WOODBRIDGE SCHOOL v SIMON PAUL CHITTOCK [2002] EWCA Civ 915

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
The Honourable Mr Justice Leveson
[2002] EWCA Civ 915Case No Case No: B3/2001/1785/AVenue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
WOODBRIDGE SCHOOLAppellantSIMON PAUL CHITTOCKRespondent
Before
Lord Justice AuldLord Justice CarnwathSir Swinton ThomasMr Edward Faulks QC & Mr Edward Bishop (instructed by WeightmanVizards) for the AppellantMr David Wilby QC & Mr David de Jehan (instructed by Marrons) for the RespondentDate 26 June 2002

Lord Justice Auld :

On

[1]5 th April 1996 the Respondent, Simon Paul Chittock, then aged 17 ½, suffered a serious injury in a skiing accident in the Austrian ski resort of Kuhtai. He was there as one three senior, that is, sixth form, pupils on a week’s school trip organised by the Appellant, Woodbridge School, for over 40 junior pupils. This is the School’s appeal from the judgment of Leveson J. of 25 th July 2001 holding it liable in negligence for Simon’s injury, subject to a 50% apportionment for his contributory negligence. The School’s appeal is against the holding of liability in negligence. If that challenge fails it will also apply for permission to appeal against the apportionment in respect of contributory negligence. Simon seeks permission by way of a Respondent’s Notice to appeal the Judge’s order that the School should pay only two thirds of his costs, maintaining that he should have all his costs. The facts[2]Kuhtai is a high Alpine resort in the Austrian Tyrol in open mountain terrain above the tree line. It has ski slopes suitable for skiers of the four recognised levels of ability, namely: green for novices; blue for beginners skiers; red for lower intermediate skiers; and black for the intermediate/advanced category.[3]The other two senior pupils with Simon on the trip were Edward Longhurst-Pierce and Tom Davies, both also aged 17. Simon and Edward were relatively experienced skiers for their age. Simon had been on three previous school skiing trips, one of them as a senior, during which he had received daily tuition. Edward had been on four previous school trips. It is common ground that, though they were rated as lower intermediate skiers for whom the slopes up to red were suitable, the black slopes at Kuthai were also well within their capabilities. Tom was not so experienced. He had skied on family holidays when much younger and this was his first school trip. Though not a novice, he was rated as a beginner skier. The junior pupils, for whom the trip had been specifically organised, were aged between 12 and 14 and had no or much less experience. The trip was organised and supervised by Mr. Andrew Jackson, the teacher in charge with the assistance of four other members of the School’s staff.[4]The School permitted the three senior boys to join the trip as a favour to them. It did so on terms agreed with their parents that, whilst they were to be under the overall control of Mr. Jackson and his colleagues as to their conduct on the trip, they were to be permitted to ski unsupervised on all the slopes at Kuhtai. Mr. Jackson, who of course knew them as pupils and, from previous school skiing trips, as skiers, set out those terms in a letter to their parents in which he proposed that they should “free-ski together”, but report to staff at lunchtime and at the end of the day. He added:
“Although they are older and will be treated as if they are on an independent skiing holiday, they are still representatives of the school and we expect them to remember this”
. The letter concluded with a draft parental declaration in the following terms, which each of the boys’ parents signed and returned:
“We are happy that our son … should be allowed to ski with [the names of the other two senior boys] whilst unsupervised by staff during the Junior Ski Trip. He has our permission to go out unsupervised in the evening and to consume moderate amounts of alcoholic drink.”
[5]The trip began on 30 th March and ended on 6 th April 1996. Over the first five days the three seniors skied together on their own and, when observed by Mr. Jackson and his colleagues, appeared to be skiing competently and sensibly. And they reported back to the rest of the party each day as required. The Judge so found in the following passage from his judgment in which he referred to the evidence of various of the School’s staff on the trip:
“23 …. from the outset Mr. Jackson said that when the boys were given their lift passes and piste maps (already having the Skiers Code) he told them to ‘take it easy’ and not to be stupid. … I have no doubt that they were given such an instruction and, generally, that is exactly what they did. In particular, all three were conscious that Tom was the weakest skier and it was common ground that when Tom was skiing with them, they were considerate to his lesser skill and so paced themselves to his ability rather than their own. That is confirmed by the evidence of a number of teachers. … Thus, they were seen to ski sensibly, commensurate with Tom’s ability (Mr. Jackson), in such a way that did not give way to concern that they were doing anything which was too difficult for them (Sherrell Chuter), always skiing properly (Richard Fernley). James Hillman (who had no prior knowledge of the boys) said that he saw the boys during the week, but not often, and that nothing he saw left him to consider that any of them were not competent to ski all the runs in Kuhtai.”
[6]However, there were a number of incidents not concerned with the competence or manner of the three boys’ skiing that gave Mr. Jackson cause for concern. The first occurred on the night of the second day of the trip, when he found them smoking in their bedroom with some of the junior girls. He punished the boys by removing their ski passes for two hours on the following day. As the Judge observed in paragraph 25 of his judgment, that did not “raise any concern about their skiing ability or their responsibility on the piste”. However, he, the Judge, regarded it as raising a slight question mark as to their maturity and the extent to which they could be trusted and, therefore, of relevance to Mr. Jackson’s reaction to later incidents.[7]The second incident, also early in the holiday, was Mr. Jackson’s sight of the three boys skiing off piste. That was a matter of great seriousness, not only because of the potential of physical danger to them and loss of School insurance cover that it entailed, but also because they and all on the trip knew or should have known that skiing off-piste was not permitted. However, when he taxed them with it, they told him that they had lost their way because of bad weather - a “white out” - higher up the mountain. He accepted their explanation. However, he made plain to them that they should not ski off-piste, pointing out that it was not covered by the School’s insurance. Although the Judge appears, in his judgment, to have been somewhat sceptical about the boys’ explanation, he appears to have accepted that Mr. Jackson was satisfied as to its truth and as to their lack of blameworthiness on that occasion.[8]The third incident, which was towards the end of the week and at the end of the day’s skiing, was also one in which Simon and Edward were seen to be skiing off-piste, but this time they did so deliberately. Instead of joining the rest of the party at the bottom of the slopes for the coach journey back to the hotel, they decided to make their own way back – a distance of just over a kilometre - by skiing off-piste. Their failure to join the others on the coach and the fact that their route was clearly visible to those in the coach as it made its way back to the hotel meant that they cannot have intended to hide what they were doing. The Judge, who viewed a video-tape of their route, described the terrain in the following passage in his judgment:
“29… on the face it does not appear necessarily over-challenging but it is clear that there is a stream and there are outcrops of rocks all of which have to be negotiated. Further, in the original description of the resort sent to the parents describing the1996 junior ski trip, the point is made that it was, indeed, possible to ski back to the hotel at the end of the day. That is not to say that it was a task to undertake by the boys on their own and, given the earlier incident, if they were behaving responsibly, one would not have expected them to do it all.”
[9]The boys maintained in evidence that Mr. Jackson had given them permission to do what they did. He denied that he had done so and said that when he and they met back at the hotel, he reprimanded them severely. He said that he had threatened to confiscate their ski passes, but had decided not to do so because he was trying to treat them as adults and they assured him that they would not ski off-piste again. The Judge rejected the boys’ account and accepted that of Mr. Jackson, referring to his agreement with the way in which Mr. David Wilby, QC, counsel for Simon, put it in cross-examination, that the incident had been “sheer stupidity and very dangerous” and that “the boys could not be trusted”. As to the latter, the following extracts from the transcript of his evidence shows that his agreement was more qualified than the Judge’s reference suggests:
“Q. It turned out that you could not trust them. That is what it amounts to? A. Perhaps it did, yes. Q. Is it your evidence … that despite that you were prepared to let them go on the mountain unaccompanied the following day? A. Yes “Q. Did it not cause you to question their competence and ability? A. Not question their competence and ability, but maybe their judgment at the time of them going off-piste. “Q. Somebody who was stupid enough, first to disregard your specific instruction not to go off-piste, and, second, to do it in those circumstances, could not be trusted to behave properly in other circumstances on the slope? A. I am not sure I agree with you. I think in a situation like that with teenagers, if you were to take the attitude that once they had put their foot wrong once they were then to be wholly untrustworthy for however long it was, I think you would be in a very difficult situation. If they apologise and assure you that they are not going to do the same thing again, you have to give them the opportunity to have learned by their mistakes.”
[10]It is to be noted that on neither of the two off-piste occasions was it suggested that the boys, though skiing off-piste, were skiing incompetently or otherwise irresponsibly. And their skiing on-piste in the intervening days, as I have noted, had been seen by Mr. Jackson and his fellow teachers to be competent and responsible.[11]The accident the next day had nothing to do with skiing off-piste or with deliberately irresponsible behaviour of that sort. It had to do with carelessness. It occurred when Simon and Edward were skiing on a red piste well within their capabilities, and when piste and weather conditions were good. They were approaching a ridge in the run that, until they crested it, blocked their vision of the continuation of the downward slope below it. Once over the ridge they could see that some 50 metres ahead the width of the piste narrowed to about four to five metres and there was a fairly sharp turn to the right. Just before that turn there were some stationary or slow-moving skiers. Edward overtook them on their left on the outside of the bend and safely negotiated it. Simon, following behind, tried to do the same, but accidentally lost control and skied off the left edge of the piste, causing him to fall down a slope and fracture his spine. As a result he is permanently paralysed from the waist down.[12]There was no evidence before the Judge that Simon or Edward was skiing irresponsibly or recklessly or at obviously excessive speed before the accident. The only evidence as to how Simon was skiing as he approached the bend and attempted the manoeuvre that I have described came from him and, less directly, from Edward. It was that they were skiing fairly fast or slightly too fast and that, as Simon attempted the manoeuvre, he lost control and skied off the piste. His own explanation of the accident in evidence was that he had probably been going too fast. As Mr. Wilby, in his opening to the Judge, put it:
“He misjudged the manoeuvre, either because he did not have sufficient space to pass and/or he was going too quickly and/or he lacked the skill to undertake this particular manoeuvre.”
[13]Austrian investigators prepared an accident report that was unchallenged. In it they noted that on the approach to the turn in the piste there was a sign in English bearing the words “Slow Down”. They recorded Simon’s account to them in a clinic in Innsbruck two days later:
“… We came to a rightward curve and had to ski past a ski group of about 6 people. My friends passed them and I was unable to bring my skis under control. In the process I went over the edge of the piste and fell. I fell as the result of a skiing mistake. I am an average skier and exclude any fault by any other person”
. The investigators’ conclusion was that “presumably because he was travelling too fast”, he was “unable to control his skis and skied over the edge of the ski run”.[14]The Judge’s assessment, on the evidence before him, of the nature and extent of Simon’s carelessness giving rise to the accident was as follows:
“45. It was common ground … that this piste (which was a red run) was within their technical competence but it is clear that they paid no attention to the warnings available to them; they skied the run too fast doubtless (as Simon admitted in his statement) because the least able member of the trio, Tom, was not with them. Neither did they pay attention to the risks. First, had they studied the piste, they would have seen that it was partially closed. Second, they were aware that there were a group of beginners (not in fact from the school) on the slope skiing very slowly. Having passed this slow moving group once, Simon and Edward stopped and the group skied past them. Thus, they knew that they were likely to come across this slow moving and not very experienced group again. Third, … there was a sign – albeit not very large – on the piste just before the skiers had to move on to a narrow path broadly at right angles to the run which bore the words in English ‘SLOW DOWN’. Neither boy speaks of seeing the sign although, to be fair, Mr Jackson (who had skied the run earlier that morning) did not recollect it either: that it was there to be seen however, I have no difficulty in accepting.”
[15]The main thrust of Simon’s case, as put to the Judge in various ways, was that the basis on which he had been allowed to join the trip had been flawed and that the School should not have permitted him to ski unsupervised at any time. The Judge rejected that argument, but found against the School on a point not pleaded or initially argued on Simon’s behalf and on which, in consequence, there was little evidence. Indeed, it was contrary to his evidence that, on the occasion of the second off-piste incident, Mr. Jackson had given him and Edward permission to ski off-piste back to the hotel. The Judge held that Mr. Jackson’s disciplinary response to Simon’s unauthorised skiing off-piste had been negligent. He held that, after that incident, Mr. Jackson should have confiscated his ski pass, or should have arranged for him to ski under supervision on the following day and that his failure to take one of those steps was negligent. He held that if Mr. Jackson had taken either of those steps the accident would not have occurred and that his negligence was a cause of it. Although he considered the primary cause to be Simon’s carelessness, his apportionment of liability for contributory negligence was, as I have said, 50- 50.[16]It is an irony of the case that, had the Judge accepted Simon’s evidence that Mr. Jackson had given him permission to ski off-piste on the second occasion, it would have been impossible to suggest any link between such grant of permission and the accident on-piste that occurred the following day to support a case in negligence or causation. The link, such as it is, turns on his finding that Mr. Jackson did not respond sufficiently severely to their irresponsible behaviour in defying his instruction not to ski off piste so as to ensure that, on the following day, either they did not ski at all or only skied under supervision.[17]Mr. Edward Faulks, QC, on behalf of Simon, does not challenge the Judge’s findings of primary fact, but he does challenge his findings of secondary fact or inferences giving rise to his holding the School liable in negligence. Duty and standard of care[18]The principles of law as they apply to the circumstances of this case are reasonably clear: i) Mr. Jackson and his fellow teachers on the skiing trip owed a duty to Simon to show the same care in relation to him as would have been exercised by a reasonably careful parent credited with experience of skiing and its hazards and of running school ski trips, but also taking into account Simon’s known level of skiing competence and experience, the nature and conditions of the particular resort and the teachers’ responsibilities for the school group as a whole. ii) This could, in appropriate circumstances, include a duty to take positive steps by way of supervision or otherwise to protect Simon from doing himself harm. See e.g. Van Oppen v. Bedford Trustees [1990] 1 WLR 235, CA, per Croom Johnson LJ at 266D-F; Hippolyte v. London Borough of Bexley [1995] PIQR P309, CA, per Steyn LJ at P314; and Gower v. London Borough of Bromley [1999] ELR 356, CA, per Auld LJ at 359G-H. iii) It was not a duty to ensure his safety against injury from skiing mishaps such as those that might result from his own misjudgement or inadvertence when skiing unsupervised on-piste. It was a duty to take such steps as in all the circumstances were reasonable to see that he skied safely and otherwise behaved in a responsible manner. See e.g. O’Shea v. Royal Borough of Kingston-upon-Thames. per Neill LJ at P213. iv) Where there are a number of options for the teacher as to the manner in which he might discharge that duty, he is not negligent if he chooses one which, exercising the Bolam test (1957] 1 WLR 582), would be within a reasonable range of options for a reasonable teacher exercising that duty of care in the circumstances. See e.g. X & Ors. (Minors) v. Bedfordshire County Council [1995] 2 AC 633 , HL, per Lord Browne Wilkinson 766E-G; and Gower , at 360H-361A v) The duty of care of organisers of school skiing trips should, as Mr. Wilby submitted, be considered in the context of any available appropriate guidance for such activity. See e.g. Smolden v. Whitworth & Nolan PIQR P133, CA; and O’Shea v. Royal Borough of Kingston upon Thames [1995] PIQR P208. Mr. Wilby has taken us through the documents of guidance available here, including the Skiers Code, but they do not seem to me to add materially to the other evidence and reasoning of the Judge, namely that teachers in loco parentis should provide a level of supervision appropriate to the age, skiing experience, ability, and behaviour of the pupils in their charge. vi) The standard of care should reflect the particular circumstances in which Simon went on the trip. These included the understanding with his parents that he should be allowed to ski unsupervised, but also an implicit assumption by the School of responsibility for general oversight of his skiing and other activities at the resort, backed, where necessary, by appropriate discipline to safeguard him and others from reasonably foreseeable harm. See Smoldon v. Whitworth & Nolan , per Lord Bingham CJ, at P139.[19]The Judge, in the following passage in his judgment, broadly adopted the approach indicated in those propositions:
“22. … I entirely accept that the school both generally and in the context of this trip had a duty to take reasonable care for the safety of its pupils and, furthermore, that the staff on the trip were expected to show such care towards Simon and Edward as would be exercised by a reasonably careful parent: that is precisely the role that the school were adopting notwithstanding that the skiing was not to be supervised. … I readily accept that skiing is a challenging physical activity carried out in a potentially dangerous environment and contains within it inherent hazards and the risk of injury (even in the best ordered of worlds). Although for the reasons I have already set out, I do not believe that these boys needed minute by minute supervision or monitoring, an appropriate reaction in the event of misbehaviour was, in my view, necessarily involved in fulfilling the duty which the school had accepted. That, in my judgment, is precisely what the parents expected and explains why each were prepared to allow their sons to go on this holiday whereas they would not have been prepared to allow them to travel entirely independently on a skiing holiday.”
Breach of duty[20]The age and skiing experience and ability of Simon and Edward were such as to justify Mr. Jackson’s adherence to the understanding reached with their parents that, absent some supervening circumstance indicating a need for supervision, they should ski unsupervised. As I have said, on the evidence, all the pistes at the resort were well within their capabilities and they were observed throughout the week until the accident to be skiing on them in a competent, sensible and safe way. The issue of negligence turns on the Judge’s finding that Mr. Jackson breached his duty of care to Simon in the manner of his disciplinary response to the second off-piste incident. The question for the Judge was whether that incident, the only one directly relevant to Simon’s skiing in which Mr. Jackson considered that he had acted irresponsibly, was of such a nature, taking into account all that had gone before, that, at the very least, Simon’s skiing should thereafter be supervised.[21]The Judge impliedly accepted in paragraph 43 of his judgment (see below) that there was a range of reasonable responses that a teacher in Mr. Jackson’s position could have adopted to that incident, acting as a reasonably careful parent in the sense I have described. The proper question, therefore, was not whether a more severe response than a reprimand would have been appropriate, but whether a reprimand was, in the circumstances and having regard to the School’s duty of care, within the reasonable range of options for Mr Jackson to adopt. Thus, in order to succeed in establishing a breach of that duty, Simon had to establish that Mr. Jackson’s decision was one that no reasonable teacher in Mr. Jackson’s position could have reached.[22]The Judge ruled that the reprimand was, in the circumstances, insufficient. This is how he put it: “43. Having regard to all the evidence ….. I do not accept, as Mr. Faulks submitted, that merely to tell the boys off was within the reasonable range of decisions that a teacher acting in the place of a parent should have reached. After all this was a deliberate breach of instruction and, as Mr. Jackson also accepted, demonstrated the boys could not be trusted. Mr. Exall [the claimant’s expert witness] said that if he had caught his students skiing off the piste when they should not have been, he would not have allowed them to ski on their own: either they would have skied with him or with the slowest beginners both better to appreciate the risks and to learn judgment and also by way of punishment. Another reason for taking significant action was also acknowledged by Mr. Jackson. He agreed that the boys would have perceived the trip as an adventure and that having achieved it, their level of confidence, if not competence, would increase. The upshot of that is that they would be likely to assume that they could do rather more than their technical skills justified. Although I recognise the balance which Mr. Jackson was trying to achieve, I have no doubt that in failing to impose substantial sanctions for this deliberate breach of his instructions, he failed in the exercise of the duty of care which he had undertaken. Furthermore, I accept that Mr. Exall’s evidence as to his reaction represents an appropriate response which, had Mr. Jackson put his mind to it, he would, on the balance of probabilities have adopted. Thus, the next day the boys would not have been skiing on their own down the piste and, in the circumstances, the allegation in … the Statement of Claim (failed … to supervise [Simon] whilst skiing) is made out. “[23]Mr. Faulks attacked the Judge’s decision on two overlapping bases, first, that, in finding Mr. Jackson in breach of duty, he failed correctly to apply the reasonable teacher/parent test and/or, second, that his finding of such breach was against the weight of the evidence. Mr. Wilby maintained that, in the passages from the judgment that we have set out, the Judge applied the appropriate duty and standard of care and correctly found Mr. Jackson to have breached it, given his acceptance that the second off-piste incident had been “sheer stupidity and very dangerous” and his agreement, albeit tentative and qualified, that the boys “could not be trusted”.[24]The main thrust of Mr. Faulks’ challenge was as to the Judge’s treatment of the evidence. Mr. Wilby rejected his criticisms as an impermissible attempt to re-open by way of appeal the Judge’s assessment of the relative weight of different evidence and his findings of fact, including, in particular, his conclusion that Mr. Jackson had formed the view that the boys had behaved irresponsibly and could not be trusted. Mr. Wilby maintained that such a conclusion was wholly justified on the evidence. He also drew attention to the documentary evidence before the Judge of standards of safe practice for those involved in the organisation of school skiing trips of which, he said, the Judge should and could have made more use in support of his decision. The main point that he took from all that literature was that, once Mr. Jackson was of the view that Simon, who was in his care, could not be trusted, he should not have been allowed to ski unsupervised.[25]Mr. Faulks made the following particular points about the Judge’s treatment of the evidence: i) The Judge gave insufficient weight to Simon’s age and skiing experience. ii) The Judge gave insufficient weight to Mr. Jackson’s account in his witness statement and in oral evidence of what he did, namely that he severely reprimanded Simon and Edward for skiing back to the hotel and threatened to take away their ski passes, extracting from them an assurance that they would not do so again. He criticised the Judge for categorising this response in the above passage “as merely [telling] the boys off”. On the same point, he submitted that the Judge gave too much weight to Mr. Jackson’s answer in cross-examination that he did not recall why he had not confiscated their ski- passes as a justification for concluding, in the passage I have quoted from paragraph 43 of judgment, that he had not properly put his mind how to respond this incident. iii) The Judge gave insufficient weight to the understanding between parents and the School that Simon and the other two senior boys were to be allowed to ski unsupervised, though allowing for appropriate intervention in the event of any misbehaviour. Given such understanding, Mr. Jackson’s decision, based (as he said) partly upon a desire to treat them as “adults”, accorded with it. iv) The Judge gave insufficient weight to his finding of fact, in the passage we have quoted from paragraph 23 of his judgment, that Simon had throughout skied sensibly while on the piste and that Mr Jackson and the other members of the staff had seen him doing so. v) The Judge, in the passage we have quoted from paragraph 43 of his judgment, wrongly relied on evidence from Mr. Exall, the claimant’s skiing expert, as to what he, Mr. Exall, would have done, partly by way of punishment, in response to the second off-piste excursion, when the test was what a reasonable teacher or parent might have done. vi) The Judge wrongly relied on Mr. Jackson’s qualified acceptance in cross-examination that Simon’s level of confidence might have increased after the second off-piste excursion so as to necessitate the imposition of a substantial sanction. On the contrary, Mr. Faulks pointed out, Edward’s evidence (to which the Judge did not refer) was that, far from skiing over-confidently on the day after that excursion, he and Simon had skied less ambitiously and energetically than usual. vii) The Judge, given his own assessment of the route back to the hotel as not over-challenging and the resort’s advertisement of it as a route back to the hotel, as set out above in the passage from paragraph 29 of his judgment, wrongly relied on evidence from Mr. Jackson and Mr. Exall that the route was very dangerous.[26]Mr Wilby replied in detail to each of these criticisms, making much the same point in each case, namely that the Judge’s treatment of the evidence and the inferences that he drew from his findings of primary fact were balanced and reasonable. His central theme was that Simon and Edward had displayed such irresponsibility, in the main, in the second off-piste incident, that Mr. Jackson should have regarded it as foreseeable that it would manifest itself again in the manner of their skiing if they allowed to ski unsupervised on-piste the following day. In short, his complaint was that Mr. Jackson did not consider and/or decide on supervised skiing on-piste as a minimum response to their unauthorised off-piste excursion.[27]In my view, the Judge’s finding that Mr. Jackson’s decision was not within a range of reasonable responses for a teacher in his position, acting as a reasonably careful parent in the sense I have described, was wrong in that it “exceeded the generous ambit within which a reasonable disagreement is possible”; see G. v.G. (Minors: Custody Appeal) [1985] 1 WLR 647 , HL, per Lord Fraser of Tullybelton at 652. It is to be remembered that the second off-piste incident was the only one of the two in respect of which Mr. Jackson could have been critical of the boys’ general level of responsibility as skiers; and he had accepted their explanation as to the first incident. However, outraged he may have been at their conduct in skiing back to the hotel, his reaction in giving them a severe reprimand and accepting their assurances not to ski off-piste again, was not, in my view, outside the range of reasonable responses in the circumstances. It was the first infraction by the boys relevant to any of their conduct as skiers in the best part of a week’s otherwise responsible behaviour and sensible and competent skiing on the various pistes, including a number of black ones, at the resort. And, as I have said, it was not even a venture that they could have intended or managed to hide from Mr. Jackson, as he would have inevitably noticed their absence, as he did, from the return bus to the hotel. Those and the other points that Mr. Faulks made about the Judge’s treatment of the evidence are, in my view, well made. If their behaviour had been such as to suggest a risk that they would not continue to ski responsibly on-piste, then it might be that Mr Jackson would have failed in his duty by not stopping them from skiing or not insisting on supervision, but that is not this case.[28]I add that, whilst Mr. Jackson could have insisted on the two boys skiing under supervision thereafter, it does not seem to me to have been an obvious sanction to impose in the circumstances of the case. It is common ground that they needed no supervision when skiing on piste. What was required was an assurance that they would stay on piste, an assurance that Mr. Jackson sought and they gave. Mr. Jackson was, in my view, entitled to exact and accept that assurance rather than removing their ski-passes or subjecting them to unnecessary supervision when skiing on-piste. The decision, in this case essentially a matter of discipline and punishment, was not a matter on which the evidence of experts like Mr. Exall could sensibly be determinative. It was a matter of judgment for the teacher in charge – Mr. Jackson – with a reasonable level of skiing experience and of the exercise of his duty of care on school skiing trips, knowing the boys and their skiing ability and the circumstances. As to supervision, to the extent that Mr Jackson might have considered it, it could only sensibly have been to prevent any more off-piste skiing and/or for punishment, which had nothing to do with the accident that was to occur on-piste the following day. Causation[29]If I am right in my ruling that there was no breach of duty, the issue of causation does not arise. However, it is hard to separate the two issues in the particular circumstances of this case and I should say something of the Judge’s approach under this head. He found that Mr. Jackson’s failure to respond more severely than he did to the second off-piste excursion, say by confiscation or the boys’ ski-passes or, as a minimum, by requiring them thereafter to ski under supervision, caused the accident. His conclusion was that, if Mr. Jackson had adopted either of those courses, it would, on a balance of probabilities, have prevented the accident. Clearly, barring them from skiing altogether would, as a matter of fact, have done so. It is highly questionable whether he was entitled to find on a balance of probabilities that supervision, whatever form it took over this fast moving and intrinsically hazardous activity in frequently changing terrain and piste conditions, would have had the same result. The Judge’s reasoning was that the second off-piste incident and the weakness of Mr. Jackson’s response to it left them over-confident and thus liable to ski more carelessly on the following day than they might otherwise have done. This is how he put it:
“51. … Having decided that the failure to impose substantial sanctions for deliberately skiing off-piste represented a breach of the duty care owed by the school to the boys, it is necessary to analyse whether, on the balance of probabilities, that failure caused the accident. In one sense, of course, it did not: the accident was primarily caused because Simon was skiing too fast down the piste and not paying sufficient attention to what was going on around him. That analysis, however, ignores the fact that the reason I have found there to be a breach of duty is that the school should have reached the conclusion that Simon (and, indeed Edward) had not shown maturity or skied responsibly and thus were not to be trusted on the piste on their own. Thus, if Mr Jackson had removed their skiing passes, or insisted they remained with the junior group on the day following the incident, the accident would not have happened. Even if a teacher had been prepared to ski with them that particular piste I accept the evidence of Mr Exall that on the balance of probability, again, the accident would not have happened not only because the presence of the teacher would have caused the boys to exercise rather more restraint but also because if they had not, the teacher would have intervened. Mr. Faulks argues that the accident did not occur as a result of skiing off-piste, reckless behaviour, or doing something forbidden and that an accident of this sort is not sufficiently connected with any departure from a reasonable standard of care or is too remote a consequence. I do not agree. If the reason the boys should have been penalised was because of some misbehaviour unconnected with skiing, the accident would, indeed, be too remote. As I have said, however, the school are in breach of their duty of care because they failed to react appropriately to a demonstration of irresponsibility while skiing. Thus, the boys had continued to behave irresponsibly notwithstanding the reprimand following the first off-piste incident and thus, it could be anticipated that they might do so again. Skiing irresponsibly was, indeed, the cause of the accident. In the circumstances, I find the causative link established.”
[30]I make two preliminary observations about the Judge’s treatment of the matter in this passage. First, he appears to have considered the first off-piece incident as irresponsible behaviour, contrary to the evidence and his own earlier acceptance of Mr. Jackson’s assessment of it. Second, he appears to have equated Simon’s carelessness – even serious carelessness as he appears to have regarded it in paragraph 45 of his judgment - giving rise to the accident, not only as irresponsibility, but also as a continuation of irresponsibility of quite a different kind.[31]Mr. Faulks submitted first that, if negligence is established, the accident was too remote for the School to be held responsible for it and the consequent injury, citing the well- known reasoning of Lord Wright in Liesbosch Dredger v. S.S. Edison (1933) AC 49, HL, at 460 and Lord Hoffmann in Banque Bruxelles SA v. Eagle Star [1997] AC 1191, HL, at 213. His central point was that the Judge’s finding of negligence was based on Mr. Jackson’s failure to impose disciplinary sanctions for disobedience as distinct from carelessness, whereas the accident occurred, not because of Simon’s disobedience, but because of his carelessness. As he put it, the accident did not occur while Simon was skiing off-piste. Rather it occurred when he was skiing on-piste on a run well within his capability. The question for Mr. Jackson, in the exercise of his duty of care to Simon as distinct from punishment of him, when responding to the second off-piste excursion had been whether to limit where he should ski, not how he should ski.[32]Mr. Faulks also made the point that this or an accident of this nature could have occurred at any time during the week, before or after the second off-piste excursion, and whatever Mr. Jackson’s response to the latter short of prohibiting Simon from all skiing. By way of example, he said that if Mr. Jackson had confiscated his ski-pass for the morning of the day of the accident, it could equally have happened on the afternoon or on the following day. Nor, he said, was there any evidence that Mr. Jackson’s response to the second off-piste excursion caused Simon and Edward to become over-confident or to ski irresponsibly, thus, contributing to the accident. As he said, and as I have already noted, the only evidence, which was that of Edward, was quite to the contrary.[33]Mr. Wilby’s response was that causation in tort is a matter of reasonable foreseeability rather than remoteness, the latter being a contractual concept. Looked at in that way, he maintained, the salient features of the second off-piste incident were the boys’ irresponsible conduct and Mr. Jackson’s failure to respond appropriately to it, just the features that led to the accident and which an appropriate response could have avoided. Mr. Jackson could not trust the boys to ski responsibly and thus should either have excluded them from the slopes by removing their ski-passes or by requiring them to ski under close supervision that “would preclude the opportunity for such irresponsible and dangerous conduct”. Mr. Wilby’s use of the word “such” in that formulation is telling since it is a reference to the boys’ deliberately disobedient conduct in skiing off-piste, not to the manner in which they skiied on-piste. His corresponding submission, centred on foreseeability, suffers from the same lack of connection. He said that “it was clearly foreseeable that if … [Simon] and his friend were unable to assess the risk on the mountain and exercise appropriate judgment when skiing as demonstrated by the second off piste incident, then if allowed to ski the next day the same faults would reasonably be expected to lead to an accident” [my emphasis].[34]Mr. Faulks’ second submission on causation was that the Judge’s finding that Mr. Jackson’s negligence in fact caused the accident was unsustainable. He referred to the Judge’s decision that Mr. Jackson should either have confiscated Simon’s ski-pass or, as a minimum level of sanction, instructed him to ski under supervision and to his reliance on Mr. Exall’s evidence that, on balance, the accident would not have occurred if he had been skiing under supervision. His criticism was that the Judge failed to give sufficient weight to Mr. Exall’s evidence that supervision of a skier cannot preclude him from making errors of judgement such as this, and that, in any event, the standard of supervision was not what an expert like Mr. Exall might be able to achieve, but that which a parent or teacher might realistically be able to achieve.[35]Mr. Wilby’s answer to this criticism was to refer to the Judge’s reasoning in paragraph 51 of the Judgment, tying the known irresponsibility of the boys in skiing off-piste and Mr. Jackson’s failure to respond to it by requiring them to ski under supervision to his conclusion that, if there had been such requirement, the boys would not have been “skiing on their own down the piste” and “the accident would not have happened”. Mr. Wilby’s own rider to that reasoning was that, whilst supervision cannot prevent errors of judgment, it can prevent irresponsible skiing and would have had that effect in this case.[36]As I have said, it is difficult in the circumstances of this case to separate the issues of negligence and causation, since if Simon’s carelessness giving rise to the accident is not properly regarded as part of a continuum of his earlier irresponsibility to justify a finding of negligence, neither should it justify a finding of causation. But if, contrary to my view, Mr Jackson was negligent in failing to remove Simon’s skiing pass or to require him to submit to supervision when skiing on piste, I still do not consider that as a matter of common sense that failure could be said, on a balance of probabilities to have caused the accident. Mr. Faulks’ submissions are, in my view, correct.[37]First, as I have noted more than once, the accident did not result from Simon skiing off-piste or from any irresponsible conduct of that sort when skiing on-piste. There was no evidential basis – only supposition extracted from Mr. Jackson in cross-examination – that their second off-piste venture in fact encouraged them to ski irresponsibly or even carelessly on the following day. Whilst Simon’s accident resulted from his carelessness, it was a skier’s error on-piste, the sort, as Mr. Exall acknowledged, to which even highly experienced skiers can succumb on occasion. In my view, it was not one which, on the evidence here and as a matter of common sense, can be characterised as a continuation of irresponsibility, which is how the Judge, in paragraph 51 of his judgment appears to have regarded it.[38]Secondly, and perhaps more importantly, I cannot see on what basis the Judge felt able to make the great leap that he did in paragraph 51 of his judgment from a finding of general irresponsibility to a finding that, for want of a stricter sanction, it, in fact, caused the accident the following day. As Mr. Faulks submitted, and the evidence indicated, even if the boys had been supervised on that morning, it cannot sensibly be said that such supervision, or the simple presence of teachers nearby, would, on a balance of probabilities, have prevented the accident. The extent to which even the most expert supervision could have prevented an accident such as this, turning as it did on a conjunction of a narrowing and turning piste and its near blocking by slow-moving skiers in front, must be questionable. And, as the boys had exhibited no previous need for such supervision when skiing on piste, it is questionable whether Mr. Jackson and his colleagues would, in any event, have felt the need, if they had been able, given their other charges, to supervise these two boys so closely that they could intervene to prevent an accident because of, say, excess speed on a particular stretch of piste. In short, want of supervision on piste was not the problem, but even if it had been, it is unrealistic to say that the sort of supervision reasonably to be expected from teachers organising such ski trips could, as Mr. Wilby submitted, “ensure”, no such accident, or “prevent” it. Contributory negligence –apportionment[39]If I am correct in my view that the School’s appeal should be allowed, the correctness of the Judge’s 50-50 apportionment of contributory negligence does not arise for decision. Although neither counsel spent much time on this issue in argument, it may be helpful for me to set out shortly the basis of the School’s complaint about the apportionment and my view about it. The complaint was that, given the Judge’s finding that the primary cause of the accident was Simon’s own carelessness, he should have assessed his responsibility at greater than 50%. As Mr. Wilby submitted, this Court should rarely interfere with a trial judge’s apportionment of contributory negligence and I would have felt no justification in doing so here. Whilst the Judge rightly took the view that the primary cause of the accident itself was Simon’s carelessness, his apportionment went essentially to the balance of fault for his exposure, for want of supervision by the School, to the risk of injury from his own carelessness or, as the Judge characterised it, his “irresponsibility”. On that reasoning, if upheld, the Judge’s award would be unassailable on appeal. Accordingly, if the issue had arisen for decision, I would have refused the School permission to appeal. Simon’s application for permission to appeal as to costs[40]If I am correct in my view that the School’s appeal should be allowed, the question of the correctness of the Judge’s order that Simon should only recover two thirds of his costs also disappears. However, in deference to counsel’s argument on the point, I set out briefly the competing contentions and how I would have ruled on them had it been necessary to do so. Mr. Wilby maintained that the Judge’s failure to award Simon all his costs, was wrong and an improper exercise of discretion under CPR, Part 44.3. He pointed out that it was a trial of one issue, namely as to the liability of the School, albeit that it involved primary liability and contributory negligence. In that respect, he argued, it was no different from other litigation in which there may be different causes of action and separate issues for decision, some going one way and some another, but resulting in the end in a single judgment one way.[41]Part 44. 3(2) and (4) of the CPR, which should be considered with the overriding objective in Part 1 of dealing with cases justly, provides:
“(2) If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order … (4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including (a) the conduct of the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention.”
