Forostenko v Springfree Trampoline Australia Pty Ltd
[2024] QSC 1
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Forostenko v Springfree Trampoline Australia Pty Ltd[2024] QSC 1
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Forostenko v Springfree Trampoline Australia Pty Ltd[2024] QSC 1
Forostenko v Springfree Trampoline Australia Pty Ltd[2024] QSC 1
SUPREME COURT OF QUEENSLAND
CITATION: | Forostenko v Springfree Trampoline Australia Pty Ltd [2024] QSC 1 |
PARTIES: | Phillip Anthony Forostenko v Springfree Trampoline Australia Pty Ltd |
FILE NO: | BS9922/19 |
DIVISION: | Trial Division |
PROCEEDING: | Claim |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 28 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 4-8, 21 December 2023 |
JUDGE: | Hindman J |
ORDER: | Judgment for the plaintiff against the defendant in the amount of $744,175. The parties are to make any written submissions on costs within 14 days. |
CATCHWORDS: | TORTS – NEGLIGENCE – AUSTRALIAN CONSUMER LAW – SAFETY DEFECT – where plaintiff suffered a foot injury while jumping on a Springfree trampoline – where Springfree trampoline manufactured and supplied by the defendant – whether Springfree trampoline had a safety defect by failing to include warnings relating to cleats – whether the plaintiff suffered injuries because of the safety defect – whether a cause of action in negligence established DAMAGES – MEASURE OF DAMAGES – GENERAL AND SPECIAL DAMAGES – where the plaintiff suffers ongoing pain, restricted movement and other physiological and psychological issues as a result of his injury – what measure of damages for general damages are applicable – whether special damages apply DAMAGES – MEASURE OF DAMAGES – PAIN AND SUFFERING – QUANTUM – LOSS OF EARNING CAPACITY – whether plaintiff continues to suffer problems as a result of the incident – whether there is a loss of earning capacity – whether plaintiff has proven economic loss to the requisite standard Civil Liability Act 2003 (Qld), ss. 51, 55, 56, 59, 60 Civil Liability Regulation 2014 (Qld), schs. 3, ss. 2, 5, 8, 9, 10, sch. 4, sch. 5, ss. 3-5, 11, sch. 7 Competition and Consumer Law Act 2010 (Cth), sch. 2 (The Australian Consumer Law), ss. 9, 138 Superannuation Guarantee (Administration) Act 1992 (Cth) Allwood v Wilson [2011] QSC 180 Bell v Mastermyne Pty Ltd [2008] QSC 331 Hoveydai v Mak [2021] QSC 16 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 McDermott v Robinson Helicopter Co [2014] QSC 34 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 Munzer v Johnston [2008] QSC 162 Robinson Helicopter Co v McDermott (2016) 90 ALJR 679 |
COUNSEL: | D Campbell KC and P Hackett for the plaintiff R Morton for the defendant |
SOLICITORS: | McInnes Wilson Lawyers for the plaintiff Hall and Wilcox Lawyers for the defendant |
TABLE OF CONTENTS
TABLE OF CONTENTS3
Introduction4
The circumstances in which the plaintiff’s foot injury was sustained7
Finding: no bottoming-out9
Finding: foot inversion10
Finding: safety defect13
Finding: causation16
The claim in negligence17
The injury suffered17
The consequences of the injury17
A summary of the medical evidence20
Dr Richardson - orthopaedic surgeon20
Dr Halliday - orthopaedic surgeon20
Dr Estensen - consultant psychiatrist21
Dr Chalk - consultant psychiatrist23
Findings about the lay evidence24
Relevant findings in respect of the injury suffered and continuing to be suffered25
Quantum assessment27
General damages27
Past economic loss28
Future economic loss31
Loss of past and future superannuation benefits34
Past gratuitous care34
Future care36
Past special damages36
Future special damages36
Summary of quantum37
Orders37
Introduction
- [1]Phillip Forostenko (the plaintiff) claims damages in relation to a foot injury suffered by him on 25 December 2017 while jumping on a Springfree trampoline at his sister’s residence. The defendant is the manufacturer of the Springfree trampoline.
- [2]At the time, the plaintiff was a fit and active, 83kg, 41-year-old, father of two children[1] with a further child on the way.[2] He was an experienced and enthusiastic user (and owner) of trampolines, although had not previously been on a Springfree trampoline, which is a quite different type of trampoline to a regular springed trampoline.
- [3]On Christmas day, around lunchtime, the plaintiff travelled from his home to his sister’s residence after doing some yard work in the morning. Shortly after arrival, having seen the new oval O92 model Springfree trampoline set up in his sister’s backyard, he slipped off his thongs and climbed into the trampoline[3] to try it out. After stepping in, he zipped up the net entrance to the trampoline, moved to the centre of 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 a foot injury.
- [4]The plaintiff was bouncing in about the centre of the trampoline mat at a height of about 80-90 centimetres.[4] 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[5]) when he impacted the mat. The plaintiff said that he landed flat-footed (in a neutral foot position[6]). His right foot came down near the edge of the mat which is overlaid with webbing (marked with yellow lines).
- [5]Around the perimeter of the mat of a Springfree trampoline is a strip of webbing about 9.5 centimetres wide that has a number of functions. It marks the edge of the mat, it reinforces the edge of the mat, it protects underlying stitching, and it has slotted into it at approximate 17.5 centimetres intervals[7] the hard plastic cleats into which one end of the rods that create the bounce mechanism of the Springfree trampoline are inserted.[8] The dimensions of each cleat from an aerial perspective (broadly shaped like an isosceles trapezoid) are about 120mm and 85mm for the long sides and 55mm for the short sides. The top surface of a cleat is not perfectly flat. It includes a raised (by about 10mm) quarter sphere that houses the ball end of the rod (acting as a ball joint). Once inserted in the mat edge, cleats are covered by mat and the webbing.[9] Although subtle, when looking with a keen eye at the edge of the mat of a Springfree trampoline, there are slight protrusions in the webbing where the cleats lie underneath. The videos that are exhibits 6 and 7 demonstrate most of the abovementioned features.[10]
- [6]The plaintiff says his right foot came down near the edge of the mat, on the webbing, where a cleat was installed underneath.
- [7]The plaintiff reports that on landing he felt hardness particularly focussed under the right (outer) side of his right foot, about midway down the length of his foot. There was immediate pain. It quickly became clear that the plaintiff was injured and he alighted the trampoline. He had suffered what is commonly referred to as a “dancer’s fracture”, namely a fifth metatarsal fracture. Importantly, that type of fracture is usually only suffered where sufficient force is applied to an externally rotated (or rolled or inverted) forefoot.
- [8]There have been consequences and losses associated with the plaintiff’s foot injury.
- [9]This proceeding concerns whether the defendant is liable to compensate the plaintiff in relation to his injury.
- [10]There are two basis upon which the plaintiff claims the defendant is liable to compensate him in respect of his injury.
