USM Events Pty Ltd v James

Case [2023] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

USM Events Pty Ltd v James [2023] QCA 71

PARTIES:

USM EVENTS PTY LTD
(appellant)
v
SALLY JAMES
(respondent)

FILE NO/S:

Appeal No 8087 of 2022
SC No 1129 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2022] QSC 63 (Brown J)

DELIVERED ON:

21 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2022

JUDGES:

Morrison and Flanagan JJA and Henry J

ORDERS:

1.   Appeal dismissed.

2.    The appellant pay the respondent’s costs of and incidental to the appeal.

CATCHWORDS:

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – AT COMMON LAW – HOW DETERMINED – PREVENTATIVE MEASURES – where the appellant hosted a triathlon event on the Gold Coast – where the event involved a total of 1,462 athletes, including eight para-athletes in wheelchairs – where the appellant was experienced in holding triathlons – where the event, due to water conditions, was changed from a triathlon to a duathlon on the day prior to the event by the removal of the swim leg and the insertion of an extra run leg – where the altered event included a 2.5 kilometre circuit – where the first run leg required completing the 2.5 kilometre circuit once, and the second run leg required completing that same circuit twice – where the cycling course was separate from the run course – where there was an S-bend near the completion of the run leg circuit – where both able-bodied athletes and para-athletes in wheelchairs had to pass through the S-bend to complete the run legs – where the respondent was an able-bodied athlete participating in the event – where a para-athlete in a wheelchair collided with the respondent whilst both were in the S-bend – where the respondent suffered brain and psychiatric injuries as a result of the collision – where the appellant admitted that it owed a duty of care to the respondent – where the appellant accepted that there was a probability that some of the para-athletes in wheelchairs and able-bodied athletes would come across each other on the last run leg – where the trial judge found that the appellant had breached its duty of care by not taking the reasonable step of putting barriers in the area of the S-bend to separate able-bodied athletes from para-athletes – whether the trial judge erred in finding that the appellant breached its duty of care

Lynch v Shooters Saloon Bar Pty Ltd[2006] QCA 63, applied

COUNSEL:

R J Douglas KC, with A P J Collins, for the appellant
M Grant-Taylor KC, with G C O’Driscoll, for the respondent

SOLICITORS:

Carter Newell Lawyers for the appellant
Travis Schulz & Partners for the respondent

  1. MORRISON JA:  In 2018, the appellant (USM) was an experienced organiser and operator of triathlon events.

  2. On 25 February 2018, USM held a triathlon event on the Gold Coast (the GCT).  The respondent (James

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AGLC
USM Events Pty Ltd v James [2023] QCA 71
Case
[2023] QCA 71
Decision Date

CaseChat Overview and Summary

In the case of USM Events Pty Ltd v James, the respondent, an able-bodied athlete, claimed that he suffered brain and psychiatric injuries when he was collided with by a para-athlete in a wheelchair during a duathlon organised by the appellant, USM Events Pty Ltd. The respondent alleged that the appellant breached its duty of care by not taking reasonable steps to separate the able-bodied athletes from the para-athletes. The primary issue before the court was whether the trial judge erred in finding that the appellant breached its duty of care.

The legal issues that the court had to address were the standard of care, the scope of the duty, and whether there was a subsequent breach at common law. The court had to determine how the standard of care was determined, whether preventative measures were taken, and if not, why not. The court also considered whether there were competing risks, and if so, how they were balanced.

The court found that the trial judge did not err in finding that the appellant breached its duty of care. The court held that the trial judge weighed the risks attached to the remedial step of using barriers, using evidence from experts and other sources. The court found that the trial judge accepted some of the expert evidence and rejected other evidence, which is a routine part of the trial judge's role. The court rejected the argument that the trial judge engaged in her own reasoning without the assistance of expert evidence. The court concluded that there was an adequate evidentiary foundation for the finding made by the trial judge.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs of and incidental to the appeal. The court held that the trial judge's decision was supported by the evidence and that the appellant's arguments did not succeed. The court found that the trial judge properly considered the risks and benefits of using barriers to separate the athletes, and that the appellant's arguments were not persuasive. The court concluded that the trial judge's decision was correct and that the appeal should be dismissed.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal.

