Australia: Appeal - Pool injury not caused by a breach of duty by Council.

Last Updated: 9 November 2016
Article by Jennifer Davis

Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320 provides a timely reminder that causation is a critical requirement for a finding of negligence.

"While the Plaintiff was blameless for the accident, the Court of Appeal found that her injury was not caused by a breach of duty owed to her by the School nor the Council. ".

Emilie Miller ("the Plaintiff"), aged 12, suffered traumatic spinal injuries after diving into the shallow end of a pool operated by the Lithgow City Council ("the Council"), whilst training with the Swimming Club of the Kinross Wolaroi School (the Uniting Church in Australia Property Trust (NSW))("the School").

On 7 January 2008, the Plaintiff executed a track-start dive into water approximately 1.1 metres deep. This occurred as part of a training schedule formed by the swimming coach for her to complete under the supervision of Mr Brodie, former President of the Lithgow Swimming Club and father of two boys in the swimming club. During the dive the Plaintiff collided with the bottom of the pool and fractured a cervical vertebrae, initially causing complete C5-6 tetraplegia.

The Plaintiff commenced proceedings against the Council and the School. The primary judge found in favour of the Council with judgment the that the School pay the damages of the Plaintiff. The School appealed to the New South Wales Supreme Court of Appeal. The principal issues on appeal were whether the primary judge erred in finding that the School was liable for:

  1. failing to train the Plaintiff to abort a mis-executed dive;
  2. failing to take precautions for the alleged elevated risk of a track-start dive at a pool without readily grippable coping tiles; and
  3. failing to conduct a risk assessment of the pool.

In determining whether the Plaintiff should have been trained to abort the dive, it was unanimously held that there was no practicable way in which swimmers could be trained to abort a track-start dive that went wrong. On this basis, the primary judge's decision in respect of training was overturned.

On the second ground of appeal, the Court rejected the primary judge's findings that track-start dives were riskier than other competition dives as there was no evidence before the Court to make this finding. With respect to the gripping facilities, Leeming JA contended that no evidence was presented to suggest that liability turned upon the condition of the coping tiles. His Honour referred to the primary judge's finding on causation that the Plaintiff fell because her rear foot slipped, not because of the coping tiles. He held that there were therefore no grounds for the primary judge to then conclude that the different shape or surface of the coping tile would have altered the Plaintiff's fall to a degree sufficient enough to avoid collision once her rear foot had slipped. Therefore, the primary judge's ruling on this basis of appeal was overturned.

On the final ground of appeal, the Court found that the primary judge erred in concluding the School was required to provide a risk assessment. Leeming JA held there were no relevant grounds for the Court to accept that the pool was deficient and no act of negligence in allowing trained swimmers to dive from the shallow end. Therefore, the Court decided that a risk assessment would not have altered the outcome.

Further, the Court of Appeal found that the presence of a qualified swimming coach to supervise the Plaintiff would not have prevented the accident.

While the Plaintiff was blameless for the accident, the Court of Appeal found that her injury was not caused by a breach of duty owed to her by the School nor the Council. The appeal was allowed.

This decision reaffirms the significance of causation in determining liability. The ability to identify a flaw in the practices of a Defendant alone is not sufficient for a conclusion of negligence. Rather, a Plaintiff must prove the Defendant's deficient act or omission was causative of the injury.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Jennifer Davis
 
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