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

erated 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

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Factual background

1. 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.
2. 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.
3. 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.
4. 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."

Procedural history

1. 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.
2. 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.
3. 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.

SU 21 and SU 22

1. 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.
2. 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".
3. 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."

Practice Note 15

1. 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.
2. 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".
3. 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".
4. 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

1. 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

1. 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.
2. 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".
3. 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.
4. 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."
5. 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

1. 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.
2. 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

1. 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.
2. 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.
3. 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

1. 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."
2. 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

1. 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."
2. 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

1. 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."
2. 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.
3. 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.
4. Mueller and Cantu did not address any risk associated with particular dives, or conditions of the concourse surrounding a pool.

Conclusions from academic literature

1. 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.
2. 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."
3. 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.
4. 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

1. Contrary to Ms Miller's submissions, Practice Note 15 does not speak to the facts of this case.
2. 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.
3. 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.
4. 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

1. 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.
2. 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).
3. 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.
4. 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.
5. 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.

The School's appeal against Ms Miller

1. 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.
2. 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."
3. 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."
4. 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."
5. 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".

The School's submissions

1. 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.
2. 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.
3. 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"

1. 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."
2. 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".
3. 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.
4. "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.
5. 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."

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

1. 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.
2. 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".
3. 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.
4. 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.
5. 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.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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]".
6. 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."

Third basis: Failure to conduct a risk assessment

1. 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."
2. 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.
3. 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

1. 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.
2. 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.
3. 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.

Notice of contention

1. 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".
2. 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.
3. 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

1. 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).
2. 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.
3. SIMPSON JA: I agree with Leeming JA.

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" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2016