Uniting Church in Australia Property Trust (NSW) v
Miller  NSWCA 320 provides a timely reminder that
causation is a critical requirement for a finding of
"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
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:
failing to train the Plaintiff to abort a mis-executed
failing to take precautions for the alleged elevated risk of a
track-start dive at a pool without readily grippable coping tiles;
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
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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These cases provide some guidance as to how the courts have approached the assessment of damages in nervous shock claims.
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