SUPREME COURT OF QUEENSLAND
CITATION: Springfree Trampoline Australia Pty Ltd v Forostenko [2024]
QCA 255PARTIES: SPRINGFREE TRAMPOLINE AUSTRALIA PTY LTD
(appellant)
v
PHILLIP ANTHONY FOROSTENKO
(respondent)FILE NO/S: Appeal No 8215 of 2024
SC No 9922 of 2019DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING Supreme Court at Brisbane – [2024] QSC 1 (Hindman J); COURT: [2024] QSC 126 (Hindman J) DELIVERED ON: 13 December 2024 DELIVERED AT: Brisbane HEARING DATE: 16 October 2024 JUDGES: Bond and Boddice JJA and Davis J ORDERS: 1. Appeal allowed.
2. Cross appeal dismissed.
3. Set aside the judgment dated 28 May 2024 and the costs orders dated 19 June 2024. 4. Judgment entered for the defendant. 5. The plaintiff must pay the defendant’s costs of the proceeding in the Court of Appeal and of the proceeding below. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – OTHER MATTERS – where the plaintiff injured his foot while jumping on a trampoline manufactured by the defendant – where the primary judge found that the trampoline suffered from a safety defect, the plaintiff suffered injuries because of the safety defect, and therefore was entitled to compensation pursuant to s 138 of the Australian Consumer Law – where the primary judge found that the trampoline had a safety defect as both (a) certain features of the trampoline’s design were such that users were at an increased risk of a foot injury of the type which the plaintiff had suffered; and (b) there was no appropriate warning to users about the relevant features of the trampoline’s design –where the defendant appealed on the basis that the plaintiff had not proved that his injuries would probably have been avoided if the contemplated proper warning had been given – where the primary judge erred in finding that causation had been established APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – OTHER MATTERS – where the plaintiff injured his foot while jumping on a trampoline manufactured by the defendant – where the plaintiff advanced a case to recover compensation under s 138 of the Australian Consumer Law and an alternative case in negligence – where the primary judge erred by finding in favour of the negligence without directing specific enquiry into duty, breach and causation pursuant to ss 9 to 12 of the Civil Liability Act 2003 (Qld) – where the primary judge erred in finding that factual causation had been established Competition and Consumer Act 2010 (Cth), Schedule 2, s 9,
s 138Civil Liability Act 2003 (Qld), s 9, s 10, s 11, s 12 s 75AD Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420;
[2009] HCA 48, cited
Ethicon Sarl v Gill (2021) 288 FCR 338; [2021] FCAFC 29,
considered
Evans v Queanbeyan City Council [2011] NSWCA 230, cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007)
230 CLR 89
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Details
- Case
- [2024] QCA 255
- Decision Date
CaseChat Overview and Summary
The plaintiff in Springfree Trampoline Australia Pty Ltd v Forostenko suffered a foot injury while using a trampoline manufactured by the defendant. The plaintiff alleged that the trampoline had a safety defect and that the defendant was liable for damages under the Australian Consumer Law. The primary judge found that the trampoline had a safety defect and that the plaintiff's injuries were caused by this defect. The defendant appealed the decision, arguing that the primary judge erred in finding that the plaintiff's injuries were caused by the safety defect.
The legal issue in the case was whether the primary judge's finding on causation was correct. The defendant argued that the primary judge's finding was in error because the plaintiff had not proved the counterfactual proposition that his injuries would probably have been avoided if an appropriate warning had been given. The court held that the primary judge's finding on causation was in error because it did not properly consider the counterfactual proposition. The court found that the primary judge's finding that the plaintiff might have taken additional care or accepted the risk did not justify an affirmative answer to the necessary enquiry or to the ultimate question of causation.
The court allowed the defendant's appeal and dismissed the plaintiff's cross-appeal. The court held that the primary judge's finding on causation was in error and that the plaintiff had not proved that his injuries were caused by the safety defect. The court found that the plaintiff had not proved the counterfactual proposition that his injuries would probably have been avoided if an appropriate warning had been given. The court held that the defendant was not liable for damages under the Australian Consumer Law.
The legal issue in the case was whether the primary judge's finding on causation was correct. The defendant argued that the primary judge's finding was in error because the plaintiff had not proved the counterfactual proposition that his injuries would probably have been avoided if an appropriate warning had been given. The court held that the primary judge's finding on causation was in error because it did not properly consider the counterfactual proposition. The court found that the primary judge's finding that the plaintiff might have taken additional care or accepted the risk did not justify an affirmative answer to the necessary enquiry or to the ultimate question of causation.
The court allowed the defendant's appeal and dismissed the plaintiff's cross-appeal. The court held that the primary judge's finding on causation was in error and that the plaintiff had not proved that his injuries were caused by the safety defect. The court found that the plaintiff had not proved the counterfactual proposition that his injuries would probably have been avoided if an appropriate warning had been given. The court held that the defendant was not liable for damages under the Australian Consumer Law.
Orders
Orders of the court
1. Appeal allowed.
2. Cross appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The result is that the defendant is correct to contend that the plaintiff’s injuries could not be said to have been suffered because of the safety defect (as found) unless the plaintiff proved the counterfactual proposition that his injuries would probably have been avoided if the contemplated proper warning had been given. Was the primary judge’s factual conclusion attended by error? The present appeal is conducted by way of rehearing. The question whether the primary judge erred must be considered by reference to what the High Court has described as the correctness standard of appellate review.[20] The approach which must be taken is that set out in the High Court authorities which this Court has conveniently identified and summarised in Wang v Hur.[21] In the present case, as the question involves inferences or conclusions based upon undisputed primary facts, this court is just as well placed as the primary judge to determine the correct inference or conclusion to be drawn. [20] Moore (a pseudonym) v The King [2024] HCA 30; 98 ALJR 1119; 419 ALR 169 at [3] per Gageler CJ; Edelman, Steward, Gleeson and Beech-Jones JJ. [21] Wang v Hur [2024] QCA 126 at [23] – [24]. The entirety of the primary judge’s finding on the critical aspect of causation is expressed in paragraphs [50] and [51], quoted at [27] above. Her Honour’s finding was in error for a number of reasons. First, it was to frame the question in the wrong way to write that “there is no reason … to conclude that had an appropriate warning been given about the cleats … that would not have been taken into account by the plaintiff.” It was for the plaintiff to prove his case on the balance of probabilities. The necessary enquiry was whether the plaintiff had established the counterfactual proposition that if an appropriate warning had been given his injuries would probably have been avoided. Second, the primary judge’s finding that “[t]he plaintiff would then have either taken additional care not to land on the webbing/cleats or would have accepted the risk that landing on the webbing/cleats may contribute to a rolled foot (and associated injuries)” is not a finding which could justify an affirmative answer to the necessary enquiry, or to the ultimate question of causation. Rather it is a finding on the counterfactual that the plaintiff might have proceeded in either of two ways, but without finding which was more likely or whether either way would have resulted in injury being avoided. Logically, the first alternative might have been one step along a path to the injury being avoided, but before that conclusion could be reached it would have been necessary to evaluate whether additional care would be likely to have avoided the injury. But on the second alternative, injury would not have been avoided because the warning would have made no difference to the plaintiff’s conduct. If the second alternative was just as likely as the first alternative (or more likely than it), then the counterfactual could not be regarded as having been proved.
Ratio Decidendi
Legal Principle Established
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