted loss of approximately €245.00 net per week.12 In my view, that is a reasonable estimate of the plaintiff’s average future economic loss, although I acknowledge that his loss will inevitably be greater at times and less at others. [105] I award the plaintiff €181,931.84 for future economic loss. Loss of pension entitlements [106] The parties agree that the plaintiff’s loss of pension entitlements should be calculated at 9.5 per cent of his past and future economic loss. I award the plaintiff €24,378.46 for lost pension entitlements.13 Future aids and equipment [107] In his report dated 30 June 2020, Mr Hoey recommends the following aids and equipment: (a) perching stool at a cost of $214.50 (replaced every five years); (b) automatic one-touch jar opener at a cost of $43.99 (replaced every two years); (c) automatic one-touch can opener at a cost of $32.99 (replaced every two years); (d) automatic one-touch bottle opener at a cost of $32.99 (replaced every two years); and (e) food processor at a cost of $269 (replaced every seven years). [108] These items were not included in the joint report, which only recommended crutches and a shower chair. [109] The plaintiff claimed $2,890.45 for these items. The defendant does not accept that these items are required. [110] Counsel for the defendant cross-examined Mr Hoey about whether the one-touch jar opener, can opener and bottle opener were necessary. Mr Hoey gave evidence that these items were required because of the plaintiff’s wrist injury, and the difficulty of opening cans, bottles and jars with one hand. Mr Hoey maintained that these items were necessary even though the plaintiff could potentially hold items against his body to open them. It might be realistic to expect someone to open items like this on a one- off occasion, but not in the context of a person living with significant pain, where his work requires him to type and use his hands throughout the day. [111] Under cross-examination, Mr Zietek explained that he had not recommended any of the kitchen aids because the plaintiff had not described difficulties operating normal utensils and preparing meals to him. He said his recommendation would also depend on how often he needed to open jars and cans. He did, however, accept that, assuming the plaintiff’s stump was in a state where he would look favourably upon advice to undergo an above knee amputation, a perching stool might be useful at the kitchen bench or table. 11 €611,535.60 x 0.35 x 0.85. 12 €181,931.84/876/0.85 = €244.35. 13 (€181,931.84 + €74,683.48) x 0.095. -- 25 of 35 -- 26 [112] I note that the evidence of the occupational therapists should be viewed in light of the joint orthopaedic report, which assessed the plaintiff’s restrictions in right forearm and right wrist movement with a two per cent whole person impairment, and right ulnar nerve sensory and motor loss attracting a 16 per cent whole person impairment. [113] I accept that the perching stool, automatic one-touch can, jar and bottle openers, and the food processor are all reasonably necessary aids given the plaintiff’s injuries, even if he did not specifically mention difficulties with meal preparation to Mr Zietek. I allow the plaintiff’s claim of $2,890.45 for these items. Future prosthetic expenses [114] The remaining disagreement between the parties arises out of a report of master orthotist, Mr Gawron, who is employed by orthopaedic technology company, Pohlig, and has been involved in managing the plaintiff’s prostheses since 2015. In a report dated 5 March 2018, Mr Gawron outlined his opinion about the prosthetic costs the plaintiff was likely to incur in the future. Those costs included, relevantly: (a) the costs of replacing and maintaining four types of lower leg prosthetic limbs; (b) ongoing expenses for technical innovations such as an electronic prosthetic foot that are not yet available for the plaintiff to use; (c) additional prosthetic costs that the plaintiff will incur if he undergoes an above- knee amputation. [115] The parties disagree about the plaintiff’s entitlement to damages under each of these heads. It is desirable to consider each head of damages in turn. Everyday, sport, cosmetic and waterproof prosthetic limbs [116] Mr Gawron opined that the plaintiff would require an everyday prosthetic limb (€20,000.00), sports prosthetic limb (€24,500.00), prosthetic limb with cosmetic silicone casing (€27,500.00) and waterproof prosthetic limb (€10,000.00) at regular intervals for the rest of his life. In addition, Mr Gawron opined that the plaintiff would require replacement shafts and waterproof shafts alternating with the new limb supply every two years (€8,000.00 each). Finally, Mr Gawron opined that the plaintiff would incur costs of approximately €10,000.00 per annum for maintenance, repair and accessory parts for his prosthetics. Type of prosthetic limbs [117] The defendant accepts that the plaintiff is entitled to costs related to the everyday and waterproof prosthetic