Queensland Court of Appeal confirms triathlon organiser’s liability to injured triathlete
A recent decision by the Queensland Court of Appeal has important implications for sporting event organisers and insurers. We examine the appeal, the primary judgment before that and the facts of the case.
USM Events Pty Ltd v James [2023] QCA 71
Facts
On 25 February 2018, the Luke Harrop Memorial Triathlon was held at Southport on the Gold Coast (GC Triathlon). The GC Triathlon was open to all age groups and elite triathletes as well as para-triathletes. Due to poor water quality, the GC Triathlon was changed to a duathlon format in which competitors completed a run, bike and run, with both run legs held on the same course.
Dr Sally James was a competitor in the GC Triathlon. As Dr James neared completion of her first run leg, she ‘heard yelling and swearing that startled her‘. She was knocked over by an elite para-triathlete (Mr Chaffey), who was completing his second run leg, when his rear left wheel clipped her right leg. Dr James sustained brain and psychiatric injuries as a result of the collision.
Dr James sued USM Events Pty Ltd (USM Events), the event organisers, for damages in negligence and for breach of the Australian Consumer Law.
The primary judgment
James v USM Events Pty Ltd [2022] QSC 63
At trial, USM Events accepted that:
- able-bodied athletes and para-athletes respectively completing their first and last run legs could overlap on the same course which gave rise to a risk of collision;
- the incident took place in an S-bend which was five to six metres wide (narrower than the rest of the run course) in which no barriers separated the able-bodied and para-athletes; and
- a duty of care was owed by USM Events to take reasonable steps to minimise the foreseeable risk of injury to competitors in the GC Triathlon.
However, USM Events denied any breach of duty.
The risk
Justice Brown identified the risk of harm as:
‘the risk of injury as a result of contact between an able-bodied athlete in the position of Dr James and a para-athlete on a wheelchair capable of travelling up to 35 kilometres per hour being at the same part of the course where the course narrowed concurrently.’[1]
Justice Brown found the risk of injury was foreseeable and not insignificant in circumstances where USM Events knew that para-athletes, such as Mr Chaffey, travelled at high speeds to gain a competitive advantage and ranking points.[2]
Breach of duty of care and causation
The existing precautions taken by USM Events, such as starting the para-triathletes earlier, were found to insufficiently mitigate the increased risk of collision posed by the new course. The Triathlon Australia Race Competition Rules, by which the GC Triathlon was run, were a factor in assessing what was required by the standard of reasonableness. However, the rule that athletes must be responsible for their own safety could not be relied upon to prevent collision in a competitive environment, given the speed with which a para-athlete in a wheelchair can travel.
Justice Brown rejected Dr James’ submission that USM Events ought to have held the para-athlete race before, and separate to, the able-bodied race. However, her Honour accepted that a reasonable person in USM Events’ position would have identified the ‘pinch points’ of the course and erected barriers or witches’ hats with signage to delineate the able-bodied athletes from the para-athletes. This precaution was not ‘unduly onerous’ and USM Events had the expertise and means to implement such barriers.[3]
Justice Brown therefore found that USM Events breached its duty of care by failing to delineate the para-athletes and able-bodied athletes in the narrow sections of the run course which was a necessary condition of Dr James’ injury.[4]
Defences and damages
Dr James failed to properly plead a cause of action and claim to damages under the Australian Consumer Law (ACL). Accordingly, the ACL claim was dismissed.
In relation to the defences advanced by USM Events of the risk of collision being both ‘obvious’ and ‘inherent’, the evidence before Justice Brown did not establish that it was commonplace for para-athletes and able-bodied athletes to be on the same part of the course at the same time. While Justice Brown accepted there are inherent risks in sports including triathlon, the risk of contact with a para-triathlete on a narrow bend of the course was not an obvious risk to a reasonable person in Dr James’ position,[5] nor was it an inherent risk that could not have been avoided by the exercise of reasonable care and skill.[6]
Dr James was awarded $1,062,351 in damages (including general damages of $28,800 for an Injury Scale Value of 16).[7]
The appeal
USM Events Pty Ltd v James [2023] QCA 71
USM Events appealed the primary decision on grounds that, inter alia, the factual finding made by the trial judge that the remedial step of using barriers to separate the two categories significantly increased the risk of able-bodied athletes colliding with each other.
During cross-examination in the Supreme Court trial, Ms Van Pooss, the Senior Operations Director at USM Events, gave evidence that using a ‘soft barrier’ at the pinch points would increase the risk to able-bodied athletes due to the funnelling effect created by congestion. This evidence was considered non-persuasive as it was not outlined in her affidavit and given ‘on the fly’.
The Plaintiff’s expert gave counter-evidence that the risk of an able-bodied athlete being knocked over by a wheelchair is greater because of the ‘potential speed differential’, which was accepted by Justice Brown, and further compounded by the wheelchair being a ‘solid structure’.
The Queensland Court of Appeal found that her Honour weighed the evidence regarding the risks attached to the remedial step and made findings based on that evidence. The majority of the Court upheld the trial decision and dismissed the appeal.
Implications
Event organisers have many considerations when planning sporting events, such as course design, competitor safety, inclusivity and accessibility. It is important for event organisers to develop contingency plans that respond to uncontrollable factors, such as weather. In developing these plans, event organisers must identify foreseeable risks that arise from any changes, consider whether these risks are ‘obvious’ to competitors, and implement reasonable steps to avoid the risk.
While event organisers are guided by the rules and regulations set by their governing body, they must exercise their judgement if the rules do not reference the specific changes and must ensure that any changes to a course maintain the safety of all competitors and spectators.
[1] James v USM Events Pty Ltd [2022] QSC 63 [203].
[2] Section 9 of the Civil Liability Act 2003 (Qld) (Act).
[3] Section 9(2) of the Act; Brown J at [261].
[4] Section 11 of the Act.
[5] Section 13 of the Act.
[6] Section 16 of the Act.
[7] Brown J at [482].