Miller v Lithgow City Council

Judgment 1HIS HONOUR: The plaintiff in these proceedings is a tetraplegic. She acquired that disability on 7 January 2008 when aged 12 and in consequence of diving into the shallow end of a public swimming pool run by the First Defendant, the Lithgow City Council. 2Prior to that time she was, for someone her age, a very experienced and very competent, swimmer, ranked in the top 20 Australian girls of her age for a number of events. She was a member of the Bathurst Swimming Club from 2003 until 2005. In April 2005 at the invitation of its coach, she became a member of the Kinross Wolaroi School Swimming Club ("KWSC") and in early 2007 was awarded a school bursary and became a member of the Kinross Wolaroi School under the aegis of which the similarly named swimming club existed. The school was conducted by the Second Defendant. 3The Plaintiff sues both Defendants alleging that her injury was the result of each breaching a duty of care it owed her. 4At the time of the accident, the Plaintiff was engaged in swimming training for the NSW State Age Swimming Championships scheduled to commence on 12 January. She was under some supervision by a Mr Brodie whose two children were also members of the KWSC, whom the school had also entered to compete in the same titles and who were training at the same time. Mr Brodie was following a program that Mr Critoph, the school's swimming coach, had set. Mr Brodie would reproduce the program on a white board at one end of the pool where it could be read by the swimmers. 5The Plaintiff had been taken to the Lithgow pool by her grandmother who paid an entrance fee for the Plaintiff's admission. All three children carried out some warm-up exercises on the land and then swam some laps which, for the Plaintiff, totalled 400 or 500 metres. The next item on the program Mr Critoph had laid out and the next embarked upon, was a series of laps wherein contemporaneously the children were expected to dive in, swim 25 metres at a fast pace, finish the 50 metre lap of the pool at a slower pace, leave the pool and then repeat the exercise, commencing at the end where the preceding lap had finished. The program envisaged that the turnaround time for each lap would be 1 minute 30 seconds or thereabouts. 6The three children each completed one or more laps, the last of which had finished at the shallow end and took their positions for the next lap. Mr Brodie who was on the deck or close to the side of the pool, called out "set" and "go". He was not looking at the children at the time, but shortly afterwards looked in their direction and observed that while his children were swimming, the Plaintiff was at the bottom of the pool. He and one of the pool staff rushed to her and brought her to the surface. The Plaintiff remarked and he observed that she had difficulty with her legs and in due course he, with assistance, moved the Plaintiff onto the pool surround where she was attended to by ambulance personnel and then taken to hospital. 7In her witness statement the Plaintiff said that Mr Brodie would tell the children their times and might also mention other things about the swimming. In oral evidence she said that on the occasion in question, she "would have been" and "was" instructed to complete a race pace dive, such instructions being given by Mr Brodie following the program set by Mr Critoph. She said that the word "efforts" was written on the white board on which Mr Brodie reproduced Mr Critoph's program, so it could be read by the swimmers. She said that Mr Brodie would also remind her of the times expected but these were in any event written on the white board. 8Mr Brodie denied that he had ever told the Plaintiff as to the type of dive she should do or, in the week before the accident, the pace at which she should go. He denied ever writing on the white board the word "efforts" or in seeing that word in any program given to him by Mr Critoph. He said that he included on the white board only what Mr Critoph had included in the program he had provided. 9He denied telling the Plaintiff immediately before the dive in which she was injured, that it was to be "a race pace dive", agreeing however that he had said, "set" and then "go" but not watching the children at the time. 10Mr Brodie denied ever telling the Plaintiff of swim times expected of her. He did record times but he said that was simply for the purpose of reporting back to Mr Critoph. However, it is appropriate to note that the program Mr Critoph had laid down contained the terms presumably visible on the white board, "20 x 25 Dive Fast on 1.30 swim through to the other end". It did not contain the term "efforts" or "race pace". 11The form of dive that the Plaintiff sought to execute was known as a "track-start" dive. Commonly, such a dive is executed from a raised and angled platform or block, the front of which is easily gripped. However the dive can also be performed from a pool deck or surround. Some pools have a coping tile or the like that protrudes from the edge of the deck some 2 or 3 centimetres and which also provides a handhold. Preparation for the dive involves the swimmer placing one foot on the edge of the pool or block, with one or more toes gripping the coping tile or edge of the pool or block and placing the second foot some 500-600mm to the rear. The swimmer leans down and places the hands more or less beside the front foot, gripping if possible. The Plaintiff had been taught by Mr Critoph on how to execute the track-start dive in 2006 and had used it commonly since. She described her technique including that "I try to dive using the maximum effort I can apply". 