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The Court heard further evidence that diving at
the shallow end of the pool outside of swimming
competitions was common and not challenged by pool
employees.
The principal of the school gave evidence that the
school did not undertake risk assessments of public
facilities such as Council pools or sporting fields used
by the school at the time of the incident but now
undertakes such assessments. He estimated that
attempting such a task would be impossible as 40%
of the school’s 900 students were boarders who came
from around the state.
The Court noted that, in judging the reasonableness of
the Defendants’ actions, there was a wealth of evidence
showing that swimming carnivals were a common
feature in New South Wales towns and swimming
carnivals commonly included relay races where
children dived into the shallow ends of pools.
EXPERT EVIDENCE
The Court heard expert evidence from Bill Sweetenham,
an elite swimming coach, that “all swimming should be
under the guidance of a qualified coach”. The Court
rejected this approach and commented that it was “so
far away from how society operates” and given the
necessity of paying for coaches, even assuming that
enough coaches existed or could be trained, such views
were unreasonable.
THE COURT’S FINDINGS
Given the extent of diving into shallow ends of pools
generally, the Court was not persuaded there was
anything unreasonable in Mr Critoph incorporating
diving at the shallow end into the Plaintiff’s training
programme. Further, there was nothing unreasonable
in the Council permitting such diving in the course of
training.
The Court concluded that the presence of a qualified
coach would not have prevented the accident. A coach
may have been away from the shallow end of the pool
as the Plaintiff dived, and unable to intervene when the
Plaintiff was in mid-air.
NEGLIGENCE OF THE SCHOOL
The Court found it was unreasonable for the school,
through Mr Critoph, to encourage the Plaintiff to dive
into the shallow end of a pool with the lack of gripping
facilities of the Lithgow Pool. The Court found that the
absence of gripping facilities and the shallow depth
both contributed to the accident.
TOUCHLINE
ISSUE 21 | AUGUST 2015 |
17