Flavel v State of South Australia - [2008] SASC 333

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
FLAVEL v STATE OF SOUTH AUSTRALIA
[2008] SASC 333
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
28 November 2008
TORTS - NEGLIGENCE - DANGEROUS AND INJURIOUS THINGS, ETC - BREACH OF DUTY OF CARE
Appellant suffered injury leading to tetraplegia when she fell from sailboard in shallow water while participating in windsurfing lesson held at school aquatics camp near Murray Bridge - no dispute that duty of care owed to appellant - no dispute that tract of water adjacent to the shore where tuition carried out was suitable for beginners' lessons - issue at trial was whether the respondent's instruction to the students to take part in 'races' in that area increased risks of injury such that additional precautionary measures, at least, should have been taken - tract of water was opaque and, in part, very shallow and was bounded to one side by a concrete boat ramp - whether trial judge correct in rejecting appellant's expert evidence on this issue as being not relevant and in dismissing the appellant's claim. Held: appeal allowed; finding that respondent liable substituted.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION
Observations on the need to clearly set out in evidence the assumptions of fact on which expert opinion is based.
Supreme Court Civil Rules 1987 r 38A.01A, referred to.
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; R v Fowler (1985) 39 SASR 440, applied.
Flavel v The State of South Australia (2007) 96 SASR 505, discussed.
McLean v Tedman & Anor (1984) 155 CLR 306; Ramsay v Larsen (1964) 111 CLR 16; The Commonwealth of Australia v Introvigne (1981-1982) 150 CLR 258; Vairy v Wyong Shire Council (2005) 223 CLR 422; Wyong Shire Council v Shirt (1980) 146 CLR 40, considered.

FLAVEL v STATE OF SOUTH AUSTRALIA
[2008] SASC 333
Full Court: Duggan, Vanstone and David JJ

DUGGAN J: I agree that the appeal should be allowed. I agree with the orders proposed by Vanstone J and the reasons which she has prepared.
VANSTONE J: When the appellant-plaintiff was 16 years of age she attended a camp, along with boys and girls from her school, at the Murraylands Aquatic Centre, just out of Murray Bridge. While undertaking practical tuition in windsurfing, she fell from a sailboard in shallow water. She hit her head on the river bottom and her cervical spine was fractured. The plaintiff is now a tetraplegic.
The plaintiff sued, in this Court, alleging that the defendant breached the duty of care owed to her. It was agreed that the question of liability would be tried first. The trial occupied ten sitting days. The judge found that there was no breach of the defendant’s duty of care and the claim was dismissed. This appeal attacks that finding.
Background
At the time she sustained the injury the plaintiff, as part of a group of eight students and an instructor, was undergoing her second lesson in windsurfing. The lessons took place in a sheltered stretch of the River Murray adjacent to the shore referred to as “the Willows”. The judge described that area as “an irregularly shaped area of water sheltered from the main river about 130 metres long and about 15 to 20 metres wide with an opening to the main river” to the west: Flavel v The State of South Australia (2007) 96 SASR 505 at [12]. On its northern side, it was bounded by an elongated island covered by willows. To its eastern end was a jetty. Just beyond the mouth of that area of water, to the west, was a concrete boat ramp. The distance between these two features was about 95 metres. The waterborne tuition took place between the jetty and the mouth of this body of water. The water was opaque, so that the riverbed was not visible.
The first lesson had taken place two days earlier, on 25 November 1997. By the second lesson the students were at the stage of standing on the sailboard, handling the boom so as to catch wind and, while standing, moving in a designated direction. Of course the students were at different levels of mastery of the skills required. After some rehearsing of the earlier lesson and some further instruction in sheeting the sail the students were directed by an instructor to take part in a series of what were described as “races”. The students would line up their sailboards end to end, and set off, one at a time rather than simultaneously, moving roughly parallel with the shore and aiming for an imaginary finish line running at right angles to the shore to a buoy located off the western boundary of the elongated island.
In essence, the plaintiff’s case was that in instructing these novice sailors to take part in races adjacent to the shore in shallow water, the defendant failed to take reasonable care to avoid the foreseeable risk of injury of the type sustained.
While recollections of the witnesses were sometimes at variance and while there were some differences in emphasis, the events themselves were not the subject of dispute. The fact that the students were engaged in “races” against one another whilst windsurfing during the second lesson and at the time of the plaintiff’s injury was admitted by the defendant in its filed defence. However, the central dispute, on which the case turned, involved ascertaining the character and essential features of the activity described as “races” and determining whether, in directing the students to carry out that activity in that location, the defendant breached the duty of care it owed to the plaintiff.
One matter which was not in dispute was the suitability of the particular expanse of shallow water for the purpose of instructing beginners in windsurfing. It was acknowledged by the expert evidence called, on behalf of both the plaintiff and defendant, that basic instruction in windsurfing was best carried out in shallow water. The Australian Yachting Federation (AYA) National Windsurfing Scheme, Windsurfing Instructor’s Guide provided that for its one hour beginners’ lesson, “shallow water (1-1.5 metres)” was an advantage. That was because only in shallow water could the students readily climb onto their boards, both initially and after a fall, and step off them as well, and also because shallow water gave instructors ready access to the students for both verbal directives and physical assistance. It was accepted before the trial judge that by using a confined expanse of water, such as this was, the students could be kept within reasonable proximity and the instructors could move from place to place on the bank issuing directives and advice, as well as keeping all students under observation.