12Although her initial training in the track-start dive occurred at the deep end of the school pool using blocks, after a period of practising these dives from that end, she began to perform them at the shallow end. She was never advised of any risks associated with carrying out such a dive at the shallow end, or of incorrectly performing the dive or warned against the risk of her left foot slipping, or her right foot or hands not being able to get the advantage of a good coping edge. The Plaintiff added that she had received no study of pool safety or risk assessment or induction about the risks of a pool and said that if a coach or other person having responsibility for her told her to do something, she did it. 13After early 2006, the plaintiff always used the track-start dive as her method of commencing races or training swims. During a training session and using this method, she dived in the shallow end of pools multiple times throughout the session. This was a normal part of training and others did the same. Having regard to the extent of her training, she must have used that form of dive on many hundreds but more probably on thousands of occasions. 14According to evidence from the Plaintiff that I accept, she had dived in the shallow end of a variety of pools since she was aged about 7. She had never previously dived and touched the bottom. She had no problem with a track-start dive before 7 January 2008. Her back foot had never slipped previously as it did on the 7 January 2008. 15Mr Brodie also said that in the week before the Plaintiff's accident, she had been diving in from the shallow end as were his children. They had done the same previously, both from time to time doing track-start dives. 16On 7 January the Plaintiff intended to dive from the pool deck into lane 3 of the Lithgow pool. At the same time Mr Brodie's children prepared to dive into lanes 1 and 2. The Plaintiff's description of what occurred was that she took up her track-start dive stance with her fingers gripping the edge tile and the toes of her right foot curled around the tile edge of the pool. She said that it was very difficult to grip the edge of the pool with her fingers and the toes of her right foot, there being nothing to pull on when starting the dive and she had a poor grip of the coping. The Plaintiff described the tiled edge as "poor". 17In that respect, the Lithgow pool differed from that at the school or the Orange public pool. Those pools had coping tiles that protruded some little distance over the water - perhaps 2 or 3cm - and which provided a good rounded edge for the front foot and fingers by a swimmer carrying out a track-start dive to grip underneath. 18To that time, the Plaintiff had been accustomed generally to swimming in the Kinross Wolaroi School pool which had tiles. That pool was about 1.2 metres deep at the shallow end. She would however swim at the Orange public pool between 1 and 3 times a week during summer, if the school pool was being used for another purpose but said that it was not as slippery (as the Lithgow pool). She did not ever recall slipping at that pool and her front foot and finger grip were never compromised there. She was accustomed to diving at the shallow end of both the school and Orange pools multiple times during each training session. According to the Plaintiff, both of these pools were much less slippery than the Lithgow pool. The Plaintiff said that she did not know the depth at the shallow end of the Orange pool. 19The Plaintiff intended to perform the dive in the course of which she was injured with all of the effort she could as if it was a competitive race. One would infer from [111] in Exhibit A, that that was a habit she had. When Mr Brodie said "go" she pulled hard with her hands and arms and at the same time pushed hard with her left foot. She felt that foot slip badly in a puddle of water it happened to be in, when Mr Brodie said "ready, set, go". Her body twisted, she was going forward and could not stop and was not able to get her arms and hands ahead of her to enter the water first. 20In her written statement Exhibit A, she said that she had a poor grip on the coping with her toes of her right foot and with her hands. In oral evidence she said that "if you couldn't get a good grip with your right foot or your fingers, you couldn't put a great deal of force into your dive to get horizontal" and repeated that she was not able to exert a great deal of force in her right foot or with her hands. 21There was no challenge to the Plaintiff's evidence as to these circumstances. 22There was no clear and direct evidence as to what caused the Plaintiff's back foot to slip. The pool surround sloped away from the pool itself at an angle of about 1 in 55 - described as "slight and not unusual". At the edge of the surround and adjacent to the pool was a row of tiles 200 or 235 mm long and about half or two-thirds that in width. (Different figures in Mr Gibson's report Exhibit 6, which dealt with the situation in 2008 and after changes to the pool, are not easy to reconcile. I do not think it material, but I should add that some of the photographs in Exhibit C showing the side of the pool seem to show 2 rows of tiles). The photographs also indicate that the edge of the tiles appears to be semicircular and the tiles overhang the water to a slight degree, possibly to the extent of the semicircle. The tops of the tiles had ridges and valleys which, in the case of the tiles at the end of the pool, were at right angles to the pool lanes. The evidence did not reveal whether the top of each tile was horizontal or angled slightly as was the balance of the pool surround. 23The Plaintiff gave evidence also that there was no surface of the tiles overhanging the water. Based on the photographs, I think she was wrong in that regard, a possible explanation for which is her perceived difficulty in gripping the tiles. However any overhang was very small. 24Although no one placed reliance on the fact, and I do not think it material, I should record that the photographs in Exhibit 3 also show either a gap between the row of tiles and the balance of the pool surround or, as I think more probable, that as a group, the tiles sit slightly proud of the surround. Some of the photographs show that many tiles on the vertical wall at the shallow end of the Lithgow pool were cracked and some of those on the edge of the surround, showed distinct evidence of movement of some tiles relative to others. There are cracks between them and some had at least one edge proud of the general tile level. 