Court decision

Stuntman fails to prove injury significantly stunts his earning capacity

By Melissa McGarrity and Dani Sharp / 24 February 2021

Background

In Saul v Machalek & Anor [2021] QCA 7 the Supreme Court of Appeal upheld the original decision of the District Court of Southport to award Mr Saul damages totalling $104,791.95. At the time of the incident, Mr Saul was a professional motorcycle stuntman who suffered various injuries including a fractured right tibia and a right knee injury when he was struck by a car while riding his pushbike.

Decision in First Instance

Liability was not in dispute during the primary trial and the two disputed principles was the extent of Mr Saul’s injuries and how these injuries have affected him or may affect him in the future.

At the time of the September 2014 motorcycle crash, Mr Saul was recovering from a serious injury to his left knee for which he required surgery. The earlier left knee injury occurred in March 2014 when he fell off a motorbike while performing a stunt show and landed awkwardly. 

Extent of the loss from the September 2014 incident

Mr Saul did not return to stunt riding work until February 2015. Mr Saul argued, but for the September 2014 incident, he would have returned to stunt riding work sooner than February 2015.

The Court heard evidence from Dr Vertullo who was treating Mr Saul for his former knee injury. When looking at the left knee injury only, Dr Vertullo considered that Mr Saul was likely to be fit to return to stunt work in or around December 2014 and to unrestricted work duties in February 2015.

The Court also heard evidence that Mr Saul posted on Instagram following the March 2014 injury that he would be unlikely to ride his bike for some 10-11 months and that he made a further post on Instagram some five days before the September 2014 incident that he was half way through the recovery from his left knee injury.

Loss of opportunity

Prior to the March 2014 accident, Mr Saul was employed working as the second stunt rider for Showtime FMX. Following the recovery from both the March and September 2014 accidents, Mr Saul was demoted to third stunt rider, which would result in a reduced number of shifts as a rider.

The District Court found that Mr Saul had the onus to show, but for the September 2014 incident, he would have continued working as a second stunt man.

The District Court accepted evidence that Mr Saul was demoted to third stunt man due to a number of matters including:

  • the lengthy recovery from his March 2014 incident;
  • the fill in second stunt man was doing a good job; and 
  • the fact that his employer had concerns about his ability to work as the second stunt man due to a lack of fitness and the lengthy period away from work.

Award for damages

The District Court did not allow any past economic loss as a result of the September 2014 accident. The District Court found that Mr Saul was unlikely to return to work following the March 2014 accident until February 2015 and as he returned to work on that date, he did not require any additional time off work as a consequence of the September 2014 accident.

When assessing future economic loss, the District Court accepted that Mr Saul’s right leg injury would likely deteriorate with time and as a result of such injury, he may be forced to give up stunt motorbike riding three years earlier than expected. The Court awarded future economic loss to represent Mr Saul being forced to retire from stunt bike riding three years early, however it applied a 50% discount to such loss on account of Mr Saul having capacity to participate in alternative work. The District Court made a further allowance of $75,000 on a global basis to account for general disadvantage on the open labour market. 

Appeal

The appeal was heard by Justice Philippides, Mullins and Brown on 17 September 2020. On 29 January 2021 the Court of Appeal upheld the decision of the District Court. 

Mr Saul appealed the damages award prescribed by the District Court on two accounts:

  • the District Court erred in finding that Mr Saul had not discharged his onus of proving, but for the injury, he would have returned to his role as a second rider in February 2015; and
  • the District Court erred in finding that Mr Saul did not experience significant pain in his right knee prior to May 2017 and thereafter experienced only moderate aching in the right knee.

First point of appeal

The Court of Appeal held that the conclusion of the District Court that Mr Saul was not demoted to third rider as a result of the September 2014 incident was made in careful terms that reflected the onus on Mr Saul to prove such fact. The Court of Appeal held the conclusion made by the District Court was open on the evidence presented to the Court, and Mr Saul had not satisfied on the balance of probabilities that he was demoted to third rider as a result of the September 2014 incident. 

Second point of appeal

The Court of Appeal held that the conclusion of the District Court that Mr Saul experienced mild to moderate aching and pain in his right knee from May 2017 was not inconsistent, and was based on the District Court’s view of Mr Saul’s reliability compared to the object evidence. 

Mr Saul failed in his appeal and the original judgement with respect to the damages awarded was not disturbed.

Take away points 

  • The onus of proof is on a plaintiff to establish on the balance of probabilities they lost a work opportunity as a result of the injuries they sustained in the incident.
  • If a plaintiff is suffering from a previous injury and is injured while recovering from this injury, the chain of causation is not necessarily broken, especially if the original recovery time from the initial injury is not altered due to the new injury. 

For further information or discussion, please contact a member of our Insurance team.

Authors
Melissa McGarrity
Senior Associate
Melissa is a Senior Associate in our Insurance practice.
Dani Sharp
Associate
Dani is an Associate in our Insurance team.

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