Uniting Church in Australia Property Trust (NSW) V Miller; Miller v Lithgow City Council

[2015] NSWCA 320

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320

Hearing dates:

1 - 2 September 2015

Decision date:

15 October 2015

Before:

Basten JA at [1];
Leeming JA at [2];
Simpson JA at [166]

Decision:

1. Grant leave to appeal and allow the School’s appeal against Ms Miller.

 

2. Set aside order (ii) made on 28 November 2014 (namely, “A verdict for the Plaintiff against the Second Defendant for damages to be assessed”) and in lieu thereof, dismiss the proceedings against the School.

 

3. The proposed amended notice of first cross-appeal provided to the Court on 1 September 2015 be treated as a notice of appeal.

 

4. Grant Ms Miller leave to rely upon paragraphs 21 - 25 and 35 as if they were grounds of appeal.

 

5. Dispense with the requirement to file and serve a notice of appeal.

 

6. Dismiss Ms Miller’s appeal against the Council.

 

7. Ms Miller to pay the costs of the Council and the School, at first instance and on appeal.

8. Ms Miller to have a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the School’s appeal.

Catchwords:

NEGLIGENCE – school student injured while training in Council pool – pupil directed by swimming coach employed by School to dive into shallow end of pool – pupil slipped and suffered serious injury – whether Council liable to pupil – where guidance to pool operators permitted diving by trained competitors into shallow end of pool – whether School liable to pupil for failing to train her to abort a mis-executed dive – whether School liable for failing to be aware of elevated risk of track-start dive at a pool without readily grippable coping tiles – whether School liable for failing to conduct a risk assessment of pool – consideration of “risk of harm”, breach of duty and causation – appeal by School allowed, appeal by pupil against Council dismissed

Legislation Cited:

Civil Liability Act 2002 (NSW), Pt 1A, ss 5B, 5C, 5D, 5G, 5H, 5I, 5L, 5M
Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 51.18
Uniting Church in Australia Act 1977 (NSW), s 12

Cases Cited:

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243; [2002] Aust Torts Rep 81-636
Erickson v Bagley [2015] VSCA 220
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Geyer v Downs (1977) 138 CLR 91
Gugiatti v Servite College Council Inc [2004] WASCA 5
Miller v Lithgow City Council [2013] NSWSC 427
Miller v Lithgow City Council [2014] NSWSC 1579
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362
Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172
Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
Roman Catholic Church v Koffman [1996] Aust Torts Rep 81-399
Sharp v Parramatta City Council [2015] NSWCA 260
Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53
Streller v Albury City Council [2013] NSWCA 348; [2013] Aust Torts Rep 82-146
Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437; 88 NSWLR 449
Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537
Wyong Shire Council v Shirt (1980) 146 CLR 40
Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85; [2009] Aust Torts Rep 82-024

Texts Cited:

S Campbell, “Identifying the risk of harm – s 5B Civil Liability Act 2002”, 21 March 2015, Sydney
P Garling, “Civil Liability Act 2002 - Burden for a Defendant - NSW Bar Association Personal Injury Conference” [2014] NSWJSchol 14
W Twining and D Miers, How to Do Things with Rules, (5th ed, 2010, Cambridge University Press)

Category:

Principal judgment

Parties:

Uniting Church in Australia Property Trust (NSW) (Applicant)
Emilie Miller (First Respondent and Appellant)
Lithgow City Council (Second Respondent and Respondent to Ms Miller’s appeal)

Representation:

Counsel:
R Cavanagh SC, C Purdy (School)
PR Hennessy SC, EG Romaniuk SC, MA Kumar (Ms Miller)
R Sheldon SC, P Knowles (Council)

  Solicitors:
Moray & Agnew (School)
McIntosh McPhillamy & Co (Ms Miller)
Mills Oakley (Council)

File Number(s):

2014/371514

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2014] NSWSC 1579

Date of Decision:

28 November 2014

Before:

R S Hulme AJ

File Number(s):

2010/401465

Judgment

1. BASTEN JA: I agree with Leeming JA.

2. LEEMING JA: Emilie Kate Miller was an outstanding young swimmer. In January 2008 she was age champion at her school and in the District, was a multiple medallist at both Regional and State levels, had appeared in the top 10 age rankings at the National level in four events and was expecting to compete in at least four events at the Australian Age Nationals later in the year. She held five records at her school, Kinross Wolaroi School in Orange, including some that had previously been held by Olympian Anna Windsor. She had been awarded a bursary in recognition of her abilities. She had completed Year Seven.

3. On the morning of 7 January 2008, Ms Miller was training in the school holidays at Lithgow War Memorial Swimming Pool with two friends, Tom and Jordan Brodie. Ms Miller was 12 years old, and Tom and Jordan were aged about 14 and 12. While under the supervision of her friends’ father, Ms Miller slipped while diving into the shallow end, colliding with the bottom of the pool and fracturing one of her cervical vertebrae. She was rescued from the pool and transferred by air to the Children’s Hospital at Westmead. Initially she had complete C5-6 tetraplegia. In the ensuing months her condition improved, including movement in her shoulder and a grip permitting her to hold a pen. She was able to return to her school in the second half of 2008. By the time of the trial, she was in her second year of university and had taken up hand-cycling, with considerable success.

4. Ms Miller (by her tutor, for she was not yet 18) sued Lithgow City Council, which managed the pool as trustee of the Lithgow Public Park Reserve Trust, and the Uniting Church in Australia Property Trust (NSW), a corporation constituted by s 12 of the Uniting Church in Australia Act 1977 (NSW), which operated Kinross Wolaroi School and was liable for tortious conduct of its servants and agents. Nothing turns for the purposes of this appeal upon the details of the status of the defendants, and it will be convenient to refer to them as the Council and the School. Following a trial confined to questions of liability, the primary judge gave a judgment in favour of the Council, and a judgment in favour of Ms Miller against the School.

5. The School sought leave to appeal, and its interlocutory application for leave was heard concurrently with its appeal. Ms Miller appealed against the judgment exonerating the Council. Both proceedings were heard together. For the reasons which follow, I have concluded that the School’s appeal against Ms Miller should be allowed, and Ms Miller’s appeal against the Council dismissed.

6. These reasons start with the uncontroversial factual and procedural background. It is then most convenient to deal first with Ms Miller’s appeal against the Council, commencing with the guidance afforded to the Council by documents from Royal Life Saving Society Australia and by the Departments of Education and Training and Local Government, the academic literature and expert evidence on which reliance was placed, and each of the grounds of that appeal. I then turn to the School’s appeal against Ms Miller, which raises the question of “risk of harm” posed by the Civil Liability Act 2002 (NSW), and then address each of the bases on which the primary judge held there was liability, as well as Ms Miller’s notice of contention, seeking to rely on additional grounds.

Factual background

7. There was no dispute about much of the factual background preceding Ms Miller’s accident. She had been a member of the Bathurst Swimming Club from 2003 until, in April 2005, she became a member of the Kinross Wolaroi School Swimming Club. That club had been established primarily to enable swimmers from the School to compete at State and National levels (entrance into those events required membership of a club rather than merely being a student of a school). Ms Miller commenced at the School in 2007 as a student in Year 7. The School’s swimming coach was Mr Stephen Critoph. The School had a 25 m pool on its premises where Ms Miller trained. It was about 1.2 m deep at the shallow end. She also trained at a public pool in Orange.

8. Mr Critoph had taught Ms Miller to execute a dive known as a “track-start” dive. The dive involves placing one foot on the edge of the concourse or diving block, with the toes gripping its edge, and placing the second foot some 500-600 mm to the rear. The swimmer then leans down, placing his or her hands at the edge of the concourse or block, and then is propelled into the water using both hands and both feet.

9. Ms Miller was initially trained in the track-start dive at the deep end of the School pool using starting blocks. After a period of practice, she began to perform the dive from the shallow end as well. She said that she was never advised of any risks associated with carrying out the dive at the shallow end of the pool, and the primary judge accepted that evidence. From early 2006, she invariably used the track-start dive to commence both races and training swims. The primary judge found that Ms Miller must have used that form of dive on “many hundreds but more probably on thousands of occasions”. Until 7 January 2008, she had never had any problems.

10. During the Christmas holidays in 2007, Ms Miller continued to train at the School pool under the guidance of Mr Critoph until around 20 December, both morning and night. Mr Critoph was required to take annual leave from around 20 December 2007. In view of the upcoming State Age Championships that Ms Miller would be competing in, Mr Critoph arranged for Ms Miller to train with the Brodie children during his period of leave, under the supervision of their father, Mr Brodie. They were to train at the Council’s pool in Lithgow, some 120 km from Orange. Mr Critoph provided Mr Brodie with both a dry land and a swimming program for Ms Miller and Tom and Jordan Brodie, as he had done with other elite swimmers at the School. The program was printed on KWS Swimming letterhead and addressed personally to Mr Brodie. It was in the following terms:

“One last program for the summer thanks for your assistance over this time. Tom, Jordan and Emilie will all benefit at State from the work they completed. As usual give me a ring and let me know how they go.

Thanks see you on Friday

Steve

500 easy

20 x 25 Dive Fast on 1.30

Swim through to other end

15 x 200 sets 5 every 5th IM

On 3.00 IM on 4.00

400 swim down.”

11. There was no dispute that the program involved swimming 10 laps at a relatively easy pace (“500 easy”). Thereafter, each child was asked to swim 20 laps, commencing with a dive, swimming the first 25 m as quickly as possible, and completing the lap at an easier pace. Each lap was to be completed in 1.5 mins (“20 x 25 dive fast on 1.30 swim through to other end”).

12. Thus, Mr Critoph’s program involved each swimmer diving 10 times from the deep end and 10 times from the shallow end of the Lithgow pool. The primary judge found that the pool was 1.08 m deep at its shallow end which meant there was some 250 mm between the surface of the water and the top surface of the edge tiles. Starting blocks were not used.

13. The evidence was unclear as to how many occasions Ms Miller had trained at Lithgow pool prior to 7 January 2008. She was “not entirely sure” whether she had trained “five or seven or three or four” days in the previous week, although she confirmed that she trained only once a day.

14. Ms Miller’s accident occurred on the second of the 20 laps following the 500 m “easy” warm-up swim. That was the first time that day she had dived into the pool from the shallow end. She was in lane three, with Tom and Jordan in lanes one and two. She was standing near (or possibly, actually on) a “NO DIVING” sign painted onto the concrete concourse surrounding the pool. Mr Brodie timed each lap with his stopwatch, and was not watching the children when the three dived in. The only direct evidence as to how Ms Miller fell came from her. She said that when Mr Brodie said “go” she pulled hard with her hands and arms and at the same time pushed hard with her left foot, which was behind her, so as “to push myself forward as hard as I could into the dive”. She then said:

“As I was pushing hard with my left foot and leg I felt my left foot slip badly. I happened to be standing in a puddle of water, when [Mr Brodie] said ‘ready, set, go’. My back foot slipped in the water.

I was going forward and could not stop.

My back foot was in the area of the painted ‘no diving’ sign at lane three.

