Wilkin-Shaw v Fuller & Anor [2013] EWCA Civ 410

“1. Introduction During a training exercise on Dartmoor on 4 March 2007 Charlotte Shaw, who was 14 years of age, fell into a fast flowing stream, was swept away by the strong current and drowned. She had been on the Moor with ten other children from the Independent Preparatory Secondary School, Edgehill College, (now called Kingsley School), Bideford, North Devon, training for the Ten Tors expedition which was to take place in May 2007. 2. The [appellant], Jennifer Wilkin Shaw is Charlotte Shaw's mother. She claims damages for personal injury, namely a chronic grief reaction and severe PTSD resulting from the death of her daughter, and as administratrix of her daughter's estate, damages for loss to the estate. She claims that the death of her daughter, and the consequential loss and injury both to her and to her daughter's estate, were caused by the negligence of the first and/or second defendants. 3. The first defendant [now first respondent] was at all material times employed as a teacher at Edgehill College, and was the Team Manager responsible for the training of the children for the Ten Tors Expedition.”

“6. The Factual Background There is a large measure of agreement as to the events leading up to the tragic death of Charlotte Shaw. The Ten Tors is an annual event that has been held since 1960 over the rugged terrain of Dartmoor, which is known for its tors, hills topped with out-crops of the bedrock. It is organised and supervised by the Ministry of Defence (MoD) and takes place over two days. It now involves some 400 teams, each consisting of six youngsters aged between 14 and 19. The teams cover a distance of 35, 45 or 55 miles depending upon their ages, checking in at check points located at ten tors. The teams must be self contained, and must complete the appropriate distance within 34 hours, camping on the moor overnight. 7. The event is not a competition, but a challenging adventure that demands careful planning, determination, endurance, skilful navigation and team work on the part of the participants. 8. During the event the duty of care for the participants falls on the MoD; but during training for the event it is the Team Manager who is responsible for the planning, organisation and supervision of the training of his or her team.”

“20. The 2007 Ten Tors The first defendant began training a team for the 2007 Ten Tors in September 2006. It involved weekly meetings of pupils who had indicated an interest in participating, and included sessions on map reading, navigation, first aid, kit, packing a rucksack, cooking and nutrition. The first defendant also arranged for individuals with relevant expertise to provide training for pupils. A paramedic conducted a first aid training session which covered the symptoms and treatments of hypothermia, a subject that was also addressed in other sessions in which the first defendant says that pupils were instructed as to what to do if someone displayed symptoms of hypothermia, namely to seek shelter, put up a tent and/or stay inside the tent to share body heat. He also arranged for an ex-Army officer to attend a session to talk to pupils about preparing themselves for the event, coping under pressure, and generally what to expect during the event. 21. The second element of the training was field based. Within the school grounds the pupils practised putting up tents and cooking. A practice walk was held on the Tarka trail on 24 September 2006. It was followed by a further practice walk on the coastal path on the weekend of 25/26 November 2006, which involved camping out overnight followed by a walk on the coastal path lasting approximately half a day during which there was training in navigation. On 28 January 2007 there was a full day training walk on Exmoor.”

“24. The first defendant was to be assisted by Alice Fuller and John Hickson. The plan was for two further members of staff, Kathryn Timms and Alistair Hawksford, to meet the group on the moor on the Sunday. The first defendant also arranged for Andrew Hodges, a school master and a highly experienced leader of outdoor activities who had been a member of the Dartmoor Rescue Group since 1994, to accompany the group on Saturday 3 March. Another member of staff, Philip Hanner, whose daughter Elizabeth was one of the group, was to be the minibus driver who would transport the group onto the moor. 25. On Thursday 1 March, the eleven pupils who were to participate, nine girls and two boys, brought their kit into school where it was checked by the first defendant and Kathryn Timms. 26. On Saturday 3 March the group, accompanied by the first defendant, Alice Fuller, John Hickson and Andrew Hodges, successfully completed the planned route, and camped for the night near Beardown. That evening the first defendant discussed arrangements for the following day with those assisting him; and it was decided that the group had shown sufficient ability to progress to remote supervision, which involved the group walking unaccompanied, and being met at check points. It was also decided to shorten the route for the following day by removing Sittaford and Steeperton Tors, so that the group was to walk from their camp site to Rough Tor, from Rough Tor to Watern Tor, from Watern Tor to Eastmill Tor and thence to Okehampton camp.”