limbs. However, the defendant submits there is insufficient evidence to support an award of damages for the cosmetic and sports prosthetic limbs. [118] Since his accident, the plaintiff has been provided with an everyday limb and waterproof limb, but not a cosmetic or sports limb. Mr Garwon’s report of 5 March 2018 explained that: “As a result of the lengthy consolidation phase of the stump, we have so far not focussed on fitting Mr Bosk with a cosmetically high-value prosthesis or a sports prosthesis. Both the cosmetic -- 26 of 35 -- 27 and the sports prosthesis are due to be produced over the course of the year.” [119] However, the sports and cosmetic prosthetic limbs have not yet been supplied. Neither the plaintiff nor Mr Gawron were asked about why this was when they gave oral evidence. In addition, counsel for the defendant stresses that the plaintiff was not specifically asked whether he wanted or would use a cosmetic or sports prosthetic limb. [120] The defendant submits that the failure of the plaintiff’s counsel to ask these questions gives rise to a Jones v Dunkel inference that their evidence would not have assisted the plaintiff’s case. The defendant cites the joint judgment of the Queensland Court of Appeal in Honnery v McKenzie,14 where the court stated: “...where a witness is not asked by his or her own counsel about an important matter as to which the other side has given evidence tending towards a certain inference. Where the conclusion which is open is that the reason for the failure to ask the witness the vital questions is that the answer “would have exposed facts unfavourable to the party” (Jones v Dunkel (1959) 101 CLR 298 at 320-321) then “the presumption that the testimony would not have been favourable to the party’s case is stronger than the one which arises from the failure to produce such a person as a witness”; Milliman v Rochester Railway Co 3 App Div 109; 39 NYS 274 (1896) approved in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418, 419...” [121] The defendant submits that it is not reasonable to impose significant costs for cosmetic and sports prosthetic limbs where the plaintiff has not used these items of equipment in the past and has not said that he wants to use them in the future. Further, the defendant submits that the plaintiff is unlikely to use a sports or cosmetic prosthetic limb because he tries to hide his disability. The basis for this appears to be that the plaintiff would not wear short pants even with a cosmetic prosthetic limb and would not wear a sports prosthesis because it would make his amputation obvious. [122] In addition, the defendant submitted that it was unlikely that the plaintiff would use a cosmetic prosthetic limb because Mr Gawron gave evidence that a cosmetic limb would be heavier and less effective in terms of compensating of the plaintiff’s impairment than an everyday limb. Mr Gawron gave evidence that it would be better for his functionality to wear an everyday prosthetic limb covered with long pants. [123] I note, however, that the defendant only partially quotes Mr Gawron’s evidence. Mr Gawron went on to explain that, while an everyday prosthetic limb is more functional and lighter, a cosmetic prosthetic limb looks more natural and has a cover that looks similar to skin. A cosmetic prosthetic limb can be worn with shorts but can also be worn with long pants to avoid the prosthetic being obvious when a person sits down and their lower calf is visible. Mr Gawron gave evidence that, for this reason, it may be advisable to wear cosmetic prosthetic limbs at official functions. 14 Unreported, Court of Appeal, Qld, CA No 12 of 1997, 16 December 1997. -- 27 of 35 -- 28 [124] With respect to the sports prosthesis, Mr Gawron gave evidence that a sports prosthesis does not have any cosmetic casing and is especially equipped for functionality. It is similar to the type of prosthetic limb worn by Paralympic athletes, although it is not identical because it is designed for normal activity like walking and jumping rather than high-intensity sport. Mr Gawron gave evidence that the amputation of a person wearing a sports prosthesis would be quite obvious if they did not wear long pants. However, he clarified that it was possible to wear a sports prosthesis under tracksuit pants. [125] The plaintiff was not expressly asked whether he would use a sports prosthesis or a cosmetic prosthesis. However, he did give evidence that there were some additional prostheses he wanted but could not afford to buy. He explained that there were quite a lot of costs that his health insurer refused to cover, which left him with two options: pay for the items out of pocket (which he could not afford to do); or accept the poorest version of the prosthesis. If he could have afforded it, he would have paid for more prostheses. I note that the plaintiff did not specify and was not asked what prosthetic limbs he could not afford. [126] In addition, the plaintiff gave evidence that he was exceedingly