Wilkin -Shaw v Fuller & Ors [2012] EWHC 1777 (QB)

[2012] EWHC 1777 (QB)Case No HQ11X00561
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/06/2012
Before
THE HONOURABLE MR JUSTICE OWEN
Between
JENNIFER WILKIN-SHAWClaimant(1) CHRISTOPHER FULLERDefendants(2) KINGSLEY SCHOOL BIDEFORD ENTERPRISES LIMITED (FORMERLY KNOWN AS EDGEHILL COLLEGE ENTERPRISES LIMITED)Defendant
Dr Michael Powers QC, Mark McDonald and Brent McDonald (instructed by Ashfords Solicitors) for ClaimantRonald Walker QC, Neville Spencer-Lewis and Henry Charles (instructed by Plexus Law Solicitors) for DefendantsHearing Hearing dates: 19, 20, 23, 24, 25 April 2012
Judgment
[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 claimant, 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 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.[4]The second defendant, the correct title of which is Kingsley School Bideford Trustee Co. Ltd., is the successor to the liabilities of Edgehill College Enterprises Ltd., and as such is vicariously liable for any negligent acts or omissions on the part of the first defendant and/or other servants or agents of Edgehill College.[5]The defence case in essence is that Charlotte Shaw’s death was the result of a tragic accident when she fell into the stream that she was attempting to cross at the suggestion of, and with the assistance of a well intentioned scout master, unconnected with Edgehill College, but who was on the moor at the relevant time in connection with three groups of scouts who were also training for the Ten Tors event.[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.[9]At the material time Major Pether was Secretary of the Ten Tors Expedition, a role that he had discharged for the past 15 years. On 8 January 2007 he wrote to team managers, including the first defendant, enclosing a set of detailed instructions for the event. It contained the “Ten Tors Charter”, conditions of entry which included attendance by the team manager at a Ten Tors Managers’ Weekend within the previous seven years, and guidance for training for the event.[10]The Ten Tors Charter identified its primary objectives which included the following:
“To foster an ability to walk safely in wild country and navigate accurately in fine weather and foul. … to teach how to cope with adversity and how to strive to achieve.” … to teach how to cope with adversity and how to strive to achieve.”
[11]The section of the document headed “Conditions of Entry” included:
“Competence 5. Participants must be sufficiently trained and physically prepared to complete the Expedition unaided even in adverse conditions. This responsibility rests with the Team Manager who will have to certify on arrival at the Expedition, that allmembers of his team (s) have trained together as a group over the previous period and have reached the standard of training and fitness to meet the demands of the Expedition challenge …”
[12]The section headed “Training for Ten Tors” contained the following:
“12. The Ten Tors Expedition is a demanding event. Thorough preparation and training are essential in order to complete the Expedition safely and without assistance. In addition to physical fitness, the event demands leadership qualities, navigational skills, a knowledge of first aid, and, above all, a determination to succeed. 13. The head of establishment or organisation is responsible for ensuring that participants are competent to complete the expedition. Training is usually delegated to the team manager and, by him, sometimes to team trainers. Heads of establishment or organisation will wish to ensure that those responsible for such training are suitably qualified and capable of meeting the legal requirements for involving young people in outdoor pursuits (Children Act 1989). 14. The preparation and training for Ten Tors should be progressive and carefully planned to ensure participants are competent to complete the expedition. Many areas other than Dartmoor are suitable for preparing the team for the expedition, however, to reduce the wear on Dartmoor, or any other similar area, teams are not to train until 1 February 2008.(emphasis in the original) Hazards 16. Dartmoor, like all other areas of high ground, can be hazardous. The terrain can be treacherous, the weather inclement, swift to change, and assistance remote. Team Managers are to consider these and other hazards when preparing their team’s training programme.”

Hazards

[13]The following paragraph appears under the heading “Rules and Procedures for the Ten Tors Expedition”:
“Self-sufficiency 39. The expedition must be completed without external assistance. Each team must carry all its requirements for the expedition and must be completely self contained. If it is discovered that outside assistance has been given or that any of the compulsory items have not been carried, the team concerned will be liable to disqualification unless a satisfactory explanation is given. Outside assistance includes … receiving advice and assistance from team managers or support parties.”
