Flavel v South Australia - [2007] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FLAVEL v THE STATE OF SOUTH AUSTRALIA
[2007] SASC 50
Judgment of The Honourable Justice Bleby
19 February 2007
TORTS - NEGLIGENCE - DANGEROUS AND INJURIOUS THINGS, ETC - BREACH OF DUTY OF CARE
Action for negligence arising out of windsurfing accident at school aquatics camp – Plaintiff fell into shallow water and suffered cervical spinal damage – Consideration of duty of care owed by defendant – Consideration of training and instruction provided at the camp – Consideration of circumstances of the accident, including weather conditions and nature of aquatic activities undertaken – Consideration of whether defendant should have permitted particular “racing” activities on that day, and whether water was of sufficient depth for such activities – Held that there was no breach of defendant’s duty of care.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION
Admissibility of evidence of aquatics instructor who, at the time of trial, was engaged by defendant in the proceedings – Objection based on lack of integrity of witness due to commercial relationship with the Education Department – Consideration of authorities dealing with apparent bias of expert witnesses – Held that in this case the relationship of the witness with one of the parties did not render the evidence inadmissible, but was relevant to the weight of the evidence.
Supreme Court Act 1935 (SA) s 30B, referred to.
Field v Leeds City Council [1999] CPLR 833; R (Factortame Ltd & Ors) v Secretary of State for Transport, Local Government and the Regions (No 8) [2003] VSCA 33; Collins Thomson Pty Ltd (In liquidation) v Clayton [2002] NSWSC 366; Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485; Li v The Queen (2003) 129 A Crim R 281; SmithKline Beecham (Australia) Pty Ltd and Anor v Chipman & Ors (2003) 131 FRC 500; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Wyong Shire Council v Shirt (1980) 146 CLR 40, applied.
Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3) [2001] 1 WLR 2337, not followed.
Whitehouse v Jordan [1981] 1 WLR 246, considered.

FLAVEL v THE STATE OF SOUTH AUSTRALIA
[2007] SASC 50
BLEBY J:
The parties

The plaintiff was born on 9 June 1981. At the time of trial she was 24 years of age. In 1997 she was a student at the Bordertown High School in Year 10. In that year she turned 16.
On 24 November 1997 the plaintiff and other students from the school attended a school camp at the Murraylands Aquatic Centre at Murray Bridge. The camp was organised and conducted by the school for its Year 10 students.
The State of South Australia, through its then Department of Education, Employment and Training, now known as the Department of Education and Children’s Services, operated and continues to operate the Bordertown High School and the Murraylands Aquatic Centre. I will refer to the Department generally as the “Education Department”.
The camp in question was operated from Monday, 24 November to Friday, 28 November and included a number of aquatic sessions of 1½ hours each for activities which included water skiing, sail boarding or windsurfing, sailing, kayaking, canoeing, rowing and small boat handling.
The plaintiff brings this action against the defendant for damages for personal injuries which she sustained during a windsurfing session on the morning of 27 November, when she fell off her windsurfer in shallow water and fractured her cervical spine. She is now a tetraplegic.
The action
The action was commenced on 19 February 2003. In her statement of claim the plaintiff alleges breach of the defendant’s duty of care to the plaintiff in failing to provide proper instruction, causing or permitting the plaintiff and other students to engage in races when not properly trained or skilled to do so, causing or permitting the plaintiff and other students to race in a shallow portion of the river where there was a risk that the plaintiff might strike her head on the bottom of the river, employing inadequately trained windsurfing instructors, failing adequately to supervise the plaintiff and failing to provide adequate safety equipment for the use of the plaintiff.
A plea of contributory negligence by the defendant was abandoned at the trial, as was any opposition to the extension of time within which the plaintiff could institute the proceedings.
By consent, the action was listed for trial on the question of liability only, the plaintiff seeking a declaratory judgment pursuant to s 30B of the Supreme Court Act1935 (SA) for damages to be assessed at a subsequent time. Accordingly these reasons concern only the question of the defendant’s liability, if any, to the plaintiff.
The Murraylands Aquatic Centre
The Murraylands Aquatic Centre is located less than one kilometre downstream from the Swanport Bridge which crosses the River Murray south of Murray Bridge. Although it is not quite accurate to do so, for ease of reference I will describe it as being located on the southern bank of the river, on the assumption that at that point the river flows in a direction from west to east.
The Centre comprises a substantial landscaped area, mostly grassed. It includes the premises of the Murray Bridge Sailing Club, a number of storage sheds, a mess hut, sleeping cabins and areas for pitching tents. It has a number of driveways and a car parking area.
The grassed area extends almost to the water’s edge, with a river frontage of a little over 200m. Towards the western end of the frontage there is a concrete boat ramp, 8m wide, extending into the river. At that point the river is approximately 208m wide.
Approximately 40m to the east of the boat ramp and approximately 20m from the southern bank of the river is the western end of an elongated island in the river, densely covered with willows, which extends in an easterly direction for the whole of the remaining frontage of the Aquatic Centre. At the eastern end of the Centre there are willows growing on the bank and between those willows and the island is a very narrow channel. The effect of those features is to form, opposite the Aquatic Centre, an irregularly shaped area of water sheltered from the main river about 130m long and about 15 to 20m wide with an opening to the main river just east of the boat ramp. This area of sheltered water is known as “the Willows”.
Approximately 100m east of the boat ramp is a small L-shaped jetty extending from the bank into the Willows area and which extends approximately 8m into the water in a northerly direction and then turns west for a distance of approximately 8m. A warning sign is and was at all material times attached to the jetty displaying the words:
DANGER SHALLOW WATER
NO FISHING OR SWIMMING
FROM HOUSEBOAT OR JETTY
The word “DANGER” was in red and the other words were in black, in letters approximately half the height of those of the first word. The sign had a white background with a narrow black border.
On the day of the accident there was a small houseboat moored in the Willows just north of the jetty against the willows on the island. Its only relevance for these proceedings is that it was used as a point of reference by some of the witnesses and provided an obstruction to some of them as they tried to control their windsurfers. It had no bearing on the plaintiff’s accident.
Along the river frontage of most of the Centre there is a very gentle slope down to the water’s edge, which is in the form of a narrow sandy beach, onto which sailboards, small yachts and catamarans can easily be pulled when not in use.
From the water line on the southern bank in the area east of the boat ramp there is a gradual increase in depth to a point where, approximately 5‑6m from the shore the depth of water is approximately 50cm, extending to approximately 1m after another 4‑5m. Nearer the island in the Willows area the water becomes gradually deeper. However, the river water contains significant suspended material rendering it impossible to gauge the depth merely by visual observation.
The Windsurfer
A windsurfer is a sailing craft with an articulated and unsupported mast. It consists of a foam filled moulded plastic hull to which is attached a centreboard which protrudes approximately 65cm from the underside of the hull. It is designed to retract immediately when hitting an obstacle in the water and can be retracted by the sailor by means of a small rounded knob fixed to the deck of the hull. When retracted the centreboard is absorbed almost entirely inside the hull.
At the stern of the hull is a small non-retractable fin.
The sail is roughly triangular in shape and is attached to a flexible tapered mast close in length to the height of the sail. The mast foot has a flexible connection in the form of a universal joint which fits onto the hull, allowing the sail to move, under the control of the sailor, in all directions.
