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Can I make a claim if I have been injured in a pool?

    Family in a swimming pool
    17 December 2021

    As the weather heats up and we all get restless being stuck under the air conditioner, we look for other ways to cool down outside of the house. Unfortunately, sometimes going to the shopping centre or the movies just doesn’t cut it, and for most, a trip to Antarctica is a little outside of the budget. 

    For young to old, the water is a fun and dependable way to cool down – often seeing us seeking out a pool to spend the day in. Whether the pool is your own, at a friend’s place or the community pool, they all offer a thrilling reprieve when it’s hot. 

    In Australia, from a very young age we have water safety drilled into us when we attend swimming lessons in primary school. We also have laws and codes of practices in place around pool fencing, the number of lifeguards required, etc. However, despite our knowledge and interventions from the government, injuries still arise.
     

    Inherent risks when using a pool


    Inherent risks are those we associate with the activity at hand. They are inbuilt risks that we decide to accept of our own volition. 

    When using a pool for example, an inherent risk would be drowning – we all know it is possible, however, we weigh up the risk and then decide if we still choose to swim.

    Some easy ways to avoid injury from inherent risks of using a pool could include:

    -    Let someone else know you are going for a swim;
    -    Don’t go in the deep end if you’re not a strong swimmer;
    -    Supervise children and keep an eye out for your friends;
    -    Don’t dive into shallow water;
    -    Stop for a break if you are fatigued; 
    -    Don’t run around the pool; 
    -    Only swim when sober; and
    -    In the case of an outdoor pool, wear sunscreen.

    Looking after our own safety and the safety of those around us helps to ensure a fun day at the pool free from injury.

     

    The pool owner’s responsibility


    Pool owners have a duty of care to minimise reasonably foreseeable risks of injury. Doing so not only helps you relax and enjoy the day, but it also minimises the risk of a personal injury claim from a pool user should a serious injury happen.

    A responsible pool owner should assess their pool and consider items such as:

    -    Is the fencing around the pool adequate and to standard?
    -    Is the surface around the pool fit for purpose? E.g., have you used a tile that is not designed to be wet and walked on? Are there uneven surfaces that someone might roll an ankle in?
    -    Can your guests identify the depth of the pool?
    -    Does the pool filter pose a risk to a pool user?
    -    Who is using the pool? Does there need to be supervision or instruction?
    -    Are their items in the pool that prevent a person from resurfacing and/or promote drowning?
     

    Safety in public pools 


    When using a public pool, to some extent we can have a higher expectation of the level of the pool’s safety. Ordinarily we know that at a public pool there will be lifeguards, first aid and signage to warn us of the depth of the pool or to tell us not to run, as well as other safety steps and procedures in place. 

    However, a public pool owner cannot be held accountable for injuries that arise due to the inherent risks associated with swimming in a pool. For this reason, whether we are at a public pool or our friends pool, it is equally important to consider our own safety and the safety of those around us.

     

    When is a pool owner responsible for a pool user’s injuries?


    If the pool owner’s actions or inactions can be deemed negligent (that is, careless or neglectful) and this negligence can be linked to the cause of the pool user’s injury, then the pool owner can be held accountable. Due to the higher expectation of safety at a public pool, a public pool owner will be held to a higher standard when assessing negligence than a private pool owner.
     

    What to do if you are injured at a pool?


    As a starting point, an assessment would need to be done of the circumstances of the injury. If the injury arose due to someone else’s negligence (both at a public and a private pool) you may be entitled to make a public liability claim. However, if the injury sustained and the circumstances in which it occurred would be an accepted inherent risk of using a pool, you may not have a claim. If you are unsure seek legal advice.

    If you are eligible to make a public liability claim you may be entitled to claim for medical-related expenses, loss of earnings and pain and suffering compensation.

    Whether you frequent the pool to cool off, to socialise, for a pool party, as a form or exercise or therapy, the above is still applicable. If you are injured due to someone else’s negligence while at the pool you may be entitled to make a public liability claim.

    With the weather warming up we encourage everyone to have fun and stay safe when using a swimming pool.