self-conscious about his amputation and tries to hide it as well as he can, especially at work. In my view, this supports an inference that he would use a cosmetic prosthetic limb if it were available. While he might not be able to use a cosmetic limb every day due to its lower functionality, I am satisfied that he would use it on occasion. It is clear that the plaintiff is very self-conscious about his amputation, particularly when he is at work. [127] The plaintiff also explained that, prior to his accident, he had played soccer for almost 20 years and soccer had always been his passion. He tailored his honour’s thesis to professional sporting organisations and specifically applied for jobs in the soccer industry. I accept his counsel’s description of the plaintiff as “sports mad”. [128] I accept, on the evidence, that it is more likely than not that the plaintiff would use both cosmetic and sports prostheses. Mr Gawron has been responsible for supervising the management the plaintiff’s prostheses since approximately March 2015. In that role, he has supplied the plaintiff with everyday and waterproof prosthetic limbs, which the plaintiff currently uses. The plaintiff gave evidence that there are other prosthetic limbs he would have liked but could not afford because his insurer would not cover these items. That evidence was unchallenged. [129] Mr Gawron’s report of 8 March 2018 identified that, in addition to the two prosthetic limbs the plaintiff currently uses, the plaintiff could use cosmetic and sports prosthetic limbs. The cosmetic and sports limbs had not been produced at the time of the report due to issues with the plaintiff’s stump. The report states that both the cosmetic and sports prosthetic limbs were due to be produced over the course of the year. [130] The limbs were evidently not produced. Counsel for the plaintiff did not question Mr Gawron about why the additional prosthetic limbs were not produced, and the plaintiff was not specifically asked whether he would have liked cosmetic and sports limbs. [131] In my view, Mr Gawron’s report establishes that the provision of the cosmetic and sports prosthetic limbs was something that has been contemplated by the plaintiff and his long-term treating orthotist. Issues with the plaintiff’s stump had to resolve before -- 28 of 35 -- 29 this could be embarked upon. At the time of Mr Gawron’s report, it was considered that these prostheses were due to be produced over the course of the year. In my view, on the evidence, it is not speculative that these prostheses will be produced for the plaintiff; it is just a question of when they will be produced. I am satisfied that at the time of the Mr Gawron’s report the cosmetic and sports prothesis were part of the prosthetic plan for the plaintiff’s future. This decision would require the plaintiff to consider how he could pay for them. At the time of Mr Gawron’s report there was an expectation that these prostheses were due to be produced over the course of the year. [132] I note that, in my view, the principles in Beaven v Wagner Industrial Services Pty Ltd15 have no application to this aspect of Mr Gawron’s report. Mr Gawron’s report provides evidence of the treatment that Mr Gawron has provided, when production of the sports and cosmetic protheses was expected, and the reasons it could not occur earlier. It is not evidence of the truth of any statements the plaintiff is claimed to have made. [133] So, in my view, the evidence establishes that cosmetic and sports limbs are planned to be produced; it is just a question of when that will occur. It is not entirely clear whether the limbs have as yet not been produced because of ongoing issues with the plaintiff’s stump or because the plaintiff could not afford them. However, the plaintiff has a desire for more prostheses and I am satisfied that he could use cosmetic and sports prosthetic limbs. I note that the unchallenged evidence is that the plaintiff is highly self-conscious about his amputation and is “sports mad”. [134] Taking all of the evidence into account, I am satisfied on the balance of probabilities that, when the plaintiff can afford them and when the condition of his stump allows, the cosmetic and sports prosthetic limbs will be produced. Accordingly, I am satisfied that the plaintiff will obtain and use cosmetic and sports prosthetic limbs, as well as the everyday and waterproof limbs he currently uses. [135] In my view, damages should be awarded to account for the future costs of the cosmetic and sports prosthetic limbs. However, I acknowledge that there is a possibility that they may not be used, or may not be used immediately. Accordingly, in line with the principles in Malec v JC Hutton Pty Ltd,16 a 20 per cent discount should be applied to the claims for the cosmetic and sports prostheses. Frequency of replacement [136] In his March 2018 report, Mr Gawron included a table showing that the prosthetic limbs would need to be replaced every four years and the shafts replaced every two years, alternating with the supply of the new prosthetic limbs. However, he also stated that “experience tells us that active prosthetic users require replacement prostheses on average every three years”. He clarified this in a letter to the plaintiff’s solicitors, stating: “As a rule of thumb, new prostheses are necessary every four years. Due to stump changes it is usually necessary to change the prosthesis stem every two years. If there are complications 15 [2018] 2 Qd R 542. 