USM Events Pty Ltd v James[2023] QCA 71

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA: In 2018, the appellant (USM) was an experienced organiser and operator of triathlon events.
2. [2]
   On 25 February 2018, USM held a triathlon event on the Gold Coast (the GCT). The respondent (James) was one of the athletes. In the GCT, most athletes were able-bodied, and a small number were para-athletes using wheelchairs.
3. [3]
   The day before the event, the sequence was altered because of water conditions. The swim leg was deleted with the consequence that the event became a duathlon.
4. [4]
   The altered course included an S-bend near the completion point of the run legs. Because of the conversion of the event to a duathlon, both athletes and para-athletes had to pass through the S-bend to complete the run legs.
5. [5]
   The S-bend was approximately five to six metres wide. It was created by erecting barriers.
6. [6]
   James, with other athletes running nearby, was negotiating the S-bend at the end of the first run leg when she was struck by a para-athlete in a racing wheelchair (Chaffey). She fell to the ground sustaining brain and psychiatric injuries.
7. [7]
   James sued USM for damages for negligence, and for a breach of s 60 of the Australian Consumer Law,^[1] which was pleaded as an implied term of the contract.
8. [8]
   USM admitted that it owed a duty of care to James to avoid the foreseeable risk of injury to her in relation to the event, though it disputed the extent of the duty.
9. [9]
   The learned trial judge held that USM was liable to pay damages to James because it had breached its duty of care.^[2] Her Honour found that the duty of care had been breached in this way:^[3]

“I therefore find that Dr James has established that USM breached its duty of care in not providing a barrier, either hard or soft leading from the orange concrete path around the ‘s-bend’ as the parties entered Mitchell Park to the end of the S bend to separate the para-athletes in wheelchairs from the able -bodied athletes under s 9 of the CLA with signage to direct the relevant side they were to travel on. My finding would have been the same had I considered the question of breach at common law by reference to the test set out by Mason J in Wyong's case.”

Grounds of appeal

10. [10]
    The appellant appeals only to the extent of challenging the finding of breach of duty of care. The grounds of appeal may be summarised as alleging that the learned trial judge erred by:

    1. (a)
       failing to have any, or any proper, regard to the evidence which the respondent was obliged to adduce to discharge the onus of proving the breach of duty;
    2. (b)
       failing to give adequate reasons as to why the precautions taken by the appellant were not reasonable;
    3. (c)
       finding a breach of duty by reason of the omission to erect hard or soft barriers to separate able-bodied athletes from para-athletes in wheelchairs;
    4. (d)
       finding a breach of duty absent evidence adduced by the respondent as to the practicability of the use of barriers, having regard to the risks inherent in funnelling able-bodied athletes and para-athletes in wheelchairs into a discrete space;
    5. (e)
       finding a breach of duty absent any expert or industry standard evidence; and
    6. (f)
       improperly rejecting the evidence of the witness, Ms Van Pooss, as to the risks associated with the use of barriers to separate able-bodied athletes from para-athletes in wheelchairs.
11. [11]
    As is evident from that summary, the appeal concerned an attack on the factual findings made by the learned trial judge as to the breach of duty by USM.
12. [12]
    For the reasons which follow that appeal must be dismissed.

