A recent case, where a non-government school has been held liable for the injuries of a student who is now tetraplegic (quadriplegic), demonstrates that a school's duty of care to its students can extend to activities undertaken by its students during holiday periods.

SB sued both Lithgow City Council (the Council) and a non-government school in Orange, NSW (the School). She alleged that both the Council and the School were negligent when she was allowed to dive into the shallow end of a public pool, in the course of swimming training. As a result of her dive, she is now tetraplegic.

In the end, the NSW Supreme Court held that the School was liable for the way it instructed SB in her training program.

A promising athlete

SB, by age 12, was 'a very experienced and very competent swimmer'. She was ranked in the top 20 Australian girls for her cohort. In April 2005 she was invited to become a member of the School Swimming Club and early in 2007, she was awarded a school bursary to attend the School.

As part of SB's obligations under the bursary, she was expected to participate and be involved in the co-curricular activities of the School. This ultimately meant that she was required to maintain a level of effort and commitment to the swimming program.

An accident at Lithgow War Memorial Pool

On 7 January 2008, SB was training for the NSW State Age Swimming Championships. She was being supervised by Mr A, who administered a training program set by the School's swimming coach. During the course of the training program, SB was to complete a series of exercises where she would perform a 'race pace dive' (race dive) into the pool.

In an unfortunate accident, SB was discovered at the bottom of the shallow end of the pool. She had slipped at the flat pool deck at the shallow end of the pool whilst performing a race dive, and injured herself on the bottom. There were  no diving blocks on that end. She was subsequently rescued and taken to hospital.

Cause of injury

Acting Justice R S Hulme found that the accident occurred as a result of SB undertaking the race dive. The race dive involved Mr A marshalling the swimmers with 'set' and 'go' instructions, where the swimmers would dive from starting blocks into the pool using their maximum effort. This was to simulate a swimming race start. On occasions where the swimmers would end their laps at the shallow end of the pool, they would execute these dives from the flat pool deck, where there was no starting block. The circumstances of this incident was the focus of the case.

His Honour found that SB had experience diving into the shallow ends of pools since she was about 7 years old. She had never before dived and touched the bottom of the pool. She has never before slipped when executing such a dive.

'No diving'?

Although there was evidence of a 'no diving' decal painted at the shallow end of the pool, near where SB was diving, it was found that diving into the shallow end of the pool was common practice, and the policy was not enforced by lifeguards.

However, the Court found that, in any case, the Council was not to blame for the accident. Although allegations were raised that the Council should have conducted a risk assessment on the pool, in the end the Council was not held to be liable. The Court also found that, given that there were various activities going on around the pool, it could not have reasonably banned all dives in the shallow end.

The decision

Ultimately, the School was found to be at fault because it was unreasonable for the School to encourage SB to perform a race dive into the shallow end of the pool. The Court also found that a failure to warn of the risks of diving into the shallow end would have also constituted negligence by the School. The Court noted that had the School specified to its swimmers that such dives were only to be performed into the deep end of the pool, this is what would have happened on the day SB was injured.

This judgment is interesting because the Court made these findings despite the fact that:

• the activities were being performed off-site, and out-of-term;
• SB was being supervised by a person affiliated with, but not employed by the School (Mr A); and
• SB was experienced in water activities.

The Court remarked that the risk of a race dive going wrong was foreseeable, and went on to say that the accident may have been avoided if SB had been trained on how to safely abort a race dive, or had been warned about the dangers of race dives.

Policies and procedures

In the Court's judgment, the Registered and Accredited Individual Non-Government Schools New South Wales Manual was specifically referred to as the source of the obligation to 'have in place policies and procedures for... risk management for students undertaking on site and off site activities'.

Although the Court considered this, it ultimately found that 'parents, rather than a school, have primary responsibility for students away from the school or formal school organised activities'.

In the end, whether the School had a policy or not, or whether it had conducted an appropriate risk assessment or not, was not relevant in this case. What was relevant were the instructions in the training program to perform race dives, which included dives from both ends of the pool.

Conclusion

This is a complicated decision. Despite the fact that the Court found that the School owed a duty to SB, the School was held liable in circumstances where it was suggested that SB should have been under the supervision of her parents or guardians.

The act in question that founds the School's liability is their encouragement of SB to dive into the pool at the shallow end. The cause of this accident was unrelated to any level of supervision, risk assessment, or policy.

Although the activity was off-site and out-of-term, the School nevertheless owed a duty of care to SB. This case seems to further extend the already complex duty of care that is owed to students. The School's actions in this case were unfortunate, despite the best intentions of the staff and School community.

The local media also covered this case and it quotes the School's principal who said that the legal action SB's family took was 'understandable'.

SB is now 19, having returned to School after a period of rehabilitation. In 2010 and 2011, she again represented her school at the Australian Swimming Championships. She successfully completed her High School Certificate and has enrolled at University. The Court has yet to decide the issue of what amount of damages should be awarded.