Diving injury appeal a reminder that causation is critical to liability

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In Uniting Church in Australia Property Trust (NSW) v Miller (2015) NSWCA 320 the New South Wales Court of Appeal upheld a school’s appeal against a finding that it was negligent in respect of the injuries sustained by a student while undertaking swimming training in a Council pool during the school holidays.

Although the Court of Appeal found that neither the school nor the operator of the pool were liable in negligence, the decision still contains important lessons on risk management for schools, sports clubs and facility operators.

Facts

The plaintiff sustained catastrophic spinal injuries on 7 January 2008 after diving into water approximately 1.1m deep at the shallow end of a public swimming pool operated by the Lithgow City Council.

The plaintiff was a highly ranked junior swimmer and had been awarded a sporting bursary to the Kinross Wolaroi School (operated by the second defendant) and was a member of the school swimming club, the Kinross Wolaroi Swimming Club (KWSC).

At the time of the accident, the plaintiff was training for the New South Wales State Swimming Championships. As the school’s pool was closed for the school holidays, the plaintiff was training at the Council’s pool. She was supervised by a Mr Brodie, whose two children were also members of the KWSC and were training at the same time. Mr Brodie was following a program set by Mr Critoph, who was employed by the school as a swimming coach.

Mr Critoph was usually present when the plaintiff was training. However, if he was not available during school holidays, he prepared programmes for the plaintiff and would contact her during the school holidays to enquire about her training.

At the time of the accident the plaintiff had been attempting to execute a ‘track start’ dive which she had been taught by Mr Critoph in 2006. She had initially practised these dives at the deep end of the school pool using starting blocks and then began to perform them at the shallow end.

At first instance, the trial judge found that the accident occurred when the plaintiff’s back foot slipped, resulting in a loss of control during the dive.

At trial, the plaintiff gave evidence that she had never previously experienced problems with the track start dive or her foot slipping prior to the accident.

The primary judge accepted the plaintiff’s evidence that she was never warned of any risks associated with:

• Carrying out such a dive at the shallow end of the swimming pool;
• Incorrectly performing the dive;
• Her feet slipping whilst attempting the dive.

At trial, the Court found no basis for concluding that the Council had been negligent.

The Trial Judge found that the school had been negligent on the following grounds:

• Mr Critoph’s failure to warn the plaintiff of the risks associated with the track start dive.
• In addition to a warning, Mr Critoph should have instructed the plaintiff on how to minimise the dangers associated with the track start dive by instructing her in how to abort a dive that had gone wrong and ‘bellyflop’ into the pool.

Court of Appeal decision

The school appealed against the primary judge’s finding of negligence while the plaintiff appealed against the trial judge’s finding that the Council had not been negligent.

Negligence of the school

Relevance of risk assessments

The Court of Appeal concluded that, in the absence of guidance from peak bodies (such as the Royal Life Saving Society) that a track start dive was riskier than any other form of racing dive, the coach’s failure to carry out a proper risk assessment was not causative of her injury.

The Court stated that there was nothing relevantly deficient at the Lithgow pool which a person in the position of the plaintiff’s coach ought to have been aware and there was no negligence in permitting diving from the shallow end by trained swimmers at the pool.

In the course of the appeal, the school submitted that it would be unrealistic for it to be required to conduct risk assessments of all pools at which students might train during school holidays as the school had students from many parts of the State. The Court noted that the school had not led evidence as to how many pools might be involved or how difficult the exercise would be. Consequently, the Court concluded that further evidence would be required for such a submission to have weight.

Proposed risk prevention measures must be practicable

The Court of Appeal found that it was not practicable to have trained the plaintiff to abort the dive. Firstly, the Court queried whether the plaintiff’s case extended to an allegation that swimmers could be trained to abort a track start dive that had gone wrong. In any event, even if the plaintiff had made such an allegation there was no evidence that a person could be trained to abort a dive given the extremely limited time in which to do so. Such a measure was not reasonably practical and the absence of such training was not causative of the plaintiff’s loss. Accordingly, the Court rejected the trial judge’s finding that the school was negligent in failing to train the plaintiff in aborting an unsuccessful track start dive.

Necessity of licensed coaches

The Court also concluded that the presence of a licensed coach would have made no difference nor would a risk assessment have produced any different result.

Negligence of the pool operator (the Council)

The Court of Appeal upheld the trial judge’s findings that there was no basis to disturb the trial judge’s finding that the Council had not been negligent. The Court found that there was nothing in the guidance issued by the Royal Life Saving Society that would have alerted the Council to the potential risk of injury to trained swimmers such as the plaintiff.

Implications

Causation is critical

While the decision ultimately turned upon the unique (and tragic) facts of the case, the decision emphasises the importance of plaintiffs being able to demonstrate that even if there was some deficiency in the training facility or instructions provided to a plaintiff, the plaintiff must still prove that the deficiency was causative of their injury.

Risk management lessons

The risk management lessons arising from the trial judge’s decision were set out in Issue 21 of Touchline (August 2015). Those lessons remain relevant for schools, sports clubs and facility operators and are revisited below:

1. A school or club’s potential exposure to liability may extend beyond its own training facilities. Where athletes are training off-site, where practicable, schools and clubs should conduct inspections to satisfy themselves that the facilities to be used are appropriate for the athletes training program. The question of whether it is reasonably practicable for a school or club to inspect all training facilities will depend upon the number of sites involved, the number of athletes training off-site and the distances to be travelled to inspect those sites. Any risk assessment should be documented as the record of inspection may be a critical piece of evidence addressing the issue of whether the school or club took reasonable measures to satisfy itself that the facility was appropriate for the athlete’s training program.

2. The need for a formally qualified coach to be present during training will depend upon the potential risks of the sport and the type of training being undertaken by the athlete. A training session involving laps of a pool or athletics track is likely to carry a relatively low risk of injury and consequently, a limited need for a qualified coach to be present. This can be contrasted with a training session in which a gymnast is attempting an unfamiliar and demanding routine with a greater risk of significant injury.

3. Many clubs and schools are dependent on volunteer coaches who may not hold formal qualifications. Resources permitting, volunteer coaches should be trained in risk identification and management. Younger coaches (who may not be much older than their charges) need to be able to demonstrate the ability to influence their charges to advert potentially hazardous behaviour.

4. Schools, clubs and facility operators should monitor relevant industry publications and guidance from relevant peak sporting bodies and assess whether remedial action or modification to training activities is required.

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