Then, there was no dispute that the defendant, through the government-run aquatic centre and the government employed aquatic instructors and school teachers, owed a duty of care to the students to take reasonable care to avoid foreseeable risks of injury to students arising out of the various aquatic activities undertaken at the camp.
Another matter not in contention was the suitability of the equipment used by the students. That included safety equipment in the form of flotation devices, footwear and helmets. In addition, instruction was given to all students at the commencement of the camp on water safety, as well as instruction specific to windsurfing, including operating, slowing and stopping the sailboard. The plaintiff did not contest the adequacy of these basic safety measures.
Arguments on appeal
There were 26 grounds of appeal. Upon analysis these could be reduced to one principal and one subsidiary complaint, with the balance of the grounds amounting to no more than particulars.
The principal complaint – and, as will be seen, what I find to be the only independent ground of appeal – was that the trial judge erred in rejecting the expert evidence of Mr Todd to the effect that the introduction of the races into the second lesson carried with it additional risk of injury to the students and, if not accompanied by implementation of any additional safety measures, involved a breach of the defendant’s duty of care. I consider that the grounds numbered 3, 4, 5, 6, 8, 9, 10, 11, 12, 18, 19, 20, 24, 25 and 26 are facets, or arguments in support, of the same contention. I have included in that list the ground numbered 24. That was a complaint about the lapse of a period of 14 months from the trial until the delivery of judgment. As was explained by counsel for the appellant at the appeal hearing, this was not put as a criticism per se, but rather was a matter which gave rise to a need for particular care where the court considered the challenges to the judge’s factual findings.
The subsidiary complaint can be best expressed by quoting ground 1:
1.Having recognised the real risk of serious injury to the plaintiff, and having addressed in paragraph 136 of his reasons the calculus referred to in Wyong Shire Council v Shirt (1980) 146 CLR 40 @ 47-48, failed to address the relevant and therein specifically identified factors of “the expense difficulty and inconvenience of taking alleviating action”.
The argument throughout was that the racing undertaken by the students introduced new risks not present when they were merely attempting to put into practice, in a non-competitive setting, the techniques which they were taught. The series of complaints under this heading take as their basic premise an acceptance of the expert evidence of Mr Todd and the factual matrix on which his opinions were based. It is convenient to deal first with this complaint, which takes in the grounds numbered 1, 2, 7, 13, 14, 15, 16, 17, 21, 22 and 23.
The subsidiary complaint
Counsel for the plaintiff addressed the court at some length on what he said should have been the approach of the trial judge, once having identified a duty of care and a reasonably foreseeable risk of injury. Counsel put to this court a number of propositions drawn from the leading High Court cases dealing with breach of a duty of care.
The defendant owed to the plaintiff a non-delegable duty of care obliging the defendant to take reasonable steps to protect the plaintiff against any risk of injury which should have been reasonably foreseen: Ramsay v Larsen (1964) 111 CLR 16; The Commonwealth of Australia v Introvigne (1981-1982) 150 CLR 258. The character of the relationship between plaintiff and defendant affects the standard of care required to discharge the duty. The defendant was required to take into account that the plaintiff was being directed in the activity, that she lacked skill in it and that she might be absorbed in her task and might act negligently: Vairy v Wyong Shire Council (2005) 223 CLR 422 at 460; McLean v Tedman & Anor (1984) 155 CLR 306 at 311.
The trial judge found that there was a foreseeable risk of injury. He said:
134The 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.
Counsel argued that the next step for the judge was to determine how a reasonable person in the defendant’s position would have responded to that risk. He referred to the often-quoted passage in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48:
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 assessment required by Wyong v Shirt is to be undertaken prospectively, that is, from a time before the injury: Vairy v Wyong per Hayne J at [105].
Mr Cameron, for the plaintiff, argued that the trial judge did not fully address the factors set out by Mason J in Wyong v Shirt. Counsel specifically referred to the expense, difficulty and inconvenience of taking further steps to minimise the perceived risk. In the written outline of argument the plaintiff contended that the risk of injury could, and should, have been further reduced without incurring much additional cost or difficulty. Available measures were described as follows:
•confining the race into water at least a metre deep;
•directing the students to finish to the right or river side of the buoy;
•instructing the students to dismount if they entered the area of the left side of the willow channel;
•using the buoys to lane off the deeper water in the willows from the shallower water;
•conduct the racing in the deeper areas of the river.
(To these could be added, simply not conducting any races as part of the second lesson.)
There was no contest about the legal principles to be applied by the judge. The fundamental difficulty standing in the way of this argument was that the judge found that no additional risk was entailed by undertaking the activity referred to as racing. On that analysis, if the safety measures in place during the first lesson and the commencement of the second lesson prior to the racing activity were sufficient – as the judge found they were – then no separate and additional judgment about the question posed in Wyong v Shirt was required.