Attached to the mast and the opposite edge of the sail is a double-sided boom which is the main connection point between the sailor and the rig while the windsurfer is being sailed. The boom also has connected to it a large diameter rope used by the sailor to pull the rig out of the water in order to sail the windsurfer.
Sailing a windsurfer is essentially a matter of balance with the sailor matching the force of the wind against the sail. In that the sailor is assisted by the centreboard which adds stability and assists in counteracting side forces of the wind in the sail. It is also an axis on which the hull can turn while sailing. The windsurfer is steered by adjusting the position of the sail forward or backward according to the direction of travel required.
Forward movement of the board and its speed will accordingly be governed by the strength of the wind, the size of the sail, the angle at which the sail is sheeted to the wind and the strength of the sailor in counter-balancing the wind forces against the sail. In order to maintain balance these forces will need to be adjusted according to wind strength and direction. Where wind speeds are consistent those adjustments are more easily made. In gusty conditions the inexperienced sailor will have greater trouble in making the appropriate adjustments. The more experienced the windsurfer the more quickly he or she is likely to be able to make the appropriate change without overbalancing.
The make and model of the windsurfer used for training purposes at the Aquatic Centre was one which was in widespread use throughout Australia for windsurfer training. It was equipped with what was described as a “mini-rig”, being a sail with an area of something less than half that of a competition sail, thus ensuring relatively low speeds in initial training. It was not suggested that the equipment in use at the Centre was other than appropriate for training novice windsurfers.
Training activities at the Centre
The Centre is one of nine similar centres at various coastal and inland water locations in South Australia. It has operated since 1981.
Mr Gary Hodge has been employed at the Centre since its inception and has been the chief instructor since 1982. He is a qualified teacher and has a number of aquatic sports instructor certificates, including a windsurfing instructor’s certificate issued by the Australian Yachting Federation, the peak body controlling the sport of windsurfing in Australia. He is and was at all material times responsible for ensuring an appropriate standard of instruction in the variety of aquatic activities conducted at the Centre. He has developed training plans for the students in a variety of sports. He is and was responsible for the supervision and training of instructors and the audit of programs. He had the responsibility of ensuring that his programs were followed by the instructors. Those programs are reviewed each year in consultation with the instructors.
All windsurfing instructors are very experienced windsurfers themselves. Most have attended courses and obtained an Australian Yachting Federation instructor qualification outside the Centre, with onsite supervision and training provided by Mr Hodge or another instructor.
The Centre currently trains about 4,000 students per annum in a variety of aquatic activities. Since its inception it has trained between 35,000 and 45,000 students, most of whom, in the course of their instruction, have undertaken at least one or two windsurfing instruction sessions.
Windsurfing instruction at the Centre has always been conducted in the Willows area. Among the advantages listed by Mr Hodge and supported by other witnesses are that it is a defined area, preventing students from drifting away from the instruction area; it makes for easy communication with the students; it is relatively shallow enabling students to get on and off the sailboards, and is reasonably protected from strong winds. Mr Hodge described it as “the ideal situation” for teaching beginners. It is significant that neither the comprehensive windsurfing instructor manual published by the Royal Yachting Association of the UK or the Australian Yachting Federation National Windsurfing Scheme booklet warn against conducting windsurfing lessons in shallow water. Indeed the “Windsurfing Instructors Guide” published by the Australian Yachting Federation in a section entitled “The 1 Hour Lesson” describes an appropriate training area as follows:
Conditions should be light winds with flat water to enable a success for the ‘Crash Course in Windsurfing’. Therefore sheltered waters in the morning are recommended. Shallow water (1-1.5 metres) is also an advantage. (Emphasis added)
All the instructor witnesses agreed that a first lesson includes instruction on launching and returning to shore. Mr Yardley described it as being at the heart of what one needs to learn. That necessarily involves manoeuvring the craft in shallow water. Shallow water of a depth of 1 – 1.5 metres will almost inevitably be associated with steadily decreasing depth to the shore. A publication of the Department of Boating and Waterways of the State of California, produced and cross-examined on by the plaintiff and tendered by the defendant, entitled “Safety Hints for Windsurfing”, assumes that windsurfing will be performed in some circumstances in shallow water. Under the heading “Shallow Water” it says:
The windsurfer should guard against falls in shallow waters or anywhere submerged objects may be present. If a fall is unavoidable, try not to fall head first.
It then continues to refer to the most common types of injuries sustained in falls, a matter to which I shall return. Even the expert called by the plaintiff, Mr Todd, when asked if it was not a substantial advantage that beginners be trained in water where, if they fall off, they can get on again with ease, conceded:
I think if you’re in very shallow water they can stand up more easily and get on more easily and usually if you’re working with someone who is a beginner and when they first try windsurfing that you’re gong to be there holding the windsurfer and standing up it would be quite shallow water.
The suitability of the Willows area for initial windsurfing training was not disputed by the plaintiff.
The windsurfing element of the training course was regarded only as an introduction to windsurfing. The stated aim of the course was that every student be able to control a sailboard by the end of the 1½ hour session. That involved instruction in personal safety, sailing theory, the parts of a windsurfer and terminology used. It involved a basic understanding of the starting position, sailing position, gybing or changing direction downwind and reaching or running, together with instruction in self-rescue techniques for students who stray from the training area or who are otherwise unable to return to shore.
Students were not taught tacking or sailing into the wind. For each lesson they would sail downwind only, returning by walking the board back in the water or carrying it on land or returning by self rescue, paddling while lying on the board. The course aspired to do no more than give that basic instruction with the aim, not always achieved, of the student being able to control the windsurfer downwind without overbalancing and with some basic instruction as to controlling the direction of travel.
It was accepted by Mr Hodge and all the trainers who gave evidence, and by the expert witnesses to whom reference will be made, that falling off a windsurfer during training was an inevitable part of the training as students learned to balance and control the board.
The equipment used was also such as to assist beginners in balancing and as to limit the speed at which the board could travel. I accept Mr Todd’s evidence that the maximum speed that the sailboards in question could travel was at about 12 kilometres per hour in a strong wind. In the conditions prevailing on the day of the accident, reference to which is made below, the maximum possible speed was that of a fast walk, and all the evidence indicated that students were travelling in fact at about walking speed.
The camp organisation
On the morning of Monday, 24 November, 47 students, including the plaintiff, were driven by bus from Bordertown to Murray Bridge to attend the camp. They were attended by four teachers from the school who supervised their on-shore activities. For the purpose of aquatic activities the students were supervised by instructors associated with the camp. For the purpose of their aquatic sessions the students were divided into groups and were assigned a group leader, being one of the instructors, who remained with the group for the duration of the camp. Occasionally an instructor would take a different group for a lesson if they were more proficient in a particular activity. That in fact happened with the plaintiff’s group for their first windsurfing lesson. There were eight students in the plaintiff’s group. Their group leader was Tyson Cocks. Before any activities were commenced the students were given general behaviour and safety instructions including instructions as to the compulsory wearing, in windsurfing and some other activities, of flotation devices, helmets and footwear, together with other matters of water safety.
It was intended that, over the duration of the camp, every student should have two lessons in each activity. Each lesson occupied 1½ hours. The number of lessons each day varied from two to three.
