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risk management
6 | Touchline issue 23 | April 2016
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.
Footnote:
The High Court has refused the plaintif’s application for speacial leave to appeal the Court of
Appeal decision. This brings the matter to a close with the school and council both escaping liability.
James McIntyre, Special Counsel HWL EBSWORTH LAWYERS jtmcintyre@hwle.com.au | www.hwlebsworth.com.au