Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320

INTRODUCTION

A terrible accident at a local pool left a young and successful female swimmer paralysed. Emilie Miller was training in the school holidays with friends at the Lithgow War Memorial Swimming Pool.  She slipped while “track-diving” at the shallow end and collided with the bottom of the pool.

Ms Miller sued the Council (the pool operator) and her school in negligence.  The obvious difficulties for the Plaintiff in proving her case were that she acknowledged she slipped during her dive and the incident occurred in the school holidays and away from her school pool.

To try and overcome these issues, the Plaintiff argued that given the School’s non-delegable duty of care it was liable for the conduct of the father supervising the activity; obliged to undertake an inspection of the local pool; obliged to train her how to abort “track-start” dives and required to warn the Plaintiff of the risk of injury in performing such a dive.

Ultimately on appeal [1] both the school and the Council were found not to be negligent.  This article focuses on the formulation of the Plaintiff’s case against the school.

The school swimming coach had taught the Plaintiff, a state level swimmer, how to execute a “track-start” dive.  This involved placing one foot on the edge of the concourse of the diving block with the toes gripping its edge, and placing the second foot some 500mm to the rear.  The Plaintiff alleged she was never advised of any risks associated with this dive though conceded she had been performing it for almost two years.

The school swimming coach had arranged for the Plaintiff to train with some friends at the local Council pool. He duly provided the Plaintiff’s swimming program, which included dive starts from both ends of the pool, to the father of those friends. The Lithgow pool was 1.08 m deep at its shallow end. It had never been inspected by the School swimming coach. At the time of the accident the Plaintiff was almost on top of a “no dive” sign painted onto the concrete concourse.

THE OUTCOME

Two publications of the Royal Life Saving Society Australia (“RLSSA”) assumed great importance they were called “Safer Water Entry for Competitions – Competitive Dive Starts” and “Supervision of Diving (Recreational Swimming).”  The court immediately noted the distinction between recreational and competitive diving and that competitive dive starts were expressly permitted if performed by trained competitors in shallow water during competitions and training so long as the pool depth was at least 900mm. In swimming pools where recreational swimming and competitions/training were being conducted side by side a warning sign was to be displayed prominently stating “Warning:- Dive Entries Permitted by Trained Swimmers Under Coach’s Supervision Only”.

No such sign was displayed at the Lithgow Pool at the material time and that the parent supervising the training was not a qualified coach.

Ultimately, the Court held that the presence of a licensed coach would have made no difference; that even if the school’s swimming coach had undertaken a risk assessment he would not have prevented track-start diving from the shallow end of the pool given this was permitted by the RLSSA; there was nothing in the RLSSA literature alluding to any additional risk associated with track-start dives and it could not see how in the fraction of a second available to the Plaintiff she could abort the dive.   

RAMIFICATIONS

This is perhaps an expected outcome with an understandably sympathetic trial Judge being overruled by the Court of Appeal.

Of broader interest was that the Court accepted that “the fact that Ms Miller’s injury occurred outside term time and away from school premises, did not, of itself preclude it being subject to a duty to take reasonable care to prevent injury”.

The Court said that had the facts been that the coach suspected the Plaintiff would train in a private pool whose shallow end depth was less than 900 mm deep (less than the depth for competitive dive starts authorised by the RLSAA) then it would “doubtful” that no duty would arise, even if in all other respects the program devised by the swimming coach was appropriate.

Also, in response to the school’s submission that it would be wholly unrealistic for it to be required to conduct risk assessments for all pools in which its students may train during school holidays, the court said that such a submission would not be accepted without cogent evidence and that it would regard this “as a case where evidence of the magnitude of the burden would be required in order for the submission to have weight”.

So while the court concluded that “Ms Miller’s tragic accident was entirely blameless on her part, but it does not follow that her injury was caused by a breach of duty owed to her by either the School or the Council” the observations of the Court as to the potential scope of the School’s duty should give school administrators some food for thought.