Most activities were conducted in or along the main river. However, as mentioned above, windsurfing instruction was conducted in the sheltered Willows area principally between the jetty and east of the boat ramp.
The plaintiff’s group was involved in a number of activities on the first three days. They had their first windsurfing session on the Tuesday and were involved in their second session of windsurfing on the Thursday morning when the accident happened.
During the course of evidence it was suggested to some witnesses by Mr Cameron, counsel for the plaintiff, that the ratio of one instructor to eight students was inadequate. However, this was not pursued in his final address, and I am satisfied in the conditions prevailing at the time, supported by the publication of the Australian Yachting Federation entitled “National Windsurfing Scheme”, that the ratio of one instructor to eight students for basic skills instruction, which is what this was, was adequate. In any event, the plaintiff’s injury is not shown to have been caused or contributed to by the number of available instructors at the time.
The plaintiff’s previous experience

The plaintiff had been on a number of previous school camps. One of them, in Year 7, was an aquatics camp at Lake Bonney in the South Australian Riverland. That had included some windsurfing activity. The plaintiff was physically active in her school years. She was in a local basketball team, had become heavily involved in horse riding and had participated in cross-country running. She had had swimming lessons but described herself as “not an exceptional swimmer”, but had been taught freestyle, backstroke and breaststroke. Her swimming activities had been principally in swimming pools at Bordertown.
The plaintiff was fully aware of the dangers of diving into shallow water and of diving into any water which was not clear. As at the time of her accident she was aware generally of the increasing depth of water away from the shore line in the Willows area. She had swum in the area earlier in the camp and had participated in the first windsurfing session at the Willows on the Tuesday. She had also seen others standing, walking and swimming in the area and had left and returned to the shore for the purpose of other aquatic activities.
The first windsurfing lesson
The plaintiff’s first lesson in windsurfing was on the second day of the camp, being Tuesday 25 November. The instructor for her group for that lesson was not Mr Cocks but Ms Cecily Graetz. At that time Ms Graetz had been employed at the Centre for 10 years as an instructor in windsurfing, water skiing, sailing, hiking, canoeing and rowing. She held a basic skills instructor certificate in windsurfing and similar certificates for various other aquatic activities that she taught.
Ms Graetz, at the time of giving evidence, could not remember the details of the particular windsurfing lesson she gave on that Tuesday. She gave evidence as to her usual practice which was consistent with notes prepared by Mr Hodge for use by group leaders in their talk to students and which set out the matters to be covered in a windsurfing lesson. All the students who gave evidence, including the plaintiff, had difficulty in recalling the detail of the instruction, but agreed in cross-examination with most of what was put to them concerning elements of the instruction as described by Ms Graetz. I find that the lesson took the course generally as described by her.
The lesson began on-shore with an explanation of the windsurfing equipment and of safety issues. The students were required to wear safety equipment from the start of the lesson, which included a buoyancy vest properly fitted, helmet, shoes and sunscreen.
The on-shore instruction included an explanation of the various parts of the sailboard and the sail, and an explanation of the operation of the centreboard and how it retracts when it hits an object or the bottom.
Ms Graetz explained about the depth of the river and how it gradually becomes deeper from the shore, and students then moved into the water carrying a sail board in pairs. With students standing in the water along side their board she would emphasise that they should note the depth of the water. She asked them questions about how safe it would be to dive off the board for the purpose of reinforcing the risk of serious injury if they dived into shallow water.
The students usually remained two to a board in the first lesson unless there were very proficient students who took their own board later in the lesson. Generally, however, they worked in pairs with one at each end of the board.
They were shown how to lower and retract the centreboard, and the first exercise was to paddle the board without a sail by lying or kneeling on the board and paddling from the shore to the Willows and return. This was described as the self-rescue procedure, and was to be followed by the students if they strayed from the area or were otherwise unable to return to a depth of water where they could walk. Each student having done that exercise, she would get them to stand in turn on the board without a sail, the other student holding the board steady, so that they could learn to balance themselves and feel the effect of the wind and the direction of the wind on their body and how the board would drift in the direction of the wind. On that day the general direction of travel was from the area east of the boat ramp towards the jetty. Having drifted without a sail, the students would either walk or paddle the board back.
When they had gained sufficient proficiency at standing on the board Ms Graetz got the students to practise with a sail, at first stuck in the sand so they could feel the effect of the wind on the sail. They then took the sail down to the water to connect the mast onto the board. The first lesson with the sail involved standing on the board, pulling up the sail, balancing with the sail and holding the mast only and not the boom in order to get the feeling of steering with the mast. Most of the rest of the lesson was taken up with this activity, merely balancing and steering the board by holding the mast, and returning the board to the starting position by walking it through the water or carrying it. Ms Graetz was concerned that students should not hold the boom prematurely so that they could get the feel of steering first before increasing the speed of the board.
This was generally done continuing with two to a board and taking it in turns. If they were proficient enough she might allow one student to a board.
As part of the first lesson with use of the sail there was also instruction on how to stop the vessel by dropping the sail and hopping or stepping off the board on the side opposite the sail.
The whole lesson lasted about 1½ hours. The plaintiff described herself as one of the better windsurfers, not falling off as often as many others. She found the balancing not very easy, but not as difficult as others seemed to find it. She enjoyed the first lesson but started to get a little bored after a while “because it was just such a small area to be sailing in”.
The second windsurfing lesson
It was during the course of this lesson that the plaintiff fell and suffered her injury. It was the second session of the morning conducted between about 10.30am and 12.00 noon.
For reasons which will become apparent, there were two instructors involved in this windsurfing lesson. There was the plaintiff’s normal group leader, Tyson Cocks, and the leader of another group doing windsurfing at the same time, Scott Chamberlain.
Tyson Cocks was aged 18 at the time and had been a windsurfer since the age of 10. It is not entirely clear how long he had been employed at the Centre as an instructor at the time of the accident. At the time of the trial he had been employed there a little over 8 years, from which I infer that he had only been employed at the Centre for a matter of a few months in November 1997. He began as an assistant instructor, learning from other instructors, and had then begun conducting lessons himself under the supervision of another instructor or of Mr Hodge. He did not have any formal instructor qualifications. On that day he was the junior instructor to Mr Chamberlain and tended to follow the suggestions of Mr Chamberlain.
Scott Chamberlain had been employed at the Centre since 1994 and obtained his windsurfing instructor qualification in 1995. As at November 1997 he had been windsurfing for some 13 years.
Because of the apparent influence of a wind gust on the plaintiff’s fall, it is appropriate to describe the weather conditions on that morning. There was evidence from observations recorded at the Murray Bridge meteorological station that at 9.00am the prevailing wind was south-westerly at 13 knots, and that at midday it was south-south-westerly at 21 knots. These observations were taken several kilometres from the Aquatic Centre and under conditions which would barely be comparable with those at water level at the site of the Aquatic Centre with different influences of nearby hills, trees and buildings.
It was a fine sunny day. Mr Hodge, who was present at the Centre that day, considered that there was a light breeze blowing which was variable, gradually increasing or decreasing in velocity. He described it as an “ideal” sort of day for windsurfing instruction and had conducted lessons in much stronger breezes.
