Paetzold v At Beach Court Holiday Villas Pty Ltd
[2024] QCA 227
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- Unreported Judgment
- Appeal Determined (QCA)
- Paetzold v At Beach Court Holiday Villas Pty Ltd[2024] QCA 227
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Paetzold v At Beach Court Holiday Villas Pty Ltd[2024] QCA 227
Paetzold v At Beach Court Holiday Villas Pty Ltd[2024] QCA 227
SUPREME COURT OF QUEENSLAND
CITATION: | Paetzold v At Beach Court Holiday Villas Pty Ltd [2024] QCA 227 |
PARTIES: | HERMAN HERBERT PAETZOLD (applicant) v AT BEACH COURT HOLIDAY VILLAS PTY LTD ABN 43 609 327 335 (respondent) |
FILE NO/S: | Appeal No 5799 of 2024 DC No 207 of 2021 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Civil) |
ORIGINATING COURT: | District Court at Brisbane – [2024] QDC 35 (Sheridan DCJ) |
DELIVERED ON: | 15 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 October 2024 |
JUDGES: | Flanagan and Brown JJA and Freeburn J |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where the applicant suffered an injury in his duties as a caretaker for the respondent, while attempting to push a stuck ride-on mower – where the mower had a flat battery – where the applicant took shortcuts to avoid having to jump-start the mower, which led to the injury – where the applicant alleged he suffered a rupture to his Achilles tendon and a knee injury from the respondent’s negligence – where the trial judge held that the injury to the Achilles tendon, but not to the knee, was caused by the respondent’s negligence – whether the trial judge erred in finding no causation to the knee injury APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – where the applicant failed to report any income while working full time and receiving the age pension, until he was advised to report in advance of the proceeding – where the trial judge found that the failure to disclose impacted the applicant’s credibility – whether the trial judge erred in making adverse credit findings District Court of Queensland Act 1967 (Qld), s 118 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, cited |
COUNSEL: | S D Anderson for the applicant B F Charrington KC, with M A Rothery, for the respondent |
SOLICITORS: | Macrossan & Amiet Solicitors for the applicant Cooper Grace Ward Lawyers for the respondent |
- [1]THE COURT: This is an application for leave to appeal from a judgment of the District Court.
- [2]On 10 April 2024 the District Court gave judgment for Mr Paetzold, the applicant, as plaintiff, in the sum of $41,076.88 less the statutory refund. Leave to appeal is required because the judgment was given for an amount less than the Magistrates Court jurisdictional limit.[1] If granted leave, Mr Paetzold would challenge the assessment of damages so as to set aside the existing judgment and substitute a judgment for $252,626.74 less the statutory refund.[2]
- [3]Leave to appeal will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.[3]
Findings of Trial Judge
- [4]The trial judge found that on 16 March 2020 Mr Paetzold suffered an injury whilst undertaking his duties as a caretaker for the respondent, At Beach Holiday Villas Pty Ltd at Cannonvale, near Proserpine. Her Honour found that the injury was caused by the negligence of At Beach in not providing proper equipment, that is a ride-on mower with a charged rather than a flat battery. At Beach’s failure to provide a mower that did not require ‘jump starts’ meant that Mr Paetzold was forced to take shortcuts which led to his injury.
- [5]The trial judge found that in the incident Mr Paetzold suffered a rupture of his Achilles tendon. Mr Paetzold also claimed to have suffered a second injury in the incident, namely tears to the meniscus in his left knee and the aggravation to the pre-existing degenerative changes of osteoarthritis in his left knee joint.[4] However, her Honour determined that the evidence did not satisfy her that the negligence of At Beach caused that knee injury.
- [6]The trial judge also made adverse findings of credit against Mr Paetzold. In particular, her Honour found that, if it were not for the claim made in this proceeding, Mr Paetzold would not have lodged any tax returns, and would have failed to declare his income to the Australian Tax Office, and that he knew that he should have declared his income to Centrelink.
- [7]Mr Paetzold:
- challenges the trial judge’s finding that the knee injury was not caused by, and was not aggravated by, the incident on 16 March 2020; and
- argues that the trial judge erred in her adverse credit findings concerning his declarations to Centrelink.
Trial Judge’s Approach to the Knee Injury
- [8]The trial judge’s finding that the knee injury was not caused by At Beach’s negligence was a finding of fact. The trial judge’s reasons for refusing to find that the knee injury was caused or contributed to by the negligence of At Beach were:[5]
- “the absence of any actual evidence of any action on 16 March 2020 that might have cause the injury to the knee”;
- “the absence of any complaint about pain in the knee until the Achilles injury was essentially healed”;[6]
- “the absence of any swelling in the knee” – either at the time or shortly after;
- “the clear evidence of degeneration in the knee”;
- the expert medical opinion that the degeneration in the knee was enough to “explain the condition of the knee”; and
- Mr Paetzold’s work history - he was back at work when the knee symptoms arose.
