Spring is a great time for swimming pool operators to plan how best to protect against personal injury claims before the pool fills with swimmers over summer.
Sharp v Parramatta City Council  NSWCA 260, is an excellent case study upon what is needed to make risk warning signs effective for public swimming pools.
On 25 January 2009, Ms Sharp suffered a compression fracture of the T11 vertebral body, when entering the water at a 45 degree angle after jumping from the 10 metre diving platform at the Parramatta War Memorial Swimming Centre. She claimed damages for negligence against the Parramatta City Council, which operated the Centre.
On appeal, the Court of Appeal Supreme Court of NSW (Meagher JA, with whom Ward JA and Gleeson JA agreed) dismissed the claim, upholding both the risk warning and the dangerous recreational activity defences raised by the Council.
The Risk Warning Defence
Sections 5M (1) & (3) of the Civil Liability Act 2002 (NSW) provide:
A person does not owe a duty of care to another person who engages in a recreational activity ... if ... a risk warning ... is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity.
In this case, the risk warning was a sign which read:
PARRAMATTA CITY COUNCIL
DO SO AT THEIR
Signs and printed waivers on entry tickets are risk warnings. Risk warnings can also be verbal.
Leisure industry operators which have swimming pools on their premises must clear three hurdles before section 5M will help them protect against negligence suits brought by swimming pool users. In Sharp"s Case, the three hurdles were cleared in these ways:
- Did the sign warn of the general nature of the particular risk? In this case, the risk was the activity of "using" the platforms and springboards by diving or jumping into the pool below. The Court found that the sign was effective to warn of the risk of injury in these activities. Giving a general warning was sufficient - there was no need to specifically list each hazard that might be encountered when using the platforms and springboard because the risks were obvious.
- Was it likely that the users were warned? Being a sign, was it prominently positioned to be seen and understood? In this case, the sign was positioned at eye level on the way to the first flight of stairs leading to the 10 metre diving platform. It had large and clear letters. Therefore, the Court found that it was reasonably likely that a person such as Sharp would have seen and understood the warning sign. It was not necessary to show that she actually saw the sign.
- Was the sign contradicted verbally? If so, this removes the defence. Sharpe was told by the lifeguard stationed at the top of the diving tower to "fall vertically, feet first into the pool below". According to Sharp, she was also told "just take a run and jump". The Court found that the "run and jump" instruction was not given. But even if it were, the advice given to enter the water vertically and feet first "acknowledged there was a risk of injury in jumping from the platform, particularly if Sharp did not execute her jump in accordance with that instruction." Therefore, the sign was not contradicted verbally by the lifeguard.
For these reasons, the Court found that the "Use at your own risk" sign was effective to protect the Council against liability.
The Dangerous Recreational Activity Defence
Sections 5F, 5K and 5L of the Civil Liability Act, 2002 (NSW) provide:
A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by [them].
An obvious risk is a risk that ... would have been obvious to a reasonable person in that position.
A dangerous recreational activity involves a significant risk of physical harm.
The Court found that jumping into water from a height of 10 metres carried with it the probability of serious injury, and so was a dangerous recreational activity. That the risk was obvious was supported by the warning sign at the bottom of the tower and the presence of a lifeguard on the platform. And so both requirements were satisfied.
Jumping and diving from the diving tower and springboard are dangerous recreational activities. Swimming in a swimming pool is simply a recreational activity - not a dangerous one.
Lessons for Swimming Pool Operators from Sharp's Case
Special care needs to be taken by operators of public swimming pools, such as theme parks with water activities, hotels, motels, clubs, resorts and cruise ships with swimming pools, to warn the public against the risk of injury. An adequate warning will be a defence against an injury claim.
In Sharp's Case the Court held that a "Use at your own risk" warning sign protected the operator against personal injury claims resulting from jumping or diving from the diving tower. But would a "Swim at your own risk" sign offer protection for the Council if it was displayed near the tiled swimming pool which was in the Centre?
Swimming in a man-made pool (as opposed to in a river or on a beach) is a recreational activity with no obvious risks. And so, a "Swim at your own risk" sign is unlikely to provide legal protection for the operator of a tiled swimming pool. For such pools, specific risk warning signs are recommended to warn against risky activities. Specific signs such as "No running", "No jumping into the pool (bombing)", "Warning: Pool tiles slippery when wet" and "No diving in the shallow end". These signs must be clearly worded and prominently displayed to be effective.
Many operators station lifeguards near the pool. The lifeguards need to be trained not only to rescue swimmers in difficulty, but also to "stick to the script" when issuing instructions to the public, because of the possibility that what they say might contradict the signs.