25A question arises as to the slipperiness of the pool surround and a "NO DIVING" decal painted on the pool surround at or close to where the Plaintiff's left foot was likely to have been at the time she commenced her dive. 26After some confusion, the Plaintiff said that she had not detected slipperiness of the pool concrete deck itself, although it is not clear if she was excluding the effect of pooled water in that evidence. 27A Ms McFadden, who was employed as a pool attendant and later as a lifeguard at the pool between 2005 and 2010, gave evidence that during the period she was employed by the Council, she did not notice any slipperiness at any portion of the pool surrounds, including the "NO DIVING" signs. It is to be inferred that she very probably spent a considerable amount of time walking around the pool. 28There was also evidence that ducks tended to congregate on a cover placed on the pool at night and in the vicinity of the pool, leaving their droppings. There was a practice whereby each morning the droppings would be hosed off. Ms McFadden gave possibly inconsistent evidence that sometimes some of the droppings were left and that she made sure that when she was hosing that it was "all gone, especially off the tiles". She agreed also that the droppings were "pretty slippery". Mr Brodie gave evidence, that when the deck area was washed down, large puddles of water would accumulate, but Ms McFadden would not accept this, saying that all the water ran to the drain. There was nothing in the evidence or the demeanour of these witnesses to assist in resolving this difference, although the Plaintiff's evidence, which I accept, of her rear foot being in a pool of water, suggests that drainage from the pool deck was not perfect. 29I have referred to the presence of a "NO DIVING" decal painted on the pool surround at or close to where the Plaintiff's left foot was likely to have been at the time she commenced her dive. One issue that arose was whether that decal and others had recently been painted at the time of the Plaintiff's accident. Photographs show two such signs at the shallow end of the pool and at least two down one of the sides. Ms McFadden said there were about three such signs painted along each side. 30Ms McFadden said that the signs were repainted at the commencement of each swim season, although she had no specific recollection of painting at the commencement of the 2007-2008 season. Taken to photographs, she accepted that the signs were probably not repainted for that season. "Repainting" when it occurred, included scattering sand over the paint while still wet. 31Mr Brodie described the condition of the signs as "poor" and said they appeared to be quite old, "an historical remnant". He was certain that they were not freshly repainted at the beginning of every summer. 32A Mrs Kerrison, who was a swimming coach at the pool for a number of years, said that she had noticed one, not obvious, "NO DIVING" sign at the shallow end of the pool and one around the side. She could not recall a sign being in a non-deteriorated condition at the beginning of each season. 33The Plaintiff had trained at the Lithgow pool on a few occasions prior to her accident, including during the Easter and Christmas 2007 school breaks when in large part, she probably trained with Mr Brodie. However the number of times would seem to have been few. She also had swum at the Lithgow pool on a few occasions during the weeks leading up to her accident. The Plaintiff said that during these earlier visits to the Lithgow pool, she had not noticed any "NO DIVING" signs. 34The Plaintiff said that she was never told not to do a track-start dive at the Lithgow pool, or to be careful because the surround, or that the signs could be slippery. She was never told to ensure that her foot was not on the "NO DIVING" sign. 35In evidence is a report from a Dr Gibson, a biomechanical engineer who, in addition to expressing some conclusions of his own, recounted some findings or measurements taken, it would appear on 19 June 2008, by a Mr Beckett who had measured the coefficient of friction on parts of the decal near to, or on which the Plaintiff slipped, the deck nearby, on parts of another decal at the side of the pool and one area of deck adjacent to the second decal. As measured, the coefficients of friction of those surfaces when wet were:- Worn sign red Too worn to test Worn sign white 0.64 Worn sign black 0.5 Pool deck nearby 0.55, 0.67 (One test each side of sign) Unworn sign red 0.47 Unworn sign white 0.49 Unworn sign black 0.43 Pool deck nearby 0.68 36Dr Gibson observed that the tests of the relatively unworn sign were done to demonstrate the smoothing effect of a painted surface and the measurements of that sign were a "worst case", by which I understand him to mean, the most slippery of the areas tested, and they significantly reduced the surface's ability to resist slip when wet. Dr Gibson also reported that the recommended resistance for wet pool surrounds and communal shower rooms, was a wet dynamic coefficient of friction of 0.47 - 0.59. It is to be inferred from Mr Gibson's report and confirmed in the first document in Exhibit C, that the higher the reading, the less slippery a surface is. 37Photographs included in Figure 7 to Dr Gibson's report, depicts the "NO DIVING" sign adjacent to lane 3 as taken on 15 February 2008. The photograph indicates that a deal of the red paint has been almost completely worn off and a very substantial deterioration of the white paint. The similarity of the 0.64 measurement of that white paint and the figures of 0.67 and 0.68 suggests that the white paint in that sign had been so worn that, at the time of the above measurements, it had almost no impact on the slipperiness of the pool deck in the area so painted. The appearance of the white paint in the photograph is consistent with such a conclusion. 