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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barrett v Ministry Of Defence  EWCA Civ 7 (21 December 1994)
Cite as:  1 WLR 1217,  EWCA Civ 7,  WLR 1217,  3 All ER 87
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE PHELAN)
B e f o r e :
LORD JUSTICE BELDAM
LORD JUSTICE SAVILLE
|(suing on her own behalf and as executrix of|
|the estate of Barrett)|
|- v -|
|MINISTRY OF DEFENCE|
Chancery House, Chancery Lane
London WC2 Tel: 071 404 7464
Official Shorthand Writers to the Court)
MR G NICE QC and MR A SEYS LLEWELYN (Instructed by Messrs Stewards, Somerset, TA1 3EN) appeared on behalf of the Respondent
Crown Copyright ©
Wednesday, 21 December 1994
J U D G M E N T
LORD JUSTICE BELDAM: In these proceedings Mrs Dawn Barrett, widow of Terence Barrett, claims damages for herself and her son Liam under the Fatal Accidents Act 1976 and for the benefit of the estate of her deceased husband under the Law Reform (Miscellaneous Provisions) Act 1934. She blames the appellant, the Ministry of Defence, for the death of her husband who was serving in the Royal Navy. On 12th May 1993 His Hon. Judge Phelan sitting as a judge of the High Court gave judgment for the plaintiff for £160,651.16. He had reduced the damages of £214,201.54 by 25% which he held was the deceased's share of responsibility for his death. The appellant in this appeal challenges one of the two grounds on which the judge found it to have been in breach of duty to the deceased. It also seeks re-assessment of the apportionment of liability.
At the time of his death Terence Barrett, the deceased, was thirty years of age and a naval airman serving at a shore based establishment of the Royal Navy at Barduffos in northern Norway. The naval base is somewhat isolated and the shore facilities are uninviting. It was used for a series of training exercises known as "Exercise Clockwork". On 6th January 1988 detachments of marine commandos, together with No. 845 Helicopter Squadron from Royal Naval Air Station Yeovilton arrived to take part in one of these training exercises. The deceased was attached to the squadron.
Because the recreational facilities ashore were limited, the appellant had installed several video rooms, computer equipment, a gymnasium, a sauna and other recreational and educational facilities. Within the base there were three bars: the ward room, the senior rates' bar and the junior rates' bar, at which duty free drink could be obtained. Drinking in these bars when off duty was one of the main recreations of personnel attached to the base. In January 1988 the senior naval officer at Barduffos was Lt. Cdr. Lomax. The evidence was to show that his attitude to the enforcement of Queen's Regulations and standing orders, in particular to excessive drinking and drunkenness, was unusually lax. As a consequence of the death of the deceased, he was charged with and pleaded guilty to a breach of art. 1810 of Queen's Regulations which provides:
"It is the particular duty of all officers, fleet chief petty officers, chief petty officers, petty officers and leading ratings actively to discourage drunkenness, over-indulgence in alcohol and drug abuse by naval personnel both on board and ashore. Should a man appear to be suffering from any of these abuses they are immediately to take appropriate action to prevent any likely breaches of discipline, possible injury or fatality, including medical assistance if it is available. Action taken is to be reported to the officer of the watch/officer of the day, naval provost unit or other naval authority as appropriate."
His plea of guilty acknowledged that he had negligently performed the duty of actively discouraging drunkenness and over-indulgence in alcohol.
Disciplinary measures to limit drunkenness in the Royal Naval have a long history. In his acclaimed work on life in the Georgian Navy, "The Wooden World", Dr. N.A.M. Rodger devotes a section of his chapter on shipboard life to the subject of drink. At page 73 he states:
"Everybody knew that drink was a factor in crime, most often the chief factor, but it was virtually impossible to do much about it. If liberty men came on board drunk, some captains put them in irons, but the regulations of Admiral Smith's divisional system went as far as most officers thought it reasonable or possible to go; the midshipmen of the watch were to "see all men they find far gone in drink, put in their hammacoes". If riotous they were to be confined until sober and then punished. Drinking as such was not a crime. The midshipmen were not:
"... to interrupt the men in mirth and good fellowship while they keep within the bounds of moderation, the intention of it being to prevent excessive drinking, which is not only a crime in itself but often draws men into others which when sober they would most abhor."
Even excessive drinking was only a slight offence, and no man who was peaceably drunk would normally be punished for it but in this as in all things, there was a great difference between the standards obtaining at sea and in port ..."
