In September 2015 the NSW Court of Appeal heard two appeals in relation to a 2014 NSW Supreme Court decision that established that a non-government school was liable for a student’s diving accident that occurred outside of term time and outside school employee supervision.

The facts in review

We previously reported on the original Supreme Court decision. The case concerned an accident in January 2008 in which SB, while training for a state swimming competition, slipped while performing a ‘race dive’ at the shallow end of a public pool. SB collided with the bottom of the pool and fractured one of her cervical vertebrae rendering her a tetraplegic (quadriplegic).

The students were, at the time, being supervised and coached by a parent who was under instruction from the school’s swim coach. 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. It was found that SB had slipped as her dive entered the water and at trial the limited grip of the tiles on the edge of the pool were examined in combination with the risk presented by a ‘race dive’.

Despite being in holiday time and not under direct supervision of a school employee, the School was found to be liable. The Council escaped liability.

On appeal:

• SB argued that the Council should have been held liable; and
• the School argued that it should not have been held liable.

The three reasons the original judge found the school liable

The Court of Appeal judgment identified three distinct aspects of the trial judge’s reasoning which established the School’s liability.

These were that:

• the absent swim coach should have been aware of the elevated risk associated with a race dive in a pool that didn’t have the usual protruding tiles that allowed divers to maintain their grip and avoid slipping and should have informed the supervising parent of this;
• SB had received no study of pool safety, or induction about the risks of a pool specifically after being taught ‘the more dangerous race dive’; and
• the School had failed to undertake a proper inspection or risk assessment of the activity at the pool or notify the parent that he should do this upon arrival.

Reasons why Council originally not liable

Although allegations were raised that the Council should have conducted a risk assessment on the pool, in the end the Council was not liable. This was despite evidence showing that diving into the shallow end of the pool was common practice, and even though there was a ‘no diving’ decal painted at the shallow end of the pool that policy was not enforced by lifeguards.

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 School’s appeal

The School was granted leave to appeal the Supreme Court’s decision in April this year. The School’s primary submission was that the Court erred in finding the race dive to be more dangerous than other competitive dives and therefore created a higher level of risk.

The School submitted that:

• there was no basis for concluding that the swim coach ought to have been aware of the significant nature of the protruding tiles for grip and that there was no evidence to prove that the absence of these tiles had any causal significance in SB’s accident;
• the lack of a pool safety induction was irrelevant to the issue of its liability;
• it had acknowledged that it had not done the risk assessment but also denied that there was an obligation upon it to do so. The School submitted that it was highly impractical 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; and
• even if a risk assessment had been carried out it would have led to no different result because there was nothing to indicate that there was any elevated risk associated with race diving or the Council’s pool.

The Court of Appeal’s finding

Sadly for SB, her appeal against the Council was dismissed and the School’s appeal against the original finding of its liability succeeded.

The School’s appeal succeeded because:

• SB failed to establish that the lack of protruding tiles (or gripping edge) had caused her accident, therefore meaning that the School’s duty of care towards SB did not involve advising her of any risks associated with the dive;
• under the Civil Liability Act 2002 (NSW) a defendant does not owe a duty of care to the plaintiff to warn of an obvious risk – in this case this meant that the School did not have to ‘drill into’ SB that there were dangers associated with diving;
• although SB argued that the School should have educated her on how to abort a dive that had gone wrong, for instance belly-flopping into the pool rather than completing the dangerous dive, the School’s duty of care did not extend to providing such training. It was also held that even if SB had been trained to abort a mis-executed dive, there was no proof that she would not have hit the bottom of the pool with the force that she did; and
• even if the swim coach had undertaken a risk assessment, SB failed to show that the result of that risk assessment would have been a decision to prevent track-start diving from the shallow end of the pool. This was because there was no reason for the swim coach to form the view that race diving was riskier than other forms of diving or that the tiles elevated the risk.

The bottom line for schools

SB’s tragic accident was entirely blameless on her part and, as the Court of Appeal has found, was neither the fault of the School nor the Council.

It is a sad result for SB overall and she was ordered by the Court of Appeal to pay the legal costs of both the Council and the School.

In the lead-up to summer the case is a reminder to all schools of the importance of providing a safe environment for students who undertake sport or other activities on or off campus.

Even though the Court of Appeal found that the School did not have to undertake a risk assessment regarding the ‘race dive’ at that pool, the tragic outcome of that dive means that all schools should try and avoid such an accident occurring again.  This means that Schools should carry out risk assessment for all activities students will be participating in on behalf of or in relation to the school irrespective of whether they occur on school grounds or during term time.