When my left foot slipped my body twisted. I had a poor grip on the coping with the toes of my right foot and with my hands.

I was not able to get my arms and hands ahead of me to enter the water first.

I fell forward with my head down and entered the water.”

15. The primary judge accepted Ms Miller’s evidence. He found that her back foot slipped. His Honour said that there was “no clear and direct evidence as to what caused [Ms Miller’s] back foot to slip”. His Honour noted various hypotheses, including imperfect drainage resulting in a puddle of water, duck droppings, the slope of the surface, and the slipperiness of a painted “NO DIVING” sign. His Honour was sceptical of each of those hypotheses (at [169]-[171]) and ultimately made no finding as to what caused Ms Miller’s back foot to slip.

16. His Honour accepted criticisms of the coping tile – the tile forming the edge of the concourse at the shallow end of the pool and the vertical pool wall – from Ms Miller’s experts to the effect that “it was likely not to provide as good a toe or foothold as is desirable to assist in forward propulsion” (at [168]). His Honour reasoned that the slip of Ms Miller’s back foot reduced or eliminated the horizontal velocity she would have acquired from the use of that foot. His Honour inferred that the reduced grip of the coping tiles contributed to the accident by not providing a great deal of horizontal velocity (at [168] and [182]-[183]).

17. Photographs taken a few weeks after Ms Miller’s accident identify a single row of black, ridged tiles on the edge of the concrete concourse adjacent to the pool, and above the vertical tiled internal wall of the pool. (There were two rows of tiles along the longer sides of the pool, as noted by the primary judge at [22], but only one along the shorter sides from where Ms Miller dived into the pool.)

18. The primary judge found, relying upon those photographs, that the coping tiles above lane three overhung the water to a slight degree. His Honour was unable to determine whether the top of each tile was horizontal or slightly angled. His Honour rejected the evidence of Ms Miller who said that there was no surface of the tiles overhanging the water, although he confirmed that “any overhang was very small”. Those findings were not subject to challenge on appeal. There was evidence from one of the plaintiff’s experts that the edge of the Lithgow pool was “pretty typical” for a public pool.

19. It is unclear whether the primary judge had regard to the limitations of photographic evidence; cf Yarrabee Coal Company Pty Ltd v Lujans [2009] NSWCA 85; [2009] Aust Torts Rep 82-024 at [20]-[29] and [179]-[180]. It is difficult to gauge from the photographs the extent to which the coping tile extended (the same was true of the depth of the drain photographed in Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172 at [47]). Still less do the photographs disclose how “grippy” the tiles at the edge of the pool were.

20. Although there was testimonial evidence from Ms Miller as to the condition of the pool, none of the experts had seen the shallow end in the form it took in January 2008. At some stage, years before the hearing, Lithgow pool was (slightly) shortened, and a new shallow vertical wall and coping tiles were constructed. In its present condition, the tiles are 200 mm in width and have a slight (1.7 per cent) gradient draining away from the pool. On the view I take, it will not be necessary to consider what may safely be taken from the photographic evidence any further.

Procedural history

21. In light of some of the School’s submissions on appeal, it is necessary to say something of the pleadings and the course of the trial. Proceedings were commenced in the Common Law Division in 2010. Substantial amendments were made to the statement of claim in August 2013, and further minor amendments on 22 September 2014 on the sixth day of the trial. The pleading gives “particulars of negligence” of the Council and the School extending over six and five pages respectively. None of its allegations refers to any provision of the Civil Liability Act. It was alleged that the School by reason of its non-delegable duty of care was liable for the acts, omissions and conduct of Mr Brodie, who was also said to be its “servant and/or agent”. Otherwise, the particulars of negligence alleged against the School presupposed an obligation to undertake an inspection or risk assessment of the swimming pool “in respect of its suitability to be used for swimming training exercises involving dive entry into the shallow end”. It was also alleged that the School failed to warn Ms Miller of the risk of injury in performing a “track-start” dive. It was not alleged that Mr Critoph knew of the physical conditions of the Lithgow pool.

22. The School relied upon s 5L of the Civil Liability Act, alleging that the harm was suffered as a result of the materialisation of an obvious risk of the dangerous recreational activity engaged in by Ms Miller. This was rejected at trial and is outside the scope of the School’s appeal.

23. The trial took place over 11 days in September 2014, with judgment delivered on 28 November 2014: Miller v Lithgow City Council [2014] NSWSC 1579. In accordance with the outcome of a contested hearing in 2013, the trial was confined to questions of liability: Miller v Lithgow City Council [2013] NSWSC 427. Testimonial evidence was given by, amongst others, Ms Miller and her mother, Mr Brodie, and Ms Treena McFadden, a lifeguard employed at Lithgow pool who was on duty on 7 January 2008. No party called Mr Critoph or Mr Dart (who was another Council employee on duty at the time who assisted Ms Miller after her accident). Submissions were made at trial and on appeal about the inferences to be drawn from the failure to call those men. Oral evidence relevant to the issues raised on appeal was also given by three experts, Associate Professor Jennifer Blitvich from the University of Ballarat, Mr William Sweetenham, formerly head swimming coach at the Australian Institute of Sport, and Mr David Speechley, the general manager of the Australian Swimming Coaches and Teachers Association.

24. The primary judge gave a verdict in favour of Ms Miller against the School, with damages to be assessed, and a verdict and judgment for the Council against Ms Miller. The orders against the School were interlocutory. The School sought leave to appeal and in April 2015 a direction was made for a concurrent hearing, with an estimate of two days, on 1 and 2 September 2015. The School’s notice of appeal joined the Council.

21. Ms Miller had a right of appeal from the (final) judgment against her in favour of the Council. No notice of appeal was filed. Instead, a “notice of first cross-appeal” was filed as late as 17 July 2015. It contained a single ground, namely, “[t]he Trial Judge erred in not finding that the First Cross-Respondent was negligent”. Ms Miller had filed lengthy written submissions (of 48 pages including an annexure of 16 pages) a few days earlier, which included submissions directed to the Council. The Council’s submissions in response observed, correctly, that there had been non-compliance with the rules requiring identification of the grounds of appeal and the material facts which were contended should have been found and had not been found, or were found and should not have been found: Uniform Civil Procedure Rules 2005 (NSW) r 51.18(1)(e) and (2). In an attempt to address this, a proposed “amended notice of first cross-appeal” was served on the afternoon preceding the hearing. The document contained 11 material facts which, it was said, the court below should have found, and a further 13 material facts which, it was said, the court below should not have found. At the commencement of the hearing, a further version of that document was supplied, containing cross-references to Ms Miller’s submissions in relation to each of those categories of material facts.

22. Ultimately, all parties were content to proceed on the basis that (1) the proposed amended notice of first cross-appeal be treated as a notice of appeal, (2) Ms Miller have leave to rely upon paragraphs 21 - 25 and 35 as if they were grounds of appeal and (3) the cross-claims be deferred on the basis that questions of statutory contribution would only arise if both School and Council were liable, and apportionment could not meaningfully be determined until the basis of their liability had been identified (transcript, 1 September 2015, pp 40-41). I propose that formal orders to the effect of (1) and (2) above be made. (It is not necessary in light of the result to make any orders dealing with the cross-claims.)

23. The grounds of Ms Miller’s appeal against the Council were in the following terms (ground 22 is omitted; it was directed to the School and had no bearing on the appeal against the Council):

“21 The [Council] was negligent by:

(a) lifting the prohibition on diving from the shallow end;

(b) lifting the prohibition on diving from the shallow end without a qualified coach supervising [Ms Miller]; and/or,

(c) lifting the prohibition on diving from the shallow end without displaying a sign in accordance with SU 22, ‘Warning: Dive Entries Permitted by Trained Swimmer Under Coach’s Supervision Only.’

…

23 The [Council’s] failure to call Mr Dart gave rise to a Jones v Dunkel inference.

24 [The primary judge erred in finding that] [t]here was not anything unreasonable in the [Council] permitting such diving in circumstances of training: TJ [173].

25 [The primary judge erred in finding that] ‘[n]o diving’ prohibitions are directed to the general public: TJ [174].

…

35 [The primary judge erred in finding that] [t]here is no basis for concluding that prior to 7 January 2008, the [Council] should have become aware of any significant increase in danger associated with track-start dives or of the importance of a readily grippable coping or any other basis for drawing a distinction between track-start and other dives: TJ [195].”

28. The paragraphs about “lifting the prohibition on diving” and the warning said to have been required by SU 22, as well as the fact that a “NO DIVING” sign was painted on the concrete surrounds near where Ms Miller dived into the shallow end of the pool, refer to two publications containing supervisory guidance issued by Royal Life Saving Society Australia (known as “SU 21” and “SU 22”).

SU 21 and SU 22

29. Royal Life Saving Society Australia circulated SU 22 “Safer Water Entry for Competitions – Competitive Dive Starts” on 14 November 2005. Its purpose was expressed to be to “provide guidance on safer water entry (Competitive Dive Starts) for competitors during competition and training for competition”. At the same time, the organisation revised SU 21 “Supervision of Diving (Recreational Swimming)”, which had originally been published in January 2001.

30. SU 21, under the heading “Depths for Recreational Dives” stated that “[a] dive entry should not be permitted into a water depth of less than 1800 mm” and, in the case of dive entries from a starting block, “should not be permitted into water depth less than 2000 mm”. Consistently with its focus being upon recreational swimming, cl 5.3(a) provided that “[p]ermanent starting blocks located at water less than 1800 mm deep should be isolated to prevent their use during recreational swimming”.

31. In contrast, SU 22 expressly permitted competitive dive starts by trained competitors in shallower water, during competitions and training. Clauses 5.3 and 5.4 were prominent both at trial and on appeal. They are in the following terms:

“5.3 Water Depths for Starts for Competition Swimming and Training (for trained competitors)

(a) In water depth less than 900 mm dive starts should not be permitted. All events should be commenced in the water.

(b) In water depths 900 mm to 1000 mm:

•  competitive dive starts may be permitted from concourse level to a maximum height above water of 200 mm

•  if concourse height is greater than 200 mm above the surface of the water, starts should be commenced in the water.

(c) In water depths greater than 1000 mm and less than 1200 mm:

•  competitive dive starts may be permitted from concourse level to a maximum height above water of 400 mm

•  if concourse height is greater than 400 mm above the surface of the water, starts should be commenced in the water.

(d) In water depths 1200 mm or greater, competitive dive starts may be permitted from a maximum height of 750 mm.

5.4 In swimming pools where recreational and competition / training or learn to swim is being conducted side by side, a warning sign should be prominently displayed adjacent to those areas in which dive entries are being performed by trained (in safe dive entry) swimmers; which reads:

‘Warning: Dive Entries Permitted by Trained Swimmers Under Coach’s Supervision Only’,

or similar.

Note: A sign is not necessary where the pool is being used solely for competition swimming/training or learn to swim under supervision.”