- [11]First, a cause of action based on s. 9 of schedule 2 (The Australian Consumer Law) (ACL) of the Competition and Consumer Act 2010 (Cth) whereby the plaintiff identifies a ‘safety defect’[11] in the trampoline by highlighting two key omissions: (1) the absence of a warning of the existence of the cleats or advisement against jumping on them,[12] and (2) the failure to alert that the surrounding net’s coverage along the straight sides of the trampoline mat did not encompass the area where the cleats are located. Pursuant to s. 138 of the ACL the elements of that cause of action are:[13]
- the defendant is a manufacturer who supplied goods in trade or commerce (this element is not contentious);
- the goods have a safety defect; and
- an individual suffered injuries because of the safety defect.[14]
If the three elements are satisfied then the injured person can recover the amount of loss or damage suffered (s. 138(2) ACL).
- [12]Second, a cause of action in negligence. The elements of that cause of action are well known.
- [13]The defendant denies liability on either basis.
- [14]The plaintiff claims damages of approximately $3.92 million. The defendant contends that any assessment of damages (if liability is established) is no greater than approximately $160,000.[15]
- [15]I find that:
- the trampoline did suffer from a safety defect;
- the safety defect did cause the plaintiff to suffer an injury in respect of which loss and damage was sustained;
- the plaintiff is entitled to compensation pursuant to s. 138 of the ACL;
- the assessed amount of compensation is $744,175.
The circumstances in which the plaintiff’s foot injury was sustained
- [16]Paragraphs 1 to 7 above set out in general terms how the plaintiff’s foot injury was sustained.
- [17]There is an issue about whether the trampoline bottomed-out on the relevant jump. Bottoming-out is where a user jumping on the webbing at the edge of the mat, whether on a cleat or not (as described in paragraph 5 above), lands with sufficient force that the rods (that create the bounce) depress to the maximum extent possible.[16] That will occur by the rods depressing down onto the metal frame that lies 300mm below the mat (into which the other end of the rods are located at an angle).[17] Thereby the user “bottomsout” because the user indirectly comes into contact with the immoveable metal frame and cannot descend any further. The plaintiff does not recall bottoming-out on the relevant jump, but with his weight (83kgs) and the approximate height of the relevant jump (80-90cms), the relevant experts agreed that bottoming-out was possible.[18]
- [18]There is no evidence that bottoming-out of itself could have caused or contributed to the plaintiff’s right foot rolling. Bottoming-out just had the potential to increase the force exerted on the foot (however it landed, whether flat or rolled).
- [19]The following possibilities appear.
- [20]First, there are two possibilities in the circumstance where the trampoline did not bottomout on the relevant jump:
- (Factual Scenario 1) the trampoline did not bottom-out on the relevant jump and the presence of the cleat did not contribute to the plaintiff’s right foot rolling. Instead, either the manner in which the plaintiff landed or his foot movement in the landing resulted in the right foot rolling – no fault would lie with the defendant if this was the mechanism of injury;
- (Factual Scenario 2) the trampoline did not bottom-out on the relevant jump and the presence of the cleat did cause or contribute in a meaningful way to the plaintiff’s right foot rolling (either because of the bump on the top surface of the cleat or because the cleat displaced off the horizontal plane when impacted, or a combination of both).
- [21]Second, there are three possibilities in the circumstance where the trampoline did bottom-out on the relevant jump:
- (Factual Scenario 3) the trampoline did bottom-out on the relevant jump and the presence of the cleat did not contribute to the plaintiff’s right foot rolling. Instead, either the manner in which the plaintiff landed or his foot movement in the landing resulted in the right foot rolling and in either case the additional force applied to the rolled foot on bottoming-out caused the injury that would not otherwise have been suffered if the trampoline did not bottom-out;
- (Factual Scenarios 4 and 5) the trampoline did bottom-out on the jump and the presence of the cleat did cause or contribute in a meaningful way to the plaintiff’s right foot rolling (either because of the bump on the top surface of the cleat or because the cleat displaced off the horizontal plane when impacted, or a combination of both), and that roll either alone (Factual Scenario 4), or together with the additional force applied to the rolled foot on bottoming-out (Factual Scenario 5), caused the injury.
- [22]To express those possibilities in a different way, in order for the plaintiff to have suffered the foot injury it is possible that:
- the cleat and bottoming-out played no role in the suffering of the injury (Factual Scenario 1 above)
- only the cleat played a necessary role in the suffering of the injury (Factual Scenarios 2 and 4);
- only the bottoming-out played a necessary role in the suffering of the injury (Factual Scenario 3);
- both the cleat and the bottoming-out played a necessary role in the suffering of the injury (Factual Scenario 5).
- [23]It is necessary to consider then in greater detail the mechanism of injury.
Finding: no bottoming-out
- [24]It is an essential ingredient of a dancer’s fracture having been suffered by the plaintiff that force must have impacted on an externally rolled forefoot. The fracture could not have been suffered if the forefoot landed and remained flat, no matter the amount of force involved.
- [25]The experts accepted that once the plaintiff’s forefoot was in an inverted position, there was sufficient force exerted on the foot in the relevant jump to cause the dancer’s fracture regardless of the trampoline bottoming-out or not.
- [26]As above, bottoming-out refers to the circumstance where as a consequence of impact on the edge of the mat, the rods compress to their full extent against the metal frame (which will cause the user to indirectly come into contact with the immovable metal frame). It is self-evident that bottoming-out has the potential to cause a spike of force going into the user’s foot at the point of impact with the metal frame. The particular spike of force that occurs on a bottoming-out will vary accordingly to various inputs.
- [27]Whilst there was much evidence, particularly expert evidence, about bottoming-out, I am not satisfied on the balance of probabilities that any bottoming-out occurred on the relevant jump. Bottoming out was not reported by the plaintiff as having occurred.[19] His left foot did not land on the mat edge (instead, more like shoulder distance from the edge of the mat towards the centre of the trampoline) and accordingly not all of his weight would have gone into the mat edge.[20] He did report instantly feeling something hard on landing on the mat.[21] I expect that as an experienced trampoline user, the plaintiff would have been very conscious if the mat (and indirectly his right foot) had impacted with the metal frame (an immoveable surface, like hitting the ground) with any significant force. The additional force from bottoming-out was not an essential element of the injury actually suffered[22] (even though without a bottoming-out a sprained ankle as distinct from a dancer’s fracture had a greater possibility).
- [28]Accordingly, Factual Scenarios 3, 4 and 5 do not need to be considered further.
- [29]Further, because I conclude in a factual sense that bottoming-out did not occur, it is not necessary to examine whether the fact that the trampoline could, in particular conditions, bottom-out was a safety defect. Nor is it necessary to consider the terms of the relevant Australian Standard[23] that concerns impact of a trampoline user on a trampoline frame.
Finding: foot inversion
- [30]There seems to be three possibilities:
- consistent with the evidence of the plaintiff, he did land flat-footed on the cleat. The question then is whether the inversion of his right forefoot was caused or contributed to by landing on the cleat or something that occurred without the intervention of the cleat;
- contrary to the evidence of the plaintiff, he did not land flat-footed on the cleat, but instead landed with his right forefoot in an inverted position (where the injury would have been suffered whether he landed on the cleat or not);
- contrary to the evidence of the plaintiff, he did not land flat-footed on the cleat, but instead landed with his right forefoot in a somewhat inverted position, but landing on the cleat caused or contributed to a further inversion of the forefoot, thereby causing the foot injury (that would not otherwise have been suffered).
