A failure to plead out the material facts giving rise to an ACL due care and skill guarantee in relation to the supply of services has cost a triathlete the chance of recovery of substantial additional damages for injuries resulting from a fall while competing in the Gold Coast Triathlon.
Sally James – a doctor of psychology – was competing in the February 2018 all-ages event that started from Broadwater Parklands at Southport.
With staggered start times according to age groups, the participants included several wheelchair para-athletes.
The swim leg of the event was scratched at the last minute– apparently due to fears of contamination in the Southport Broadwater – changing it to a duathalon.
Whether or not by error on the part of the organiser, some para-athletes were on their final leg when Dr James’ group was starting out on the same part of the course.
As she arrived at a turn towards a transition area, Nigel Chaffey – an elite para-athlete – approached from behind at high-speed yelling for others to make way as he raced to turn in a different direction to the nearby finish line.
He clipped her right leg his rear left wheel, causing her to fall and apparently strike her head while he was simultaneously propelled out of his chair into a guard rail.
James gradually gained her feet and ran on to the finish. She then spoke to her coach and other participants before driving back to her home on the Sunshine Coast.
Dr James that day emailed a complaint to Triathlon Australia who conceded that the last-minute change from a triathlon format to that of a duet and an error in start times had left the potential for collisions between running athletes and the few who were in wheelchairs.
The brain injury and tinnitus from the head strike plus PTSD from the shock of the incident were enough to cause her to cease practice as a clinical psychologist shortly after. She was declared bankrupt in November 2018.
Her compensation claim came before Justice Susan Brown in the Supreme Court of Queensland for eight days – including a Saturday – in May 2021.
Although the psychologist’s “stream of consciousness” evidence – including that given under heavy cross examination – was largely accepted, Her Honour found “some exaggeration and some minor untruths”.
Having satisfied herself as to what had occurred, Her Honour went on to consider the claimant’s contention that the organisers owed her compensation for her injuries pursuant to the Australian Consumer Law.
Justice Brown upheld the insurer’s objections that the claim for ACL relief had not been appropriately pleaded.
First, although the Statement of Claim referenced section 60 and the guarantee that services would be provided with “due care and skill”, none of the prerequisites – ie the supply of services; that they were supplied in trade or commerce; that they were acquired by her as a consumer – had been alluded to.
Second, the pleading erroneously asserted that the effect of s 60 was to imply a due care and skill warranty as a term of the supply of services when in fact the provision creates a standalone statutory guarantee.
Third, and equally as fatally, the pleading failed to reference the cause of action on which it relied for the relief in respect of the alleged section 60 guarantee breach.
Subsequent submissions sought to rely on both section 236 and 267 so as to recover damages on a common law basis, when in fact the only relief available for a s 60 failure to fulfil a due care and skill guarantee is under section 267. Neither section was however referenced in the pleading.
Fourth, no attempt was made to seek damages “beyond that limited by the CLA or gratuitous care” thereby overlooking that ACL s 267 (4) specifically allows – in respect of a breach that cannot be remedied – recovery of damages for any loss or damage suffered by the consumer if it was reasonably foreseeable.
The section “provides the basis for the claim for damages,” Her Honour observed.
“Given my finding that Dr James has not pleaded a cause of action and claim for damages under s 60 and s 267 of the ACL, I do not find the claim established,” she ruled.
Fortunately her Honour was prepared to accept – against the position advance by the event organiser’s insurer – that the allegations of negligence had not been abandoned.
The negligence claim however exposed the plaintiff to the liability defences and damages distortions of the Civil Liability Act from which she would have otherwise been protected had the ACL claim been fit to pursue.
Addressing CLA ss 9 & 10, Justice Brown found the risk and probability of injury were low, the potential seriousness of the harm was high and a reasonable event organiser would have taken precautions.
The triathlete adduced evidence from engineer Frank Grigg – which was accepted by the judge – that the risk of injury could have been avoided inexpensively by the placing of cones or other markers on the congested area where the fall occurred so as to separate para-athletes from running athletes.
Barriers had after all been used in other parts of the course.
The plaintiff was then put to repelling the defences available to the event organiser under sections 13 & 14.
The risk of contact with a para-athlete in a wheelchair coming from behind at speed on a narrow bend of the course – the court ruled – was not a risk that would have been obvious to Dr James.
Nor was it an inherent risk. Nor did any negligence on the runner’s part contribute to the accident.
Justice Brown accepted the athlete sustained a mild traumatic brain injury and suffers from PTSD that gives rise to cognitive difficulties. An ISV of 8 was allowed for the dominant brain injury which – with an uplift of 8 – equated to just $29k for general damages.
Rejecting the loss of income ask at $250k per year, the court adopted $150k (less expenses of $30k) as the appropriate annual income figure to yield past loss of income at $275k and $658k for the future, after applying a 30% discount.
The total award of $1.1 mil was left subject to an NDIS refund of $177k even though none of the sums paid for by NDIS were found to have been recoverable against the defendant.
The judgement contains many useful observations as regards the complex interaction of various ACL provisions and the leading cases relating to statutory guarantees.
Categories: sport injury