Saul v Machalek - [2021] QCA 7

SUPREME COURT OF QUEENSLAND

CITATION:

Saul v Machalek & Anor [2021] QCA 7

PARTIES:

KAIN JASON SAUL
(applicant)
v
PAUL MACHALEK
(first respondent)
ALLIANZ AUSTRALIA INSURANCE LIMITED – BRISBANE
ACN 000 122 850
(second respondent)

FILE NO/S:

Appeal No 5641 of 2020
DC No 95 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Southport – [2020] QDC 69 (Muir DCJ)

DELIVERED ON:

29 January 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2020

JUDGES:

Philippides and Mullins JJA and Brown J

ORDER:

Application for leave to appeal refused with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES – PERSONAL INJURY OR DEATH CASES – where the applicant fractured his right leg when he was struck by the first respondent’s car – where the applicant was a professional motorcycle stuntman – where at the time of the accident the applicant was recovering from an injury to his left knee sustained in the course of his employment – where the applicant could not ride for approximately a year due to his left knee injury – where the applicant lost his position as a full time professional motorcycle stuntman and was instead offered a part time position – where the applicant claimed economic loss on the basis that the injury to the right leg caused additional time away from riding, leading to his replacement as lead rider – where the primary judge held that the injury to his right leg did not delay the applicant’s return to work – whether the primary judge erred in finding that the applicant had not established that but for the injury to his right leg he would have reclaimed the full time position

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where the applicant fractured his right leg when he was struck by the first respondent’s car – where the applicant was a professional motorcycle stuntman – where the applicant was diagnosed with moderate patellofemoral chondromalacia in his right knee – where the primary judge found that the condition was caused by the accident – where the applicant gave evidence of worsening pain from 12 months after the accident – where there were no medical or physiotherapy records of the applicant seeking treatment for pain in his right knee despite regularly seeking treatment for other injuries – where the applicant claimed to have been treating the injury at home – where the primary judge accepted that the applicant experienced mild to moderate pain in the right knee from May 2017 (about two years and seven months after the accident) – whether the primary judge erred in the findings about the timing of the onset of pain in the right knee and the claim for damages

Uniform Civil Procedure Rules 1999 (Qld), r 547

Valeriani v Gibson [1963] NSWR…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Saul v Machalek

Details

AGLC: Saul v Machalek [2021] QCA 7
Case: [2021] QCA 7
Decision Date: 29 January 2021

CaseChat Overview and Summary

In the case of Saul v Machalek, the applicant, a professional motorcycle stuntman, appealed against the damages awarded by the trial judge following an accident in which he was struck by the respondent's car, fracturing his right leg. The applicant, who was already recovering from an injury to his left knee, claimed that the right leg injury caused additional time away from riding, leading to his replacement as the lead rider for ShowTime, a motorcycle stunt show operator. The primary judge, however, held that the right leg injury did not delay the applicant’s return to work and thus did not entitle him to additional damages.

The legal issues before the court included whether the primary judge erred in finding that the applicant had not established that but for the injury to his right leg, he would have reclaimed his full-time position as lead rider. The court also needed to consider whether the primary judge erred in the findings about the timing of the onset of pain in the right knee and the claim for damages. The applicant argued that the primary judge should have accepted his evidence about the worsening pain in his right knee from twelve months after the accident, and that the absence of medical records did not negate his claim for damages.

The court examined the evidence, particularly from the owner of ShowTime, Mr Reid, who testified that the applicant's performance had not returned to the pre-injury level, and the applicant was not back to 100 per cent. The court found that the applicant had not demonstrated that the injury to his right leg was the cause of the delay in his return to work. The court also found that the primary judge's assessment of the timing of the onset of pain in the right knee was not erroneous, given the lack of medical records and the applicant's inconsistent claims about treatment.

The appeal was dismissed, and the application for leave to appeal was refused with costs. The court held that the primary judge's findings on the damages for the right leg injury were supported by the evidence, and there was no basis for interference with those findings.