[14]Edgehill School had previously entered teams in the Ten Tors. The first defendant took up a position at Edgehill College as a teacher of Spanish and French in September 2005. It was his first teaching position after completing teacher training. In November 2005 he was approached by the headmaster, Leslie Clarke, about taking on the role of team manager. He agreed, and in January 2006 applied to enter both a 35 mile and a 45 mile team from Edgehill College. To prepare for the necessary training he approached Skern Lodge, a specialist outdoor activity centre based at Appledore, North Devon. Its owner suggested that he take the Mountain Leadership Course, a course run at specialist centres. He therefore approached Mr Clarke about the possibility of his doing the course; but Mr Clarke would not agree to finance it. He repeated the request in the following year to Mr Nicholson, who had by then become headmaster, but it was again refused. But in 2006 the first defendant visited Skern Lodge on a number of occasions, and was given advice on the preparation and training needed for the Ten Tors event.[15]In January 2006 he attended the Ten Tors Manager’s training weekend at the Okehampton Army base. The “Ten Tors booklet for managers and trainers” sent to all participating Team Managers contained the following:
“Competence and Responsibility Ten Tors management are obliged to attend a Managers’ Weekend to ensure that they are familiar with the essentials of the Expedition and Challenge: Deputy Managers and Trainers are also encouraged to attend. In addition staff involved in the training of young people on Dartmoor should be competent and experienced in all the associated skills of group leadership and overnight expeditions. Awards of the Mountain Leader Training Board and the MLTB – endorsed South West Mountain and Moorland Training Scheme are widely recognised and help to establish competence. Ten Tors’ Managers and their assistants are strongly encouraged to gain such awards. The primary responsibility for training a team or individual to participate in Ten Tors lies with the manager, and he or she must work to the instructions of his or her relevant parent organisation. It is for that parent organisation to qualify, or decide on the competence of, the manager and his or her assistance.”
[16]Following his attendance at the team manager’s weekend, the first defendant sent an e-mail to Major Pether in the following terms:
“Thank you very much for the useful guidance and advice of last weekend’s course. As a first time Manager it was greatly appreciated. As a first time leader, I feel that I need to clarify a few boundaries. I have been speaking to a local outdoor pursuits centre about my doubts but they recommend I got in direct contact with you. I do not have any moorland leadership training or accreditation, as such do I need someone who has this with me when I take the group onto the moor? As you will appreciate, and will expect, I want my group to be as well prepared as possible, but need all the relevant details before I can request necessary finances from the school’s management.”
Major Pether replied in the following terms:
“If you are not confident in leading the youngsters on the moor, you may wish to ask your school to provide a more qualified expert to lead the outdoor training.”
[17]In training his teams for the 2006 event, the first defendant was assisted by Kathryn Timms, Philip Hanner, Katrina Venner, Alice Mann, who subsequently became his wife, and an Australian gap year student. Miss Timms, Mr Hanner and Miss Venner were teachers at Edgehill College; Alice Mann, to whom I shall refer as Alice Fuller, did not work at the school but was a qualified teacher.[18]In preparation for the 2006 event, he also made contact with a scout organisation near Plymouth, which gave him advice as to the training that was required, and provided him with a copy of their Risk Assessment for the event, which he used as the basis for his own Risk Assessments.[19]The 2006 Ten Tors took place on the weekend of 13/14 May. On the first day two members of the 45 mile team dropped out, and on the second day it failed to reach one of the tors in the specified time, and in consequence was removed from the moor. But the 35 mile team completed the event successfully.[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.[22]The Training Weekend on Dartmoor on 3/4 March 2007 Preparation for the training weekend involved route planning by the group. Once agreed the route plan and a tracing of the route were sent to the MoD in accordance with the Ten Tors rules. Weather forecasts were monitored during the preceding week. Dry conditions were forecast for Saturday 3 March, but rain on the Sunday with conditions deteriorating during the course of the day.[23]The training route plan prepared by the first defendant set out the ‘Tor/Check Points’ indicating the estimated time of arrival at each. The plan for Sunday 4 March as originally submitted to the MoD involved walking from the entry point at the Two Bridges Hotel to Beardown Tor, then to Sittaford Tor, Watern Tor, Steeperton Tor and finally to Okehampton camp. It also identified ‘Escape Routes’ in particular from Sittaford Tor and Watern Tor ‘through Fernworthy forest to car park’.[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.[39]The Legal Framework It is common ground that the first defendant owed a duty of care to the deceased during the training for the Ten Tors. It is submitted on behalf of the defendants, and I accept, that the nature and extent of the duty owed by the first defendant, and therefore effectively by the second defendant by way of vicarious liability, was to show such care towards the deceased as would be exercised by a reasonably careful parent taking into account, the nature and conditions of out-of-school activities of the type being undertaken and, in particular the nature and conditions of the Ten Tors challenge.[40]The defendants also accept that the school was under a duty to ensure that the first defendant was competent to organise and to supervise the training, and that the team of adults assisting him in the training exercise had the appropriate level of experience and appropriate level of competence to discharge any role required of them.[41]It is further submitted on behalf of the defendants that section 1 of the Compensation Act 2006 is engaged. It is in the following terms:
“1. Deterrent effect of potential liability A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might: (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way or (b) discourage persons from undertaking functions in connection with a desirable activity.”