I have already reproduced part of the paragraph of the judge’s reasons where he found that there was a foreseeable risk of injury associated with the windsurfing tuition. In the same paragraph he went on to find that the measures taken to guard against that risk were adequate. He said:
134… 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.
He quoted from the judgment of Mason J in Wyong v Shirt the relevant question.
As already recorded, the plaintiff did not dispute that the Willows area was suitable for training beginners. The judge records this at [31] and the plaintiff did not argue to the contrary upon the appeal. Mr Todd acknowledged as much. Neither did the plaintiff argue that the safety measures and tuition referred to by the judge were inadequate for the tuition carried out in the first lesson and in the initial part of the second lesson. Rather, the plaintiff’s argument focussed on the activity referred to as “racing”. In these circumstances, the judge was entitled to proceed as he did, that is, first to focus on the reasonableness of the defendant’s conduct in the context of the tuition examined without the racing component, and then to consider whether the racing entailed additional risks. Had the judge found that it did, he would have been obliged to address afresh the question posed by Wyong v Shirt. Having found no additional risk, there was no need to do so.
Therefore, in the circumstances, this complaint is not an independent one. It rests on the success of the plaintiff’s principal complaint, which is that the judge erred in rejecting the plaintiff’s position that the “races” involved additional risk of injury to the students, to which I now turn.
The principal complaint
In order to understand the significance which the plaintiff attributed to the racing which took place during the second lesson, it is necessary to say more about the course of instruction leading to the races. The following summary is taken from findings made by the learned judge and recorded in his reasons. There is no need to describe in detail that part of the first lesson which took place on shore.
Each lesson occupied one and a half hours. The first was taken by an experienced instructor, Ms Graetz. Having been told of the increasing depth of the river, the students first moved into the water carrying a sailboard in pairs. The risk of diving from the board at such depths was emphasised. But anyway, the judge found that the plaintiff was fully aware of that danger. All but the most proficient of the students worked in pairs, learning how to operate the centreboard and paddling the board without a sail. This was described as a “self-rescue procedure” to be used if they strayed into deeper water. Students took it in turn to stand on the board so they could balance while drifting. Then the students practised with a sail, leading up to balancing on the board with the sail in position, though holding the mast rather than the boom. There was also instruction as to stopping the sailboard by dropping the sail and hopping, or stepping, off the board on the leeward side.
The second lesson for the plaintiff’s group was taken by Mr Cocks. A second group was taking a windsurfing lesson in the same general area and that was led by Mr Chamberlain. The chief instructor of the centre, Mr Gary Hodge, was present at the centre but played no part in teaching the students. On the day of the second lesson the weather conditions were found by the judge to be excellent for windsurfing instruction, with a light breeze and occasional stronger gusts. After reiteration of some of the earlier tuition, the students were shown how to hold the boom in order to catch the wind. This was referred to as “sheeting the sail”. It was explained that this would yield greater speed. At some stage the two groups were split, in order to implement the instruction. It was decided by the instructors that the students would take part in what were referred to as races. The plaintiff’s group was lined up, roughly bow to stern, in approximately waist-deep water with the sailboards parallel to the shore. The students were facing towards the centre of the river with the wind coming roughly from over their right shoulders. They were told to move off one at a time after the student ahead had moved away sufficiently to create some room. Many students had difficulty in controlling the direction of their boards and in maintaining balance. Most of them fell into the water more than once.
The trial judge accepted the accuracy of the plaintiff’s evidence. The plaintiff was a physically active girl. She played basketball, rode horses and took part in cross-country running events. She was a trained swimmer. According to the plaintiff, Mr Cocks explained to the group how to sheet the sail just before the commencement of the races. The first race started from the western side of the jetty and was to stop just before the cement boat ramp, the finish line being marked by a buoy. She said the students were warned not to go to the right, or north side of the buoy. She said that during the first race, though not recalling whether she fell off at all, she finished first and stepped off her board. Success in a race would result in relegation to the last starting position in the next race. Therefore the plaintiff set off last in the second race. During that race she said she was blown off shore and she stopped and stepped off her board in order to paddle back towards the group. That happened on several occasions and she did not finish the race.

Consequently, she led off in the third race. Here, the plaintiff was initially more successful, sheeting the sail to pick up speed. She said that, as a result, she was going faster than she ever had done previously and felt she was getting “quite a lead” on the other students. She said she turned around to see where they were and saw that Ms Halleday was the closest. She turned back to concentrate and realised that she was getting into “quite shallow water” and was approaching the boat ramp. She began to get “quite scared”, fearing that if she did not slow down she would hit the ramp and possibly break her leg. She was worried that she would not be able to stop before reaching it. She realised she needed to slow down or get into deeper water or, preferably, both. She attempted to put into place the instruction she had received to slow the sailboard by pushing the sail away from herself. She said it did not work, possibly because at that point she was hit by a gust of wind, which propelled the sailboard and led to a further loss of balance. The board started to wobble. Realising that some other measure was required, she dropped the sail. She started falling backwards into the direction of the wind and towards the shore. She explained that as she fell, she tried to turn, so that her arms might extend underneath her. Mr Cocks, who was watching her, said that her body appeared to twist into the water head-first. He rescued Ms Flavel. He could not say how deep the water was at the site of her fall, but was inclined to say it was not much either side of knee deep. Another student, Ms Jarrett, who watched Mr Cocks go to the plaintiff’s assistance, said that when he reached her position the depth was about at his, Mr Cocks’, knee level.
