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School trip: Vicarious liability – causation

Wilkin-Shaw (Administratrix of the estate of Charlotte Shaw, deceased) v (1) Christopher Fuller (2) Kingsley School Bideford Trustee Co Ltd
18 April 2013
Court of Appeal

The Court of Appeal found that the appellant had failed to show that the death of her daughter while on a school expedition was the result of the negligence of a teacher who had lost her way and failed to meet the team at a checkpoint. A high standard of navigational skills was to be expected of those training 14-year-olds during an expedition on Dartmoor and the teacher had been negligent. However, it was speculative as to whether there would have been a different outcome had the teacher been present at the checkpoint. In any event, the intervention of a leader from an unconnected group had broken the chain of causation. John Morrell draws out the key points and comments on the findings.

Facts

This case involved the tragic death of a 14 year old girl who drowned while taking part in a training exercise for the annual Ten Tors event, which involved trekking over rugged terrain on Dartmoor.

The First Defendant, CF, was employed by the Second Defendant school and was in charge of a group of children from the school engaged in the exercise. He was supported by three or four other members of staff. At trial the Judge accepted that CF had sufficient qualification to lead the group.

There had been prior training exercises at school, and it was accepted that all proper steps had been taken to prepare the children for the Dartmoor exercise. On the second day of the training exercise, the children, in groups of six, were allowed to make their way unaccompanied on a route which included checkpoints at which they would be met by members of staff. At the second checkpoint the group in question was to be met by two teachers, KT and AH.

On the second day the weather conditions on Dartmoor were poor. The group was met at checkpoint 1 by CF. It was decided that two of the group should leave the exercise at that point. At trial the Judge rejected an allegation that the entire group should have been taken off Dartmoor at that stage as it accepted that CF had been entitled to take the view that they were fit to continue.

The group made good progress and reached the second checkpoint early. At this point, KT and AH had not arrived at the second checkpoint. The group contacted CF by telephone who first advised them to wait, but there was also at checkpoint 2 W, who was the leader of another unconnected group of youngsters undertaking the same exercise. W spoke to CF on the telephone and told him that he considered that the group was getting cold and should walk on to the next checkpoint. CF agreed. On the third leg of the exercise the group encountered a very swollen brook which they could not cross. The group spoke again to CF on the telephone who advised them not to attempt to cross the brook, but to walk up and around the head of the brook. At this stage the group once again encountered W who told them that he would show them a place where they could cross the brook, and would save themselves a long walk. It was in crossing the brook at this location that one girl fell and drowned.

Judgment of trial judge

At trial, the case was put forward on the basis that the Second Defendant school was vicariously liable for CF and had failed in its obligation to ensure that he and his team were competent to supervise the training event. The Judge rejected the claim and in particular held that CF had not been negligent in failing to take the group off the moor at the first checkpoint, allowing the group to walk on to the third checkpoint on the basis that they were not to attempt to cross the swollen brook, and that he had not been negligent in failing to ensure that the second checkpoint was manned at the arrival of the group.

As became important in the Court of Appeal, the Judge held that the fact that KT and AH did not reach the second checkpoint did not amount to a failure to ensure that KT and AH were competent.

Court of Appeal

It was accepted on behalf of the Claimant that the school had acted reasonably in ensuring that a safe system was operating on the training exercise.

Lord Justice Pill, Lord Justice Moore-Bick and Lady Justice Black dismissed the appeal finding that KT had been negligent and the school was vicariously liable for this negligence; however, the claim still failed as causation had not been made out.

Negligence

In the Court of Appeal the presentation of the claim concentrated on the involvement of KT. Although KT was competent to assist during the training exercise, it was alleged that she had been negligent in failing to reach the second checkpoint in time and that the school was vicariously liable for this negligence.

KT and AH were not with the school group at the start of the second day and it was intended that they make their own way to the second checkpoint from a different direction. In the event, because of the prevailing weather conditions, KT and AH found it difficult to navigate along the intended route and they walked below the ridge to avoid the wind. In so doing, KT and AH missed the second checkpoint. After a period of time, they realised that they had gone too far and must have missed the second checkpoint. They contacted CF by telephone who told them that the group had passed the second checkpoint already and that they should return to their car.

At trial, the Judge was required to examine the competence of KT and AH to assist during the training exercise and to man the second checkpoint. He concluded that in the prevailing weather conditions their navigational error did not demonstrate a lack of competence. The Court of Appeal felt able to adopt a different approach. A high standard of navigational skills was to be expected of those training 14 year olds during an expedition on Dartmoor. Furthermore, the experts agreed that it was very important that checkpoints were manned. In evidence, KT had accepted that examination of the contours on the route they were taking would have revealed that they were taking the wrong route. In these circumstances, the Court of Appeal considered that KT had been negligent and that the school was vicariously liable for this negligence.

Causation

In spite of the finding of negligence, the claim did not succeed. The duty of staff at the checkpoints was to assess the fitness of the group. There was now no criticism of the decision to allow the group to proceed independently and to walk on to the third checkpoint. In the circumstances, had KT been present at the checkpoint she would have sent the group on its way. The intervention of W had broken the chain of causation and unfortunately the accident had been the consequence of the well meant, but ill advised, intervention of W in relation to crossing the brook. While it was foreseeable that the group might seek advice from other adults, it was not reasonably foreseeable that bad advice would be given. To decide that KT‟s presence at the second checkpoint, when the group first arrived, would have prevented the attempt to cross the brook involved too much speculation to be tenable.

Comment

Without volunteers like KT, willing to lead groups of youngsters, the availability of such activities will be reduced. Although it might be considered that the provisions of Section 1 of the Compensation Act 2006, relating to socially desirable activities, was aimed at this sort of case, the Judge considered that it added nothing to the common law and it was not considered by the Court of Appeal.

Schools must do their best to ensure that staff are well qualified to lead activities. Even so, accidents will happen. In this case, there was no liability as the Claimant could not establish causation, but it is clear that in different circumstances a finding of liability might have followed.

For further information, please contact John Morrell, Director, Casualty team on 0207 645 9538 or at john.morrell@dwf.co.uk

By John Morrell

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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