The case of FLAVEL v THE STATE OF SOUTH AUSTRALIA [2007] SASC 50 is in relation to the tort of negligence. Negligence takes place when the rights of an individual should not be subjected detriment unnecessarily is violated or infringed by any other person.  The principles of tort of negligence had come to existence through the case of Donoghue v Stevenson 1932 AC 562. The principles of negligence are based in the principles of duty of care and breach of the duty and finally the injury caused to the person. One of the landmark cases which used the principles of negligence to resolve an issue in Australia is Grant v Australian Knitting Mills [1935] UKPC 62, [1936] AC 85; [1935] UKPCHCA 1. This case also involves a party whose rights have been infringed by a person who owed a duty of care to him. The party has suffered physical injuries. The question which the court had to address in relation to this case is that whether other party had contravened the duty of care. However in this case the court found out that te duty had not been breached. The paper discusses the facts of the case, the issues raised by the plaintiff and the defendant, the arguments raised by the parties,  the court’s judgement, and critical analysis of why the decision was made in favour of the winning party. 

The plaintiff at the time of the incident was a year 10 student of Bordertown High School. The school had organized a camp which was attended by the plaintiff along with other school students. The school and the Camp were under the control of Department of Education and Children’s Services. The name of the camp was Murraylands Aquatic Centre. Thus the department was the defendant in this case. A claim has been brought against the defendant by the plaintiff in relation to the physical injury which the plaintiff had incurred with respect to a windsurfing session. The plaintiff fell in shallow water while windsurfing and had been subjected to a spine fracture and now is tetraplegic. There was a warning sign which was present at all times near the place where the incident took place which stated that “danger shallow water, no fishing or swimming, from houseboat or jetty”. The word danger had been further highlighted. The plaintiff stated that he got out of control while in the race which was organized by the defendant in shallow waters and fell to hit his head on the bedrock of the river. 

In this case allegations have been made by the plaintiff that the defendant did not abide by the duty of care which was owed to the plaintiff as it failed to provide appropriate instructions to the plaintiff, making the plaintiff indulge in races while no proper training had been provided, making the plaintiff indulge in races in shallow water where there was risk that the plaintiff may get injured due to the river bed,  providing a trainer who did not have adequate training, failing to provide safety equipments and supervising the plaintiff.

The defendant made a plea in relation to contributory negligence which has been abandoned by the court at the trial in addition opposition to the extension of time in which the plaintiff could file the claim was also abandoned.

Through the consent of the plaintiff and the defendant the question before the court was in relation to liability only the plaintiff seek regulatory judgement under 30B of the Supreme Court Act 1935 (SA) whereby damages would be assessed at a later stage. Thus the issue is only the liability of the defendant if any owed to the plaintiff.

The arguments presented by both parties.

The arguments which had been made by the plaintiff was that:

Defendant did not abide by the duty of care which was owed to the plaintiff as

• They failed to provide appropriate instructions to the plaintiff
• making the plaintiff indulge in races while no proper training had been provided,
• Making the plaintiff indulge in races in shallow water where there was risk that the plaintiff may get injured due to the river bed,
• Providing a trainer who did not have adequate training,
• Failing to provide safety equipments and supervising the plaintiff.

The arguments which had been provided by the defendant in the given situation include

That the defendant took all reasonable steps possible to make the students avoid any risk associated with the cap which a reasonable person would have taken in the position of the defendant.

There were significant training provided by the students before the activity which was as good as it has been in relation to thousands of past students who have indulged in similar activities

The defendants could not reasonable foresee that even where such training and equipments in provided to the students they would suffer the injury which has been faced by the plaintiff 

The court analysed the three elements of negligence as provided through the case of Donoghue v Stevenson namely duty of care, breach of duty and causation. The elements of remoteness was not analysed as the court was of the finding that the duty of care has not been breached in relation to the lessons and the race and the incompetency of the trainers was not the cause for which the plaintiff had incurred the injury. The court while having considerable sympathy to the injury caused to the plaintiff in relation to the devastating injury which has been incurred, stated that the sympathy cannot be consider as a hurdle in assessing properly the duty of care which is owed by the defendant and whether the duty has actually being contravened or not. The court correctly analysed through the application the elements of negligence in the case that the defendant had not breached the duty of care which was owed to the plaintiff. Thus the claim made by the plaintiff had been rejected.