Another student, Ms Halleday, said that on the day of the accident, the group in which she and the plaintiff were, joined a group led by Mr Chamberlain to windsurf. Later in the session the instructors organised a series of races. Ms Halleday said her group’s races started from somewhere near the jetty. The finish line was the line between a position on the shore, a little to the east of the boat ramp a buoy near to the end of the island. It was roughly at right angles to the shore. The two groups raced separately. Ms Halleday said that prior to the races, the students were told to keep on the shore side of the buoy. Once at the finish line, students had to fold the centreboard back up into the sailboard, in about waist-deep water, step off the board and walk it to the shore. She said they were also given instructions on how to stop and what to do with the mast and boom. One of the instructors told the students how to position the sail so as to catch the wind.
During the race, Ms Halleday said there were short bursts of wind every so often and this caused the sailboards to increase speed; otherwise the boards were floating down the river fairly slowly. In the race during which the plaintiff suffered her fall, Ms Halleday heard the plaintiff squeal, turned around and saw the plaintiff face-down in the water, about 2 or 3 metres from the shoreline. Ms Halleday said in cross-examination she had no memory of any other persons in the race, because she was focussed on beating the plaintiff).
Ms Schapel was also in the plaintiff’s group for that lesson. Ms Jarrett recalled that the group comprised the plaintiff, Tammy Halleday, Sarah Schapel, Megan Willoughby, Mandy Yelland, Nick Davis, Daniel Mead and Ben Lehmann. Ms Schapel said the boys and girls “were all racing together” in the one race. Ms Schapel said that during the lesson Mr Chamberlain told them that, being ahead of schedule, and to fill in spare time, they were going to have a race to the buoy. The students were instructed to race from the western side of the jetty to the buoy at the end of the willows. They were to finish in the channel between the willows and the bank. She did not think any instructions were given as to which side of the buoy to head for. She thought the buoy represented the middle of the finish line, because there were students on either side of the buoy.
In the final race Ms Schapel described herself as windsurfing at walking speed, whereas the plaintiff was moving at a “reasonable speed”. She said this meant the plaintiff was travelling a little bit faster than walking speed. Ms Schapel said it was not easy to hold up the sail on the day because it was quite a breezy day; nor was it easy to keep one’s balance.
Ms Amy Jarrett could not remember who of the instructors had directed the students to race. She said the races started in line with the jetty, with the finish being an imaginary one drawn from a buoy across to the shore. Ms Jarrett said one of the instructors told the students to stay to the left-hand side of the buoy. She stated that there were strong gusts of wind at times. In cross-examination, Ms Jarrett agreed that the students travelled at a good walking pace. Ms Jarrett said that the race was competitive, with students trying their hardest. She did not treat it like a race, as she had little control, but others did. She said others were quite good and were able to compete and treat it as a race.
With that summary of the nature of the second lesson, I turn to the expert evidence called by the plaintiff to prove breach of duty.
Mr Brendan Todd has been involved in windsurfing for about 20 years, both as a coach and as a competitor at the highest level. The judge described him as being “an exceptionally well qualified windsurfer and coach of windsurfers”. His coaching experience did not extend to the training of beginners and, although he was familiar with the content of the one hour beginners’ lesson as recommended by the AYF in its Windsurfing Instructors’ Guide, he had never given such a lesson. Prior to preparing a report for the plaintiff’s solicitors, he visited the scene of the accident and made extensive observations and took photographs of it. His report recorded that he had been provided with a number of relevant documents and those included a “book of witness statements containing records of interview and associated materials”. His report recorded that he was asked to address a number of matters including:
…
3.Risks associated with windsurfing and in particular racing by Year 10 students in the particular locality chosen by the instructors.
…
5.Given the relative experience of the students the nature of the locality, the wind conditions on the day in question and the circumstances generally whether or not the activity of racing in that particular locality close to the shore was appropriate.
Mr Todd expressed the view that the area in which the tuition took place was suitable for the training of beginners. He pointed out that, since the area was narrow, the instructors could effectively monitor the activities and provide assistance to the sailors without using motor boats. He said that the sailors could stand up in the shallow water and easily get onto the sailboard after having fallen off.
However, the report recorded Mr Todd’s opinion that the area was “not suited to racing”. He said that the risks associated with racing were that racing involved sailing “to the edge of one’s ability”. Therefore there was a higher risk of a crash or fall, particularly in gusty conditions. He developed this point further in the context of the fifth question he was asked to address:
When racing a sailor will try to make the windsurfer go as fast as possible. A windsurfer while in a competitive situation will try and sail as fast as possible and will do this by holding as much power in the sail as they can. A sailor holding as much power as they can has a higher likelihood of falling, than a sailor windsurfing in a non-competitive situation.
