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Springfree Trampoline Australia Pty Ltd v Forostenko[2024] QCA 255

Springfree Trampoline Australia Pty Ltd v Forostenko[2024] QCA 255

SUPREME COURT OF QUEENSLAND

CITATION:

Springfree Trampoline Australia Pty Ltd v Forostenko [2024] QCA 255

PARTIES:

SPRINGFREE TRAMPOLINE AUSTRALIA PTY LTD

(appellant)

v

PHILLIP ANTHONY FOROSTENKO

(respondent)

FILE NO/S:

Appeal No 8215 of 2024 SC

No 9922 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2024] QSC 1 (Hindman J);

[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

Civil Liability Act 2003 (Qld), s 9, s 10, s 11, s 12

Competition and Consumer Act 2010 (Cth), Schedule 2, s 9, s 138

Trade Practices Act 1974 (Cth), s 52, s 74B, s 74D, s 75AC, 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; [2007] HCA 22, cited

Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182, cited

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; [2011] FCAFC 128, considered

Moore (a pseudonym) v The King (2024) 98 ALJR 1119; [2024] HCA 30, cited

Wang v Hur [2024] QCA 126, followed

COUNSEL:

J D McKenna KC, with K Riedel, for the appellant

G W Diehm KC, with P Hackett, for the respondent

SOLICITORS:

Hall & Wilcox for the appellant

McInnes Wilson Lawyers for the respondent

  1. [1]
    BOND JA:  The plaintiff injured his foot while jumping on a trampoline in the back yard of his sister’s residence on Christmas Day 2017.  The trampoline had been manufactured by the defendant.
  2. [2]
    At trial the plaintiff’s principal case was that, as manufacturer, the defendant was liable to compensate him pursuant to s 138 of Schedule 2 (the Australian Consumer Law) of the Competition and Consumer Act 2010 (Cth) (the ACL) as he had suffered injuries because the trampoline had a safety defect.
  1. [3]
    The primary judge found that the trampoline suffered from a safety defect; the plaintiff suffered injuries because of the safety defect; the plaintiff was entitled to compensation pursuant to s 138 of the ACL; and the assessed amount of compensation was $744,175.00.  In a separate judgment, the primary judge ordered the defendant to pay the plaintiff’s costs of the proceeding on the standard basis assessed on the District Court scale.
  2. [4]
    The primary judge’s finding that the trampoline had a safety defect turned on two considerations taken together, namely–
    1. 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
    2. there was no appropriate warning to users about the relevant features of the trampoline’s design.
  3. [5]
    As to the latter aspect, the primary judge 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.
  4. [6]
    The defendant appealed to this Court to reverse the outcome below.  The defendant did not challenge the primary judge’s finding as to the existence and nature of the safety defect.  Nor did the defendant challenge the primary judge’s finding as to quantum.  Rather the defendant’s principal challenge to the primary judge’s orders was to her Honour’s finding that the plaintiff suffered injuries because of the safety defect.
  5. [7]
    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 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.
  6. [8]
    For his part the plaintiff argued, faintly, that the evidence supported a finding in his favour on the counterfactual, but his principal response was that advanced by his notice of contention.  In the notice of contention, he argued, essentially, that it was not necessary for him to prove the counterfactual.  All that was necessary was for him to show that the trampoline containing the safety defect had caused its injury.  His argument in this regard faced the hurdle of persuading this Court not to follow a relevant decision of the Full Court of the Federal Court.
  7. [9]
    There was also a cross-appeal by the plaintiff in relation to the costs orders made by the primary judge.  The plaintiff contended that the primary judge’s discretion in relation to costs miscarried when her Honour rejected his claim for an indemnity costs order.
  8. [10]
    For reasons which follow, 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.
  9. [11]
    For completeness, it should be noted that at trial the plaintiff pursued his case, in the alternative, in negligence.  The primary judge found it was not necessary to consider that claim in any detail but concluded that it was established “essentially adopting a similar reasoning process” to that which her Honour expressed in relation to the ACL case.  For reasons which follow, the alternative case in negligence could not prevail if the plaintiff failed to prove causation on the ACL case.  The plaintiff’s case in negligence should also have failed at trial.
  10. [12]
    As the plaintiff should have failed at trial, it is unnecessary to consider the plaintiff’s cross-appeal on costs.
  11. [13]
    The following orders should be made –
    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.

The nature of the subject trampoline

  1. [14]
    Springfree trampolines are different from traditional trampolines.  One of the tendered photographs of the subject trampoline in situ appears below.  The features of the trampoline to which reference is made in the primary judge’s reasons may be explained by reference to that photograph, which has been edited by the addition of red markings.

Springfree Trampoline Australia Pty Ltd v Forostenko [2024] QCA 255

  1. [15]
    The floor of the trampoline was comprised of a large oval mat around the perimeter of which was a strip of webbing about 9.5cm wide, marked with two parallel yellow lines (the location of which is shown by the red arrow on the photograph).  The primary judge found that the webbing strip had a number of functions.  It marked the edge of the mat, it reinforced the edge of the mat, it protected underlying stitching, and it had, slotted into it at approximate 17.5 centimetre intervals, the hard plastic cleats into which one end of the rods that created the bounce mechanism of the Springfree trampoline were inserted.  These cleats on their upper side had a rounded shape and could rotate slightly with movements in the mat.
  2. [16]
    The photograph shows that the outer edge of the trampoline’s mat was supported underneath by a series of “spring rods” which extended downwards on an angle to the perimeter frame of the trampoline.  A section of the spring rods is framed by the red clouded outline on the photograph.  These are the rods which created the springing mechanism for the trampoline.  As the name suggests, the bounce mechanism of the Springfree trampoline does not employ the horizontally connected springs used by traditional trampolines.
  3. [17]
    The perimeter frame also supported a surrounding curtain of safety netting apparent on the photograph, which rose up from below the outer edge of the mat and was removable.  The safety netting had a single opening which was secured by zips also apparent on the photograph.  There were two warning notices on the trampoline: one about the size of an A4 sheet of paper adjacent to the opening of the safety netting, the location of which is identified by the oval marking on the photograph, and the other attached to the surface of the mat and within the safety netting, the location of which is depicted by the red rectangle marking on the photograph.
  4. [18]
    The content of the A4 warning sheet is depicted in the diagram below:

Springfree Trampoline Australia Pty Ltd v Forostenko [2024] QCA 255

  1. [19]
    The content of the warning which was attached to the trampoline mat is depicted in the diagram below:

Springfree Trampoline Australia Pty Ltd v Forostenko [2024] QCA 255

The relevant reasoning of the primary judge

  1. [20]
    The primary judge found that at around lunchtime on Christmas Day the plaintiff travelled from his home to his sister’s residence.  Shortly after arrival he saw the new Springfree trampoline set up in the backyard, slipped off his thongs and climbed into the trampoline to try it out.  After doing so, he zipped up the net entrance to the trampoline, moved to the centre of the trampoline (facing towards the short edge of the trampoline away from the pool) and started jumping, to get the feel of the trampoline.  Within 40 to 60 seconds of being on the trampoline he suffered the foot injury.
  2. [21]
    The primary judge described the precise mechanism of the occurrence of the injury in these terms (footnotes omitted):

“[4] The plaintiff was bouncing in about the centre of the trampoline mat at a height of about 80-90 centimetres. A slightly wayward jump saw him bounce up and off to his right to the extent that on his descent from the jump his right shoulder touched and slid down the surrounding net. He intended to adjust his next bounce to bounce himself gently back towards the centre of the mat. He was not concerned that he had lost control of his bouncing and ought to come to a stop (which can be done with a stop-bounce manoeuvre wherein the legs bend, acting like a shock absorber to prevent a rebound off the mat). Instead, because he intended to continue bouncing and not bring himself to a stop, it is inferred that the plaintiff kept his legs fairly rigid (or only slightly flexed) when he impacted the mat. The plaintiff said that he landed flat-footed (in a neutral foot position). His right foot came down near the edge of the mat which is overlaid with webbing (marked with yellow lines).”

  1. [22]
    The plaintiff’s right foot had come down near the edge of the mat on the webbing where a cleat was installed underneath.  The plaintiff suffered immediate pain to his right foot and in particular he had suffered what is commonly referred to as a “dancer’s fracture”.
  2. [23]
    In order to understand her Honour’s reasoning that the trampoline suffered from a safety defect, it is necessary first to record the relevant terms of s 9 of the ACL:

 “9  Meaning of safety defect in relation to goods

  1. For the purposes of this Schedule, goods have a safety defect if their safety is not such as persons generally are entitled to expect.
  2. In determining the extent of the safety of goods, regard is to be given to all relevant circumstances, including:
    1. the manner in which, and the purposes for which, they have been marketed; and
    2. their packaging; and
    3. the use of any mark in relation to them; and
    4. any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and
    5. what might reasonably be expected to be done with or in relation to them; and
    6. the time when they were supplied by their manufacturer.
  3. An inference that goods have a safety defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.
  4. An inference that goods have a safety defect is not to be made only because:
    1. there was compliance with a Commonwealth mandatory standard for them; and
    2. that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.”
  1. [24]
    The critical aspects of her Honour’s reasoning were expressed in the following paragraphs (footnotes omitted):
  1. "[37]
    Goods will have a safety defect as defined in s. 9 of the ACL if the safety of the goods is not such as persons generally are entitled to expect. The standard is objective, based on what the public at large is entitled to expect.  Goods do not have to be absolutely free from risk.  Whether there is a safety defect in goods is a broad enquiry and has regard to all relevant circumstances.  A relevant circumstance is one that has some bearing on what persons are generally entitled to expect with respect to the safety of goods.  Section 9(2) of the ACL refers to relevant circumstances as including: 
  1. any instruction for, or warnings with respect to, doing, or refraining from doing, anything in relation to the goods;
  2. the manner in which, and the purpose for which, the goods have been marketed;
  3. what might reasonably be expected to be done with or in relation to the goods.
  1. [38]
    I am satisfied that the trampoline suffered from a safety defect.
  2. [39]
    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.  Jumping on any trampoline carries a risk of many different types of injuries because of the dynamic nature of the user interaction.  No trampoline is inherently safe.
  3. [40]
    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.
  4. [41]
    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”.
  5. [42]
    There is no dispute between the parties that a product may be defective because of the absence of a proper warning.
  6. [43]
    It is not necessary to propound the precise wording of the required warning and how it ought to have been communicated.  But a clear and visible warning at the entrance to the trampoline could have readily drawn to the attention of users that the cleats in the edge of the mat if landed on may increase the risk of a foot roll, and therefore an injury: or that extra caution ought be exercised in jumping on the webbing, or that jumping on the webbing should be avoided.
  7. [44]
    I note that I have reached the conclusion about the existence of a safety defect in the context where the relevant circumstances included that:
  1. whilst there were warnings labels attached to the trampoline, warnings in the user guide and warnings in the instruction and assembly manual, none of the warnings were to the effect set out in the previous paragraph;
  2. whilst an instruction was given to users to jump in the centre of the mat, the whole of the mat surface was available to be impacted and certain marketing material of the defendant shows the whole of the mat, and even the inside of the surrounding net, being part of the play surface available;
  3. whilst the inclusion of a yellow colour on the webbing and the existence of the webbing itself was sufficient to draw some attention to the edge of the mat, it did not alert users to any potential care needing to be taken around the edge of the mat;
  4. the defendant's White Paper, being part of the defendant's available promotional material, in section 3.4 described the cleat design and noted that it has "a large flat top face to provide a safe landing surface at the rod end". That was not the proper description of the relevant cleat's top face or the landing surface.
  1. [45]
    I do not consider that the following warnings, as submitted for by the plaintiff, ought to have been given:
  1. That cleats were located underneath the mat. A warning simply identifying that the cleats were present would have been of no assistance. What needed to be explained was the increased risks that existed of foot roll (and therefore injury) if the cleats were landed on.
  2. That users should not jump or land on the area of the mat above the cleats. That type of warning goes too far. It was not inherently unsafe to land on the mat above the cleats. There was just an increased risk if the cleats were landed on that a rolling of the foot (and therefore injury) might result.
  3. That users weighing more than 60kgs could be injured if they landed on the area immediately above the cleats. It is not clear to me if this proposed warning only relates to the risks ofbottomingout. A cleat's contribution to a foot roll is likely to occur at any weight (although at a lighter weight less force may be exerted at the same jump height).
  4. The safety net encroached less on the sides of the oval trampoline than on its end. This of itself is not a useful warning, it is just a fact. I accept that on the round Springfree trampolines and at the short ends of the oval Springfree trampolines the encroachment of the safety net did provide a natural discouragement (but not prohibition) from jumping on the mat edge. But as above, what needed to be explained was the increased risk that existed if the cleats were landed on. It was not necessary to go so far as to physically prevent a user impacting on the mat edge.”
  1. [25]
    It is clear that the primary judge did not find the trampoline was defective simply by virtue of the design features to which she referred.  To the contrary, her Honour found that the nature of the safety defect from which the trampoline suffered was the combination of the two design features which her Honour identified, namely the design feature identified in the first few lines of [40], together with the lack of warning about that particular feature of the design.  That her Honour intended that the lack of warning was an essential part of the nature of the safety defect is made clear by the second last sentence in [40] (“together with”) and by [42] (“because of”).  The plaintiff’s argument to the contrary before this Court must fail.
  2. [26]
    Her Honour next addressed the issue of causation.  In order to understand her Honour’s reasoning in that regard, it is necessary first to record the relevant terms of s 138 of the ACL:

“138Liability for loss or damage suffered by an injured individual

  1. A manufacturer of goods is liable to compensate an individual if:
    1. the manufacturer supplies the goods in trade or commerce; and
    2. the goods have a safety defect; and
    3. the individual suffers injuries because of the safety defect.
  2. The individual may recover, by action against the manufacturer, the amount of the loss or damage suffered by the individual.
  3. …”
  1. [27]
    The critical aspects of her Honour’s reasoning were expressed in the following paragraphs (footnotes omitted): 

“[47]A safety defect having been found, the question of causation arises.

  1. [48]
    Section 138 of the ACL requires that injuries are suffered “because of the safety defect”. The plaintiff bears the onus of proving the causal link between the safety defect and the injuries suffered: s. 138(1)(c) ACL.
  2. [49]
    The defendant submits the plaintiff faces two hurdles in establishing causation. The first being that the plaintiff must demonstrate that had the relevant warning been provided, it would have prevented the injury. The defendant submits the putative warning would have had to be delivered by label attached to the trampoline or the user guide, and the plaintiff did not suggest that he ever consulted such items prior to using the trampoline, and so would not have received, or acted in accordance with, such a warning. The second is that the defendant says the jump that resulted in the injury was unintended and therefore even if the plaintiff received a warning, he did not intend to land where he landed.
  3. [50]
    There is no reason in my view to conclude that had an appropriate warning been given about the cleats (see for example, at paragraph 43 above) that would not have been taken into account by the plaintiff. The 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). That the plaintiff landed on the mat in a place he did not intend is simply not to the point.
  4. [51]
    I conclude on the balance of probabilities that the plaintiff did suffer injuries because of the safety defect.”

The causation element of the plaintiff’s claim under the ACL

  1. [28]
    The statutory cause of action to recover compensation under s 138 exists if the conditions specified in s 138(1) of the ACL exist.  In this case, the condition specified in s 138(1)(a) was not in issue.  Further, although her Honour was not prepared to conclude that the design features of the trampoline by themselves justified a finding that the trampoline had a safety defect, her Honour found that particular design features of the trampoline, together with the lack of a warning about those particular design features, meant that the trampoline had a safety defect which meant that the condition specified in s 138(1)(b) was satisfied.  That approach was legally open to her: see Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (Merck)[1] and Ethicon Sarl v Gill (Ethicon),[2] both of which cases will be considered in greater detail below.  In any event, neither party contended that the primary judge had made any error in her finding as to the nature of the safety defect.  As the primary judge found, the question then was whether the condition specified in s 138(1)(c) was satisfied, namely whether the plaintiff’s injuries were suffered “because of the safety defect”.
  2. [29]
    In this respect, the plaintiff’s case, as opened, and as explained during the trial, was that the case under the ACL was effectively a failure to warn case.  The plaintiff’s senior counsel specifically told the primary judge –
    1. during the opening:

“The plaintiff’s case then, with regard to the existence of a safety defect, considers a number of different matters – principally, they’re concerning warnings, different sorts of warnings, the shape of the net and the method of marketing. And that’s the principal case that we are bringing.”

  1. during the course of the evidence:

“… this is not a construction case. We’re not saying there was a way of building it differently. We’re saying it’s a warning case. There were warnings that should be given.”