Critical analysis of why the court decided in favour of or against the party you chose (i.e. plaintiff or defendant). Some points to consider for your analysis:

In this case it had been stated by the court that reasonable care had to be taken by the defendant in relation to avoiding any foreseeable injuries which may have been caused to the plaintiff or the other students while participating in the camp. However the duty does not state that the defendant has to present all injuries which are reasonably foreseeable but merely take reasonable care to prevent such injuries as per the case of Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Hayne J at 488, [1998] HCA 5 at [155]. In the present situation the foreseeable risk is that the students may jump or fall of the sale board in shallow waters in a way through which they may sustain injuries which have been sustained by the plaintiff. The court held that the defendant took reasonable precautions by asking the students to wear safety equipment, providing general safety instructions when the camp initiated and also at  the beginning of instruction sessions and the ways in which the sale board was to be operated and stopped.  Taking into the consideration the past experience of various students who had indulged in the activity it can be stated that while the precautions which had been taken by the defendant were in place it was very unlikely that the students would be subjected to serious cervical spine injuries.

The court further established its view in relation to the question that whether through the conduct of racing in the described manner there was a failure on the part of defendant to comply with their duty. The court rightly referred to the case of Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48 where it had been stated by the court that for the question of addressing the issue relating to breach of duty it must be initially considered by the court that whether in the defendants position a reasonable man would be able to foresee that a conduct had a risk of harm to the plaintiff or persons of the same class. Where a positive response is derived the court has the discretion of analysing what would have been done by a reasonable person to avoid the risk. The perception in relation to the response of a reasonable person asks for taking into account the extent to which the risk could probably occur, the magnitude involved in the risk, cost of the expenses, and the difficulties in taking any additional action or any other responsibility on the part of the defendant which may conflict. Only in situation where such matters have been balanced does the court comes in a position to analyse the extent of care the reasonable person who has been placed in the position of the defendant may have taken. The court correctly found in the favour of the plaintiff that the conduct in relation to the races in context did not have any considerable alterations in place as compared to the way in which the students would indulged into the lesson if they were left to their own.  There was no requirements for the students who participated in the race to travel at more speeds as compared to what they could have reasonably achieved by deploying their skills. A desirable goal and objective had been provided to them so that the development of their skills can be initiated in relation to balancing and steering the sale board and managing the sale and included only those things which the camp was supposed to include. However the facts that the activity was a race and hand been initiated to manage the efforts of the students had no effect on the risk of the harm like which may require additional precautions being taken. The degree of probability of the risk and its magnitude were no more than the situation in which the race of the same kind and similar objectives would not have been initiated.  In addition the benefit of great degree of supervision had been provided through the race as compared to what would have been where every student was left to personal devices in the light of inevitable separation which would take place. The way in which the lessons are conducted have no other complaints in relation to them. Thus it is evident that there was no breach done by the defendant in relation to the duty of care while conducting the lessons in the manner in which they did it.  In relation to the other element of negligence which is that of causation there is no evidence which signifies that the plaintiff had been injured due to the trainers being incompetent or any lack of supervisions present at the time.  In addition there was no failure to provide additional safety equipments by the plaintiff. 

Although the “but for” test which had been established by the English case of —– was not applied by the judges in this case. The application of the test would signify that the plaintiff would have suffered the injury even if there was increased supervision or more competent trainers. Thus where the injury has not been caused due to the lack of standard of care taken there can be no negligence claim.

The court while having considerable sympathy to the injury caused to the plaintiff in relation to the devastating injury which has been incurred, stated that the sympathy cannot be consider as a hurdle in assessing properly the duty of care which is owed by the defendant and whether the duty has actually being contravened or not. The court correctly analysed through the application the elements of negligence in the case that the defendant had not breached the duty of care which was owed to the plaintiff. Thus the claim made by the plaintiff had been rejected. 

Australia is Grant v Australian Knitting Mills [1935] UKPC 62, [1936] AC 85; [1935] UKPCHCA 1

Donoghue v Stevenson 1932 AC 562

FLAVEL v THE STATE OF SOUTH AUSTRALIA [2007] SASC 50

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Hayne J at 488, [1998] HCA 5 at [155].

Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48