Mr Chamberlain described the wind as being light, with light gusts, “perfect for windsurfing”. As an indicator of what he considered to be relatively calm conditions, he had had learners out rowing that morning on the river.
Mr Cocks described the wind as a “gentle breeze” with little variation in wind velocity.
Of the students who gave evidence, namely the plaintiff, Tammy Halleday, Sarah Schapel and Amy Jarrett, none of them complained of the speed of the wind. If there was any complaint it was about the occasional gusts. It is not surprising that the students might naturally tend to exaggerate those, they being novice windsurfers susceptible to being easily unbalanced and with little experience in being able to control a windsurfer. They would be more likely to notice the influence of relatively minor wind velocity changes much more than others, and would tend to magnify the significance of these in their own minds because of that. As Mr Chamberlain observed, wind gusts are part of sailing and are to be expected.
I accept Mr Hodge’s evidence that there was, on the water at the Centre, a light breeze with occasional stronger gusts. I accept the evidence of Mr Hodge and the instructors that conditions were excellent for basic windsurfing instruction. On the description given, that was an opinion shared by Mr Yardley.
What is clear is that the prevailing breeze was, on my orientation of the area, coming from a direction slightly east of south, the predominant influence being off-shore but requiring downwind travel, on this occasion, from east to west, or the opposite direction from that which had prevailed on the preceding Tuesday.
In the first session on the Thursday morning the plaintiff’s group had been rowing. For the second session they were offered the choice of either canoeing or kayaking (the plaintiff could not remember which) or windsurfing. They chose windsurfing and went and joined Mr Chamberlain’s group which, at that stage, was watching a video of some expert and highly skilled windsurfers. That was followed by some general instruction by Mr Chamberlain directed to the combined group.
Mr Chamberlain could not remember the fine detail of the instruction given, but save for one particular issue, his evidence as to what occurred what not disputed and was supported by Mr Cocks. Mr Chamberlain described the limits of the river within which they were to remain, being roughly between the western end of the island and the boat ramp, within the Willows area. He reminded them of the self rescue procedure and of points of danger such as the jetty, the slippery ramp and the shallow edges of the channel. The issue in his evidence that was challenged was whether he gave an instruction not to dive from the windsurfers. I find that in all probability he did give such an instruction. However, little turns on that, as the plaintiff was fully aware of the dangers of diving off a windsurfer.
Part of his instruction depended on and related to the level which the two groups had reached on the previous occasion, a matter which he would ascertain from the students themselves. He repeated the demonstration of putting the centreboard down, getting onto the board, placing their feet and pulling up the sail. On this occasion, confirmed by Mr Cocks, the students were shown how to sheet the sail by holding the boom in order to make better use of the wind. They were also given reminders of how to stop by dropping the sail to leeward and hopping or stepping off the board or falling backwards to windward.
At Mr Chamberlain’s suggestion the two groups then split in order to implement the instruction by way of what were then called and were described in evidence as “races”. I will continue to describe them as such, although it is apparent that different expert witnesses had quite different impressions of what was in fact involved in such races. There is some suggestion in the evidence that the students may have had a little time before that for some individual practice. If it occurred it was relatively short and makes no material difference to what followed.
As to what happened and how the races were conducted, the witnesses gave varying accounts of what occurred at the time of and immediately preceding the plaintiff’s fall. That is not surprising, given that they were asked to recall events which happened some 8 years previously. There were differences particularly as to the number of races which took place and how the start occurred.
Notwithstanding her severe physical limitations, the plaintiff is now a highly intelligent university graduate. She gave her evidence in a frank and forthright manner and gave what I consider to be an accurate and honest account of her recollection of the events surrounding that lesson. She had better reason than most to remember the detail of the lesson. Her version of what occurred, particularly as to the number of races and as to the method of starting, was supported by the fact that all but one witness described the start of the races as the boards being lined up roughly end to end parallel to the shore at about waist depth with the riders in the water facing the boards, with the first to finish a race going to the back of the field for the next race. The plaintiff said, and I accept, that there were three races. She remembered finishing first in the first race and therefore starting last in the second. She did not finish that race and therefore started first in the third race. As to her starting position in that race she was supported by a number of others. I accept her evidence as to the sequence of events which I shall now describe leading up to her fall.
At a point variously described by the student witnesses but located somewhere between the western end of the island and the eastern side of the boat ramp was a marker buoy in the water. The instructor witnesses could not remember this buoy being present. None of them suggested that it had been placed there for the purpose of the windsurfing instruction. However, it became an object forming an imaginary line perpendicular to the shore which, for the purpose of some of the races, was an imaginary finishing line or objective which the students aspired to reach.
The students were divided into their two groups with their respective group leaders. As there were too many students to race altogether, the students began their activities in two separate areas of the Willows.
The first race for the plaintiff’s group started at a point west of the jetty, and the students were to sail towards the imaginary finishing line. At the same time, the students in Scott Chamberlain’s group began their race at a point east of the plaintiff’s group. The two groups then changed starting positions for the second race.
Before the first race started Tyson Cocks instructed the plaintiff’s group how to hold the sail with the boom in order to catch more wind. The group was then lined up, roughly bow to stern in approximately waist deep water, the boards facing in a westerly direction, each student facing his or her board in a northerly direction. It is not insignificant that none of the students or the instructors could remember precisely how the race was started, but one could not move off until the student in front had done so or unless there was some north-south gap between two boards. It is clear from the students who gave evidence that most students had difficulty in controlling the direction of their board and in maintaining balance on the boards. Most of them overbalanced and fell into the water more than once.
It is not clear precisely where in the group the plaintiff started in the first race. However, she moved reasonably consistently while others were falling off. She could not remember whether she fell off during that race. However, at all events she finished first by stepping off the board. That meant that she was last to start in the second race.
The second race for the plaintiff’s group started where Scott Chamberlain’s group had previously started, at a point east of the jetty. The plaintiff described that race as “a mess” for her. Each time she got up, she was blown towards the houseboat, so she stopped and stepped off the board, did a self-rescue paddle away from the houseboat and started again, only to be blown towards the houseboat again. This happened on three occasions. When the race finished, the plaintiff was last and did not finish the course.
The third race for the plaintiff’s group started again on the western side of the jetty sailing towards the boat ramp. Because the plaintiff came last in the second race, she started first in the third.
In the third race the plaintiff had much more success then in the second. She was able to put into practice what Tyson Cocks had explained about pulling in the sail so that she got more air. In so doing she felt the windsurfer pick up speed. In saying that, however, it must observed that none of the witnesses suggested that any of the windsurfers were travelling that day at greater than walking speed. The plaintiff turned around to see where the other students in her group were and she saw that Tammy Halleday was closest.
As the plaintiff approached the imaginary finish line she realised that she was heading towards shallow water and feared that she might possibly hit the boat ramp. She appreciated the danger she was in. She knew that she either had to slow down or move out into deeper water. She was generally aware of the depth of the water in that area. She felt she was starting to get into trouble and tried to push the sail out to angle it away from the wind. She started to wobble. A wind gust caused a pulling sensation on her arms which caused her to wobble more and she dropped the sail. In the course of doing so she lost her balance. The sail fell to leeward and she starting falling to windward. It is not possible to be precise about how far the plaintiff was from the shore when she fell. She estimated 2 to 3 metres. Other estimates were similar or “a few metres”. However, it is not clear, in some cases, whether these were the estimates as to where she began to fall or where she subsequently came to the surface. There was no suggestion that the centreboard of her windsurfer had retracted by hitting the bottom. At all events, it was obviously in reasonably shallow water that the plaintiff fell, as her spinal injury was caused by her head hitting the bottom. She remained motionless, face down in the water for a short time, until she was rescued by Tyson Cocks.