[42]This section appears to have been introduced as a response to the perception of the growth of a ‘compensation culture’. The draft bill was produced by the Department of Constitutional Affairs, and was accompanied by explanatory notes that asserted that section 1 did no more than “reflect the existing law”. In that case it is somewhat difficult to see why it was felt necessary to enact it, and why, as enacted, it was couched in discretionary terms.[43]The authors of Charlesworth and Percy on Negligence 12th Ed. Para 7.37 pose the pertinent question of whether section 1 “is a necessary intrusion into an area of the common law with several hundred years of development and decided cases”, and that “it must be assumed that legislators are aware of the wide ranging judicial exercise involved in deciding what standard of care is reasonably to be required on given facts.”[44]Lord Hoffman addressed the balance of risk, gravity of injury, costs and social value in Tomlinson v Congleton Borough Council [2004] 1AC 46 at paragraphs 34 and 37:
“34. My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to “such care as in all the circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other … This is the kind of balance which has to be struck even in a situation in which it is clearly fair, just and reasonable that there should in principle be a duty of care or in which parliament, as in the 1957 Act, has decreed that there should be. And it may lead to the conclusion that even though injury was foreseeable, as it was in Bolton v Stone, it is still in all the circumstances reasonable to do nothing about it.”
[45]In The Scout Association v Mark Adam Barnes [2010] EWCA Civ 1476 Janet Smith LJ addressed the point at paragraph 49:
“Of course, the law of tort must not interfere with activities just because they carry some risk. Of course, the law of tort must not stamp out socially desirable activities. But whether the social benefit of an activity is such that the degree of risk it entails is acceptable is a question of fact, degree and judgment, which must be decided on an individual basis and not by a broad brush approach.”
[46]Section 1 of the Compensation Act is plainly engaged in this case, but it does not seem to me that section 1 adds anything to the common law. Some risk is inherent in many socially desirable activities. The Ten Tors event, and the training that those who participate must undergo, is a classic example. As Janet Smith LJ put it in admirably succinct terms, the question in any individual case is whether the social benefit of any activity is such that the degree of risk that it entails is acceptable.[47]Foreseeability and Novus Actus Interveniens Two further and related issues arise on the facts of this tragic case, namely whether the accident was a reasonably foreseeable consequence of any negligence that may be established on the part of the defendants, and secondly whether the intervention of Mr Wills and the course adopted on his advice and under his supervision amounted to a novus actus interveniens.[48]The principles to be applied once a failure to meet a reasonable standard of care is established were summarised by Lord Rodger in Simmons v British Steel Plc at paragraph 67 [2004] UKHL 20, cited with approval by Lord Bingham in Corr v IBC Vehicles Ltd., [2008] UKHL 13, [2008] AC 884:
“67. These authorities suggest that, once liability is established, any question of the remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1)The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable…(2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable …(3) Subject to the qualification in (2), if the pursuer’s injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or is caused in a way that could not have been foreseen …(4) The defender must take his victim as he finds him …(5) Subject again to the qualification in (2) where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrong doing. ”
[49]In Corr v IBC Vehicles Ltd., Lord Bingham identified the underlying principle in the following terms:
“15. The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible”
[50]As to the issue of foreseeability Dr Powers submits that it was plainly foreseeable that if there was a breach of the duty of care owed to the group when training on Dartmoor, a risk of injury arose, and that the death of the deceased by drowning was a consequence of a kind that was reasonably foreseeable. He further argued that if the group was not in a fit condition to walk around the Walla Brook head, it was foreseeable that they might seek advice or help from a well meaning adult, that such advice or help might well result in an attempt to cross, and that accordingly what subsequently happened was foreseeable and was not attributable to a novus actus.[51]But it is submitted on behalf of the defendants that if the first defendant’s evidence that in his second telephone conversation with Charlotte Kennedy he gave specific instructions not to cross the Walla Brook, but to go round its head is accepted, then it was not reasonably foreseeable that the group would in fact attempt to cross the brook. Mr Walker further submitted that the argument advanced on behalf of the claimant founders on each of the assumptions upon which it is based. First it was not the case that the group was simply unable to walk the extra kilometre to Hangingstone hill, or, if it was, the first defendant was not told that that was the position and could not otherwise have known it. Secondly the group did not in fact seek advice but responded to Mr Wills’ offer to take them to what he said was a good crossing point, and thirdly that it was not foreseeable that Mr Wills might both advise them to attempt the crossing and assist them in making it.[52]The defendants further contend that the intervention of Mr Wills was a novus actus interveniens, an independent, supervening cause for which the defendants are not responsible.