“27. Sunday 4 March The group woke early at about 5.00 a.m. At about 6.20 a.m. the first defendant, Alice Fuller and John Hickson, set out for Rough Tor. The group left the campsite at about 6.30 a.m. and arrived at Rough Tor at the latest, per the first defendant's evidence at the inquest, at 8.23 a.m. The condition of the members of the group on arrival at Rough Tor is an issue to which I shall return. But a decision was then made that one of the group, Harriet Mitchell, would come off the moor. John Hickson was also suffering a recurrence of a knee problem; and it was decided that he too would leave the exercise. The first defendant, Alice Fuller and John Hickson therefore accompanied Harriet Mitchell to Postbridge where the first defendant's car had been left. 28. After a stop of about 20 – 30 minutes the remainder of the group set off for Watern Tor. The plan was that they would be met at Watern Tor by Kathryn Timms and Alistair Hawksford. The distance from Rough Tor to Watern Tor was approximately 7.5 miles, and was the longest leg of the route to be walked that day. Their estimated time of arrival at Watern Tor was 1.30 p.m. 29. The group successfully navigated the route to Watern Tor, arriving at about 12.30 p.m., much earlier than had been expected. On arrival Charlotte Kennedy, who had assumed the role of leader of the group, telephoned the first defendant to say that they had arrived but that Miss Timms was not there. He told Charlotte Kennedy that Miss Timms and Mr Hawksford were on their way, that the group should seek shelter and have something to eat while waiting for the arrival of Miss Timms. I shall return to the issue of why Miss Timms and Mr Hawksford were not at the tor to meet the group. 30. Following the call from Charlotte Kennedy, the first defendant telephoned Miss Timms to tell her that the group had arrived. He then attempted unsuccessfully to telephone Charlotte Kennedy and instead telephoned another member of the group, Harriet Pengelly, reiterating the advice that he had given to Charlotte Kennedy. 31. The next call received by the first defendant was from Charlotte Kennedy's telephone; but the speaker was a man called Trevor Wills, a scoutmaster, who with his companion Steven Lambell, had encountered the group at Watern Tor. 32. It will be necessary to consider the circumstances in which Mr Wills and Mr Lambell encountered the group and the content of Mr Wills' conversation with the first defendant in some detail. But it is common ground that he expressed the view that the group was starting to get cold, and that they should continue walking, advice, which after a further conversation with Harriet Pengelly, the first defendant accepted. 33. The direct route from Watern Tor to East Mill Tor led across the Walla Brook which at that point flowed in a northerly direction below and a short distance to the west of the tor, but from which it was not visible. 34. The group walked down to the Walla Brook. It was flowing very fast and was uncrossable. In attempting to test its depth one of the group, Jessica Berry, slipped, went in up to her shoulders and had to be pulled out by Charlotte Kennedy. 35. The group retreated to Watern Tor where Charlotte Kennedy again rang the first defendant saying that they could not cross the Walla Brook. There is an issue as to precisely what was said in that conversation, although it is common ground that the first defendant told Charlotte Kennedy that the group should go to Hangingstone hill, to the south west of Watern Tor where they could pick up a track that would take them to Okement hill. 36. Mr Wills then again became involved. He has since died, but a Civil Evidence Act notice was served in relation to the statement that he made to the police on 8 March 2007. I also have the benefit of a handwritten note apparently made by him on the evening of 4 March. In his witness statement he said that in his first encounter with the group he had warned them that the Walla Brook was swollen with rain water, and that he had tried to direct them to the point at which he and Mr Lambell had crossed at about 11.45 a.m. He said that when the group returned to Watern Tor, he told Mr Lambell that he would accompany them to the Walla Brook crossing point. In his note he said: ‘Steve and I discussed them crossing at the same point where we had come across which was a bit further upstream and suggested that they could try that crossing. Steve stayed at Watern to wait for our team, whilst I went with them to show them the place which we had crossed earlier’ 37. In his witness statement he gave the following account of what happened when they reached the crossing point: ‘There was a step across from the bank to the first part and I thought I had better be helpful and assist them in getting across. I would say it was now somewhere between quarter past and half past one. I considered that it was safe enough for the group to cross at this point and would have used the same crossing point had it been my own teams that I was supervising. I started to get them across the first brook on the island bit in between the two and then they were helping each other come down and get across on the island bit. We all got onto the island area between the two rivers. There was a good deal of water coming down off the moor but I did not think that conditions were noticeably worse than when Steve and I had crossed the brook earlier. I then stepped off the other side of the island and onto a flat area under the water. I stood in the river with my foot on this flat area and then instructed the others to stride across from where they were. From where I was standing it was just not quite possible to take their hands. They were just out of reach. I asked them to step across and as they stepped across I got hold of their arms and made sure that they got to the other side. I had one foot on the bank and one foot on the flat area under the water. This approach seemed to be working until it came to the penultimate girl who was more nervy about getting across. I told her to take off her rucksack to make it easier to get over. She did this and managed to get across with my help. At this time I think there was a girl standing on the bank to my left hand side and I was on the right and I said to the last girl could she throw the rucksack across. She sort of attempted to throw it and then it dropped. Then she instinctively went down to grab hold of the rucksack and it was being taken by the water at that time. As she grabbed the rucksack so it pulled, toppled her in, dragged her in. I made a grab to try and get her but it happened in seconds and I just couldn't get hold of her and I saw her disappearing down through the river’ 38. The girl whom he described as the penultimate girl was Yasmin Moore, the last girl was Charlotte Shaw who was swept away to her death.”

