Saul v Machalek[2021] QCA 7

SUPREME COURT OF QUEENSLAND

1. [1]
   PHILIPPIDES JA:  I agree with the reasons for judgment of Mullins JA and the order proposed by her Honour.
2. [2]
   MULLINS JA:  Mr Saul sued for damages for personal injuries, as a result of an accident on 20 September 2014, when he was almost 30 years old.  Mr Saul was riding his bicycle, when a motor vehicle driven by the first respondent knocked him off.  The first respondent’s vehicle was insured by the second respondent.  At the time of the accident Mr Saul was rehabilitating from surgery to his left knee, as a result of an injury he had sustained in March 2014 in the course of his employment as a professional motorcycle stuntman.  In the accident caused by the first respondent, Mr Saul suffered fractures of his right fibula and tibia.  Liability for his injuries was admitted, but Mr Saul’s claim went to trial on the issues of the nature and extent of his injuries as a result of the accident and the assessment of the quantum.
3. [3]
   The learned primary judge gave judgment for Mr Saul in the sum of $104,791.95: Saul v Machalek & Anor [2020] QDC 69 (the reasons).  As that judgment sum is less than the Magistrates Courts’ jurisdictional limit, Mr Saul applies for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).
4. [4]
   Mr Saul relies on two significant findings made by the primary judge which he asserts were in error and that allowing the judgment to stand will result in a substantial injustice to him.  The two findings that are said to have been made in error are:

   1. (a)
      the primary judge’s finding (at [95] and [96] of the reasons) that Mr Saul had not discharged his onus of proving that, but for the injury to his right tibia and fibula suffered in the accident, he would have returned to his role as lead rider in February 2015 in lieu of Mr Marshall (the first finding); and
   2. (b)
      the primary judge’s finding (at [108] of the reasons) that Mr Saul did not experience significant pain in his right knee prior to May 2017 and thereafter experienced only moderate aching and pain in the right knee (the second finding).
5. [5]
   The significance of the first finding in relation to Mr Saul’s failure to show a causal link between his injury from the accident and the loss of his position as lead rider was that Mr Saul did not receive any award for past economic loss or diminution in earning capacity based on that claim (see [197] and [205] of the reasons).

The primary judge’s findings on Mr Saul’s credibility and medical history

6. [6]
   The primary judge’s adverse findings about Mr Saul’s credibility that are set out at [19]-[22] of the reasons are not challenged on this application.  The primary judge accepted Mr Saul was an honest witness, but qualified that (at [21] of the reasons) with the observation that Mr Saul “was telling the truth as he saw it” and “his recollection was often distorted”.  There were specific aspects of Mr Saul’s evidence relevant to his claim for economic loss that were not accepted by the primary judge (at [22] of the reasons), namely, his evidence about when he was planning to return to work after his surgery in March 2014 and his evidence about the extent and impact of his right knee pain on his ability to train and carry out a number of physical activities.
7. [7]
   In his favour, the primary judge observed (at [19] of the reasons) that Mr Saul was “a generally resilient and determined man with a threshold for pain” and “did not seek to exaggerate his pain levels, describing his right knee pain as a ‘7 to 8’ when it was bad and as a 2 when sitting in the witness box”.  The primary judge also identified (at [19] of the reasons) that there were occasions that Mr Saul’s evidence was not supported by the objective facts and other evidence which the primary judge did accept.  The example given was Mr Saul’s complaints of ongoing and worsening right knee problems (apart from the issue of the removal of the tibial nail and associated metalware) did not accord with the fact that he did not seek medical or physiotherapy treatment for any right leg or knee problems after January 2015.
8. [8]
   The primary judge therefore concluded (at [22] of the reasons) that a careful assessment of Mr Saul’s evidence was required and, in doing so, the primary judge assessed his evidence objectively having regard to all the evidence before the court and therefore rejected some, but not all, of Mr Saul’s evidence.
9. [9]
   The primary judge summarised (at [34] of the reasons) the injuries suffered by Mr Saul in the years prior to and including the year of the accident, as taken from the various medical records and (at [35]-[52] of the reasons) the details of the medical treatment for some of those injuries, including the March 2014 left knee injury.  These included the following.  Mr Saul fractured the right ankle region and fibula on 9 January 2009 for which he underwent surgery that included insertion of four screws.  In August 2011 Mr Saul re-injured his left shoulder doing a jump and then in the same month had onset of right shoulder pain.  He had a further injury to his left shoulder in September 2011.  Between 2 and 9 March 2012, Mr Saul was treated on four occasions for left wrist injury/pain.  On 14 March 2012 Mr Saul underwent a left shoulder reconstruction due to the number of dislocations to this shoulder.  He also took the opportunity to undergo surgery to his left wrist.  It took Mr Saul around six months to recover from the shoulder reconstruction.  The left knee injury that Mr Saul sustained on 6 March 2014 whilst performing in a show was diagnosed as Grade I-II medial collateral ligament injury, complete rupture of anterior cruciate ligament, complex tear medial meniscus and root tear meniscus.  Orthopaedic specialist, Dr Vertullo, recommended surgery which was performed on 25 March 2014.  Dr Vertullo advised WorkCover Queensland that Mr Saul would not be able to return to full duties for at least nine to 10 months from the operation, although he could return to some “suitable duties” earlier.  (The primary judge found (at [46] of the reasons) there was no evidence about any suitable duties being available to Mr Saul.)  The primary judge also found (at [44] of the reasons) that “at the end of September 2014, the ongoing issues with [Mr Saul’s] left knee meant that he was not expected to be able to return to work before February 2015”.  By 14 January 2015, Mr Saul was back practising stunts (at [49] of the reasons).
10. [10]
    There are no challenges to the primary judge’s findings set out at [65] of the reasons:

1. “(a)
   After his left knee reconstruction in March 2014, [Mr Saul] was not planning to return to work until early around February 2015; and

2. (b)
   [Mr Saul] was on track at the time of the accident to return to work in February 2015; and

3. (c)
   The accident [on 20 September 2014] did not delay [Mr Saul’s] stunt practice in December 2014/ January 2015 prior to his return to work; and

4. (d)
   The accident did not delay [Mr Saul’s] return to work in February 2015.”

11. [11]
    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

12. [12]
    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.
13. [13]
    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.
14. [14]
    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.”

15. [15]
    During cross-examination, Mr Reid did not resile from this evidence, as to making the decision that Mr Marshall would be the lead rider at the beginning of 2016.  Mr Reid confirmed that at the start of 2016 he had to make a decision on another lead rider because Mr Saul “just wasn’t back to 100 per cent” and that for him to keep Mr Marshall, he was going to have to offer him something.
16. [16]
    Mr Reid’s evidence had been opened by Mr Saul’s counsel in these terms:

“Mr Reid will say that as a result of the prolonging of [Mr Saul’s] ability to return to his duties, he felt duty-bound to allow the then third rider, one Robbie Marshall, who had been covering for Mr Saul since the March incident – he felt by the early part of 2015 obliged to make that a permanent arrangement.”

17. [17]
    In cross-examination, Mr Reid was not referred expressly to what had been opened as his evidence, but he responded in the negative to the question “Did you feel some sort of moral obligation to Mr Marshall, to keep him as lead rider?”.  The following exchange then occurred:

“You didn’t – you never told anybody that?  That you felt duty bound to Mr Marshall, to keep his as lead rider? --- Not that I recall.”

18. [18]
    Mr Saul gave evidence that when he returned to work in 2015, he was not able to perform at the same level he had performed previously, because he had a lot of time off the bike, was not as fit as he usually was and needed to catch up on a lot of his basic skills.  In response to a question as to whether he was able to maintain his employment with ShowTime as the lead rider, Mr Saul said that Mr Marshall “took the number one spot from me after, because [Mr Reid] had to make a decision to put another rider on while I was out injured”.  Mr Saul stated that he accepted the offer made on 11 February 2015 to be the third rider for the team, as it was either accept the offer on those terms or not ride for the team.

Was there an error in the finding about the loss of the lead rider role?

