Forostenko v Springfree Trampoline Australia Pty Ltd (No.2)

[2024] QSC 126

SUPREME COURT OF QUEENSLAND

CITATION:	Forostenko v Springfree Trampoline Australia Pty Ltd (No.
2) [2024] QSC 126
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:	19 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Hindman J
ORDER:	The defendant is to pay the plaintiff’s costs of the
proceeding on the standard basis assessed on the District Court scale.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – OFFERS TO SETTLE – where
the proceeding involved a successful claim for damages by the plaintiff for personal injury - where plaintiff beat his offers - whether the defendant should pay indemnity costs of the proceeding - whether other costs orders are appropriate to
reflect plaintiff’s conduct of case, limited success and other
matters
Personal Injuries Proceedings Act 2002 (Qld) ss. 40(7), 40(8) Uniform Civil Procedure Rules 1999 (Qld) rr. 5, 186, 360, 381, 386, 684
Bulsey v State of Queensland [2016] QCA 158 McChesney v Singh [2004] QCA 217 Nortask Pty Ltd v Areva Solar KCP Pty Ltd (No. 2) [2018] QSC 210
COUNSEL:	DJ Campbell KC and PW Hackett for the plaintiff RC Morton for the defendant
SOLICITORS:	McInnes Wilson Lawyers for the plaintiff Hall and Wilcox Lawyers for the defendant

Introduction

1. The plaintiff claimed damages in relation to a foot injury suffered by him on 25

   December 2017 while jumping on a Springfree trampoline. The defendant is the

   manufacturer of the Springfree trampoline.

2. After a contested trial where both liability and quantum were in issue, on 28 May 2024

   judgment was given for the plaintiff against the defendant in the sum of $744,175.[1] The

   parties were directed to provide, and did provide, written submissions on costs. The

   parties were invited to make written submissions in reply on costs if they wished to do

   so, and the plaintiff has done so. Some evidence in support of submissions was provided.

   This is the costs decision.

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

3. The outcome is that the defendant is to pay the plaintiff’s costs of the proceeding on a

   standard basis assessed on the District Court scale.[2]

The plaintiff’s position on costs

[2] Uniform Civil Procedure Rules 1999 (Qld) (UCPR), sch 1.

1. The plaintiff seeks that the defendant pay his costs of the proceeding on the indemnity

   basis relying in particular upon two facts:

(a) the plaintiff at trial has beaten his mandatory final offer made 15 July 2019 of

$500,000 plus costs assessed on the District Court scale;

(b) the plaintiff at trial has beaten his formal UCPR offer made 23 May 2022 of

$250,000 plus costs.

1. If there were no other relevant facts to be considered, the plaintiff’s submission on costs

   would be difficult to resist.[3]

   [3] Having regard to sections 40(7) and (8) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), rules 360 and 381 UCPR. See also Bulsey v State of Queensland [2016] QCA 158; McChesney v Singh [2004] QCA 217.

2. I note that the plaintiff in his primary submissions refers to, but I do not think it is

   appropriate that I consider, offers made by the defendant that the defendant did not beat,

   because in my view those offers are not relevant. The plaintiff has made no submissions

   as to why the defendant’s offers would be relevant.

The defendant’s submissions on costs

1. The defendant seeks a relatively complex costs order in these terms:

(a) The plaintiff pay the defendant’s costs thrown away by reason of the amendments

to the Statement of Claim made on 12 May 2021, 16 May 2022, 4 December 2023

and 8 December 2023.

(b) The plaintiff pay the defendant’s costs of or related to the factual matters pleaded

at paragraphs 5A(a), (c), 5C, 5D, 6A(d), (e), (f), 6B, 6C(g), 6E(e), (f), (g), 7D, 7F

of the Second Further Amended Statement of Claim filed on 2 November 2022

and paragraphs 5A(a), (c), 5BA, 5BB, 5BC, 5C, 5D, 6A(d), (e), (f), (i), 6C(h), (i),

(j), (k), (l), (m), (n), (o), 6E(da) of the Third Further Amended Statement of Claim

filed on 4 December 2023.

