Plaintiff Seeks Damages for Injuries From Duathlon

Australian Constitution s 109 - provides that ACL is a Commonwealth law which will prevail over any state law to the extent of any inconsistency.

Competition and Consumer Act 2010 (Cth) s 87ZA - provides that a court must not, in a proceeding to which this Part applies, order the payment of interest on personal injury damages for:

(a)  non-economic loss; or

(b)  gratuitous attendant care services for the plaintiff; or

(c)  loss of the plaintiff's capacity to provide gratuitous attendant care services to other persons.

Civil Liability Act 2003 (Qld) s 13 - provides that an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

National Disability Insurance Scheme Act 2013 (Cth) s 104 - pursuant to which the CEO by written notice may require the participant or prospective participant to take action specified to claim or obtain compensation.

Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552 - provides that voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of a duty of care in any other participant or in any person in any way involved in or connected with the activity. 

Collins v Clarence Valley Council [2015] NSWCA 263; (2015) 91 NSWLR 128 - where McColl JA (with whom Macfarlan and Emmett JJA agreed) considered that there was much to be said that the risk in question is the same as that identified for duty of care purposes, given if the defence is established, the defendant will not be found to have owed the plaintiff a duty of care. 

Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75; (2009) 254 ALR 661 - provides that a party’s case is defined by its pleading and the parameters of the contest as they were defined by the parties’ conduct of the trial. 

Felhaber v Rockhampton City Council [2011] QSC 023 - provides that the statement that a risk is foreseeable does not suggest anything about the probability or improbability of its occurrence. 

Let’s Go Adventures v Barrett [2017] NSWCA 243 - Adamson J (with whom Basten JA and Gleeson JA agreed) considered the statutory cause of action was conferred by s 60 when read with s 267 of the ACL. 

Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2012] QCA 315; [2013] 1 Qd R 319 - provides that the statutory formulation has been acknowledged as bringing about a slight increase in the degree of probability of harm which is required for a finding that the risk is foreseeable. 

Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65; (2020) 103 NSWLR 103 - Leeming J rhetorically stated how the risk of harm was to be identified when it was not identified at all in the pleadings.

Nucifora & Anor v AAI Limited [2013] QSC 338 - provides that a plaintiff must demonstrate that his or her earning capacity has been diminished by the accident-caused injury and that that diminution or may be productive of financial loss.  

Perisher Blue Pty Ltd v Nair Smith [2015] NSWCA 90; (2015) 90 NSWLR 1 - provides that the level of particularity in defining the risk of harm is often not an easy process and may be necessary in order to determine what reasonable precautions ought to have been taken in order to avoid the risk.

PWJ1 v The State of New South Wales [2020] NSWSC 1235 - provides that if it is an obvious risk, the person is taken to have become aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.

Rickhuss v Cosmetic Institute Pty Ltd (No 2) [2020] NSWSC 393 - considered that a pleading by which damages were claimed under, inter alia, s 236 of the ACL and rather relief could only be claimed under s 267 of the ACL. 

Roads v Traffic Authority of NSW v Dederer (2007) 234 CLR 330 - provides that it is necessary to correctly identify the risk so one can assess whether it is foreseeable, and if so, what a reasonable response to that risk would be, either at common law.

Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383 - relied upon in holding that the mere fact that Mr Chaffey may have acted in breach of the rules in relation to the incident does not lead to a conclusion that USM has failed to take reasonable care. 

Singh v Lynch [2020] NSWCA 152; (2020) 103 NSWLR 568 - provides that the risk is to be described with a level of generality, but sufficiently precise to capture the harm which resulted from the materialisation of the facts of the particular case.

Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 - provides that in considering whether there is a breach of a duty of care it must be borne in mind that 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.” 

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWSCA 263 - provides that pursuant to s 60 of the Australian Consumer Law it was a term of the agreement between the defendant and the plaintiff that the campdrafting event would be organised, managed and provided with due care and skill. 

The Thistle Company of Australia Pty Ltd v Bretz & Anor [2018] QCA 6 - provides that Philippides JA (with whom Gotterson JA and Bond J agreed) considered the question of whether a concrete plinth painted black on which a petrol bowser was positioned, which an elderly man tripped over was an obvious risk.

Trevali Pty Ltd (trading as Campbelltown Roller Rink) v Haddad (1989) Aust Torts Reports 80-286 - provides that when a defendant creates a situation of danger, it may or may not owe a duty of care to those who choose to enter into it.

Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320; (2015) 91 NSWLR 752 - provides that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances.

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 - provides that reasonable care does not require the complete elimination of risks.

Wade v J Daniels Associates Pty Ltd [2020] FCA 1708 - held that the reference to “due care and skill” is a common law negligence standard. 

Wilson v Nilepac Pty Ltd (t/as Vision Personal Training) Crows Nest [2011] NSWCA 63 - provides that reasonable precautions may not need to be taken in order to ensure events can be carried out safely. 

Whisprun Pty Ltd (formerly Northwest exports Pty Ltd) v Dixon [2003] HCA 48; (2003) 200 ALR 447 - provides that rules which govern participation in sport are not necessarily conclusive of the content of the duty of care owed but are factors to be taken into account in assessing what was required by the standard of reasonableness. 

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 - provides that in deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer is in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. 

The parties are to provide a draft order by which the defendant is to pay the plaintiff damages within fourteen days of the date of these reasons. The parties should provide submissions as to costs within fourteen days of the date of these reasons.