In a unanimous judgement delivered on 15 October 2015, the New South Wales Court of Appeal held that a school and local council were not liable for significant injuries sustained on 7 January 2008 by then 12 year old Emilie Miller, when she slipped while diving into the shallow end of the Lithgow War Memorial Swimming Pool (the Pool). Ms Miller collided with the bottom of the Pool and fractured one of her cervical vertebrae, initially causing complete C5-6 tetraplegia. The accident occurred during the school holidays while she was being supervised by her friends’ father.
Ms Miller sued the Lithgow City Council (the Council), which managed the Pool, and the Uniting Church in Australia Property Trust, which operated the Kinross Wolaroi School (the School). The trial at first instance was confined to questions of liability and the primary judge found that the School was liable for Ms Miller’s injuries but the Council was not. The School sought leave to appeal the primary judge’s decision and Ms Miller also appealed the finding in favour of Council.
Prior to the accident Ms Miller was a member of the School’s swimming club and trained in its 25m pool. She was a talented young swimmer and competed in various competitions. The School’s swimming coach, Stephen Critoph, had taught Ms Miller to execute a “track-start” dive, which involved placing one foot on the edge of the diving block or concourse, with the toes gripping its edge, and placing the second foot 500-600mm to the rear. The swimmer leans down placing their hands at the edge of the block/concourse and is then propelled into the water using both hands and both feet. Ms Miller was initially trained in the dive at the deep end of the School’s pool and after some practice she also performed it from the shallow end. Prior to the accident Ms Miller had performed the dive on possibly thousands of occasions without problem.
During the Christmas school holidays in 2007, Mr Critoph arranged for Ms Miller to train with some other children under the supervision of their father, Mr Brodie, at the Pool. Mr Brodie was an experienced swimmer and a former president of a swimming club, but not a licensed coach. Mr Critoph provided Mr Brodie with a program for Ms Miller and his children that included swimming a number of laps and required diving 10 times from the deep end and 10 times from the shallow end of the Pool. Starting blocks were not used and the Pool was 1.08m deep at the shallow end, meaning that there was 250mm between the surface of the water and the top surface of the edge tiles. There was also a single row of black ridged tiles on the edge of the concrete concourse.
The accident occurred the first time Ms Miller dived into the shallow end of the pool on 7 January 2008. She had been standing near or possibly on a “NO DIVING” sign painted onto the concrete concourse surrounding the pool. Mr Brodie was not watching the children when they dived in and the only evidence as to how the accident occurred came from Ms Miller. She said that she pulled hard with her hands and arms and at the same time pushed hard with her left foot, which was behind her. She felt it slip in a puddle of water and her body twisted. She could not stop the forward momentum or get her arms and hands ahead of her to enter the water first.
In evidence at trial were 2 publications containing supervisory guidance issued by the Royal Life Saving Society of Australia (RLLS). On 14 November 2005, SU 22 “Safer Water Entry for Competitions – Competitive Dive Starts” was circulated to provide guidance for water entry to competitors during competition or training. SU 21 was also revised and related to diving supervision for recreational swimming. SU 22 permitted competitive dive starts by trained competitors in the shallow end of standard pools as long as the depth was at least 900mm. It also provided that in pools where both recreational and competition swimming occurs, a warning sign should be prominently displayed adjacent to those areas in which dive entries are being performed by trained swimmers reading:
“Warning: Dive Entries Permitted by Trained Swimmers Under Coach’s Supervision Only”
No such sign was displayed at the Pool. The RLLS also circulated a memorandum dated 14 December 2007 to all NSW Aquatic Facilities that noted that:
“From 2008 all NSW Department of Education and Training (DET) Schools will seek to obtain from Aquatic Facilities a recommendation on whether dive entries are permissible for planned swimming carnival events.”
The memorandum contained background information about injuries sustained due to diving and provided that facilities hosting school swimming carnivals would need to complete a “Shallow Water Diving Information and Risk Assessment form”. The memorandum attached a booklet that reproduced SU 22. That is, it permitted competitive diving into the shallow end of a pool by trained competitors so long as the depth exceeded 900mm.
