The Supreme Court of Queensland recently awarded damages in the amount of $1,062,351.20 to a plaintiff in relation to a claim for damages brought against a triathlon event operator and organiser.
There was an array of issues which the court had to consider in this matter, namely:
- Did the defendant breach its duty of care to the plaintiff?
- Did any of the defences under the Civil Liability Act 2003 (Qld) (CLA) apply;
- Should damages be reduced as a result of contributory negligence?
- Did the plaintiff establish a claim under section 60 of the Australian Consumer Law (ACL) on the basis that the service of providing an event was not rendered with due care and skill.
Dr Sally James (plaintiff) brought a claim against the organiser and operator of a triathlon event, USM Events Pty Ltd (defendant). The claim was made due to injuries she suffered during her participation in the event, namely: a brain injury, psychiatric injury, and minor physical injuries.
The plaintiff signed-up to compete in the Gold Coast Triathlon in February 2018. At the last minute, the event was changed to a duathlon due to bad weather. As a result of the change, the para-athletes in wheelchairs and able-bodied athletes were participating on the course at the same time during the sprint category.
Whilst the plaintiff was completing her run, she heard yelling and swearing that startled her, and she was then knocked over by a para-athlete in a wheelchair who collided with her at some considerable speed.
The decision at trial
The plaintiff alleged that the defendant breached its duty of care and failed to respond to the risk of injury in failing to:-
- warn the plaintiff and other participants of the risk of injury of being struck by a para-athlete in a wheelchair;
- have a hard or soft barrier (cones) in place to separate able-bodied athletes and para-athletes in wheelchairs;
- have some delineation on the course such as a painted line, identifying where the runner should go and where the wheelchair athlete should go;
- administer a specific direction to able-bodied athletes that they were to follow the visual signage and occupy that part of the course to the left delineated by the visual pictorial of a runner; and
- administer a specific direction to the wheelchair athletes that they were to occupy the course to the right at a ‘pinch point’ and adhere to the visual pictorial for a para-athlete.
The defendant did not dispute that it owed the plaintiff a duty of care or that there were no barriers or other separation devices for separating the para-athletes and the able-bodied athletes. However, the defendant denied that there had been any breach of duty that was causative of the plaintiff’s injuries. The defendant also disputed the circumstances of the collision, as alleged by the plaintiff, but the plaintiff’s version of events was ultimately accepted despite the defendant’s efforts to question her credit.
In assessing the scope of the duty of care, the court 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.”
The court ultimately found in favour of the plaintiff noting that the defendant’s failure to erect barriers to separate the para-athletes from the able-bodied athletes ultimately caused the plaintiff’s injuries. Brown J in coming to that decision noted that:
- The risk of harm was one which was reasonably foreseeable and not insignificant.
- The breach of duty, namely the lack of separation of the athletes, was a necessary condition of the occurrence of harm to the plaintiff.
- The risk of collision with a para-athlete in a wheelchair was not considered to be an obvious risk pursuant to section 13 of the CLA. In reaching this decision, the court considered evidence from Ms Daamen, who was another competitor in the race. The court ultimately noted that “the fact Ms Daamen was aware of the risk of a para-athlete coming from behind is not conclusive of a reasonable person in Dr James’ position. Ms Daamen had accumulated her knowledge from not only competing in Australia but overseas.” In contrast, although the plaintiff was experienced in triathlons, the course was different to that which she had competed in previously, and additionally she did not recall para-athletes in wheelchairs having competed in the events that she had been a part of previously.
- The risk of collision was not considered to be an inherent risk as per section 16 of the CLA because the evidence 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. Further, the court noted that “it was not true to say that the risk of collision such as the present case could not have been avoided by the exercise of reasonable care and skill, notwithstanding the significant speed at which Mr Chaffey was challenging and seeking to overtake other athletes.”
- The plaintiff did not fail to take reasonable care for her own safety. Contributory negligence was not established.
- Liability under the ACL was not established due to the way the claim was pleaded. The plaintiff pleaded that there was an implied term within the agreement guaranteeing that the defendant’s services of, and incidental to the plaintiff’s participation in the triathlon would be rendered with due care and skill. The defendant successfully argued that under s 60 of the ACL, (unlike the previous legislation), there is no implied guarantee in the agreement, and the claim was misconceived given s 60 of the ACL provides for a standalone agreement. This explained why the defendant did not plead reliance on the waiver contained in the relevant event registration agreement. The court ultimately concluded that the plaintiff had not sufficiently pleaded s 60 to properly raise a cause of action pursuant to that section, not only by pleading the guarantee as an implied term making the pleading liable to be struck out, but also because of the failure to plead any entitlement to damages under the ACL.
Judgment was entered for the plaintiff in the sum of $1,062,351.20 (pending confirmation of calculations by the parties).
Implications for you
For event operators, this decision highlights the importance of conducting thorough risk assessments and ensuring those assessments are updated as event conditions and operations are changed. Whilst operators must be nimble in responding to weather events and other changes in conditions, the duty of care to participants requires that appropriate steps are taken to assess the suitability of those alternative arrangements.
Updated 9 May 2023: On 21 April 2023, the Qld Court of Appeal dismissed an appeal by USM Events against the findings of breach of duty of care.