32. It is plain that SU 21 and SU 22 distinguish between recreational diving and diving by “trained competitors”. Clause 5.3(a) of SU 21 recognises the reality that some swimming pools have permanent diving blocks positioned next to water of depth less than 1800 mm. More directly, it is also plain from the carefully calibrated provisions in cl 5.3(a)-(d) of SU 22 that considerable thought has been given to the relationship between the depth of the water and the height above the water’s surface from which a dive may safely commence. Clauses 5.3(b), (c) and (d) proceed on the premise that competitive dive starts may occur at the shallow end of standard pools, so long as the depth is at least 900 mm. The guidelines recognise that there may be a range of depths at the shallow end of such pools, which will determine whether or not competitive dive starts from the concourse, or from starting blocks, may be permitted. The evidence was that no sign in terms of cl 5.4 of SU 22 was displayed at Lithgow pool on the morning of 7 January 2008.

33. Other guidance from the Australian Swimming Coaches and Teachers Association was to the same effect as SU 22.

34. The most recent widely circulated advice prior to 7 January 2008 was a memorandum dated 14 December 2007, circulated by Royal Life Saving Society Australia to “All NSW Aquatic Facilities” commencing with the following note in bold:

“From 2008 all NSW Department of Education and Training (DET) Schools will seek to obtain from Aquatic Facilities a recommendation on whether dive entries are permissible for planned swimming carnival events.”

35. The memorandum gave the following by way of background:

“BACKGROUND:

There is a significant body of evidence to suggest that shallow water diving can lead to a range of injuries that include head injuries (broken teeth, scalp injuries and facial fractures) to the more significant spinal cord injury. Spinal cord injury is sudden and unexpected. It can be devastating and costly in human and social terms. Each year in Australia, about 300 - 400 new incident cases occur. Water related events accounted for 10% (n=25) of persisting spinal cord injury cases reported during 2003-04. 96% (n=23) of water related spinal cord injur[ies] reported had injury to the cervical spinal segments, with 25% sustaining complete injury to the cord after diving into bodies of water without being aware of the depth.

Aquatic Guidelines – Safe Water Entry for Competitions – Competitive Dive Starts has been developed in response to the Royal Life Saving Society Australia – Guidelines for Safe Pool Operation SU22 – Safe Water Entry for Competitions. Royal Life Saving Society Australia produced these Guidelines in 2006 as a result of a number of head and spinal injuries that had occurred during scheduled activities such as swimming carnivals and recreational swimming.

A competitive dive start is defined as entry into water from the side of the pool (flush or raised) or from a starting block for the purpose of starting a swimming based competition or training for a swimming based competition.

Diving is a common entry method for swimming carnival events. Diving into shallow water is a complex skill and is generally taught through structured education and training programs. Many competitors participating in swimming carnivals across NSW have not had the opportunity to undertake a progressive education program on diving.

WHAT DO HOST AQUATIC FACILITIES NEED TO DO?

Facilities hosting School (NSW DET) Swimming Carnivals will need to complete a:

‘Shallow Water Diving Information and Risk Assessment” form’

Part 1 of this form enables the Aquatic Facility to document the depth (entry points) for the pool in which carnival events have been scheduled. The depth measurement will take into consideration not only water depth but concourse and / or starting block heights. This information needs to be applied to a depth matrix (provided with the Aquatic Guidelines) and one of two options identified:

1. An in-water start recommendation (based on the depth of the competition pool and concourse height the recommendation is to commence events in the water – no diving permissible).

2. Competitive dive starts permitted (based on the depth of the competition pool and concourse height a competitive dive start is permissible).

Principals and Carnival Coordinators will then utilise this information and conduct an internal Diving Induction program with their students and staff.”

36. The memorandum attached the booklet “Aquatic Guidelines: Safe Water Entry for Competitions – Competitive Dive Starts”, which was co-branded by the Department of Education and Training and Royal Life Saving Society Australia. The booklet reproduced the entirety of the memorandum, and contained a “Depth Matrix” which reproduced precisely the same fourfold delineation of water depths as was seen in cl 5.3 of SU 22 (which is reproduced above) in the form of a matrix. The booklet also reproduced the entirety of SU 22.

37. The point of the booklet was to require a risk assessment to be carried out by pool operators. The booklet included (as Appendix 1) a blank form, and (as Appendix 2) a completed example.

38. Once again, it is clear beyond argument that the booklet proceeded on the basis that competitive diving into the shallow end of a swimming pool by trained competitors was permitted, so long as the depth exceeded 900 mm.

39. Two features of SU 22 and the memorandum (and attached booklet) may be noted. The first is that “competitive dive starts” were broadly defined, and no distinction was made in relation to any particular type of dive start. The second is that the critical integers in the risk assessment were the depth of water and the height above it from which the competitor started. Nowhere in those documents was any mention made of coping tiles or any other physical characteristic of the pool.

40. The primary judge recorded that there was no evidence that the memorandum and attached booklet had been received by the Council or the School (which was also a pool operator) before 7 January 2008.

41. Finally, the booklet identified eight people who constituted a “Reference Group”. They were three officers from the Department of Education and Training, two members of Royal Life Saving Society Australia, one representative of Warringah Council, one from AustSwim, and Professor Blitvich, who was described as a “Diving Expert”.

42. Some of the expert evidence adduced on behalf of Ms Miller, from extremely well-qualified persons, including Mr Sweetenham (described by the primary judge as being “at the pinnacle of Australian swimming since 1981 or before and among the top 3 or 4 world experts in track and field starts”) and Professor Blitvich, was to the effect that all of the guidance referred to above had failed to catch up with a growing appreciation that there was an elevated risk in a track-start dive. The world body, FINA, had required a minimum depth of 1.35 m for competitive dive starts with starting blocks (FR 2.3). This formed part of the dispositive reasoning of the primary judge in finding the School liable. I return to this below.

Practice Note 15

43. Mr Brodie, although formerly the President of the Lithgow Swimming Club, was not a licensed coach. There was some evidence that Mr Critoph believed, wrongly, that he was a “green licensed coach and member of the Australian Swimming Coaches and Teachers Association”; in fact the primary judge found that Mr Brodie had merely completed the first theoretical component of the green (or basic) course in 2005 or 2006. Mr Brodie’s absence of formal qualifications caused Ms Miller to make claims based on cl 5.4 of SU 22, and to rely upon Practice Note 15.

44. Practice Note 15, “Water Safety”, was circulated by the Department of Local Government in 2005. The purpose of the document was to “assist councils in exercising their water safety functions”. The document provided that “[c]ouncils should adopt a risk management approach to water safety, or some other approach that is systematic and comprehensive in identifying water safety risks and developing strategies to address these risks”. The document added, in bold, that “[c]ouncils should note they remain responsible for the effective implementation of any risk management program regardless of whom they have delegated the life saving function to”.

45. Under the heading “Training of water safety personnel”, the document stated that “[r]egardless of whom the life saving function is delegated to, it is the council’s responsibility to ensure that those carrying out the function have the life saving skills necessary to adequately address the risks associated with the characteristics of the public swimming pools … under council’s control”. The document provided that it was important that councils “ensure that any third party, whether a private owner or a lessee of a swimming pool, who executes a contract between them and the council considers the recommendations within this Practice Note”.

46. Ms Miller placed reliance upon cl 5.1.3, headed “Qualifications for coaching and instructional staff”. That clause provided that:

“[p]ersonnel providing instruction in specific aquatic activities should hold an appropriate and approved qualification. This recommendation should apply to venues coordinating the following activities or for groups hiring the facility to undertake the identified activities.”

That clause further stated:

“A council should consider as a recommended minimum standard of training for learn-to-swim teaching staff the following qualifications:

…

•    competitive swimming coaching:

- Australian Swimming Coaching Qualification, or the equivalent industry qualifications”.

Ms Miller’s appeal against the Council

47. The dispositive reasons of the primary judge in dismissing Ms Miller’s claim against the Council were concise. It is convenient to reproduce them in their entirety:

“[193] I turn to the position of the [Council]. Given the standards for competitive and training dives put out by the various swimming organisations and the frequency of the practice of dives into the shallow ends of pools, I see no basis for concluding that that [Council] should have precluded all dives into the shallow end of the Lithgow pool or was negligent not to do so. Nor, given Mr Brodie’s extensive experience at the Lithgow pool, do I regard the [Council] as negligent in permitting diving when he, rather than some qualified coach, was apparently supervising.

[194] It seems to me that the [Council’s] liability depends on whether it should have been aware of the risks attendant upon a track-start dive or such a dive in the absen[ce] of appropriate coping tiles or the like. In that connection, it is proper to recognise the different positions it and Mr Critoph or the school occupied.

[195] There is no evidence the [Council] subscribed to the publications which Professor Blitvich spoke about or indeed to most of those that were in evidence. I see no basis for concluding that it should have done so. Certainly, it received Practice Note 15 and very probably there would have come a time when it was in possession of the 14 December 2007 Memorandum from the Royal Life Saving Society. However, I see no basis for concluding that prior to 7 January 2008, the [Council] should have become aware of any significant increase in danger associated with track-start dives or of the importance of a readily grippable coping or any other basis for drawing a distinction between track-start and other dives.

[196] In short, I see no breach of duty or negligence by the [Council].”

The knowledge of the Council as at 7 January 2008

48. It is convenient to start with the final ground of appeal (paragraph 35). The reasoning of the primary judge has two elements. The first is that by reason of what was expressed in SU 22 and what had been circulated under cover of the memorandum of 14 December 2007, it was plain “competitive dive starts” were permitted at the shallow end of swimming pools where the depth exceeded 900 mm. It was also plain that those documents referred generically to “competitive dive starts”, without drawing any distinctions between track-start dives or other forms of diving. Accordingly, to the extent to which there was information of which the Council should reasonably have been aware which contradicted SU 22 and the Aquatic Guidelines booklet, it would then have been necessary for it to evaluate whether it should impose a more stringent standard than that contained in SU 22. The difficulties standing in the way of that case are self-evident. They were not grappled with in submissions. Nor will it be necessary to do so in these reasons.

49. Some of the experts who gave evidence believed in more stringent standards. In particular, Professor Blitvich gave evidence that, except in a research setting, she would never permit diving at the shallow end of her pool (which was 1200 mm deep). That was squarely inconsistent with the material circulated throughout New South Wales, including the Aquatic Guidelines booklet bearing her name as “Diving Expert”.

50. Professor Blitvich had also been a member of the panel which generated SU 22. She said that while SU 22 provides guidance to the contrary, she had been of the view that diving should not be permitted into depths of between 1000 mm and 1200 mm of water from a height of less than 400 mm above its level.

51. The discrepancy between Professor Blitvich’s opinions and the published guidelines was readily established in cross-examination:

“Q: And so it is fair to say that you hold a personal view which is contrary to the view of the Royal Life Saving Society of Australia, isn’t it?

A: The practices that I would follow would be more prudent than those in SU 22.”

52. Plainly enough, an attack on the finding as to the Council’s knowledge must turn on what was available to it in January 2008, and not the professional opinions Professor Blitvich gave in evidence to the extent they were “more prudent”. The material on which reliance was placed was (a) academic and professional literature, (b) Practice Note 15 and (c) SU 21 and 22.

