England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
SHEFFIELD DISTRICT REGISTRY
His Honour Judge Bullimore
6SE90282

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/06/2009

Sir Anthony May – President of the Queen's Bench Division:

Introduction

1. There may be circumstances in which an army officer retains authority and responsibility for soldiers under his command even when he and they are off duty. His Honour Judge Bullimore, sitting as a Deputy High Court Judge in Sheffield, in substance so held in a written judgment dated 8^th August 2008 in this action between Charles Radclyffe and the Ministry of Defence. The judge held that the Ministry were vicariously liable for the negligence of Captain Jones, which resulted in Mr Radclyffe suffering injury when he jumped 65 feet from a road bridge into a reservoir in Germany on 9^th August 2003. The judge decided that Mr Radclyffe was 40% responsible for his accident and injury.
2. The Ministry of Defence appeal against the judge's decision, Rix and Arden LJJ having given them permission to do so after Smith LJ had refused permission on the papers. The Ministry say that Mr Radclyffe was the voluntary author of his own misfortune; that Captain Jones had no causative influence on the accident; and that they were not vicariously responsible for Captain Jones' actions at the relevant time because he, Mr Radclyffe and the soldiers were then off duty.

Facts

3. Mr Radclyffe, whom the judge judged to be an honest and reliable witness, was aged 24 and a second lieutenant in the First Battalion of the Irish Guards in August 2003. The unit had spent three months in Iraq. In July 2003, the battalion organised as a break an Adventure Training Exercise for some 60 soldiers at Sonnenberg in Germany. There were two groups of about 30 men each. The first group carried out the exercise, mainly hill walking or trekking, between 4^th and 8^th August 2003, and the second group between 8^th and 12^th August 2003. Captain Jones was in charge of the second group with Mr Radclyffe. On 8^th August, there was no Adventure Training, but some 20 members of the second group decided to go to the Okerstrausse reservoir to swim. People were seen to jump from a bridge into the lake. The height of the jump was about 20 metres or 65 feet. Four guardsmen asked Captain Jones if they might jump. He told them to check the bridge and the depth of the water, which they did. He then authorised the guardsmen to jump, which they did while Captain Jones and Mr Radclyffe watched. They discussed joining in, and Captain Jones suggested that it would be bad form if they did not do so. He said that, if they jumped, it would show the men that the officers were not frightened from doing so. They swam to the bridge and joined the guardsmen at the top of it. Mr Radclyffe, when he saw the height, had reservations about jumping. But, as Captain Jones had insisted they participate, he felt he should jump. He was new to the unit. Captain Jones had authorised the jumping and, having seen the others jump, Mr Radclyffe thought that it was safe. He considered himself to be on duty with his men. His senior officer responsible for health and safety had authorised the activity. He and Captain Jones jumped together. He was in a vertical position and he was uninjured. In cross-examination, he agreed that he knew that the bridge was high. No one had made him jump and he took a conscious decision to do so. But Captain Jones had put huge pressure on him to prove that they were as brave as the men. He believed that he was on duty, having been taught at Sandhurst that he was responsible for his soldiers 24 hours a day.
4. On the following day, Mr Radclyffe and a group of soldiers went mountain biking. They then decided to go swimming, and he and five others went again to the lake, where they spent a couple of hours swimming. Two of the guardsmen then asked if they could drive to the bridge and jump from it, not having done so on the previous day. Mr Radclyffe decided that that would be in order, since Captain Jones had allowed people to jump on the previous day. Mr Radclyffe decided that he should demonstrate how to do it. He did so, but entered the water with his legs bent. In the result, he was badly and permanently injured. He said that he had had no desire to jump again. He would not have done so if the others had not been there. He regarded himself as on duty with responsibility for the men.
5. Lieutenant Colonel Adams, a military accident investigator, subsequently investigated the circumstances of the accident. His evidence included that, with his age and experience, he would not have allowed the men to jump. An officer of Captain Jones' age possibly would have allowed them. He confirmed that, in the army, following those more senior is fundamental. In the circumstances, Captain Jones did not have authority to order the men to jump, but he did have authority to order them not to jump. Officers have a duty, he said, to raise the issue of a potential hazard, if one is identified, if only because injury to or death of a soldier is "the loss of an asset".
6. Captain Langton, who had organised the Adventure Training Exercise, described swimming in the lake as an off duty activity. He regarded jumping into the water from 20 meters as pretty hazardous. He would like to think that, if he had been asked for permission to jump, he would have said no. The sergeant had asked during his reconnaissance if he would jump from the bridge, to which he had replied "no way". He recognised the pressure on Mr Radclyffe as Captain Jones had given permission, and said that it would be bad form for the officers not to jump as well as the men.
7. Captain Jones did not make himself available, and so did not give evidence.