- [31]The possibility of the cleat contributing to an inversion of the forefoot of a foot landing on it was accepted by the relevant experts. Dr Halliday said that because of the shape of a cleat “an inversion motion, rolling the ankle towards the net …. is possible”.[24] That does depend somewhat on which part of the foot lands on the cleat and where. Professor Alexander focussed not so much on the shape of the cleat but the fact that “you’ve got a ball joint there contributing to the risk of rolling.”[25] That means that in landing with a foot on the cleat, there is a possibility that the cleat will not simply depress parallel to the frame, but will “tip” off the flat plane. Dr Richardson stated, “Given the nature of the cleat described, it is possible that the cleat has resulted in a more significant torsion of the mid-foot and on this basis contributed to the production of the fracture.”[26]
- [32]On the balance of probabilities, I find that the plaintiff did land on the mat flat-footed, or close to flat-footed (with the intention of pushing off slightly more on his right side to bounce back to the centre of the trampoline). Whilst I view the plaintiff’s evidence that he in fact landed flat-footed, and where his foot exactly impacted with the cleat, with some caution[27] because of the inherent difficulties of a person having a deep appreciation where in space their feet are precisely orientated whilst in the air or at the moment of touching a trampoline mat after a bounce, I consider the following matters point to the conclusion that the plaintiff did land on the mat flat-footed or close to flat-footed:
- the plaintiff was not jumping at a particularly high height;
- the plaintiff was jumping in a regular and fairly controlled manner (veering slightly to the right in the jump is not properly described as being uncontrolled or out of control);
- the plaintiff was likely being cautious as he was adjusting to the different feel of the Springfree trampoline;
- the plaintiff was an experienced trampoline user;
- the plaintiff was a fit and active man;
- the fact that the plaintiff’s right arm brushed down the surrounding net on descent suggests he was approaching the mat on descent from a fairly upright position;
- there was no evidence of any particular weakness in the plaintiff’s right foot or any other reason for the plaintiff to have landed other than flat-footed (or close thereto).
- [33]The question then is whether the inversion of his right forefoot that must have occurred was a consequence of landing on the cleat or something that occurred without the intervention of the cleat.
- [34]For the same reasons as expressed at paragraph 32 above, but also having regard to the evidence of the experts (see paragraph 31 above), I find that the plaintiff landing on the cleat did cause or significantly contribute to the inversion of the plaintiff’s right forefoot.
- [35]There are two features of the cleat in particular that led me to that conclusion. I have mentioned the shape of the top of the cleat (see at paragraph 5 above). I conclude that only contributed to the foot roll movement to a small degree, given the protrusion is not so significant when overlaid by mat and webbing.[28] The ball joint movement I find was the significant contributor to the inversion of the plaintiff’s right foot upon landing on the cleat. That is, the “tipping” of the cleat off the flat plane as the mat depressed. The plaintiff’s right foot, following that movement externally rolled, causing the inversion of the forefoot, resulting in the foot injury.
- [36]I am not satisfied on the balance of probabilities, contrary to the submissions of the plaintiff, that the cleat caused or contributed in any significant way to the plaintiff’s foot injury by reason of either (1) the hardness of the construction material of the cleat, or (2) the shape of the cleat focussing forces transmitted in a localised way. Whilst there was some evidence of injuries of the type sustained by the plaintiff more commonly occurring when an inverted foot strikes something hard, and of the possibility of the landing on the cleat transmitting significant forces through the foot in a localised way,[29] the evidence was too generalised for me to be persuaded that either of those matters, on the balance of probabilities, did cause or contribute in any significant way to the plaintiff’s foot injury. I note and accept as according with common sense Dr Carnavas’s evidence that “there probably won’t be much of a difference”[30] in force if the user lands wholly on the mat as opposed to the cleat.
Finding: safety defect
- [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.[31] 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.[32] Section 9(2) of the ACL refers to relevant circumstances as including:
- any instruction for, or warnings with respect to, doing, or refraining from doing, anything in relation to the goods;
- the manner in which, and the purpose for which, the goods have been marketed;
- what might reasonably be expected to be done with or in relation to the goods.
- [38]I am satisfied that the trampoline suffered from a safety defect.
- [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.[33] No trampoline is inherently safe.
- [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 bottomingout), 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.
- [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”.[34]
- [42]There is no dispute between the parties that a product may be defective because of the absence of a proper warning.[35]
- [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[36] 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.
- [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:
- whilst there were warnings labels attached to the trampoline,[37] warnings in the user guide[38] and warnings in the instruction and assembly manual,[39] none of the warnings were to the effect set out in the previous paragraph;
- 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;[40]
- 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;
- the defendant’s White Paper,[41] 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.[42]
- [45]I do not consider that the following warnings, as submitted for by the plaintiff, ought to have been given:
- 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.
- 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.
- 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 of bottoming-out.[43] 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).
- 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.
- [46]Finally it should be noted that my finding of a safety defect does not depend on how the relevant Springfree trampoline compares in safety terms to other trampolines on the market – that would be the wrong enquiry.
Finding: causation
- [47]A safety defect having been found, the question of causation arises.
- [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.
- [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.[44] The defendant submits the putative warning would have had to be delivered by label attached to the trampoline[45] or the user guide,[46] 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.[47]
- [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.
- [51]I conclude on the balance of probabilities that the plaintiff did suffer injuries because of the safety defect.
The claim in negligence
- [52]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.
The injury suffered
- [53]The injury suffered by the plaintiff was:[48]
- spiral fracture of the diaphysis of the right fifth metatarsal;
- periosteal callus formation;
- malunion of the fracture requiring surgical intervention and insertion of plates;
- scarring;
- major depressive disorder (mild/moderate severity); and
- an adjustment disorder with mixed anxiety and depressed moods (chronic).
The consequences of the injury
- [54]The fracture caused immediate pain to the plaintiff’s right foot. Swelling and bruising occurred.[49] An x-ray taken on 27 December 2017 revealed a spiral fracture of the diaphasis of the plaintiff’s right fifth metatarsal with approximately 2mm of displacement and 3mm of shortening. He commenced conservative treatment (fracture boot and crutches), but the fracture did not heal properly (persistent non-union). Accordingly in February 2018 the plaintiff underwent an open reduction and internal fixation using a plate and screws.[50] Recovery from surgery included non-weight bearing and a moon boot for six weeks. Pain remained. The surgical site became infected requiring hospitalisation and antibiotics. Pain remained; the internal fixations were considered to be contributing to the pain. The plaintiff underwent further surgery in June 2018 to remove the plates and screws which did provide some pain relief. An x-ray performed on 14 August 2018 demonstrated union of the fifth metatarsal fracture. The transosseous drill holes relating to the plate fixation remained visible. There was no significant angulation, rotation or shortening of the fifth metatarsal.
- [55]The plaintiff is a self-employed physiotherapist and exercise physiologist, operating his own practice in the CBD.[51] The plaintiff worked throughout the above period but almost exclusively doing administrative tasks. He did some hands-on physiotherapy work for three days in January 2018 and one day in February 2018. He returned properly to handson work with patients in late July 2018. But even when he returned to hands-on work he continued to take time off due to pain.