Mr Todd observed that while experienced windsurfers need to approach the shore in shallow water at the end of sailing sessions, they “will usually do so at low speed and only holding enough power to propel the windsurfer forward in a controlled manner”. He said that other than that, only highly skilled sailors competing in speed trials would race along the shoreline. Those sailors would choose the shoreline because of the absence of ripples. They would aim to break speed records and would use purpose built equipment.
In his evidence Mr Todd was asked to more closely address those features of the races which presented a danger to the students. He said:
I guess I’ve issue with the racing because when you put someone in a competitive situation you try as hard as you can, so you might extend yourself further than maybe you would if you were just sailing. So to me there’s more risk of someone falling and given the direction of the activity, the race, to me there was a good chance that someone was going to continue down that south western side of the willows from start to finish, which is the shallowest side.
He added that students sailing along in the course of a race would not always be aware of the depth of the water below them.
When questioned closely about the speed which he assumed the plaintiff and the other students were achieving in the course of the races, he at first estimated “running pace” and then modified his opinion to “no more than a fast walk”. He went on to say that, in his mind, the speed was not the problem. Rather, it was the increase in risk of falling off. If a student was stationary in shallow water he or she could simply step off. But in a race the student would be “going from A to B”. He added that when involved in a race, the sailor tended to have a “narrow external focus” such that they were not necessarily aware of more than their immediate surroundings, and so might not be aware of nearby boats, or of having moved into shallow water. Instead, they would be focussing on going as fast as they could. He summarised the critical features of racing by saying that the key point for him was that the sailors would be “trying hard at the top of their ability” and there is a “high likelihood of someone falling off”.
The plaintiff called Associate Professor John Yeo to explain the way in which spinal injury may be caused by diving into shallow water. In the course of his evidence he expressed the opinion that every child or adult learning to windsurf should do so in water at least 1.2 metres in depth, so that the risk of injury to the cervical spine was eliminated, or at least minimised. That evidence went further than Mr Todd’s, or indeed that of any other witness. The judge did not accept this aspect of his evidence, finding that it overlooked both the practicalities of windsurfing and also the risks associated with learning to windsurf in deeper water.
The premises underlying Mr Todd’s evidence had to be compared by the trial judge with the evidence of witnesses at the scene. For example, the instructor, Mr Cocks, described the racing as providing some interest and something of a structure in which the students would have something to aim at while practising the techniques. The more senior instructor, Mr Chamberlain, gave evidence that although the activity was described as “racing”, it was very little different to anything else that the students might have done. It had the advantage of keeping them out of each other’s way and standardising what they did. Mr Chamberlain said that the speed at which they travelled was no different from that which they would have achieved in any event. He said that the students were only capable of doing certain speeds. In cross-examination he agreed that in taking part in the racing, the students were focussing on the task at hand, doing the best they could, perhaps going off course and also falling off.
The suitability of the Willows area for the activity being undertaken at the time of the plaintiff’s accident (however described) was attested to by expert evidence called on behalf of the defendant. Mr Brett Yardley provided a report which was tendered at trial. At the time of the trial he was employed within the Department of Education and Community Services and was working at the West Lakes Aquatic Centre as a senior instructor in aquatic pursuits, as well as running his own sailing school. He had extensive experience in both presenting training courses to instructors, including compiling manuals for them, and also training in windsurfing at all levels.
At trial there was an objection to the admission of his evidence on the basis of bias, in that Mr Yardley maintained a commercial relationship with the Education Department which was, effectively, the defendant in the proceedings. That objection was overruled and was not renewed upon the appeal. However, it was argued on appeal that the trial judge gave insufficient weight to the commercial relationship in assessing the weight of Mr Yardley’s evidence.
Like Mr Todd, Mr Yardley visited the scene of the accident for the purpose of preparing his report. Both in his report and in his evidence Mr Yardley expressed the view that the area used for tuition on the day of the plaintiff’s accident was suitable for “very basic beginner levels”. It had the advantage of being very flat water, it was a confined and sheltered space and the wind was “usually quite light and gusty”. He said if classes for beginners were to be carried out in the main part of the river, there would be a greater risk of injury and a greater burden placed on the staff. There would be a risk of drifting – with the wind or flow of the river – into the willows, the bank or snags, or colliding with other craft. Tuition in deeper water would have required a greater concentration of staff. In any event, his opinion was that deeper water would not eliminate the risks associated with launching or landing the sailboard in shallow water. He pointed out that mounting the sailboard after falling would be much more difficult for students in deeper water.
Mr Yardley’s report did not specifically address the issue of whether engaging in racing increased the risk of injury to the plaintiff. His opinion that the activity undertaken and referred to as “races” could appropriately be carried out in that area was offered in a context where counsel asked him to assume that students were “experimenting”; that they were at very rudimentary stages of learning and were attempting to implement the techniques upon which they had been instructed, rather than trying to maximise their speed to win. This series of answers were given in examination-in-chief:
Q.Let me ask you this, assume this scenario: a group of students, about eight students, were asked to take part in a race. The starting line was a little below the jetty on the ramp side. You understand.
