(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.
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…
Details
AGLC
Flavel v State of South Australia [2008] SASC 333
Case
[2008] SASC 333
Decision Date
CaseChat Overview and Summary
In the case of Flavel v State of South Australia, the plaintiff sought to appeal a decision of the South Australian Supreme Court which dismissed her claim for damages against the State of South Australia. The plaintiff, who was a student at an aquatics camp, suffered tetraplegia after falling from a sailboard during a windsurfing lesson. The primary issue in the trial was whether the State's instruction to the students to participate in 'races' in a shallow, bounded area of water increased the risk of injury, necessitating additional precautionary measures. The trial judge found no breach of duty of care and dismissed the claim.
The appeal before the court focused on the admissibility and relevance of expert opinion evidence, specifically regarding the risk assessment of the 'races' conducted in the designated water area. The plaintiff's expert, Mr. Todd, provided an opinion on the risks associated with the races, but the trial judge deemed this evidence irrelevant. The court found that the assumptions underlying Mr. Todd's opinion were not clearly established, which led to confusion and contributed to the judge's erroneous conclusion that the expert evidence was irrelevant. This misstep was pivotal, as it affected the judge's ability to properly assess the risk of injury arising from the racing activity.
The court held that the trial judge's analysis of the evidence was flawed due to the unclear assumptions in the expert's report. Consequently, the appeal was allowed, and the decision of the trial judge was set aside. The court ordered that the plaintiff recover her damages from the defendant, to be assessed at a later date. The judges agreed on the orders proposed, affirming the reversal of the trial judge's dismissal of the claim.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.