(c) The defendant pay the plaintiff’s standard costs of the proceeding but reduced by

50 percent of the costs relating to liability exclusive of the costs referred to in the

preceding orders.

1. The justification for the first order is submitted by the defendant to be that for the first

   two rounds of amendments to the statement of claim, rule 386 UCPR has application and

   should be applied. Whilst strictly that rule does not apply to the other amendments (those

   amendments having occurred with leave), the underlying principle that a party should

   bear any costs thrown away as a consequence of amendment would equally apply. There

   is some merit to those submissions by the defendant.

2. The justification for the second order is submitted by the defendant to be that those are

   parts of the plaintiff’s claim that were abandoned by the plaintiff by the conclusion of

   the trial and so the defendant should have its costs associated with those allegations (or

   at least perhaps costs thrown away analogously with rule 386 UCPR). Rule 684 UCPR

   may also have some application. There is some merit to those submissions by the

   defendant.

3. The justification for the third order is submitted by the defendant to be a combination of

   factors, including:

(a) that the case upon which the plaintiff ultimately succeeded was one

notified/pleaded only shortly before or at trial;

(b) because of the preceding subparagraph, the rejection of the plaintiff’s offers was

not unreasonable;

(c) significant parts of the plaintiff’s case that the plaintiff did press at trial were not

successful (e.g. allegations of bottoming out, allegations of deficient netting);

(d) that the plaintiff only succeeded on quantum to the value of about twenty percent

of his claim made.[4]

Rule 684 UCPR has application. There is some merit to those submissions by the

defendant.

[4]            Whilst I have had regard to the decision cited by the defendant (Nortask Pty Ltd v Areva Solar KCP Pty Ltd (No. 2) [2018] QSC 210 at [75]) I do not think that case was attempting to lay down any general principle and this is a matter to which I would give limited weight in this case, except insofar as it may impact on which court scale is appropriate to apply, as the quantum of the claim did not seem to me to effect the nature and extent of the evidence or its necessary consideration.

Consideration

1. I consider it is desirable, if I can reasonably do so, to reflect the matters raised by the

   defendant that I consider meritorious in one costs order to be made, rather than add to

   the cost and complexity of a costs assessment process by making multiple costs orders.

   I intend to deal with costs that would be the subject of rule 386 UCPR in this decision,

   rather than allow that rule to continue to have separate operation.

2. Whilst I accept generally the merits of the defendant’s submissions, that is to be

   moderated in circumstances where:

(a) The defendant’s expert (Professor Alexander) appeared to appreciate the potential

for the cleat to contribute to a foot roll and injury, even if the plaintiff was

relatively late in making that aspect of his case clear;

(b) It is not unusual that a party’s case will develop and change over time, particularly

where expert evidence is required. It is consistent with rule 5 UCPR that a party

run its true case at trial. Therefore there should be some leniency in allowing a

party’s case to develop without severe adverse cost consequences;

(c) The plaintiff in submissions in reply points to late disclosure and late sought

delivery of expert evidence by the defendant as being at least part of the reason

for late developments in the plaintiff’s case – having regard to the evidence filed

in support, those submissions by the plaintiff have some merit;

(d) Had the plaintiff’s final mandatory offer been accepted, none of the costs

associated with the proceeding would have been incurred, including in respect of

matters pleaded then abandoned, matters upon which the plaintiff was not

successful, unnecessary case management conferences, etc;

(e) The plaintiff in submissions in reply further points to the overall conduct of the

defendant’s case (including denying liability and putting the plaintiff to proof for

the most part), including in respect of the defendant’s response to a notice to admit

facts (at least in part rule 189 UCPR would be engaged) – those submissions by

the plaintiff have some merit.

1. That the plaintiff has achieved a judgment within the jurisdiction of the District Court is

   another factor that I give some weight in considering what is the appropriate costs order/s

   to make.

2. In this case I consider that the just and fair outcome on costs balancing up the matters I

   have mentioned is to make only one costs order, namely, that the defendant pay the

   plaintiff’s costs of proceeding but only on the standard basis and assessed on the District

   Court scale.