A trampoline manufacturer has successfully appealed a judgment which ordered it pay a Brisbane physiotherapist more than $700,000 for a jumping injury.
In May, Springfree Trampoline Australia was ordered by the Brisbane Supreme Court to compensate Phillip Forostenko for a “dancer’s fracture” he sustained within a minute of using one of its trampolines on Christmas Day in 2017.
The court found the trampoline had a safety defect, that Mr Forostenko suffered injuries because of the defect, and ordered that he be paid $744,175 in compensation under Section 138 of the Competition and Consumer Act 2010 (Qld).
In a decision delivered on Friday, Court of Appeal Justices Bond and Boddice, and Justice Davis, set aside the judgment and ordered judgment be entered for Springfree.
Springfree argued Mr Forostenko had not proved that his injuries would probably have been avoided if the contemplated proper warning had been given, and that the primary judge erred in finding that causation had been established.
The primary judge had found that a clear and visible warning at the entrance to the trampoline could have readily drawn to the attention of users that landing on the cleats at the edge of the mat might increase the risk of a foot roll and therefore an injury, or that extra caution ought be exercised in jumping on the webbing of the trampoline, or that jumping on the webbing should be avoided.
Springfree did not challenge the finding as to the existence and nature of the safety defect, or the finding as to quantum, but rather the finding that Mr Forostenko suffered injury because of the safety defect.
“The defendant contended 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,” the judges stated.
“The defendant contended the plaintiff had not proved the counterfactual. The defendant contended that the primary judge’s findings that causation had been established occurred because the primary judge did not frame the correct enquiry and also failed to consider or appropriately analyse the primary facts relevant to that issue.”
The judges stated the “defendant’s argument that proof of the counterfactual was a condition sine qua non of success for the plaintiff at trial must be accepted”.
“The defendant’s argument that the primary judge erred in finding that the counterfactual had been proved must also be accepted. The result is that the plaintiff had not proved he had suffered injuries because of the safety defect. His claim under the ACL should have failed at trial.”
Mr Forostenko was ordered to pay Springfree’s costs of both proceedings.
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