Uncontested facts

13. [13]
    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]
14. [14]
    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.
15. [15]
    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.
16. [16]
    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.
17. [17]
    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.
18. [18]
    By the time of the GCT, James had been competing in triathlons for almost two years.
19. [19]
    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.
20. [20]
    However, the course had been changed from the original triathlon design to a duathlon just prior to the GCT.
21. [21]
    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.
22. [22]
    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 afinal run leg of five kilometres (which required the running of the two and a half kilometre leg twice).
23. [23]
    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.
24. [24]
    The para-athletes were generally part of the overall wave start,^[5] but started at the beginning of wave starts. With the change to the duathlon, the para-athletes still started using a “wave start”, but the remaining event for able-bodied athletes in the sprint category were started by “rolling starts”.
25. [25]
    According to Van Pooss, the para-athletes in wheelchairs were started earlier to minimise the time they were on the course with the able-bodied athletes.
26. [26]
    The rolling starts would have increased the number of athletes on the course at least at the start, and for a period thereafter. There is a natural dissipation of athletes over time on the course.
27. [27]
    The duathlon involved athletes of varying abilities. The category in which James was competing consisted of 1,271 athletes; however, there were up to 1,462 athletes spread across the course with the para-athlete and enticer categories of athletes having had earlier starts. There were eight para-athletes in wheelchairs involved in the GCT. The 1,271 athletes in the sprint category commenced rolling starts at 8.13 am, with James commencing at 8.33 am.
28. [28]
    The cycling course was separate from the run course.
29. [29]
    USM accepted that, given both the para-athletes and able-bodied athletes had to complete the same two and a half kilometre run leg of the course twice, there was aprobability that some of them would come across each other on the last leg.
30. [30]
    In the area where the incident occurred, the athletes had turned left on an angle from Marine Parade. The course then proceeded for 30 to 40 metres in a straight line, followed by an ‘S’ shaped curve, which narrowed to five to six metres for 30 to 40metres. In this area, there was kerbing on the left, and barriers to the right (the “S-bend”).
31. [31]
    After proceeding through the S-bend, the athletes on the first leg proceeded in a generally straight path to the transition area, whereas those on the final leg had to make a turn to travel towards the finishing line.
32. [32]
    There were barriers to separate the running field and the cyclists as they entered Mitchell Park and the S-bend. There was a combination of witches’ hat cones or crowd control barriers which demarcated key position points separating outbound and inbound runners. There were no barriers or other separation devices positioned on the course to separate para-athletes from able-bodied athletes.
33. [33]
    James fell in the first leg of the run as a result of the collision with a competitor in a wheelchair, Chaffey. Chaffey was an elite para-athlete.^[6] Chaffey was on the final leg of the race, and travelling at significant speed. He was seeking to overtake runners, including James, when the accident occurred. Because of the collision, he flew through the air and crashed into the barriers separating the cyclists from the runners.
34. [34]
    At the point where the collision occurred, the bike riders were separated from the runners and para-athletes by aluminium barriers (which Chaffey had collided with when the incident occurred).

Trial judge’s findings

35. [35]
    There were disputed matters of fact for the learned trial judge to resolve. The findings made as a consequence were not challenged on the appeal. The relevant extra facts are set out below.
36. [36]
    James received a phone call from Van Pooss after sending an email on 25 February 2018. Van Pooss was very apologetic. James enquired after Chaffey, and Van Pooss told her: “He goes very fast. He goes hard. He always comes out of his wheelchair”.^[7]
37. [37]
    Van Pooss sent an email to James on 28 February 2018 stating:^[8]

“As discussed on the phone we had calculated the timing on releasing athletes as a rolling start based on the number we had competing and the time we needed everyone to have completed the course to still meet our road reopening times. This rolling start should have reflected what course conditions would have been as a triathlon format. At some point during the rolling start the time between starting athletes was shortened by a couple of seconds which had a considerable impact to the flow of athletes on to the course and the conditions they then faced out there. Unfortunately by the time we realised there had been amiscommunication amongst the team we were unable to rectify the situation as athletes had already started. Had this shortening of the spacing not occurred the course would have much better catered for the number of athletes and different formats we had racing. … Once again I’d like to apologise to you for your race experience on the Gold Coast.”

38. [38]
    Photos taken from the 2017 competition and video evidence showed para-athletes finishing with able-bodied athletes. Para-athletes competed on the same day as able-bodied athletes in Mooloolaba, Noosa, and the GCTs in 2016–2018.^[9]
39. [39]
    Chaffey was travelling at considerable speed. He was yelling at the athletes in front of him on the S-bend to get out of the way. He collided with the barrier and flew up into the air after colliding with James. He was trying to manoeuvre around the corner as quickly as possible by taking the shortest route to reach the finishing line.^[10]
40. [40]
    The way Chaffey was conducting himself in seeking to overtake James at excessive speed, and seeking to get back to the race line as quickly as possible, was primarily the cause of the collision that subsequently occurred. He should not have conducted the manoeuvre taking account of the safety of athletes around him at the speed he was travelling.^[11]
41. [41]
    The collision occurred in this way:^[12]