19. [19]
    There is no issue that the primary judge applied the correct test in that Mr Saul carried the onus of proving that, but for the motor vehicle accident, he would have returned to the lead rider position.
20. [20]
    The primary judge had identified the issues for determination in [23] of the reasons.  The issue in relation to the lead rider role was expressed as when and why did Mr Saul lose his role as lead rider for ShowTime.
21. [21]
    There are two related findings made by the primary judge which are not challenged on this appeal.  The primary judge (at [52] of the reasons) was “not satisfied on the evidence that there was any delay to the [Mr Saul’s] return to stunt practice because of any injury to his right leg”.  The primary judge then set out (at [55] of the reasons) that the evidence did not support a finding that following his left knee reconstruction, Mr Saul planned to be back at work, performing stunts at any time prior to January/February 2015.
22. [22]
    Usually a trial judge refers to the pleadings for the purpose of identifying the issues to be determined in the trial.  At the commencement of this trial, counsel for Mr Saul sought leave to file a further amended statement of claim which was opposed by the respondents in respect of paragraph 9(c) which added the words “including work as a builder or builder’s labourer” to the assertion that, as a result of the injuries sustained in the collision, Mr Saul has “Been unable to pursue career opportunities that may have been open to him but for the injuries he sustained”.  For the purpose of the argument about this amendment, Mr Saul’s statement of loss and damage dated 5 July 2018 was marked for identification A and his updated statement of loss and damage was marked for identification B.  The respondents’ counsel referred to the information under the headings “Plaintiff’s Claim for Loss of Income to the date of the Statement” and “Particulars of Claim for Future Loss of Earning Capacity” to show that a claim was never advanced on the basis that Mr Saul was precluded from working as a builder or builder’s labourer.  Consistent with the purpose of the statement of loss and damage pursuant to r 547 of the Uniform Civil Procedure Rules 1999 (Qld), the statement of loss and damage is itself not evidence, but is served after the close of pleadings in order to provide the information and documents that support the claims made by a plaintiff and is of assistance in facilitating early resolution of the proceeding and otherwise in focusing the preparation for trial for all parties.
23. [23]
    In respect of the submissions made to the primary judge as to whether leave should be given to the filing of further amended statement of claim, both parties used MFI A and MFI B as further refinements of Mr Saul’s pleaded case.  (Even though that is not the purpose of the statement of loss and damage, the primary judge adopted the parties’ approach and made reference in [69] of the reasons to Mr Saul’s statement of loss and damage as setting out his claim.)  Mr Saul was given leave to file the further amended statement of claim.
24. [24]
    The primary judge noted (at [77] of the reasons) that there was no evidence that Mr Saul told Mr Reid or anyone else (such as any doctor or physiotherapist) about any significant right leg or knee pain leading up to his return on the bike in early February 2015 (which was consistent with Mr Saul’s evidence that it only flared up at the one-year mark when the rod and nails started giving him a bit of trouble).
25. [25]
    The primary judge then dealt (at [80] of the reasons) with the answer that Mr Saul had given to the effect that Mr Marshall took the lead rider role, “because [Mr Reid] had to make a decision to put another rider on while [he] was out injured” from which the primary judge inferred that the only rational inference to draw from the answer was that the decision was made by Mr Reid before Mr Saul returned to work in February 2015.  On the hearing of this application, Mr Philp of Queen’s Counsel who appeared with Mr Deaves of Counsel for Mr Saul made the point that little weight should be given to that part of the answer.  No objection had been taken by the respondents during the trial to Mr Saul’s giving evidence about Mr Reid’s decision-making.  In addition, no submission was made at the trial by either party that little or no weight should be given to that evidence for explaining Mr Reid’s motivation for offering Mr Marshall the lead rider role.  In any case, the primary judge relied on this evidence about Mr Reid’s decision not so much for the reason proffered by Mr Saul for why Mr Reid offered the lead role to Mr Marshall, but in relation to the timing of the decision.  The primary judge inferred from the answer that it was a reference to a decision made by Mr Reid at the beginning of 2015.  The primary judge stated at [80] of the reasons:

“Despite the ambiguity to the question in terms of timing, the rational inference to be drawn from this answer is that [Mr Saul] was referring to a decision made by Mr Reid before [Mr Saul] returned to work in February 2015.”