- [56]Physiotherapy work is physically demanding as it requires the plaintiff to be mobile, active, and endure long periods of standing and walking. Prior to the incident, the plaintiff worked 2-3 full days per week on the floor (8am to 6pm), seeing up to 16 clients per day. He attributes his success in his business to his athletic background, as it instilled confidence in his clients about his ability to treat them.[52] He worked an additional 1-2 days in the clinic conducting managerial duties. The plaintiff derived a salary of approximately $3,531.23 net per fortnight ($1,766.15 net per week). For both the 2017 and 2018 financial years, the plaintiff submits he also received an annual profit share from the business.
- [57]The plaintiff says that because of the injury he has been unable to return to work at his pre-incident level (personally) without significant discomfort and pain. The plaintiff says he experiences pain and discomfort when weight bearing, and has a reduced tolerance for standing and walking. He has had to modify the way in which he performs his physiotherapy work.[53] He finds that when working, he must take breaks to give his right foot sufficient time to rest.[54] He has reduced the days he works and the number of patients he sees. He undertakes less business development work.
- [58]The plaintiff says he continues to suffer considerable ongoing pain. He reports a constant ache, sometimes a burning pain, including pain present at rest, but aggravated with use. He says he has disturbed sleep, and consequentially is tired and foggy. He says he has required help from his partner for domestic duties: he is unable to undertake all yard and garden maintenance. If he does, he says he suffers for it afterwards. He finds barefoot walking uncomfortable. Pain is associated with driving for long distances.
- [59]The pain caused by his right foot also impacts the plaintiff’s ability to engage in sporting activities that he did before the accident, such as hockey, running and dog sledding.[55] He has pain when he attempts to run. He has been unable to return to pivoting sports such as tennis, squash, CrossFit or boxing. Insofar as he does do physical exercise, he says he suffers for it afterwards.
- [60]Even at rest he complains of the right foot having a low level, constant “headache” type pain. Even during his evidence, he described a buzzing sensation occurring in his right foot.[56]
- [61]In terms of his mental health, the plaintiff reports having been distracted and making mistakes, not being “present” and being more emotional at times since the incident. He feels criticised and unsupported at home. He feels that he is now a “different person” at work, leading (along with Covid-19) to a downturn in the business. He has a mild degree of generalised anxiety, and is sometimes miserable or depressed. He does not sleep well and therefore is tired. His appetite fluctuates. His motivation is diminished: he is no longer a driven man. His short term memory is not as good as it once was; he is more irritable; he is less socially outgoing.
- [62]Despite the ongoing pain and difficulties described above, the plaintiff has not consulted further with the medical profession. This appears to be because he is concerned not to simply take medication as a solution to pain difficulties.[57] He prefers to work on the issues himself by other means.[58] Despite his diagnosed psychiatric injury the plaintiff has not undertaken any treatment in respect of same.
A summary of the medical evidence
Dr Richardson - orthopaedic surgeon
- [63]
- [64]In those documents:
- on the first examination of the plaintiff it was noted:[62]
There was no noticeable antalgic gait. There was evidence of a healed dorsolateral longitudinal scar involving the right foot. In comparison with the contralateral foot, there was increase swelling compared with a similar area involving the left foot. The surgical scar measured approximately 6cm in length. There was tenderness to palpation over the scar. There was no evidence of adhesion of flexor or extensor tendons to the underlying fracture site. There was no evidence of motor or sensory deficit to either lower limb. There was a full range of motion involving both ankles and he was capable of performing a single heel raise although with discomfort on the right.
- he assessed the plaintiff’s foot injury as causing a 4% whole person impairment;
- he concluded that “the discomfort involving his right foot is unlikely to improve much from where he is at present”;[63]
- he believed the plaintiff “is now capable of performing most of the domestic maintenance and household chores that he was capable of prior to the injury”.[64]
Dr Halliday - orthopaedic surgeon
- [65]
- [66]Dr Halliday found no obvious inconsistencies in his first examination of the plaintiff.[67] He noted a normal gait, normal shoes with no orthodics, a healed and pigmented scar with no altered sensation but some numbness, a range of motion through the feet and ankles (some marginal reductions in the right foot), and an ability to do a double heel raise, fully squat, and walk on toes and heels.[68]
- [67]At the second examination of the plaintiff (in 2023) he did note a very mild antalgic gait with a shortened stance phase, a mild lack of dorsiflexion when compared to the left, and 1cm of calf wasting.
- [68]He noted that typically a dancer’s fracture will heal without residual impairment or disability including pain, although there is a risk of non-union[69] (which in this case was fixed surgically).
- [69]He stated, “Mr Forostenko’s level of pain and disability reporting appears out of proportion to the demonstrable pathology at this time”.[70] He further provided, “he appears to have significant psychological issues, comments in the area of which and their relationship to the incident are out of my area of expertise”.[71] Overall, Dr Halliday concluded that the plaintiff had a 3% whole person impairment.[72] No further treatment was recommended by Dr Halliday.
Dr Estensen - consultant psychiatrist
- [70]
- [71]He found that the plaintiff suffered from an adjustment disorder with mixed anxiety and depressed mood (chronic). He deemed that this was causally related to the incident.[77]
- [72]Furthermore, Dr Estensen concluded that the plaintiff most likely fulfilled the criteria for mild to moderate major depressive disorder for several months following the incident.[78] As a result, Dr Estensen initially gave the plaintiff’s mental disorder a 7% PIRS rating.
- [73]In the opinion section of his report dated 30 September 2020, Dr Estensen said:[79]
- the plaintiff’s ongoing pain and physical limitations, and his inability to engage in his pre-injury level of activity, have been a perpetuating factor for his adjustment disorder;
- the plaintiff’s ability to work as a physiotherapist and operate his physiotherapy practice has been diminished secondary to his psychiatric and orthopaedic injuries sustained in the incident;
- his mix of depressive and anxious symptoms would be problematic in any form of employment, which he attempted to engage in.
- [74]Additionally, Dr Estensen indicated that the plaintiff’s adjustment disorder and constituent psychiatric symptoms would make it more problematic for him to build and develop a new business, or to engage in meaningful business development activities.[80]
- [75]Dr Estensen’s later reports indicate that the plaintiff’s mental condition has deteriorated with time, saying “since the last review, the client’s Adjustment Disorder has deteriorated, with his depressive and anxiety symptoms now more severe. Due to his symptoms becoming more frequent, prolonged and intense, Mr Forostenko now fulfils the criteria for a Major Depressive Disorder”.[81] The PIRS rating was increased to 15%. An extended treatment regime estimated at five years was proposed including 40 psychiatric consultations over three years at a cost of $12,000 and two psychotropic medications for five years at a cost of $4,500. Undoubtedly treatment was proposed to address what was described as the “decline in Mr Forostenko’s function in most areas of daily living.”[82]
Dr Chalk - consultant psychiatrist
- [76]
- [77]He assessed the plaintiff as having an adjustment disorder with anxious and depressed mood.
- [78]Dr Estensen and Dr Chalk hold differing opinions regarding the development of the plaintiff’s psychiatric condition. While Dr Estensen attributed the physical injury as the main cause, Dr Chalk identified several other contributing factors existing at the relevant time. Those included: marital difficulties/breakdown with associated issues concerning finances and children, social stressors, and issues with an employee having embezzled money from the business.