    1. (a)
       James was proceeding at a relatively slow pace in the vicinity of 10 kilometres per hour, generally on the left as she approached the S-bend;
    2. (b)
       another runner (Daamen) was travelling at approximately six kilometres per hour;
    3. (c)
       Daamen saw three women who had tri-suits on go past her who she thought were running together about the same speed as her, before she heard and then saw Chaffey, who she estimated she saw approximately 60 metres from the turnaround;
    4. (d)
       James was not one of those women and was running on her own;
    5. (e)
       Daamen was at least 10 metres behind the three women, indicating that they likely were going faster than her because she stated they went past her; they were in her line of vision, but she was not focussed on them;
    6. (f)
       Chaffey came from behind Daamen on his final leg travelling at significant speed and passed her around the wider orange area;
    7. (g)
       Daamen was distracted by Chaffey going past, and turned her head away from the front;
    8. (h)
       there were at least three to four athletes in proximity to James as she approached the bend to leave Marine Parade to enter Mitchell Park, but it is likely that there were a couple more; there were others behind James, and there was a line of people across the road in front of Chaffey; the line of people likely included the three women seen by Daamen with James in front of them;
    9. (i)
       although, by the time of the incident, the athletes in the sprint category had progressed some two kilometres and 300 metres along the course, due to the absence of the swim leg and the rolling staggered start, there was a greater number of athletes at that point, than would otherwise have been at that point, but not of the level that caused James to consider that all could not safely progress around the S-bend, absent Chaffey coming onto that part of the course at that time;
    10. (j)
        as they entered the S-bend, James was running in close proximity to two or three other athletes, but she was not running with them; there was a young woman further out to the right in a swimsuit;
    11. (k)
        Chaffey was swearing and yelling for the runners to get out of the way as he was speeding up to reach the final turn and tried to steer himself through the runners ahead of him, which included James, around the S-bend;
    12. (l)
        the S-bend narrowed from the previous section of the course, but was five to six metres wide up to the aluminium barrier dividing the able-bodied athletes from the bicycle riders;
    13. (m)
        James was travelling to the left, reasonably close to, but not on, the race line; she moved a step to her right in response to Chaffey’s yelling because she was startled and not sure what the yelling was about; she was not running in the centre;
    14. (n)
        James had very little time to react given Chaffey was travelling at least twice the speed at which she was running;
    15. (o)
        Chaffey did not slow down, and may have sped up to get past James and the other athletes in proximity to her. He could not safely overtake James at the speed he was travelling;
    16. (p)
        as Chaffey sought to pass James, he clipped or hit James on her right leg with his rear left wheel; he was passing James as close as possible to return to the race line as quickly as possible, to minimise the distance he had to travel, and to avoid the girl in the swimsuit who was further over to the right; and
    17. (q)
        James spun around and fell to the ground and hit her head, while Chaffey lost control, went up the barrier, and fell to the ground.
42. [42]
    Van Pooss and USM knew that:^[13]

    1. (a)
       there were risks that slower athletes might be knocked over by faster heavier athletes and injured;
    2. (b)
       there was a risk of injury if para-athletes in wheelchairs were on the course at the same time as able-bodied athletes, and that Van Pooss sought to minimise the time they were on the course at the same time to minimise that potentially occurring; and
    3. (c)
       the risk of injury to runners if hit by a cyclist was one of the reasons they are separated in triathlons.
43. [43]
    USM’s state of knowledge and actions otherwise were:^[14]

    1. (a)
       USM was aware of the risk of injury from a para-athlete colliding with an able- bodied athlete when they were on the course at the same time;
    2. (b)
       USM took steps to reduce that risk by seeking to start para-athletes earlier so as to minimise the time they were on the course at the same time;
    3. (c)
       USM did not provide for para-athletes to compete separately from the able-bodied athletes due to their events operating on a principle of inclusiveness;
    4. (d)
       no specific instructions were given in relation to steps that were to be taken by either the para-athletes or able-bodied athletes to minimise the risk of collision between them while competing on the course;
    5. (e)
       USM did separate other categories of competitors such as the children for safety and other reasons; cyclists were separated from the runners in triathlons operated by USM, due to safety concerns of a collision occurring between an able-bodied athlete and a cyclist, as well as different racing conditions;
    6. (f)
       while a barrier at the S-bend after the orange concrete would have narrowed the area for the able-bodied athletes and para-athletes, the funnelling of the athletes would have left sufficient room for each to safely traverse the S-bend; and
    7. (g)
       that USM knew the practice of athletes – at least those who were competitive – was to adopt the shortest approach in the last leg to reach the finishing line; this would have included Chaffey.
44. [44]
    When defining the risk and its foreseeability, the learned trial judge found:^[15]

