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