“100. The Movements of Kathryn Timms and Alistair Hawksford Miss Timms was not able to join the training for Saturday 3 March, and the arrangement was therefore that she and Mr Hawksford would go to check points on the morning of Sunday 4 March, one to Sittaford Tor and the other to Watern Tor. But following the decision to remove Sittaford Tor from the planned route both were to go to Watern Tor. 101. The plan was for them to drive to the car park for the Fernworthy reservoir, to walk through Fernworthy Forest, which is to the south east of Watern Tor, up Manga Hill and onto the ridge running north to Watern Tor. 102. They left the car park at about 10.00 a.m. on the Sunday morning allowing about 2½ hours to cover the six kilometres to Watern Tor. They climbed Manga Hill, but according to Ms Timms, the weather conditions were such that they could not stay on the ridge, and dropped down to lower ground in its lee. In so doing they missed Watern Tor passing it to the east. Ms Timms' evidence is that when they realised that they had gone wrong, she telephoned the first defendant, telling him that they were then fairly sure that they were heading to Hound Tor, which is approximately two kilometres due north of Watern Tor. They decided to carry on to Hound Tor so as to confirm that that was the case, and then to pick up the track leading south from Hound Tor to Wild Tor, which was a little over a kilometre north north west of Watern Tor, and thence to Watern Tor to meet up with the group. The direct route from Wild Tor to Watern Tor would have involved crossing the Walla Brook. 103. They arrived at Hound Tor at about 12 o'clock, 1½ hours before the group was expected at Watern Tor. Subject to their being able to cross the Walla Brook, they were still in plenty of time to get to Watern Tor before the group's expected time of arrival. But at about 12.30 p.m. the first defendant rang to say that the group had arrived at Watern Tor. By that time Miss Timms and Mr Hawksford were approximately two thirds of the way from Hound Tor to Wild Tor. 104. The first defendant then told them to return to their car, and they began to head back to the Fernworthy reservoir car park. Their route involved crossing the Walla Brook at a point approximately a mile downstream of the point at which the group attempted to cross. They experienced considerable difficulty in crossing. In her witness statement to the police dated 8 March Miss Timms described the brook as being "obviously in flood and fast flowing". She said that when looking for a safe place to cross, she checked the side of the bank with her foot, but lost her footing and fell in. She was fully submerged and was swept downstream until she was able to grab the bank and pull herself out. Their route then took them to the North Teign river, where again they experienced considerable difficulty in crossing, and eventually arrived back at the car park at the Fernworthy reservoir at between 3 and 3.30. 105. Ms Timms and Mr Hawksford unquestionably made a navigational error on route to Watern Tor, and it is pertinent to consider their failure against the success of the group in locating Watern Tor from a much greater distance. But the group had the advantage of being able to follow a line of range posts that in effect led them to Watern Tor. Mr Jones described the leg from Rough Tor to Watern Tor as "… a long one but not very difficult as the posts marking the edge of the military range gave what navigators call a 'handrail'. In contrast Ms Timms and Mr Hawksford had to ascend the ridge that would have led them to Watern Tor into the face of driving wind and rain from the south-west, conditions that forced them to retreat to lower ground, whereas the group had wind and rain at their back. Secondly it has to be borne in mind that, as is clear from the photographs before me, navigation on the moor is not easy. Tors are difficult to distinguish one from another particularly in adverse conditions, although there is force in the argument advanced on behalf of the claimant that they ought to have realised that they had gone too far for Watern Tor. 106. But I am not persuaded that in the prevailing conditions their navigational error demonstrates a lack of competence on their part.”