“[212]Given a para-athlete in a wheelchair is able to reach speeds up to double that of an able-bodied athlete, there was, even though the para-athletes in wheelchairs were to start earlier than the sprint athletes, a real risk that some of the para-athletes, such as Mr Chaffey, would reach the final run leg of the course and share the same course with athletes of varying ages and athletic abilities on their first leg, some of whom would be running at aslow pace, like Ms Daamen. As there had been the rolling starts that day which had been shortened to 2–3 seconds for some period rather than 5 seconds, USM knew or ought to have known that there was likely to be more athletes on the first run leg who were more concentrated than they otherwise would have been even after there had been some dispersing by the two kilometre and three hundred metre mark of the run course.

[213]USM knew or ought reasonably to have known all of these matters given it had changed the course to the duathlon and was aware of the risks from para-athletes in wheelchairs colliding with able-bodied athletes. Ms Van Pooss also acknowledged that para-athletes were started earlier than able-bodied athletes to minimise the time the two were on the course at the same time due to the risk of collision and injury as athletes would not always follow the rules. USM was aware of the speed that para-athletes in wheelchairs could reach. They were at least aware of Mr Chaffey as a hard competitor who competed at the elite level and travelled fast. USM knew para-athletes could gain points from the competition and were competing for rankings. Consistent with its experience with all athletes who were competitive and seeking to achieve their best result such as Mr Chaffey, USM would have been aware that athletes would seek to hug the race line, including at the s-bend, and seek to overtake athletes in front of them. They further knew or ought to have known that athletes were likely to be more bunched up at narrower parts of the course such as the S Bend which would increase the risk of contact between para-athletes in wheelchairs and able-bodied athletes.”

45. [45]
    Then, assessing what steps should have been taken to obviate the risk, her Honour said:^[16]

“[235]USM knew, as was the fact, that the course included:

1. (a)
   para-athletes in wheelchairs included para-athletes such as Mr Chaffey who would go hard and very fast when he raced and was seeking to achieve a competitive time and prepared to push himself to the extent of going out of his chair.

2. (b)
   that there was likely to be a greater number of athletes on the run leg than might be normally experienced in atriathlon due to the run leg being the first leg with astaggered start;

3. (c)
   that the s-bend was narrower than the other parts of the course; and

4. (d)
   that there were athletes of varying abilities participating in the event, including those who were slow runners.”

46. [46]
    The learned trial judge accepted part of the evidence of Dr Grigg, an expert engineer (though not with relevant experience in triathlon course design, operation of the event, and the logistics involved). It was that “one way of addressing the risk is to provide barriers separating the able-bodied athletes from the runners as was done for cyclists and another is to have wheelchair athletes start and finish before other athletes”.^[17]
47. [47]
    As to the seriousness of the harm that might be caused, her Honour found that there was a risk of “severe injury”.^[18]
48. [48]
    The learned trial judge summarised the competing views about the applicability of separating the able-bodied athletes from the para-athletes. That included:^[19]

    1. (a)
       Van Pooss’ evidence that she believed the erections of barriers between the two categories of athletes, and in particular at the S-bend, would be hazardous because it would create a funnel and crowd able-bodied athletes together;
    2. (b)
       Dr Grigg’s opinion that maintaining a separate lane for the para-athletes in wheelchairs was the simple solution to overcoming the problem of able-bodied athletes and para-athletes being on the course at the same time; and
    3. (c)
       it would be a considerable logistical exercise to extend the times of the road closures, and even more so to extend the run leg to be a single five-kilometre length rather than completing two legs of the two and a half kilometre circuit; in the circumstances in which the incident occurred, it would have been adifficult exercise which was unlikely to be able to bear fruit in the time available.
49. [49]
    Her Honour then expressed her finding as to what should have been done, in these terms:^[20]

“However, for the reasons set out above, I find it would not be a significant burden either in terms of cost or logistically difficult for USM to provide barriers, particularly if confined to the ‘pinch point’ where the s-bend was located. Given the width of 5–6 metres I for some 20–30 metres in length it would not have been unduly onerous and USM had the relevant means and expertise to implement such barriers given it had done so elsewhere.”

