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


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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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