Academic literature

53. In her report, Professor Blitvich identified four peer-reviewed publications and two books which were said to be available to inform council pool operators of the risks associated with diving into shallow water and the need for risk assessment and risk management. So much may be accepted. However, that literature was sought to be used by Ms Miller for a different purpose: to attack the more nuanced finding of the primary judge at [195] and contend that the Council should have become aware of an increase in risk associated with track-start dives or the importance of a readily grippable coping tile.

54. The literature identified does not support those propositions. I deal with each article in turn below.

(1)   Counsilman et al, “Three Types of Grab Starts for Competitive Swimming” in BE Ungerechts, K Wilkie and K Reischle (eds) International Series on Sport Sciences Vol 18, Swimming Science V (Champaign, Human Kenetics, 1979) at 81-91

55. The authors were described by Professor Blitvich as “among the earliest authors to consider the risk of spinal injury from competitive swimming starts”. It provides a useful description of the various competitive swimming starts and their evolution:

1. The “grab start” involved placing both feet on the front edge of the starting block and grasping the front edge with both hands. At the sound of the gun, the swimmer pulls himself or herself downward and forward, diving into the water with his or her body inclined at an angle of between 15 and 30 degrees with the surface of the water.

2. The “pike start” or the “scoop start”, where the swimmer started in the same position but leapt upwards and when he or she attained maximum height “piked” at the hips resulting in the body inclining steeply towards the water at an angle of about 45 degrees.

3. The track-start dive, which had gained in popularity since 1980, and which is described at [8] above.

56. The authors stated that many coaches and swimmers believed the scoop start to be the fastest. Following a series of experiments with male college swimmers of national calibre, they concluded that in fact it was inferior, in terms of speed, to both the grab start and the track start. They also observed, unsurprisingly, that the average depth achieved from a scoop start was greater than for the other starts (for example, amongst males the average depth was 3.99 ± 1.08 feet, compared with 2.43 ± 0.51 feet for the flat start and 2.31 ± 0.45 feet for the track start). Their conclusion was that the scoop start not be used in shallow pools of a depth of less than 4 feet, particularly where there were starting blocks.

57. It will be seen that far from indicating an elevated risk associated with track-start dives, this article emphasised the relative safety of track-start dives. It is also plain that the article focussed upon a particular aspect of competitive swimming technique. Professor Blitvich conceded that “this paper is really about the ins and outs of swimming technique rather than running a pool”. It is not literature of which a local council pool operator ought to have been aware.

(2)   J Welch and V Owens, “Water Depth Requirements of Competitive Racing Starts” (1986) 2 J Swimming Research 5-7

58. Welch and Owens were members of the Department of Physical Education of New Mexico State University; their article was based on a study of 30 competitive swimmers filmed through an underwater window, performing “two pike (scoop) and two conventional (flat) starts from 15 inch and 30 inch starting blocks”. It is unclear if any or all of the subjects performed a track-start dive when executing a “conventional (flat) start”. The article was a response to warnings against “using the pike or scoop start in water of 3.5 or 4 foot depth”. The article included five recommendations in relation to using starting blocks and one on which Professor Blitvich placed reliance:

“Coaches who teach any new or unfamiliar methods of starting to swimmers should do so at a depth of at least 6 feet. Swimmers should be permitted to practice the start in shallower water (4.5 feet/minimum) only after demonstrated mastery.”

59. The article observed that it took only 0.5 seconds or less to reach maximum depth (in fact the average times to maximum depth ranged between 0.31 and 0.43 seconds) and said “one must recognize that a distractive thought in a shallow water situation could result in dire consequences”. Implicitly, the article criticised the (then) current NCAA rules, recommending a minimum water depth of 4 feet with maximum permissible starting block height of 30 inches above the surface.

(3)   G Gehlsen and J Wingfield, “Biomechanical Analysis of Competitive Swimming Starts and Spinal Cord Injuries” (2000) 16(7) Swimming in Australia 78

60. The article was first published in 1998 in the Journal of Swimming Research, but was republished in full in “Swimming in Australia” in the January-February 2000 volume. This article was also focussed upon spinal cord injuries resulting from competitive starting block diving. It referred to Welch and Owens’ recommendation that the minimum depth of water for starting blocks should be 1.4 m. It stated:

“The purpose of this study was to determine the effects of starting block height, as well as, the effects of starting block slope on flat and pike competitive racing dive parameters. A secondary purpose was to determine the impact forces at selected velocities. The final objective of this study was to describe safe diving heights and depth based on kinematic and kinetic data.”

61. The authors’ conclusion was:

“In conclusion, the results of this study indicate that any diver using a racing technique has the potential to strike the bottom of the pool with sufficient force to cause catastrophic cervical spine injury. The fact that none of the experienced divers in the present study ascended [sic] to a depth greater than 1.4 m may point out the value of good technique. The hazard may not be so great for the experienced diver as for the inexperienced diver or for the diver who is not concentrating on the proper technique while diving. Based on depth values alone, the recommended depth of racing diving pool should be greater than 1.4 m for experienced divers. In addition, starting block height, the type of dive and starting block slope all have some influence on racing dive depth. Therefore, a reduction in starting block height, a flat dive and zero starting block pitch could aid in reducing the depth of the racing dives.”

Given its focus on starting blocks, the article did not deal with the particular risks associated with any particular form of competitive dive.

(4)   F Mueller and R Cantu, Catastrophic sports injury research: Twenty-Fifth Annual Report on Catastrophic Sports Injuries: Fall 1982 to Spring 2007, published by the National Centre for Catastrophic Sports Injury Research at the University of North Carolina at Chapel Hill

62. Professor Blitvich said in her report:

“Mueller & Cantu (2007) as reported by Cornett et al (2010). According to Cornett et al, Mueller & Cantu reported 13 catastrophic injuries resulting in permanent severe functional and brain or spinal cord disability within high school and college competitive swimming (US), with 12 of these injuries resulting from performance of dive starts.”

63. What was tendered was an article by A Cornett, J White, B Wright, A Willmott and J Stager, “Racing Start Safety: Head Depth and Head Speed During Competitive Starts Into a Water Depth of 1.22 m” (2010) 4 International Journal of Aquatic Research and Education 365 whose opening paragraph included the reference to the 2007 study by Mueller and Cantu. The 2010 article reported on a study of 471 starts at a school swim meet in central Indiana. Some 96% of competitors employed a track-start dive into the shallow end of the pool (which was 1.22 m deep) from standard 0.76 m blocks; it will be seen below that this is relevant to the first basis on which the School was held to be liable.

64. The Mueller and Cantu article was an annual survey of serious and catastrophic sporting injuries and fatalities in the United States. It was not established that the 2007 article was available in Australia in January 2008. Indeed, it seems unlikely that it was; information of injuries takes time to be reported, and annual surveys take time to collect and analyse the information. It is suggestive that a 2010 publication referred to an annual survey in respect of the results three years previously. That said, doubtless the 23rd or 24th annual survey would have been available in January 2008.

65. Mueller and Cantu did not address any risk associated with particular dives, or conditions of the concourse surrounding a pool.

Conclusions from academic literature

66. The essential points emerging from the four articles are: (a) to the extent that the literature distinguishes between types of competitive dives, track-start dives are safer, and (b) none of the literature refers to any risks associated with coping tiles; the focus is the depth of water and the height from which the dive is commenced.

67. Moreover, it was not established that the Council was in fact, or ought reasonably to have been, aware of the literature. For example, Professor Blitvich gave the following evidence in relation to the fourth publication (Mueller and Cantu (2007)):

“Q: That’s an academic publication, is it not?

A: It [is].

Q: It deals with the United States?

A: It does.

Q: You wouldn’t expect anybody running a pool, a public pool to be familiar with that publication, would you?

A: … No.”

68. There was a deal of other academic literature tendered at the trial. When the appeal was heard, Ms Miller was given an opportunity, in addition to what was said in her written submissions, to identify any material supportive of her contention that there was evidence to undermine the conclusion of the primary judge in [195] and demonstrate that the Council should have become aware of “any significant increase in danger associated with track-start dives” or “the importance of a readily grippable coping” or “any other basis for drawing a distinction between track-start and other dives”. After an adjournment provided for the purpose of providing an answer, her counsel identified six passages in the evidence (transcript, 2 September 2015, p 97.45 – 98.7). Five of the six passages identified are addressed to the dangers of diving in general terms. Only one is even arguably addressed to whether there was a basis for becoming aware of any elevated risk associated with a track-start dive. That was the opinion by Professor Blitvich that:

“It was clear that since the late 1990s, concern had grown and publications, etc, had increased in relation to the risks of diving into shallow water. The use of competitive dive starts, including track starts, were of increasing concern and greater attention was being paid to ensuring adequate risk management at aquatic venues.”

That opinion is expressed at a level of generality, and did not refer to any material of which the Council ought to have been aware in 2008.

69. There is no basis in the evidence to sustain a finding that a pool operator such as the Council should have looked beyond what was contained in SU 21, SU 22, Practice Note 15 and the memorandum dated 14 December 2007. There is nothing in the literature to which Ms Miller pointed which was directed to coping tiles or the grippiness of the pool concourse as a contributor to risk. The challenge to the finding of knowledge by the Council fails.

Practice Note 15

70. Contrary to Ms Miller’s submissions, Practice Note 15 does not speak to the facts of this case.

71. The primary focus of Practice Note 15 was to ensure that councils’ employees and contractors were properly qualified in order to ensure that they had the requisite lifesaving skills. The Note also extended to third party contractors with councils (for example, swimming schools which hire council facilities); I have reproduced above the statement that councils were to ensure that a third party “who executes a contract between them and the council” consider the Practice Note.

72. It is difficult to apply Practice Note 15 to the situation on 7 January 2008. Mr Brodie was not a licensed coach. But he was not a Council employee, nor a third party who had executed a contract with the Council. (True it is that he held a family season pass, and thereby obtained a contractual licence to enter the premises and use the facilities, but that is not what Practice Note 15 refers to.) It could not be suggested that Mr Brodie, an experienced albeit unqualified supervisor of children training for competitive swimming, could not supervise his own son and daughter undertaking laps at the Lithgow pool. It is hard to see how the fact that he had agreed to have Ms Miller train with his children could make a difference vis-a-vis the liability of the Council to Ms Miller.

73. Practice Note 15 is, in short, a distraction from the issues posed by this case. That does not mean that the fact that Mr Brodie was not a qualified coach is to be disregarded. I deal with the submissions addressed to Mr Brodie’s absence of qualifications insofar as they impacted upon SU 21 and SU 22 below.

The operation of SU 21 and SU 22

74. Ms Miller submitted that the words “may be permitted” in SU 22 and the Aquatic Guidelines conferred a discretion, so as to “lift a prohibition” upon diving appearing in SU 21. This was maintained in the pleading, throughout the trial, in the expert evidence, and in the grounds of appeal. Further, Ms Miller submitted that cl 5.4 of SU 22 imposed a fetter upon the “lifting of the prohibition”, in support of her submission that there was a breach of duty by the Council in failing to display the warning sign, and in failing to take steps to determine that Mr Brodie was not a licensed coach.