26. [26]
    The primary judge then set out (at [81] of the reasons) other aspects of the evidence (or lack of evidence) that supported that inference.  The primary judge found support in the fact that around 11 February 2015 Mr Saul received the letter of offer from ShowTime to be third rider.  The primary judge then made observations about the dearth of evidence to support a finding that the decision or a final decision to replace Mr Saul with Mr Marshall was made in 2016, noting:

“there was no evidence of any discussions between [Mr Saul] and Mr Reid about: the 2015 Contract; or the contract being … a temporary arrangement; or [Mr Saul’s] riding being below par in 2016; or of there being a final decision to replace [Mr Saul] in 2016.”

27. [27]
    An express finding was made by the primary judge (at [82] of the reasons) that Mr Reid was an honest “but not a particularly reliable witness” and that he became “obviously frustrated and defensive, particularly under cross examination”.  The primary judge also found Mr Reid’s evidence to be “rather general and non-specific and therefore not overly helpful in resolving this issue” and accepted his evidence only to the extent it was corroborated by documentary evidence or other evidence the primary judge accepted.
28. [28]
    The primary judge noted (at [84] of the reasons) that there was no specific evidence from Mr Reid about when (prior to the accident) he was expecting Mr Saul to be returning to work or what he was being told by Mr Saul or what information he had been given about how long it would be before Mr Saul returned to work after the accident.  On the basis of Mr Reid’s evidence that he received updates from WorkCover about the left knee injury which showed that Mr Saul was not cleared to return to stunt performances until mid-February 2015 as a result of his operation in March 2014, the primary judge found (at [85] of the reasons) that there was no reasonable basis for Mr Reid to have had the view during 2014 that Mr Saul would be returning prior to February 2015.
29. [29]
    Reference was made again (at [87] of the reasons) that there was no evidence of any conversations or negotiations between Mr Saul and Mr Reid at the time the letter of offer dated 11 February 2015 was received and accepted by Mr Saul.  The primary judge rejected Mr Reid’s evidence (and therefore Mr Saul’s case based on it) that it was the injuries caused by the accident that led to Mr Saul’s losing his position as the lead rider for the reasons that were then identified at [88]-[94] of the reasons.
30. [30]
    The reason identified (at [88] of the reasons) was the finding that had already been made by the primary judge that Mr Saul was not expected to return to work after his left knee operation in March 2014 until at least early February 2015 and, whilst the primary judge accepted Mr Saul’s evidence that, as he had been off the bike for so long, he took some (unspecified) period of time to get some of his old tricks back, there was no evidence of Mr Saul struggling to get back to form due to injuries suffered in the accident.
31. [31]
    The second reason for rejection of Mr Reid’s evidence is set out at [89] of the reasons and is based on the opening given by Mr Saul’s counsel at the trial to the effect that the accident prolonged Mr Saul’s return to his duties and that in early 2015 Mr Reid felt duty bound to make Mr Marshall’s arrangement a permanent one.  The primary judge then referred to Mr Reid’s evidence that he did not believe Mr Saul was back to 100 per cent of his riding in 2016 and that he was complaining of his leg being sore, so he made the decision to keep Mr Saul as the third rider and make Mr Marshall the lead rider.  To the extent that it had been submitted on behalf of Mr Saul that it followed that Mr Reid made a permanent decision in 2016 to keep Mr Marshall as the lead rider, the primary judge stated (at [89] of the reasons):

“This evidence is not only inconsistent with the opening of [Mr Saul’s] case, but, most crucially, is not supported by other evidence which I accept including: the evidence of [Mr Saul] that the decision was made in 2015; the fact that, if the decision in 2015 was only temporary and there was a review a year later, it could be expected [Mr Saul] would have given some evidence about this and he did not do so; and the letter of offer in February 2015.”