The plaintiff’s fall
The plaintiff described her fall as “wobbling so much” and starting to fall to the left of the board. She said:
So I turned on my front to sort of stick my hands out or tried to turn forwards and then I hit the water and I managed to get a breath of air before I hit the water … and I hit the bottom and I felt this awful crack in my neck …. I tried to get my arms out. I tried to turn front on and to break my fall by getting my arms out. I don’t think I got them all the way out, because it just happened so quickly, I was already – I had already fallen I think away sideways before I had a chance to do anything …. Then I hit the bottom with my head … [B]ecause I felt myself falling I knew that I wouldn’t be able to stop, I tried to turn front on and tried to extend my arms out to break my fall …. I’ve fallen sideways and I’ve tried to turn. I may have still been facing slightly that way as I was falling, but I was trying to get my arms out …. I can’t say for sure whether they were actually extended or not, I don’t know. Like I say, I tried to extend them, but it happened so quickly, and yes, then my head hit ….
The plaintiff said she screamed as she fell because she was frightened.

Tammy Halleday did not see the plaintiff’s actual fall. She remembered coming up second behind the plaintiff with her back to the plaintiff. She turned and saw that the plaintiff’s sail was down in the water in front of her and that the plaintiff was standing on the board rocking backwards and forwards looking as though she was trying to get her balance by use of her arms. She then turned to concentrate on her own task, heard the plaintiff scream followed by a splash, and next saw the plaintiff face down in the water.
At the time of the fall Sarah Schapel had herself fallen into the water. She saw the plaintiff at the front of the field and saw her put her hands out as she lost her balance. She thought that the plaintiff had dropped her sail. She saw her “hit the water trying to balance herself and she couldn’t …. She was (sic) sort of put her hands out to stop herself falling, but I’m not too sure, she went face first.”
Amy Jarrett saw the plaintiff leading the field and travelling towards the boat ramp. She did not see her fall.
Tyson Cocks described the plaintiff as sailing along steadily with her back hand on the boom. He saw her let go of the sail and saw her go into the water on the opposite side of the board. He described the movement of her body after she had let go as having “twisted into the water head first at an angle to the water, facing the water”, sideways to the board and slightly to the front. Her face hit the water first.
Scott Chamberlain, the only other witness who was in the vicinity at the time, did not see the plaintiff’s fall, as he was supervising his own group.
Associate Professor J.D. Yeo has studied the cause of many cervical spinal injuries as a result of sporting or swimming accidents. He explained the etiology of spinal cord injury associated with a dive into shallow water as follows:
The dive into shallow water produces a flexion and rotation, sometimes extension as well, in a sort of whiplash-type effect when the head is exposed to the surface beneath the water, usually sand or rock, and it’s in that situation where you have a sudden impact injury with some flexion or extension with rotation, so the head moves from side to side, and that produces damage to the spinal cord inside the neck.
I accept his evidence that critical to a spinal cord compression injury in diving type accidents is the velocity and angle of entry into shallow water which produces a rotation of the spinal column causing compression of the spinal cord. There is a particular risk of such injury when there is entry into shallow water in a dive-like motion.
There is no evidence that the plaintiff deliberately dived into shallow water from her sailboard. She was aware of the danger she faced and of the approximate depth of the water she was in. She was aware of the risks of diving into water of that depth. In an endeavour to save herself with her arms she seems to have twisted her body, quite involuntarily, as she fell so that she entered the water face down, but was unable to manoeuvre her arms to a position where they would be able to absorb any impact. It seems to have become an involuntary dive-like movement.
The expert witnesses
Associate Professor Yeo expressed the opinion that training for windsurfing should be conducted in water of at least 1m deep in order to prevent serious head and neck injuries. However, on his own evidence, exposure to spinal injury would depend on the steepness of entry into the water, and such injury could be caused with a steeper dive or fall into water of that depth where the head and neck are unprotected. It also ignores the need, as part of a necessary instruction package, to train students to launch and return their sailboards to shore, inevitably through shallow water. Professor Yeo’s opinion also assumes that the only risk to be guarded against is injury by falling from the board. There are many other risks associated with participation in the sport which must be brought to account in determining what is an appropriate training location. There is nothing in Professor Yeo’s evidence which causes me to qualify the view previously expressed that this was a suitable site for initial windsurfing training.
Emeritus Professor P.M. Joubert was called for the plaintiff. He was formerly the Professor of Mechanical Engineering at the University of Melbourne. During his life he has had, by way of hobby, an interest in building and sailing off-beach boats, and considerable experience in sailing them. Professionally, he has tested yacht sails in wind tunnels and has studied the nature of wind flows around buildings and objects. However, he has never sailed or studied the behaviour of windsurfers, other than for the purpose of giving evidence in a patent case. Much of Professor Joubert’s written report was ruled inadmissible as containing hearsay assertions of fact and expressions of opinion for which he was not qualified. His less than objective opinions were cast in emotional terms and, in many cases, were based on facts not proven or, in one case, on a weather forecast for the area rather than actual weather conditions at the site. I derived no assistance from his evidence at all and have placed no reliance on it.
Mr Brendan Todd was called for the plaintiff. He is an exceptionally well qualified windsurfer and coach of windsurfers. He has been involved in competitive windsurfing for 19 or 20 years. He represented Australia in the 1996 Olympic Games. More recently, he has been involved in coaching and programming of a variety of windsurfing athletes, from competent recreational sailors to elite sailors engaged in international windsurfing competitions. He coached the Australian Olympic windsurfing team for the 2000 and 2004 Olympic Games. His experience is generally in competitive windsurfing and in the coaching of windsurfers. He has done little training of beginners. He has never conducted a one hour beginner’s lesson as contemplated in the Windsurfing Instructor’s Guide published by the Australian Yachting Federation. While he has no formal qualifications in hydrodynamics, aerodynamics or meteorology, I accept that he has a sound understanding of how those influences affect a person sailing a windsurfer or racing on the water. Indeed, those aspects of and influences on windsurfing were not in dispute.
I found Mr Todd’s evidence of considerable assistance in understanding the construction and workings of a windsurfer and how it is controlled. That much was not disputed by the defendant. What was disputed was his opinion that the Willows was not an appropriate area for racing. In that he may well be correct according to his concept of racing. Mr Todd’s experience and concept of racing is what occurs at an elite level of the sport. For reasons which will become apparent, I do not think that he was talking about the sort of activity in which the plaintiff and her fellow students were engaged at the Willows on 27 November 1997.
