1. The parties are to provide a draft order by which the defendant is to pay the plaintiff damages, having checked the calculations in [562] of these reasons, within fourteen days of the date of these reasons.
2. The parties should provide submissions as to costs within fourteen days of the date of these reasons.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – where plaintiff claims damages for physiological and psychological injuries suffered while competing in a duathlon organised by the defendant – whether the plaintiff’s injury, if any, was suffered as a result of the collision with the para-athlete – whether the scope of the duty owed by the defendant extended to the plaintiff – whether the defendant breached the duty of care owed – whether any breach by the defendant caused an injury to be suffered by the plaintiff
TORTS – NEGLIGENCE – DEFENCES – OBVIOUSNESS – OBVIOUS RISK – whether risk of collision between an able-bodied athlete and a para-athlete would have been obvious to a reasonable person in the position of the plaintiff – whether voluntary assumption of risk
TORTS – NEGLIGENCE – DEFENCES – INHERENT RISK – whether risk of collision between an able-bodied athlete and a para-athlete was a materialisation of an inherent risk in the conduct of the duathlon
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – Where the defendant claims the plaintiff was contributorily negligent – whether the plaintiff was contributorily negligent and what apportionment should be allotted
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – Where the plaintiff suffered physical injuries, including cervical spine and lumbar spine injuries, and psychological injuries – Where damages assessed pursuant to the Civil Liability Act 2003 (Qld)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Sally James v USM Events Pty Ltd [2022] QSC 63
Case
[2022] QSC 63
Decision Date
CaseChat Overview and Summary
In the case of James v USM Events Pty Ltd, the plaintiff, Dr James, sought damages for physiological and psychological injuries sustained during a duathlon organised by the defendant, USM Events. The duathlon, originally intended as a triathlon, was modified to a duathlon just prior to the event. Dr James, who had been competing in triathlons for nearly two years, collided with a para-athlete during the race. The court was tasked with determining whether USM Events owed a duty of care to Dr James, whether any breach of that duty caused his injuries, and if the risk of collision was obvious or inherent to the event.
The primary legal issues revolved around the scope of the duty of care owed by USM Events to Dr James, whether there was a breach of that duty, and if the breach caused Dr James' injuries. Additionally, the court considered whether the risk of collision between an able-bodied athlete and a para-athlete was an obvious risk or an inherent risk, and if Dr James had voluntarily assumed the risk. The court also examined whether Dr James was contributorily negligent and, if so, what apportionment of damages should be made. The assessment of damages for personal injuries, including loss of earnings and earning capacity, was also addressed under the Civil Liability Act 2003 (Qld).
The court found that USM Events did owe a duty of care to Dr James. It was determined that USM Events breached this duty by not adequately informing the athletes of the change in event format and the associated risks. The court held that the risk of collision between an able-bodied athlete and a para-athlete was not an obvious risk to a reasonable person in Dr James' position, nor was it an inherent risk of the duathlon. The court found that Dr James was not contributorily negligent. Consequently, the court held that USM Events was liable for Dr James' injuries and ordered that USM Events pay damages to Dr James, with the specific amount to be determined by the parties within fourteen days of the judgment. The parties were also directed to submit their costs within fourteen days of the judgment.
Orders
Orders of the court
The order of the Court is that:
1. The parties are to provide a draft order by which the defendant is to pay the plaintiff damages, having checked the calculations in [562] of these reasons, within fourteen days of the date of these reasons.
2. The parties should provide submissions as to costs within fourteen days of the date of these reasons.
Background
Background to the litigation
Prior to considering the above issues, I will consider the evidence.Uncontroversial facts The following facts were admitted in the pleadings or subsequently were accepted as uncontroversial in final submissions. USM was experienced in the design and conduct of triathlons and conducted the holding of such events as a business for profit. USM has regard to Triathlon Australia’s Event Operations Manual, which does not provide for any specific width for a course when there is a combined able-bodied and para-athlete event. USM had held combined events prior to the present. There were multiple categories of competitors to allow elite competitors to compete in the GCT as well as all members of the community of all ages including people with disabilities. Competitors paid an entry fee to compete. The rules of competing in triathlons in Australia which applied were primarily the Triathlon Australia Race Competition Rules (the “Rules”). Participating athletes had been sent an Athlete Information Guide in relation to the event in January.[2] [2]Exhibit 47. The GCT had been designed in 2017 with some further insubstantial adjustments in 2018 in preparation for the course being used for the Commonwealth Games. Hosting the triathlon involved a process of seeking permits from the Department of Transport and Main Roads (“DTMR”) as well as working with the Queensland Police Service (“QPS”) and the Council. The course had however changed from the course originally designed for the triathlon to a duathlon just prior to the GCT. According to Ms Daamen, another competitor, athletes were notified of the decision to change the event to a duathlon on the afternoon before the event, via Facebook and email. Dr James was sent an email notifying of the change of course. I accept that Dr James did not however, become aware of the decision until the morning of the competition. By the time of the GCT Dr James had been competing in triathlons for almost two years. As a result of the course being changed from a triathlon to a duathlon:(a)the athletes completed the course in an anti-clockwise as opposed to a clockwise direction;(b)the swim leg was removed;(c)there were two run legs, one of two and a half kilometres followed by the cycle leg of 20 kilometres and a final run leg of five kilometres (which required the running of the two-and-a-half-kilometre leg twice); and(d)Dr James’ category was the sprint category which changed from wave starts (as occurred in the GCT for the swim leg) to rolling starts in each category. The change to the course which was announced over a public speaker system approximately every five minutes as new athletes moved to the starting area.[3] At least some athletes were told the afternoon before of the change. The GCT was an all-age event with amateur and elite triathletes of all ages and was open to para-athletes. [3]Affidavit of Rebecca Laura Van Pooss sworn 27 May 2021 (“Van Pooss Affidavit”) at [68(a)]. If the event had proceeded as a triathlon, able-bodied athletes and para-athletes would have been on the course at the same time.[4] [4]Van Pooss Affidavit at [73].