16 (1990) 169 CLR 638. -- 29 of 35 -- 30 or if the user of the prosthesis has body weight fluctuations for example, then a new prosthesis stem may also be necessary in shorter intervals.” [137] There was some discussion about the frequency with which the prosthetic limbs needed to be replaced at the trial, which was made more difficult due to difficulties with translation. The plaintiff calculated its claim for damages on the basis that replacement limbs would be required every three years and replacement shafts every two years. [138] On the other hand, the defendant’s calculations proceeded on the basis that replacement limbs were required every four years. The defendant’s calculations also assumed that replacement shafts were required every four years, commencing in two years’ time. The basis for this was that a new shaft was required every two years, but a new shaft would be included with each new prosthetic limb. [139] Mr Gawron ultimately gave oral evidence that prosthetic limbs need to be replaced every four years, although there is a new European law that provides that warranties on prosthetic limbs only last for three years. In my view, the cost of future prosthetic limbs should be calculated on the basis that they will need to be replaced every four years. I note that allowances have been made for replacement shafts every two years, as well as the annual maintenance and repair of the limbs. [140] The cost of replacement shafts should be calculated on the basis that they are required every four years, commencing in two years’ time. Conclusion [141] I therefore find that the plaintiff is entitled to recover the costs of a replacement everyday prosthetic limb (€20,000.00), sports prosthetic limb (€24,500.00), cosmetic prosthetic limbs (€27,500.00) and waterproof prosthetic limb (€10,000.00) every four years for the rest of his life. He is also entitled to recover the costs of a replacement shaft (€80,000.00) and waterproof shaft (€80,000.00) every four years for the rest of his life, commencing in two years’ time. The defendant has helpfully supplied tables detailing the appropriate multipliers on the deferred tables. [142] Applying those multipliers, as well as a further 20 per cent discount in relation to the cosmetic and sports prostheses, I find that the plaintiff is entitled to damages of: (a) €103,900.00 for everyday prosthetic limbs; (b) €114,290.00 for cosmetic prosthetic limbs;17 (c) €101,822.00 for sports prosthetic limbs;18 (d) €51,950.00 for waterproof prosthetic limbs; (e) €37,024.00 for replacement ordinary shafts; and (f) €27,744.00 for replacement waterproof shafts. 17 Includes a 20 per cent discount. 18 Includes a 20 per cent discount. -- 30 of 35 -- 31 [143] Finally, as I am satisfied that the plaintiff will require all four prosthetic limbs, I find that he is entitled to €10,000.00 per annum for their maintenance and repair (average of €192.31 per week). Applying a discount for present receipt,19 the plaintiff is entitled to a further €185,906.08 for these costs. [144] Applying a 15 per cent discount for the vicissitudes of life, I award the plaintiff €529,240.67 for the costs of replacing and maintaining the everyday, cosmetic, sports and waterproof prosthetic limbs. 20 Technical innovation [145] Mr Gawron’s report of 5 March 2018 includes an allowance of €50,000.00 every three years for “technological innovation, e.g. electronic prosthetic foot”. He justifies this amount as follows: “It is not possible to provide more than very rough estimates beyond the next 12 years. We already know of numerous research projects in connection with the development of bionic control systems for prosthetic components. An intermediate goal is the development of actively moving prosthetic feet and knee joints that are as light-weight as possible in contrast to the current-generation passively moving elements. Together with bionic control systems, thought controlled prostheses for the upper and lower extremity will be developed. This expected progress with all its concomitant innovations will lead to an increase in costs for the supply of prostheses and currently does not allow accurate cost estimates beyond the next 12 years. Further 12- year blocks can therefore only incorporate estimated additional factors on top of current costings. This factor should consist of an index for global cost increases and price rises which will be the result of technological progress. Price rises that were the result of the development of micro-processor