  1. [30]
    Despite pinning his colours to that mast, the plaintiff did not accept that it was necessary to attribute any causal significance to the failure to give warnings or to show that anything would have been different if appropriate warnings had been given.  No counterfactual was pleaded.  And the plaintiff’s position became more clear after the evidence was concluded and the matter adjourned for two weeks to enable written submissions to be prepared and delivered. 
  2. [31]
    The defendant’s written closing submissions had been delivered first.  Amongst other things the defendant contended that the plaintiff’s case had to fail on causation (original footnotes omitted):

“The Plaintiff also fails on causation:

  1. In circumstances where his landing where he did was not intentional, a warning not to land there would not have prevented him doing so; and
  2. Where the putative warning would have had to be delivered by label attached to the trampoline or the user guide, the Plaintiff, did not suggest that he ever consulted such items prior to using the trampoline, would not have received, or acted in accordance with, such a warning.

…

Here the Plaintiff faces two difficulties.

This is a warning case. The Plaintiff must show that had the warning been given (i.e. do not jump in the area of the yellow lines) it would have prevented the injury.

It is to be noted that there was a warning given to jump in the centre of the mat.[3] The Plaintiff did not comply with that warning.

The first difficulty the Plaintiff has is that he gave no evidence of having consulted the warnings which were affixed to the trampoline or contained in the user manual. He did not interest himself in those matters.

It is not possible to conclude that the Plaintiff would have complied with any warning given when he did not avail himself of the warning which was given.

The second problem the Plaintiff faces is that the jump was unintended. Even if he had received a warning, he did not intend to land where he landed. A warning would not have prevented that.

In those circumstances, the Plaintiff’s case fails on causation.”

  1. [32]
    In response, the plaintiff’s written closing submissions reframed his case on the safety defect by submitting that “the relevant defect is the potential of injury to a user landing on a cleat due to its shape and/or the additional force associated with it being part of the [trampoline’s impact attenuation system]” and later submitting (footnotes omitted):

“The Defendant describes the Plaintiff’s case as a warning case, and that without evidence of the way in which the Plaintiff would have acted differently if warnings had been given, “it is not possible to conclude that the Plaintiff would have complied with any warning given when he did not avail himself of the warning which was given”. 

The Defendant’s submission miscategorises the Plaintiff’s case. The Plaintiff’s case is that the failure to give warnings is evidence that the cleat was a safety defect. There is other evidence, such as the manner in which the trampoline was promoted, which also goes to show the existence of a safety defect. It is necessary to show the existence of a safety defect in order to claim compensation under s 138(2).”

  1. [33]
    The plaintiff’s written submissions in response identified the plaintiff’s case had changed, submitting (correctly) (footnotes omitted):

“That is not the basis on which the Plaintiff s case was advanced at trial. The Plaintiffs case at trial was clearly put forward on the basis that the absence of any warning was what constituted the safety defect; …. The Statement of Claim in paragraph 7(a) deals with the safety defect in terms of warnings and instructions. The Plaintiff was not pursuing a case that the trampoline or the safety netting could be differently constructed ….

The Plaintiff now seeks to advance a different case, because at worst for the Defendant, the warning case must fail on causation.

The case which was advanced was that the trampoline had a safety defect because there was no warning given.”

  1. [34]
    The primary judge dealt with the plaintiff’s case consistently with the manner it had been opened and advanced by the plaintiff, at least prior to the closing written submissions.  Thus, the primary judge found the safety defect existed in the manner already explained at [25] and [28] above.  Having found the nature of the safety defect, the primary judge then, as identified in her Honour’s reasons at [49] to [51], quoted at [27] above, sought to respond to the defendant’s submission that the warning case was required to fail on the evidence and concluded that she was persuaded on the balance of probabilities that the plaintiff had suffered injuries because of the safety defect.
  2. [35]
    Having regard to the issues raised by the notice of appeal and the notice of contention, the question whether this Court should be persuaded that the primary judge erred in reaching that conclusion turns, first, on identifying the requisite legal approach to causation, and, second, on whether, applying that approach, this Court should be persuaded the primary judge’s conclusion was attended by error.

The requisite approach to causation

  1. [36]
    As to the first issue, it suffices to consider the two cases of Merck and Ethicon to which reference has already been made.  In Merck, Keane CJ, Bennett and Gordon JJ expressed a principled analysis of the legal approach to causation at common law and applied that analysis to the statutory predecessor to s 138 of the ACL.  In Ethicon, Jagot, Murphy and Lee JJ applied Merck to a facts scenario in which, as here, a product had been found to be defective because of a combination of a feature inherent in the product which created a risk of injury and the manufacturer’s failure to warn sufficiently in relation to that risk.  Although each case considered a number of different causes of action, it is necessary only to focus on how the Court’s reasoning sheds light on the proper approach to causation in relation to s 138 of the ACL.
  2. [37]
    The claimant in Merck was Mr Peterson, who had suffered a serious heart attack and alleged that his consumption of the drug Vioxx (which he had been prescribed for relief from arthritic pain) contributed to the heart attack.  His pleaded case was that the respondent[4] (a corporation involved in the development, manufacture, distribution and sale of Vioxx) knew, or ought to have known, that the consumption of Vioxx increased the risk of heart attack and should have warned him of that increased risk.
  3. [38]
    Mr Peterson alleged that the respondent was negligent in this respect and was also guilty of misleading or deceptive conduct in contravention of s 52 of the then Trade Practices Act 1974 (Cth) (the TPA); that Vioxx was not fit for purpose and not of merchantable quality within the meaning of those terms in ss 74B and 74D respectively of the TPA; and that the respondent was liable to compensate him pursuant to s 75AD of the TPA for injury suffered by him because Vioxx was a defective product.  Section 75AD of the TPA was the statutory predecessor of s 138 of the ACL.  Like s 138(1)(c), s 75AD conditioned the liability to compensate on the claimant individual suffering injuries “because of” the defect in the goods.
  4. [39]
    The issue of causation was important in relation to all of Mr Peterson’s causes of action.  The Court specifically recognised that causation was to be regarded as a “crucial question of fact of importance to all Mr Peterson’s causes of action.”[5]
  5. [40]
    The Court accepted that the proper understanding of the primary judge’s reasons was:

“… his Honour was satisfied on the balance of probabilities that Vioxx made a contribution to the formation of a thrombus sufficiently large to occlude the blood vessel to the heart, but was not satisfied that a thrombus of the necessary size would not have developed without the prothrombotic agency of Vioxx.”[6]

  1. [41]
    The Court rejected Mr Peterson’s argument that those findings were sufficient to sustain the judgment and accepted the respondent’s submission that:

“… the primary judge’s express refusal to find that Mr Peterson’s heart attack would not have happened but for the taking of Vioxx meant that Mr Peterson’s case should have been dismissed for want of an essential factual finding, namely, that it was more probable than not that the consumption of Vioxx caused or materially contributed to the occurrence of his heart attack.”[7]

  1. [42]
    The Court discussed[8] the legal approach to causation and concluded that the burden of proof for a plaintiff was not merely to show an increased risk of injury by reason of the defendant’s conduct.  To the contrary, proof that “the risk eventuated” in the specific injury suffered by the plaintiff was part of the plaintiff’s burden.  The “but for” test was applicable to causation as a negative criterion.  Unless the defendant’s  actionable conduct was shown to be a necessary condition of the plaintiff’s injury the plaintiff’s claim would not succeed.
  1. [43]
    The Court specifically agreed with the way in which Allsop P had, in Evans v Queanbeyan City Council[9], explained how, in the jurisprudence of Canada and the United Kingdom, the concept of “material contribution” to injury may mean something different in some contexts from its meaning in Australian law, and adopted his Honour’s conclusion that:

“…Subject to the views of the High Court in respect of any development of the common law or to the operation of any legislation, it can be concluded that at common law, as a general proposition, the increasing of risk of harm by a tortious act is, alone, insufficient for a conclusion of causation by material contribution to that harm or for a conclusion of responsibility in law for that harm.”[10]

  1. [44]
    The Court expressed its own conclusion in these terms:

“The rule that a plaintiff must establish as a necessary condition of recovery that he or she would not have suffered loss but for the defendant’s actionable misconduct is deeply rooted in the policy of the common law that one person should not be liable for the loss suffered by another unless the plaintiff can establish that the defendant’s actionable conduct caused the plaintiff’s loss. It is not open to this Court to decide that we should no longer adhere to this rule and that a different and “better” rule should henceforth be applied. This Court must proceed on the footing that for Mr Peterson to show that the consumption of Vioxx materially contributed to his MI, in the sense relevant in Australian law, he is obliged to show that his consumption of Vioxx was a necessary condition for the occurrence of the heart attack on 8 December 2003. To say that the consumption of Vioxx was, for example, “in the mix” of possible causes is not enough in this regard. As Beazley JA said in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 339, the onus of proof of causation “is not discharged by establishing that a particular matter cannot be excluded as a cause of the injury”.

We conclude that his Honour’s ultimate findings of fact are not sufficient, as a matter of Australian law, to sustain the determination of the issue of causation in Mr Peterson’s favour. We also consider that the conclusion of ultimate fact necessary to support such a finding is not open on his Honour’s findings of primary fact and we now turn to explain why we take that view.”[11]

  1. [45]
    The Court found[12] as decisive against Mr Peterson’s claim in negligence and under the TPA– 
    1. the primary judge’s rejection of Mr Peterson’s evidence that, if he had been told that taking Vioxx would approximately double his risk of heart attack, he would not have taken the drug; and
    2. the primary judge’s conclusion that Mr Peterson would have taken Dr Dickman’s advice and that Dr Dickman would have continued to prescribe Vioxx.
  2. [46]
    The Court specifically applied its earlier “but for” and “necessary condition” analysis of causation to the statutory cause of action under s 75AD of the TPA, concluding that Mr Peterson’s claim under s 75AD must fail on causation, because, if there was a defect, Mr Peterson did not establish that he suffered injuries “because of the defect” within s 75AD.[13]
  3. [47]
    Ethicon concerned a representative proceeding in which the claimants had succeeded at trial in holding the appellants liable in connection with the supply of nine medical devices in Australia, five of which were intended to use in treating female stress urinary incontinence and four of which were intended for use in the treatment of female pelvic organ prolapse.
  4. [48]
    The primary judge had found that the appellants were liable for contraventions of the TPA and of the ACL and for negligence.  Relevantly for present purposes, the primary judge had held the appellants liable for contraventions of s 75AD of the TPA in that the devices were supplied with a “defect”, and of s 138 of the ACL, because they were supplied with “a safety defect.”  On appeal, the Court upheld that conclusion on the facts for three representative claimants, but in the course of so doing, specifically rejected the primary judge’s statement of principle in relation to causation in a way which is significant for the present case.
  5. [49]
    The Court noted[14] that Merck was authority for the proposition that goods may have a defect because they present a risk of injury and the manufacturer fails to provide any or any sufficient information, advice or warning in relation to that risk and stated that it followed that although a product presented a risk of injury, it may nevertheless not have a defect under s 75AC if the manufacturer provides appropriate information, advice or warnings about that risk in its marketing or product information.  That is, the fact that goods presented a risk of injury did not, of itself, establish the existence of a defect.
  6. [50]
    The Court identified that the nature of the safety defect of which the claimants complained was the devices were found to have a defect because they presented a risk of injury through the pleaded complications and the appellants failed to provide any or any sufficient warning in relation to that risk.[15] The analogy with the present case is obvious.
  7. [51]
    Critically, when the Court came to consider the issue of causation for the statutory consumer claims under s 75AC and s 138 the Court observed (emphasis added):