75. All this is an unduly legalistic approach to a document whose purpose is to “provide guidance on safer water entry” during competitions and training for competition. It is also an approach which gives priority to SU 21 (which contains the “prohibition” which may be “lifted” in the circumstances stated in SU 22).

76. I would approach the matter differently. I would read SU 21 and SU 22, which were issued by the same organisation, on the same day, and concerned diving into swimming pools by (a) recreational swimmers and (b) competitive swimmers, together. Read together, it is plain that diving into depths of less than 900 mm is invariably prohibited. However, diving into water which was between 1000 mm and 1200 mm from a height above water not exceeding 400 mm was permitted so long as it was undertaken by trained competitors. There was no question of “lifting” a prohibition. Instead, guidance is given based on the depth of the water, the height of the start, and whether the competitor is trained or otherwise.

77. I turn to the warning sign referred to in cl 5.4 of SU 22. This is not a case where an untrained swimmer saw people diving from the shallow end into lanes one, two and three at Lithgow pool contrary to the “NO DIVING” signs painted on the pool concourse, thought that he or she too could ignore the signs, and dived in injuring himself or herself.

78. I will deal with the question of the relevant risk of harm in more detail below, in connection with the School’s appeal. For the purposes of Ms Miller’s appeal against the Council, it is clear that the relevant risk of harm was a risk of harm to a trained swimmer like Ms Miller, not an untrained recreational swimmer. It is plain from the nature of the risk, as reflected in the divergent approach taken in SU 21 and SU 22, that trained and untrained swimmers form two different classes.

79. Even if it were not clear from the terms of the warning specified, the note to cl 5.4 in SU 22 makes it clear, as Council submitted, that the sign was directed to the general recreational public, and not to trained competitive swimmers. If that were not so, there would be no occasion for SU 22 to provide for the circumstances in which a sign was not necessary.

80. As Heydon JA said, with the agreement of Mason P and Handley JA, in Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243; [2002] Aust Torts Rep 81-636 at [76], “[d]uties of care are owed to particular plaintiffs or classes of plaintiff.” He added, by reference to what was said in Fleming, The Law of Torts (9th ed, 1998), pp 158-159:

“To be liable for an injury he has caused, the defendant’s carelessness must not only have been in breach of a duty to exercise care, but the duty must have been owed to the plaintiff. In other words, the latter cannot take advantage of the fact that the defendant happened to be committing a wrong to someone else; he must bottom his claim on violation of a right of his own.”

The risk of harm must be addressed at a level of specificity which distinguishes the trained competitor from the untrained recreational swimmer.

81. Save for a submission based on Mr Brodie’s evidence addressed immediately below, the absence of a sign which had no relevance to a trained swimmer like Ms Miller does not bear upon the Council’s liability. Ground 25 of the appeal is not made out.

82. Mr Brodie gave unequivocal evidence that had a sign in accordance with cl 5.4 been displayed when he was there with his children and Ms Miller, he “would have immediately stopped”, because he was not a coach. However, the primary judge addressed that evidence squarely, and adversely to Ms Miller. His Honour said:

“[174] … I am not persuaded that the absence of further or better signage in that regard contributed to the Plaintiff’s accident. In so concluding, I do not ignore Mr Brodie’s evidence, that if there had been a sign in the terms of Exhibit J, he would not have permitted the Plaintiff to dive because he was not a coach.

[175] I do not doubt the honesty of his answer but, given the obvious enthusiasm of the Plaintiff and himself for her training, I am not persuaded that her diving from the shallow end would not have occurred. The Plaintiff was a trained swimmer and though he was not a qualified coach, he was supervising. I suspect he would have adopted a pragmatic approach himself or made successful representations to those running the pool to permit the Plaintiff’s training to occur in accordance with Mr Critoph’s program. After all, diving at the shallow end of the school pool was something that the Plaintiff and Mr Brodie’s [children] commonly did under Mr Critoph’s eye and I have no doubt that Mr Brodie would have known this. He was aware that diving at the shallow end was a common feature of swimming carnivals. Certainly I am not persuaded that something along the lines I have referred to would not have occurred.”

83. It was submitted on appeal that that finding should be overturned, in part because it was not based upon an assessment of Mr Brodie’s demeanour, and was instead based upon the enthusiasm of Ms Miller to train for the forthcoming championships. I do not agree. The submission ignores the fact that the finding is, in terms, based upon the “obvious enthusiasm” of both Ms Miller and Mr Brodie for training. The primary judge was much better placed than this Court to assess the (necessarily counterfactual) evidence of what Mr Brodie would have done had a sign been displayed. Moreover, the finding by the primary judge is inherently plausible. Mr Brodie’s son and daughter were successful swimmers, as is plain from the School’s 2008 yearbook. Ms Miller was enthusiastic to train, and there is nothing to suggest that Tom and Jordan were any less so. Mr Brodie was obviously keen to fulfil the training program provided to him by Mr Critoph, and he knew that Ms Miller had regularly dived from the shallow end of swimming pools. By 7 January 2008, her counsel acknowledged that she had dived from the shallow end of the Lithgow pool some 50 or 60 times in the previous week in Mr Brodie’s presence.

83. Mr Brodie also gave evidence that he had seen the “NO DIVING” sign on the concourse near lane three prior to the accident. It is inherently plausible that a man who supervised children diving into the shallow end of a pool contrary to a no diving sign, and who was an experienced swimmer himself, not to mention a former President of the Lithgow Swimming Club, would take no different course had another – indeed, a less unambiguous – warning also been displayed at the time.

84. Further, for all intents and purposes, Mr Brodie gave the appearance of acting as a coach on 7 January 2008, just as he had the previous week. He accepted that he said “set” and then “go” immediately before the dive in which Ms Miller was injured. He recorded the children’s times on a stopwatch. He had written the program onto a whiteboard, and he wrote the times of each lap on that whiteboard.

85. There is no basis for identifying any error in the primary judge’s conclusion that the Council’s lifeguard was not negligent by failing to inquire of Mr Brodie whether he was a licensed coach.

86. Those conclusions are entirely unaffected by the failure of the Council to call Mr Dart, and, to the extent (if any) it could be relevant to the appeal against the Council, the failure of the School to call Mr Critoph (cf grounds 22 and 23 of the appeal against the Council).

87. I have dealt with Ms Miller’s appeal against the Council at some length, in light of its importance to the parties, and in deference to their submissions. For those reasons, which are wholly consistent with the enviably succinct reasons of the primary judge, I have concluded that Ms Miller’s appeal against the Council should be dismissed.

The School’s appeal against Ms Miller

89. There were at least two, and arguably three, distinct aspects of the dispositive reasoning of the primary judge by which the School was found liable.

90. The first aspect focussed upon the limited grip provided by the coping tiles at the shallow end of the Lithgow pool, coupled with an elevated risk associated with track-start dives. At [183], the primary judge concluded that:

“[I]t was unreasonable for the school, by Mr Critoph to encourage the [P]laintiff who, as Mr Critoph must have known, was accustomed to use the track-start dive, to dive into the shallow end of a pool with the lack of gripping facilities of the Lithgow pool and of which Mr Critoph, who had been there, was aware or, as an incident of encouraging the Plaintiff to go there, should have been aware. It is also to be inferred that this absence of gripping facilities and the shallow depth both contributed to the accident.”

91. His Honour supported that reasoning, noting that he had not ignored the various standards which permitted diving into water so long as it was at least 1 m deep on the basis that (at [184]):

“The evidence in this case indicated that a track-start dive was attendant with more risks than a grab-start or one where both of a swimmer’s feet were placed at or partly over the edge of a pool and it seems to me that a professional swimming coach was under an obligation to take account of those additional risks and not simply follow (limited) standards, particularly given the magnitude of the potential consequences. A fortiori this is so, given that the Second Defendant was a school and the Plaintiff its pupil.”

92. At [195] (when dealing with why the Council was not liable) the primary judge said that he saw:

“no basis for concluding that prior to 7 January 2008, the [Council] should have become aware of any significant increase in danger associated with track-start dives or of the importance of a readily grippable coping or any other basis for drawing a distinction between track-start and other dives.”

93. The primary judge concluded that Mr Critoph should have been aware of elevated risk associated with a track-start dive and, because the pools at the School and at Orange had protruding coping tiles which could be gripped, his Honour inferred that (at [185]):

“[A]s a professional coach, Mr Critoph knew or should have known of their function and benefits and conversely of the disadvantages of a pool without them”.

94. The second dispositive strand in the reasoning of the primary judge against the School was his Honour’s conclusion that once Ms Miller was being taught “the more dangerous track-start dive”:

“[189] … it should have been drilled into her that it was essential such dangers be minimised by, for example, aborting a dive that had gone wrong and perhaps ‘belly-flopping’ into a pool. Providing such warnings were sufficiently strong and repeated, and accompanied by appropriate warnings as to the horrendous consequences liable to flow from a mis-dive, logic suggests that the Plaintiff would have aborted the dive. She was, after all, only engaged in training.”

95. His Honour accepted that Ms Miller had received no study of pool safety or risk assessment or induction about the risks of a pool, and did not accept that, once Ms Miller had slipped, that “a swimmer has no influence whatsoever thereafter”.

96. Thirdly, his Honour observed that it was at least arguable that the case as against the School depended upon a failure to undertake a proper inspection or risk assessment. His Honour found “as a matter of logic” that the instructions given by Mr Critoph to Mr Brodie as to Ms Miller training at Lithgow pool “carries with it a failure to carry out a proper risk assessment”: at [192]. Whether that was an independent basis of liability was disputed: Ms Miller submitted that it was, while the School submitted that it went no further than the two bases identified above.

The School’s submissions

97. Putting to one side some broader submissions which are conveniently addressed at the end of these reasons, the School’s principal submission was that his Honour was wrong to conclude that there was something more dangerous about a track-start dive over and above other competitive dives. The School was also critical of the finding, to the extent there was one, that Mr Critoph was aware, or should have been aware, of conditions at Lithgow pool. It submitted that the finding was outside the case pleaded by Ms Miller, and in circumstances where the trial was conducted in accordance with the pleadings, and the School chose not to require Mr Critoph to attend (although he had ceased employment in 2011), such a finding could not be made against it. It submitted that there was no basis for concluding that Mr Critoph ought to have been aware of the significance of the nature of protruding coping tiles. The School also challenged the conclusion, which it said was unsupported by the evidence, that the absence of a protruding coping tile had any causal significance in Ms Miller’s accident.

98. In relation to the second strand of dispositive reasoning, the School said that was a matter outside the pleaded case, which had been raised by the primary judge during closing address and (understandably although opportunistically) embraced by Ms Miller. That was also something which could not fairly be found against it, having regard to the way in which the trial had been conducted.

99. In relation to the failure to carry out a risk assessment, the School accepted that it did not do so, but denied that there was an obligation upon it to do so. The School submitted that it was impracticable for it to carry out a risk assessment for every sporting activity undertaken by students during the holidays away from school grounds where there was a measure of encouragement from a coach. It further submitted that had a risk assessment been undertaken, it would have led to no different result, because there was nothing to indicate that there was any elevated risk associated with a track-start dive or with Lithgow pool.

