Miller v Lithgow City Council

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Supreme Court

New South Wales
Case Title: Miller v Lithgow City Council
Medium Neutral Citation: [2014] NSWSC 1579
Hearing Date(s): 15-19 September 2014; 22-26 September, 2014; 29 September 2014
Decision Date: 28 November 2014
Jurisdiction: Common Law
Before: RS Hulme AJ
Decision:

(i) A verdict and judgment for the First Defendant against the Plaintiff;
(ii) A verdict for the Plaintiff against the Second Defendant for damages to be assessed;
(iii) A verdict and judgment for the Cross-Defendant on the First Cross-Claim;
(iv) A verdict and judgment for the Cross-Defendant on the Second Cross-Claim;
Costs reserved.
Catchwords: Negligence - school and pupil - council pool sporting activity - swimming
Legislation Cited: Civil Liability Act
Category: Principal judgment
Parties: Emilie Kate Miller by her tutor Donna Maree Miller (P)
Lithgow City Council (D1)
The Uniting Church in Australia Property Trust (NSW) (D2)
Representation
- Counsel: Counsel:
- Solicitors: Solicitors:
File Number(s): 2010/401465

JUDGMENT

  1. HIS HONOUR: The plaintiff in these proceedings is a tetraplegic. She acquired that disability on 7 January 2008 when aged 12 and in consequence of diving into the shallow end of a public swimming pool run by the First Defendant, the Lithgow City Council.

  2. Prior to that time she was, for someone her age, a very experienced and very competent, swimmer, ranked in the top 20 Australian girls of her age for a number of events. She was a member of the Bathurst Swimming Club from 2003 until 2005. In April 2005 at the invitation of its coach, she became a member of the Kinross Wolaroi School Swimming Club ("KWSC") and in early 2007 was awarded a school bursary and became a member of the Kinross Wolaroi School under the aegis of which the similarly named swimming club existed. The school was conducted by the Second Defendant.

  3. The Plaintiff sues both Defendants alleging that her injury was the result of each breaching a duty of care it owed her.

  4. At the time of the accident, the Plaintiff was engaged in swimming training for the NSW State Age Swimming Championships scheduled to commence on 12 January. She was under some supervision by a Mr Brodie whose two children were also members of the KWSC, whom the school had also entered to compete in the same titles and who were training at the same time. Mr Brodie was following a program that Mr Critoph, the school's swimming coach, had set. Mr Brodie would reproduce the program on a white board at one end of the pool where it could be read by the swimmers.

  5. The Plaintiff had been taken to the Lithgow pool by her grandmother who paid an entrance fee for the Plaintiff's admission. All three children carried out some warm-up exercises on the land and then swam some laps which, for the Plaintiff, totalled 400 or 500 metres. The next item on the program Mr Critoph had laid out and the next embarked upon, was a series of laps wherein contemporaneously the children were expected to dive in, swim…

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Details
Case
[2014] NSWSC 1579
Decision Date

CaseChat Overview and Summary

Miller v Lithgow City Council concerned a negligence claim brought by the plaintiff against the Lithgow City Council, arising from an injury sustained during a school swimming activity. The plaintiff alleged that the council was negligent in maintaining the pool area where she slipped and injured herself while diving into the pool. The matter was heard in the District Court of New South Wales.

The court had to decide whether the Lithgow City Council was negligent in its maintenance of the pool area, which led to the plaintiff's injury. This involved assessing the adequacy of the pool's coping, the presence of any hazards such as duck droppings, and whether the plaintiff was sufficiently inducted into the pool environment. The court also had to consider the plaintiff's experience as a swimmer and the differences between the Lithgow pool and her usual school pool.

The court found that the immediate cause of the plaintiff's injury was the slippage of her rear foot, which reduced her forward velocity. The court noted that the pool's coping was likely not optimal for forward propulsion and that the plaintiff's comparison of the Lithgow pool's coping with her school pool's coping supported this view. However, the court concluded that there was no evidence that the pool's surround or "NO DIVING" sign contributed to the accident. The court also dismissed the possibility of duck droppings being a contributing factor, given the plaintiff's lack of notice and the improbability of their presence on the specific date and location. The court found that the plaintiff's swimming experience was sufficient and that any failure to induct her into the Lithgow pool was not causative of her accident.

The court ultimately dismissed the plaintiff's claim, finding that the Lithgow City Council was not negligent in its maintenance of the pool area.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I confess I formed the view that these joint reports added little but confusion to the case. Although there was some degree of unanimity, the ambit of the issues dealt with, the extent of Mr Sweetenham's disagreement and comments were calculated to add complexity. The matter was made no easier by some difficulty on the part of the witnesses in understanding the questions. Conclusions What conclusions should flow from all this? Firstly, I should record that subject to remarks already made, all witnesses struck me as honest and doing their best to tell the truth. Secondly, it seems clear that the immediate cause of the Plaintiff's dive not proceeding normally was that her rear foot slipped. As a matter of simple physics, it is to be inferred that that slippage reduced or eliminated any horizontal velocity that the Plaintiff would otherwise have acquired by use of the rear foot. The criticism of Professor Blitvich and Mr Sweetenham of the coping would suggest that it was likely not to provide as good a toe or foothold as is desirable to assist in forward propulsion. The Plaintiff's evidence of a poor grip and comparing the coping at Lithgow pool with that at the school pool, confirms that view. Her striking of the bottom of the pool suggests that a factor in her doing so, was the lack of sufficient velocity in the direction of the length of the pool. Thirdly, there is nothing to suggest that that slipping was due to any fault in the general pool surround or the "NO DIVING" sign near the beginning of lane 3 or water on that surround or sign. Matters I have referred to from Dr Gibson's report, argue against the surround or sign being in any way that could be criticised, a contributing factor. That evidence is far more compelling than the answers to question 10 of the Second Defendant's questions in Exhibit AA. While I do not exclude the possibility that from time to time some duck droppings may have been missed in the course of hosing them off, the probabilities favour them not having been there on 7 January and in the area where the Plaintiff placed her back foot. A fortiori is this so, given that the Plaintiff seems not to have noticed any. And even if one accepts an argument adduced on behalf of the Plaintiff, that because her foot slipped (for the first time), therefore the deck must have been slippery, there was no evidence that the fact should have been known to the First Defendant. Given the extent of the Plaintiff's swimming prior to 7 January, I do not accept Mr Sweetenham's description, and Professor Blitvich's similar views, of the Plaintiff as inexperienced. Given her experience, including her use of the Lithgow pool in the preceding week and earlier, and laps swum on 7 January 2008, I am not persuaded that any failure to "induct" the Plaintiff into the Lithgow pool was in any way causative of her accident. I see no basis also for concluding that the 12cm difference in depth between the Lithgow pool and the school pool of which Professor Blitvich spoke, was causative or contributed to the Plaintiff's injury.

Ratio Decidendi

Legal Principle Established

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