[53]Breach of duty of care The issues as to the alleged breach of duty of care on the part of the defendants were refined in the course of the evidence and submissions. The claimant now advances three specific criticisms on the part of the first defendant, namely: i) his failure to take the group off the moor on their arrival at Rough Tor, alternatively permitting the group to continue under remote supervision. ii) his failure to ensure that the check point at Watern Tor was manned at the arrival of the group, iii) the advice given by him in his second telephone conversation with Charlotte Kennedy when the group was at Watern Tor that they could continue, it being asserted that the only appropriate advice that could have been given in the circumstances was for the group to remain at Watern Tor until joined by a member of the supporting team.[54]But the specific criticisms have to be considered in the context of the broader allegation that the second defendant failed in its obligation to ensure that the first defendant and his team of assisting adults had appropriate experience and were competent to organise and supervise such training event. The claimant’s case is that the specific failures identified above were the consequence of the failure to discharge that overriding duty.[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.[56]I turn then to consider the competence of the first defendant and his supporting team. The first defendant did not hold any formal qualifications relevant to such activities. In their Agreed Statement, the experts identified such qualifications, the minimum national qualification for Dartmoor being the Walking Group Leader Award, and the minimum local qualification being the South West Mountain and Moorland Winter Leader Award with a Camping Endorsement. The experts agree that such qualifications reflect the standard against which the defendants should be judged.[57]As the experts point out, the easiest, but not the only way to demonstrate competence is to hold such a formal qualification. They refer in this context to the HSE Guidance to the Adventure Activities Licensing Authority which “... allows the demonstration of competence by national schemes, local schemes, in-house training and experience, or any combination of these”. The Ten Tors Managers Course run by the MoD and compulsory for team leaders is essentially a briefing exercise and not a relevant qualification.[58]Accordingly a judgment as to the first defendant’s competence to act as a team leader has to be based on his experience, and on the manner in which he was preparing the group for the 2007 Ten Tors.[59]As to his experience, and as has already been observed (see paragraph 14 above), the first defendant sought to prepare himself as a team leader for the 2006 Ten Tors by approaching Skern Lodge, the specialist outdoor activity centre which he visited on a number of occasions when he was given advice on the requisite preparation and appropriate training, and by making contact with the scout group that provided further advice, and a copy of their risk assessment for the Ten Tors, which provided the basis of his (see paragraph 18).[60]In this context the claimant relies upon the refusal on the part of the school to fund the first defendant’s attendance at a Mountain Leadership Course both in 2006 and 2007 (see paragraph 14 above) as demonstrating a failure on the part of the second defendant to ensure that he was properly trained and competent. But that argument assumes that the first defendant was not competent to act as team leader, the issue that I have to decide. If he was then the failure to fund the course has no relevance. If he was not, then the second defendants are in breach of their duty to ensure that he was.[61]Before turning to preparation and training for the 2007 Ten Tors, it is relevant to note that of the two teams that Edgehill College entered for the 2006, the 35 mile team successfully completed the event. The 45 mile team did not, but there was nothing to suggest that the failure to do so was the consequence of any want of competence on the part of the first defendant.[62]At paragraphs 20-26, I have summarised the preparation and training that led up to the training weekend planned for 3/4 March. 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”.[64]Risk assessment The first defendant’s risk assessment for the weekend of 3/4 March did not make any reference to the risk presented by water crossings, whereas that prepared by the first defendant for the same training exercise in February 2008 identified “Water crossings might have to be undertaken” as a risk assessed presenting a 3/4 chance of occurring, and risk severity of 4/4. The control measure identified in the 2008 version was “Participants have all been briefed on the risks of crossing water and trained in safe ways to cross”. It is submitted on behalf of the claimant that the absence of an express reference to such a risk in the 2007 version demonstrates that the first defendant was not fully cognisant of the risk, and is a further indication of his lack of competence to lead the group.[65]The first defendant acknowledged in the course of his evidence that in hindsight the risk presented by water crossings would ideally have been included in the risk assessment, but it was his case that the group were trained as to the risks of crossing water and in the safe ways to cross. In his witness statement he explained that river crossings were discussed during classroom sessions and during the practice walks. The advice that was given was to use extreme caution and that “if any effort was required to cross a river, or any planning or forethought was needed to get over, it was too risky to cross. In those circumstances, an alternative route should be found to go round the river”.[66]In addition to the training leading up to the weekend of 3/4 March, the first defendant arranged for the group to be accompanied on 3 March by Andrew Hodges, a man whom he had not met but with whom he had been put into contact by the headmaster, Mr Nicholson. Mr Hodges is both a qualified teacher and highly experienced in walking and training on Dartmoor, being a qualified Mountain Leader and a member of the Dartmoor Rescue Group since 1994. The first defendant received advice from him over the telephone prior to 3March; and a few days before the walk Mr Hodges had suggested some changes to the planned itinerary, recommending that they cover less distance, as by cutting down on the distance the group would be able to stop more often to discuss hazards and how to overcome them.