Background

Background to the litigation

For the reasons which follow that appeal must be dismissed.Uncontested facts There were a number of facts which were uncontroversial by the end of the trial. Set out below are those which are material to the present issue, taken from the findings of the learned trial judge.[4][4]Reasons below at [8]–[24]. USM was experienced in the design and conduct of triathlons, and conducted the holding of such events as a business for profit. USM had regard to Triathlon Australia’s Event Operations Manual, which did 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 one. Para-athletes in wheelchairs had competed on the course with able-bodied athletes in 2017. Ms Van Pooss was employed by USM as Senior Director, Operations Oceania. In her role, she was responsible for the oversight of all operational planning and delivery of over 20 separate events within the Oceania region, which included the GCT. In February 2018, she was the Regional Director of Oceania. She was actively involved in the determination of the layout and structure of the course of the GCT in 2017 and 2018. The 2018 course largely mirrored the 2017 course for the run leg, and was substantially the same course as in 2017 for the bike leg, save for the fact that there was no swimming leg, and the run course had been altered so as to travel in the opposite direction at the beginning of the race and at the end. 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. The rules of competing in triathlons in Australia which applied were primarily the Triathlon Australia Race Competition Rules. By the time of the GCT, James had been competing in triathlons for almost two years. 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, as well as working with the Queensland Police Service and the Gold Coast City Council. However, the course had been changed from the original triathlon design to a duathlon just prior to the GCT. Athletes were notified, via Facebook and email, of the decision to change the event to a duathlon on the afternoon before the event. James was sent an email notifying of the change of course. James did not, however, become aware of the decision until the morning of the competition. As a result of the course being changed from a triathlon to a duathlon, the swim leg was removed. Instead, there were two run legs. The course thus consisted of one run leg 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). The GCT was an all-age event with amateur and elite triathletes of all ages, and was open to para-athletes. If the event had proceeded as a triathlon, able-bodied athletes and para-athletes would have been on the course at the same time.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view, that demonstrates that the learned trial judge did weigh the risks attached to the remedial step, using those parts of the evidence that her Honour could. That included Dr Grigg’s opinion that the risk would not be significantly increased, and rejection of Van Pooss’ evidence that it would. Put another way, her Honour did what trial judges routinely do; that is, weigh the evidence presented, and make findings based on that evidence. A trial judge is not compelled to accept or reject any particular evidence, including expert evidence.[56] In partly accepting Dr Grigg’s evidence, and rejecting Van Pooss’, on questions concerning the use of barriers and whether they would create a greater risk such as to make their use unreasonable, that is precisely what her Honour did. Her Honour was not, as suggested, engaging in her own reasoning without the assistance of some expert evidence.[56]Lynch v Shooters Saloon Bar Pty Ltd at [14].Conclusion For the reasons expressed above, there is no merit in the grounds of appeal, and it should be dismissed. I propose the following orders:1.Appeal dismissed.2.The appellant pay the respondent’s costs of and incidental to the appeal. FLANAGAN JA: I agree with Morrison JA. HENRY J: I agree with the reasons of and the orders proposed by Morrison JA.

Ratio Decidendi

Legal Principle Established

The essential steps in the submission were that:[25](a)relying on the High Court in Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba,[26] it was incumbent on the plaintiff to demonstrate that there was some system which was an alternative, which was free of the risk of which the plaintiff complains, and which was available – not in a general or theoretical way, but in a practical sense – by adducing evidence from persons qualified by training or experience to give expert evidence as to industry standards, instructions, or guidelines;(b)Dr Grigg’s evidence was adopted at paragraph [256] of the Reasons, notwithstanding her Honour’s rejection of his evidence as being of little probative weight;(c)no evidence was adduced from Dr Grigg as to what might be entailed, either as to practicability or comparative risk, in construction and placement of a barrier bifurcating the S-bend athlete passage, nor as to the competing risks of doing so;(d)her Honour did not make any findings as to those matters;(e)the rejection of Van Pooss’ evidence was because it was given “on the fly”;[27] no adequate reasons were given as to what that meant, nor as to why it was rejected;(f)her Honour’s reasons did not take account of the competing risks, namely: (i) the number of athletes who would be funnelled by such barriers was indeterminate; (ii) the available width of the S-bend was only five to six metres; allowing for the width of the barriers (half a metre), each notional passageway would be about 2.5 metres in width; that created the risk of athletes colliding; and (iii) separating the passageway meant that there was a risk that athletes would enter the wrong lane because of confusion over the signs that directed them to one route or another;(g)all that her Honour pointed to was the fact that USM used such barriers elsewhere along the course; and(h)to do so was to engage in impermissible common experience reasoning.[25]Appellant’s outline paragraphs [11]–[18].[26](2005) 221 CLR 161 at [13]–[14]. Also Maloney v Commissioner for Railways (NSW) (1978) 18 ALR 147 at 148–149, 153.[27]Reasons below at [275].Consideration In my view, the submissions for USM cannot be accepted. There was an adequate evidentiary foundation for the finding made by the learned trial judge. USM focussed upon paragraph [281] of the Reasons: set out at paragraph [51] above. However, there were findings made and explanations given earlier in the Reasons which laid the foundation for the ultimate finding as to the use of barriers. Having recorded Van Pooss’ evidence explaining why she considered using a “soft barrier” would increase the risk to athletes,[28] her Honour noted that barriers separating cyclists from athletes were, in fact, used at the same event for the very purpose of reducing risks of injury from collisions.[29] Her Honour rejected Van Pooss’ explanation as to why that was different from separating able-bodied athletes from para-athletes as not particularly compelling, and went on the find that “there are similarities between the position of wheelchairs and runners to the position of cyclists and runners being on the same course at the same time”. Her Honour also rejected Van Pooss’ evidence that it was not operationally feasible to separate the athletes because it would create congestion.[30][28]Reasons below at [162].[29]Reasons below at [165].[30]Reasons below at [166].