James v USM Events Pty Ltd

This was a particularly complex recent personal injuries matter. The plaintiff suffered brain, psychological, and physical injuries while competing in a modified duathlon organised by the defendant in which para-athletes and able-bodied athletes were competing together. She sought damages in negligence and breach of contract relying upon s 60 Australian Consumer Law which was pleaded as an implied term of the contract. Whilst the plaintiff was successful in establishing negligence, the court held that she had not pleaded a cause of action and claim for damages under s 60 and s 267 Australian Consumer Law and accordingly that claim was not established. The judgment brings into focus the fact that event organisers may be held liable for injuries which might normally be considered to have a low probability of occurring. 

Brown J

14 June 2022

Prior to the event the plaintiff had worked as a psychologist. [30]–[32]. Whilst competing in the duathlon as a runner, she was startled by another participant swearing and yelling, and subsequently knocked over by that same participant, a para-athlete in a racing wheelchair coming around an s-bend. [1], [129]. The scope of the injuries which were alleged to have been suffered by the plaintiff as a result of the collision, and the effect upon her ability to work were in dispute. [4].

Risk of harm

The risk of harm was identified by her Honour as being:

“the risk of injury as a result of contact between an able-bodied athlete in the position of [the Plaintiff] and a para-athlete on a wheelchair capable of travelling up to 35 kilometres per hour being at the same part of the course where the course narrowed concurrently.” [203].

Whilst her Honour expressed reservations about the lack of proper identification of the risk of harm in the further amended statement of claim [193], she was satisfied that it had been articulated sufficiently both by the conduct of the plaintiff’s case and in her Amended Reply (see Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65). [204].

Likelihood

The Civil Liability Act 2003 requires that risk be both reasonably foreseeable but not insignificant and in this instance her Honour was satisfied of those matters. [211]. In her view, a reasonable person in the defendant’s position, knowing of the matters unique to a duathlon attended by both para-athletes and able-bodied athletes, would have considered that the risk of harm was reasonably foreseeable and not insignificant, viewing the matter prospectively: see PWJ1 v The State of New South Wales [2020] NSWSC 1235 at [76] and [80]–[81]. Those aspects included the speeds a wheelchair is capable of and the probability that both para-athletes and able-bodied athletes would cross paths on the course at the same time. [212], [213].

Rules of the competition

In relation to the risk of harm, the defendant sought to argue that had the rules and protocols in place been adhered to by the para-athlete in the racing wheelchair and the defendant, the incident would not have occurred. [225]. Those rules expressly provided that athletes be responsible for their own safety and the safety of others. [226]. In addition, there was a protocol that athletes keep left unless overtaking. [231]. Essentially, the defendant argued that the para-athlete had behaved in a reckless manner which was outside of its control. [229].

The plaintiff submitted that the rules and protocols which applied to the duathlon were simply inadequate to meet the risk which presented and further precautions were needed. [234]. The plaintiff relied upon Trevali Pty Ltd (trading as Campbelltown Roller Rink) v Haddad (1989) Aust Torts Reports 80-286 at 69,032, wherein it was stated that:

“Where a person brings together a crowd of people and organises their participation in activities in which injury is apt to occur, he will ordinarily owe to those people a duty in respect of the dangers which have been created. There are some activities in which there are dangers which are necessarily involved in what is done and which, if the activity is to be carried on, cannot be removed or reduced.”

Her Honour noted that rules which govern participation in sport are not necessarily conclusive of the content of the duty of care owed: see Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, [28], per Gleeson CJ (with whom Hayne J agreed); Rootes v Shelton (1967) 116 CLR 383, 389, per Kitto J. Here, the reality was that whilst specific rules were in place stating that athletes were to be responsible for their own safety, having regard to the speed with which a para-athlete in a wheelchair can travel, those rules afforded scant protection and did not prevent the claim. [238]

Duty of care and breach of duty

In determining whether there is a breach of a duty of care the common law recognises “a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible” see Sutherland Shire Council v Heyman (1985) 157 CLR 424, 478 per Brennan J. Here, her Honour found that the defendant had breached its duty of care by failing to take precautions such as erecting a barrier in order to separate the para-athletes in wheelchairs from the able -bodied athletes and displaying signage notifying participants as to which side they were to travel on. [285]. Those measures would have been helpful in terms of addressing the “potentially serious” [247] magnitude of risk.

