In this Alert, Senior Associate Brooke Jacobs and Solicitor
Candice Stower consider the decision in Miller v Lithgow City
Council  NSWSC 1579.
The plaintiff in this case was 12 years old when she suffered a
spinal injury resulting in tetraplegia as a result of a dive into
the shallow end of a swimming pool run by Lithgow
The plaintiff was an experienced and competent swimmer who was
ranked in the top 20 in Australia. She received a bursary from her
school, Kinross Wolarai primary school, in early 2007 as
recognition of her swimming achievements. As the recipient of
financial assistance, she was required by the school to participate
and involve herself in the co-curricular life of the school, which
included swimming training.
On 7 January 2008, the plaintiff attended swimming training for
the NSW State Age Swimming Championships arranged by the
school's swimming coach at the Lithgow pool run by council
instead of the school's pool. The training regime was designed
by the school's swimming coach in accordance with his contract
of employment, but was delivered and supervised by a parent as the
coach was on leave. The parent was a former president of Lithgow
pool's swimming club, but was not a qualified swimming
On the date of incident, the plaintiff attempted a
"track-start" or "race pace" dive from the
shallow end of the pool into water with a depth of 1.08 metres. The
plaintiff was accustomed to performing this particular dive at her
school's pool which had an increased depth of 12 centimetres at
the shallow end. She struck the bottom of the pool and was rendered
The plaintiff's dive was compromised by the fact that her
rear foot slipped due to a lack of "grip" on the
There was a "no diving" decal painted on the
pool's surround near where the plaintiff's foot slipped.
There were a number of other "no diving" signs around the
The court otherwise observed that there was a Local Government
directive prohibiting diving below a depth of 1.8 metres whereas
the current and various life-saving and swimming association
guidelines considered diving into waters with a depth of one metre
is safe in the context of competition swimming and training for
In dismissing the claim against the Council, the Court noted
that the traction afforded by the pool surrounds was just within
the tolerances of the recommended coefficient of friction.
The Court also observed that there was a "wealth of
uncontradicted evidence" that diving into the shallow end of
the pool was permitted in swimming carnivals at Council pools
throughout the State of NSW. Therefore, the presence of "no
diving signs" did not mean that Council had an obligation to
prevent diving in all circumstances but rather meant that the
Council discouraged unsupervised diving.
The Court was not persuaded that there was anything unreasonable
about the school incorporating dives into the shallow end of the
pool into training.
However, the Court found the school liable because it knew or
should have known about the lack of grip around the Council pool
and in the circumstances it was unreasonable to encourage or allow
the plaintiff to perform a "track start" or "race
pace" dive, which was a riskier dive.
Diving cases have been increasingly difficult for plaintiffs to
win, given the introduction of "obvious risk" and
"dangerous recreational activity" legislative provisions
and cases at common law;
Such cases may continue to be difficult for plaintiffs against
public authorities, even when some defects in the facilities and
systems may be found;
The material difference for the school in this case was the
finding that it encouraged or allowed the very experienced
plaintiff to perform a fast dive into the shallow end of a less
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).