“109. Such a hypothetical reconstruction presents obvious difficulties, but I am satisfied that had the group been met as planned, it is unlikely that Mr Wills would have become involved, and in consequence the group would not have attempted to cross the Walla Brook at the point at which the accident occurred.”

“55. The Expert Evidence Before embarking upon an analysis of the experience and competence of the first defendant and his supporting team, and of the specific criticisms upon which the claimant now relies, it is convenient to consider the reliance that can be placed upon the expert evidence from John M Patchett, an Educational and Outdoor Consultant instructed on behalf of the claimant, and Doug Jones of D-J Adventure & Consulting on behalf of the defendants. Each was well qualified to assist the court, both in terms of experience and of formal qualifications. I had the benefit of hearing both cross-examined at some length, and came unhesitatingly to the conclusion that where they differed in their opinions, those advanced by Mr Jones were to be preferred. He gave his evidence in a moderate, well reasoned and demonstratively objective manner, being prepared to criticise the defendants where appropriate. In marked contrast I found Mr Patchett to be partisan, determined to criticise virtually every aspect of the first defendant's management of the training. It is to be noted that he was not instructed until November 2010 by which stage both the Particulars of Claim and Amended Particulars of Claim had been served; and there is force in the criticism advanced on behalf of the defendants that he would appear to have been instructed to trawl the evidence in search of 'failures and inadequacies' as he put it, that would support the claimant's case, rather than present his evidence "uninfluenced as to the form or content by the exigencies of litigation" (per Cresswell J in The Ikarian Reefer [1993] 2 Lloyd's Rep 68, at 81). Notwithstanding the preface at paragraph 1 of his report as to his duty as an expert, he did not appear to me fully to understand his obligation to give impartial and objective evidence.”

“62. . . . I am satisfied that the first defendant approached the exercise in a methodical and highly conscientious manner with evident attention to detail. I accept his evidence that in the classroom based training he focused on key areas including map reading, navigation, hazard awareness, first aid, kit, nutrition and food, weather conditions, communication and working as a team. His attention to detail in field based training was demonstrated by his evidence that, mindful of the difficulty of putting up tents when cold and exhausted, the training that he organised involved erecting tents on a number of occasions, including doing so whilst blindfolded, as he wanted it to become second nature, given the conditions that could be encountered and that the group would be likely to be very tired when making camp. It was also demonstrated by the requirement that at the training session before a practice walk, those involved had to bring their kit to school so that it could be checked. 63. I am reinforced in my conclusion as to the training prior to the weekend of 3/4 March by the evidence given by Mr Jones to the effect that the training met the minimum standard ‘being progressive and comprehensive in the necessary skills’.”

