Diving injury appeal a reminder that causation is critical to liability

12 April 2016

In 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 catastrophic injuries sustained by a student while undertaking swimming training in a Council pool during the school holidays.

The decision is a reminder to defendants and their insurers and lawyers to carefully consider issues – the mere fact that a plaintiff is able to point to some deficiency in the defendant’s systems or procedures is not conclusive proof of negligence. The plaintiff must still prove that the deficiency was causative of their injury.


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.

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.

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; and
  • 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.

Negligence of the school
Relevance of risk assessments and regulatory guidance

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.

The Court concluded that a risk assessment would not have produced any different result.

Proposed risk prevention measures must be practicable and capable of preventing the loss

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 practicable 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.

The Court also held that the presence of a licensed swimming coach to supervise the plaintiff’s training would not have prevented the accident.

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.

Causation is critical

While the decision ultimately turned upon the unique (and tragic) facts of the case, the decision emphasises that even if a plaintiff can prove there was some deficiency in defendant’s systems or procedures, that is not conclusive proof of negligence – they must go on to prove that the deficiency was causative of their injury.

This article was written by James McIntyre, Special Counsel and David Muir, Partner.

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