38The 0.5 reading falls within the recommended resistance for pool surrounds but the disparity between that figure and the 0.64 and more particularly the 0.67 and 0.68 figures, suggests a difference in slip resistance that might well be significant. However, the fact that the testing occurred some 5 months after the Plaintiff's accident, makes it difficult to infer too much from that reading. It is however a reasonable inference that the readings would have been taken in the absence of any observable duck droppings. 39Given that the 0.5 reading falls within the recommended level of slip resistance, leads me to the view that of itself, it does not demonstrate negligence on the part of the Council and its similarity with the 0.55 reading nearby, combined with the absence of any other relevant evidence relating to it, leads me to the view that it cannot be regarded as a concealed trap. 40An associated issue is where the Plaintiff's feet were in relation to the worn sign. Mr Brodie said that her back foot would have been on or close to sign. Dr Gibson provided a photograph on which was depicted the worn sign, a black lane marking on the floor of the pool for the lane in which the Plaintiff dived, a notional prolongation of that lane marking and its centreline. The photograph showed that the sign measured 835mm long and 545mm wide. The background colour which covered about 80% of the sign was white. There was a red hollow circle with one red and one black line through and a black "NO DIVING" instruction apparently endorsed on the white background. On page 11 of Mr Gibson's report, the lane marking was indicated to have been 202mm wide, the worn sign extended from 65mm from the left edge of the lane marking prolongation to well beyond the right edge of that lane marking prolongation. By far the largest portion - I estimate approximately 80-90% - of that part of the sign as is within the prolongation of the lane marking is white. The edge of the sign in closest proximity to the edge of the pool was 450mm from it. 41This latter measurement, when taken together with the estimates of the distance the Plaintiff's rear foot would have been from the edge of the pool, indicates that her rear foot was at least close beside the sign. However the measurements do make it doubtful if her foot, i.e. her left foot, was on the sign or certainly on other than the white part. 42Another matter that must be mentioned is the depth of the pool. This varied from about 1.1 metres at the end where the Plaintiff's accident happened to, according to Mr Beckett, 1.8m. Clearly apparent in the side walls of the pool adjacent to the shallow end were signs "1.1m". Along the sides of the pool were skimmer or scum ledges positioned 1.08 metres from the bottom of the pool at the shallow end. That latter figure would seem to have been the depth of water into which the Plaintiff dived. 43On the day Mr Beckett visited the pool, the water depth at the shallow end was 1.03 metres and there was approximately 300mm of freeboard to the pool copings. Lithgow Pool Usage 44There was a deal of evidence as to the usage of the Lithgow pool. During summer it was generally available for public use. There were commonly two staff manning the pool with a third in the kiosk at some hours. The idea was that there would always be someone wandering about the pool deck. 45The Lithgow Swimming Club, of which Mr Brodie had been president from about 2003 to 2006, had an arrangement with the Lithgow Council whereby it regularly had the use of three lanes of the pool, four afternoons a week for coaching and training. During these times the Club employed coaches, one for each of the lanes. The coaching included teaching children to dive and when they became experienced, they were allowed to dive in the shallow end. The training included track-start dives but Mrs Kerrison, a member of the Club and who had coached there for some time, said that although track-start dives were taught, she had never seen a track-start dive from the shallow end at Lithgow pool. The Club held competitive races on Friday nights when the children in relays would be diving in from both ends of the pool. 46One issue that arose was, whether the First Defendant or its employees running the pool, should have permitted the Plaintiff, or indeed anyone, to have dived into the shallow end of the pool. There were, as has been said, "NO DIVING" signs there. 47Ms McFadden said that one of the pool rules that she was told to enforce was no diving at the shallow end. She said that many people didn't take notice of the signs and if she saw anyone diving, she would remonstrate with them and say that the water was too shallow. Ms McFadden also said that she suggested to the manager of the pool, a Mr Dart, that if he improved the "NO DIVING" signs, there might be less of a problem with people diving into the shallow end. Mr Dart said he would look into it, but she could not remember anything happening. 48On the other hand, Ms McFadden said that she would not have challenged the Plaintiff, because she thought it was OK for her to dive in as part of her training. 49Ms McFadden agreed that the prohibition on diving into water less than 1.8 metres deep was in accordance with some Local Government directive and a directive of the Council. She acknowledged having done an Occupational Health and Safety Course and having heard of a Local Government document called Practice Note No. 15, Water Safety and to which I refer below. She realised that it was most important that the Council adopt a risk management approach to water safety. 