A Brisbane physiotherapist who fractured his foot while jumping on a spring-free trampoline has been awarded almost $750,000, after having sought close to $4 million in compensation.
Phillip Forostenko suffered a “dancer’s fracture” (fifth metatarsal fracture) within a minute of using the trampoline on Christmas Day in 2017, and sued the manufacturer for compensation, claiming a safety defect and negligence.
In her 37-page Supreme Court decision published on Tuesday, Justice Hindman found that the trampoline had a safety defect, that Mr Forostenko suffered an injury because of that defect, and that he was entitled to compensation, but that he was prone to exaggerating both the injury and its ongoing effect.
At the time of the incident, Mr Forostenko was a fit and active 41-year-old, an “experienced and enthusiastic user (and owner) of trampolines” but a first-time user of a spring-free trampoline. The injury occurred when he landed flat-footed on the edge of the trampoline mat, which was overlaid with webbing and marked with yellow lines, and covered cleats installed underneath.
Mr Forostenko argued the manufacturer had contravened the Competition and Consumer Act 2010 (Cth) and claimed damages of about $3.92 million. The manufacturer asserted that any assessment of damages (if liability was established) was no greater than about $160,000.
Justice Hindman said no trampoline was inherently safe, but this trampoline did have a safety defect.
“I do consider that adults using trampolines well understand the risk on a trampoline of landing awkwardly (on any part of the trampoline) and thereby suffering a foot injury, without any type of warning being given,” she said.
“Jumping on any trampoline carries a risk of many different types of injuries because of the dynamic nature of the user interaction.
“With this trampoline, the shape of the top of the cleat (to a small degree) and the fact of the cleat operating as a ball joint (to a significant degree), meant that depending on how users landed on a cleat, the cleat had the potential to cause or contribute to an inversion of the forefoot, such that with the force of the mat depressing (even without bottoming-out), users were at increased risk of a foot injury, including a dancer’s fracture.
“That fact, together with the lack of a warning about that particular feature of the trampoline’s design, was a safety defect. That particular feature of the trampoline’s design was a matter about which users were entitled to expect would be drawn to their attention.
“Instead the trampoline was advertised with language such as “no springs = jump safely to the edge” and “Softedge mat – no hard edges to land on”.”
Justice Hindman said a clear and visible warning at the entrance to the trampoline could have notified users that landing on the cleats at the edge of the mat increased the risk of a foot injury, and that jumping on the webbing should be done with caution or avoided.
Mr Forostenko submitted his injuries included a fracture, surgery, scarring, major depressive disorder and adjustment disorder. He claimed to be in considerable ongoing pain and unable to return to work or play sport at pre-incident levels.
“Despite the ongoing pain and difficulties described above, the plaintiff has not consulted further with the medical profession…(and) despite his diagnosed psychiatric injury the plaintiff has not undertaken any treatment in respect of same,” Justice Hindman said.
She said she “would not go so far as to describe my impression of the plaintiff as dishonest”, but formed the view he:
- was “prone to exaggeration, particularly where he considered that may be advantageous to his claim”;
- “did not make appropriate concessions where he perceived to do so would not be advantageous to his case”;
- was not fulsome with the defendant’s psychiatrist about marital difficulties he was experiencing before the foot injury;
- many times advocated for a position rather than simply answering questions asked of him;
- sought to bring the blame for problems in his marriage and businesses back to his foot injury, without properly acknowledging other factors at play; and
- was intent on blaming the cleat, in particular its hardness, for his injury.
She noted a consultant orthopaedic surgeon called for the defendant stated “Mr Forostenko’s level of pain and disability reporting appears out of proportion to the demonstrable pathology at this time”.
“My impression of his evidence about the physical injury and the ongoing effects of the physical injury is that the plaintiff is prone to exaggerate both,” she said.
Justice Hindman said she considered the weight of Mr Forostenko’s witnesses’ evidence “to be reduced in circumstances where it is so reliant upon the actions of, and information provided by, the plaintiff”.
“The plaintiff submits a very pessimistic view of his ability to continue in his chosen profession. I do not share that view,” she said.
“On the whole, I am not satisfied that the plaintiff will have significant ongoing economic loss. His level of physical injury is now relatively mild. He has had a relatively good outcome from his surgery and although he says he has ongoing discomfort in his right foot, he is now able to carry out most domestic and business tasks.
“With treatment of his psychiatric injury, he is likely to improve, however, even if he did not, I do not accept that his current psychiatric injury is significantly impeding his ability to work.”
Justice Hindman ordered judgment for Mr Forostenko against the manufacturer in the sum of $744,175, made up of general damages, past economic loss, future economic loss, past and future superannuation, past gratuitous care, past special damages and future special damages.
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