32. [32]
    It was an error for the primary judge to reject Mr Reid’s evidence that he made the decision to offer Mr Marshall the lead rider role in early 2016, on the basis it was inconsistent with the opening of Mr Reid’s evidence that the offer to Mr Marshall was in early 2015.  The fact that a witness’ evidence does not accord with how it was opened by counsel who called that witness does not of itself have any consequence for the reliability of the evidence adduced from that witness.  Mr Saul relies on the purpose of an opening endorsed in Valeriani v Gibson [1963] NSWR 1430, 1435 which is to give “a general notion of what would be given in evidence” by counsel stating “the facts of the case, the substance of the evidence he has to adduce, and its effect on proving his case, and remarks upon any point of law involved in the case”.
33. [33]
    It may be a fertile area for cross-examination where the evidence of a witness who is a party to the case departs from what is opened by the party’s counsel.  Even if the witness is not a party, there may be scope for some cross-examination on why the witness’ evidence departs from the opening of that evidence by counsel for the party who called the witness.  Although Mr Morton of counsel who appeared for the respondents both on this application and at the trial had stated to the primary judge, when an objection was taken to his cross-examination of Mr Reid, that he was putting what was opened when asking Mr Reid whether he had told anyone that he felt duty-bound to keep Mr Marshall as the lead rider, the cross-examination of Mr Reid did not explore that topic any further after Mr Reid answered that he did not recall telling anyone that he felt duty-bound to Mr Marshall to keep him as lead rider.  Mr Reid was therefore not given an opportunity to respond to the inconsistency perceived by the cross-examiner between his evidence and the opening of this evidence.  The inconsistency between Mr Reid’s evidence (as given) with his evidence (as opened) was therefore not a reason on which the primary judge could rely to reject Mr Reid’s evidence.
34. [34]
    Even though the primary judge referred to the inconsistency between Mr Reid’s evidence and the opening of Mr Saul’s case as one of the reasons for rejecting Mr Reid’s evidence on this aspect, that is of little consequence, when the primary judge expressly treated as more crucial the aspects of the evidence from which the primary judge had inferred that Mr Reid’s decision was made in 2015.
35. [35]
    The primary judge rejected (at [90] of the reasons) Mr Reid’s evidence that Mr Saul was complaining about his leg at the beginning of 2016.  The primary judge described the evidence as “vague”, it did not “specifically refer to his right knee” and it was not corroborated by Mr Saul, as there was no evidence that Mr Saul complained to anyone or Mr Reid about pain in his right leg during 2015 into early 2016.  In addition, there were no medical or physiotherapy records during that period recording complaints by Mr Saul about the pain in his right leg, despite numerous visits to the physiotherapist during that period for treatment of aches and pains in other parts of his body.  The primary judge concluded (at [90] of the reasons) with the observation that it was “highly unlikely … that if [Mr Saul] was complaining to Mr Reid about his right leg that he would not have also complained about it contemporaneously to the physiotherapist”.  The primary judge then concluded (at [91] of the reasons) that there were no records of complaints of right leg or knee pain by Mr Saul during 2015 and well into 2016, because Mr Saul was not experiencing pain or any significant pain in this region during that period and that was consistent with Mr Saul’s evidence which was accepted by the primary judge that the pain in his right knee increased considerably when the nail was removed in November 2016.  (It should be noted, however, that the primary judge then dealt in more detail with the levels of pain in Mr Saul’s right knee in the conclusions set out at [108] of the reasons.)
36. [36]
    The issue the primary judge had identified for determination in relation to the lead rider role had two aspects: the timing of Mr Reid’s decision and the reason for it.  The primary judge’s analysis of the evidence of Mr Saul and Mr Reid showed those two aspects were related.  It is submitted on behalf of Mr Saul that, if Mr Reid’s evidence on the date of his decision to make Mr Marshall the lead rider in 2016 is rejected, there was no other evidence to support a finding that the decision was made in 2015.  The primary judge was entitled on the basis of her conclusions about the reliability of Mr Reid’s evidence to consider what inferences could be drawn from the evidence the primary judge did accept.  It is apparent from the detailed analysis that the primary judge undertook of both Mr Saul’s evidence and Mr Reid’s evidence at [74]-[94] of the reasons that the primary judge found the state of the evidence to be unsatisfactory.
37. [37]
    A critical plank in the primary judge’s reasoning was the effect of the appointment of Mr Saul as the third rider pursuant to the letter of offer dated 11 February 2015 that occurred with Mr Marshall’s appointment as a lead rider at that time.  As a result of the primary judge’s inference drawn from Mr Saul’s evidence about the timing of the decision made by Mr Reid to appoint Mr Marshall the lead rider in February 2015 and the primary judge’s rejection of Mr Reid’s evidence that he made the decision in 2016, the primary judge reached the conclusion set out at [95] of the reasons.  That conclusion encompassed three findings:  Mr Saul was replaced as lead rider by Mr Marshall in February 2015, the decision to replace Mr Saul was not due to the accident, and Mr Saul was not disadvantaged when negotiating his contract in 2015 as a result of the accident.  That conclusion was made in careful terms that reflected the application of the onus (referred to at [96] of the reasons).  That is shown in the primary judge not making a positive finding as to the reason why Mr Saul was replaced by Mr Marshall as the lead rider, but instead the primary judge expressed it in terms (at [94] of the reasons) that the primary judge was not satisfied that the decision was made by Mr Reid because of the accident.  The conclusion set out (at [95] of the reasons was open on the evidence that was accepted by the primary judge and therefore the first finding cannot be said to have been made in error.
38. [38]
    Mr Saul needed to succeed in his challenge to the first finding for there to be a re-assessment of past economic loss and loss of future earning capacity.  Unless there were such a re-assessment, there was no purpose to the challenge on this application to the second finding.  As the parties made full submissions in respect of the second finding, it is still appropriate to address the challenge to the second finding.

