Wilkin -Shaw v Fuller & Ors

The standard of care owed by those organising hazardous activities for children is that of a reasonably careful parent, assessed in the context of the activity and its conditions. Schools must ensure that organisers and assisting staff are competent for the roles undertaken.

The social value of an activity and the risks inherent in it must be balanced against the likelihood and seriousness of injury and the cost of precautions. Compensation Act 2006, section 1 adds nothing material to that common-law approach. On the facts, the defendants were not negligent.

A fourteen-year-old pupil drowned during a training exercise on Dartmoor for the Ten Tors expedition. Her mother claimed damages personally and as administratrix of the pupil’s estate against the teacher responsible for the training and the school said to be vicariously liable.

The claimant alleged that the teacher should have stopped the group earlier, should have ensured that a designated checkpoint was manned, and gave negligent advice after the group encountered an uncrossable stream. The defendants denied breach and relied alternatively on the intervention of an independent scoutmaster as a novus actus interveniens.

1. Duty and competence. The first defendant owed the deceased the care expected of a reasonably careful parent, taking account of the nature and conditions of the outdoor activity. The school had a corresponding duty to ensure that he and the assisting adults were competent to organise and supervise the training.
2. Competence was not established only by formal qualifications. It could be assessed by experience, training, preparation and the manner in which the exercise was organised. The first defendant’s preparation was methodical and comprehensive. The supporting team had appropriate experience overall.
3. Risk and social value. The risks of a socially desirable activity had to be assessed individually by balancing the social benefit of the activity against the degree of risk. Compensation Act 2006, section 1 was engaged but added nothing to the common law. The deteriorating weather did not require the group to be removed from the moor, and permitting remote supervision was not negligent in the circumstances.
4. The failure of two assistants to reach Watern Tor was a navigational error, but did not demonstrate lack of competence. It was nevertheless likely that, had the checkpoint been manned, the independent scoutmaster would not have intervened.
5. The advice to avoid the stream and proceed around its head towards Hangingstone Hill was appropriate. The evidence did not establish that the group was incapable of continuing or that the only safe course was to wait for adult assistance.
6. Accordingly, breach of duty was not established and the claim was dismissed. Alternatively, even if there had been a breach, the scoutmaster’s ill-advised intervention would have been an independent supervening cause. It was not reasonably foreseeable that an adult would give bad advice and supervise a dangerous crossing, and it would not have been fair to impose liability for its consequences.

First-instance decision. No appellate history is stated in the judgment.