The decision at trial
The primary judge held that the Council should not have precluded all dives into the shallow end of the Pool and was not negligent in permitting Mr Brodie, as opposed to a qualified swim coach, to supervise Ms Miller. His Honour did also not consider that the Council should have become aware of any significant increase in danger associated with track-start dives prior to the accident, of the importance of readily grippable coping tiles, or any other basis for drawing a distinction between track-start and other dives.
As to the School, the primary judge found that it was unreasonable for Mr Critoph to encourage Ms Miller, who was accustomed to using the track-start dive, to dive into the shallow end of the Pool with the lack of gripping facilities. Mr Critoph should have been aware of the elevated risk associated with a track-start dive and the lack of protruding coping tiles that could be gripped. Further, His Honour found that had Ms Miller been warned about the dangers of the track-start dive and possible horrendous consequences of a mis-dive, logic suggested that she would have aborted the dive. The instructions given by Mr Critoph to Mr Brodie as to Ms Miller’s training at the pool carried with them a failure to undertake a proper risk assessment.
The decision on appeal
The Court of Appeal observed as features of SU 22 and the memorandum that “competitive dive starts” were broadly defined and no distinction was made in relation to any particular type of dive. Further, the critical integers in the risk assessment were the depth of the water and the height above it from which the swimmer started. An expert called by Ms Miller identified several pieces of academic literature available to inform council pool operators of the risks associated with diving into shallow water and the need for risk assessment and management. The Court of Appeal’s review of this literature identified that to the extent it distinguished between the types of competitive dives, track-start dives were safer, and there was no reference to risks associated with coping tiles. Rather, the focus was the depth of the water and the height from which the dive is commenced. It was held that Ms Miller failed to establish that Council was or ought reasonably have been aware of the literature and there was no requirement for it to have looked beyond what was contained in SU 21, SU 22, Practice Note 15 and the memorandum.
The Court of Appeal held that SU21 and SU22 should be read together such that it was plain that diving into water between 1000mm and 1200mm from a height above water not exceeding 400mm was permitted as long as it was undertaken by trained competitors. In relation to the warning sign, the relevant risk of harm was a risk of harm to a trained swimmer like Ms Miller, not an untrained recreational swimmer. SU22 also made it clear that the warning sign was directed to the general recreational public and not to trained competitive swimmers. As such, the absence of a sign that had no relevance to a trained swimmer like Ms Miller did not bear upon Council’s liability. The primary judge also did not err in concluding that Council’s lifeguard was not negligent by failing to inquire of Mr Brodie whether he was a licensed coach.
The Court of Appeal considered that the primary judge had erred in concluding that the School should have drilled into Ms Miller that the dangers associated with the dive be minimised by, for example, aborting a dive that had gone wrong. This was on the basis that:
- Ms Miller’s case did not include a clear allegation that there was some way in which swimmers could be trained to pull out of a track-start dive that went wrong;
- There was no evidence that a person could be trained to abort a dive. The evidence available pointed against the practicality of this; and
- In order to establish the School’s negligence on this basis, it would be necessary for Ms Miller to satisfy s5D of theCivil Liability Act 2002 (NSW). That is, she would need to prove that she would not have hit the bottom of the pool with sufficient force to cause injury if she had been trained to abort a mis-executed dive.
Despite the opinions of the experts, there was nothing in the guidance directed to schools, pool operators or swimming coaches to which Ms Miler pointed identifying any additional risk associated with a track-start dive. The Court of Appeal also did not consider that the coping tiles could contribute to a finding of liability as it was not established that they were causative of the accident given the primary judge’s finding that Ms Miller fell because her rear foot slipped. It followed that there was no failure by Mr Citoph to carry out a proper risk assessment that was causative of Ms Miller’s injury.
The Court of Appeal ultimately concluded that while the tragic accident was entirely blameless on Ms Miller’s part, it did not follow that her injury was caused by a breach of duty owed to her by the School or Council.
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council  NSWCA 320