For the purpose of Exercise Clockwork (Navy) 1988, Captain R.P. Warwick, commanding officer of Royal Naval Air Station Yeovilton, issued instructions to the senior naval officer of Barduffos who was to be in local administrative and tactical control of all Royal Navy and Royal Marine personnel attached to Royal Naval Air Station Barduffos for the purpose of Clockwork training. The instructions included control and security of duty free stores, bars, entertainment etc. and powers of punishment. Attention was drawn to the rules in force for the Royal Naval detachment at Barduffos for the senior rates' mess and for the junior rates' mess, including instructions for the running of mess bars with opening and closing times. Sec. 28 of the Naval Discipline Act contains a definition of drunkenness:
"A person is drunk ... if owing to the influence of alcohol or any drug whether alone or in combination with any other circumstances he is unfit to be entrusted with his duty or any duty which he might reasonably expect to be called upon to perform or behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty's service."
In this section "his duty" refers to his professional duties, together with other duties incidental to naval life. He could reasonably expect to be called upon to carry out his normal duties during working hours and when nominated for duty outside working hours. Notes included guidance for dealing with men who were unfit for duty due to drink:
"(i) Keep the offender out of distance of officers or senior ratings so that he cannot commit himself by striking or by insubordination. Avoid altercation.
(ii) Have him examined by the duty M.O.
(iii)Should he be in a state of collapse, make sure he does not lie on his back so that he can suffocate if he vomits. See that he is sighted every few minutes. When in doubt send for the duty M.A.
(iv) If be becomes violent, keep the cell door locked. If he tries to injure himself, call the medical officer and restrain him if necessary with additional hands and a Neil Robinson stretcher.
(v) All senior ratings are to be placed in the care of the president of the mess.
(vi) On no account is a drunken man to be charged. This should follow when he is sober."
The echoes from Admiral Smith's divisional system are obvious.
The facts leading up to the death of the deceased were not in dispute. He died in his bunk between 2 a.m. and 2.30 a.m. on the morning of Saturday, 23rd January 1988. Friday, 22nd, was the deceased's thirtieth birthday. He had recently learned that after some ten years service he was to be promoted leading hand and so had additional reason to celebrate. Friday evening was customarily an evening for heavy drinking. On this Friday a Hawaiian party event had been organised in the senior rates bar. A number of the senior rates attending the party decided they would compete to see who could drink the most. Very substantial quantities of duty free spirits were consumed.
The deceased went to the junior rates' bar at about 9.15 p.m. to begin his celebrations. Having placed money behind the bar to treat his mess mates, the judge found he himself consumed there three cans of cider and two double Bacardis. At about 10.30 p.m. he was invited to the senior rates' bar where he was bought six Bacardis, each of which was a double measure. By about 11 p.m. he had consumed a minimum of four ciders and nine double Bacardis. It was not, however, suggested that the barmen in charge of either bar had served him personally with this number of drinks. Most of the drinks were bought for him. At about 11.30 p.m. he returned to the junior rates' bar to get fuel for his cigarette lighter and then went back to the senior rates' bar where, shortly afterwards, he became unconscious. He was carried back to the junior rates' bar where he was placed on a chair in the lobby. He was seen there by Lt. Cdr. Parker who had just returned from sledging. The deceased was then in a collapsed state and insensible. Petty Officer Wells, the duty senior rate whose office was nearby, organised a stretcher and the deceased was taken to his cabin where he was placed in his bunk in the recovery position. He was in a coma but tossing and turning. He was visited on about three occasions by the duty ratings. When his cabin mate went to turn in at about 2.30 a.m., he found that the deceased had vomited, had inhaled his vomit and was apparently asphyxiated. Attempts were made to revive him but without success. A board of inquiry was held and a ship's inquiry and many statements were taken from witnesses. Based on these statements and the evidence which he had heard, the judge found that at this isolated base cases of drunkenness, especially at the weekends, were commonplace and that disciplinary action that might lead to punishment was not taken.
The judge also found there was a much more relaxed attitude to drinking tolerated at this base than there would be in the United Kingdom. Drunkenness was common at the weekends when the men were off duty and especially on Friday nights. The judge summarised the situation disclosed by the evidence as:
"A perfectly deplorable situation."
The appellant does not challenge this assessment of the discipline at Barduffos. Of the deceased the judge found that he was quite a heavy drinker and this was widely known. There was little inducement for anyone to go ashore for recreation for alcohol prices were remarkably high in Norway and astonishingly low in the base. A good range of recreational facilities existed but boredom was inevitable and foreseeable. He was under the defendant's codes of discipline and it controlled all facilities. Disciplinary codes existed which, if implemented, would have greatly reduced drunkenness. He said that the deceased was a heavy drinker introduced to a potentially dangerous situation. In these circumstances the judge held that it was foreseeable in this particular environment that the deceased would succumb to heavy intoxication. Although it was only in exceptional circumstances that a defendant could be fixed with a duty to take positive steps to protect a person of full age and capacity from his own weakness, he considered in the exceptional circumstances that arose in this case it was just and reasonable to impose a duty to take care on the appellant. He also held that the appellant was in breach of that duty because it failed to enforce the standards it itself set in matters of discipline. He referred particularly to the requirements:
"(i) To control by daily mustering and otherwise over quantities of alcohol used.