[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.[73]The second member of staff involved on the weekend training was John Hickson, who had a keen interest in outdoor pursuits and underwent Mountain Leadership training in 1999 in Wales and in 2001 in Scotland. He had also completed an Outdoor Education Leader Course through the Outward Bound in 2001 in Scotland, and had wide experience of outdoor pursuits.[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.[75]The fifth member of the support team was Alice Fuller. She had an interest in and experience of outdoor pursuits, having completed the Duke of Edinburgh Gold award when at school and having been a member of the combined cadet force. She had assisted the first defendant in training for the 2006 Ten Tors and also had experience of walking on Dartmoor.[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.[77]The Specific Criticisms The question is therefore whether the specific criticisms now relied upon by the claimant are well founded. Do they demonstrate a culpable want of care on the part of the first defendant?[78]As to the first it is submitted that the first defendant should have taken the group off the moor at Rough Tor, or if not the whole group then Yasmin Moore and Zoe Whiteley. In the alternative it is submitted that if permitted to continue, the group should have been accompanied or at least shadowed by the first defendant and his assistants.[79]The decision to permit the group to continue was a judgment that depended upon the prevailing weather conditions, and the condition of the members of the group. As to the weather conditions, they had undoubtedly deteriorated since the previous day as had been forecast. The group encountered heavy and persistent rain and strong winds. But such conditions were likely to be encountered on the Ten Tors; and exposure to them was a valuable part of the training exercise.[80]Furthermore the group navigated its way to Watern Tor without difficulty and earlier than had been expected. It is also to be noted that there were a substantial number of other groups training on the moor on Sunday 4 March. I bear in mind that there was evidence from Ramon Waldock, a retired naval officer who was assisting in the training of three teams from Torpoint Community College. He and his colleagues decided to take their teams off the moor at about 12.30 because of the deteriorating weather conditions. But I do not consider that his evidence serves to undermine the decision made by the first defendant some four hours earlier.[81]I do not therefore consider that the weather conditions were such as to mandate the removal of the group from the moor at Rough Tor.[82]But there is a conflict of evidence as to the condition of at least some members of the group at that stage. Charlotte Kennedy assumed leadership of the group on the Sunday. She said in her witness statement that “I think that there was a feeling that people wanted to come off the Moor at Rough Tor”, and that they wanted to go home. She went on to say that the teachers said that because they had made it to Rough Tor in such good time, they should carry on to the next tor. Her witness statement continued: “13… I kept quiet and did not put across my view. I would have been happy to be taken (off) or to go on. Others did say that they did not want to go on. It was more moaning than saying look I’m not going to carry on. 14. It was Mr Fuller’s and other teachers’ decision to carry on at Rough Tor. It was not a push, but it was in our best interests to push us. He said if we could do it, we could do the real thing. We weren’t given the option to come off but it was his decision that it was the best thing to do”.[83]In cross-examination Mr Walker drew Miss Kennedy’s attention to the note of the evidence at the inquest on 16 December 2010 made by the coroner. The note is in the following terms:
“At Rough Tor we were cold. We knew that Harriet Mitchell would be going at this point. We were moaning a bit. CF just said you can do this, carry on. Possibly people said they want to go home but not strongly. If we wanted to go home we would have gone home, we are quite strong characters. No one was crying at Rough Tor. CF encouraged us to continue…”
She agreed in cross-examination that that was a fair summary of the condition of the group at Rough Tor. No one was crying at Rough Tor. CF encouraged us to continue…”[84]Neil Addington, another member of the group, gave evidence that he couldn’t remember anyone crying at Rough Tor. He agreed with Mr Walker that the first defendant didn’t bully them into carrying on. In re-examination he said that he didn’t see Yasmin Moore crying, but that “I think she asked to come off. Some people want to come off, probably Zoe Whiteley”.[85]Zoe Whiteley said in her witness statement made in November 2011 that “I really wanted to go home and we all wanted to stop…I felt forced to carry on as I didn’t feel we had any option unless I broke my neck or something”, and that the first defendant decided that they had to stay. In cross-examination she said that they decided to stick together as a team, but that she “really really wanted to leave”, and was refused by the first defendant who encouraged her to stay.[86]In her witness statement made in August 2011 Yasmin Moore said:
“Mr Fuller told us that if we could get through that on the day then we could get through the real thing. We were all wet through including our clothes and boots, and most of us were in tears. We were really angry that Mr Fuller would not let us come off the Moor. I felt that he was pushing me. There was crying and anger and distress at Rough Tor, and I was adamant that I wanted to come off the Moor. We were not happy to carry on.”
