In this Alert, Senior Associate Brooke Jacobs and Solicitor Candice Stower consider the decision in Miller v Lithgow City Council [2014] NSWSC 1579.

The facts

The plaintiff in this case was 12 years old when she suffered a spinal injury resulting in tetraplegia as a result of a dive into the shallow end of a swimming pool run by Lithgow City Council.

The plaintiff was an experienced and competent swimmer who was ranked in the top 20 in Australia. She received a bursary from her school, Kinross Wolarai primary school, in early 2007 as recognition of her swimming achievements.  As the recipient of financial assistance, she was required by the school to participate and involve herself in the co-curricular life of the school, which included swimming training.

On 7 January 2008, the plaintiff attended swimming training for the NSW State Age Swimming Championships arranged by the school’s swimming coach at the Lithgow pool run by council instead of the school’s pool.  The training regime was designed by the school’s swimming coach in accordance with his contract of employment, but was delivered and supervised by a parent as the coach was on leave.  The parent was a former president of Lithgow pool’s swimming club, but was not a qualified swimming coach.

On the date of incident, the plaintiff attempted a “track-start” or “race pace” dive from the shallow end of the pool into water with a depth of 1.08 metres.  The plaintiff was accustomed to performing this particular dive at her school’s pool which had an increased depth of 12 centimetres at the shallow end.  She struck the bottom of the pool and was rendered a tetraplegic.

The plaintiff’s dive was compromised by the fact that her rear foot slipped due to a lack of “grip” on the pool’s edge.

There was a “no diving” decal painted on the pool’s surround near where the plaintiff’s foot slipped.  There were a number of other “no diving” signs around the pool.

The court otherwise observed that there was a Local Government directive prohibiting diving below a depth of 1.8 metres whereas the current and various life-saving and swimming association guidelines considered diving into waters with a depth of one metre is safe in the context of competition swimming and training for experienced swimmers.

Judgment

In dismissing the claim against the Council, the Court noted that the traction afforded by the pool surrounds was just within the tolerances of the recommended coefficient of friction.

The Court also observed that there was a “wealth of uncontradicted evidence” that diving into the shallow end of the pool was permitted in swimming carnivals at Council pools throughout the State of NSW.  Therefore, the presence of “no diving signs” did not mean that Council had an obligation to prevent diving in all circumstances but rather meant that the Council discouraged unsupervised diving.

The Court was not persuaded that there was anything unreasonable about the school incorporating dives into the shallow end of the pool into training.

However, the Court found the school liable because it knew or should have known about the lack of grip around the Council pool and in the circumstances it was unreasonable to encourage or allow the plaintiff to perform a “track start” or “race pace” dive, which was a riskier dive.

Key points

  • Diving cases have been increasingly difficult for plaintiffs to win, given the introduction of “obvious risk” and “dangerous recreational activity” legislative provisions and cases at common law;
  • Such cases may continue to be difficult for plaintiffs against public authorities, even when some defects in the facilities and systems may be found;
  • The material difference for the school in this case was the finding that it encouraged or allowed the very experienced plaintiff to perform a fast dive into the shallow end of a less familiar pool.