(ii) To preventing sale of bottles across the bars.
(iii)To disciplining and recording details of those from time to time found drunk so that personnel would be properly discouraged from drinking to excess.
(iv) To preventing an undue amount of fraternisation between the senior and junior rates bars;
(v) To preventing breach of standing orders or specific instructions as to how heavily intoxicated persons should be dealt with; and
(vi) To failing to ensure that alcohol was consumed only within bars."
The deceased himself had a bottle of brandy in his cabin.
It should be said that there was no evidence that the deceased had consumed brandy on the night he died or that anyone knew he had a bottle of brandy in his cabin. The appellant challenged the grounds on which the judge held that it was in breach of duty to the deceased. The judge had likened the disciplinary codes to the Highway Code or even pamphlets relating to safety in factories, describing them as "a practical guide to a standard the defendant aimed at". In this the appellant says he misdirected himself. Queen's Regulations and standing orders are not comparable to the Highway Code or safety regulations, still less to pamphlets relating to safety in factories. The purpose of Queen's Regulations and standing orders is the maintenance of good order and discipline in the service. Insofar as the standing orders extend to conduct by personnel ashore, they are confined to actions calculated to bring the Royal Navy into disrepute.
The judge also held that once the deceased had collapsed, the appellant had assumed responsibility for him and had taken inadequate steps to care for him. No medical officer or medical attendant was informed and supervision of the deceased was wholly inadequate by the standard which the appellant's own officers accepted were necessary.
The appellant does not challenge the judge's findings that it was in breach of duty to take care of the deceased once he had collapsed and it had assumed responsibility for him.
The appellant's principal ground of appeal is that the judge was wrong to hold that it was under any duty to take care to see that the deceased, a mature man thirty years of age, did not consume so much alcohol that he became unconscious. If the deceased himself was to be treated as a responsible adult, he alone was to blame for his collapse. On this basis the judge's apportionment of liability was plainly wrong. Even if the judge's finding of this duty were to stand, the deceased ought to have been regarded as equally responsible for his own death.
In my view the judge was wrong to equate the Queen's Regulations and standing orders with guidance given in the Highway Code or in pamphlets relating to safety in factories. The purpose of Queen's Regulations and standing orders is to preserve good order and discipline in the service and to ensure that personnel remain fit for duty and while on duty obey commands and off duty do not misbehave bringing the service into disrepute. All regulations which encourage self-discipline, if obeyed, will incidentally encourage service personnel to take greater pride in their own behaviour but in no sense are the Regulations and orders intended to lay down standards or to give advice in the exercise of reasonable care for the safety of the men when off duty drinking in the bars.
The judge placed reliance on the fact that it was foreseeable that if the Regulations and standing orders were not properly enforced in this particular environment the deceased would succumb to heavy intoxication. He also said it was just and reasonable to impose a duty in these circumstances.
In Home Office v. Dorset Yacht Company Ltd.  AC 1004 at page 1058 Lord Diplock said:
"The judicial development of the law of negligence rightly proceeds by seeking first to identify the relevant characteristics that are common to the kinds of conduct and relationship between the parties which are involved in the case for decision and the kinds of conduct and relationships which have been held in previous decisions of the court to give rise to a duty of care."
Later in his speech he commented that Lord Atkin's proposition that a duty of care is owed to a person who in law is to be regarded as a neighbour could be regarded as a milestone in the development of the law of negligence if used as a guide to characteristics which will be found to exist in conduct and relationships which give rise to the legal duty to take care. He added, however, that it was not intended to be used as a universal proposition for such a foundation.
There are now many judicial pronouncements of high authority that mere foreseeability of harm is not a sufficient foundation for a duty to take care in law. Since Anns v. Merton London Borough Council  AC 728 the House of Lords has preferred the approach of the High Court of Australia in Council of the Shire of Sutherland v. Heyman 157 C.L.R. that the imposition of additional duties to take care for the safety of others should develop incrementally and by analogy with established categories, an approach which involves consideration of whether it is fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of another. The mere existence of regulatory or other public duties does not of itself create a special relationship imposing a duty in private law.
In the present case the judge posed the question whether there was a duty at law to take reasonable steps to prevent the deceased becoming unconscious through alcohol abuse. He said his conclusion that there was such a duty was founded on the fact that:
"It was foreseeable in the environment in which the defendant grossly failed to enforce their regulations and standing orders that the deceased would succumb to heavy intoxication."