50She understood that the Practice Note No. 15 required the Council to ensure that personnel providing instruction in specific aquatic activities should hold an appropriate qualification. She never asked Mr Brodie whether he had a coaching qualification. She understood an induction for anyone undertaking a competitive dive start was a necessary requirement, but the Council had never told her to approach anyone to see that that had occurred. 51She was never asked to display a sign in the form of Exhibit J. . Exhibit J was a sign from elsewhere and was in terms:- "WARNING DIVE ENTRIES PERMITTED BY TRAINED SWIMMERS UNDER COACHES SUPERVISION ONLY" 52On the other hand, there was a deal of evidence that diving at the shallow end of the Lithgow pool, quite apart from when it occurred in competitions, was common. Mr Brodie said that on numerous occasions he saw diving or jumping, some persons doing this repeatedly, and never saw pool officials remonstrate with the person so acting. On one occasion he spoke to Peter Dart, the manager of the pool, about persons diving into the lanes the Club was using for training but Mr Dart did nothing. 53Mrs Brodie said that she had attended the pool regularly and commonly saw people entering the water there by diving at the shallow end. People also jumped in. Mrs Brodie said that while she had seen officials speak to persons who had been "bombing" or shouting, playing with a ball or poorly behaved, she had never seen any pool official intervene and direct people not to dive. It is perhaps relevant in assessing the quality of Mrs Brodie's observations, to record that she had never realised that there were "NO DIVING" signs at the shallow end of the pool. 54Mrs Kerrison said that until recently, people would regularly dive into the shallow end and she never saw a lifeguard intervene. There have been changes since the Plaintiff's accident. 55There was nothing in the demeanour of these four witnesses who gave evidence of the extent to which the public generally dived or jumped into the shallow end of the Lithgow pool. There is nothing in the inherent probabilities to make one account more probable than another and in the end I have concluded that I should accept the preponderance of evidence, which was to the effect that there was a significant amount of such jumping and relatively little effort on the part of pool officials to stop it. How relevant this is to my ultimate conclusions is another matter. 56Mrs Kerrison who said that she had obtained a green coaching licence, agreed that in the course leading to that licence, there would have been discussion of implementing basic risk management and injury prevention strategy. Second Defendant 57Given the way the case was presented against the Second Defendant, it is necessary to trace at some length aspects of the Plaintiff's swimming career, particularly in connection with the KWSC. 58The Plaintiff's training was intense. Prior to attending Kinross school, she trained three to four afternoons a week, her mother driving her to and from Bathurst to Orange on each of these days. After she commenced at Kinross school, her grandparents who lived in Bathurst, built a house in Orange and the Plaintiff then lived there mid-week with her mother or grandmother and trained five days a week and on most of these days, twice. Training occurred during both winter and summer. The Plaintiff would spend the weekend in Bathurst and on Monday mornings Mr Brodie, who lived in Lithgow, would pick the Plaintiff up on his way through Bathurst so the Plaintiff and Mr Brodie's son Tom, could start training with the KWSC at 6am. 59The school prided itself on its sport. Mr Kennelly, who had been the principal of the Kinross Wolaroi school since 2007, gave evidence that one of the reasons for setting up the swimming club was to facilitate the school obtaining a profile at state and national levels. He agreed that, to a limited degree, the school enjoyed benefits from the publicity that the Plaintiff received for herself and the school and agreed with a cross-examiner that "in the end result the entry into the championships was a joint venture by (the Plaintiff), the coach, the club and the school". He acknowledged that the entry into the January 2008 state championships of the Plaintiff, Tom Brodie and about six other members of the club who had qualified, had been made by the school's swimming club and KWSC had paid the entry fees. The Plaintiff was expecting to compete in up to 11 events. 60Mr Kennelly accepted that for someone like the Plaintiff to do her best, it was imperative that she train over the weeks before the State Championships. He agreed that students were encouraged to continue their fitness and training programs during holiday periods and that in the case of some students, coaches provided written programs for the students to follow in those periods. Mr Critoph, who was the school's only swimming coach, was one of the coaches who provided such programs. 61It was customary for the school to close its pool between about 20 December and 4 January. During the 2006-2007 Christmas holidays, training for members of the KWSC had continued for all except about ten days. The school pool was not open during the Easter 2007 holidays, but Mr Critoph provided at least a dry land program and attended each of Bathurst pool and Lithgow pool on one occasion to train the Plaintiff. He was at the Lithgow pool for a full training session - approximately 1½ hours. Otherwise, the Plaintiff trained under the supervision of Mr Brodie at the Lithgow pool during that Easter break. She did well in the April 2007 championships that followed, winning her first national medal. 62Although the school term ended in early December, swimming training with Mr Critoph continued up to about 20 December 2007. During this period the Plaintiff was training both morning and night. At some time during that month she participated in the Queensland State Age Championships at which Mr Critoph was also present. 