50. [50]
    The learned trial judge explained why she rejected the evidence of Van Pooss as to the proposition that hard barriers or cones could be erected to separate the athletes:^[21]

“Ms Van Pooss rejected the proposition that a hard barrier or cones could be placed on the course, as she considered it would create greater danger to able-bodied athletes due to the funnelling effect. While asolution which substituted one danger for another danger would not be a reasonable precaution that would be taken by a reasonable person, Ifound her answer was given on the fly and do not accept her evidence in this respect for the reasons outlined above.”

51. [51]
    The learned trial judge went on the explain why that finding was made:^[22]

“[281]I do however consider that a reasonable person in the position of USM would have identified those parts of the course which narrowed and where athletes were likely to bunch up and have erected barriers similar to those used to separate cyclists or witches’ hats with signs directing the athletes and para-athletes as to the side which they were to separate them, given the risks of collision in the circumstances outlined above. In the present case the evidence supports that was the area described as the s-bend. That is supported by the fact that:

1. (a)
   the provision of barriers with signage to direct the athletes and para-athletes as to which side they were to go was arelatively inexpensive and simple exercise. USM already used such barriers to separate the cyclists and witches’ hats to demarcate points of entry and exit. While the proposed delineation would in this instance only be for part of the run leg, the fact that such barriers were otherwise used to keep athletes on the correct course supports the fact that USM had the expertise and means to use such barriers at what is described as the “pinch points”;

2. (b)
   although the risk of harm was not as high as in relation to para-athletes in wheelchairs and other athletes on the run leg compared to cyclists and other athletes on the run leg, there were similarities because of the potential speed differential between para-athletes in wheelchairs and other athletes on the run leg and both involved the use of asolid machine;

3. (c)
   where there was an overlap and the para-athlete was travelling at speed towards the finishing line where the s-bend was only some 100 metres from the turn off from the finishing line, the para-athlete could be travelling up to twice the speed of able-bodied athletes. If the para-athlete was travelling at speed it would give little time for an able-bodied athlete to move when the para-athlete came from behind and if they were not travelling on the race line and the para-athlete would likely to seek to manoeuvre around them;

4. (d)
   there was a width of five to six metres at the s-bend which was of a sufficient width to have separation barriers given that although that I have found there were more athletes than normal, it was likely to be only four to six together on the bend at the one time, which could be accommodated by a barrier at the half way point. As the evidence of Ms Van Poos [sic] is that the racing wheelchairs were 1.5 metres long it is unlikely that they would be greater than 2 metres wide; and

5. (e)
   while Ms Van Pooss stated that it was not operationally feasible to provide barriers and it would have a funnelling effect for the able-bodied athletes which may increase the risk of injury, I did not find that evidence persuasive. Barriers were used to separate cyclists and crowds on the course. They were also used in parts of the course where needed rather than extending over the whole course. USM was experienced in using such barriers and delineation markings. Although I consider that there were more athletes concentrated together in close proximity to each other than normal, given the staggered rolling start, the evidence indicates that the numbers were in the high single digits by the time the parties reached the s-bend. Given the width of the corner was six metres, a barrier dividing the two to separate the para-athletes in the wheelchairs should have provided sufficient width for the athletes to safely get around the corner without significantly increasing the risk of able-bodied athletes colliding. While that may have limited the ability of athletes, particularly para-athletes to pass, it would have been for only a short part of the course, and they would have still had approximately a 100 metre straight to reach the finishing line.”

52. [52]
    Having made that finding, the learned trial judge made some findings that excluded the reasonableness of doing nothing more than had been done. Those findings included: (i) USM could not reasonably rely on para-athletes to self-regulate their speed;^[23] and (ii) USM could not rely on athletes obeying the Rules or protocols, or do nothing to control Chaffey’s actions.^[24]
53. [53]
    That was the basis for the ultimate finding expressed in paragraph [285] of the Reasons: see paragraph [9] above.