And in these circumstances that it was just and reasonable to impose a duty.
The respondent argued for the extension of a duty to take care for the safety of the deceased from analogous categories of relationship in which an obligation to use reasonable care already existed. For example, employer and employee, pupil and schoolmaster and occupier and visitor. It was said that the appellant's control over the environment in which the deceased was serving and the provision of duty free liquor, coupled with the failure to enforce disciplinary rules and orders were sufficient factors to render it fair, just and reasonable to extend the duty to take reasonable care found in the analogous circumstances. The characteristic which distinguishes those relationships is reliance expressed or implied in the relationship which the party to whom the duty is owed is entitled to place on the other party to make provision for his safety. I can see no reason why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink. No-one is better placed to judge the amount that he can safely consume or to exercise control in his own interest as well as in the interest of others. To dilute self-responsibility and to blame one adult for another's lack of self control is neither just nor reasonable and in the development of the law of negligence an increment too far.
Should the individual members of the senior rates' mess who bought rounds of drinks for a group of mess mates and the deceased each be held to have had a share in the responsibility for his death? Or should responsibility only devolve on two or three of them who bought the last rounds? In the course of argument Mr Nice Q.C. for the respondent experienced great difficulty in articulating the nature of the duty. Eventually he settled on two expositions. It was a duty owed by the defendant to any serviceman at this base in this environment to take into account group behaviour and arising from a duty to provide for the servicemen's accommodation and welfare there was a duty to take reasonable care to prevent drunkenness/drinking:
"(a) To a level which endangered his safety or
(b) Such as to render him unconscious."
The impracticality of the duty so defined is obvious. The level of drink which endangers safety depends upon the behaviour of the person affected. The disinhibiting effects of even two or three drinks may on occasions cause normally sober and steady individuals to behave with nonchalant disregard for their own and others welfare and safety.
The respondent placed reliance on the case of Crocker v. Sundance North West Resorts Ltd. 51 D.L.R. page 321, a decision of the Supreme Court of Canada, and on another Canadian case, Jordan House Ltd. v. Menowe 1973 38 D.L.R. 105. In the first case the defendant was held liable to an intoxicated plaintiff for permitting him to take part in a dangerous ski hill race which caused him to be injured. The defendant had taken the positive step of providing him with the equipment needed for the race knowing that he was in no fit state to take part. The plaintiff had consumed alcohol in the defendant's bars. Liability was based not on permitting him to drink in the bars but in permitting him to take part in the race. In the Jordan House case the plaintiff was an habitual customer of the defendant. He became intoxicated from drinking heavily. The defendant proprietor evicted him knowing he was unsteady and incapable in spite of the fact that he would have to cross a busy thoroughfare. The court held that these circumstances, including the fact that at the time he was evicted the plaintiff's relationship with the defendant was that of invitee/invitor, were sufficient to justify the imposition of a duty to take care for the safety of the customer.
In each of these cases the court founded the imposition of a duty on factors additional to the mere provision of alcohol and the failure strictly to enforce provisions against drunkenness.
In the present case I would reverse the judge's finding that the appellant was under a duty to take reasonable care to prevent the deceased from abusing alcohol to the extent he did. Until he collapsed, I would hold that the deceased was in law alone responsible for his condition. Thereafter when the appellant assumed responsibility for him it accepts that the measures taken fell short of the standard reasonably to be expected. It did not summon medical assistance and its supervision of him was inadequate.
The final question is how far the deceased should be regarded as responsible for his death. Mr Nice argued that once the deceased had become unconscious his fault was virtually spent and the whole responsibility for his death ought to fall on the appellant, though he did not seek to disturb the judge's assessment for 25%.
The immediate cause of the deceased's death was suffocation due to inhalation of vomit. The amount of alcohol he had consumed not only caused him to vomit, it deprived him of the spontaneous ability to protect his air passages after he had vomited. His fault was therefore a continuing and direct cause of his death. Moreover his lack of self-control in his own interest caused the appellant to have to assume responsibility for him. But for his fault, they would not have had to do so. How far in such circumstances is it just and equitable to regard the deceased as the author of his misfortune? The deceased involved the appellant in a situation in which it had to assume responsibility for his care and I would not regard it as just and equitable in such circumstances to be unduly critical of the appellant's fault. I consider a greater share of blame should rest upon the deceased than on the appellant and I would reduce the amount of the damages recoverable by the respondent by two-thirds holding the appellant one third to blame. Accordingly I would allow the appeal, set aside the judgment in the sum of £160,651.16 and order judgment for the plaintiff in the sum of £71,400.51 with interest to be assessed.
LORD JUSTICE SAVILLE: I agree.
LORD JUSTICE NEILL: I also agree.
(All other consequential orders adjourned to another date)
© Crown Copyright