A blameless plaintiff does not automatically make defendants liable
Mar 2016 |
The facts
The 12 year old plaintiff was an outstanding young swimmer. Just prior to the incident, she was age champion at her school and in the District, was a multiple medalist at Regional and State levels, had appeared in the top 10 age rankings at National level in four events, and was expected to compete in at least four events in the Australian Age Nationals later that year.
On 7 January 2008, the plaintiff was undertaking a training program at Lithgow Memorial Swimming Pool which was managed by Lithgow City Council (council). The plaintiff was training with two friends, Tom and Jordan Brodie, under the supervision of their father (Mr Brodie). The training program was written by her coach (Mr Critoph) who was the swimming coach of Kinross Wolaroi School (school), however, as he was away at the time he gave the program to Mr Brodie to implement with his two sons and the plaintiff.
The training program involved each swimmer diving 10 times from the deep end and 10 times from the shallow end. When commencing her second dive, but first dive from the shallow end, the plaintiff’s foot slipped in what may have been a puddle of water and she collided with the bottom of the pool, rendering her tetraplegic. The plaintiff had dived from the concourse (not a diving block), and was standing near, or on, a ‘no diving’ sign.
The plaintiff was undertaking a ‘track-start’ dive, taught by Mr Critoph, which involved placing one foot on the edge of the concourse/block with toes gripping its edge, and placing the second foot some 50-60cm to the rear. Swimmers then lean down, placing hands at the edge of the concourse/block, and then propel themselves into the water using both hands and feet. At the time of the incident, the plaintiff would have performed track-dives on hundreds, but more probably thousands, of occasions.
The plaintiff subsequently claimed damages in negligence against the school, having a non-delegable duty of care for its servant/agent (Mr Brodie while supplementing Mr Critoph’s role), on the basis that it failed to conduct an inspection or risk assessment of the pool ‘in respect of its suitability to be used for swimming training exercises involving dive entry into the shallow end’ when there were non-coping tiles, for failing to warn the plaintiff of the risk of injury in performing ‘track-start’ dives, and failing to teach the plaintiff how to abort the dive to avoid injury. None of the allegations referred to any provisions of the Civil Liability Act 2003 (NSW) (CLA).
The plaintiff also claimed damages against the council for failing to prohibit dives from the shallow end of the pool (under the supervision of Mr Brodie or otherwise), and failing to have a sign that read ‘Warning: Dive Entries Permitted by Trained Swimmer Under Coach’s Supervision Only’ in accordance with SU22, the supervisory guideline issued by Royal Life Saving Society Australia (RLSSA).
The trial judge gave a verdict in favour of the plaintiff against the school on the basis that it was unreasonable that the school encouraged the plaintiff to use the ‘track-start’ dive at the shallow end of the pool, especially when gripping coping tiles were lacking.
The plaintiff, however, failed against the council as it would not have been reasonable for the council to be aware of the increased risk associated with ‘track-start’ dives, the difference between ‘track-start’ or other dives, or of the importance of gripping coping tiles.
The plaintiff appealed the decision against the council. The school also appealed.
Issues
The following issues were considered:
- Whether the trial judge erred in finding that the school was liable (for reasons outlined above); and
- Whether the trial judge erred in finding that the council was not liable.
Decision
Appeal against the council
The Court of Appeal considered the RLSSA guidelines, expert evidence, and academic literature from the Department of Education and Training and Department of Local Government regarding the plaintiff’s allegation that the council ought to have been aware of an increased risk of executing ‘track-start’ dives and the importance of the coping tiles.
The Court of Appeal found that the plaintiff failed to establish that the council was, or ought reasonably to have been, aware of the literature, and that there was nothing in the literature that would have alerted the council to the increased risk of the track-start dive or coping tiles in any event.
The Court of Appeal also found that pursuant to SU22 of the RLSSA, the absence of any warning sign had no relevance to the plaintiff as a trained competitive swimmer.
The plaintiff’s appeal against the council was dismissed.
School’s appeal
The Court of Appeal was critical that the plaintiff made no allegations pursuant to the CLA, such as whether the risk of harm was reasonably foreseeable to the school for the purposes of s 5B of the CLA. The importance of pleadings and submissions was emphasised.
The Court of Appeal found:
- There was no evidence to suggest that if the plaintiff had been trained to abort the ‘track-start’ dive, that she could or would have done so on the date of the incident;
- When considering the available literature, there was no basis for the school to have been aware of that literature, and any increased risk associated with ‘track-start’ dives, particularly given the literature indicated the safety of the ‘track-start’ dive compared to other diving techniques;
- Ultimately the plaintiff’s foot slipped when executing the ‘track-start’ dive which was causative of her fall, rather than as a result of non-gripping tiles; and
- Given the above, the alleged failure of the school in carrying out a risk assessment was not causative of the plaintiff’s injuries.
Lessons to be learned
This decision demonstrates that even in the event that the plaintiff’s foot was found to have slipped on the tiles whilst attempting to execute a ‘track-start’ dive, it did not automatically follow that the tiles were defective or unsuitable or that a risk assessment would have identified any risk which could have prevented the incident from occurring. There was also no evidence to suggest that the plaintiff could have been trained to abort a dive gone wrong, or that she would have done so on the day of the incident. Further, just because literature is available that provides commentary and recommendations regarding diving, it does not automatically follow that being aware of the literature could have prevented the incident from occurring.
Public liability insurers ought to consider whether the availability of guidelines and expert opinion, lack of site inspections and risk assessments, and any failure to train is likely to impact whether the incident would have occurred in any event.
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