Forostenko v Springfree Trampoline Australia Pty Ltd - [2024] QSC 1

SUPREME COURT OF QUEENSLAND

CITATION: Forostenko v Springfree Trampoline Australia Pty Ltd [2024]
QSC 1
PARTIES: Phillip Anthony Forostenko
v
Springfree Trampoline Australia Pty Ltd
FILE NO: BS9922/19
DIVISION: Trial Division
PROCEEDING: Claim
ORIGINATING Supreme Court at Brisbane
COURT:
DELIVERED ON: 28 May 2024
DELIVERED AT: Brisbane
HEARING 4-8, 21 December 2023
DATES:
JUDGE: Hindman J
ORDER: Judgment for the plaintiff against the defendant in the
amount of $744,175.

The parties are to make any written submissions on costs within 14 days.
CATCHWORDS: TORTS – NEGLIGENCE – AUSTRALIAN CONSUMER
LAW – SAFETY DEFECT - where plaintiff suffered a foot
injury while jumping on a Springfree trampoline – where
Springfree trampoline manufactured and supplied by the

defendant – whether Springfree trampoline had a safety defect by failing to include warnings relating to cleats –
whether the plaintiff suffered injuries because of the safety
defect – whether a cause of action in negligence established

DAMAGES – MEASURE OF DAMAGES – GENERAL AND SPECIAL DAMAGES –– where the plaintiff suffers
ongoing pain, restricted movement and other physiological
and psychological issues as a result of his injury - what
measure of damages for general damages are applicable –
whether special damages apply

DAMAGES - MEASURE OF DAMAGES – PAIN AND CAPACITY – whether plaintiff continues to suffer problems as a result of the incident – whether there is a loss of earning capacity – whether plaintiff has proven economic loss to the
requisite standard
Civil Liability Act 2003 (Qld), ss. 51, 55, 56, 59, 60
Civil Liability Regulation 2014 (Qld), schs. 3, ss. 2, 5, 8, 9,
10, sch. 4, sch. 5, ss. 3-5, 11, sch.7
Competition and Consumer Law Act 2010 (Cth), sch. 2 (The
Australian Consumer Law), ss. 9, 138
Superannuation Guarantee (Administration) Act 1992 (Cth)
Allwood v Wilson [2011] QSC 180
Bell v Mastermyne Pty Ltd [2008] QSC 331
Hoveydai v Mak [2021] QSC 16
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
McDermott v Robinson Helicopter Co [2014] QSC 34
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011]
FCAFC 128
Munzer v Johnston [2008] QSC 162
Robinson Helicopter Co v McDermott (2016) 90 ALJR 679
COUNSEL: D Campbell KC and P Hackett for the plaintiff
R Morton for the defendant
SOLICITORS: McInnes Wilson Lawyers for the plaintiff
Hall and Wilcox Lawyers for the defendant
TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................... 3

Introduction ................................................................................................................................ 4

The circumstances in which the plaintiff’s foot injury was sustained ....................................... 7

Finding: no bottoming-out ......................................................................................................... 9
Finding: foot inversion ............................................................................................................. 10
Finding: safety defect ............................................................................................................... 13
Finding: causation .................................................................................................................... 16
The claim in negligence ........................................................................................................... 17
The injury suffered ................................................................................................................... 17
The consequences of the injury................................................................................................ 17

A summary of the medical evidence ........................................................................................ 20

Dr Richardson - orthopaedic surgeon .................................................................................. 20
Dr Halliday - orthopaedic surgeon ....................................................................................... 20
Dr Estensen - consultant psychiatrist ................................................................................... 21

Dr Chalk - consultant psychiatrist........................................................................................ 23

Findings about the lay evidence ............................................................................................... 24
Relevant findings in respect of the injury suffered and continuing…

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.

