Brisbane physio Phillip Forostenko awarded damages after Springfree trampoline injury

A Brisbane father has had a major payday in the Supreme Court with a win against a trampoline manufacturer after suffering a “dancer’s fracture” on it.

Brisbane physio Phillip Forostenko awarded damages after Springfree trampoline injury

A Brisbane physiotherapist has been awarded nearly $750,000 in damages by the Supreme Court after the “enthusiastic user of trampolines” fractured his foot on one on Christmas Day.

Phillip Forostenko, a fit and active 41-year-old father, went to his sister’s home on Christmas Day, 2017 and noticed her new oval O92 model Springfree trampoline set up in her backyard.

An “experienced and enthusiastic user (and owner) of trampolines” Mr Forostenko, who is also an exercise physiologist, slipped off his thongs and climbed into the trampoline to try it out.

It was his first time on a Springfree trampoline, which is quite different to a regular springed trampoline, the court heard.

Within 40 to 60 seconds of being on the trampoline he suffered what is commonly referred to as a “dancer’s fracture”, namely a fifth metatarsal fracture in his right foot, the court heard.

Mr Forostenko told the court his right foot had come down near the edge of the mat on the webbing, which covered a cleat that acted as a ball joint, and he felt immediate pain.

He sued the manufacturer Springfree Trampoline Australia Pty Ltd claiming damages of about $3.92 million.

Mr Forostenko claimed the company had been negligent and the trampoline had a safety defect due to the absence of a warning about the cleats or advisement against jumping on them.

The company, which denied liability, contended any assessment of damages should not exceed $160,000.

In a decision delivered on Tuesday Justice Melanie Hindman found the cleat’s ball joint movement was the significant contributor to the inversion of Forostenko’s foot which led to the injury.

A Springfree oval trampoline.

Justice Hindman said “no trampoline is inherently safe” and the cleat operating as a ball joint meant it had the potential to cause or contribute to a forefoot inversion increasing risk of injury.

“That fact, together with the lack of a warning about that particular feature of the trampoline’s design, was a safety defect,” she said.

“That particular feature of the trampoline’s design was a matter about which users were entitled to expect would be drawn to their attention.

“Instead the trampoline was advertised with language such as ‘no springs = jump safely

to the edge’ and ‘Softedge® mat – no hard edges to land on’.”

While there were warnings attached to the trampoline, the user guide and manuals they did not draw users’ attention to landing on the cleats.

The company argued any warning would have had to be attached to the trampoline or guide and Mr Forostenko had not suggested he consulted those items before using it.

However Justice Hindman found Mr Forostenko suffered injuries because of the safety defect.

His injuries included a foot fracture, requiring surgery, scarring and mental health issues, the court heard.

Mr Forostenko, who operates his own physiotherapy practice in Brisbane CBD, did not return to “hands-on” work with patients until mid 2018 and has reduced the days he works and the number of patients he sees, the court heard.

He claimed the ongoing pain impacted his ability to engage in sport such as hockey, running and dog sledding that he did prior to the accident.

He also suffered major depressive disorder and an adjustment disorder with mixed anxiety and depressed moods.

However despite these physical and psychological difficulties he had not consulted further with medical professionals, the court heard.

Justice Hindman said his evidence needed to be approached with caution as he was prone to exaggeration particularly where it may have been advantageous to his claim.

“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,” she said.

“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.

“My impression of his evidence about the physical injury and the ongoing effects of the physical injury is that the plaintiff is prone to exaggerate both.”

She “readily accepted” that foot injury was causative of the psychiatric injury but agreed with a psychiatrist called by the defence that other difficulties facing Forostenko contributed to it.

“The plaintiff submits a very pessimistic view of his ability to continue in his chosen profession. I do not share that view,” Justice Hindman said.

Justice Hindman awarded Mr Forostenko a total of $744,175 including $388,763 for past economic loss and $225,000 for future economic loss.

Costs are yet to be decided.