A.Yes.
Q.The boards were lined up, been described like a string of sausages, bow to stern, in a line, down the river, not across from shore to shore. Then following a signal or an indication to start, the students simply started and sailed down the river, experimenting, at least some of the, with the use of the boom, pulling it to the, releasing it, as the case may be. In your opinion was that an appropriate exercise to conduct at that stage?
A.Yes, depending on the conditions, the strength of the wind at the start and finish.
Q.The weather was described as a fine day, a breeze but gusts. Let’s assume there were gusts; does that have any bearing or do you change your opinion in light of that.
A.Not the gustiness, just the overall strength, if it was overly strong, that’s probably more awkward.
Q.Given your experience in other aquatic activities, it was said that tubs, rowing boats called tubs were out on the river and that the river was sufficiently flat and the wind sufficiently light for beginner rowers to row up the river to Long Island, Murray Bridge, and then back again. Does that give you an indication of the weather conditions.
A.Yes.
Q.What does that say to you.
A.It would be reasonable for most of the other activities.
Q.And in particular the windsurfing that I have been asking you to consider.
A.I would have thought so, yes.
The opinion appears to be not only limited, but also somewhat qualified. It is noteworthy that Mr Yardley also said that were he to organise a race for beginners at his usual teaching location at West Lakes, he would instruct the students to proceed from the shore at right angles, to a marker placed in deeper water. They would be told to mount their boards once they could get the centre board down, which would be in water between a half to one metre in depth. The attack on Mr Yardley’s objectivity as an expert witness rested on his commercial relationship with the defendant. There is no reason to think that the judge overlooked that issue.
It is noteworthy that Mr Cocks and, particularly, Mr Chamberlain demonstrated an extremely limited memory of the course of the second lesson. It would be expected of persons in their position that they would have made a detailed statement or “incident report” very soon after the event and that their memories would have been refreshed by reference to such material. Neither witness professed to have any recollection of instructions given to the students about the races. Neither was prepared to admit what seems to me to be clearly apparent on the students’ evidence, that the introduction of a competition would inevitably change the approach of the students to the exercise.
A significant aspect of the evidence of both Mr Cocks and Mr Hodge was that “races” did not form part of the usual, two-lesson beginners’ regime. This was the first occasion when such races had been conducted by Mr Cocks for students at this level. It was not something which Ms Graetz incorporated into her beginners’ lessons. Neither did the teaching programme devised by Mr Hodge contain any reference to races. The same can be said of the AYA one hour beginners’ lesson.
The judge essentially found that Mr Yardley’s assumptions as to the nature and significance of the racing were well founded. Because those assumptions differed from Mr Todd’s, he found that the two opinions were not in direct conflict. The judge found that instructing the students to race in the way described did not attract dangers of injury additional to those that would have been associated with a less structured approach. He found that Mr Todd’s understanding of the nature of the races did not accord with his own findings. Therefore Mr Todd’s opinions were not relevant. The judge found that integral to Mr Todd’s description of the added dangers of racing was an increase in speed, leading to an increased chance of falling. He found Mr Todd’s analogy of the dangers undertaken by highly skilled sailors in speed trials on shallow water to be inapposite. The judge said:
118From 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.
A little later the judge explained what the races in fact entailed:
124What 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 judge went on to find that there was no increase in speed of the students during the races. He found that the only differences between what was involved in the race, as against the earlier activity, were that it kept the group together, which meant supervision was easier, that it added some interest and that it provided a goal or inducement to enhance the students’ skills. The judge therefore rejected Mr Todd’s evidence on the basis that the opinions expressed by him were not relevant to the activity actually carried out by the students during the races. The judge took the view that Mr Yardley’s evidence supported the evidence of Messrs Hodge, Chamberlain and Cocks to the effect that the racing did not present additional risks to the students.
Analysis

In my opinion the judge’s analysis of the activity overlooks certain critical features. First, it underplays the importance, from the point of view of the students, of the introduction of a competition. This was a group of students who were about 16 years of age, comprising both boys and girls. In my view it was inevitable that their approach to the activity would change, once they were racing against one another. That would be so, irrespective of the fact that the start was a staggered one. The fact that the racing did have an impact on the students is borne out by the evidence of the plaintiff, and each of the other three students who gave evidence. To that extent, the students support Mr Todd’s analysis and undermine that of the instructors, Mr Chamberlain and Mr Cocks. The introduction of a competition meant that, far from simply experimenting with the techniques which the students were taught, they would be implementing the techniques which they had just learned, including sheeting the sail, to employ maximum speed. The plaintiff’s own evidence establishes that. She said that during the third race she succeeded in sheeting the sail in such a way that she went faster than ever before. Focussing on reaching maximum speed and on winning the race was likely to lead to a level of disregard of risks, which would otherwise have been deliberately minimised. Again, consistent with Mr Todd’s evidence, it would naturally lead to a greater risk of falling.