[87]In her evidence she repeated that she had told the first defendant that she wanted to leave the moor, that she was crying at that point, but that he said no, and she did what she was told. But it is to be noted that there was no mention of wanting to come off the moor at Rough Tor in the transcript of her interview by the police on 8 March 2007, four days later, and in the transcript of her video interview on the same day, she is recorded as saying:
“And then he just told us that if we could get through today then we could get through the real thing, so one girl dropped out there, she’s called Harriet Mitchell and she like had a bad back…we were like when we met him we were all wet through to the skin, our clothes were soaking our boots were soaking and everything, and we all wanted to carry on so we did.”
[88]The first defendant said in his witness statement that all the group were in good spirits when they arrived at Rough Tor. They were delighted with their achievement as it was the first time that they had walked independently of their teachers, and no one in the group was upset or crying. Yasmin Moore said that she had fallen into a bog and her gloves had got wet, so he exchanged gloves with her, and asked her to put her coat back on. He said that she was not the strongest member of the group, but was very determined and there was no suggestion that she should come off the moor.[89]In cross-examination he explained he was Zoe Whiteley and Yasmin Moore’s form teacher and that were both strong personalities. He was adamant that they had not raised the issue of coming off the moor, and that if they had not wanted to continue, he would have taken them off. This was a selection exercise, and there was nothing to be gained by making them continue if they didn’t want to be on the moor. He also said that had they been crying, he would have taken them off.[90]His evidence was supported by that of Alice Fuller and of John Hickson. Alice Fuller said that no one asked to come off, but that if someone had, then they “would have come off with us”. She repeated the point made by the first defendant, that there would have been no point in making them carry on if they wanted to come off the moor. John Hickson gave evidence that he was not aware of anyone being unhappy, crying or wanting to come off the moor. His recollection is that Yasmin Moore was not wearing her coat, and the first defendant made her put it on straight away, but that she did not want to stop to put it on and hold up the team, a revealing detail which gives further credibility to his evidence. He also recalls the first defendant arranging for the members of the group to be paired up so that they could help each other.[91]It is also to be noted that according to the first defendant, Mr Hickson spoke to Charlotte Shaw, Charlotte Kennedy and Harriet Pengelly 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.[92]I have come to the conclusion that I cannot rely upon Yasmin Moore’s evidence that she was asking to come off the moor at Rough Tor. Had that been the case it is probable that she would have said so in her earlier statements, and secondly the overwhelming probability is that if she had said that she could not go on, the first defendant would have arranged for her to leave the moor with Harriet Mitchell. This was a selection exercise, and there would have been no reason to compel her to continue in the face of her saying that she could not go on. I also bear in mind that it was Yasmin Moore whom Charlotte Shaw was assisting to cross the Walla Brook at the critical point. It was when attempting to throw Yasmin Moore’s rucksack across the brook, that she lost her footing. It was suggested on behalf of the defendants that that may have coloured her evidence in that in going over this tragic event in her mind, as all those involved must have done, she was conscious that had she left the moor at Rough Tor, Charlotte Shaw would not have had to assist her in crossing the brook, and the accident would not have happened. There is force in that analysis.[93]Save that she was not directly involved in the incident at the Walla Brook and has already crossed successfully when Charlotte Shaw lost her footing; the same considerations apply to the evidence of Zoe Whiteley. I note in particular that in her video interview on 8 March 2007, she said “…we all wanted to continue so we did” (see paragraph 87).[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.[95]The question then arises as to whether the first defendant should have permitted the group to continue under remote supervision. As to that his evidence, confirmed by that given by Alice Fuller and John Hickson, was to the effect that on the Saturday evening they had discussed whether to permit the group to advance to remote supervision on the following day. They had come to the conclusion that the group was ready, a conclusion borne out by the evidence given by Andrew Hodges, who was impressed by the manner in which the group had performed on the Saturday, and who according to the first defendant told him that “they were one of the best groups he had seen”.[96]It was also discussed with the group. 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]The training for the Ten Tors necessarily involved a group progressing to the stage at which it was walking unaccompanied, the members of the group navigating themselves, taking their own decisions as to hazards that they might encounter. The issue is whether this group had by Sunday morning demonstrated the skills and awareness to permit them to walk unaccompanied. In my judgment the decision to permit them to do so cannot be said to have been negligent. 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.[98]As Mr Jones said in his report:
“The team arrived at Rough Tor ahead of schedule, indicating that they were coping with the conditions well and that the plan to rely them to undertake the next leg to Watern Torunaccompanied by staff was a reasonable one. One of the challenges for staff leading groups in circumstances such as described on the Sunday is in assessing how well they are coping. Typically, there will be a range of abilities and morale within the team and the staff will have to make an assessment of whether or not they are all capable of completing the next leg. 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.”