The parties' cases

8. Mr Radclyffe's case was that the defendants were vicariously responsible for Captain Jones' acts and omissions, and that what he did was within the scope of his engagement as an officer; that he was negligent in giving permission for or encouraging the men to jump; and that Mr Radclyffe's jump on 9^th August 2003 followed from and was caused by what Captain Jones did and said on 8^th August.
9. The defendant's case was that Mr Radclyffe was off duty at the material times; that what Captain Jones said and did on 8^th August was outside the course of his employment; and that no duty of care was owed to Mr Radclyffe, who acted of his own volition and at his own risk. Emphasis is placed on Tomlinson v Congleton Borough Council [2003] UK HL 47; [2004] 1 AC 46 and the opening sentence of my judgment in Trustees of the Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646, to the effect that adults who choose to engage in physical activities which obviously give rise to a degree of unavoidable risk may find that they have no recompense, if the risk materialises so that they are injured.

The judge's judgment

10. As to vicarious liability, the judge referred to Lister v Hesley Hall Limited [2002] 1 AC 215; [2001] UK HL 22, where the warden of a boys' school systematically abused the claimants sexually while they were resident at the school. The issue was whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. In the present case, the judge considered that the defendants sought to draw too hard and fast a line between being on and off duty. It was not a simple employment context. The swimming and jumping from the bridge were not part of the organised Adventurous Training Exercise and the men did not have to go swimming. The question was whether those who went to the lake were under military discipline. The judge had no doubt but that they were. In asking permission to jump, the men recognised that there were things which they should not do without their officers' express authority. In giving permission, Captain Jones was authorising what would not otherwise have been authorised. That was understood by the men. There would have been disciplinary consequences if Captain Jones had refused permission, but the guardsmen had jumped. That was inconsistent with the men being off duty in the sense of being outside the scope of military discipline. The judge further held that it was Captain Jones' duty to look out for his men's safety, and to prevent them from undertaking risky activities for no adequate reason. The judge accordingly held that Captain Jones was acting in the course of his employment. He further owed the men under his command, who included Mr Radclyffe, a duty of care, it being fair, just and reasonable so to hold.
11. The judge accepted Mr Radclyffe's evidence that Captain Jones urged him to jump from the bridge on 8^th August, indicating that it would be bad form not to do so, and that it was necessary for the officers to show that they were as brave as the men. Captain Jones was more senior in rank, and he indicated clearly what needed to be done. The pressure on Mr Radclyffe was immense, and he correctly recognised that he would have been lowered in the eyes of the men and the more senior officer if he had declined to jump.
12. The judge then held that Captain Jones was negligent in giving permission. He was aware of the potential dangers of jumping from the bridge. He had the depth of the water checked. There was no clear evidence that he considered the height from which the jump would take place or the speed of impact. He should have considered these matters carefully and, had he had done so, even by watching civilians jumping, he would have seen that the impact speed was considerable and that, although it could be done without injury, there was a real risk of serious injury if the entry into the water was awkward or not vertical. Lieutenant Colonel Adams was cautious. Captain Langton hoped that he would have refused permission. The judge was satisfied that, if Captain Jones had properly considered what was being asked of him, he would have refused permission. He totally failed to take into account the real and obvious risk of serious injury. He was negligent and the defendants were vicariously liable for his negligence. No separate submissions were made to this court to the effect that the judge was wrong to hold that Captain Jones was negligent, although it was submitted in effect that there was no duty of care.
13. The judge then considered whether Captain Jones' negligence on 8^th August caused or contributed to Mr Radclyffe's accident on 9^th August. The defendant's case was that the jump on 9^th August was independent of anything that had gone before, and that, in accordance with Tomlinson v Congleton Borough Council, Mr Radclyffe should be seen as responsible for his own voluntary actions. The judge held that the duty owed by an occupier of land to a visitor cannot simply be equated with the duties of an employer to an employee. There was a significant difference between an officer encouraging a more junior officer to undertake a risky activity and the land itself presenting an opportunity for activities which involved a degree of risk. Further Mr Radclyffe's jump from the bridge carried a foreseeable risk of serious injury, a feature not present in the Tomlinson case until after the event. The judge referred to paragraph 46 of Lord Hoffmann's opinion in Tomlinson, where he said that:

"A duty to protect against obvious risks or self-inflicted harm exists only in cases where in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360."

14. In the present case, Mr Radclyffe was encouraged to jump in circumstances of considerable pressure. The judge held that the events of 9^th August were the result of what had occurred the day before. Mr Radclyffe would not have considered giving permission to jump on the 9^th August, if Captain Jones had not given permission on the previous day. The judge accepted Mr Radclyffe's evidence that the events of 8^th August did affect his actions and caused him to jump on 9^th August. It was not solely his own freely made decision. The pressure on 8^th August had not evaporated on 9^th August. He was still following Captain Jones' lead.
15. Finally the judge assessed Mr Radclyffe's contributory negligence at 40%. He disregarded a risk which he considered. He adopted Captain Jones' assessment as his own. What should have been obvious to Captain Jones should have been obvious to him. But Captain Jones was more senior to him and must be more to blame for his injuries.

