The cost of prosthetics is important when preparing and presenting claims for damages in amputation cases. It is very important to include all likely future costs which the injured person over a lifetime is likely to incur for prosthetics.
These costs include:
- The cost of prosthetics associated with replacing and maintaining several types of lower leg prosthetic limbs.
- Ongoing expenses for technical innovations such as an electronic prosthetic foot that are not yet available for the injured person to use.
- Additional costs of prosthetics that the injured person will incur if he or she undergoes further amputation.
In a case heard in the Supreme Court of Queensland, (Vincent Bosk v. Burgess and QBE Insurance SC No. 5036 of 2017), Wilson J accepted that the evidence of a prosthetics expert, a Mr Gawron, (employed by orthopedic technology company, Pohlig).
In this decision dated 14 December 2021 the costs of the following items were awarded to the plaintiff who was injured in Queensland but lives in Germany.
- An everyday prosthetic limb plus sports prosthetic limb, plus prosthetic limb with cosmetic silicon casing, plus waterproof prosthetic limb at regular intervals for the rest of the Plaintiff’s life.
- Replacement shafts and waterproof shafts alternating with the new limb supply ever 2 years”.
- The costs of maintenance repair and accessory parts for the Plaintiff’s prosthetics on an annual basis.
Wilson J held he must be satisfied that it is more likely than not that the Plaintiff would use both cosmetic and sports prostheses. Evidence of the Plaintiff’s pre-accident sporting and other activities were relevant in this regard.
Frequency of replacement
The judge accepted Mr Gawron’s opinion that the prosthetic limbs would need to be replaced every 4 years and the shafts replaced every 2 years, alternating with the supply of the new prosthetic limbs.
The judge allowed the cost of a replacement everyday prosthetic limb, sports prosthetic limb, cosmetics prosthetic limb and waterproof prosthetic limb every 4 years for the rest of the Plaintiff’s life. He also awarded costs for the replacement shaft and waterproof shaft every 4 years for the rest of the Plaintiff’s life.
A claim was made for a significant allowance every 3 years for technological innovation. Mr Gawron opined that this is justified because he knew of numerous research projects in connection with the development of bionic control systems for prosthetic components. He said that an intermediate goal is the development of actively moving prosthetic feet and knee joints that are as lightweight 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. These developments will lead to an increased cost for the supplier of prostheses.
The Defendant challenged this evidence on the basis that it was too speculative.
The judge agreed to some extent. He was not satisfied that the expert’s opinion provided an adequate basis upon which to award damages of 50,000 E every 3 years for the cost future technological prosthetics innovation, as was claimed. Nevertheless Wilson J acknowledged that there is a possibility of the Plaintiff incurring further expenses in the future for technical innovation in prosthetic design:
“On the evidence before the Court, it is difficult to quantify what those expenses may be. However, in my view it is reasonable to allow €40,000 for the possibility of future prosthetic expenses due to technological innovation.”
The final award of almost €600,000 for future prosthetic costs was easily the largest head of Damages awarded to the Plaintiff.
Read the full decision here: https://www.queenslandjudgments.com.au/caselaw/qsc/2021/338
Written by Tom Goudkamp OAM