“67. Water crossings Mr Hodges said that in the course of 3 March he discussed the dangers presented by water with the group and gave guidance as to crossing rivers, first when looking down at Tavy Cleave from some distance, it being notorious as a fast rising river, and secondly at Sandy Ford later in the day. As to the former the teaching point, as he described it, was to outline the options when faced with a river that could not be safely crossed, either going upstream or following the river downstream to a crossing point. At Sandy Ford he told them that it is standard practice to loosen rucksack straps and face upstream if negotiating a river or stream that is shallow enough safely to cross. 68. The first defendant also gave a detailed account of the guidance given by Mr Hodges in the course of 3 March. He recalled that in relation to Tavy Cleave, Mr Hodges made the group aware of the effect that rain can have on rivers, explaining that Tavy Cleave had two feeders, so that even light rain could affect it. He recalled that after crossing Sandy Ford, the group came to a prison leat, which he described as an area where the ground has been dug out so as to make a channel for water, where Mr Hodges stopped the group and discussed where and how to cross the leat. He advised against jumping as that reduced their level of control, and also told them that if they needed to remove their back packs in order to cross, it was too dangerous and they should not be crossing. When discussing river and water crossings with the group Mr Hodges was regularly asking them questions to check their understanding. 69. In his witness statement Mr Hodges expressed the view that everything the first defendant was doing and telling the group on 3 March was the correct training for the Ten Tors, and that he would not himself have done anything differently. He was impressed by the group's performance, thought that the training was good, and had noted that the first defendant had been evaluating the performance of its members during the day. 70. I accept the evidence of both the first defendant and Mr Hodges, and am satisfied that the group was alerted to the risks to which water crossings gave rise, and was given appropriate guidance as to how to address such risks, notwithstanding that they were not identified in the formal risk assessment. 71. The first defendant impressed as a careful and cautious individual, well aware of his responsibilities to the group, and thorough in his preparation for training events. Again I am reinforced in my conclusion by the evidence of Mr Jones that ‘The training given on crossing rivers was correct and to the standards accepted by the national and local training schemes’ and that ‘the risk assessment was reasonable and up to the minimum standard expected of school’.”

“72. As to those assisting the first defendant on the weekend of 3/4 March, Miss Timms taught art at Edgehill College, and in 2006 became closely involved in the training sessions for the 2007 Ten Tors. Her particular expertise was in first aid, but she was brought up on a farm on the edge of Dartmoor and had considerable experience of the moor.”

“74. Alistair Hawksford was a young Australian working at the college during his gap year. He had some limited relevant experience, having been an army cadet whilst at school in Australia.”

“76. Subject to consideration of the failure on the part of Miss Timms and Mr Hawksford to meet the group at Watern Tor, I am satisfied that viewed as a whole the team assembled by the first defendant for 3/4 March had the appropriate experience to enable him safely to manage the training exercise with their assistance.”

“91. . . . about the route that they were to take to Watern Tor and from there on to East Mill Tor, that he discussed with them what to look out for, that as it was raining rivers might be swollen and that potential dangers should be avoided. That evidence was not challenged.”

“93. I note in particular that in her video interview on 8 March 2007, she said ‘…we all wanted to continue so we did.’”

“94. I am therefore satisfied that at Rough Tor the group was in the condition described by the first defendant, and the witnesses whose evidence supports his. His evidence was also supported to a substantial degree by the evidence given by Charlotte Kennedy at the inquest to the effect that there may have been some moaning by some members of the group, but that there were no requests to come off the moor (see paragraph 82). The first defendant cannot in my judgment be faulted for not taking the group off the moor at that stage.”

“96. . . . As Charlotte agreed in cross-examination "we were an extremely strong group" and "we agreed that on the Sunday we would be alone and would be check-pointed". It was a decision for the first defendant, not for the group, but it is indicative of his careful approach, that in arriving at his decision, the first defendant consulted the group, no doubt to assist him in his assessment of their level of confidence.”

“97. . . .It was taken after careful consideration and after a strong performance by the group on the Saturday. Moreover the validity of the decision was borne out by the manner in which the group completed the first two legs on the Sunday morning in adverse conditions, in particular the long leg to Watern Tor.”

“’Events such as the Ten Tors are designed to challenge young people and to give them the opportunity to respond to those challenges and learn from them. It would be quite normal for the team to exhibit a range of enthusiasm and for the stronger, keener members to try and enthuse the less able ones and get them to continue so that all can share in the success they anticipated.’”