“It will be recalled that a fundamental matter underpinning the findings of defect was that the devices could cause the pleaded complications in any woman implanted with one of the devices, against which the appellants provided no or no adequate warning. As noted above, [the representative claimants] submitted that the primary judge was correct to reason that in the case of such a defect, causation is determined by an inquiry as to whether that harm came to pass: …. However, [the representative claimants’] proposition that causation is simply determined by whether the harm came to pass and that proof of what would have occurred had a warning been given is unnecessary … must be rejected. The relevance of the knowledge of the treating surgeon for each of [the representative claimants] was a question of fact which had to be answered in the circumstances of each individual case and not at the level of abstraction suggested by [the representative claimants] and as is evident in some part of her Honour’s reasons: ….”[16]

  1. [52]
    The Court went on to explain that its disagreement with the primary judge’s statement of principle concerning causation went nowhere on the facts of the case because a consideration of the primary judge’s findings concerning the evidence of individual representative claimants revealed that they would not have had the surgery by which the devices were implanted had they known of the risks concerned.[17]
  2. [53]
    The plaintiff argued that this Court should not follow Ethicon and should conclude that proof of what would have occurred in his case had a warning been given was unnecessary.  The plaintiff drew this Court’s attention to some references in English cases[18] to which the primary judge in Ethicon had made reference. But it is unnecessary to have regard to those cases.  In the first place that is so because, as Merck made clear, the law in Australia in relation to causation has developed in somewhat of a different way, but, second, Ethicon is a decision of an intermediate appellate court on Commonwealth legislation.  The High Court has instructed that “[i]ntermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.”[19] It is simply not arguable that this Court should form that view.  The plaintiff’s invitation not to follow Ethicon must be rejected.
  3. [54]
    The approach in Ethicon is correct, in any event, as it is entirely consistent with the principled approach to causation identified in the reasoning in Merck.  In the present case the fact that the product possessed particular design features which created a relevant risk of injury did not mean that the product had a safety defect.  The primary judge found the product to have a safety defect only because there was also a lack of warning about the particular design features.  Section 138(1)(c) does not say “because of the use of the goods” it says “because of the safety defect”.  In order for injuries to occur “because of” a safety defect of the nature of that found in the present case, it would be necessary for the safety defect to be a necessary condition of the suffering of the injury.  That which rendered the goods defective would have to be a necessary  condition of the suffering of the injury.  In this case that would mean both aspects of that which rendered the goods defective would have to be necessary conditions of the suffering of the injury.  As the court in Ethicon recognised, given the particular nature of the safety defect concerned the plaintiff was required to prove that injury would have been avoided if the requisite warning had been given.
  1. [55]
    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?

  1. [56]
    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.
  2. [57]
    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.
  3. [58]
    Her Honour’s finding was in error for a number of reasons.
  4. [59]
    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.
  5. [60]
    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. 
  6. [61]
    Third, and for reasons which follow and which, in large part, represent acceptance of the appellant’s factual argument to this Court, the primary judge erred by failing to analyse appropriately the primary facts relevant to the issue as correctly framed.  Based upon the undisputed primary facts the correct inference or conclusion to be drawn is that the plaintiff failed to prove that his injury would have been avoided had an appropriate warning been given and, accordingly, the plaintiff failed to satisfy his onus of proving causation.
  7. [62]
    The salient features of the relevant evidence (and lack of evidence) were as follows:
    1. The plaintiff was a fit and active adult male, aged 41, who had a long history of undertaking recreational and household activities which involved an element of risk, including skateboarding, rollerblading, skiing, trampolining, dogsledding, boxing, gym workouts, being towed behind a boat in an innertube, scooter-riding, operating a ride-on mower, chainsaw and whipper-snipper, and gutter-cleaning.  Yet in none of these activities, did he suggest that he had ever read or acted upon written instructions or warnings for the recreational or household equipment which he used – including his own trampoline.  Nor did any other witness called by him, including his wife, suggest he had such a disposition.
    2. The primary judge found that the plaintiff was an “experienced and enthusiastic user (and owner) of trampolines”.  He gave evidence that he had “jumped on trampolines [his] whole life”.  He had his own “large 14-foot trampoline back at [his home] that [he] regularly jumped on”. He had not previously used a Springfree trampoline and did not suggest that he approached it with any particular understanding of its characteristics, or with a disposition to enquire into any differences between its characteristics and those of trampolines with which he was familiar, before using it. There was no suggestion that before deciding to use the Springfree trampoline he paused to read any of the warnings displayed on it.
    3. To the contrary, the decision to use the trampoline was an impulsive one made on Christmas Day.  Once he had arrived to celebrate Christmas at his sister’s house, he greeted some family members and described his subsequent conduct in this way:

“And I got quite excited to see a Springfree Trampoline. I’d never jumped on one before. We have our – we had our own, large, 14-foot trampoline back at [his home] that I regularly jumped on. And so I immediately kicked off my thongs and jumped onto the trampoline and started jumping.”