Mr Brett Yardley was called by the defendant. He is an aquatics instructor and is a partner in the business of a private sailing school which teaches sailing and windsurfing. He conducts various nationally accredited instructor courses for sailing and windsurfing on behalf of a body known as Yachting SA, being the State body which is part of the Australian Yachting Federation. He has been conducting such courses for 15 years and has been engaged in teaching windsurfing at various levels for 23 years. He has held a windsurfing instructor’s qualification since the early 1980’s. Between 1993 and 1995 he was commissioned by the Australian Yachting Federation to rewrite the National Windsurfing Logbook. That describes in some detail the various accepted levels of proficiency in windsurfing and formal training guidelines for use nationally. His commission involved consultation throughout the nation as to what the logbook should contain. His rewriting of the logbook was followed by his conducting instructor reaccreditation courses throughout Australia. For that purpose he also wrote the “Windsurfing Instructors Guide”, to which reference has already been made. Included in that publication is a guide for the “One Hour Lesson” designed for use at a basic level in instruction courses of between 1 and 2 hours duration.
Unlike Mr Todd, Mr Yardley has had wide experience in training instructors in the sport and in recommending training programs suitable for beginners through to more skilled levels of windsurfing. He is aware of the desirable conditions under which training at all those levels should occur.
Mr Yardley had prepared a written report. The plaintiff objected to its tender. This was not based on any lack of expertise on the part of Mr Yardley but on the fact that, at the time of trial, he was a senior instructor engaged by the Education Department at its West Lakes Aquatic Centre, and was involved in the organisation of primary school groups and supervision of the beach unit associated with that Centre. He was involved in teaching beach safety and surfing on behalf of the Education Department. The objection was based on the alleged lack of integrity in Mr Yardley’s opinion as a result of his commercial relationship with the body which is effectively the defendant in these proceedings. I overruled the objection for reasons which follow.
Mr Cameron based his objection on the decision of Evans-Lombe J in Liverpool Roman Catholic Archdiocesan Trustees Inc v Goldberg (No 3)[1]. In that case an expert witness called by the defendant was a senior barrister experienced in taxation law and practice who was a good friend of the defendant, a relationship of some 28 years, and who shared the same chambers as the defendant, also a barrister. His evidence was considered inadmissible on the ground that he was unable to fulfil the role of an expert witness because of his close relationship with the defendant. In his report the barrister said that he did not consider that his relationship should affect his evidence but “it is right that I should say that my personal sympathies are engaged to a greater degree than would probably be normal with an expert witness”. The judge cited a passage in the speech of Lord Wilberforce in Whitehouse v Jordan:[2]
While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. (Emphasis added by Evans-Lombe J)
[1] [2001] 1 WLR 2337.
[2] [1981] 1 WLR 246 at 256 – 257.
The trial judge concluded:[3]
[I]n my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be. The question is one of fact, namely, the extent and nature of the relationship between the proposed witness and the party.
[3] [2001] 1 WLR 2337 at 2340.
The decision is of doubtful value as a precedent. The judgment was given after the parties had settled the case with a request that no judgment be given, and after a contrary view on the admissibility of the evidence had been expressed by Neuberger J during a pre-trial application in the same proceedings. To the extent that the decision is based on what Lord Wilberforce said in Whitehouse v Jordan, it appears to proceed on a misapprehension because Lord Wilberforce did not say that such evidence would be inadmissible. The decision is inconsistent with an earlier decision of the Court of Appeal in Field v Leeds City Council[4] where the Court of Appeal held that the fact that an expert was employed by the respondent council did not automatically disqualify him from giving evidence.[5] The decision was also criticised by the Court of Appeal in R (Factortame Ltd & Ors) v Secretary of State for Transport, Local Government and the Regions (No 8)[6] where the Court of Appeal said of the passage quoted above in Goldberg:[7]
This passage seems to us to be applying to an expert witness the same test of apparent bias that would be applicable to the tribunal. We do not believe that this approach is correct. It would inevitably exclude an employee from giving expert evidence on behalf of an employer. Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence.
[4] [1999] CPLR 833.
[5] Ibid. See in particular Waller LJ at 841 and May LJ at 842.
[6] [2003] QB 381.
[7] Ibid at 409 – 410, [70].
Goldberg has not been followed in Australia. In FGT Custodians Pty Ltd v Fagenblat[8] Ormiston JA, with whom Chernov and Eames JJA agreed, undertook a thorough and very helpful analysis of the relevant issue. The case concerned the respondent’s interest as an outgoing partner in a solicitors’ partnership. He called a chartered accountant as an expert whose evidence was objected to on the ground that the accountant was the respondent’s brother-in-law whose sister, the respondent’s wife, stood to gain by having certain debts paid by her husband if he won the action. Ormiston JA observed that the real question was whether the witness lacked testimonial capacity or competence.[9] He continued:[10]
There may be two aspects to that question of his competence, first one which has been called by Wigmore his “experiential capacity”, i.e., whether he was qualified by training or experience to give expert evidence, and, the second whether, because he was in breach of some other rule relating to the giving of this kind of evidence, he should be treated as disqualified from giving it. These matters must be firmly distinguished from those matters which may go to impeach the reliability of a witness’s testimony, namely those that are based on cross-examination or other evidence to show inadequate expertise or bias or interest by reason of conduct or other circumstances. (Footnotes omitted)
[8] [2003] VSCA 33.
[9] Ibid at [4].
[10] Ibid at [5].
Of the decision in Goldberg Ormiston JA said:[11]
However desirable it may be, as a matter of common sense in the presentation of a party’s case, that an expert witness be seen to be independent, there is therefore no authority requiring this Court to hold that an “interested” expert’s evidence be rejected because of a “perception” that the witness might favour the party seeking to adduce that evidence.
[11] Ibid at [29].
Similar conclusions have been reached in the Supreme Court of New South Wales,[12] the New South Wales Court of Appeal[13] and the Federal Court of Australia.[14]
[12] See Collins Thomson Pty Ltd (In liquidation) v Clayton [2002] NSWSC 366; Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485.
[13] Li v The Queen (2003) 139 A Crim R 281, Ipp JA at 290–291, Whealy and Howie JJ agreeing, [2003] NSWCCA 290 at [64]-[72].
[14] SmithKline Beecham (Australia) Pty Ltd and Anor v Chipman & Ors (2003) 131 FCR 500 at 508-509, [2003] FCA 796 at [30]-[40].
Both authority and commonsense dictate that a relationship such as that complained of in this case does not render the evidence of an expert inadmissible. It will, however, be relevant to the assessment of the weight to be given to that evidence, along with many other factors.
Mr Yardley gave his evidence in an entirely dispassionate way and did not appear to be influenced in any way by his present relationship with the Education Department. I am satisfied that he has substantial expertise in the training of windsurfing instructors generally and in formulating logbooks and manuals for instructors, and that in giving his evidence he was speaking from his own experience and expertise. I am satisfied that his reliability and integrity was not comprised by his relationship with the Education Department. Unlike Mr Todd, his expertise has not been confined to coaching elite windsurfers but has concentrated on training and instructing at all levels, particularly at beginner levels. He has a better understanding of what is involved in training at that level and of the difficulties encountered by students at that level. To the extent that his evidence differs from that of Mr Todd, and the differences were relatively minor, I prefer the evidence of Mr Yardley. The main difference related to the suitability of the Willows area for the activity being carried on by the plaintiff’s group when the she fell. Mr Yardley considered that the activity described as racing, as he understood it, was suitable for the area, and his understanding of the racing on that occasion accords with what I consider in fact took place at that time. It was different from Mr Todd’s concept of racing.