- [79]Dr Chalk provided that “despite the history that has been provided, that this man did have difficulties previously, and that the foot and the chronic pain associated with that has undoubtedly aggravated his condition”.[85]
- [80]He stated that “in my view, 50% of this man’s difficulties can be attributed to the subject injury.”[86] On that basis he considered that a PIRS assessment ought be reduced from 5% to 2.5%. If the same percentage reduction was applied to Dr Estensen’s initial PIRS assessment, it would reduce from 7% to 3.5%. Dr Chalk did not think a revised PIRS assessment of 15% could be justified. He seemed to be prepared to entertain a revised assessment of 6%, but again reduced to 3% for the same reasons previously given.
- [81]Dr Chalk opines that the plaintiff’s current psychiatric symptoms do not hinder his ability to work.
- [82]Dr Chalk opines that the plaintiff could benefit from psychological treatment, as well as the use of antidepressant medication, to alleviate some of the symptoms of which he complains.
Findings about the lay evidence
- [83]Before turning to the assessment of damages, it is convenient to record certain findings about the lay witnesses.
- [84]There were four lay witnesses called in the proceeding: the plaintiff, his wife Ms Donnelly, his former business practice manager Ms Elliott and his CrossFit trainer Mr Martin.
- [85]I accept that Ms Donnelly, Ms Elliott and Mr Martin gave their best recollection of what they perceived to be the effects of the injury on the plaintiff, the plaintiff’s family and the plaintiff’s businesses.
- [86]The plaintiff’s evidence needs to be approached with some caution. Whilst I would not go so far as describe my impression of the plaintiff as dishonest, I have formed the view that:
- he was prone to exaggeration, particularly where he considered that may be advantageous to his claim. For example, he described the trampoline being “rock hard all the way around the edges”[87] – that was plainly not accurate as the cleats are spaced around the edge and the cleats will move with the trampoline mat;
- he did not make appropriate concessions where he perceived to do so would not be advantageous to his case. For example, see at T2-8, L8 to T2-9, L31; T2-51, LL1-34;
- he was not fulsome with Dr Chalk about marital difficulties he was experiencing before the foot injury. For example, see at T2-12, L40 to T2-13, L40;
- many times he advocated for a position rather than simply answering the questions asked of him. For example, see at T2-15, LL28-39; T2-16, L23 to T2-17, L26; T2-28, LL9-44; T2-52, L44 to T2-53, L5;
- he sought to bring the blame for problems in his marriage and businesses back to his foot injury, without properly acknowledging other factors at play. For example, see T2-30, L45 to T2-31, L2;
- he was intent on blaming the cleat, in particular its hardness, for his injury. For example, see at T2-50, LL38-44; T2-57, LL22-40. In that specific respect during cross-examination when handed part of a trampoline mat with cleats in place the plaintiff placed the mat containing the cleats against the witness stand and dramatically smashed his fist into it. The apparent show of the hardness of the cleats was pointless and not to the plaintiff’s credit – see T2-54, L36 to T2-55, L45.
Relevant findings in respect of the injury suffered and continuing to be suffered
- [87]
….The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting - of his or her symptoms; of their impact on the plaintiff’s life; of pre-existing problems; of the genuineness of effort to regain employment after injury; and of their capacity to maintain employment. These are all difficult issues for a defendant to thoroughly investigate and test. In truth no-one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities.
- [88]This is one of those cases.
- [89]In terms of the physical injury there is no doubt that the plaintiff suffered a serious foot injury and that surgical intervention was required. Pain and restriction through the period of recovery was to be expected. However, a number of years on from the injury, there is now not any clearly identifiable organic reason evident for the ongoing physical pain or limitations that the plaintiff reports. The independent medical and other expert evidence relies very heavily on reports made by the plaintiff. The differences between those experts arise primarily because of their different impressions of the plaintiff, and the authenticity of his presentation to them.
- [90]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. What Ms Donnelly, Ms Elliott and Mr Martin perceived as to the effects of the injury (in a physical sense) are based on the plaintiff’s outward presentation. The same issue will have affected the evidence of Ms Coles, occupational therapist called by the plaintiff. I consider the weight of all of their evidence to be reduced in circumstances where it is so reliant upon the actions of, and information provided by, the plaintiff.
- [91]For those same reasons, as amongst the medical experts dealing with the foot injury, I give greater weight to the evidence of Dr Halliday. I note though that in terms of the medical experts’ calculated whole person impairment there is only a small difference. Dr Richardson’s assessment is 4%, Dr Halliday’s is 3%. They have different opinions on the plaintiff’s ongoing impairment, especially when it comes to work and performing household tasks. This is due to their differing views on the level of pain reported by the plaintiff.
- [92]In terms of the psychiatric injury, given the plaintiff’s sporting background, it is readily accepted that the physical injury was causative of the psychiatric injury suffered by the plaintiff. The plaintiff is plainly a man whose identity is strong tied to his physical prowess. He perceives that his business success is also dependant on his physical prowess.
- [93]There was a part of the cross-examination of the plaintiff that I consider was a particularly telling example (repeated in various ways throughout his evidence) that perhaps demonstrates a significant contributor to the plaintiff’s ongoing difficulties that he reports. At T2-34 the plaintiff was being asked about his ability to clean his own residence:
Sure. Well, you’re quite capable of cleaning if you want to, aren’t you?---As – to the point of I’m capable of reading all these reports probably too, but I – it just gets overwhelming with everything that I’ve got on my plate, and I can’t. So I don’t know what – yeah.
Well you - - -?---I – and – and – you know, you could ask, am I capable of doing a 5 k run, and like I’ve said to all your wit – experts, and I’ve said, yes, I could do it. It’s just that the next day, I’m not going to be able to walk and I’m not going to be able to turn up to work. So yeah, but – I’m capable of a lot of things.
I’m not asking you about a 5 k run, Mr Forostenko. You’re quite capable of doing the cleaning around your section of the house, aren’t you?---All right. Well, I don’t do it though.
- [94]That is, whatever physical restrictions and limitations remain, what is significantly contributing to the plaintiff not thriving is his mental response to those challenges. The plaintiff does not appear to presently have the motivation necessary to perform (even if in a different way to what he previously did). He plainly requires some assistance with his psychiatric injury to help him to adjust to his new physical reality.
- [95]But I consider that Dr Chalk is correct to identify the other difficulties the plaintiff was facing at the time of injury that have contributed to his psychiatric injury (see at paragraph 78 above). Whilst the plaintiff submits that Dr Chalk’s report should be excluded or considered irrelevant because it fails to meet the reporting requirements under the Civil Liability Regulation 2014 (Qld) (CL Reg),[89] I consider that the report can be, and is, taken into account by me in the context of demonstrating why the assessments of Dr Estensen are excessive. I give greater weight to the evidence of Dr Chalk.
Quantum assessment
General damages
- [96]The process of assessing general damages is governed by the Civil Liability Act 2003 (Qld) (CL Act) and the CL Reg. Section 51 of the CL Act defines “general damages” as damages for:
- (a)pain and suffering;
- (b)loss of amenities of life; or
- (c)loss of expectation of life; or
- (d)disfigurement.
- [97]Schedule 3 of the CL Reg outlines the matters that a Court may or must have regard to in the application of Schedule 4 (Range of ISVs). Specifically, regard must be had to the matters mentioned in sections 2, 5, 8, 9 and 10 of Schedule 3.
