Overview of a recent negligence case highlighting the importance of Council developing and implementing risk management assessments for all high risk public areas, in this particular case swimming pools.

Emilie Miller vs Lithgow City Council and The Uniting Church in Australia Property Trust t/as Kinross Wolaroi School

Emilie Miller was a student at Kinross Wolaroi School and a competitive swimmer. The school enrolled her in the NSW State Age Swimming Championships, due to commence on 12 January 2008. In preparation, Emilie’s swim coach provided her with a training programme which necessitated diving in both ends of the pool. She was 12 years old at the time, a very experienced swimmer and no stranger to shallow end diving.

Emilie had been a member of swimming clubs from the age of seven. In 2006 the school swim coach taught her a track start dive technique where the swimmer sets up for entry into the water with one foot and both hands grabbing the pool coping and the rear foot separated, some distance behind. The intention of a track start dive is to gain as much horizontal flight as possible.

She had been training at Lithgow War Memorial Pool for two weeks prior to the accident. On 7 January 2008, when attempting a track start dive at the shallow end, Emilie’s rear foot slipped causing her to lose control of horizontal flight. When she entered the water her head struck the bottom. She was rendered a tetraplegic.

Training and Education

Emilie sued Council on the basis that she was permitted to dive into the pool in circumstances where:

  1. there was a general prohibition on shallow end diving;
  2. her rear foot was directly in the vicinity of a ‘No Diving’ sign which was spray painted onto the concourse surface. This reduced the available slip resistance for her rear foot;
  3. Council had no system in place to monitor the slip resistance of the pool surround;
  4. Council didn’t satisfy itself the absence of grab-holds on the coping meant the pool wasn’t suitable for Emilie to perform a shallow dive; and
  5. Council failed to carry out risk assessment prior to permitting Emilie to dive. This included:
checking the depth of the pool;
the distance from the concourse to water surface;
the impact of a slight slope away from the pool off the concourse;
uneven, broken tiles around the pool coping;
variable slip resistance between the painted and unpainted portions of the concourse.

The school was also sued on the basis that it devised a programme which necessitated shallow end diving in circumstances where it didn’t satisfy itself as to the suitability of the pool for that purpose. It was asserted the school was aware track start dives carried with them a higher risk of injury alternative diving techniques.

The judge in the case found in favour of Emilie as against the school, but found in favour of Council in relation to the allegations against it. The decision ultimately came down to a finding that the school was aware of the higher risks associated with track start dives. Nonetheless, it actively encouraged her to shallow end dive but failed to continuously warn her of the possible catastrophic outcome if a shallow end dive went wrong.

It’s relevant to note that the school’s swim coach had been to the pool approximately 10 months prior to the accident and thus was familiar with its characteristics. The coach was also aware that Emilie intended to train at the pool.

As against Council, the judge found there was insufficient evidence to suggest they were privy to knowledge that there were higher risks associated with shallow end diving compared to grab start dives. He found the evidence didn’t establish Emilie had her rear foot on the ‘No Diving’ sign and in any event, he wasn’t persuaded that the evidence established that the sign materially affected the available slip resistance. He found the presence or absence of a qualified coach would not necessarily have altered the outcome.

It remains to be seen if the school will appeal.

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