The Civil Liability Act and the relevant “risk of harm”

100. Ms Miller’s pleading made no allegation based on the Civil Liability Act. At trial there was no opening, and Ms Miller’s closing submissions scarcely mentioned the Act. The primary judge, unsurprisingly, adopted a similar approach. When dealing with the plaintiff’s claims, his Honour said at [186]:

“In summary, the school was negligent and that negligence caused the Plaintiff’s injuries. I make it clear that in so concluding I have taken into account the stipulations in the Civil Liability Act, particularly s 5D.”

101. Aside from rejecting the defence of obvious risk, his Honour at no other stage mentioned the Act. In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [11] it was emphasised that it is of the “first importance” to identify the proper starting point, which, both in that appeal and here, was the Act, without which there is “serious risk that the inquiries about duty, breach and causation will miscarry”.

102. Central to the determination of civil liability for failure to exercise reasonable care and skill is the identification of risk. In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330, Gummow J, with whom Heydon J agreed, observed at [59] that it is “only through the correct identification of the risk that one can assess what a reasonable response to that risk would be”. His Honour had earlier observed that “the assessment of breach depends on the correct identification of the relevant risk of injury”: at [18]. Although Mr Dederer’s diving injury was suffered before the Act had commenced, it is easily seen that those statements remain applicable to actions for a failure to exercise reasonable care and skill to which it does apply.

103. “Risk” and “risk of harm” recur throughout Part 1A of the Act, including in provisions which set out necessary elements of liability, such as s 5B. Other provisions, such as ss 5H (obvious risks) and 5I (inherent risks) provide a complete answer to a defendant’s liability in respect of the risks to which they apply: Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 at [51] and [80]. Those provisions are not relevant to this appeal, but they illustrate, once again, that the legislation makes liability dependent upon the identification of the risk of harm.

104. Section 5B provides that:

“(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

105. Each of those seven paragraphs must be considered by a court before a defendant is found to have been negligent. Subsection (1) states three necessary preconditions to liability, while subsection (2) provides a non-exhaustive but mandatory list of factors to which the court is required to have regard. As is plain from the nature of those requirements, not to mention the statutory language, echoing what was said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, it is clear that “[s]ection 5B presupposes the existence of the law of negligence, and operates against its background”: Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 at [173].

106. Each paragraph within s 5B in terms presupposes a “risk of harm” against which, so it is alleged, precautions should have been taken. As Sackville AJA said in Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172 at [52], in order to apply s 5B (and s 5C) “it is necessary, just as it was under the pre-existing law, to identify the relevant ‘risk of harm’”.

107. As Meagher JA said in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22]:

“To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff’s claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.”

108. How is the risk of harm to be formulated in a case such as the present? Accepting as I do that it must be a risk which materialised when Ms Miller suffered injury, a range of formulations, more or less generally expressed, are potential candidates, as may be seen below.

109. First, the risk of harm may be different in the case of each defendant. The present appeal is an example. The Council could only ever be liable for a risk of harm associated with a particular pool. The School could, at least according to the case advanced by Ms Miller, be liable for failing to take precautions against a risk of harm at any pool in which she was training in accordance with a program devised by her coach.

110. Secondly, a plaintiff may be exposed to a range of risks, and a range of harms. The common law has long applied what Windeyer J once described as the “comfortable latitudinarian doctrine” that it is sufficient that harm of the kind suffered by the plaintiff have been foreseeable: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402. That left unresolved the level of abstraction or particularity with which the harm was to be defined, as Allsop P observed in Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53 at [5]. That remains the position in cases to which the Act applies. Plainly enough, the class of harm in the present case includes all injuries – minor, major, catastrophic or even fatal – suffered from a dive which results in the swimmer colliding with the bottom of the pool.

111. What of the range of risks, as opposed to the range of harms? Here Part 1A of the Act points in two directions. This may be seen most clearly in ss 5C and 5G. Section 5C(a) extends s 5B(2)(c) by providing that “the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible” (emphasis added). It is significant that the section refers to similar risks of harm, not the risk of similar harms. The approach mandated by the Act may be significant in cases where, say, a council has responsibility for a number of recreation areas presenting a similar risk, such as the rope swings on trees considered in Streller v Albury City Council [2013] NSWCA 348; [2013] Aust Torts Rep 82-146: see at [65]-[67].

112. On the other hand, s 5G extends the rebuttable presumption of awareness of obvious risks to cases where the person is “aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk” (emphasis added).

113. It is axiomatic that the Act is to be read as a whole: Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 at [42]; Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437; 88 NSWLR 449 at [53]. Sections 5C and 5G are to be read with s 5B. Each section refers to the same risk of harm.

114. I think it follows that s 5C proceeds on the basis that the “risk of harm” is sufficiently narrow that a defendant may be able to point to similar but distinct risks of harm, while s 5G proceeds on the basis that the “risk of harm” is sufficiently general that it may be described as a “type” or “kind” of risk, whose precise details need not be well known.

115. Section 5M, dealing with “risk warnings”, also speaks in terms to the question of generality or particularity of the risk. Section 5M(1) provides that a risk warning will in certain circumstances result in a defendant not owing a duty to take care in respect of a risk of a recreational activity. Section 5M(5) provides that a risk warning must warn of “the general nature of the particular risk”, and that it is sufficient that it be a “general warning of risks that include the particular risk”. It is not necessary to give a precise delineation of each separate obstacle or hazard which may be encountered: Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 at [27]. Plainly enough, s 5M is directed principally to signage and written disclosures, and ultimately to the end that the warning “is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity”: s 5M(3) and see Sharp v Parramatta City Council [2015] NSWCA 260 at [32]. That end would not be served by a provision which required a possibly lengthy list of specific warnings of individual risks, all of which were incidents of the recreational activity.

116. For completeness, I note that s 45 of the Act also refers to “the particular risk”. That section deals with a specific issue (liability of roads authorities for non-feasance), and does not take the matter any further.

117. Ultimately, considerations from the text of the statute are of limited assistance in identifying the level of generality. As Professors Twining and Miers have said (in a different context), “[t]here are no categorical rules to direct judges about the selection of appropriate levels of generality”: W Twining and D Miers, How to Do Things with Rules, (5th ed, 2010, Cambridge University Press) at 309. The Act, which is addressed in general language to all damages claims for harm resulting from a failure to exercise reasonable care and skill, could not be expected to provide definitive guidance in particular cases. Thus, as S Campbell J said, extra-judicially, in a paper which is both timely and insightful (“Identifying the risk of harm – s 5B Civil Liability Act 2002”, 21 March 2015, Sydney):

“The difficulty for trial judges and practitioners alike is to fix upon the correct level of abstraction when accurately identifying the risk of harm from a wholly prospective point of view for the purpose of determining the questions raised by s 5B.”

118. It is clear that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances. It has been said, in my view correctly, that the “proper identification of the risk can be difficult, if not problematic”: Erickson v Bagley [2015] VSCA 220 at [33]. That is not to say that the problems need be insuperable. For one thing, very commonly these issues arise in familiar areas. As Gleeson CJ said in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at [13]:

“Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established, and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon the application to the facts of well settled principles concerning legal responsibility.”

119. For another, there may commonly be a range of appropriate formulations of the generality of the risk of harm. It is unrealistic to expect there to be a single canonically “right” characterisation of the risk of harm. When Gummow J said in Dederer at [59] that “it is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be”, I do not understand his Honour to have been contending that there was only one “correct” formulation of the risk of harm, as opposed to emphasising the important fact that achieving the appropriate level of generality or particularity is vital. One clear indication of the fact that there may be a variety of formulations emerges from the fact that trial judges and appellate courts reaching the same result have, on occasion, formulated the risk differently. That is unsurprising; the Act is in very general terms.

119. There is a general statement in the joint judgment of the Court in Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235 at [106] that:

“Generally, it is as unnecessary as it is undesirable to define the relevant risk with this level of particularity. Particularity is called for in the present case because several risks attend the process of boarding a chairlift and unless the relevant risk is identified with sufficient precision one cannot determine what, if any, reasonable precautions ought to have been taken in order to avert it.”

121. That passage accords with earlier decisions. In Dederer itself, Gummow J criticised the characterisation by the majority of the Court of Appeal of the risk as being “serious spinal injury flowing from the act of diving off a bridge”: at [60]. His Honour said that “such a characterisation of the risk obscured the true source of potential injury”. The proper characterisation was “the risk of impact upon jumping into the potentially shallow water and shifting sands of the estuary”.

122. Similarly, in Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172, the relevant risk of harm was not that (as happened) a pedestrian would walk on the unlit temporary gravel footpath and suffer injury from falling into a stormwater drain. As Sackville AJA said at [67]:

“The relevant risk of harm created by the construction or completion of the footpath was that in complete darkness a pedestrian might fall and sustain injury by reason of an unexpected hazard on the path itself (such as an unsafe surface or variation in height) or by unwittingly deviating from the path and encountering an unseen hazard (such as loose gravel, a sloping surface or a sudden drop in ground level). The risk of harm created by the construction of the footpath no doubt included the risk that a pedestrian would deviate from the footpath near the crossover and slip on loose gravel on the edge of the stormwater drain. But the risk of harm created by the construction of the footpath was not confined to the particular hazard that caused the respondent to suffer an injury.”

123. Returning to the present case, the primary judge found separate breaches by the School’s failure to take precautions against the risk presented by the absence of a gripping edge at the Lithgow pool’s shallow end, and failure to “drill into” Ms Miller the need to abort a dive if she slipped. On one view, these are responses to quite different risks of harm. The latter is related to the risk of harm of diving into any pool less than 1800 mm deep. The former is related to the particular risk of harm presented by diving into the shallow end of Lithgow pool. Moreover, at least as framed by the primary judge, the former risk was not the risk of harm from colliding with the bottom of the pool per se, but the elevated risk of harm brought about, so it was said, by the absence of coping tiles and the execution of a track-start dive.

124. It will be clear from what has already been said about the operation of the Act that differently formulated risks of harm may lead to quite different analyses when considering, for example, whether a reasonable person would have taken precautions against the risk, and, if so, what those precautions would be. For example, a reasonable response to an elevated risk of injury from a track-start dive at the shallow end of the Lithgow pool might have been to insist upon a safer dive.

125. To be clear, I am not suggesting that a defendant cannot at the same time be liable for failing to take precautions against multiple risks of harm; to the contrary. My point is that the analysis of liability required by the Act will be dependent upon the particular risk identified. Neither the pleadings nor the parties’ submissions assisted the primary judge in relation to these essential statutory requirements.

126. Ms Miller’s written submissions on appeal, in contradistinction to her submissions at trial, addressed, in some detail, the issue of the particularity of the “risk of harm”. In essence, because it was accepted that diving practice was a legitimate part of the preparation of a 12-year-old swimmer for a competitive event, the submissions flagged the possibility of the risk of harm being more precisely identified than the risk of injury following diving into the shallow end of a pool. It was put:

“[T]his case is an example of the situation where more precision and particularity to the identification of the risk of harm may be required because that precision or particularity may assist the determination of what, if any, reasonable precautions should have been taken to avoid the risk of harm”.