Orders

Orders of the court

Application for leave to appeal refused with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was common ground at the trial that one of the conditions that Mr Saul had in his right knee was chondromalacia patellae. One of the issues that was determined by the primary judge in Mr Saul’s favour (at [188] of the reasons) and in respect of which there is no challenge was that the condition of chondromalacia patellae was caused by the accident.Summary of the relevant evidence on the lead rider issue Evidence in relation to whether Mr Saul would have returned as lead rider for ShowTime was given principally by the owner of ShowTime, Mr Reid, and to a lesser extent by Mr Saul. The uncontroversial evidence can be summarised as follows. ShowTime is the largest operator of motorcycle stunt shows in Australia. The business was structured so that Mr Reid had two lead riders who were offered full time engagement (either as employees or contractors) performing at least 100 shows per year and performing other duties such as driving trucks and workshop duties. ShowTime also employed one other rider on a regular part time basis who was referred to as the third rider. Prior to Mr Saul’s injuring his left knee in March 2014, he had been one of the lead riders since 2012 and Mr Marshall was the third rider. When Mr Saul injured his left knee in March 2014, it was Mr Reid’s intention that Mr Marshall would step up into the lead rider role on a temporary basis to cover for Mr Saul. Mr Saul returned to training in January 2015 and returned to performing by February 2015. Mr Reid prepared a contract for Mr Saul offering him a part time role on 11 February 2015 (exhibit 1.15). That letter advised that, barring injury, Mr Saul would have a minimum of 50 days of travelling shows. Mr Saul underwent further surgery in February and November 2016 on his right leg and never reclaimed the lead rider role. Mr Reid’s evidence-in-chief included the following. Mr Reid described Mr Saul’s left knee injury in March 2014 as a “pretty common injury”, so he knew the recovery time. As far as Mr Reid knew, as at mid-September 2014 Mr Saul’s left knee injury was progressing “really well”, as Mr Saul used to come in and keep him updated and WorkCover also kept him updated. Mr Marshall and some other fill-in riders were used instead of Mr Saul while he was off. Mr Reid’s expectation was that, when Mr Saul returned from his recovery, he would return to his normal full time position as lead rider. In response to a question whether he could recall when Mr Saul did, in fact, return to work after September 2014, Mr Reid said “I can’t recall exactly when he started riding again. I knew he wanted to try and get back on the bike as soon as he was healed, too” and Mr Reid knew that Mr Saul performed for his team in February 2015 at the Royal Canberra Show. A letter of offer (exhibit 1.15) was made due to his injury with his broken leg and Mr Reid wanted to give Mr Saul some sort of security, but he could not offer him the lead role at that time, because Mr Saul was struggling with coming back on the bike. He was therefore offered the third rider role which gave him a little bit more time to recover and “get back bike-fit and healthy”. During 2015 Mr Saul was not performing at the same level as he had been able to perform prior to March 2014. Mr Reid gave evidence as to the offer that he made Mr Saul at the beginning of 2016:“So, Mr Reid, you'd just told us that, as at the beginning of 2016, Mr Saul still wasn't performing at the level he'd been at in – prior to March 2014. Did you do anything about that at the beginning of 2016?--- I just made the decision to keep Kain as the third rider, and Robbie had been filling in, and I made Robbie Marshall the lead rider.All right. Can you explain your reasoning behind that? --- I don't believe Kain was back to 100 per cent of his riding. He was complaining about his leg being sore.And in – at the beginning of January 2016, did you have any knowledge of the treatment of his right leg? --- I can't recall.Okay. Thank you. All right. So other than Kain's injured right leg, was there any other reason you made the decision to keep Robbie in the lead rider role and Kain in the third rider role? --- Robbie had been filling in for Kain. He needed to know where he was going. He needed the security for himself and his family. He approached me. He done a really good job filling in. To be honest, I wasn't confident that – in Kain returning to 100 per cent, so I had to offer the lead rider role to Robbie.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Saul v Machalek & Anor [2021] QCA 7
PARTIES:	KAIN JASON SAUL (applicant) v PAUL MACHALEK (first respondent) ALLIANZ AUSTRALIA INSURANCE LIMITED – BRISBANE ACN 000 122 850 (second respondent)
FILE NO/S:	Appeal No 5641 of 2020 DC No 95 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Southport – [2020] QDC 69 (Muir DCJ)
DELIVERED ON:	29 January 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2020
JUDGES:	Philippides and Mullins JJA and Brown J
ORDER:	Application for leave to appeal refused with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – GENERAL PRINCIPLES – PERSONAL INJURY OR DEATH CASES – where the applicant fractured his right leg when he was struck by the first respondent’s car – where the applicant was a professional motorcycle stuntman – where at the time of the accident the applicant was recovering from an injury to his left knee sustained in the course of his employment – where the applicant could not ride for approximately a year due to his left knee injury – where the applicant lost his position as a full time professional motorcycle stuntman and was instead offered a part time position – where the applicant claimed economic loss on the basis that the injury to the right leg caused additional time away from riding, leading to his replacement as lead rider – where the primary judge held that the injury to his right leg did not delay the applicant’s return to work – whether the primary judge erred in finding that the applicant had not established that but for the injury to his right leg he would have reclaimed the full time position APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where the applicant fractured his right leg when he was struck by the first respondent’s car – where the applicant was a professional motorcycle stuntman – where the applicant was diagnosed with moderate patellofemoral chondromalacia in his right knee – where the primary judge found that the condition was caused by the accident – where the applicant gave evidence of worsening pain from 12 months after the accident – where there were no medical or physiotherapy records of the applicant seeking treatment for pain in his right knee despite regularly seeking treatment for other injuries – where the applicant claimed to have been treating the injury at home – where the primary judge accepted that the applicant experienced mild to moderate pain in the right knee from May 2017 (about two years and seven months after the accident) – whether the primary judge erred in the findings about the timing of the onset of pain in the right knee and the claim for damages Uniform Civil Procedure Rules 1999 (Qld), r 547 Valeriani v Gibson [1963] NSWR…