Girl wins injury suit against school

An up-and-coming competitive swimmer has successfully sued her school for breaching its duty of care after a training incident left her a tetraplegic.

But Emilie Kate Miller failed in a similar suit against Lithgow City Council, NSW, owner of the pool where the incident happened because the judge accepted it was not the pool supervisor’s responsibility to intervene in a competitive training program.

NSW Supreme Court Acting Justice Robert Shallcross Hulme said Ms Miller, then 12, was seriously injured on January 7, 2008, when her foot slipped during a track-start dive.

She had been training for the State Age Swimming Championships for Kinross Wolaroi School at Orange when the school closed its pool during the holidays. She and two other children then entered a training program at a nearby council pool under the direction of Kinross Wolaroi’s head coach.

The court was told that on January 7, 2008, Ms Miller and the two other children were practising race starts at the Lithgow City Council public pool. As the head coach was not present, they were following his written directions under the supervision of a parent with swim club experience.

The court heard that as Ms Miller started her dive, her foot slipped on wet tiles behind her and she toppled head first into the shallow end, hitting the concrete bottom and breaking her neck.

She sued the council for allowing her to dive from the shallow end, despite ‘no diving’ signs being present, and her school’s owner, Uniting Church in Australia Property Trust (NSW), for breaching its duty of care.

On November 28 last year, Acting Justice Hulme dismissed the claim against the council after accepting evidence the ‘no diving’ signs were advisories directed at the public and not intended for competition entrants or swimmers in training. In fact, competitive swimming guidelines specifically allowed experienced swimmers and those in training to dive from the shallow end.

“No one can doubt that diving into the shallow end of the pool had risks but it is also clear that expert bodies have not regarded such risks as too great [to ban] diving in all circumstances,” he said.

Ms Miller was highly experienced for her age and had used the track-start diving method many times before at Lithgow and other pools.

At the time she was ranked in the top 20 Australian girls of her age for several events and was expected to make a career in competitive swimming.

Acting Justice Hulme said it was unreasonable to expect pool management to intervene with a swimmer of such standard, despite the pool deck not being suitable for such a dive, or to advise or “induct” individual swimmers of experience.

“Given her experience, including her use of the Lithgow pool in the preceding week and earlier, and laps swum on [the day of the incident], I am not persuaded that any failure to ‘induct’ [Ms Miller] into the Lithgow pool was in any way causative of her accident,” Acting Justice Hulme said.

The case against the school was different. Ms Miller was on a bursary tied to the swim program and felt compelled to perform. She was training at the Lithgow pool because her school’s facilities were closed for the holidays.

The coach had set a training schedule that included track-start dives and he should have conducted a risk assessment of the Lithgow facilities before the training session began. He should then have spoken to his swimmers about the potential dangers and how to avoid them.

However, Ms Miller told the court she had been instructed in track-start dive techniques, but not how to avoid injury if a dive went wrong.

“Once [Ms Miller] was being taught the more dangerous track-start dive, it should have been drilled into her that it was essential such dangers be minimised by, for example, aborting a dive that had gone wrong and perhaps ‘belly-flopping’ into a pool,” the judge said.

“Providing such warnings were sufficiently strong and repeated, and accompanied by appropriate warnings as to the horrendous consequences liable to flow from a mis-dive, logic suggests [Ms Miller] would have aborted the dive. She was, after all, only engaged in training.”

He said he accepted Ms Miller’s evidence she had received no lessons in pool safety or risk assessment or induction about the risks of a pool.
Acting Justice Hulme awarded costs against the school.

(Miller v Lithgow City Council [2014], NSWSC 1579, 28/11/14)