controlled prosthetic knee joints and prosthetic feet over the past 20 years might be indicative of future price rises. Specifically, a price rise index could be established by comparing prices of a mechanically controlled prosthetic knee joint with hydraulic stand and swing phase resistance such as the Mauch Knee produced by Ossur or the 3R80 produced by Otto Bock and a microprocessor-controlled prosthetic knee joint with hydraulic stand and swing phase resistance such as the Rhee Knee XC or the Genium. Furthermore, price increases of a standard carbon flex-foot such as the Van-Flex Foot manufactured by Ossur would need to be allowed for in connection with a microprocessor-controlled prosthetic foot such as the Meridium Foot produced by Otto Beck.” [146] In relation to an electronic prosthetic foot, Mr Gawron noted that the present difficulty lies in the weight of the device based on available technology, in combination with the condition of the stump: “Mr Bosk's difficult circumstances of prosthetic care will always make it necessary to deploy newly developed ways of cushioning the stump, the latest materials for shaft construction and newly developed 19 Multiplier 966.7. 20 Total prosthetic expenses (€622,633.85) x 0.85. -- 31 of 35 -- 32 functional components, specifically high-functioning low-weight prosthetic feet. The greater the net weight of the prosthesis, the greater the shearing force on the stump surface caused by the pseudo-arthrotic movements over the course of the gait cycle described above. A gait cycle consists of a standing and swing phase. This involves an alternation of load uptake of body weight during the standing phase and a tensile load during the swing phase although it must be sad that this description merely encompasses the effect of the axial force on the stump. The forward movement of walking brings additional horizontal force to bear. Only through the use of latest prosthetic technology will it be possible in future to improve the degree of Mr Bosk's disability compensation.” [147] Using his experience and knowledge of such matters as set out, Mr Gawron opines that an ongoing cost of €50,000.00 ought to be applied. [148] The plaintiff notes that Mr Gawron’s evidence on that point was not challenged in cross-examination and there is no contrary evidence before the court. Accordingly, the plaintiff submits that the court should accept the uncontested evidence of Mr Gawron about the appropriate allowance for technical innovation. [149] During the trial, the defendant challenged the admissibility of Mr Gawron’s evidence on this point on the basis that it was speculative and did not comply with the rule that an expert witness must set out the reasoning by which they arrive at their conclusion. I held that Mr Gawron’s evidence was admissible but noted that the matters raised by the defendant were relevant to the weight I place on his evidence. [150] In all of the circumstances, in my view, very little weight can be placed on Mr Gawron’s evidence about the costs associated with future innovation. I accept the defendant’s submissions that there is little or no evidence as to: (a) what the cost of an electronic prosthetic foot, or any other item which is claimed in regard to the items for technological advancement would be; (b) when, if at all, there might be anything available in this respect; or (c) how much it would be reasonable to allow for these advancements. [151] The defendant submits that it is not reasonable to allow anything in this respect in the light of the absence of proof. At best, the defendant submits it might be reasonable to allow $25,000.00 for the possibility of future prosthetic expenses due to technological advances. [152] In my view, taking Mr Gawron’s evidence at its highest, and acknowledging that it was not challenged, his evidence is ultimately vague as to material considerations. For the reasons outlined by the defendant, I am not satisfied that Mr Gawron’s report provides an adequate basis upon which to award damages of €50,000 every three years for the costs of future technological prosthetics innovation. [153] Despite this, I acknowledge that there is a possibility of the plaintiff incurring further expenses in the future to technical innovation in prosthetic design. On the evidence before the court, it is difficult to quantify what those expenses may be. However, in -- 32 of 35 -- 33 my view, it is reasonable to allow €40,000.00 for the possibility of future prosthetic expenses due to technological innovation. Above-knee amputation [154] The parties disagree about the allowance that should be made for the possibility that the plaintiff will require an above-knee amputation in the future due to the deterioration of his stump. [155] Mr Gawron expressed an opinion that, due to the condition of the plaintiff’s stump, he will likely require an above-knee amputation. He explained: “As the attached photographic documentary evidence of the status of the stump of Enzo Bosk shows, we