James v USM Events Pty Ltd (2022) QSC 63
Incident date – 25 February 2018
Delivery date – 14 June 2022
Background
While racing in a duathlon, the plaintiff was running into a carpark alongside other people. She heard yelling and swearing that startled her and was subsequently knocked over by a para-athlete in a racing wheelchair. It resulted in a brain and psychiatric injury as well as some other relatively minor injuries.
The plaintiff commenced proceedings against the duathlon’s organiser claiming damages for negligence. The defendant accepted that a duty of care to avoid foreseeable risk of injury to the plaintiff is owed, however disputes the extent of the duty owed.
Liability
Incontrovertible evidence was presented at trial which showed that the event was originally supposed to be a triathlon however due to bad water conditions, was changed to a duathlon. Accordingly, this caused the para-athlete wheelchair event to overlap with the running leg of the able-bodied duathlon. The plaintiff submitted that the defendant could have separated the para-athletes and able-bodied athletes by some form of barrier or marking.
The defendant suggested that the only way a collision could have occurred would be if the para-athlete was not keeping a proper lookout or acted in a similarly negligent way. The defendant also emphasised the inherent risks in sport which the plaintiff may be held to have accepted in signing up to the duathlon.
Findings
The judge found that the defendant had breached their duty of care. A reasonable person in their position would have taken additional precautions to control the risk of a para-athlete in a wheelchair being on the course at the same time as an able-bodied athlete given that:
- The risk of collision was likely to be greater given the potential speed differential between a para-athlete and an able-bodied athlete. Given that there was no initial swim leg, and that there was an initial run leg and final run leg, there was a reasonable likelihood that the two categories of athletes would be on the run leg at the same time at different stages of the race for each category.
- The likelihood of other athletes failing to observe the risk and avoid it was not remote, particularly when the para-athlete was approaching from behind.
- The duathlon had changed the course the athletes were to compete on. No athlete was familiar with the course.
On the point of the injury falling within the inherent risk of a sport, the judge cited a passage from from Agar v Hyde (2000) 201 CLR 552 to set out the limits of this argument. It is worth quoting it in full:
“Voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of a duty of care in any other participant or in any person in any way involved in or connected with the activity. That, however, is not to deny the significance of voluntary participation in determining the existence and content, in a given case, or category of cases, of an asserted duty of care.
People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also of the public benefit of sport. Sporting activities of a kind that sometimes result.”
Therefore, the judge found that while the plaintiff did sign up to a sport which has inherent risks, this differs from the foreseeable risk of injury created by including para-athletes race alongside able-bodied athletes.