63Mr Kennelly agreed also that the terms of Mr Critoph's employment included, ensuring the effective planning and implementation of training programs. He was expected to involve himself in the development of elite swimmers to county, state and national levels. Mr Kennelly said that he would expect Mr Critoph, once the Plaintiff had been accepted for the State Championships, to have prepared a program extending up to those championships. 64Mr Critoph had been appointed to the position of coach in September 2000. Although he trained a number of persons, it is clear, as Mr Kennelly acknowledged, that he was dedicated to furthering the Plaintiff's success. Mr Critoph was almost invariably present when the Plaintiff was training. He attended all the carnivals in which she participated. Apparently concerned that the Plaintiff might have time away from training, he arranged for her to have the help of other coaches when her family went away to Maroochydore in January 2006 and on another occasion to Dubbo. If he was not available during holiday times, he prepared programs in water or dry land for her and it was common for him to contact the Plaintiff on school holidays when he was on leave and ask her about her training. 65In some respects Mr Critoph may have been too enthusiastic. His employment contract with the school provided that 6 weeks' annual leave was allowed but stipulated "it should mostly be taken during the less busy periods of the year". However he had a reputation for not taking leave and on more than one occasion, including Easter 2007 when he was forced to take leave rather than continue training, he complained about the fact, remarking that his job was to make the swimmers perform. The school expected him to provide the best program he could, but by making him take leave, it was not allowing him to do his job. 66For the post 20 December 2007 period, Mr Critoph provided Mr Brodie with both a dry land (a copy of which may also have been given to the Plaintiff) and a swimming program. Mr Brodie identified these as appearing at Exhibit C pages 338 and 340. The latter included the passage, "Training recommences at KWS on Monday 7th Jan at 6.00am". 67With a view to participation in such training, arrangements were made for the Brodie children to stay with the Miller family and for Mrs Miller to take them and the Plaintiff to the Kinross Wolaroi pool for training. However, just before Christmas 2007, Mr Critoph informed the Plaintiff and other members of the KWSC swimming squad, that the school bursar was making him take holidays and that there would be no training by him until school returned. In informing the Plaintiff's mother of this, Mr Critoph expressed anger at the bursar's decision. Mr Critoph asked that the Plaintiff go to train at Lithgow and said that he would see them at the State Age Championships. 68When it became apparent that Mr Critoph was obliged to take holidays and would not be training the Plaintiff in January, he provided Mr Brodie with a further program to be implemented in the week commencing 7 January and which Mr Brodie identified that at page 335 of Exhibit C. 69Some years earlier in about 2005, Mr Brodie had had a conversation with Mr Critoph in the course of which the latter said that it was important that parents be committed to the swimming training and that the children continue to swim during holiday breaks and asked if Mr Brodie was willing to assist. Mr Brodie said yes. Mr Critoph stipulated that he wanted the children's times recorded and wanted feedback on their physical performance, their attitude and times. The practice which continued until January 2008, including the Christmas holidays of 2005/6 and 2006/7, was that Mr Critoph would furnish, personally or by email, Mr Brodie with one or two training programs, commonly what was referred to as a "dry land" program and one covering swimming. Mr Brodie would implement the program at the Lithgow pool. 70In the period between 20 December and 7 January, Mr Brodie, his children and the Plaintiff attended the Lithgow pool where the children trained. The Plaintiff said that in the week before 7 January, she trained once a day although she was not sure if it was every day. Mr Brodie said that during the week immediately prior to 7 January 2008, he spoke to Mr Critoph several times and during that week reported that the training sessions had gone well, that the children had performed all sets and told Mr Critoph of their times. 71As I have said, the Plaintiff was at the school in consequence of being awarded a bursary. By its terms, continuation of the financial assistance provided by the bursary was contingent upon, inter alia, "Emilie's continued participation and involvement in the co-curricular life of the school to the Principal's satisfaction." The Plaintiff also gave evidence to the effect that at the beginning of 2006, the principal of the school had said to her words to the effect:- You are expected to participate fully in the swimming opportunities that this school provides for you. It is a condition of your bursary that you show full commitment to the swimming program. 72Originally the Plaintiff attributed these remarks to Mr Kennelly but after he denied this conversation, the Plaintiff gave evidence that it might not have been him. Certainly she would seem to have been in error in relation to the date. Having regard to the time of award of the bursary - about July 2006 - and the Plaintiff's commencement at the school, any such conversation is likely to have occurred early in 2007. 73The Plaintiff's mother gave evidence of Mr Critoph making somewhat similar statements. 74Mr Kennelly was asked about the expectation of the school concerning students in receipt of a bursary. He said that all students were required to be part of a co-curricular program, but there were no requirements in terms of level of performance. 75On this topic also there was nothing to choose between the credibility of the witnesses. It strikes me however, that it was more likely that the continuation of a bursary was to be dependent upon effort and commitment, rather than performance. In short, I prefer the version given by the Plaintiff and Mr Kennelly to that given by Mrs Miller. That is not to say that the latter did not accurately recount what she was told by Mr Critoph. 