The decision to award more than $1 million in damages to a Sunshine Coast triathlete, for injuries she suffered after being struck by a wheelchair athlete during an event on the Gold Coast five years ago, has been upheld.
Sunshine Coast woman Sally James was completing a running leg of the Luke Harrop Memorial at Southport in February 2018, when she was clipped on a corner by world champion para-athlete Bill Chaffey, who was travelling in a wheelchair at speed. Dr James was knocked backwards, striking her head on the ground. Her injuries included traumatic brain injury, whiplash, concussion and Post-Traumatic Stress Disorder.
Event organiser USM Events had changed the event to a duathlon the day before, due to unsuitable water conditions, and the swim leg had been replaced with a second run leg. There were 1462 athletes competing, including eight para-athletes in wheelchairs, and USM attempted to minimise the time the two types of athletes were on the course at the same time by starting the para-athlete events earlier.
Dr James sued USM, claiming damages for negligence and as a result of a breach of Section 60 of the Australian Consumer Law (that services must be provided with due care and skill), which was an implied term of the contract.
She argued that USM was aware or ought to have been aware of the risk of harm to athletes by conducting the race for both athletes on foot and para-athletes in wheelchairs on the same course at the same time.
USM did not dispute that it owed Dr James a duty of care, but disputed the extent of the duty owed. USM raised defences including obvious and inherent risk, and argued Dr James’s damages should be reduced for contributory negligence. It also disputed what injuries were suffered by Dr James as a result of the incident and the effect they had had on her ability to work.
Justice Brown delivered her decision in Sally James v USM Events Pty Ltd  QSC 63 on 14 June 2022 in the Supreme Court in Brisbane.
“I have found a breach of duty has occurred due to the failure of USM to erect barriers to separate the para-athletes from the able-bodied athletes leading from the orange concrete path around the s-bend, as the parties entered Mitchell Park around the s-bend,” Justice Brown stated.
“I am satisfied that it is more probable than not that if the able-bodied athletes and the para-athletes in wheelchairs had been separated, Mr Chaffey, notwithstanding that he was travelling at significant speed, would not have been in the position of trying to overtake the able-bodied athletes and the harm would not have occurred.
“I consider that if there was a barrier with a clear direction as to which way para-athletes were to go and which path able-bodied athletes were to follow, it is likely that each category of athlete would have followed the direction.
“The breach of duty, namely the lack of separation of the athletes, was a necessary condition of the occurrence of harm to Dr James.”
Justice Brown also ruled that USM had not established contributory negligence on the part of Dr James.
“While I am satisfied it is likely she was startled and stepped to the to the right rather than keeping to the left when Mr Chaffey called out, contrary to the protocols, given it was a sudden response to Mr Chaffey’s calling out where he was coming behind her at speed, it was a reaction in the moment and I do not find that a reasonable person in her position would have acted differently or had time to reasonably look behind to make a judgment as to how she should respond,” she stated.
“I am therefore not satisfied that she failed to take reasonable care of her own safety.”
In assessing damages, the court considered the impact of the incident on Dr James, who was forced to close her clinical psychology practice and declare bankruptcy. The total damages of $1,062,351 included $658,028 for future economic loss and impairment of earning capacity; $274,812 for past economic loss; and $65,000 for past special damages.
The parties were ordered to provide a draft order for the payment of damages, and submissions as to costs, within 14 days of the decision.
USM appealed the decision (USM Events Pty Ltd v James  QCA 71), challenging the finding of breach of duty of care. The six grounds of appeal included alleging that the trial judge erred by: finding a breach of duty by reason of the omission of barriers to separate able-bodied athletes from para-athletes in wheelchairs during the event; finding a breach of duty absent evidence adduced by the respondent as to the practicability of the use of barriers; and finding a breach of duty absent any expert or industry standard evidence.
In their decision handed down this year, Justices Morrison, Flanagan and Henry dismissed the appeal, ruling there was “an adequate evidentiary foundation” for Justice Brown’s finding. They ordered USM to pay Dr James’s appeal costs.