Case - Wilkin-Shaw v. Fuller

[2013] EWCA Civ 410; [2013] E.L.R. 400, Court of Appeal -
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The appellant failed to show that the death of her daughter while on a school trip on Dartmoor was the result of the negligence of a teacher who had lost her way and failed to meet the team at a checkpoint.


The appellant (W), administratrix of the estate of her 14-year-old daughter (C), appealed against the dismissal ([2012] EWHC 1777 (QB)) of her claim for damages for negligence against a teacher (F) and vicarious liability against the school which employed him for loss to C's estate and for psychiatric injury following the death of C on a school trip on Dartmoor. The school had entered a team of children for an annual expedition. F was the team manager responsible for training the children for the challenge and organised a training weekend on Dartmoor. On the first day, the group of 11 children and four adults successfully completed their planned route and camped for the night on the moor. F and his assistants decided that the children had shown sufficient ability to progress to remote supervision, which involved the group walking unaccompanied, and being met at check points. The group, including C, successfully completed the second leg of the day's planned journey arriving at the check point about an hour earlier than expected to find no teachers. F spoke to the group by telephone and told them to wait for the teachers. Meanwhile, the two members of staff who were supposed to meet them lost their way and went past the checkpoint. They were told by F to return to their car. During their return one of them (T) fell into the Walla Brook and was fully submerged but managed to pull herself out. F then received a telephone call from a scoutmaster (TW) who had encountered the group. His advice, which F accepted, was that the group was starting to get cold and should continue walking. The direct route to the next check point led across the Walla Brook, which was swollen with rain water and uncrossable at that point. F advised the group by telephone not to cross but to go round its head. TW then became involved and offered to show the group where he had crossed earlier. While attempting to cross there, with TW's assistance, C fell in, was swept away by the strong current and drowned. At trial the case had been against the school for vicarious liability for F's negligence, a claim which the judge had dismissed. W submitted that a high standard of navigational skills was required for those training children on Dartmoor and T had been negligent in failing to reach the checkpoint to meet the team and the school was vicariously liable for her failure.

Held: Although the judge had not ruled on T's negligence only on her general competence, the issue of her negligence had been adumbrated in the pleadings and it was not unfair to consider it on appeal. Given the high standard reasonably to be expected, and the seriousness of the elementary errors made, T had been negligent (see para.39 of judgment). However, it was highly speculative as to what would have happened had T been at the checkpoint to meet the team. T's evidence had been that she would have checked their fitness but any question as to their route would still have been put to F by telephone. Even had she remained at the checkpoint, the intervention of TW would have broken the chain of causation (paras 51-55).

 

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