Known windsurfing injuries and falls
Two witnesses, Associate Professor Yeo and Mr Todd, were aware of only one spinal injury as a result of a windsurfing accident. That occurred at Narrabeen Lake in New South Wales approximately 20 years ago. Apart from the fact that it involved a fall in shallow water, there was no evidence of the circumstances surrounding that injury, the experience of the windsurfer or whether it was a catapult injury, where a fast travelling board suddenly stops and the sailor is catapulted forward, or whether it had some other cause.
None of the publications tendered refer to spinal injuries of this nature or to risk of such an injury associated with the sport other than the obvious warning against falls in shallow water. The Californian publication referred to above lists two of the most common types of injuries sustained in falls. They are head injuries from the falling rig and foot entrapment between the board and the rig.
In an article published in The Physician and Sportsmedicine, Volume 30, No 5, May 2002 entitled “Windsurfing Injuries – Added Awareness for Diagnosis, Treatment, and Prevention” the authors note from previously published surveys:
The most frequently affected body areas of windsurfers are the lower extremities (44.6% of acute injuries), the upper extremities (18.5%), the head and neck (17.8%), and the trunk (16%). The most common types of injuries include sprains (26.3%), lacerations (21.2%), contusions (16.2%), and fractures (14.2%). Less common occurrences include dislocations, disk herniations, jellyfish stings, hypothermia, near-drowning, and concussions.
It is clear from what follows that disc herniations are generally associated with lower back injuries caused by fatigue and strain. The authors note that the “classic” windsurfing injury of the upper extremity is a shoulder dislocation. Other common injuries were injuries to the ankles and feet, most of which result from falling while the foot is engaged in the foot strap on the board. The boards in use at the Centre did not have foot straps.
In Mr Hodge’s long experience at the Centre, he was not aware of any spinal injuries having been incurred at this or any other similar Centre. In his experience the major injuries were sprained ankles caused by sailors jumping or stepping off the boards and, before the advent of compulsory helmets, bruising to head from falling masts.
Mr Yardley considered that the unavoidable but less serious risk involved in windsurfing in shallow water was of sprained ankles and similar injuries when landing feet first. In his experience there was little or no tendency for learners to fall head first.
What is clear from the evidence of what happened at this camp to all the students, and from the evidence of all the instructors and experts, is that falling off sailboards for beginner students is a common and repeated occurrence. Scott Chamberlain said that some learners will fall off the board 10 times in a session. He described it as part and parcel of the learning process. He conceded that students could fall in a variety of ways – backwards, sideways and forwards, although the most common method of falling was backwards into the wind from opposite the sail. Tyson Cocks agreed that it was usual for students to fall. Mr Cameron, in his final address, conceded that falling from a windsurfer for beginners was a common and expected occurrence.

Despite the overwhelming evidence to that effect and despite the fact that much of the instruction at this level is given in relatively shallow water, there was no evidence of any person of the plaintiff’s windsurfing experience having ever sustained an injury of this nature in the course of instruction. The most probable explanation, supported by the evidence of Mr Yardley, is that students, knowing the dangers of shallow water, tend naturally to avoid falling into shallow water head first. They tend to fall backwards onto their bottoms or backs or to step or jump feet first off the board. The plaintiff’s fall, as I have described it, was therefore an unusual type of fall from a windsurfer.
The plaintiff’s case
As finally formulated, the essence of the plaintiff’s case was first that the defendant should not have permitted racing on that day and that secondly, it did not ensure that the racing was in water of sufficient depth to provide a suitable cushion to avoid the risk of spinal injury.
When pressed, however, Mr Cameron agreed that, in racing, the heightened danger was loss of balance at speed. The underlying assumption in Mr Cameron’s argument was that racing generated higher speeds than would otherwise have been the case, requiring greater precautions to be taken to prevent students, then at greater risk of falling, from straying into shallow water, the depth of which could not readily be ascertained. Because of that, he argued that racing should not have been permitted at all. Furthermore, he submitted, in order to prevent students from straying into shallow water, no necessary precautions had been taken such as roping or marking off the shallow area or having instructors warn particular students that they were getting too close to the shore.
It was not suggested that these latter precautions were necessary for non-racing activities. As I have earlier observed, there was no dispute that the Willows area was suitable for the type of windsurfing instruction undertaken at the camp.
The question is therefore whether the fact of racing exposed the plaintiff to greater risk of injury than would otherwise have been the case. On Mr Cameron’s argument, the exposure to risk of injury was heightened by the increased speed associated with racing. Mr Todd put it slightly differently. In his report he said that the particular risk associated with racing is that “racing involves sailing to the edge of one’s ability. Therefore there is a higher risk of a crash or fall, particularly in gusty conditions …”. In his oral evidence he denied that speed itself was a problem. However, there were other indications in his evidence that speed was a necessary component of the problem. He explained that racing increases the chance of a fall, and he proceeded to contrast standing on a board, learning to balance it, with sailing the board from A to B and reacting to changes in wind conditions, the only difference being, in reality, the movement at greater speed and the consequent focusing on things close and immediate.
In his written report Mr Todd contrasted approaching a shoreline when completing a session, with racing along a shoreline “which only ever happens with highly skilled sailors involved in speed trials. Speed trial(s) are undertaken by highly skilled sailors who want conditions where there are no ripples on the water and where they are using purpose built equipment with the aim of breaking record speeds. It is a unique person who undertakes this high speed activity”. In my view Mr Todd was assuming increased speed in the racing being conducted in this session on 27 November, and was likening this activity of racing to a high speed activity being conducted in shallow water.
However, the reality of what was involved in racing in the plaintiff’s group was quite different. There was, admittedly, a competitive element: the honour of reaching the imaginary finishing line first or, in the eyes of some, at all.
It must be remembered that the students had only had one previous lesson. That involved understanding the features of a sailboard, understanding and practising self-rescue techniques, gaining confidence in balancing on a board without a sail, learning how to mount and raise the sail of a board and getting the feel of drifting on a board and steering it merely by holding the mast. At the beginning of the second lesson they had revised these techniques and were instructed for the first time in the art of sheeting the sail. All these techniques involved sailing downwind only. There was no attempt at tacking or sailing upwind.
From the accounts of all the students who gave evidence and their instructors, on the occasion of the second lesson, all students were still experiencing varying degrees of difficulty in balancing the sailboard and were having difficulty in steering and controlling the direction of the board. Falling off the board was a continuing feature of every race. Those difficulties were typified by the experience of the plaintiff herself. For her, the first race was reasonably uneventful: “I didn’t get very fast but I think it was more that I was moving consistently, whereas others were falling off, I could sort of hear them behind me”. That was the race in which she finished first.
Her experience in the second race was quite different. She had great difficulty controlling the board because it kept on being blown towards the houseboat and she did not even finish the race. Having started first in the third race she seems to have repeated her experience in the first, but with some difficulty in controlling her direction, as she was conscious of heading involuntarily towards the shore near the boat ramp. With the gust of wind she also lost control and overbalanced.
It is also important to remember that at no stage did any of the witnesses suggest that the boards were travelling at greater than walking speed.
