Opinion

Home > Blog > Blog: Case summary: Forostenko v Springfree Trampoline Australia Pty Ltd (No. 2) [2024] QSC 126

Case summary: Forostenko v Springfree Trampoline Australia Pty Ltd (No. 2) [2024] QSC 126

Case summary: Forostenko v Springfree Trampoline Australia Pty Ltd (No. 2) [2024] QSC 126

19th Sep 2024

Forostenko v Springfree Trampoline Australia Pty Ltd (No. 2) [2024] QSC 126             

Hindman J, decision delivered 19 June 2024

Facts

The plaintiff claimed damages in relation to a foot injury suffered by him on 25 December 2017 while jumping on a Springfree trampoline. The defendant was the manufacturer of the Springfree trampoline.

After a contested trial where both liability and quantum were in issue, on 28 May 2024 judgment was given for the plaintiff against the defendant in the sum of $744,175.00. The parties were then directed to provide written submissions on costs. This is the decision on costs.

Decision

The defendant pay the plaintiff’s costs of the proceeding but only on the standard basis and assessed on the District Court scale.

Ratio

The plaintiff sought that the defendant pay his costs of the proceeding on the indemnity basis relying in particular upon two facts:
  • The plaintiff at trial had beaten his mandatory final offer made on 15 July 2019 of $500,000.00 plus costs assessed on the District Court scale;
  • The plaintiff at trial had beaten his formal UCPR offer made on 23 May 2022 of $250,000.00 plus costs.
The defendant sought a relatively complex order, summarised in the following terms:
  • The plaintiff pay the defendant’s costs thrown away by reason of the amendment of the Statement of Claim on four occasions;
  • The plaintiff pay the defendant’s costs of or related to factual matters pleaded in the Statements of Claim which were ultimately abandoned by the conclusion of the trial;
  • The defendant pay the plaintiff’s standard costs of the proceeding but reduced by 50 percent of the costs relating to liability exclusive of the costs referred to in the preceding orders.
Her Honour saw merit in the submissions by the defendant in respect of the first two orders sought by it. The submissions in respect of the third order sought by the defendant were more complex and were summarised by Her Honour as follows:
  • That the case upon which the plaintiff ultimately succeeded was one notified/pleaded only shortly before or at trial;
  • Because of the preceding subparagraph, the rejection of the plaintiff’s offers was not unreasonable;
  • Significant parts of the plaintiff’s case that the plaintiff did press at trial were not successful;
  • That the plaintiff only succeeded on quantum to the value of about twenty percent of his claim made.
The Court accepted generally these submissions, however moderated them in circumstances where:
  • The defendant’s liability expert appeared to appreciate a significant liability factor put forward (albeit belatedly) by the plaintiff;
  • It is not unusual that a party’s case will develop and change over time, particularly where expert evidence is required. It is consistent with rule 5 UCPR that a party run its true case at trial. Therefore, there should be some leniency in allowing a party’s case to develop without severe adverse cost consequences;
  • The plaintiff pointed to late disclosure and late sought delivery of expert evidence by the defendant as being at least part of the reason for late developments in the plaintiff’s case;
  • Had the plaintiff’s final mandatory offer been accepted, none of the costs associated with the proceeding would have been incurred, including in respect of matters pleaded then abandoned, matters upon which the plaintiff was not successful, unnecessary case management conferences, etc;
  • The plaintiff pointed to the overall conduct of the defendant’s case (including denying liability and putting the plaintiff to proof for the most part), including in respect of the defendant’s response to a notice to admit facts.

Her Honour considered it undesirable to make a complex costs order as suggested by the defendant in order to avoid adding to the cost and complexity of the costs assessment process and preferred to make one order and taking all matters into account he considered it just and fair.

That the defendant achieved judgment within the jurisdiction of the District Court was also taken into account.

The ALA thanks John Connellan for this contribution.

 

John Connellan is a Senior Associate at Travis Schultz and Partners who joined the Brisbane team at the start of 2024 with an ambition to work alongside industry leading experts who put the client’s interests first. As a qualified Barrister of Law and mediator with a decade of international experience primarily in plaintiff litigation, John has handled numerous high-value personal injury cases, including those related to road traffic accidents, public liability, medical negligence, sports injuries, and workplace incidents. His expertise extends to various areas of Sports Law, including disciplinary hearings, governance and compliance, athlete contract negotiation, child protection, pitch assaults, anti-doping and liability of clubs and volunteers, and he holds a Law Society Diploma in Sports Law. John is driven by the desire to see his clients adequately compensated for their hardship and ensuring that their future care is provided for and, as a former intercounty Gaelic footballer in Ireland, John has a natural drive and competitive edge which ensures he gets the best outcome for his clients.

This is an edited version of an article first published by Travis Schultz & Partners.

The views and opinions expressed in this article are the author’s and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

 

Tags: Costs Costs follow the event Offers to settle David Connellan Procedure

Connect with us