- [9]Those six reasons mean that the finding of fact was open on the evidence.
- [10]Mr Paetzold’s submissions draw attention to paragraphs [23] and [24] of the trial judge’s reasons where her Honour said:
“In cross examination it was put to Mr Paetzold that he had not told a single person [that he had rolled down the slope] until he commenced his claim in July 2021. It was put to him that he did not tell his GP, Dr Hassan and Dr Journeaux. Mr Paetzold responded that he did. He said he had told everybody that he had let the mower go, clutched his leg and rolled down the embankment.
I have great difficulty accepting this evidence. If Mr Paetzold had told any of the doctors that he had rolled down the slope after the occurrence of pain, particularly if it involved him clutching his knee, it is impossible to believe that it would not have been recorded. That view is reinforced by the absence of any reference to it in the incident report completed by Mr Paetzold.”
- [11]The point the trial judge was making was that if Mr Paetzold had told the medical professionals that he rolled down the slope or injured his knee, the medical professionals would have noted it. Ms Falkenmire, the physiotherapist who treated Mr Paetzold, confirmed that her practice was to carefully record the symptoms and restrictions reported to her. And, as the trial judge noted, Mr Paetzold’s own incident report, completed that day,[7] did not record him rolling down the slope or any knee symptoms.
- [12]First, Mr Paetzold submits that:[8]
- “the incident report prepared [by him] immediately after the incident records him as being on the embankment at the time of the incident;” and
- “[he gave] uncontested evidence that he crawled through the bottom of the culvert back to the office where the incident was reported”.
- [13]None of that assists Mr Paetzold. The trial judge accepted that the injury to his Achilles tendon occurred when he was trying to push the mower after it had become stuck. Her Honour accepted that the mower ended up down the slope, and that Mr Paetzold was limping immediately afterwards, and that he immediately told his employer of the incident.[9]
- [14]The trial judge was entitled to make that rather limited assessment of the incident. No error is shown. The trial judge was not obliged to accept Mr Paetzold’s version of the incident, and its aftermath, or to find some alternative explanation as to how the incident occurred.[10]
- [15]The trial judge was faced with contested expert medical evidence. Dr Cook was the orthopaedic surgeon called by Mr Paetzold. Dr Cook’s evidence about the knee injury was that:[11]
“it’s reasonable to assume orthopaedically that there was a twisting or a bending because he said he lost his balance. If he still had normal balance and the mower just went away, well, yes, there would be no injury; just the tendo-Achilles. But he said that as the mower went, he lost his balance and fell.”
- [16]As that evidence makes clear, there is a connection between Mr Paetzold’s evidence and the evidence of Dr Cook. And, as Dr Cook acknowledged, his evidence involved an assumption that the incident involved some twisting or pivoting by Mr Paetzold. Dr Cook accepted there was no evidence of such a motion. Dr Journeaux, the orthopaedic surgeon called by At Beach, gave evidence that the knee impairment was wholly pre-existing, and that “it was more probable than not that the knee symptomology related to the natural history of the constitutional condition of an individual who is aging in years”,[12] and was “performing work that had effectively “overloaded” his knee”.[13]
- [17]The trial judge had the advantage of oral testimony from two experienced orthopaedic surgeons. Both were assessed by her Honour as having given their evidence professionally and with care.[14] Ultimately, the trial judge made a finding consistent with the evidence of Dr Journeaux that the knee impairment was not caused or contributed to by the incident on 16 March 2020. That finding was based on the competing medical evidence and the six facts set out in paragraph [8] above, including the absence of any complaint about pain in the knee until 17 June 2020,[15] by which time the Achilles injury had essentially healed. Her Honour was entitled to make that finding of fact.
- [18]It is true that Dr Journeaux had noted that Mr Paetzold told him that he had knee pain whilst he was in the moonboot. But there is a strong retrospective element to that evidence. Dr Journeaux was recording what Mr Paetzold told him in April 2021 – a year later.[16]
- [19]Mr Paetzold’s evidence-in-chief was that he first experienced knee pain about 4 weeks after his Achilles surgery, when he was wearing a moonboot. Other evidence suggests that Mr Paetzold was wearing the moonboot at the end of April 2020 and that he was no longer in the moonboot by 27 May 2020.[17]
- [20]It is significant that the first occasion on which knee pain was noted by any of the medical professionals was the physiotherapist’s note on 17 June 2020. By that time Mr Paetzold was back at work.[18] The knee pain was experienced and after, as the physiotherapist notes, “lots of walking – continues to walk excessively”.