Amy Jarrett, in the race in which the plaintiff fell, explained in some detail how she was having difficulty in controlling the direction of her board, although others were more adept at it than she was.
Tammy Halleday said that it was really only during the times when the wind gusted that she sped up a bit. Other than that “we were just sort of floating down the river fairly slowly”.
Sarah Schapel had great difficulty in retaining her balance during the races, and she spoke of people knocking into each other at the back until they spread out. Others were falling off besides her.
What was described as a race was in truth a competition as to who could best exercise the skills that the group had been taught – who could remain on their board longest without overbalancing, who could best steer their board and who could best undertake these tasks with the additional feature, explained only that morning, of learning to sheet the sail. The fact that it was not intended as a speed competition can be seen from the way the race was started, with eight boards roughly end to end at the beginning of a relatively short course, with most riders having to wait for the one in front to move, and with a starting signal that was described by Scott Chamberlain as a “pretty informal sort of start”. That is hardly the sort of disadvantageous start that would be expected of a competition for the fastest board to reach a finishing line.
The only difference between being allowed to practise those skills as individuals rather than in a “race” was that –
·As Tyson Cocks observed, it was a convenient way to start “rather than having students just going backwards and forwards and round and round, sail down, walk back, we had a bit more of a set thing just to make it a bit more interesting”;
·The group was kept together, was therefore more easily supervised, and did not become mixed up with Scott Chamberlain’s group;
·It added some interest to the lesson;
·It provided a goal or inducement to improve one’s balance and steering capabilities.
The “race” made no difference to the speed at which the students could travel. The “winner” was the one who fell least or not at all and who managed to steer the straightest course. In my view, Sarah Schapel was correct in agreeing that what happened on the Thursday was the same sort of activity as that on the previous Tuesday, but they called it a race.
I find that the races did not involve any additional speed on the part of students beyond what they would have achieved in any event. That seems not to have been the impression of Mr Todd in forming his opinion as to the unsuitability of the practice in that location. He also seems to have overlooked the very low level of skill which most of the students had attained. While his opinion that racing as he understood it was inappropriate for that location may well be accepted, I do not consider that his opinion was relevant to the activity in fact carried out in that lesson.
It will be remembered that Scott Chamberlain was the senior instructor responsible for organising the races. While sentence construction was not his greatest skill, he accurately summed up the situation when asked why the students were lined up for a start. He said:
A.To make it run smoothly so that most of them can get all their sails up at the same time and it just helps us out to organise the groups and gives the students just something extra to do.
Q.Did you describe that procedure in any way, did you call it something.
A.Yes, we might have referred to it as ‘racing’ so that we – we did some little, yes, so basically it’s no different to any type of windsurfing, I mean they are not going to go as fast just because they are sort of starting that procedure. We would start there and I think what we do on the day, the person that would end at the beach first, they would walk back so they would be at the end of the line next time and then they would – basically you don’t get in each other’s way then and you sort of start them off altogether ….
I accept his evidence. A little later he was asked why he described the events as races. The following exchange occurred, which I also accept:
A.Just as something basically extra that the students can do because it’s their second session, add another little fun game if you like and just to, make it easier for us to teach them I guess.
Q.By calling it a race did you think that speeds that may be reached would be risky or hazardous for the students involved.
A.No, not at all.
Q.Why is that.
A.Because it’s exactly the same as what they would do anywhere, whether you call it a race or not they are only capable of doing the same speeds, whether you call it racing or not racing, so it’s no more dangerous, probably safer in fact because you can start them all where you can see them and in order and basically they can keep away from each other easier because they are all sort of starting at the same time so they all head down at the same time and not running into each other and things like that.
His evidence was that students were only capable of doing the same speed regardless of the “race”, and there could be no suggestion that that was risky or hazardous.
Mr Hodge, who was not only an experienced instructor but a trained teacher and whose evidence I also accept, said that the process kept the children motivated. He described the end to end start as “just a means of keeping the kids not all bunched at once and provided some motivation to get from A to B, just a little minor game challenge, if you like”.
To the extent that a certain a goal or objective was set by the “race”, it seems to have made no difference to the speed at which the students travelled, and it was an appropriate educational tool. Even Mr Todd agreed that it was important in training for a person to have a goal or objective. It was indeed no more than a means of providing a goal or objective to steer the windsurfer, without overbalancing, to a given point in the most efficient way possible, and in a way that all had an equal exposure to the offshore breeze, an opportunity to start with clear water ahead, while enhancing the instructors’ ability properly to supervise the group.
A breach of duty?
The defendant had a duty to take reasonable care to avoid foreseeable risks of injury to students arising out of the conduct of the aquatics camps, and in particular arising out of the conduct of the windsurfing lessons. However, it is not a duty to prevent any and all reasonably foreseeable injuries. It is a duty to take reasonable care.[15]
[15] Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Hayne J at 488, [1998] HCA 5 at [155].
The foreseeable risk of injury in this case was of a student jumping or falling off a sailboard in shallow water in such a way as to cause serious spinal injury. That risk was apparent simply by virtue of the conduct of the beginners’ windsurfing lessons in what I have found to be an appropriate area for such training, but in an area where students were likely to fall in reasonably shallow water. Reasonable precautions were taken to avoid that risk by virtue of the requirement to wear appropriate safety equipment, the general safety instruction given at the commencement of the camp and at the commencement of each of the two instruction sessions, and the instruction in the operation and stopping of the sailboard. Past experience with many thousands of students in this and other similar aquatic centres demonstrated that, with the taking of those precautions students were unlikely to suffer serious cervical spine injuries.
The question in this case is whether, by the conduct of racing in the manner which I have described, the defendant failed to take reasonable care to avoid that risk.
In Wyong Shire Council v Shirt[16] Mason J, with whom Stephen and Aickin JJ agreed, said:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
[16] (1980) 146 CLR 40 at 47 – 48.
I have found that the “races” conducted involved no significant variation in practice from how students would have conducted themselves in that lesson if left to their own devices. The “race” did not involve students travelling at any greater speed than they each would have done according to their respective abilities on a sailboard at that time. They were given a desirable goal or objective to encourage the development of skills, particularly of balance on and steering of the sailboard, and of sheeting the sail, which is what the class was all about. But the fact that it was called a “race” and was organised in such a way as to co-ordinate the respective efforts of the students did not increase the risk of injury such as to require any additional precautions to be taken. The magnitude of the risk and its degree of probability were no greater than if the “race” of the type and with the objectives I have described had not been conducted. Indeed, the “race” provided the benefit of a greater degree of supervision than would have been possible if each student was left to his or her own devices, with the inevitable separation that would have occurred.
There was no other complaint about the way the lessons were conducted. There was, accordingly, no breach of the defendant’s duty of care in conducting the lesson in that way.
Of the other particulars of negligence alleged, there was no evidence that the plaintiff’s injury was caused or contributed to by inadequately trained instructors or that there was any lack of supervision at the time. There was no failure to provide adequate safety equipment.
While I have great sympathy for the plaintiff with her devastating injury, that sympathy cannot be allowed to intrude upon the proper assessment of the defendant’s duty of care and whether or not the defendant was in breach of that duty. I find that there was no breach of the defendant’s duty of care to the plaintiff. It follows that the plaintiff’s claim must be dismissed.