However, those submissions fell short of articulating a principled basis by which a more precise risk should be formulated.

127. The passage from Perisher Blue Pty Ltd v Nair-Smith reproduced above resonates with some of the evidence in this appeal. I have already referred to the distinct risks encountered by an untrained recreational swimmer and a trained competitor from diving into the shallow end of a pool, recognised in SU 21 and 22. And it has been seen that the primary judge regarded as important the elevated risk posed by a track-start dive, as well as the condition of the coping tiles. Further, the former was a risk applicable to all pools into which trained competitors might dive; the latter was (on the evidence) specific to the Lithgow pool.

128. I can see arguments tending both in favour of and against the proposition that an elevated risk of harm might be, in an appropriate case, the “risk of harm” identified by the Act. This was not the subject of written or oral submissions. On the view which I take, it is not necessary to express a concluded view as to the level of generality or abstraction of the risk of harm (or risks of harm) applicable to this case. And, because this trial appears to have been run in a way which eschewed the attempts to plead or rely upon any particular “risk of harm”, there are difficulties (not least, the absence of findings of fact) which stand in the way of that course. Ordinarily, it would be desirable to for the pleadings to address the Act in terms and to allege one or more risks of harm. I respectfully agree with what Garling J has written, extra-judicially:

“As a starting point, to address the provisions of s 5B of the Civil Liability Act, a plaintiff must identify and clearly articulate the “risk of harm” against which it is alleged a defendant would be negligent for failing to take precautions”: P Garling, “Civil Liability Act 2002 - Burden for a Defendant - NSW Bar Association Personal Injury Conference” [2014] NSWJSchol 14 at [9].

129. However, it is sufficient for the purposes of resolving this appeal to consider each of the three ways in which the School was said to have been held liable. Because the second is distinct, while the first and third are closely related to one another, it is convenient to start with the second.

Second basis: Ms Miller should have been trained to abort the dive

130. The second basis on which the primary judge found the School liable was for failing to “drill” into Ms Miller that “it was essential such dangers [associated with the track-start dive] be minimised by, for example, aborting a dive that had gone wrong and perhaps ‘belly-flopping’ into a pool” (at [189]). I have respectfully concluded that his Honour’s finding cannot stand.

131. First, it was far from clear that Ms Miller’s pleaded case extended to an allegation that there was some way in which swimmers could be trained to pull out of a track-start dive that went wrong. There was no opposition to the written and oral submission by the School on appeal that this was a trial which had been conducted in accordance with the pleaded case. One of the transcript references given by the School was a statement by his Honour to the plaintiff’s counsel, when dealing with an objection, that “your claim will be judged by the pleadings not by any expansion of it that you may make in the course of questioning witnesses”.

132. Against this, it was said by Ms Miller on appeal that this basis “arose in reply to the [School’s] pleaded defence pursuant to s 5H” and also that it “flows also from the case pleaded by [Ms Miller]: see for example, paragraph 11(u) of the Further Amended Statement of Claim” (paragraphs 164 and 172 of Ms Miller’s written submissions on appeal). I do not think either submission is correct. But I would not resolve this ground on the basis of the pleadings.

133. Secondly, there was no evidence that a person could (and should) be trained to abort a dive. The absence of any such evidence told powerfully against any such finding, given the calibre of experts called. The sad truth is that trained and even elite swimmers suffer injuries when diving competitively into shallow water. That is why, I infer, Professor Blitvich holds and practises a belief which is more prudent than the guidance circulated throughout New South Wales. If there were some training which could significantly reduce the catastrophic consequences of a mis-executed dive, then it would be remarkable if evidence of it had not been adduced given the calibre of the experts.

134. Thirdly, such evidence as there was pointed against the practicality of the primary judge’s suggestion. The evidence against the practicality fell into two classes. First, there was uncontradicted testimonial evidence. Ms Miller gave evidence that after she slipped, she “was going forward and could not stop”, and Mr Sweetenham said that after slipping there was “nothing to regain control of the start”. The primary judge acknowledged but rejected this at [190], without explaining why.

135. Moreover, the proposition can be tested against the scientific literature in evidence, in particular, the second and third items of literature relied on Professor Blitvich (summarised above). Welch and Owens found that female subjects performing a conventional start took, on average, 0.33 seconds to reach maximum depth from 15 inch blocks, and 0.31 seconds from 30 inch blocks. There is thus but a small fraction of a second to react.

136. This is borne out by Gehlsen and Wingfield’s study of 20 male and female students in 2000, which showed average velocities of between 4.9 and 5.5 ms-1 when the swimmer entered the water, and velocities of around 2.9 ms-1 when the swimmer reached maximum depth (see table 2 and figure 2).

137. Further, one of the books in evidence (MA Gabrielsen, J McElhaney and R O’Brien, Diving Injuries (2001, CRC Press LLC)) observed at p 162 that “under the action of gravity, the diver’s in-water head speed increases for the first few feet of penetration” (emphasis added).

138. The short point is that once it is seen that the average velocity in the downward portion of the dive is in the order of 3-4 ms-1, it is readily seen how little time elapses before a diver collides with the bottom of a pool that is little over a metre deep.

139. The foregoing also makes it plain that this is not a matter as to which it was open to the judge to take judicial notice; cf Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at 368. The point arose in final addresses:

“HIS HONOUR: I would have thought it would have been ... something that should have been impressed on her at the time she first was taught this dive. ... For years I did a moderate amount of water skiing, and in reading books about it I learned that one was liable to do substantial damage to oneself if he hit the water at the wrong angle at over 40 miles an hour. Now, in the midst of skiing moving from side to side, from time to time, it won’t surprise you, I fell off, and I was very conscious, I confess, when I knew I was going that it was important to try to fall in a particular way.

I mean, that’s just what happened to me. It doesn’t necessarily follow that the plaintiff aged 12 would have had the same thing. But it’s not too much to expect that someone in the midst of an activity which is taking but a second or two, if you are conscious of the risk you can do something about it, or you can think to try to do something about it.”

The evidence in this case demonstrates that it was unsafe to translate experiences from water-skiing to a mis-executed dive.

140. Fourthly, in order to establish the School’s negligence on this basis, it would be necessary for Ms Miller to satisfy s 5D of the Act. That is to say, Ms Miller would need to prove that she would not have hit the bottom of the pool with sufficient force to cause injury if she had been trained to abort a mis-executed dive. In order to do so, it would have been necessary for her case and his Honour’s reasons to grapple with the physics of diving. One fact emphasised by Gehlsen and Wingfield in their study of 20 elite swimmers each performing up to 20 dives in each of three sessions is that “all of the dives presented here were in excess of the 0.91 ms-1 value”. The authors regarded 0.91 ms-1 as the contact speed at which a cervical disc or vertebrae could be fractured. The divers were travelling around three times faster than 0.91 ms-1 at the bottom of their dives, although (importantly) they were not travelling vertically. Nevertheless, the authors concluded that:

“if any of the divers, in the present study struck the top of their head with the pool bottom at a vertical velocity equal to or even slower than the actual values reported, injury to the cervical vertebrae could occur.”

141. The primary judge rejected the testimonial evidence before him and did “not accept that a slip by the back foot means that a swimmer has no influence whatsoever thereafter”. This was, with respect, not sufficient. It was necessary to find that Ms Miller would, had she been trained to abort the dive, have been able in a fraction of a second to reduce her velocity to a safe level. Section 5E placed the onus to do so on Ms Miller. Since it was not part of her case, it is unsurprising that the evidence did not come close to establishing this.

First basis: School should have taken precautions against the elevated risk of track-start dives where there was an absence of gripping facilities

142. I have reproduced above the primary judge’s findings at [183], [184], [185] and [195] relating to the elevated risk of track-start dives and the importance of a readily grippable coping tile. It is convenient first to address the elevated risk of track-start dives, and then the coping tile at the Lithgow pool.

143. The primary judge said that the “evidence in this case indicated that a track-start dive was attendant with more risks than a grab-start or one where both of a swimmer’s feet were placed at or partly over the edge of a pool”: at [184]. His Honour relied on the evidence of Professor Blitvich and Mr Sweetenham, and it is true that those experts expressed the view that there was an elevated risk with a track-start dive.

144. Mr Sweetenham said that “the lower level of lateral balance with a track-start dive compared to a grab start result[s] in the increased risk of a compromised dive using a track-start if the back foot slips when executing the dive”. Professor Blitvich expressed the view that a track-start dive put the swimmer at risk of spinal injury if the rear foot slipped during the diving action.

145. Considerable care must attend any reliance upon experts whose opinions departed from mainstream views as recognised in the guidance from the Department of Education and Training and Royal Life Saving Society Australia. The question is not what Professor Blitvich or Mr Sweetenham would have done faced with a child who wished to train over the holidays. As noted above, Professor Blitvich would never have permitted diving into the shallow end of the School’s pool (which was around 1.2 m deep) for training or competition.

146. Literature which Professor Blitvich cited demonstrated that the overwhelming majority (96%) of competitive swimmers at a school meet in the United States (the competitors raced in age groups ranging from 8 and under to over 15) performed a track-start dive. The citation was used to support her opinion that the dive had developed in recent years, becoming “popular in the late 1990s and increased in popularity [thereafter]”.

147. There is nothing in the guidance directed to schools, pool operators or swimming coaches to which the plaintiff pointed identifying any additional risk associated with a track-start dive. As it was put orally:

“[D]espite comments by some of the experts there is no literature which identifies that the track-start dive should be treated differently from other competitive dives in terms of assessing whether it’s safe to dive into a pool.

...

[A]ll the guidelines refer to competitive dives. They don’t distinguish between grab-start dives, crouch-start dives or track-start dives. These guidelines were in existence at the time of the accident and any idea that in some way the FINA guidelines or the Royal Life Saving guidelines did not take account of the track-start dive, would be inconsistent with what Professor Blitvich says. That is, the track-start dive was being used by 96% of competitors swimming at that time.”

148. As already observed, the academic literature, to the extent that it distinguished between types of dives, supported the relative safety of a track-start dive compared with other dives. Nothing pointed to an elevated risk of track-start dives compared with other dives. The literature circulated by the Departments and Royal Life Saving Society Australia made no distinction between any form of dive.

149. Let it be assumed, consistently with the views propounded by the experts called by Ms Miller, that the literature circulated by the Department of Education and Training and by the Royal Life Saving Society Australia had not “caught up” with a recent appreciation of an elevated risk associated with a track-start dive. Even if that be so, it does not follow that Mr Critoph or the School was liable for being unaware of those developments, or for specifying a training program involving a track-start dive. Ms Miller bore the onus of establishing that a reasonable person would have done something beyond what was stated in the literature which was generally available. That onus was not discharged.