- [21]It was open to the trial judge to conclude that there was an absence of a complaint about the knee injury until 17 June 2020 and to accept Dr Journeaux’s evidence.
- [22]
“the uncontested evidence is that he felt a sharp pain like he had been bitten by a snake when his Achilles tendon ruptured, such that he twisted around and grabbed his leg, lost his balance and then rolled down the hill.”
- [23]That is not right. That was not the uncontested evidence. The evidence does not record that “he twisted around”. The evidence as to how the incident occurred was contested. Mr Paetzold’s evidence-in-chief was that he rolled down the hill and did a “couple of somersaults”. He also gave evidence of rolling, and sliding, and crawling or sliding. The trial judge thought the reference to somersaults was exaggeration.[20] The incident report on the same day does not mention any type of movement down the hill, nor do the reports of the medical professionals until at least June 2020. And then, in his evidence, Mr Paetzold spoke of another incident that occurred about a week after he was at work on full duties. He leaned over a fence to pick up three palm fronds and twisted and “all of a sudden I got this humongous sharp pain in my knee”.
- [24]When Mr Paetzold was cross-examined about the incident on 16 March 2020, he said he rolled down the hill. It was put to him that he did not roll down the hill at all. He rejected that. It was put to him that until July 2021 he had not suggested to a single person that he had rolled down the embankment. He rejected that as well. Mr Paetzold was cross-examined about the palm frond incident and the lack of a contemporaneous report of that incident.
- [25]And so, the evidence as to how the injury occurred was contested. As the trial judge commented, At Beach “put in issue the mechanism of injury”.[21] The trial judge was entitled to make the factual findings she did. And, even if Mr Paetzold’s evidence about how the injury occurred was not in contest, the trial judge was not bound to accept it.[22]
- [26]Third, Mr Paetzold submits that:[23]
- “it is “glaringly improbable”[24] that the applicant did not roll down the embankment after the injury to his Achilles tendon” and then crawl to the reception;
- “there was no other way he could practically have arrived at the bottom without rolling down”;
- “this, when considered with the other evidence, makes it more likely than not that the appellant’s knee injury was caused or contributed to by the incident on 16 March 2020.”
- [27]However, the relevant finding of fact was that the knee injury was not caused or contributed to by the incident on 16 March 2020. It was a finding supported by, as the trial judge explained, the six factors set out in paragraph [8] above. That finding of fact was also based on the trial judge’s assessment of Mr Paetzold’s credibility. There is no basis for saying that it was “glaringly improbable” that Mr Paetzold did not roll down the embankment and crawl to reception. His own evidence was not so clear. He referred to somersaults, rolling and sliding and “crawling or sliding”. As the trial judge noted, he did not say any of that in the incident form on the day, or to the medical professionals.
- [28]Fourth, Mr Paetzold points out that the trial judge found that there was an absence of any complaint about the knee pain until the Achilles tendon was “essentially healed”. It is argued that it is inconsistent with:[25]
- the finding that the injury to the Achilles tendon had resolved by 17 August 2020;
- Dr Hassan’s report on 17 August 2020 that Mr Paetzold’s complaint of recent pain in his left knee – which started about two months ago (i.e. in June 2020); and
- The evidence of the physiotherapist that Mr Paetzold reported left knee pain on 17 June 2020.
- [29]However, it is important to note that the trial judge’s finding was that there were no complaints about the left knee until after the Achilles tendon had “essentially healed”. That no doubt refers to the fact that, by June 2020, Mr Paetzold was out of his moonboot, and was continuing physiotherapy to build up his calf muscles,[26] was walking excessively,[27] and was back at work on either ‘suitable duties’ or full duties.[28] That was a finding that was open.
- [30]Fifth, Mr Paetzold submits the trial judge was wrong not to find that the left knee injury was caused by the rehabilitation and deconditioning from the Achilles tendon injury.[29] Mr Paetzold points to paragraph [51] of the reasons. However, that paragraph merely explains Dr Journeaux’s evidence. The trial judge does not make any finding at that point – she is just explaining the competing medical evidence. The same applies to the trial judge’s reasons at paragraph [55].
- [31]
“…a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against — even strongly against — that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.” [footnotes omitted]
- [32]Mr Paetzold has not established anything of that character.
