Which case won?

The case for the event organiser
  • It is common for event formats to change due to the deterioration of weather conditions.
  • Athletes were notified of the change in the format from a triathlon to a duathlon on the afternoon before the event and it was a matter for the individual whether they still wished to compete.
  • We set up courses in accordance with the Triathlon Australian Event Coordination Manual, which does not specify a required width for a course with combined athlete participation.
  • The competition was conducted in accordance with the Triathlon Australia Race Competition Rules, and participating athletes were sent an Athlete Information Guide.
  • Irrespective of the rules, there is an inescapable risk in participating in a triathlon.
  • While the athlete had never previously been clipped by a runner or run into from behind during an event, she accepted it was a risk by her own admission.
  • We have previously had para-athletes and able-bodied athletes compete together without incident.
  • The athlete has exaggerated her brain injury with the deliberate intention of inflating her claim.
The case for the athlete
  • I was not aware the course would be occupied by para-athletes and able-bodied athletes simultaneously.
  • There were barriers separating the runners from the cyclists. However, there was nothing to separate the para-athletes in wheelchairs from the able-bodied athletes competing in the event.
  • The point where the incident occurred was not wide enough to accommodate both groups of athletes.
  • Para-athletes racing in wheelchairs can reach speeds of up to 35 kph, which is significantly faster than able-bodied athletes. The organiser should have been aware of the risk of a collision between the able-bodied athletes and para-athletes in wheelchairs.
  • Its failure to address this risk is a breach of its duty of care to competitors in the event.
  • I don’t dispute that triathlons are inclusive events where athletes of various abilities are invited to compete. However, this does not mitigate the legal responsibility of the event organiser.
  • I undertook a three-month PTSD course, never returned to work, have been bankrupted, have the care of my two children and had to move back in with the husband I have separated from because I couldn’t pay the rent. To argue that I exaggerated my brain injury in an elaborate ruse to succeed in this litigation is absurd.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a42%
case b58%

Expert commentary on the court's decision

Phil Griffin
Phil GriffinManaging Director
“Voluntary participation in a sport 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.”
Court finds in favour of injured athlete

In the matter of James v USM Events Pty Ltd [2022] QSC 63, the court found in favour of the athlete, Dr Sally James.

It determined that USM Events Pty Ltd, the organiser of the Gold Coast Triathlon held in Southport on 25 February 2018, failed in its duty of care to Dr James.

The court made the following comment.

…modern Australian society expects that sporting events… such as triathlons should include para-athletes. That does not, of course, mean that reasonable precautions may not need to be taken in order to ensure events can be carried out safely, but those precautions should not be to simply exclude para-athletes to eliminate the risk unless there is no reasonable means of including them in the competition to ensure the safety of all athletes. 

Risk of harm was foreseeable by event organiser

Paraphrasing, the court adopted the common law principle that if an event coordinator brings together a crowd of people and organises their participation in activities in which injuries happen to occur, they will ordinarily owe to those people a duty in respect of the dangers which have been created.

Justice Brown held that the risk of harm was reasonably foreseeable because a para-athlete in a wheelchair can reach speeds up to double that of an able-bodied athlete and it was likely the two groups of athletes would overlap on the course.

The court made the following comment:

Given the different nature of a wheelchair as opposed to athletes not racing on a solid bike and the capability of the wheelchair to reach speeds other athletes cannot, the risk of harm is appropriately identified as the risk of injury as a result of contact between an able-bodied athlete … and a para-athlete on a wheelchair… being at the same part of the course where the course narrowed concurrently.

Risk of collision between able-bodied athletes and para-athletes in wheelchairs

USM did not dispute that it owed a duty of care to competitors. However, it denied that there was a breach of that duty. The court indicated that USM knew or ought reasonably to have known of the potential risk that para-athletes in wheelchairs might collide with able-bodied athletes.

Once the risk is foreseeable, the magnitude and degree of probability of its occurrence is considered, along with the expense, difficulty and inconvenience of taking alleviating action.

Dr James argued that USM did not take reasonable precautions to prevent the risk of injury. Justice Brown ultimately considered that the implementation of barriers would have been a reasonable precaution for the safety of all athletes and therefore held that USM breached its duty of care to Dr James.

The court found that USM’s failure to use separation barriers adequately between para-athletes and able-bodied athletes ultimately caused the injuries suffered by Dr James.

Rules in sport do not necessarily encompass duty of care owed

The court noted that the law will not necessarily accept the rules or practices of sporting bodies as setting the law’s standard of reasonable care. 

While there were protocols which athletes abided by and rules in relation to both personal safety and the safety of others, in this instance the protocols appeared to have been developed over time by those competing and the rules were not specific to any situation.

Rules which govern participation in sport are not necessarily conclusive of the content of the duty of care owed, but are factors to be considered in assessing what was required by the standard of reasonableness.

Sporting guidelines not to be relied on to diminish risk

In this instance, the rules were general in nature and open to interpretation by a particular athlete. These interpretations could differ considerably in a competitive environment.

The court said that while the guidelines for triathlons provide that an athlete must take care of their own safety, it is still a competitive environment and a reasonable person in the position of USM would not rely on the rules or protocols to diminish the risk of collision to an acceptable level, particularly where the risk of serious injury was high.

The court concluded that the existing rules and protocols were not sufficient to meet the risk.

Collision with para-athlete not an obvious risk

USM contended that the risk of collision was obvious, particularly to an intelligent and experienced competitor like Dr James. However, there was no reference in the athletes’ guide or in the competition rules to para-athletes and able-bodied athletes competing together.

The court accepted that Dr James chose to participate in the event and was aware that the competition involved some risk of injury, although colliding with a para-athlete was not considered an obvious risk.

Collision may have been avoided by exercising reasonable care and skill

USM also contended that the risk of collision is an inherent risk of competing in a triathlon. An inherent risk is one where no party has control, despite the exercise of reasonable care.

However, 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.

The court took the view that the risk of collision may have been avoided by the exercise of reasonable care and skill by USM.

The damages payable to Dr James by USM for pain and suffering, loss of amenities, past economic loss, future economic loss, loss of earning capacity, future expenses and interest together amounted to $1,062,351.20.

Diligent ongoing risk assessment vital for all organisers of events

All sporting events have risk. Specifically, there is a risk that athletes will collide in the conduct of a triathlon. This risk is not necessarily confined to collisions between a para-athlete and an able-bodied athlete.

However, this does not prevent athletes from making a claim against event organisers who breach their duty of care.

Organisers of events would be prudent to take heed of this case and what can be learnt from it.

First, if the circumstances of a sporting event change, the organiser must properly assess the impact that change has on its participants and the duty of care it owes.

Secondly, participants need to be made aware of that change in circumstance and undertake responsibility for any additional risk.

And finally, event organisers should identify risks more specifically, rather than relying on a general assumption of risk by an athlete in a sporting event.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

Latest from Stacks

chat button

Fill out this form and one of our local law professionals will be in contact

By submitting this form you agree to the terms of our Privacy policy