USM’s contentions

54. [54]
    Mr Douglas KC, who appeared with Mr Collins of Counsel for USM, attacked the learned trial judge’s finding that USM breached its duty of care by not taking the reasonable step of putting barriers in the area of the S-bend to separate the able-bodied athletes from the para-athletes. The central contention was that her Honour did so in error, on the basis of her own reasoning without the assistance of some expert evidence.
55. [55]
    The essential steps in the submission were that:^[25]

    1. (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;
    2. (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;
    3. (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;
    4. (d)
       her Honour did not make any findings as to those matters;
    5. (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;
    6. (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;
    7. (g)
       all that her Honour pointed to was the fact that USM used such barriers elsewhere along the course; and
    8. (h)
       to do so was to engage in impermissible common experience reasoning.

Consideration

56. [56]
    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.
57. [57]
    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.
58. [58]
    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]
59. [59]
    Noting that USM separated cyclists from runners in triathlons because of the risk of collision, her Honour found that, while a barrier at the S-bend would have narrowed the area for the able-bodied athletes and para-athletes, her Honour was “not persuaded the funnelling of the athletes would not have left sufficient room for each to safely traverse the s-bend”.^[31]
60. [60]
    Having noted the evidence of Dr Grigg that able-bodied athletes and para-athletes could have been separated into different lanes,^[32] and having expressed that his evidence in that regard “is of some relevance”, her Honour explained that she did not place significant weight upon that opinion as it was “not a matter which requires expert opinion”.^[33] When her Honour then reviewed much the same evidence from Dr Grigg,^[34] her Honour expressly accepted Dr Grigg’s evidence in so far as it was that one way of addressing the risk is to provide barriers separating the para-athletes in wheelchairs from the runners as was done for cyclists, and another is to have wheelchair athletes start and finish before other athletes.^[35] However, her Honour expressed the view that whilst that evidence “gives some weight to the plaintiff’s case”, she did not find his evidence of “great assistance in the resolution of the case”. In context, that was plainly on the basis that resolution of the issue did not require expert opinion.
61. [61]
    The foregoing matters provided a basis for finding that barriers would not have significantly increased the risk of collisions between able-bodied athletes and para-athletes.
62. [62]
    Reliance was placed by the appellant on Lynch v Shooters Saloon Bar Pty Ltd^[36] for the proposition that, in cases such as the present, the court must have regard not only to the remedial step, but also the risks associated with that step. So much may be accepted. In my view, it is plain that the learned trial judge did so by following the steps set out below in her analysis.
63. [63]
    USM provided barriers for separating cyclists from runners in the same event to meet the risk of collision between cyclists and runners.^[37]
64. [64]
    Her Honour accepted that there are similarities between the case of cyclists mixing with runners and the case of runners and para-athletes, but found that the risk was not as high, given the number of para-athletes with wheelchairs competing, and that cyclists can reach higher speeds.^[38]
65. [65]
    Dr Grigg’s evidence of speed and momentum, the potential effect of any collision between a solid object such as a wheelchair and an able-bodied athlete, and the risks posed was of some relevance, and her Honour gave that evidence some weight.^[39]
66. [66]
    Dr Grigg’s opinion was that separating the competitors – so that the able-bodied athletes and para-athletes in wheelchairs were not on the course at all together, or at least that they be separated into designated lanes – was the only way to avoid the type of situation where a runner suddenly stepped into the path of an overtaking para-athlete in a wheelchair.^[40] That opinion was of some relevance, but her Honour did not give it significant weight because it was not a matter for expert opinion.^[41]
67. [67]
    Dr Grigg’s evidence was accepted in three relevant respects:^[42]