are not dealing with favourable conditions for management. This also explains why the supply of five interim shafts was necessary before the first definitive prosthetic shaft could be produced after about three years. The stump has a bony length of about 9cm. In relation to the body height, it is therefore very short. Photographic documentation also shows that the stump has mainly formed in the area of the tibial head. This is the area which does most of the load transfer work. The distal area contains a large amount of soft tissue cover while former muscle tissue has become adipose and softened. The tissue in this area lacks density. Accordingly, pseudo-arthrotic movement of the bony parts of the stump tissue and the stump itself within the prosthetic shaft are significant while walking with the prosthesis [11]. The photo (2015 0317_4) shows further evidence of significant movement between bony and soft tissue parts of the stump. … Due to the condition of the stump described above involving massive strain on the knee joint and the remainder of the stump, it is highly probable that a revision of the amputation for knee disarticulation or distal upper thigh amputation will become necessary.” (emphasis added) [156] However, neither orthopaedic surgeon recommended an above knee amputation. Dr Boys stated: “I note that there has been general discussion concerning an above knee amputation. This would appear to have occurred primarily in the context of pressure symptoms associated with filling of a left below knee prosthesis. It is noted this gentleman does have a short tibial stump but otherwise has a well preserved (clinically and radiologically) left knee. In this context, it would be my opinion this gentleman does not require an above knee amputation. A procedure of this nature would, in my opinion, compromise the strength and efficiency of this gentleman’s gait and although prosthetic fitting may be enhanced by this type of procedure, it would not be advised.” -- 33 of 35 -- 34 [157] Dr Morgan stated: “I would not recommend that Mr Bosk undergoes an above knee amputation. Whilst his below knee amputation stump is very short, and therefore less biomechanicailly sound than one would hope, it is still better than an above knee amputation. I believe that he is coping relatively well given his circumstance and that to convert him to an above knee amputation would be a retrograde step.” [158] Neither party called the orthopaedic surgeons to give evidence, and so their reports must be accepted as unchallenged. [159] The plaintiff gave oral evidence that he would undergo an above-knee amputation, subject to an important caveat. That caveat was that he would only undergo the surgery if advised to do so by a doctor or expert he trusted. He did not specify who such a person would be. [160] Mr Gawron is qualified as a master orthotist and can comment on whether surgery would improve prosthetic fitting. However, in my view, the orthopaedic surgeons are better qualified than Mr Gawron to comment on the broader consequences of an above-knee amputation for the plaintiff’s limb function. There are serious consequences which flow from such a medical procedure. In particular, I note Dr Boys’ comment that, although an above-knee amputation might be desirable in terms of prosthetic fittings, it would likely compromise the strength and efficiency of the plaintiff’s gait. Mr Gawron did not refer to such competing factors in his evidence. In the circumstances, I prefer the unchallenged evidence of the orthopaedic surgeons that an above-knee amputation is not indicated for the plaintiff. [161] The defendant submits that only a very small allowance should be made to guard against the remote possibility that there may be increased prosthetic costs subsequent to an above knee amputation. I accept that submission and award the plaintiff €20,000.00 to account for the small possibility that he will require an above-knee amputation. Conclusion [162] I give judgment for the plaintiff in the amount $573,616.13 and €871,373.04, as set out in the schedule of damages below. [163] I will hear the parties as to costs. HEAD OF DAMAGES AUD ($) EUROS (€) Pain and suffering and loss of amenities of life $167,760.00 Agreed Past economic loss €74,683.48 Interest on past economic loss €1,138.59 Future economic loss €181,931.84 -- 34 of 35 -- 35 Pension loss €24,378.46 Barmenia refund $262,082.90 Agreed Wilson v McLeay $8,572.95 Agreed Interest thereon21 $493.85 Agreed Past Prosthetic Cost $5,169.36 Agreed Interest on past prosthetic costs22 $294.23 Agreed Past expenditure $24,500.00 Agreed Interest on past expenditure23 $1,411.34 Agreed Future expenditure $33,331.50 Agreed 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 Agreed Future care $80,000.00 Agreed Subtotal $623,616.13 €871,373.04 Less advance on damages ($50,000.00) Agreed TOTAL $573,616.13 €871,373.04 21 $8,572.95 x 0.00754 x 7.64. 22 $5,169.36 x 0.00754 x 7.64. 23 24,500.00 x 0.00754 x 7.64. -- 35 of 35 --