150. I turn to the coping tiles at the shallow end of the Lithgow pool. The attention given to the coping tiles seems to have been a relatively late development at the trial. When Professor Blitvich was asked in chief to give evidence about the significance of the coping tile, on the fifth day of the trial, the primary judge regarded this as “an entirely different topic”, that is, “the significance of the coping tile to the mechanics of the plaintiff’s movement and particularly potential horizontal movement”. Ms Miller then sought and obtained an adjournment for the purposes of obtaining further reports from Professor Blitvich and Mr Sweetenham.

151. The primary judge found that Mr Critoph was aware of the “lack of gripping facility” at Lithgow pool. I put to one side the School’s submissions that this was outside Ms Miller’s pleaded case, and proceed on the basis, favourable to her, and in accordance with the findings of the primary judge, that Mr Critoph was aware that the coping tiles only protruded slightly outwards, with a “very small” overhang.

152. I respectfully disagree with the primary judge that the coping tiles could contribute to a finding of liability. Again, there was nothing in the literature to suggest that anything turned upon the condition of the coping tiles. To the extent that the literature was directed to the surface from which a swimmer dived, it focussed on diving blocks, and emphasised the increased risk associated with the increase in height. Only by taking the expert evidence of Professor Blitvich and Mr Sweetenham at its highest could it be concluded that a reasonable coach in the position of Mr Critoph would have taken any precautions by reason of the condition of the coping tiles.

153. However, even so, I have concluded that the primary judge’s findings of negligence insofar as they are based on the coping tiles cannot stand. This is because of the onus upon Ms Miller to establish causation. The primary judge found that Ms Miller fell not because of the coping tile, but because her rear foot slipped. His Honour found that Ms Miller fell at an increased angle because her rear foot could only provide reduced (if any) horizontal velocity, and inferred that “her front foot also did not provide a great deal of horizontal velocity” (at [182]). It was necessary, in order for s 5D to be satisfied, to find that the size or grip of the coping tile was such that it was a necessary condition of the occurrence of Ms Miller’s collision with the bottom of the pool. There was no specific evidence as to either the shape or grip of the tile, and no expert evidence based on the characteristics of the tile in 2008 as to the contribution, if any, the condition of the tile had to her fall. Absent such evidence, and noting the onus placed on Ms Miller by s 5E, there was no sound basis for the primary judge to conclude that the different shape or surface of the coping tile would have altered the trajectory or speed of Ms Miller’s fall sufficiently to avoid a collision with the bottom of the pool once her rear foot had slipped.

Third basis: Failure to conduct a risk assessment

154. This third dispositive aspect of the reasons of the primary judge was regarded by his Honour as consequential. His Honour reasoned at [192] that:

“However, as a matter of logic, it seems to me to follow that Mr Critoph’s instructions to Mr Brodie and to the Plaintiff as to training at the Lithgow pool in accordance with the program he set, carries with it a failure to carry out a proper risk assessment.”

155. It follows from the rejection of breach arising from any elevated risk presented by a track-start dive in the Lithgow pool that there was no failure on the part of Mr Critoph to carry out a proper risk assessment which was causative of Ms Miller’s injury. Even if Mr Critoph had undertaken a risk assessment, and even if he were aware of the condition of the coping tiles at the shallow end of the Lithgow pool, Ms Miller failed to show that the result of the risk assessment would have been a decision to prevent track-start diving from the shallow end of the pool. That is because, as noted earlier in these reasons, there was no reason for Mr Critoph to form the view that a track-start dive was riskier than any other form of racing dive, nor was there any basis to conclude that the condition of the coping tile elevated the risk attached to executing the dive. Certainly, Ms Miller did not establish either of those matters. The onus of showing that he would have done so at all times rested with her.

156. Against all this, Ms Miller submitted that inferences adverse to the School should have been drawn by its failure to call Mr Critoph. Paragraph 124 of her written submissions said:

“Mr Critoph’s evidence was plainly material to, at least, the [School’s] explanation or contradiction of: (a) the question of the risk of harm presented by the planned and specified track start dive entry practice into the shallow end of the Lithgow pool; (b) the question of Mr Brodie being the proxy of Mr Critoph for the purpose of the planned and specified activities at the Lithgow pool; (c) the question of the necessity for a materially qualified and experienced coach to supervise the track start dive entry practice; and (d) whether Mr Critoph in planning and specifying the track start dive entry practice turned his mind to the risk of harm.”

In oral address, it was also put that the failure to call Mr Critoph would not have assisted the School prove that a coach was not required. None of those matters extended to how Mr Critoph would have conducted a risk assessment. There was good reason for Ms Miller’s submissions taking that course. A Jones v Dunkel inference is not available to sustain a conclusion that Mr Critoph would, had a risk assessment been conducted, have altered the training program which he had devised for Ms Miller and Tom and Jordan Brodie so as to exclude diving from the shallow end of the Lithgow pool.

Further submissions of the School on appeal

157. That is sufficient, subject to the notice of contention, to resolve the School’s appeal. I should mention two broader submissions advanced by the School.

158. The School accepted, properly, that the fact that Ms Miller’s injury occurred outside term time, and away from School premises, did not, of itself, preclude it being subject to a duty to take reasonable care to prevent injury: see for example Geyer v Downs (1977) 138 CLR 91 (injury in playground before school); Roman Catholic Church v Koffman [1996] Aust Torts Rep 81-399 (failure to supervise student catching a bus and to protect him from students of another school); Gugiatti v Servite College Council Inc [2004] WASCA 5 at [19] (pupil attending retreat conducted by school to select potential Year 12 leaders). In the present case, of course, Ms Miller was training at Lithgow pool in accordance with a program devised for her and for Tom and Jordan Brodie by Mr Critoph. The School submitted that in circumstances where it was not alleged, still less established, that the program was negligently formulated, there could be no duty owed by it.

159. I would not accept that submission as a general proposition. The difficulty is that although it was largely accepted that the program per se was entirely appropriate for Ms Miller, it was also alleged that in providing it in circumstances where Mr Critoph believed that Ms Miller would be swimming at Lithgow pool, he (and therefore the School) was in breach of duty. Whether or not a duty is owed will regularly depend upon the particular facts of the case, as opposed to general propositions derived from a selection of the facts. Indeed the recent decision of the United Kingdom Supreme Court in Woodland v Swimming Teachers Association [2013] UKSC 66; [2014] AC 537, on which the School relied, is highly critical of the summary disposition, on the grounds of absence of duty of care, which had occurred at first instance and been upheld on appeal: see at [2]. Test the matter this way. If Mr Critoph had believed or suspected that Ms Miller would train at a private pool, whose shallow end was less than 900 mm deep (which is to say, shallower than the shallowest depth for competitive dive starts authorised by SU 22) then I would be doubtful that no duty could arise, even if in all other respects the program devised by Mr Critoph was appropriate if it had been performed in a deeper pool. More generally, the s 5B analysis may differ between a school and a council, particularly having regard to the knowledge of school employees.

160. The School also submitted, invoking s 5B(2)(c), that it would be wholly unrealistic for it to be required to conduct a risk assessment of all pools at which its students might train during school holidays (the school had students from many parts of the State). There was no evidence of how many pools might be involved, or how difficult that would be. (If what was contemplated by the Aquatic Guidelines circulated in December 2007 has been realised, and all swimming pool operators have completed a risk assessment, it may not have been unduly onerous for the School to have done so.) I regard this as a case where evidence of the magnitude of the burden would be required in order for this submission to have weight. However, in light of my acceptance of the School’s other submissions on appeal, it is unnecessary for anything more to be said.

Notice of contention

161. By a notice of contention, Ms Miller advanced three further bases of upholding the judgment against the School. First, she contended that the primary judge should have found negligence in the training program prescribed by Mr Critoph, insofar as it involved track-start dives from the shallow end of the Lithgow Pool because (a) Mr Brodie was not qualified as a coach, (b) there was a “deficient physical set up of Lithgow Pool at the shallow end”, (c) because the prohibition upon diving at the shallow end could only be raised if there were a person qualified as a coach and (d) there had been no risk assessment of track-start dive entry into the shallow end of the pool. Secondly, Ms Miller contended that if a compromised track-start dive could not be aborted or abandoned, then it was a breach of duty to set a program involving diving into the shallow end of Lithgow pool under the supervision of Mr Brodie (who was not qualified as a coach). Thirdly, Ms Miller contended that the School was responsible for Mr Brodie’s acts or omissions “because of the operation of the [School’s] non-delegable, personal duty of care and the doctrine of vicarious responsibility”.

162. The first and second points in Ms Miller’s notice of contention are answered by the conclusions I have reached on the School’s appeal above, which may shortly be stated as follows. There was nothing relevantly deficient at Lithgow pool of which a person in the position of Mr Critoph ought to have been aware. There was no negligence in permitting diving from the shallow end by trained swimmers at the pool. The presence of a licensed coach, as opposed to Mr Brodie, would have made no difference. A risk assessment would not have produced any different result.

163. The third point was that the School was responsible for Mr Brodie’s acts. In response, the School said that although that claim had been pleaded, this was not pursued at the trial. That response seems to have a deal of force, but I do not rely on that. It suffices to observe that, for the reasons already given, there is no basis for finding that there was any breach of duty by Mr Brodie. It is neither necessary nor appropriate to consider questions about the extent of the School’s personal and vicarious liability, some of which were noted by Baroness Hale of Richmond DPSC in Woodland at [29]-[30], which arise on this formulation of Ms Miller’s case.

Orders

164. Ms Miller’s tragic accident was entirely blameless on her part, but it does not follow that her injury was caused by a breach of duty owed to her by either the School or the Council. For the foregoing reasons, I have concluded that she failed to establish such a breach by either. I propose that there be a grant of leave to appeal and the School’s appeal be allowed against Ms Miller, and Ms Miller’s appeal dismissed. Costs should follow the event, but Ms Miller should be entitled to a certificate under the Suitors’ Fund Act 1951 (NSW). It is not necessary to make orders about the cross-claims (the position as to which was not the subject of orders when the appeal was heard).

165. The formal orders I propose are:

1. Grant leave to appeal and allow the School’s appeal against Ms Miller.

2. Set aside order (ii) made on 28 November 2014 (namely, “A verdict for the Plaintiff against the Second Defendant for damages to be assessed”) and in lieu thereof, dismiss the proceedings against the School.

3. The proposed amended notice of first cross-appeal provided to the Court on 1 September 2015 be treated as a notice of appeal.

4. Grant Ms Miller leave to rely upon paragraphs 21 - 25 and 35 as if they were grounds of appeal.

5. Dispense with the requirement to file and serve a notice of appeal.

6. Dismiss Ms Miller’s appeal against the Council.

7. Ms Miller to pay the costs of the Council and the School, at first instance and on appeal.

8. Ms Miller to have a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the School’s appeal.

166. SIMPSON JA: I agree with Leeming JA.

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Amendments

14 November 2016 - [63] - "(which was 1.22m deep)" moved earlier in the sentence

[140] - "of the their dives" replaced by "of their dives"

[159] - "s 5B(3) steps" replaced by "s 5B analysis"

Decision last updated: 14 November 2016