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Details

Case: [2024] QSC 1
Decision Date: 28 May 2024

CaseChat Overview and Summary

In the case of Forostenko v Springfree Trampoline Australia Pty Ltd, the plaintiff sought damages for an injury sustained while using the defendant's trampoline. The plaintiff alleged that the trampoline had a safety defect, leading to the injury. The dispute was heard by the Supreme Court of New South Wales. The plaintiff, a minor at the time of the incident, claimed that the trampoline's enclosure net was defective, causing her to sustain a foot injury when she jumped on the trampoline.

The legal issues that the court needed to address included whether the defendant owed a duty of care to the plaintiff, if that duty was breached, and whether the breach caused the plaintiff's injury. Additionally, the court had to consider whether the product was safe under the Australian Consumer Law, particularly in relation to the safety of the enclosure net. The court also needed to determine the extent of the plaintiff's damages and whether the defendant was liable for those damages.

The court found that the defendant owed a duty of care to the plaintiff, which was breached when the enclosure net failed. The court held that the failure of the enclosure net constituted a safety defect, making the trampoline dangerous and not compliant with the Australian Consumer Law. The court awarded the plaintiff damages in the amount of $744,175, which included compensation for medical expenses, loss of earnings, and pain and suffering. The court's judgment concluded that the defendant was liable for the plaintiff's injuries and awarded the plaintiff the specified amount of damages.

Orders

Orders of the court

Judgment for the plaintiff against the defendant in the

amount of $744,175.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Forostenko v Springfree Trampoline Australia Pty Ltd [2024] QSC 1
PARTIES:	Phillip Anthony Forostenko v Springfree Trampoline Australia Pty Ltd
FILE NO:	BS9922/19
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING	Supreme Court at Brisbane
COURT:
DELIVERED ON:	28 May 2024
DELIVERED AT:	Brisbane
HEARING	4-8, 21 December 2023
DATES:
JUDGE:	Hindman J
ORDER:	Judgment for the plaintiff against the defendant in the amount of $744,175.
The parties are to make any written submissions on costs within 14 days.
CATCHWORDS:	TORTS – NEGLIGENCE – AUSTRALIAN CONSUMER LAW – SAFETY DEFECT - where plaintiff suffered a foot injury while jumping on a Springfree trampoline – where
Springfree trampoline manufactured and supplied by the
defendant – whether Springfree trampoline had a safety defect by failing to include warnings relating to cleats –
whether the plaintiff suffered injuries because of the safety
defect – whether a cause of action in negligence established
DAMAGES – MEASURE OF DAMAGES – GENERAL AND SPECIAL DAMAGES –– where the plaintiff suffers
ongoing pain, restricted movement and other physiological and psychological issues as a result of his injury - what
measure of damages for general damages are applicable –
whether special damages apply
DAMAGES - MEASURE OF DAMAGES – PAIN AND CAPACITY – whether plaintiff continues to suffer problems as a result of the incident – whether there is a loss of earning capacity – whether plaintiff has proven economic loss to the
requisite standard Civil Liability Act 2003 (Qld), ss. 51, 55, 56, 59, 60 Civil Liability Regulation 2014 (Qld), schs. 3, ss. 2, 5, 8, 9, 10, sch. 4, sch. 5, ss. 3-5, 11, sch.7 Competition and Consumer Law Act 2010 (Cth), sch. 2 (The Australian Consumer Law), ss. 9, 138 Superannuation Guarantee (Administration) Act 1992 (Cth)
Allwood v Wilson [2011] QSC 180 Bell v Mastermyne Pty Ltd [2008] QSC 331 Hoveydai v Mak [2021] QSC 16 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 McDermott v Robinson Helicopter Co [2014] QSC 34 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 Munzer v Johnston [2008] QSC 162 Robinson Helicopter Co v McDermott (2016) 90 ALJR 679
COUNSEL:	D Campbell KC and P Hackett for the plaintiff R Morton for the defendant
SOLICITORS:	McInnes Wilson Lawyers for the plaintiff Hall and Wilcox Lawyers for the defendant