  1. He entered “through the opening, where there’s zippers” which he then closed.  He then jumped up and down for about 40 seconds or so, starting at the centre of the mat, but made an unintentional and slightly wayward jump which resulted in his landing near the edge of the mat and suffering his injury.
  2. The plaintiff was not asked to address the counterfactual directly.  And even if he had been, it would have been difficult to give such evidence much weight.  In relation to the plaintiff’s evidence generally, the primary judge found that it should “approached with some caution ... [as] he was prone to exaggeration, particularly where he considered that may be advantageous to his claim.”  The closest the questioning came to touching upon the counterfactual was during the plaintiff’s evidence in chief when he was being questioned about the sort of landing he was intending to make when he made his slightly wayward jump.  He acknowledged that at the time of his contemplated landing he was not aware of anything on or under the mat and he was not aware of any warning that an object may exist under the surface of the mat. But the question of how that state of mind was formed, or whether anything might have been different in a counterfactual scenario was not pursued.[22]
  1. [63]
    Based on that evidence, there is no reason[23] to infer that the plaintiff would have read, let alone modified his behaviour consequent upon reading, a warning of the nature of that which the primary judge apparently contemplated (namely a clear and visible warning at the entrance to the trampoline).  To the contrary, it is more likely that any such warning would have been ignored in the same way as the existing clearly visible warnings (see at least the A4 warning identified by the red oval in the photograph at [14] above) apparently were.  And if her Honour was contemplating warnings in user guides or other material not physically present on the trampoline, there is even greater likelihood that such warnings would have been ignored.  The result is that the plaintiff has failed to prove on the balance of probabilities that he suffered injuries because of the safety defect.

The plaintiff’s claim in negligence

  1. [64]
    The sole finding made by the primary judge in relation to the claim in negligence was:

“Given the findings in respect of the claim under the ACL, it is not necessary to consider the claim in negligence in any detail. Suffice to say for present purposes that I would conclude liability in negligence is established essentially adopting a similar reasoning process as above.”

  1. [65]
    This Court has recognized that the proper starting point for examination of liability issues in a case such as the present is a consideration of ss 9 to 12 of the Civil Liability Act 2003 (Qld) and to that end has cited the High Court’s observations in Adeels Palace Pty Ltd v Moubarak “[i]f attention is not directed first to [such provisions], there is a serious risk that the inquiries about duty, breach and causation will miscarry.[24]” 
  2. [66]
    The primary judge erred by failing to analyse the primary facts relevant to the inquiries about duty, breach and causation through the applicable statutory lens.  The defendant’s challenge on appeal, however, limited itself to one aspect only of the requisite analysis.  The defendant contended that the primary judge erred by failing to conclude that the claim in negligence should have been dismissed on the basis that the plaintiff had not suffered injury caused by a breach of duty under s 11 of the Civil Liability Act 2003.
  3. [67]
    The plaintiff could not establish factual causation pursuant to s 11 of the Civil Liability Act unless he could establish that a breach of duty by the defendant was a necessary condition of the occurrence of the harm which he claimed to have suffered.  In a failure to warn case such as that advanced by the plaintiff, it was necessary for the plaintiff to show that the measures that it is said the defendant failed to adopt would have protected the plaintiff from injury.[25] Accordingly, proof of the counterfactual was just as significant for proof of factual causation under s 11 of the Civil Liability Act as it was for proof that injuries had been suffered “because of” the safety defect for the purposes of s 138(1)(c) of the ACL.
  4. [68]
    Section 11(3) of the Civil Liability Act provides that if it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach – 
    1. the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
    2. any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
  5. [69]
    Accordingly, the observation at [62](e) above would not be relevant to assessing factual causation pursuant to s 11.  Subject to that caveat, for the reasons expressed at [59] to [63] above, the plaintiff failed to prove factual causation, and his claim in negligence must fail.  The defendant’s argument on appeal succeeds.

Conclusion

  1. [70]
    The primary judge erred in giving judgment for the plaintiff.  Judgment should have been entered for the defendant.  Costs would then have followed the event.  On that basis it becomes unnecessary to consider the plaintiff’s cross appeal.
  2. [71]
    The following orders should be made:
    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.
  3. [72]
    BODDICE JA:  I agree with Bond JA.
  4. [73]
    DAVIS J:  I agree with Bond JA.

Footnotes

[1] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [201] per Keane CJ, Bennett and Gordon JJ.

[2] Ethicon Sarl v Gill (2021) 288 FCR 338 at [597]-[598] per Jagot, Murphy and Lee JJ.

[3]  The A4 page warning sheet on the trampoline had warned users to “Be familiar with the information in the User’s Guide” and the User’s Guide had a direction “bounce in the center of the mat”. There was a similar statement found in a placard which had been delivered with the trampoline.

[4]  There were in fact two respondents, but for present purposes it suffices not to distinguish between them.

[5] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [89] per Keane CJ, Bennett and Gordon JJ.

[6] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [92] per Keane CJ, Bennett and Gordon JJ.

[7] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [93]-[94] per Keane CJ, Bennett and Gordon JJ.

[8] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [96]-[99] per Keane CJ, Bennett and Gordon JJ.

[9] Evans v Queanbeyan City Council [2011] NSWCA 230 at [23]- [26].

[10] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [100]-[102] per Keane CJ, Bennett and Gordon JJ.

[11] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [104]-[105] per Keane CJ, Bennett and Gordon JJ.

[12] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [146] per Keane CJ, Bennett and Gordon JJ.

[13] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 at [190], cross-referring to [165] and therefore to [104]-[105] per Keane CJ, Bennett and Gordon JJ.

[14] Ethicon Sarl v Gill (2021) 288 FCR 338 at [597]-[598] per Jagot, Murphy and Lee JJ.

[15] Ethicon Sarl v Gill (2021) 288 FCR 338 at [645], [649]-[650] and [657] per Jagot, Murphy and Lee JJ.

[16] Ethicon Sarl v Gill (2021) 288 FCR 338 at [888] per Jagot, Murphy and Lee JJ.

[17] Ethicon Sarl v Gill (2021) 288 FCR 338 at [889]-[892] per Jagot, Murphy and Lee JJ.

[18] Abouzaid v Mothercare (UK) Ltd [2000] All ER 2436 at [27] and Ide v ATB Sales [2008] EWCA Civ 24 at [7].