Coupled with that, the focus of a student engaged in racing would, in all likelihood, be narrower than a student not so engaged. Again, the plaintiff’s and Ms Halleday’s evidence demonstrates that. The plaintiff focussed on increasing her speed and, further into the race, upon the relative position of the students following her. Plainly, she allowed herself to reach shallow water instead of discontinuing her efforts in the race before that occurred. Because the water was opaque, it would have been very difficult to gauge the depth. With great respect to the judge and to his advantage over this court in hearing the evidence, I consider that the above findings were dictated by the evidence and by giving appropriate weight to the attitudes and behaviour of sixteen year olds.
Additionally, the judge found that falling off the sailboards was a continuing feature of every race. However, as I have outlined, the plaintiff could not recall falling during the first race and had proceeded for almost the full extent of the third race without coming off her sailboard. Indeed, but for the danger she perceived, she would have continued. Ms Halleday was not far behind her and was focussed on beating the plaintiff. She could not recall falling. No doubt some other students, like the plaintiff and Ms Halleday, had some previous experience in windsurfing. There was likely to be a range of aptitudes within the group by the latter half of the second lesson. The risks involved in the racing activity had to be calculated by reference, not just to the slowest learners, but to the more accomplished students. If several of the students were capable of sailing their boards over the full course of perhaps 90 metres, without mishap, positioning their sails so as to achieve the maximum speed allowed by the gusty breeze, then they could no longer be viewed as true beginners and the safety measures in place for much more rudimentary manoeuvres were most unlikely to remain sufficient.
The judge found that none of the witnesses had suggested that the sailboards were travelling at greater than walking speed in the races. In fact, Ms Schapel did suggest that the speed of the plaintiff exceeded that. But, in any event, the absolute speed is not, in my view, the essential matter. More importantly, the students, for the most part, would have been attempting to extend themselves and to maximise their speed. The speed achieved by the plaintiff, at least, felt to her to be significant.
In my view the judge gave insufficient weight to the fact that this was not an activity which was part of the usual routine followed by any of the instructor witnesses in the first or second lessons which they conducted. If it were to occur at all, then in my view, steps should have been taken to confine the course to deeper water, not having any hazard, such as were presented by the shallow water and the boat ramp.
I have already set out the judge’s finding as to the foreseeable risk of injury. He posited that risk as being a student jumping or falling off a sailboard in shallow water in such a way as to cause serious spinal injury. His assessment of what was adequate in terms of addressing the risk was, as this passage demonstrates, informed by evidence which satisfied him that 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 only comparable injury in Australia – of which both Associate Professor Yeo and Mr Todd were aware – occurred at Narrabeen Lake in New South Wales about 20 years ago.
I have mentioned the safety measures which the judge found adequately addressed the risk of injury to the students. The helmets worn by each student were designed to guard against impacts with the students’ heads, particularly on board or rigging. The lifejackets were to guard against drowning and to help cushion impact with the water. The shoes worn were designed to prevent injuries to the foot by submerged objects or snags. The judge’s finding that there was no issue about the adequacy of these precautions insofar as it addressed the first lesson and the early part of the second lesson was not challenged.
However, in my view, once the racing activity was introduced then the issue became whether the racing increased any risk already identified, or introduced some new risk of injury. For the reasons already given I consider that the answer to that question must necessarily have been that existing risks were increased and further risks were introduced. Bearing in mind that racing was not part of the usual beginners’ lesson programme and since the students were not yet in sufficient control of their sailboards to venture into the main part of the river, the obvious response to the increased risk was to obviate it by not instructing the students to race. No expense or difficulty would have been occasioned by that course. Perhaps some other measures could have been implemented to address the new, or increased, risks while still allowing the students to race in the sheltered area. For example, the area of water adjacent to the river’s edge less than, say one metre deep, could have been marked out of bounds by means of buoys. But it is not necessary at this point to express a view of such possibilities with any precision.
I would uphold the appeal on this ground.
Delay
As earlier explained, the plaintiff’s ground of appeal number 24 concerning delay in delivering judgment was not said to be one that stood alone. Rather, the lapse of time before judgment was called in aid of the complaints about failure to address particular matters. The only explicit complaint about evidence favouring the plaintiff but not referred to in the judge’s reasons related to evidence of a physical education teacher associated with the plaintiff’s school, Mr Crawford, and evidence of Ms Graetz, the plaintiff’s instructor during the first windsurfing lesson. Both witnesses were called by the defence. In the plaintiff’s written outline it was suggested that Mr Crawford had markedly assisted the plaintiff’s case by asserting that the students should not have been sailing their boards close to shore; that they should have dismounted once the water was shallower than waist deep. An examination of the transcript of Mr Crawford’s evidence demonstrates that the point he was making was that when the students were returning their sailboards to the beach, they should dismount in at least waist deep water, rather than sailing right in to the shore. Plainly, Mr Crawford was there addressing a different situation; that of more able windsurfers returning to shore after surfing in deeper water. In my view the judge was entitled to take the view that such evidence added little to the plaintiff’s case. The plaintiff also relied on Mr Crawford for proof that the river water was opaque and that, as a result, the students were unable to see the bottom and to gauge the depth. That was not a matter of dispute.