- [98]In Allwood v Wilson [2011] QSC 180, McMeekin J summarised the relevant principles in assessing general damages, where the CL Act applies, from [19]–[24].[90]
- [99]The plaintiff’s claim relies upon item 148 of the CL Reg as the dominant injury (which has a maximum ISV of 12). The defendant accepts that the plaintiff’s claim should be assessed pursuant to that item.
- [100]Relevantly, item 148 provides:
148 Serious Foot Injury
Examples of the injury
| 9 to 12 |
- [101]The plaintiff seeks an uplift of the maximum ISV of 12 of Item 148 by a further 25% to arrive at an ISV of 15. Section 4 of Schedule 3 provides if the maximum dominant ISV is not sufficient then the ISV may be higher on certain conditions, but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected.[91]
- [102]The defendant submits that an ISV of 12, at the top of item 148, would be appropriate.
- [103]I adopt an ISV of 12 having regard to:
- the range of ISVs for item 148;
- the competing assessments for the plaintiff’s foot injury (Dr Richardson – 4% whole person impairment, Dr Halliday – 3% whole person impairment), noting my expressed preference for Dr Halliday’s evidence;
- the plaintiff’s age;
- the pain and suffering the plaintiff has suffered and the loss of amenity of life he experiences;
- the fact of multiple injuries;
- the competing evidence in relation to the plaintiff’s psychiatric impairment (being an adverse psychological reaction to the physical injury that is to be taken into account), noting my preference for Dr Chalk’s evidence.
- [104]Using Schedule 7, for the date of this injury (table 8), the equation is:
- base amount $16,150
- plus (ISV 12 - 10) x $2,060 = $4,120
- total - $20,270.
Past economic loss
- [105]It can be accepted in general terms when considering the issue of economic loss arising from the plaintiff’s injury that:
- (a)there was a period of about seven months post-incident when the plaintiff was very restricted in his ability to treat patients and perform his usual business development activities;
- (b)although other physiotherapists would have taken up most of the plaintiff’s patients and been able to perform some business development, a downturn in the business overall would have occurred without the plaintiff (as an active business owner) driving the business as he had done pre-incident;
- (c)the plaintiff has not returned to his pre-incident level of work in the business (which involves both treatment of patients and business development, even though patient numbers of the plaintiff personally appear to be back to pre-incident levels, he says as a consequence of economic necessity);
- (d)there have been some matters not related to the incident that are likely to have impacted in a small way adversely on the business – for example, cessation of massage services, the plaintiff spending some time on his Beartrap invention;
- (e)there has been a matter not related to the incident that is likely to have impacted in a significant way on the business – Covid-19: including the Covid-19 pandemic restrictions and the slow return of workers to the CBD in the time since;
- (f)the plaintiff’s psychiatric injury is likely to have made it more difficult for the plaintiff to respond effectively to the businesses’ stresses and downturns.
- [106]Whilst the accountancy experts have both approached the task of calculating past economic loss suffered by the plaintiff as a consequence of the injury on a principled basis (albeit with different approaches adopted), neither to my mind is sufficiently nuanced to precisely identify only the economic loss suffered by the plaintiff as a consequence of the injury.
- [107]
Period | Basis of Claim | Amount |
25/12/2017 to 30/06/2021 | Loss of professional fees | $201,387 |
01/07/2021 to 04/12/2023 | Loss of gross profit | $446,552 |
TOTAL |
| $647,939 |
- [108]On the other hand, the defendant submits that the real loss is only $70,000. That is arrived at by taking from Mr Benjamin’s report an assessment of the business’s costs in effectively replacing the plaintiff with other staff (as required); an assessment of $102,586.[93] The defendant then makes a global reduction of approximately 30% to $70,000 based on the uncertainties involved in the calculation, specifically in respect to the adverse effects on the physiotherapy business of Covid-19 and the plaintiff devoting some time to his Beartrap invention.
- [109]There are valid criticisms of Mr Lee’s approach including that:
- the plaintiff’s loss should not be taken to simply look at the plaintiff’s personal billings and to equate the difference between assumed notional patient numbers with actual patients post-incident, when many of the plaintiff’s patients would have still been treated by the business;
- it does not properly assess the effect of Covid-19 (other than to not assess economic loss during a short period of restrictions[94]);
- it does not address or allow for the fact of a declining trend in gross profit in the business prior to the incident.[95]
- [110]There are valid criticisms of Mr Benjamin’s approach including that:
- the approach of assessing the plaintiff’s economic loss as the additional labour cost in respect of personal exertion he would have performed in the business himself but for the incident does not recognise the plaintiff’s unique contribution to the business as an active business owner, rather than just a staff member providing physiotherapy services;
- it does not have regard to the key indicators of the practice activities and later financial information available;
- although concluding that billings data does indicate a decline in revenue following the incident, that was not attributed to the plaintiff’s reduction in capacity;
- the report fails to acknowledge the significant decline in the personal billings of the plaintiff;
- the report overemphasises the impact of massage services on the business;
- there is no assessment of losses based on a loss of gross profit, which is demonstrable.
- [111]Taking either basis of assessment and attempting to adjust it to result in an assessment of the past economic loss caused as a consequence of the true extent of the plaintiff’s injuries is fraught with complexities.
- [112]I think the best I can do in relation to past economic loss is to take Mr Lee’s assessment as a global assessment,[96] but adjust it in a global way downwards to account for the other factors (not related to the plaintiff’s injury) that I conclude adversely affected the physiotherapy business’s fortunes. The appropriate reduction in my view is 40% reflecting the very large impact that Covid-19 would have had on the business (say not less than 50%) but moderated down to account for the fact that but for the plaintiff’s psychiatric injury the business may have fared slightly better.
- [113]The assessment of past economic loss is $388,763 (60% of $647,939).
- [114]The parties agree that interest is calculated at a rate of 1% on past economic loss. For 3.5 years that is the sum of $13,604
Future economic loss
- [115]The principles which apply to the assessment of future economic loss at common law are set out in Malec v J C Hutton Pty Ltd,[97] namely that once a plaintiff demonstrates that he or she has suffered loss, irrespective of how small that loss might be, the court is entitled to award damages based upon an adjustment to reflect the degree of probability that an event might have occurred or not occurred. It is appropriate to allow an award unless, as the majority there, Deane, Gaudron and McHugh JJ said at [7]:
The future may be predicted and the hypothetical may be conjectured. The questions as to the future or hypothetical effect of a physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.01 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages.
- [116]
- [114]The loss to be assessed is the loss or diminution of earning capacity, not the loss of earnings: see Qantas Airways Limited v Fisher [2014] QCA 329 per Henry J (with whom Muir JA and Mullins J agreed) at [19]-[20], following Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 per Barwick CJ at 658.
…
- [116]Reference to loss of earnings is in practice often an appropriate method of reaching an assessment of loss of earning capacity: Qantas Airways Limited v Fisher at [22], [28].
- [117]The plaintiff submits a very pessimistic view of his ability to continue in his chosen profession. I do not share that view. There is no reason to conclude that it is likely that the plaintiff’s physical state in respect of his right foot will further deteriorate. He is able to keep working with some adjustments. He can focus his efforts on working on the business rather than in the business. He can find new ways of making his business a success. Expert report writing (given the plaintiff’s qualifications and experience) is a possibility mentioned by Ms Coles (occupational therapist called for the plaintiff).