76Also raised as an issue was the School's responsibility for activities pursued by its pupils during holiday periods. Taking the view that risk assessments of public facilities such as council or government operated swimming pools or sporting fields, were the responsibility of those bodies, Mr Kennelly said that in 2007 the school did not undertake such assessments of such facilities. It does so now, when such facilities are being used in an organised activity by the school, albeit not in the case of whatever facilities students might be using in school holidays. Mr Kennelly opined that attempting to do so would be an impossible task. Given that in 2007 the school had some 900 students, about 40% of whom were boarders and who came from throughout the State and beyond, I have no difficulty in agreeing with the latter proposition. 77I should record that in so concluding, I am not unconscious of evidence on the topic from Mr Sweetenham to which I refer below. I clearly reject his view. 78It was also submitted that the school had an obligation, including a contractual obligation, to train the Plaintiff during the relevant period, even though it was the holiday season and if Mr Critoph was not available, to provide another coach. Reliance was placed upon the benefits the school saw as to be derived from the Plaintiff's success. The submission is easily dealt with. I see no basis, either in documents, spoken words or conduct, for the obligation suggested. 79Mr Kennelly was also directed to certain provisions of the Education Act imposing obligations on schools and asked a number of questions concerning the school's policies for risk management for off-site activities. Save and except for recounting his evidence that the school had no policy in respect of what he referred to as informal activities - as he characterised those in which the Plaintiff was engaged - I do not think it necessary that I detail his evidence on these topics. He accepted, or I think more accurately was prepared to assume, that it was easy to check if a person had a licence to coach. 80Attention was also directed to s 47 of the Education Act which requires schools to provide a safe and supportive environment and to a Registered and Accredited Individual Non-Government Schools New South Wales Manual that apparently requires a registered school to have in place policies and procedures for, inter alia, risk management for students undertaking on site and off site activities. Such policies are required to be disclosed in a school's annual report. Mr Kennelly seemed to accept that the school's 2007 annual report contains nothing that deals with guidelines for the risk management of off site activities. 81I rather doubt that the off site activities referred to in these publications include whatever sport practice a pupil may engage in during holidays, even if the school encouraged such practice, provided a program that could be usefully followed and nominated someone who might supervise. Although there are undoubtedly shades of grey, parents, rather than a school, have primary responsibility for students away from the school or formal school organised activities and it cannot sensibly be thought that the publications referred to were intended to interfere with the relativities of their several responsibilities. Mr Brodie 82A number of questions arose in respect of Mr Brodie - whether he was or acted as a coach, whether his presence at the Lithgow pool on 7 January was as a supervisor and whether in light of Mr Brodie's qualifications or lack of them, the First Defendant should have allowed the Plaintiff to dive where she did. 83Mr Brodie had been the president of the Lithgow Swimming Club from about 2003 to 2006. His two children swam with that club until both joined the KWSC. Mr Brodie acknowledged that, in his capacity as president, he went to the Lithgow pool up to four times per week for an hour and a half or more at a time. 84Mr Brodie said that his offer of services during January 2008, was to enable or assist the Plaintiff to train, but maintained that this offer was of a willingness to assist her training and not as a coach. He agreed with the proposition that in offering his services for the Plaintiff to join him at the Lithgow pool, "those were the services of someone who was proposing to train Miss Miller" although later he emphasised he had offered to "assist" her training and was doing so as a parent to assist Mr Critoph. 85Mr Brodie gave evidence to the effect that no one had ever suggested to him that he should:- (a)Speak with anyone at the Lithgow pool and get approval for the Plaintiff to dive in the shallow end; (b)do any induction of Emilie, i.e. familiarise her with any possible dangers associated with the quality of the surface and the depth of the water etcetera at the shallow end of the pool; (c)direct the Plaintiff's attention to the shallowness of the pool and the free board above from the surface of the pool to the deck; (d)check as to whether the depth of the pool varied or was liable to vary from day to day; (e)do some sort of the risk assessment, e.g. assess himself, the quality of the deck from which Emilie was to do this track-start dive; or (f)do that coupled with the depth of the water and the amount of free board etc? 86Mr Brodie said he knew nothing about risk assessments and had no training in relation to the desirability or the need to induct an athlete such as the Plaintiff. In his written statement he said that he had been aware of the "NO DIVING" signs at the Lithgow pool ever since he commenced going to the pool, but given their state and that no one enforced the prohibition, he thought the signs were just an historical feature. He did not inspect the shallow end of the pool on 7 January 2008. He said that if a sign such as Exhibit J had been displayed, he would have stopped immediately because he is not a coach. 