Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 Hearing dates: 1 - 2 September 2015 Decision date: 15 October 2015 Before: Basten JA at [1]; Leeming JA at [2]; Simpson JA at [166] Decision: 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. Catchwords: NEGLIGENCE – school student injured while training in Council pool – pupil directed by swimming coach employed by School to dive into shallow end of pool – pupil slipped and suffered serious injury – whether Council liable to pupil – where guidance to pool operators permitted diving by trained competitors into shallow end of pool – whether School liable to pupil for failing to train her to abort a mis-executed dive – whether School liable for failing to be aware of elevated risk of track-start dive at a pool without readily grippable coping tiles – whether School liable for failing to conduct a risk assessment of pool – consideration of "risk of harm", breach of duty and causation – appeal by School allowed, appeal by pupil against Council dismissed Legislation Cited: Civil Liability Act 2002 (NSW), Pt 1A, ss 5B, 5C, 5D, 5G, 5H, 5I, 5L, 5M Suitors' Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.18 Uniting Church in Australia Act 1977 (NSW), s 12 Cases Cited: Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243; [2002] Aust Torts Rep 81-636 Erickson v Bagley [2015] VSCA 220 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Geyer v Downs (1977) 138 CLR 91 Gugiatti v Servite College Council Inc [2004] WASCA 5 Miller v Lithgow City Council [2013] NSWSC 427 Miller v Lithgow City Council [2014] NSWSC 1579 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235 Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219 Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172 Roads and Traffic Authority (NSW) v Refrigerated 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)