- [118]Insofar as the plaintiff’s work difficulties are contributed to by his psychiatric condition, he should be getting assistance for that and the assessment of future special damages (claimed and allowed) will facilitate that occurring.
- [119]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. Certainly Dr Chalk did not think so, and the records of the business do not support any other conclusion. When those issues are considered in conjunction with my impression that the plaintiff is prone to exaggerate both his physical injury and the ongoing effect of that injury, I take a cautious approach towards his future ongoing loss.
- [120]Mr Lee suggests that the plaintiff’s ongoing weekly loss after tax, attributable to the injuries, amounts to $2,998.70. That figure seems manifestly excessive to me, and to calculate that figure until 2043 is particularly excessive. That is particularly so in circumstances where it appears that by 2023 the plaintiff has been treating even more patients than he was pre-2018.[99]
- [121]Nevertheless, I am disinclined to the view, contended for by the defendant, that there is no proven future economic loss, and only a global figure of $70,000 should be allowed.
- [122]Doing the best I can,[100] if I allow the plaintiff a loss of $1,000 per week for a period of four years, applying the 5% table of multipliers (190) that would amount to a sum of $190,000. There may be warrant for allowing that ongoing loss for a period of five years (Dr Estensen’s proposed treatment time), with the multiplier on the 5% tables being 231, leading to a figure of $231,000. By that time I am not satisfied on the balance of probabilities that the plaintiff will be suffering from any reduced earning capacity due to the incident. I do not think mathematical accuracy can be achieved in a case such as this. The divergence of views of the accountants supports that conclusion. Within the range of figures set out above, I am prepared to allow a sum of $225,000 by way of future economic loss.
- [123]In that respect I further note the evidence of Dr Richardson[101] wherein he notes other difficulties that plaintiff suffers from in relation to his right knee (not related to the incident: including a rupture of his anterior cruciate ligament, a partial tear of his medial collateral ligament, an undisplaced fracture involving his lateral tibial plateau consistent with a recent injury, and more). Dr Richardson notes that in the long term the plaintiff is likely to go on to develop osteoarthritis involving his medial compartment and that that may result in him being unable to continue hands-on physiotherapy work until normal retirement age. Dr Halliday also identifies that the plaintiff is likely to have long term issues arising of out other injuries (knee and foot).[102] They are additional reasons to conclude that any allowance for future economic loss also ought to come to an end significantly before the plaintiff’s ordinary retirement age.[103]
- [124]I note also the uncertainty about the financial effect on the business of a likely move of the business to different premises come 26 December 2023.[104]
- [125]I consider that the assessment I have made above sufficiently incorporates any general reduction I would have made for the usual contingencies had I been able to be more precise in the calculation. Accordingly I do not make any further reduction to my assessment of future economic loss on account of usual contingencies.
- [126]I assess the plaintiff’s future economic loss at $225,000.
- [127]I have considered that assessment against what I might have otherwise considered an appropriate global assessment to be made in all of the circumstances, and I am satisfied that it is within a suitable range.
Loss of past and future superannuation benefits
- [128]The plaintiff claims the loss of past and future superannuation benefits at the rate of 11.63% pursuant to the Superannuation Guarantee (Administration) Act 1992 (Cth). I do not allow that claim. The plaintiff is self-employed.[105] If the physiotherapy business actually paid the plaintiff superannuation the source of those funds will have been from the business. The method of calculation of loss submitted for by the plaintiff, which I have adopted as the basis for my calculations, includes compensating for the loss suffered by the practice. To allow a separate head of loss for compensation would be to double-compensate. The assessment is nil.
Past gratuitous care
- [129]Section 59 of the CL Act applies. The plaintiff’s claim is based on what he says he required in terms of personal care, domestic assistance, and yard and garden maintenance. Market rates are claimed.
- [130]I do not accept as accurate the level of care the plaintiff says he required (in total 24 hours per week)[106] or that Ms Donnelly said she provided to the plaintiff (28-30 hours per week).[107] Both of those estimates seem to me to be impermissibly taking into account that the plaintiff’s ability to care for his children diminished and Ms Donnelly needed to take on more in that respect. But there is some evidence of care specifically provided by Ms Donnelly for the plaintiff’s benefit.[108] And whilst the plaintiff does not appear to have obtained regular assistance with yard work, he did give evidence of spending thousands on yard work prior to the sale of a house.[109]
- [131]I consider the market rates proposed by the plaintiff to be too high.[110] Personal care services, domestic services and yard and garden maintenance services should all be able to have been obtained at not more on average than $60 per hour.
- [132]I consider a generous allowance for past gratuitous care[111] to be calculated as:
- 7 months (30 weeks) of personal care for 7 hours per week at $60 per hour ($12,600);
- 148 weeks (25.12.17 to 24.10.20) of domestic care (2 hours) and yard/garden maintenance (2 hours) for 4 hours total per week at $60 per hour ($35,520);
- 52 weeks (25.10.20 to 25.10.21) of domestic care for 2 hours per week at $60 per hour ($6,240);
- 101 weeks (25.10.21 to 4.12.2023) of domestic care (1 hr) and yard/garden maintenance (1 hr) for 2 hours total per week at $60 per hour ($12,120).
- Total - $66,480.
- [133]The plaintiff claimed interest at 1.5% on the past care claim. That is specifically not permitted by s. 60(1)(b) of the CL Act.
Future care
- [134]I consider that by 4 December 2023 the plaintiff’s need for any form of care has reduced to zero. The plaintiff is capable of performing all tasks required of him;[112] no form of care remains “required”.
Past special damages
- [135]Past special damages have been agreed by the parties in the amount of $14,892.86.
- [136]Interest on past special damages has been agreed by the parties in the amount of $165.31.
Future special damages
- [137]The plaintiff claims for future treatment and medication in the amount of $20,000 calculated as:
- 40 psychiatric appointments over the next three years at $12,000;
- two psychotropic medications for five years at $4,500;
- pain medication, massage creams, gels, medical appointments, allied health appointment and the like at $3,500.
- [138]The defendant submits an allowance of $5,000 would be generous in circumstances where the plaintiff generally has not sought further medical assistance, pain medication, psychiatric treatment or psychotropic medications. There is some merit to that submission.
- [139]However it appears plain enough that the plaintiff should obtain some further medical assistance both for remaining pain as reported by him and his psychiatric injury. Three years of monthly psychiatric or psychological appointments (at $300 per session) plus an allowance for the items at 137(b) and 137(c), makes an assessment of future special damages of $15,000 appropriate.
Summary of quantum
- [140]The heads of damage assessed are:
General damages | 20,270 |
Past economic loss | 388,763 |
Interest on past economic loss | 13,604 |
Future economic loss | 225,000 |
Lost of past and future superannuation | 0 |
Past gratuitous care | 66,480 |
Interest on past gratuitous care | 0 |
Future care | 0 |
Past special damages | 14,893 |
Interest on past damages | 165 |
Future special damages | 15,000 |
|
|
Total | 744,175 |
Orders
- [141]Judgment for the plaintiff against the defendant in the sum of $744,175.