87Mr Critoph may have been under the impression that Mr Brodie had a coaching licence. A letter he wrote on 18 February 2008 contained in Exhibit C so suggests, although other evidence in the case makes it doubtful if the source of information referred to in that letter so indicates. 88In fact, according to Mr Brodie, he did not and had never had such a licence. He said that he had undertaken the first theoretical component of a green (basic) licence course in 2005 or 2006 but had not taken the matter further. He said that at about that time, he had told Mr Critoph that he had done the theory component of, or part of, the green licence course. 89There was also an issue whether, whatever qualification Mr Brodie had, he did in fact perform the role of a coach. He said strongly that he was not a coach - that he never performed the activities of a coach and never interfered with the coaching activities of those who were the club's coaches. He denied giving advice to swimmers including the Plaintiff. He denied doing stroke correction. He denied that he would even have told his children and the Plaintiff that they had not warmed up properly. He agreed that from time to time he walked along the side of the pool encouraging children swimming. 90Mrs Brodie also said that her husband had never been or acted as a coach at the Lithgow Swimming Club. She said that she had been present at the side of the Lithgow pool with her husband when their children and the Plaintiff were swimming laps. She denied hearing him give instructions or advice to the Plaintiff. She denied seeing him speak to the Lithgow Swimming Club children about the quality of their swimming. She denied hearing her husband give their own children advice about their swimming style when he had taken them to training sessions. 91Mrs Kerrison, a member of the Lithgow Swimming Club and who had coached there it would appear for a number of years, also said that Mr Brodie never acted as coach or meddled with the coaches. 92Ms McFadden gave contrary evidence. She said that she had seen Mr Brodie at the pool three or four times a week for some years after 2003 or 2004 but perhaps less frequently thereafter. Over the years she had seen him on irregular occasions walking up and down as if he had a designated lane for the night, training children including his own. There were other coaches there and she thought he was coaching or helping to coach. For example, he was doing arm actions. 93I am not disposed to accept Mr and Mrs Brodie's evidence that he was as "hands off" as he asserted. His obvious interest in his children, the Plaintiff and the activity makes it inherently improbable that he could have been as restrained as he said. On the other hand, the Plaintiff and Mr Brodie's own children would seem to have had so much coaching and training and, at least in the case of the Plaintiff, been so keen, that I suspect there were few occasions when they did anything that called for any intervention by Mr Brodie. 94There was nothing in Mr or Mrs Brodie's demeanour to cause me to disbelieve them and nothing in the vast bulk of their evidence that inspired such a conclusion. However, forced to choose between the Plaintiff's and Mr Brodie's account of what occurred prior to her final dive, I am disposed to accept what the Plaintiff said. All three witnesses appeared to me to be honest but the Plaintiff was the more impressive. Common practice 95In judging the reasonableness of the Defendants' actions, it is pertinent to bear in mind other evidence that was given. There was a wealth of uncontradicted evidence showing that swimming carnivals were a common feature of activity among school children in the towns already mentioned and in other towns in the New South Wales central west and that those carnivals commonly included relay races where children dived into the shallow ends of pools (except at Cowra which seems to have been regarded as too shallow). In 2008-2010 the Brodie children continued to swim in district events and diving continued in both shallow and deep ends of the pool. Documentary Standards 96Included in the evidence were numerous advisory publications and ones which recounted standards promulgated or adopted by a variety of bodies concerned with swimming. Most of these were contained in Exhibit C, a lever-arch file containing some 400 odd pages. Much of the contents consisted of statements of such generality or of a "motherhood" nature that they added nothing to the case. Some contain statements expressed in absolute terms, without qualifications appropriate to the wide variety of circumstances likely to be encountered in the real world. Some were repetitive of others and a number had no possible causal relevance to the circumstances of the Plaintiff's injury. However, a few should be referred to. 97Practice Note 15 was prepared by the Department of Local Government to assist Councils in exercising their water safety functions. It advocated that Councils adopt a risk management or other systemic and comprehensive approach to water safety. That document and a number of others, included recommendations or other observations about signage. However, for reasons indicated below, I am of the view that any deficiencies in signage were in no way causative of the Plaintiff's injuries. 98SU 22 published on 14 November 2005 by the Royal Lifesaving Society "to provide guidance on safer water entry (Competitive Dive Starts) for competitors during competition and training for competition" contained in clause 5.3 guidelines for Water Depths for starts for competition swimming and training (for trained competitors). It provided, inter alia, that in water depths less than 900mm dive starts should not be permitted and in water depths 900mm to 1000mm they could be permitted in certain defined circumstances. Paragraph 5.3 (c) provided: In water depths greater than 1000mm and less than 1200mm: