HAMISH MACDONALD v MYERSCOUGH COLLEGE (2016)

A college which provided training to students intending to become tree surgeons was liable in negligence, by reason of inadequate supervision, to a student who had fallen from a tree during a training exercise. However, the student should bear 65% of the responsibility for the accident, having inexplicably released a safety device which would have prevented his fall.
The claimant, a student who intended to become a tree surgeon, brought a claim in negligence against the defendant college after falling from a tree during a training exercise.

The claimant was 34 at the time of his accident and had a family background in arboriculture. He was at an initial stage of his training course, although he had undergone five or six sessions of tree climbing. He was thought by his tutors to be capable and competent. He fell some 10m from a tree during a training exercise, sustaining serious injuries to his back and ankle. Before falling, he had released a safety device which was part of the equipment aimed at preventing falls. He had two tutors, one of whom was at the foot of the tree when the accident occurred.

HELD: The claimant had alleged that the college had been negligent in various respects. The one allegation that was made out concerned his supervision. A tutor needed to do more than simply be available to respond to a request for help from a trainee. He had to monitor the movement of the trainee and continually assess his progress. A dynamic risk assessment was required in which the tutor was fully involved. On this particular occasion, through an act of inadvertence the tutor failed to keep the observation on the claimant which he should have. He failed therefore to notice what would sufficiently have alerted him to a real risk that the claimant was insecure in the tree and thereby missed the opportunity that should have been taken to ensure that he remained safe. Had that opportunity been taken, the claimant would probably not have fallen and the accident would not have occurred. Primary liability was therefore made out. However, the major cause of the accident was the claimant’s own failure. He was a mature man. He knew and had sufficient experience to know what was obvious to any observer, namely that he would need to remain secured by at least one attachment to the trunk of the tree. That protection was lost by his decision to release the safety device, which was inexplicable. The culpable and causative behaviour on the college’s part was a failure to keep a lookout, but that was a failure which occurred in the context of a tutor and student relationship. It was the very purpose of supervision to look out for the unexpected. It was therefore no excuse to say that it was the unexpected which actually eventuated. In the circumstances, the right distribution of responsibility was that the claimant should bear 65% and the college 35% (see paras 41, 55-57, 59-60 of judgment).

Judgment for claimant in part
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