Trial Judge’s Approach to the Centrelink Controversy
- [33]The trial judge held grave doubts about Mr Paetzold’s credibility:[31]
“Indeed grave doubts about the truthfulness of all the evidence given by Mr Paetzold attend this case. Whilst receiving income for working full time as a caretaker, Mr Paetzold was also in receipt of the age pension. Mr Paetzold did not report to Centrelink any income he had received since commencing to receive the age pension. Further, Mr Paetzold had not filed income tax returns for the financial years ended 30 June 2018, 2019 or 2020 by the due date; only doing so by July 2021. I will return to this subject later when dealing with the issue of economic loss.”
- [34]In his amended reply, Mr Paetzold admitted that:
- “(a)he had received the full aged pension since April 2015;
- (b)he knew the aged pension was income and asset tested; and
- (c)he knew he was required by law to report all income from employment to Centrelink;
- (d)he was aware or ought to have been aware there was a limit on the amount he was entitled to earn to receive the full aged pension; [and]
- (e)he had failed to report any income earned to Centrelink across the 2018, 2019, 2020, 2021 financial years.”
- [35]Mr Paetzold’s pleaded case was that he honestly but mistakenly thought that, by reporting his income to the Australian Taxation Office each year, he was reporting his income to Centrelink. However, his evidence was largely inconsistent with that plea. He gave a rather untidy array of answers to the difficulty that he had not reported his income to Centrelink. Mr Paetzold’s evidence was that:
- he did in fact report his At Beach earnings to Centrelink in early 2021;[32]
- before that (i.e. before early 2021) he did not report his income to Centrelink because he thought he could earn $16,000 on top of his pension before he had to declare it;[33]
- he did contact Centrelink online in order to obtain an energy supplement to his pension and for rent assistance;[34]
- he did (in 2022) hand in his tax returns to Centrelink – which led to some corrections (about a debit of $14,750);[35]
- the age pension had ‘just turned up’ on the day he turned 65 (in 2015);[36]
- he told Centrelink about his job and gave them his 2018, 2019 and 2020 tax returns in early 2021, but, then he agreed that was impossible because his tax returns were not prepared until July 2021;[37]
- he was “not too sure about it”;[38]
- he thought he could earn $16,000 without it affecting his pension, but it was then put to him that in 2018 he earned roughly $24,000, and in the 2020 year he earned $34,863, and then in 2021 more than $40,000;[39]
- his answer was he did go to Centrelink, and he did apologise, that he did not know about it – but he knows about it now;[40]
- when it was put to him that he knew he was earning money in excess of what he was entitled to earn on the aged pension, his answer was: “At that time, I didn’t know, not beforehand, so I don’t know – you know, I thought I had done the right thing when I did declare it, so …”;[41]
- when it was put to Mr Paetzold that it was only in July 2021 that he thought he was doing the right thing, he agreed;[42]
- then, when it was put to Mr Paetzold that he only lodged his tax returns in 2021 once he was proceeding with his personal injury claim - his answer was: “You know, that was a – I thought I would do my tax anyway, so I went there and I done it. I was advised by the lawyer that I had to declare it, yes.”[43]
- [36]In that context, Mr Paetzold makes this submission:[44]
“There was no basis for the court at first instance to draw the inference at [102] of the Reasons that [Mr Paetzold] would not have reported his income but for this claim or that he knew he ought to have declared his income. This is a finding of dishonesty in circumstances where nothing of the sort was suggested to the appellant. It is submitted that the trial judge’s finding in this regard, with respect, coloured her findings about the appellant’s knee injury.”
- [37]In fact, it was directly put to Mr Paetzold that he only lodged his tax returns in July 2021 – and because of this proceeding. He largely agreed. He said he was advised by his lawyers to lodge his tax returns. Then, of course, he gave his tax returns (or the details of his income) to Centrelink.
- [38]Mr Paetzold then makes this submission:[45]
“It is submitted that the trial judge erred in law by finding (at [26], [99], [109] and [122] of the Reasons) that [Mr Paetzold] did not report to Centrelink any income he had received since commencing to receive the age pension and thereby rejected much of his evidence when:
a. the evidence of [Mr Paetzold] was that he has now reported his income to Centrelink;
b. the weight of the documentary evidence from Centrelink indicated that his income had been reported;
c. it was never put to [Mr Paetzold] nor was it pleaded by the respondent that he deliberately failed to disclose his income to Centrelink;
d. [Mr Paetzold] has entered into a payment plan in respect of repayments to Centrelink;
e. there is no evidence that he was intentionally defrauding or attempting to defraud Centrelink;
f. the trial judge specifically mentioned that the [Mr Paetzold] could not have answered a question about his intention to commit fraud because she would have needed to warn him;
g. [Mr Paetzold’s] evidence was he had an honest mistaken belief and that he knew that he could only earn a certain amount of income before his aged pension would be reduced, but he did not understand the reporting requirements;
h. when [Mr Paetzold] became aware of the need to report, he reported; and
i. there was otherwise no evidence to suggest that [Mr Paetzold] was being dishonest.” [emphasis added]
- [39]The controversy about Centrelink was fairly put to Mr Paetzold. He gave various answers. He said he told Centrelink in early 2021 but appeared to accept that that was incorrect. Then he said he thought he could earn $16,000 before it affected his pension. But that was a problem because in three of the four relevant years he earned more than $16,000. And then he said he went to Centrelink and apologised, and he said he did not know anything about it.