Causation

Since her Honour ultimately found that the Australian Consumer Law case was not properly raised, causation fell to be determined pursuant to the modified test in s 11 Civil Liability Act 2003. It was necessary that she be satisfied that the plaintiff would not have suffered the particular harm “but for” the defendant’s negligence. In her view, noting that the defendant had breached its duty of care by failing to separate the athletes, which was a necessary condition of the occurrence of harm to the plaintiff, causation was made out. [380], [381].

Was it an obvious or inherent risk or was the plaintiff contributorily negligent?

Her Honour did not accept that fault lay with the plaintiff in terms of the collision being an obvious risk (s 13 Civil Liability Act 2003), an inherent risk (s 16 Civil Liability Act 2003), or caused by her own contributory negligence (s 23 Civil Liability Act 2003). Specifically she found as follows:

1. Whilst the plaintiff was “an intelligent and fairly experienced competitor” it was not the case that she should have known that para-athletes in wheelchairs and hand cycles were on the course. [360];
2. Since the evidence did not reveal that it was standard practice for para-athletes and able-bodied athletes to be on the same part of the course at the same time, the risk of the collision in those circumstances did not amount to an inherent risk of the event (i.e. one over which no party has control). [374];
3. It was unlikely that a reasonable person in the plaintiff’s position would have acted differently or had time to assess her surroundings and as such she was not satisfied that she failed to take reasonable care of her own safety. [385].

Claim based on the consumer guarantee in s 60 Australian Consumer Law

The plaintiff sought to claim under s 60 ACL on the basis that the service of providing an event was not rendered with due care and skill, which was contrary to the implied guarantee in her agreement with the defendant. [290]. Section 60 of the ACL provides that:

“60   Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.”

The court concluded that the plaintiff had failed to plead a proper cause of action under s 60 of the ACL and failed to articulate a claim for damages under the ACL at all. [341].

The court concluded that the plaintiff had failed to plead a proper cause of action under s 60 of the ACL and failed to articulate a claim for damages under the ACL at all. [341]. In addition, her Honour clarified that as to the consumer guarantee – 

1. this is not incorporated as an implied term of a contract but is instead a stand alone statutory guarantee; [296]
2. damages are unable to be properly sought under s 236 ACL and would instead need to be claimed under s 267 ACL. Section 236 of the ACL provides for the recovery of damages where a person has suffered loss or damage as a result of conduct which contravenes Chapters 2 or 3 of the ACL. Section 15 ACL specifies that a breach is not established merely due to the application of inter alia s 60. Accordingly, where conduct results in a failure to comply with a consumer guarantee it is not deemed to contravene a provision of the ACL. As such s 236 of the ACL would not apply. Section 267 of the ACL provides the right to take action for a failure to comply with a guarantee which is unable to be remedied, and loss or damage where it was reasonably foreseeable the consumer would suffer same as a result of the failure, thus providing the correct basis for the claim for damages. [348].

Quantum

Two aspects of the quantum were particularly complex – whether a charge that might be issued by NDIS could be claimed as a head of loss and whether past care (and other claims) could be assessed from care provided by NDIS. With respect to the former, her Honour was loathe to include an amount for an NDIS charge in the damages in the absence of any authority or sufficient evidence of a claim being made by the NDIA. [557], [558].

Regarding the use that could be made of the amount paid to the plaintiff under NDIS to assess past care and other claims, her Honour noted that the value of her annual plan amounted to $216,264.47. The difficulty was that the plan is self managed, and it is entirely discretionary as to how it is expended. It follows that the mere fact money is spent on certain items does not establish that they are causally linked to the injury suffered. [534]. As such her Honour declined to adopt the amount expended under the NDIS in the absence of an independent assessment of needs, commenting:

“The proper approach should have been for Dr James to prove the need for services or expenses which are reasonably necessary as a result of the injuries suffered, not to ask the court to assume that the assessment by the NDIA is the value of the needs of her as a result of her injuries that have been rendered reasonably necessary for her condition.” [537].

Disposition 

Judgment was entered for the Plaintiff in the sum of $1,062,351.20 (pending confirmation of her Honour’s calculations within fourteen days by the parties).

A Jarro