[99]The failure on the part of Kathryn Timms and Alistair Hawksford to meet the group at Watern Tor 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.[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.[107]There is a second issue with regard to the failure on the part of Ms Timms and Mr Hawksford to meet the group at Watern Tor which it is convenient to address at this point, namely whether it was causative of the incident in which Charlotte Shaw lost her life. It is submitted that had Ms Timms been at Watern Tor, then she would have stayed with the group, and that in those circumstances Mr Wills would not have intervened.[108]The counter argument advanced on behalf of the defendants is that she would have had no reason to stay with the group, and that having checked them in, she would have seen them off from the tor and then returned to her car.[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.[110]Did the first defendant give negligent advice in the course of his second telephone conversation with Charlotte Kennedy? It is submitted on behalf of the claimant that the first defendant gave negligent advice in the course of his second telephone conversation with Charlotte Kennedy when the group was at Watern Tor.[111]The claimant’s case is in essence that having been told by Charlotte Kennedy that the group had not been able to cross the Walla Brook, the first defendant ought to have enquired as to the physical and mental condition of each of the group, that had he done so it would have been clear to him that the group was not in a condition to continue, and that the only safe course was to instruct them to pitch a tent and to await the arrival of a leader from the school, who could safely have removed them from the moor. It is submitted that there is no reason to think that had such instructions been given, they would not have been followed.[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 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.[114]Resolution of this issue requires an analysis of the evidence as to the phone calls made when the group was at Watern Tor and as to the sequence of events that led to the crossing of the Walla Brook.[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.[116]The first defendant was then in a café in Okehampton, and was planning to meet the group at the next checkpoint, East Mill Tor. Having received the call from Charlotte Kennedy he telephoned Miss Timms to tell her that the group had arrived at Watern Tor, and that he had instructed them to have some lunch. He then attempted to call Charlotte Kennedy back, but as there was no response he telephoned Harriet Pengelly. He says that he reiterated his advice to the group to keep warm. His evidence as to that was borne out by that given by Harriet Pengelly at the inquest, namely that he said that they should make a hot drink and have some lunch. He then set out by car for East Mill Tor.[117]The next telephone call was that made on Charlotte Kennedy’s telephone by Mr Wills, and was received by the first defendant en route to East Mill Tor. In the hand written note that he made on the evening of 4 March Mr Wills recorded that he told the first defendant that “they were sitting getting colder and wetter – thought that hypothermia would set in soon.” He noted that the first defendant agreed and “asked them to walk on to East Mill Tor.”[118]Similarly in his witness statement dated 8 March he said that he told the first defendant that “his team were getting cold and that I didn’t think it was appropriate for them to have to wait around”, adding that the first defendant then told the team to go on to East Mill Tor where he would meet up with them. Mr Lambell, who was with Mr Wills, did not hear what Mr Wills said to the first defendant, but in cross-examination described the group as miserable, “a bit stressed as they had not found their leader”, but “fit to walk off the moor”.[119]In the course of his evidence the first defendant said that he asked Mr Wills to clarify how the group was, and was told that they were fit and in good spirits.[120]In his witness statement the first defendant said that Mr Wills identified himself as a walker “involved in Ten Tors”. The relevant paragraph continued in the following terms:
“226 … 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.”
[121]In the course of cross-examination he was questioned about his acceptance of the advice given by Mr Wills to the effect that the group were getting cold and wet and should move on. He agreed that he knew nothing about Mr Wills’ background or experience, but said that the fact that he was on the moor that day indicated that he was either involved in the Ten Tors or was a very very keen walker. He added that the ethos of the event is that team leaders and those involved in assisting with the training “look out for each other”.[122]In his witness statement he says that having spoken to Mr Wills he then again spoke to Harriet Pengelly and checked that everyone in the group was well. He says that she confirmed that they were all doing well, and that he specifically asked about Yasmin Moore and was assured that “… she was doing much better and was in good spirits”. He also said in evidence that both Charlotte Kennedy and Harriet Pengelly said that they were strong and in good spirits, and wanted to carry on.[123]Following the telephone conversation with Mr Wills, the group set out for East Mill Tor, the direct route to which involved crossing the Walla Brook below Watern Tor. They were not able to cross (see paragraph 34 above). They returned to Watern Tor where Charlotte Kennedy again telephoned the first defendant. In her witness statement she says that she told him that they could not cross, and that he told them to go to Hangingstone Hill. She said that she did not remember the first defendant telling her that the group was not to cross the Walla Brook. She checked the map concluding that “the only choice we had was to find a way to cross the Walla Brook or walk south west, straight into the wind, around the Walla Brook head”. She said that at that point she went back to speak to Mr Wills and Mr Lambell, whom she thought were teachers involved with another group on the moor.[124]She went on to say that she did not know how much further it would have been to walk without crossing the river but that “… it was long enough for me to feel that it was too far for the team to walk after we had been walking since 6.00 a.m. I showed the majority of the team the alternative route and we all agreed it was too far to walk...One of the teachers from the other school at the Tor said that he would go down to the river with us. I welcomed the guidance given by the teacher.”[125]In the course of her evidence in chief, and in contrast to the content of her witness statement, she said that the first defendant, when asked what they were to do, said that they should not cross the river, but should walk around it and go to Hangingstone Hill. In cross-examination she agreed that at that point she had no reason to suppose that they could cross the brook, not least because other teams with whom they had communicated when they first went down to the brook had said that it was not possible.[126]The first defendant received the call when en route to East Mill Tor. Charlotte Kennedy said “We’re stuck. What do we do?” He described how he had consulted the ordnance survey map with Alice Fuller and John Hickson before telling her not to cross the Walla Brook, to head for Hangingstone Hill via the Walla Brook head, and that they would meet the group at Okement Hill. His evidence was confirmed by Alice Fuller and John Hickson, the latter recalling the first defendant having told her not to cross the brook a number of times.[127]In her evidence in chief Charlotte Kennedy said that it was at that stage that she sought help from Mr Wills and Mr Lambell in the knowledge that they were there with their teams. Her evidence continued:
“They said they crossed that morning, they had jumped across and it was very easy. He tried to tell me whereabouts it was. I didn’t understand. So he took us there.”