    1. (a)
       while there is a risk of runners clipping each other when they overtake, cyclists colliding or someone hitting another while swimming, there is a point of difference with a para-athlete because of the additional machinery in terms of the wheelchair;
    2. (b)
       the risk of being knocked over by a wheelchair is greater because of the differential speed, and has some similarities to being knocked over by a cyclist; and
    3. (c)
       one way of addressing the risk is to provide barriers separating the able-bodied athletes from the runners as was done for cyclists, and another is to have wheelchair athletes start and finish before other athletes.
68. [68]
    The magnitude of the risk of harm if there was a collision between a wheelchair para-athlete and a runner was potentially serious.^[43]
69. [69]
    Even if athletes were abiding by the protocols and rules, given the competitive environment, there was a significant risk that misjudgements would occur.^[44]
70. [70]
    In the circumstances in which the incident occurred, it would have been a difficult exercise to extend the times of road closures, or to make it one run leg of five kilometres, and that was unlikely to be able to bear fruit in the time available.^[45]
71. [71]
    The probability that harm would occur because of a collision of the type occurring was reasonably low.^[46]
72. [72]
    Given that a wheelchair is a solid structure which travels where the para-athlete is travelling at a lower level than the able-bodied athlete, the risk is not the same as that of able-bodied athletes colliding, or an able-bodied athlete tripping and falling. The speed at which they would collide would likely be greater given the greater speed capacity of a wheelchair (although that would vary with the strength of the athlete concerned), and the force of the impact would likely be greater than two able-bodied athletes colliding or an able-bodied athlete tripping or falling. There was a risk of asevere injury.^[47]
73. [73]
    Taking steps to have the para-athletes in wheelchairs, of which there were eight in number, compete separately from the events at different times would have cost implications because of the need to extend the time of road closures by approximately 40 minutes. Further, the logistical exercise of extending the event would also be not possible in the circumstances. However, for the reasons set out above, it would not be a significant burden, either in terms of cost or logistical difficulty, for USM to provide barriers, particularly if confined to the “pinch point” where the S-bend was located. Given the width of five to six metres which lasted for some 20 to 30 metres in length, it would not have been unduly onerous, and USM had the relevant means and expertise to implement such barriers given it had done so elsewhere.^[48]
74. [74]
    The risk of collision was recognised as being at its highest at the start of the event.^[49]
75. [75]
    Van Pooss’ evidence regarding why she rejected the proposition to separate para-athletes in wheelchairs and able-bodied athletes by hard barrier or cones, namely that “it would create greater danger to able-bodied athletes due to the funnelling effect”, was not accepted by the learned trial judge as being “given on the fly”.^[50] By the phrase “on the fly”, her Honour was logically referring to the fact that the evidence given in this respect by Van Pooss was not referred to in her affidavit, and only raised on cross-examination. The use of the phrase indicates that her Honour considered this evidence to be non-persuasive,^[51] and an unconsidered automatic reaction to a path of cross-examination. The phrase itself is synonymous with “on the run”, and plainly discharged her Honour’s obligation to give reasons as to why particular evidence is accepted or rejected.
76. [76]
    Based on her Honour’s acceptance of Dr Grigg’s evidence (as to which, see paragraph [67](b) above), her Honour found that “the risk of serious injury posed by a collision between a para-athlete in a wheelchair and able-bodied athlete is likely to be greater given the potential speed differential between the para-athlete and the able-bodied athlete, and that the wheelchair is a solid structure”.^[52]
77. [77]
    USM was aware of the risks of collision between para-athletes in wheelchairs and able-bodied athletes. USM was also aware that the change to the course meant that those two categories of athlete would be on the course at the same time, and encounter each other where the course narrowed. The change in the course presented an increased risk.^[53] It was not possible to make those changes and then extend permits to let the event run in two completely separated categories.^[54]
78. [78]
    The risk was not significantly increased by using barriers to separate the two categories:^[55]

“Barriers were used to separate cyclists and crowds on the course. They were also used in parts of the course where needed rather than extending over the whole course. USM was experienced in using such barriers and delineation markings. Although I consider that there were more athletes concentrated together in close proximity to each other than normal, given the staggered rolling start, the evidence indicates that the numbers were in the high single digits by the time the parties reached the s-bend. Given the width of the corner was six metres, abarrier dividing the two to separate the para-athletes in the wheelchairs should have provided sufficient width for the athletes to safely get around the corner without significantly increasing the risk of able-bodied athletes colliding.”

79. [79]
    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.

Conclusion

80. [80]
    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.

81. [81]
    FLANAGAN JA: I agree with Morrison JA.
82. [82]
    HENRY J: I agree with the reasons of and the orders proposed by Morrison JA.