Sports Law Update: Sally James v USM Events Pty Ltd [2022] QSC 63

Articles | Tue 19th Jul, 2022

Every sporting activity is commensurate with risk. This makes it difficult for practitioners who deal with such personal injury claims to identify when an ‘organiser’ of a sporting activity has fallen below their requisite standard of care, or whether the injury complained of fell within the inescapable risks that came with playing the sport. In the recent case of Sally James v USM Events Pty Ltd [2022] QSC 63, the Supreme Court of Queensland has provided important guidance on the duties imposed on those who organise sporting events.

This article shall focus on the questions of duty of care, breach of duty and the role of consent in sporting events. While the principles of Australian and English civil liability differ in some respects, there are common features which no doubt make this case vital reading for all English civil liability practitioners.

Facts

Dr. Sally James was a keen participant in triathlons. In February 2018, she competed in the Gold Coast Triathlon in Queensland, Australia. This triathlon was an all-age event which was open to amateur and elite triathletes of all ages. It was also open to para-athletes. Due to water conditions, the race was changed to a ‘duathlon’ the day before the race. Accordingly, it only involved a run leg, a cycling leg and another running leg. However, this caused the para-athlete wheelchair event to overlap with the running leg of the able-bodied duathlon.

While undertaking the return part of the first run leg, she suddenly heard yelling and swearing. She was then knocked over by a para-athlete in a racing wheelchair. He had collided with her at considerable speed. As a result, Dr. James suffered from a brain and psychiatric injuries, as well as other relatively minor injuries.

She subsequently brought a claim against the Defendant, which had organised the duathlon. Dr. James submitted that USM failed to respond to the risk of injury in failing to delineate several parts of the course to separate the able-bodied athletes from the para-athletes. Her case was that the para-athletes and able-bodied athletes could have been separated relatively easily by some form of barrier or marking.

USM suggested that the only prospect of a collision occurring would be if the athlete/para-athlete did not keep a proper lookout or otherwise acted negligently. They also placed emphasis on the risks inherent in sport. Indeed, in Rootes v Shelton (1967) 116 CLR 383, 385, Barwick CJ noted that “participants may be held to have accepted risk which are inherent in the sport”.

Judgment

Justice Brown held that the risk of harm was foreseeable. A para-athlete in a wheelchair is able to reach speed up to double that of an able-bodied athlete. There was a real risk that some of the para-athletes would share the same course with athletes of varying ages and abilities.

Further, he was satisfied that USM had breached its duty. 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:

1. 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.
2. 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.
3. The duathlon had changed the course the athletes were to compete on. No athlete was familiar with the course.

It was not reasonable for USM  to have the para-athletes start and complete the race prior to commencing the enticer and sprint categories of able-bodied athletes. This was particularly so in circumstances of having to change from a triathlon to a duathlon in a reasonable short-time, when permits as to road closures had already been obtained and athletes had paid their entry fees to compete.

However, Justice Brown held that USM had fallen below their duty of care in not identifying those parts of the course which narrowed, where athletes were likely to bunch up, and erect barriers similar to those used to separate cyclists. The provision of such barriers would be relatively inexpensive. USM had already used such barriers to separate the cyclists to demarcate points of entry and exit.

USM had suggested that Dr James’ injury fell within the risks inherent in the sport. Justice Brown accepted that there will be ‘inescapable risks’ in any sporting event. However, he cited a passage 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.” 

There were inherent risks in any sport, including a triathlon. These risks could simply not be ignored if there was a foreseeable risk of injury. Nor could law necessarily accept the rules or practices of sporting bodies as setting the law’s standard of reasonable care.

Analysis

There are two points which English practitioners should draw on from reading this judgment. First, this case illustrates one of the exceptions to the general rule that a defendant is not liable for omissions. It is well established in both English and Australian law that where a tortfeasor creates a danger as a result of their actions, they owe a duty of care to those who are caught up in that danger. Accordingly, the focus of any claimant’s enquiry ought to be on situations which have either been created or made worse by the relevant tortfeasor.

Second, the judgment of Justice Brown highlights the limits of the defence of consent in claims arising out of sport injuries. The mere fact that a participant in a sport has chosen to undergo some risks does not mean that they assumed any risk which would be associated with that activity. Defendants who seek to run this submission must take care to ensure that the risk complained of can be said to be have been properly assumed by the participant.