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BY
JAMES MCINTYRE,
SPECIAL COUNSEL WITH HBM LAWYERS
In Miller v Lithgow City Council [2014] NSWSC 1579 the New South Wales Supreme Court
found that a school was liable in negligence after a student sustained catastrophic
injuries while undertaking swimming training in a Council pool.
The student’s claim against the Council was unsuccessful. Although the decision turned on its unique
(and tragic) facts, the Court’s discussion of those facts provides valuable guidance on risk management
for schools, sports clubs and facility operators in relation to the selection and use of training facilities,
training of staff and the relevance of guidelines issued by sports governing bodies:
Diving injury decision delivers
lessons on risk assessment for
schools and sports clubs
RISK MANAGEMENT
FOCUS
FACTS
The Plaintiff sustained 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’s 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 programme 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 school holidays
to enquire about her training.
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. 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 Court 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 a
swimming pool;
• incorrectly performing the dive;
• her feet slipping whilst attempting the dive.
The Plaintiff also gave evidence that if a coach had told
her to do something, she did it. After 2006, she always
used a track start dive as her method of commencing
races or training swims.
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ISSUE 21 | AUGUST 2015