By David Slatyer, Partner

Dr Sally James, an able-bodied athlete who collided with a para-athlete during a triathlon on the Gold Coast, successfully sued the event organiser, USM, and was awarded personal injury damages of circa $1m.  USM failed in its appeal to the Queensland Court of Appeal.

The event was open to all athletes, but was changed to a duathlon because of the water conditions – one bike leg between two run legs. As she was finishing her first (run) leg, she was struck by a para-athlete in a wheelchair, and was injured, ultimately suffering brain and psychiatric injuries.

The collision occurred at a point on the course which narrowed, in an S-bend.  At first instance the Judge rejected the submission that there should have been separate events for each type of athlete, but found that if the athletes were to be combined, a reasonable event organiser would identify ‘pinch point’s on the course where the two could intersect and use barriers (such as witches hats) and signs, as was done for cyclists, with para-athletes capable of travelling at 35kph.  The trial judge found USM negligent in this respect.

An alternative claim under the Australian Consumer Law failed (for lack of pleading), however USM relied on the ACL to argue defences.  Finding that it was not common for able-bodied and para-athletes to compete on the same part of the course at the same time, the trial judge was not persuaded that the risk of this collision was obvious to Dr James or that it could not have been avoided with the exercise of reasonable care.

The appeal was fought on the basis of factual findings of the trial judge as to the risk presented by the use of barriers on the course.  USM had submitted that a soft barrier at the pinch points would create a funnelling effect, and increase the risk of collisions between the same types of athletes, but this did not convince the judge. Evidence of the plaintiff’s expert, Dr Grigg, was that the greater risk is of an able-bodied athlete being hit by a wheelchair, due to the speed differential and the sold state of a wheelchair.   The Court of Appeal found that the trial judge duly weighed this evidence and made appropriate findings based on the evidence.