Summary of the evidence relating to Mr Saul’s pain levels

39. [39]
    Mr Saul’s evidence with respect to the pain he experienced in his right knee was as follows.  After the accident and the bone had healed in about six to eight weeks, Mr Saul did not continue to experience pain in the lower part of his right leg.  When he started walking on his right leg properly, he started noticing pain in his right knee and at about 12 months after the accident the rod and nails started to give him trouble.  Mr Saul described the pain as having “gotten way worse” since then.  On a scale where zero means no pain and 10 means the worst pain, he rated the pain at a two, while he was giving evidence, and that it would be up around seven or eight, the more he used his knee, particularly with a lot of squatting, stairs, climbing ladders or uneven ground.  Every now and then, his knee would give way on him as he was walking.  His knee hurts while he is riding, but he is used to that.  He is not able to train at the same level he was training at pre-accident.  He used to train three times a day and ride most of the day as well and now he is “flat out training once a day” and he rides probably half as much as he used to.  He has been taking an anti-inflammatory Celebrex a lot more regularly since the accident.
40. [40]
    Later on in Mr Saul’s evidence, his counsel reminded him of his evidence about the pain level getting to a seven to eight when it was bad and that it was at a two sitting in the witness box and asked Mr Saul when did he first start to notice knee pain and when it got to the point that he had already given evidence about.  Mr Saul responded:

“Like I said, it’s definitely gotten worse over the years.  But when the – when the rod was in it – before the rod was getting taken out, I guess it was probably – like, at the highest, may be a five – five or a six on a – on a bad day.  But ever since that rod’s been taken out, it’s just been getting worse.”

41. [41]
    Apart from Mr Saul’s evidence about the pain in his right knee, the primary judge had regard to the medical history and treatments that were in evidence.  Other than for medical attendances in relation to the removal of the intramedullary nail and the complaint to the physiotherapist in March 2017 about his right knee “catching” that was diagnosed after an MRI in April 2017 as “moderate patellofemoral chondromalacia”, it was noted (at [107] of the reasons) that there were no references in the medical records to problems with Mr Saul’s right knee.
42. [42]
    Mr Saul required two operations on his right knee for the removal of the rod and screws.  The primary judge noted (at [102] of the reasons) that Mr Saul did not say that those were removed due to pain.  When he was asked why he needed to have the rod and screws taken out, he responded:

“Because I always get all my metal work taken out after - after a year’s time to - in case I crash again and bend it - bend the rod in there or whatever.”

43. [43]
    The primary judge set out the relevant evidence from Dr Vertullo in respect of Mr Saul’s right knee at [103], [104] and [106] of the reasons.  When Dr Vertullo operated on Mr Saul’s right leg in February 2016 to try to remove the tibial nail hardware, he was unable to remove the tibial locking nail, as the locking screws were “deeply buried”.  Dr Vertullo operated again in November 2016 and was successful in removing the tibial nail.  Dr Vertullo noted that when he saw Mr Saul on 3 May 2017, he had “a little bit of aching and pain around his right knee” where the tibial nail had been removed.
44. [44]
    The second finding was made in the section of the reasons dealing with the extent of the pain from Mr Saul’s condition of chondromalacia patellae to his right knee.  The complete finding that was made by the primary judge in this section of the judgment was set out at [108] of the reasons:

“On balance I am satisfied that the plaintiff:

1. (a)
   Did not suffer right knee pain prior to the accident;

2. (b)
   Experienced some very minor pain in his right knee (for a short period) when he started weight bearing about one month to 6 weeks after the accident;

3. (c)
   Experienced an increase in pain to his right knee – though not significant pain at around the one-year post-accident mark; and

4. (d)
   Continued to experience pain in his right knee after the nail was removed in November 2016 – though again not significant pain.