- [40]In that context it is certainly accurate to say that Mr Paetzold has now reported his income to Centrelink. That was his evidence. But it is overly simplistic to say that when Mr Paetzold became aware of his need to report, he reported. As explained, his evidence was very different. He only prepared his tax returns when advised to do so by his lawyers in the course of the litigation. That led to him properly disclosing his income to Centrelink.
- [41]The trial judge had the advantage of seeing Mr Paetzold give that testimony. She was entitled to make her own assessment of that evidence in assessing Mr Paetzold’s credibility.
Conclusions
- [42]No error has been shown in the reasoning of the trial judge. It follows that the applicant has failed to show that an appeal is necessary to correct a substantial injustice. Leave to appeal should be refused.
- [43]It is therefore unnecessary to consider the notice of contention.
- [44]The respondent’s stance was that, if leave to appeal were refused, then the cross-appeal should be dismissed. It follows that the cross-appeal should be dismissed.
Footnotes
[1]District Court of Queensland Act 1967 (Qld) s 118(2)(a) and (3).
[2]The statutory refund is $55,850.14.
[3]Rodgers v Smith [2006] QCA 353 at [4].
[4]Paetzold v At Beach Court Holiday Villas Pty Ltd [2024] QDC 35 at [50] (‘Reasons’).
[5]Reasons at [59].
[6]Note that this idea of “essentially” healed means he was back at work.
[7]The evidence was that the incident report was completed and signed by Mr Paetzold immediately after the incident.
[8]Applicant’s amended submissions at [21](e)-(f).
[9]Reasons at [27]-[28].
[10]TEP v ATS Australasian Technical Services Pty Ltd [2015] 2 Qd R 234; [2013] QCA 180 at [24].
[11]Transcript of the hearing before the trial judge at T 3-29.
[12]Mr Paetzold was born in 1950.
[13]Reasons at [49].
[14]Reasons at [56].
[15]On 17 June 2020 the physiotherapist, Ms Falkenmire, records that “Over last week has had L knee pain following lots of walking – continues to walk excessively: has been told to reduce functional load repetitively ++”.
[16]This is recorded in Dr Journeaux’s report of 29 April 2021.
[17]On 27 May 2020 Mr Paetzold reported to the physiotherapist, Ms Falkenmire, without wearing a moonboot.
[18]See later discussion. Mr Paetzold was back at work on either ‘suitable duties’ or normal duties.
[19]Applicant’s amended submissions at [21](i).
[20]Reasons at [25].
[21]Reasons at [17].
[22]See R v FAZ [2021] QCA 16.
[23]Applicant’s amended submissions at [24].
[24]See Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; [1985] HCA 61; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; [1993] HCA 78.
[25]Applicant’s amended submissions at [26](c)(i).
[26]Dr Hassan’s report of 28 May 2020 records that Mr Paetzold was walking comfortably wearing normal shoes, was not experiencing any pain, but had wasted calf muscles and was continuing physiotherapy rehabilitation to build up the calf muscles. Dr Hassan noted that Mr Paetzold was keen to resume light duties.
[27]This is referred to in the physiotherapist’s notes for 17 June 2020.
[28]The physiotherapist’s notes for 12 June 2020 refer to a ‘Suitable Duties Program’. Mr Paetzold’s own evidence about when he was on suitable duties and then returned to full duties is a little unclear: Transcript of the hearing before the trial judge at T 1-70.
[29]Applicant’s amended submissions at [26](d).
[30](1993) 177 CLR 472 at 479.
[31]Reasons at [26].
[32]Transcript of the hearing before the trial judge at T 1-91.
[33]Ibid.
[34]Ibid.
[35]Ibid T 1-94.
[36]Ibid T 2-33.
[37]Ibid T 2-74.
[38]Ibid T 2-75.
[39]Ibid.
[40]Ibid T 2-75.
[41]Ibid.
[42]Ibid.
[43]Ibid T 2-75 to 2-76.
[44]Applicant’s amended submissions at [16].
[45]Ibid [17].