“112. It is common ground that the first defendant told Charlotte Kennedy that the group was not to attempt to cross the Walla Brook, but was to go around the head of the Walla Brook, and thence to Hangingstone Hill, where they could pick up the track to Okement Hill. But the claimant contends that the instruction to carry on was negligent, in that the group was not in a state in which it could back track around the Walla Brook head, with the consequence that they accepted the advice and guidance of Mr Wills. 113. It is the defendant's case that the instruction to the group not to attempt to cross the Walla Brook and instead to make their way to Hangingstone Hill around the head of the Walla Brook, was appropriate in the circumstances, and certainly did not amount to a breach of the first defendant's duty of care.”

“115. In her witness statement Charlotte Kennedy said that on arrival at Watern Tor and upon discovering that the teachers who were due to meet them were not there, she telephoned the first defendant, see paragraph 29 above. She says that he was amazed that they had made it to the check point so fast, and told her to wait until 12.45 p.m., advising her that the group should have something to eat and a hot drink. She amplified that evidence in cross examination, agreeing that her only concern at that stage was that Miss Timms and Mr Hawksford had not arrived, and that the first defendant had said that they were on their way. She agreed in cross examination that the group were all fit and well.”

“he told me that the group were well but he was concerned that they were starting to get cold. In his opinion, he thought they should not wait any longer, they should start walking again. I asked Trevor ...(Mr Wills) about the wellbeing and spirits of the group. He assured me they were well but should continue walking.”

“133. . . . Mr Waldock saw the Edgehill College group at about the time that they first went down to the Walla Brook. He was then on the western side of the brook, and had been attempting to find somewhere to cross. In his witness statement he said that the brook was normally about two foot wide and ankle deep, but due to the downfall of rain, it was about 15 foot wide, at least 5 foot deep where he tested the depth and flowing very rapidly. He described the group in the following terms: "Everyone was cold and wet but the two girls I talked to did not look completely exhausted." In cross-examination he said that in the course of his exchanges with the two girls ‘I advised them to return to Hangingstone Hill, to walk around the head of the brook and to avoid any more rivers or streams’. He also recalled telling them that he had not been able to find a crossing point, and that they should either go back to where they had earlier crossed it or go around the head. It appears that he was under the erroneous impression that they had come from Hangingstone Hill, and had therefore crossed the brook at some point to get to Watern Tor. In any event he added in re-examination that he got the feeling that they were not going to take any notice of what he was saying, as he was just some person they didn't know shouting to them across the brook.” "Everyone was cold and wet but the two girls I talked to did not look completely exhausted." In cross-examination he said that in the course of his exchanges with the two girls ‘I advised them to return to Hangingstone Hill, to walk around the head of the brook and to avoid any more rivers or streams’. He also recalled telling them that he had not been able to find a crossing point, and that they should either go back to where they had earlier crossed it or go around the head. It appears that he was under the erroneous impression that they had come from Hangingstone Hill, and had therefore crossed the brook at some point to get to Watern Tor. In any event he added in re-examination that he got the feeling that they were not going to take any notice of what he was saying, as he was just some person they didn't know shouting to them across the brook.”

“The instruction not to attempt to cross the Walla Brook, and to make their way to Hangingstone Hill around the head of the brook was entirely appropriate, a conclusion reinforced by the advice given by Mr Waldock (see paragraph 133 above). The claimant's case as to the advice given at that point is that the group were not in a fit state to continue, and that accordingly the only proper advice was to tell them to stay put until adult assistance arrived. But I am satisfied on the evidence that whilst some members were cold, wet and miserable, the group was capable of continuing. Thus the argument advanced on behalf of the claimant lacks an evidential foundation.”

“But I am not persuaded that in the prevailing conditions their navigational error demonstrates a lack of competence on their part.”

“It is common ground that the group ought to have been met at Watern Tor, and it is submitted on behalf of the claimant that the failure of Miss Timms and Mr Hawksford to meet the group demonstrates a breach of duty on the part of the first and/or second defendant to ensure that those charged with the task of checking in the group at Watern Tor were competent.”