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Flavel v South Australia

Flavel v South Australia

Case [2007] SASC 50 19 February 2007

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flavel v South Australia

Details

AGLC: Flavel v South Australia [2007] SASC 50
Case: [2007] SASC 50
Decision Date: 19 February 2007

CaseChat Overview and Summary

The matter of Flavel v South Australia concerned an action for negligence arising from a windsurfing accident at a school aquatics camp. The plaintiff, Flavel, alleged that he fell into shallow water during the camp and suffered cervical spinal damage as a result of the defendant's negligence. The dispute was heard and determined in the Supreme Court of South Australia. The central legal issues in the case revolved around the duty of care owed by the defendant to the plaintiff, the adequacy of training and instruction provided at the camp, the specific circumstances surrounding the accident, and whether the defendant should have permitted certain "racing" activities on the day in question, given the depth of the water.

The court meticulously examined the nature of the duty of care owed by the defendant in the context of the aquatics camp. It assessed the level of training and instruction provided to the students, including whether the plaintiff had been adequately prepared for the activities he was undertaking. The court also considered the specific circumstances of the accident, including the weather conditions and the type of aquatic activities being conducted. Furthermore, the court deliberated on whether the defendant should have allowed particular racing activities on that day and whether the water was sufficiently deep for such activities. Ultimately, the court concluded that the defendant had not breached its duty of care.

In addition to these considerations, the court addressed the admissibility and relevance of expert opinion evidence provided by an aquatics instructor who, at the time of the trial, was employed by the defendant. The plaintiff objected to the admissibility of this evidence, arguing that the witness's commercial relationship with the Education Department compromised the integrity of the evidence. The court reviewed relevant authorities concerning the apparent bias of expert witnesses and determined that while the commercial relationship was a factor to consider in assessing the weight of the evidence, it did not render the evidence inadmissible. The court found that the evidence was admissible but cautioned that its credibility and weight were appropriately discounted due to the witness's affiliation with the defendant.

The court's final orders reflected its conclusions on the duty of care and the admissibility of expert evidence. It ruled that the defendant had not breached its duty of care to the plaintiff and, consequently, the claim for negligence was dismissed. The court also noted that the expert evidence, while admissible, was to be given reduced weight in light of the witness's employment relationship with the defendant.

Orders