Uniting Church & Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council  NSW CA 320
October 27, 2015
The plaintiff was an age champion swimmer at the Kinross Wolari School operated by the Uniting Church (‘School’). On 7 January 2008 she sustained a severe spinal injury resulting in C5/6 tetraplegia when her back foot slipped while executing a track start dive into the shallow end of the Lithgow War Memorial Swimming Pool during a training session.
At the time of injury, the plaintiff was training for upcoming state age championships. In the circumstances, the school swim coach, being on annual leave, arranged for the plaintiff to continue training under the supervision of a parent whose children were also taking part in the championships. The school swim coach had designed a training program which required the plaintiff to dive from the shallow end of the pool. Lithgow City Council (‘Council’) was the occupier of the swimming pool.
First Instance Decision
The primary judge delivered a verdict in favour of the plaintiff against the School and a verdict in favour of the Council.
It was found that:
- the plaintiff had been trained to perform a track start dive by the school and had performed such dive on numerous occasions without incident;
- the plaintiff was standing on or near a ‘no diving’ sign painted on the concrete concourse at the time of the dive;
- the plaintiff’s back foot slipped causing her to lose control of the track start dive;
- the absence of adequate coping tiles to provide a sufficient grip had contributed to the injury;
- it was a common practice for diving to occur at the shallow end of pools for the purposes of competitions and training for competitions;
- the shallow end was 1.08 metres deep with a distance of 250 mm between the surface of the water and the top surface of the edged tiles; and
- the shallow end of the pool satisfied minimum depths to allow diving for competitions and training for competitions.
In the light of these findings, the primary judge found no basis to conclude that the Council should have precluded all dives from the shallow end of the pool and was not negligent in failing to do so. He found there was no basis for concluding that the Council should have been aware of the risks arising from a track start dive nor the risk associated with the absence of appropriate coping tiles.
The primary judge found the School was negligent on the basis that the swim coach ought to have been aware of the additional risks posed by the track start dive and ought to have been aware of the limited grip provided by the coping tiles. Therefore the School should not have encouraged the plaintiff to perform a track start dive at the shallow end of the pool. Further, the primary judge found the School was negligent in failing to warn the plaintiff of the risks posed by the track start dive and to train her of the need to abort a dive should it go wrong by perhaps ‘bellyflopping’. Finally, the primary judge concluded the School was negligent in failing to carry out a proper risk assessment.
The Decision of the Court of Appeal
The Court of Appeal allowed the school’s appeal dismissing the proceedings against the School and dismissed the plaintiff’s appeal against the Council.
With regards to the Council, the Court of Appeal noted the Royal Life Saving Guidelines and academic literature did not differentiate a track start dive from other competitive dives. To the extent to which such literature did distinguish the track start dive, it in fact emphasised the relative safety of the track start dive as opposed to other competitive dives. It also found that the literature did not make any reference to the condition of coping tiles as giving rise to an increased risk.
Consequently, the Court of Appeal held that there was nothing in the guidelines or academic literature at the time which would have made the Council aware of any increased risk posed by the track start dive or in respect of the condition of the coping tiles and thus upheld the primary judge’s decision and dismissed the plaintiff’s appeal against the Council.
In respect of the school, the Court of Appeal was critical of the fact that the plaintiff’s pleadings and opening and closing submissions in the first instance made no reference to the Civil Liability Act 2002 (NSW) (‘CLA’).
It stressed the importance of firstly identifying the risk of harm. It was stressed the analysis of liability required by the CLA will be dependent upon the particular risk identified and significantly, neither the pleadings nor the parties submissions assisted the primary judge in relation to these essential statutory requirements.
The Court of Appeal also concluded that:
- there was no evidence establishing that a person could be trained to abort a dive. Thus the plaintiff failed to satisfy the burden of proof that if she had been trained to abort the dive, she could have done so within a fraction of a second to reduce her velocity to a safe level to avoid injury;
- the primary judge erred in finding the school should have taken precautions against the elevated risk of track start dives where there was an absence of gripping facilities. Similar to the findings relative to the Council, there was nothing in applicable guidelines directed to schools which identified any additional risk associated with the track start dive or in respect of the condition of the coping tiles at the time of the incident;
- the plaintiff had also failed to establish causation as, on proper consideration of the evidence, the plaintiff fell not because of the coping tile, but because of her rear foot slipping.
- the plaintiff failed to establish that the size or grip of the coping tile was such that it was a necessary condition of the occurrence of her colliding with the bottom of the pool. In the absence of evidence as to the characteristics of the tile as to its contribution to her fall, there was no sound basis for the primary judge to conclude that the different shape or surface of the coping tile would have altered the trajectory or speed of the plaintiff’s fall sufficiently to avoid a collision with the bottom of the pool once her rear foot had slipped; and
- in light of its rejection of breach arising from any elevated risk presented by the track start dive, the failure on the part of the School to carry out a proper risk assessment was not causative of the plaintiff’s injuries. The Court of Appeal concluded that even if a risk assessment had been undertaken, the plaintiff failed to prove that a risk assessment would have resulted in a decision to prevent the track start dive from the shallow end of the pool. There was no basis for the School to form the view that a track start dive was riskier than any other form of competitive dive, nor was there any basis to conclude that the condition of the coping tile elevated the risk attached to executing the dive.
While the Court of Appeal found in favour of the school on these grounds of appeal, the Court of Appeal rejected the School’s submission that it had no duty to undertake a risk assessment as it was unrealistic for it to be required to conduct a risk assessment of all pools at which students might train during school holidays. The Court of Appeal found there was insufficient evidence of how many pools might be involved and how difficult the task would be. The Court regarded that evidence of the magnitude of the burden would be required in order for such a submission to have weight.
While the Court of Appeal’s decision largely turns upon the facts peculiar to this particular claim, it does nonetheless continue the approach of appellate courts of determining liability by a strict application of the provisions of the CLA.
The Court of Appeal stressed the importance of pleadings and submissions to specifically address the provisions of the CLA such as:
- Identifying the risk of harm which will thereupon enable the court to determine whether the risk of harm was reasonably foreseeable to the defendant for the purposes of s5B of the CLA
- Whether the risk was not insignificant
- What reasonable precautions the defendant ought to have taken.
The decision is also significant in indicating the importance of establishing that the breach of duty is in fact causative of the harm sustained by reference to s5D of the CLA.
With specific reference to school authorities, it is significant to note the obiter dicta of the Court of Appeal in respect of the school’s duty to undertake risk assessments of sporting facilities used by students during school holidays. The comments made by the Court of Appeal leave open the risk schools may face from similar claims unless there is sufficient evidence of the magnitude of any burden imposed upon a school to undertake risk assessments of such facilities.
Authored by Lionel Gardner, Partner, Sydney.
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