[128]As to the intervention of Mr Wills she said that he told her that the route to Hangingstone Hill around the head of the Walla Brook was about 5 miles. That was plainly wrong. It was of the order of 2.4 km, about 1 km further than the direct route to Hangingstone Hill crossing the Walla Brook.[129]In any event her evidence continued to the effect that the scoutmaster had said that he had crossed earlier that morning and that it was very easy to cross. She said that he “seemed competent and in authority”, and that she “was persuaded that it was alright.” In re-examination she accepted that it was her decision for the group to follow his advice.[130]Mr Lambell gave evidence that the groups with which he was involved “would have used the same crossing”, and that he managed to cross fairly easily following the tragedy.[131]In cross-examination Zoe Whiteley was reminded of the evidence that she had given to the coroner in which she described the exchanges with Mr Wills in the following terms:
“It wasn’t long before he said I just hopped over … it was fine, it wasn’t difficult, not trouble … he was so convincing … we trusted him … why go the long way when we could go the short way just as easily.”
She also explained that Mr Wills made it sound easy, and when an adult tells you something you accept it, he was “so convincing we trusted him – he made it sound easy”[132]In cross examination Charlotte Kennedy agreed that had it not been for what they were told by Mr Wills, they would not have attempted to cross the Walla Brook, but would have set out for Hangingstone Hill around its head. Neil Addington agreed in cross examination that, but for meeting Mr Wills, they would have carried on and gone around the head of Walla Brook, further agreeing that they were “a strong group of individuals”.[133]The claimant called a further witness, Mr Waldock, who was unconnected with the group and to whom reference was made at paragraph 80 above. He is a qualified mountain leader and held a mountain leadership certificate issued by the British Mountaineering Council. Mr Waldock had been remotely supervising his group on 3 March, but at 12 noon he and other teachers decided to take their groups off the moor because of the deteriorating conditions. 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.[134]I do not consider that the advice that the first defendant gave to Charlotte Kennedy in the second telephone conversation was negligent. 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.[135]Conclusion as to breach of duty It follows that in my judgment the claimant has not established that the defendants were in breach of their duty of care. That conclusion is determinative of the claim but I nevertheless propose shortly to address the issues of forseeability of damage and novus actus interveniens.[136]Had I been persuaded that there was breach of the duty of care on the part of the defendants, I would nevertheless have found that the intervention of Mr Wills at Watern Tor broke the chain of causation. This tragic accident was the consequence of the well meant, but ill advised intervention of Mr Wills in advising the group that it was possible to cross the Walla Brook, and in guiding them to the crossing point where he oversaw the crossing. The experts were in agreement in their joint opinion that “it was a bad decisionon the part of Mr Wills to advise and attempt to supervise the crossing of the Walla Brook”. The effect of his intervention was to countermand the instructions that had been given by the first defendant.[137]Whilst I accept that it was foreseeable that the group might seek advice from other adults who were on the moor with groups of youngsters training for the event, I do not consider that it was reasonably foreseeable that such an adult would give bad advice thereby putting the group at risk. It follows that had I been persuaded that the defendants were in breach of their duty of care, I would not have held them liable for the consequences of Mr Wills’ intervention. Secondly I am satisfied that the intervention by Mr Wills unquestionably amounted to an independent supervening cause for which it would not have been fair to hold the defendants liable.[138]It follows that the claim must be dismissed.