Running the Risk: Law, Liability and the Modern Marathon
When Eliud Kipchoge lines up on Batman Avenue this Sunday, he will do so at a Melbourne Marathon that increasingly looks less like a local road race and more like a global commercial sporting event. The 2026 festival will welcome 66,000 participants across the weekend, in what organisers describe as the event’s biggest transformation in two decades.[1] Following congestion and participant flow challenges associated with a rapidly growing field, the 2026 event has undergone a major redesign. The marathon will begin at 6:15am, while the half marathon has been pushed back to 9:45am, with the event operating around strict road closures and traffic management schedules.[2]
The balancing act between sporting spectacle, public infrastructure and participant safety comes at a pivotal moment for Australian distance running. In 2025, Sydney became the seventh Abbott World Marathon Major after passing assessments across operational procedures, safety standards, elite athlete recruitment and runner experience.[3] If Sydney has claimed Australia’s place on the Majors stage, Melbourne appears determined to carve out its own international profile. Yet behind the elite names, Nike branding and closed roads sits a less glamorous legal question. When thousands of runners pay to participate in a commercial sporting event staged on public infrastructure, who carries the risk if something goes wrong?
Participation begins with a contract
For runners, participation begins not at the start line, but with a contract (often signed away amid the excitement of running becoming their new favourite hobby). Melbourne marathon entrants agree that it is their ‘sole responsibility’ to determine whether they are sufficiently fit and healthy to participate, while also expressly assuming risks including adverse weather, imperfect course conditions, ‘inadequate safety measures’ and ‘medical or emergency aid (or lack thereof)’[4].
Despite this, such allocation of risk is not unlimited. The same terms release the organiser from liability only ‘to the extent permitted by law’, preserve liability arising from negligence or breach of law, and recognise rights that cannot be excluded under the Australian Consumer Law.[5] The contract therefore exposes a central tension at the heart of mass participation sport. Where does a runner’s acceptance of an inherently risky activity end, and an organiser’s responsibility for how that activity is delivered begin?
Inherent risk is not unlimited risk
Australian law resists treating participation in sport as acceptance of every danger surrounding it. In Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454, the High Court rejected an overly broad characterisation of the risk as simply falling from a horse.[6] Instead, the relevant risk was the substantially elevated risk of injury caused by the deteriorated arena surface. That mattered because the Court could then ask whether a reasonable organiser should have responded to that particular risk, ultimately finding that the event should have been stopped and the arena inspected. The same principle appears more directly in an endurance context in USM Events Pty Ltd v James [2023] QCA 71, where a triathlon organiser was found liable after a runner collided with a racing wheelchair on a shared section of course despite relatively simple precautions being available to reduce the foreseeable risk.[7]
A marathon runner may accept fatigue, dehydration and the physical demands of 42.2km. That does not necessarily mean accepting risks materially increased by how the event is designed or delivered.
Risk is shared
Marathon risk is therefore distributed. Research on large-scale running events identifies inadequate hydration, insufficient medical support, high temperatures and limited cooling as recognised operational risks.[8] Event design can influence exposure to those risks. At the same time, organisers cannot control every variable. Training, fitness, pacing and the decision to start remain largely with the participant. The Melbourne Marathon event appears to devote significant resources to the risks it can manage, including aid stations offering water, sports drinks, gels, medical support and toilets at multiple points on course. Organisers also provide specific guidance on dehydration and hyponatraemia, including the additional hydration demands of warmer conditions, something which may become essential with the later half marathon start.[9]
A commercial event on public roads
Marathon running has become increasingly commercial and globally competitive. Alongside Nike’s title sponsorship and the scale of the 2026 Festival, it positions Melbourne within a global market for participation, sporting attention, sponsorship and prestige.
This commercial product depends heavily on public space. Road closures associated with the Marathon will alter services across 13 tram routes on race weekend.[10] The modern marathon therefore occupies an unusual position. It is simultaneously a commercial sporting product, a contract with tens of thousands of participants and a temporary reorganisation of public infrastructure.
Marathons will always involve risk. That is part of their appeal. As Australian races become larger, more valuable and more internationally significant, the legal challenge is not to make them risk-free, but to draw a fair line between participant choice and organiser responsibility. Runners must still prepare, assess their own fitness and decide whether to start. Organisers, in turn, must manage the parts of the event they design and control. As the marathon continues to evolve from road race to major commercial sporting product, keeping that distinction clear will matter as much as ever.
References
[1] https://melbournemarathon.com.au/eliud-kipchoge-is-coming-to-melbourne/
[2] https://melbournemarathon.com.au/cut-off-policy/
[3] https://www.worldmarathonmajors.com/sydney-major
[4] https://melbournemarathon.com.au/2026-nike-melbourne-marathon-festival-terms-conditions/
[5] https://melbournemarathon.com.au/2026-nike-melbourne-marathon-festival-terms-conditions/
[6] https://www.hcourt.gov.au/sites/default/files/eresources/2022/HCA/11.pdf
[7] https://hallandwilcox.com.au/news/queensland-court-of-appeal-confirms-triathlon-organisers-liability-to-injured-triathlete/
[8] https://ibimapublishing.com/articles/IBIMABR/2021/178203/
[9] https://melbournemarathon.com.au/hydrate/
[10] https://transport.vic.gov.au/disruptions/disruptions-information/article/melbourne-marathon-temporary-service-changes-on-first-tram-to-2pm-on-saturday-10-october-and-sunday-11-october-2026