- [142]The parties are to provide written submissions on costs within 14 days.
Footnotes
[1] Then aged about 6 and 3.
[2] Born in March 2018.
[3] See exhibit 1 for Assembly, Disassembly and QuickStart Instructions. See exhibits 2 and 5 for promotional videos. See exhibit 14 for photographs of the actual trampoline.
[4] T1-40, L20.
[5] As the plaintiff suggested in evidence: T2-67, LL11-14.
[6] Accepting that in the ordinary course of jumping on a trampoline, contact with the mat is likely to start at the toes and move through the foot to the heels. The use of the term “flat” indicates a lack of sideways movement in the foot.
[7] Measured centre to centre of the cleats.
[8] This is part of the trampoline impact attenuation system (IAS) that is the system by which the spring rods depress to give bounce to the trampoline.
[9] T1-23, L40.
[10] See also physical exhibits 46 and 56 (part of a trampoline mat, rod and cleats).
[11] See SOC, [7] and [7A].
[12] SOC, [6E(a), (b)].
[13] Section 138(1) of the ACL.
[14] Claim for compensation under s. 138(2) of the ACL.
[15] Defendant’s primary closing submissions, [178].
[16] Photograph F12 in exhibit 103 on p. 8 shows a near bottoming-out.
[17] The metal frame matches the shape of the mat above – in this case, oval.
[18] The Deflection Report of 2009 (exhibit 13) showed that a 60kg ball being dropped from a height of 50cm onto the edge of the trampoline (in test conditions) would result in a bottoming-out.
[19] Despite the fact at T1-40, LL11-13 he described it feeling like landing on hard ground or a rock.
[20] No calculations were produced to show, for example, if the mat would have bottomed out with a 80-90cm jump at a weight of 42kgs (about half of the plaintiff’s 83kgs going through his right foot).
[21] T1-37, L7. At T1-39, L34 – “extremely hard”, identified at LL34-35 as the cleat.
[22] Exhibit 104, pp. 16-17.
[23] Exhibits 100 and 101.
[24] T4-33, LL5-7.
[25] T5-25, LL25-26.
[26] Exhibit 51, p. 2 at (a)(i).
[27] Even though the plaintiff was adamant he did not land with his right foot inverted: T1-42, LL10-12.
[28] Refer to exhibit 103, [32].
[29] Exhibit 54, [3].
[30] T3-32, LL28-45; T3-33 to T3-34, L25.
[31] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128, [191]. The same phraseology was found in s. 75AC of the Trade Practices Act 1974 (Cth). The sections are, to all intents and purposes, identical.
[32] McDermott v Robinson Helicopter Co [2014] QSC 34, [212] per P Lyons J.
[33] Exhibit 57, p. 8, Issue A, [2]; exhibit 103, [8]. Noting that the defendant did not pursue a defence based on obvious risk or dangerous recreational activity.
[34] For example, exhibit 91 amongst others.
[35] Robinson Helicopter Co v McDermott [2016] HCA 22; Merck is to the same effect.
[36] Rather than a label attached to the mat as is currently present, which whilst somewhat prominent would be easier to ignore.
[37] See exhibit 8.
[38] See exhibit 9.
[39] See exhibit 1.
[40] Exhibits 2-7, 10-12, 87-99; exhibit 106, p. 9, [3.5] Edge Landings.
[41] Exhibit 106.
[42] Professor Alexander explained that such description and figure 12 in the White Paper may have been referring to an earlier version of the cleats.
[43] See the Deflection Report at exhibit 13.
[44] Defendant’s primary closing submissions, [105]-[109].
[45] Exhibit 8, p. 7, [7].
[46] Exhibit 9, p. 6, [8].
[47] Defendant’s primary closing submissions, [110].
[48] SOC, [5].
[49] See exhibit 17.
[50] Photograph post-surgery at exhibit 18.
[51] Through corporate and trust structures.
[52] T1-27, L10.
[53] T1-26, LL30-35.
[54] T1-26, L40.
[55] T1-27, LL1-5.
[56] T1-80, L3; T1-96, LL2-3.
[57] T1-80, L42 to T1-81, L10. See also at T1-82, LL3-9 and LL32-36.
[58] T2-14, LL4-40.
[59] Exhibit 47.
[60] Exhibit 51.
[61] Exhibit 52.
[62] Exhibit 47, p. 3.
[63] Exhibit 47, p. 4.
[64] Exhibit 47, p. 5.
[65] Exhibit 74.
[66] Exhibit 77.
[67] Exhibit 74, p. 6.
[68] Exhibit 74, p. 5.
[69] Exhibit 76, [10].
[70] Exhibit 74, p. 6.
[71] Exhibit 74, p. 6.
[72] Exhibit 74, p. 6.
[73] Exhibit 63.
[74] Exhibit 64.
[75] Exhibit 65.
[76] Exhibit 66.
[77] Exhibit 63, p. 24; T1-27, LL20-30.
[78] Exhibit 63, p. 17.
[79] Exhibit 63, pp. 18, 25.
[80] Exhibit 64, p. 6.
[81] Exhibit 65.
[82] Exhibit 66.
[83] Exhibit 79.
[84] Exhibit 80.
[85] Exhibit 79, p. 13.
[86] Exhibit 79, p. 16.
[87] T1-42, LL4-5.
[88] [2008] QSC 331.
[89] CL Reg, sch 5, ss. 3-5, 11.
[90] See also Munzer v Johnston [2008] QSC 162, [5]-[12] per McMeekin J.
[91] Munzer v Johnston [2008] QSC 162, [10] per McMeekin J.
[92] Exhibit 73, p. 29 and Schedule D.
[93] Exhibit 84.
[94] 1 April 2020 to 30 June 2020.
[95] See Table 3 at p. 23 of Mr Benjamin’s first report, exhibit 82.
[96] See plaintiff’s closing submissions, [154].
[97] (1990) 169 CLR 638 at 642.
[98] [2021] QSC 16.
[99] Exhibit 83, pp. 36-37, [112], [113].
[100] Section 55 of the CL Act.
[101] Exhibit 52.
[102] Exhibit 76, [11]-[13].
[103] See a summary of the other physical issues that have befallen the plaintiff post-incident at exhibit 69, p. 8 and exhibit 71, pp. 3-4.
[104] Exhibit 71, p. 5 (last dot point); at p. 7 Ms Coles notes that the cessation of the current lease and the need to relocate are expected to have an impact on the plaintiff’s client base.
[105] Section 56 of the CL Act.
[106] See the plaintiff’s closing submission at [176] and the evidence referenced therein.
[107] See the plaintiff’s closing submissions at [177] and the evidence referenced therein.
[108] See for example, T1-68 regarding driving services.
[109] T1-69.
[110] cf exhibit 72 showing regular cleaning at $30-48 an hour, spring cleaning at $60-82 an hour.
[111] Noting that Dr Richardson (orthopaedic surgeon engaged by the plaintiff) noted in his report of 8 April 2019 that the plaintiff was then capable of performing most of the domestic maintenance and household chores he was capable of prior to the injury: exhibit 47, p. 5.
[112] He reported to Dr Halliday that he can do everything he is required to do at work or home but pays for it afterwards with increasing pain: exhibit 74, p. 4.