[19] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]; Hill v Zuda Pty Ltd (2022) 275 CLR 24 at [25]-[26].

[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].

[22]  The defendant submitted that the unexplained failure to adduce such evidence from the plaintiff gave rise to a Jones v Dunkel inference that any evidence from the plaintiff would not have assisted his case. The plaintiff opposed that submission. Given the view the primary judge took of the weight to be given to evidence actually adduced from the plaintiff, a Jones v Dunkel inference would not add significantly to the defendant’s case on the facts in relation to causation. It is unnecessary to evaluate the evidence by reference to a Jones v Dunkel inference.

[23]  Before this Court, the plaintiff argued, faintly, that a reference by the primary judge in that part of her reasons explaining her finding of fact that the plaintiff must have landed on the mat flat-footed or close to flat footed that the “plaintiff was likely being cautious as he was adjusting to the different feel of the Springfree trampoline” supported the counterfactual. It did not. It was dealing with a different subject matter.

[24]  See Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 at [27]–[28] and Griffin v Brisbane City Council [2024] QCA 157 at [20], citing Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 432 [11].

[25]  Cf Woolworths Limited v Perrins [2016] 2 Qd R 276 at [173].

Close

Editorial Notes

  • Published Case Name:

    Springfree Trampoline Australia Pty Ltd v Forostenko

  • Shortened Case Name:

    Springfree Trampoline Australia Pty Ltd v Forostenko

  • MNC:

    [2024] QCA 255

  • Court:

    QCA

  • Judge(s):

    Bond JA, Boddice JA, Davis J

  • Date:

    13 Dec 2024

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QSC 128 May 2024Trial of claim pursuant to s 138 Australian Consumer Law or alternatively in negligence; judgment for plaintiff for $744,175: Hindman J.
Primary Judgment[2024] QSC 12619 Jun 2024Costs judgment: Hindman J.
Appeal Determined (QCA)[2024] QCA 25513 Dec 2024Appeal allowed; cross-appeal dismissed; judgments below set aside; judgment for defendant: Bond JA (Boddice JA and Davis J agreeing).
Application for Special Leave (HCA)File Number: B4/202510 Jan 2025Application for special leave to appeal filed.
Special Leave Refused (HCA)[2025] HCADisp 7203 Apr 2025Special leave refused: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Abouzaid v Mothercare (UK) Ltd [2000] All ER 2436
1 citation
Jump To
Cite 1 - [2000] All ER 2436
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
1 citation
Jump To
Cite 1 - [2009] HCA 48
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
2 citations
Jump To
Cite 1 - (2009) 239 CLR 420
Cite 2 - (2009) 239 CLR 420
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
1 citation
Jump To
Cite 1 - (1997) 42 NSWLR 307
Ethicon Sarl v Gill (2021) 288 FCR 338
6 citations
Jump To
Cite 1 - (2021) 288 FCR 338
Cite 2 - (2021) 288 FCR 338
Cite 3 - (2021) 288 FCR 338
Cite 4 - (2021) 288 FCR 338
Cite 5 - (2021) 288 FCR 338
Cite 6 - (2021) 288 FCR 338
Evans v Queanbeyan City Council [2011] NSWCA 230
2 citations
Jump To
Cite 1 - [2011] NSWCA 230
Cite 2 - [2011] NSWCA 230
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22
1 citation
Jump To
Cite 1 - [2007] HCA 22
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
2 citations
Jump To
Cite 1 - (2007) 230 CLR 89
Cite 2 - (2007) 230 CLR 89
Forostenko v Springfree Trampoline Australia Pty Ltd [2024] QSC 1
1 citation
Jump To
Cite 1 - [2024] QSC 1
Forostenko v Springfree Trampoline Australia Pty Ltd [No 2] [2024] QSC 126
1 citation
Jump To
Cite 1 - [2024] QSC 126
Griffin v Brisbane City Council [2024] QCA 157
1 citation
Jump To
Cite 1 - [2024] QCA 157
Hill v Zuda Pty Ltd (2022) 275 CLR 24
1 citation
Jump To
Cite 1 - (2022) 275 CLR 24
Ide v ATB Sales [2008] EWCA Civ 24
1 citation
Jump To
Cite 1 - [2008] EWCA Civ 24
Inghams Enterprises Pty Ltd v Tat [2018] QCA 182
2 citations
Jump To
Cite 1 - [2018] QCA 182
Cite 2 - [2018] QCA 182
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145
1 citation
Jump To
Cite 1 - (2011) 196 FCR 145
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128
10 citations
Jump To
Cite 1 - [2011] FCAFC 128
Cite 2 - [2011] FCAFC 128
Cite 3 - [2011] FCAFC 128
Cite 4 - [2011] FCAFC 128
Cite 5 - [2011] FCAFC 128
Cite 6 - [2011] FCAFC 128
Cite 7 - [2011] FCAFC 128
Cite 8 - [2011] FCAFC 128
Cite 9 - [2011] FCAFC 128
Cite 10 - [2011] FCAFC 128
Moore (a pseudonym) v The King (2024) 98 ALJR 1119
1 citation
Jump To
Cite 1 - (2024) 98 ALJR 1119
Moore (a pseudonym) v The King [2024] HCA 30
2 citations
Jump To
Cite 1 - [2024] HCA 30
Cite 2 - [2024] HCA 30
Wang v Hur [2024] QCA 126
2 citations
Jump To
Cite 1 - [2024] QCA 126
Cite 2 - [2024] QCA 126
Woolworths Limited v Perrins[2016] 2 Qd R 276; [2015] QCA 207
1 citation
Jump To
Cite 1 - [2016] 2 Qd R 276

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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