5. (e)
   Has continued to experience mild to moderate aching and pain around his right knee from May 2017.”

45. [45]
    The primary judge specifically rejected (at [127] of the reasons) Mr Saul’s evidence that he had spoken to his physiotherapist about his right knee and he was shown ways to massage his knee which he did on a regular basis using a massage roller and massage balls.  The evidence was rejected as unspecific and uncorroborated.  It was noted further (at [127] of the reasons) that Mr Saul could not point to a record of any issue about his right knee being raised with his physiotherapist over the years which the primary judge considered was not plausible given that he did not have to pay for such treatment (as he was sponsored by the physiotherapy practice) and he otherwise sought treatment for all sorts of aches and pains and there was no claim for any oils, massage rollers or massage balls.  In fact, the discrepancy between Mr Saul’s evidence of complaints of ongoing and worsening of right knee problems and his failure to seek medical or physiotherapy treatment for right knee problems after January 2015 (until March 2017) was used as the example at [19] of the reasons for where Mr Saul’s evidence was not supported by the objective facts and other evidence accepted by the primary judge.
46. [46]
    The primary judge summarised (at [128] of the reasons) the activities enjoyed by Mr Saul as shown in seven of his Instagram posts between 20 June 2017 and 10 August 2019 that were inconsistent with his experiencing any problem with his right knee.
47. [47]
    The primary judge accepted (at [130] of the reasons) that Mr Saul has a high threshold for pain and real determination to get back on his bike, but rejected Mr Saul’s case that his right knee is so troublesome that it impeded his livelihood, as he had not sought medical assistance to address the pain.  The primary judge reached this conclusion, even accepting (at [130] of the reasons) that Mr Saul “self-treats his right knee at home on a daily basis as he contended and assuming that treatment is effective”.
48. [48]
    In dealing with future expenditure, the primary judge referred (at [221] of the reasons) to the evidence which the primary judge accepted “that there is little that [Mr Saul] can do about pain for the right knee condition other than to medicate and modify his activities”.  The primary judge also noted (at [221] of the reasons) that the uncontroversial evidence is that Mr Saul takes Celebrex because of his pain.  The primary judge therefore allowed $5,150 for the cost of Celebrex over the next 51 years for Mr Saul.

Was there an error in the findings about the pain level in the right knee?

49. [49]
    The nub of the submission now made on Mr Saul’s behalf is that the primary judge made the impugned findings about the level of pain in Mr Saul’s right knee by rejecting his evidence, because he had not complained to doctors or physiotherapists about his right knee pain, but that is inconsistent with the conclusion (at [221] of the reasons) that there was little that Mr Saul could do about the pain in his right knee other than to medicate and modify his activities.
50. [50]
    The respondents submit that the primary judge’s findings as to the level of Mr Saul’s pain and consequent lack of disability due to the right knee was made with the benefit of the primary judge’s observing Mr Saul and as a consequence of the objective evidence adduced at the trial.  It therefore cannot be concluded that those findings were “glaringly improbable” or “contrary to compelling inferences”.
51. [51]
    It is not inconsistent with the primary judge’s conclusion that Mr Saul experienced mild to moderate aching and pain around his right knee from May 2017 onwards for the primary judge to find that he should be compensated for taking Celebrex for that pain to his right knee caused by the condition of chondromalacia patellae.  The second finding was open on the evidence that the primary judge accepted which depended significantly on her view of Mr Saul’s reliability compared to the objective evidence.  Mr Saul cannot therefore succeed in his challenge to the second finding.

Order

52. [52]
    It follows that the order which should be made is:

Application for leave to appeal refused with costs.

53. [53]
    BROWN J:  I agree with the reasons for judgment of Mullins JA and the order proposed by her Honour.