Part 44.3(5) defines “conduct” as including:
“… (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.”
[42]In A.E.I Ltd. v. Phonographic Performance Ltd. [19999] 1 WLR 1507, CA, Lord Woolf referred to the effect of the new CPR on existing law and practice by referring to general principles expounded by Nourse LJ in In re Elgindata Ltd. (No. 2) [1992] 1 WLR 1204, CA, at 1214, namely:
“The principles are these. (i) Costs are in the discretion of the court. (ii) They should follow the event, except where it appears to the court that in the circumstances of the case some other order should be made. (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegation on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or part of his costs. (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs. Of these principles the first, second and fourth are expressly recognised or provided for by rules 2(4), 3(3) and 10 [of RSC, Ord 62] respectively. The third depends on well established practice. Moreover, the fourth implies that a successful party who neither improperly nor unreasonably raises issues or make allegations on which he fails ought not to be ordered to pay any art of the unsuccessful party’s costs.”
Lord Woolf then said, at 1523H: “The ‘well established practice’ on which Nourse LJ based his third principle is … less generally followed than it has been in the past and it is no longer necessary for a party to have acted unreasonably or improperly to be deprived of his costs of a particular issue on which he has failed.[43]Mr. Wilby’s submission, by reference to those principles, was that the Judge should have awarded Simon all his costs. He relied, in particular, on the fourth principle. He said that Simon had succeeded on his principal contention, namely that he should not have been allowed to ski whilst unsupervised and he had not, therefore, “caused a significant increase in the length or cost of the proceedings”. All the evidence he called was cogent and relevant to the issue upon which he succeeded. And he had not abandoned any part of his case or sought to litigate irrelevant issues.[44]Mr. Faulks submitted that the Judge’s order was within the reasonable ambit of his discretion. In particular, he said, the Judge was entitled, given the following circumstances to depart from the general rule. He had rejected the main thrust of Simon’s case, which was that the School had been negligent in allowing him, as part of the overall arrangement with the boys’ parents, to ski unsupervised on the trip. He had also rejected a number of other allegations, namely: that the School had failed properly to assess his skiing ability before making that arrangement; that he should not have been allowed to ski on a red run or on this red run in particular; that the School should have instructed him how to pass obstacles on a slope; and that the School had sacrificed safety for the sake of obtaining a free extra place on the trip for a teacher or a friend. The Judge had also rejected Simon’s evidence about his lack of skiing ability and knowledge of the Skiers’ Code. The issue on which the claim succeeded, the failure to impose a proper disciplinary sanction for the second off-piste incident, had not been directly pleaded or referred to in the written evidence of the experts. And it was dealt with only cursorily in oral evidence and in Mr Wilby’s written submissions to the Judge. In summary, said Mr. Faulks, most of the trial, in evidence and submissions, was spent dealing with points on which Simon lost. Even his evidence as to the second off-piste incident, which emerged as the key issue and on which ironically he won, was also rejected. The Judge, in making the order he did, Mr. Faulks submitted, clearly took into account all those matters, as he was entitled to do under CPR Part 44.3.[45]In my view, there is force in those submissions of Mr. Faulks. For the reasons he gives, and in the light of the current rules and principles as to costs that I have identified, I consider that this Court would have had no basis on which it could properly have interfered with the Judge’s exercise of discretion in making this costs order. Accordingly, I would have refused Simon permission to appeal the Judge’s order as to costs.[46]I would allow the School’s appeal.

Lord Justice Carnwath:

[47]For the reasons given by Auld LJ, I agree that the appeal should be allowed on the ground that the Judge wrongly held the School to be in breach of duty. I prefer to say nothing on the other issues, which do not now arise. Sir Swinton Thomas:[48]I also agree that the appeal should be allowed.

Order

Appeal allowed; order made in terms agreed. (Order does not form part of the approved judgment)

Cited in 3 later judgments