Reference was also made to the evidence of Ms Graetz for the proposition that she had never suggested to students that they become involved in races as early as their second lesson. Ms Graetz stated in her evidence that it was not her own practice to have students race in the second lesson. I have referred to that evidence. However, she made the point that she was unaware of what other instructors did and, also, she approved of the idea that in the second lesson the students should be given a goal or an objective, viz, to sail along the relevant expanse of water, close to the beach, down to the western end and then to walk back along the shore with their sailboards. In Ms Graetz’ evidence there is no criticism, express or implied – nor any approval – of what was done with the plaintiff’s group.
In my view neither of these topics was necessarily of such significance as to demand mention in the reasons of the trial judge.
In my opinion it cannot be said that the elapse of 14 months between hearing and delivery of judgment worked to the plaintiff’s disadvantage. There is nothing in the reasons themselves which suggests that the evidence was other than clear in his Honour’s mind. Notwithstanding the conclusion I have reached, it can be said that the reasons were clear, detailed and careful.
Eliciting expert evidence
I make some additional observations. It appears to me that the fundamental difficulty with Mr Todd’s evidence and the reason why the judge rejected it without in any way discrediting Mr Todd, was that at no time were the assumptions of fact on which Mr Todd’s opinion was based clearly established. I have already related that part of the brief to Mr Todd which sought his opinion on the risks associated with the activity undertaken by the students in the second lesson. At the time his opinion was sought, the term “racing” was not defined for his assistance.
During the appeal hearing, questions from the bench sought clarity as to the assumptions upon which Mr Todd’s opinion rested. In reply, Mr Cameron submitted that the term “racing” was admitted on the pleadings and was an “English word of plain meaning”. When pressed further about the precise assumptions made by Mr Todd, Mr Cameron directed this Court’s attention to the following passage in Mr Todd’s report:
During the third sailing race that was conducted Miss Flavel had her accident. At this time Miss Flavel was involved in a race with seven other competitors. Also sharing the waterway was another group of eight. This second group were also racing on the same course and were started after the first group. Miss Flavel was sailing and nearing the finish located near the concrete ramp when Miss Flavel lost balance and dropped the sail. After releasing the sail the sail fell to the leeward side of the board. Miss Flavel becoming unbalanced, Miss Flavel fell into the windward side away from the equipment and towards the shore, which she was already close. Miss Flavel fell into the water from a standing but bent position from on top of the sailboard.
In examination-in-chief, Mr Todd confirmed that his assumptions were outlined in s 4 of his report. This passage fails to encapsulate the essential features of the “race”, on which Mr Todd based his opinion. One does not know from it the speed at which Mr Todd assumed the students travelled during the third race, whether the speed was critical, or what he assumed about the plaintiff’s motivation to win, or her concentration on the task. Nor is there any assumption about her proficiency, or her ability to direct or control the sailboard. There is no assumption about the depth of the water along the course or at the site of her fall.
Mr Cameron also referred to rule 38A.01A(5) under the 1987 Supreme Court Civil Rules, arguing that leave would have been required if additional matters were to be led in examination-in-chief. That rule provided:
R 38.01A(5)
Unless the trial Judge otherwise allows expert evidence-in-chief at the trial is to be given only by tendering reports from the expert which comply with the Rules and the expert swearing that the reports are correct.
The trial transcript shows that counsel did supplement Mr Todd’s report with examination-in-chief, directed to other topics, apparently without explicit permission. Mr Cameron ultimately returned to the position that the precise nature of Mr Todd’s assumptions of the “race” was not explored in examination-in-chief because they were adequately covered by Mr Todd in that part of his report, extracted above.
In my view the way in which the evidence of Mr Todd proceeded in this matter again underlines the necessity of clearly establishing from an expert witness the factual basis upon which his opinion is offered. If there is room in the expert’s opinion for some variation of one or more of the facts which he assumes, then that too must be established. If that is not done, then counsel runs the risk that the judge will be obliged to reject the expert opinion because its basis is not clearly established. This point was clearly made in R v Fowler (1985) 39 SASR 440 at 443 by King CJ and by Johnston J at 453-454. Similar observations were made in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 by Heydon JA:
64.The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.
In this case the very assumptions on which basis Mr Todd proceeded became a matter of contention. That tended to obfuscate the real issue. The judge was left to draw conclusions about the factual basis of Mr Todd’s evidence because those facts were not defined. That made the matter more difficult for the judge (and for this court) and in my view contributed to what I have found to be an incorrect decision, to find Mr Todd’s opinions to be irrelevant.
Conclusion
I consider that the judge erred in analysing the evidence going to the central issue. I would allow the appeal. I would set aside the order of the trial judge dismissing the claim and order, in its place, that the plaintiff recover from the defendant her damages to be assessed.
DAVID J: For the reasons given by Vanstone J, I would allow the appeal and set aside the orders of the trial judge dismissing the claim. I agree with the orders proposed by Vanstone J.