FLAVEL v THE STATE OF SOUTH AUSTRALIA [2007] SASC 50: A Case Study on Tort of Negligence

Running head: BUSINESS LAW
BUSINESS LAW
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a. Case introduction.
The case of FLAVEL v THE STATE OF SOUTH AUSTRALIA [2007] SASC 50 is in relation
to the tort of negligence. Negligence takes place when the rights of an individual should not be
subjected detriment unnecessarily is violated or infringed by any other person. The principles of
tort of negligence had come to existence through the case of Donoghue v Stevenson 1932 AC
562. The principles of negligence are based in the principles of duty of care and breach of the
duty and finally the injury caused to the person. One of the landmark cases which used the
principles of negligence to resolve an issue in Australia is Grant v Australian Knitting Mills
[1935] UKPC 62, [1936] AC 85; [1935] UKPCHCA 1. This case also involves a party whose
rights have been infringed by a person who owed a duty of care to him. The party has suffered
physical injuries. The question which the court had to address in relation to this case is that
whether other party had contravened the duty of care. However in this case the court found out
that te duty had not been breached. The paper discusses the facts of the case, the issues raised by
the plaintiff and the defendant, the arguments raised by the parties, the court’s judgement, and
critical analysis of why the decision was made in favour of the winning party.
b. The facts of the case.
The plaintiff at the time of the incident was a year 10 student of Bordertown High School. The
school had organized a camp which was attended by the plaintiff along with other school
students. The school and the Camp were under the control of Department of Education and
Children’s Services. The name of the camp was Murraylands Aquatic Centre. Thus the
department was the defendant in this case. A claim has been brought against the defendant by the
plaintiff in relation to the physical injury which the plaintiff had incurred with respect to a

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windsurfing session. The plaintiff fell in shallow water while windsurfing and had been
subjected to a spine fracture and now is tetraplegic. There was a warning sign which was present
at all times near the place where the incident took place which stated that “danger shallow water,
no fishing or swimming, from houseboat or jetty”. The word danger had been further
highlighted. The plaintiff stated that he got out of control while in the race which was organized
by the defendant in shallow waters and fell to hit his head on the bedrock of the river.
c. The issues raised by both plaintiff and defendant.
In this case allegations have been made by the plaintiff that the defendant did not abide by the
duty of care which was owed to the plaintiff as it failed to provide appropriate instructions to the
plaintiff, making the plaintiff indulge in races while no proper training had been provided,
making the plaintiff indulge in races in shallow water where there was risk that the plaintiff may
get injured due to the river bed, providing a trainer who did not have adequate training, failing to
provide safety equipments and supervising the plaintiff.
The defendant made a plea in relation to contributory negligence which has been abandoned by
the court at the trial in addition opposition to the extension of time in which the plaintiff could
file the claim was also abandoned.
Through the consent of the plaintiff and the defendant the question before the court was in
relation to liability only the plaintiff seek regulatory judgement under 30B of the Supreme Court
Act 1935 (SA) whereby damages would be assessed at a later stage. Thus the issue is only the
liability of the defendant if any owed to the plaintiff.