England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE WILKIE QC)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 31 July 2001

1. LORD JUSTICE LATHAM: This is an application for permission to appeal the decision of His Honour Judge Wilkie QC given on 1 May 2001 when he held that the applicants were at fault in relation to an accident which occurred to the respondent on 21 September 1992. He held that the respondent was 20 per cent contributorily negligent.
2. The respondent was at the time a sergeant in the marines. The judge referred to him as a "high flyer" and that the evidence showed that he was highly skilled, highly professional and meticulous in matters of safety. The accident happened in the army grenade throwing range at Warminster when he was fulfilling the role of Range Conducting Officer which meant that he was in overall charge of the operations on the range at the relevant time.
3. The accident occurred during a break in the normal training programme when the respondent took it upon himself to demonstrate to the soldiers with him the effects of explosive devices on soft metal. He did this by placing plastic explosive in a metal ammunition box which he proceeded to blow up. When it blew up he and the others with him were, as they should have been, in the observation tower. This is an elevated structure placed about 38 meters from the site of this explosion with blast proof walls 5 feet high, and a roof structure above with open spaces between the roof and the top of the blast proof wall.
4. According to the judge's findings, the accident was caused when a piece of shrapnel from the ammunition box struck part of the roof, or roof support structure, in the observation tower, and was deflected so as to strike the respondent in the head. As a result he suffered serious injuries. At the time the judge found that he and the others with him were properly crouched down below the level of the blast proof wall, but neither he nor any of the others were wearing a helmet.
5. The conclusions that the judge reached as to the way in which the accident happened, meant that he had to evaluate the risk of a ricochet occurring and determine the extent to which precautions should have been taken in order to prevent injury. The findings that he made were as follows:

"A) The use of open-sided towers posed a risk well known from flying shrapnel.

B) There was a theoretical risk of ricochet from the baffle board, posts and rear of the roof surface but;

C) There is nothing in any of the documents or evidence to suggest it was anything other than a remote possibility."

6. The judge went on, having considered the evidence in relation to the wearing of helmets, to conclude that, even when persons were in a safe position, their continuing safety, given the open side of the tower, depended on them wearing helmets, that a culture of complacency had developed of which the applicants should have been aware as to the wearing of helmets, and that they should have eliminated that culture by appropriate emphatic regulations, warnings and enforcements, even in relation to Range Conducting Officers.
7. It was in those circumstances that he concluded that the applicants were liable to the respondent in negligence and assessed the proportion of fault as 80 per cent to the applicants and 20 per cent to the respondent.
8. The applicants seek to appeal on the basis that the conclusion which the judge reached as to risk, essentially precluded a finding of fault, alternatively precluded any finding that any fault on their part was causative of the accident. The argument is simply that there was no risk against which any precautions should have been put in place and that in so far as the wearing of helmets was considered appropriate, there was no reason on the facts that the judge found to require the wearing of helmets for the particular operation in which the respondent was engaged at the relevant time because of the level of risk that he had identified.
9. On behalf of the respondent, it is pointed out that there is material which suggests that the applicants were aware of concerns about the risk to soldiers, inherent in the fact that the observation tower was open and that there was no perspex or any other form of protection in the open area between the roof and the blast proof walls. In those circumstances there was material which could justify the conclusion that the wearing of a helmet was an essential precaution for any operation, even though the particular risk in question was as described by the judge.
10. It seems to me that the judgment of the judge raises a real doubt as to whether or not he has provided a proper basis for the conclusion that there was fault on the part of the applicants which justified his giving judgment as he did. That is a matter which seems to me to justify a full hearing by way of appeal.
11. It further seems to me that, on the facts as found by the judge, there is a realistic possibility that the court will conclude that, even if there was causative fault on the part of the applicants, the finding as to contributory negligence on the part of the respondent was far too generous in the circumstances of the case.
12. For those reasons I would give permission to appeal.
13. LORD JUSTICE JONATHAN PARKER: I agree.
Order: Permission to appeal granted. Defendant's costs in the appeal. LSC order for detailed assessment of Applicant's costs.