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Touchline issue 23 | April 2016 | 5
I
n 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.