Grounds of appeal

16. The grounds of appeal are that Mr Radclyffe's accident and the events of the previous day occurred when he and Captain Jones were both off duty. The swimming was not part of the authorised programme of events. Mr Radclyffe undertook the jump at his own risk and Captain Jones had no authority to give any instruction. The judge was wrong to hold the defendants vicariously liable. Captain Jones was not in breach of any duty of care owed to Mr Radclyffe who acted of his own free choice. The defendants contend that giving in to peer pressure, which was all that it was, did not create a duty of care. Mr Radclyffe's own evidence was that it was his own informed choice to jump. The judge should have held that the events of 8^th August, 24 hours earlier, were not an operative cause of the accident. Mr Radclyffe accepted that on 9^th August he was solely responsible for the men's welfare. He could have managed the situation easily to avoid losing face. He made his own independent decision based upon his own risk assessment. The grounds of appeal also place emphasis on what is said to have been a change in Mr Radclyffe's case shortly before trial. It had previously been asserted that he had been ordered to jump. It is contended in the alternative that the judge's assessment of contributory negligence insufficiently considered that Mr Radclyffe was responsible for his own decision to jump and that he gave permission to the men when every cell in his body told him that he should not. Contributory negligence should have been assessed at 75%.
17. Miss Griffiths QC submits that the group of soldiers at the lake could not properly be regarded as engaged on a military exercise. They were simply a group of young men of similar age enjoying themselves after work. Rank or position were irrelevant. They were not subject to military discipline when they were off duty. Captain Jones was under no duty beyond that to enforce appropriate standards of behaviour. The judge made no adequate analysis of the duty of care which Captain Jones was held to owe Mr Radclyffe. Miss Griffiths refers to paragraph 24 of Jebson v Ministry of Defence [2000] 1 WLR 2055, where Potter LJ was prepared to accept, without deciding, that no special considerations arose in that case simply because the claimant was a soldier whose relationship with his employer, the Ministry of Defence, was governed by the Queen's Regulations. The primary purpose of the Regulations was to impose obligations in the interests of the Army, rather than to lay down a duty of care for the benefit or protection of individual servicemen.
18. It is submitted that on 9^th August Mr Radclyffe made his own genuine and informed choice to jump. Miss Griffiths pointed to passages in the evidence to this effect and said that there was no causal connection between what then occurred and the events of the previous day. Mr Radclyffe chose to demonstrate the jump when there had been no demonstration on the day before. In any event, Captain Jones had not ordered him to jump on the previous day. It had been his choice to do so. It is suggested that there was no evidence or finding that Captain Jones put pressure on Mr Radclyffe. Such pressure as there was was peer pressure. It had been Mr Radclyffe's case that he was ordered to jump, but that changed shortly before the trial. If there had been any pressure on 8^th August, it did not survive to 9^th August, when Mr Radclyffe himself decided to undertake the demonstration jump and to show that he himself was as brave as the men.
19. As to contributory negligence, Miss Griffiths in the alternative submits that Mr Radclyffe was the author of his own misfortune. The judge's analysis was not adequate and under-estimated the contribution attributable to Mr Radclyffe's own voluntary and informed choice.

Discussion and decision

20. In my view, the evidential keys to this appeal, which turns largely on findings of fact by the judge which are not amenable to appeal, are in four parts of the evidence: first, Mr Radclyffe's evidence that at Sandhurst he had been taught that he was responsible for the soldiers 24 hours a day; second, Lieutenant Colonel Adams' evidence that in the military context following those more senior is fundamental; third, Mr Adams' evidence that Captain Jones could not lawfully have ordered the soldiers to jump, but that an order not to jump would have been lawful; and fourth, Captain Langton's evidence that he would liked to think that he would have refused permission to jump. All these (and other evidence) illustrate the obvious point that, although the officers and men were relaxing off duty, rank and military discipline remained relevant. No doubt certain entirely social and private occasions attended by officers and servicemen could be imagined when this would not be so. But these swimming parties in Germany in the intervals between organised Adventurous Training were obviously and on the evidence to a degree subject to military discipline. It was relevant for instance that the unit was in Germany, although I have no doubt the same would have applied if they been in the Lake District.
21. The key to the legal analysis is to be found in the answer to the question whether Captain Jones owed Mr Radclyffe and the soldiers a duty of care when they were at the lake on 8^th August. In my judgment, he did. He was the officer in charge of them in Germany and, in the context of the swimming party, it was fair, just and reasonable to ascribe to him a duty to take reasonable care to guard his subordinates against the foreseeable risk of injury, if they jumped from the bridge into the lake. By his own presence there in the circumstances that pertained and by reason of his rank, he assumed responsibility to prevent them from taking undue risks of which he was or ought to have been aware. They asked him if they might jump. The very fact that they asked predicates reliance sufficient for a duty of care and their assumption that he had authority to order them not to jump. That authority derived from his rank and the fact of his and their military employment. His authority was no doubt more circumscribed than if they had all been on duty. The fact that they were off duty did not mean that the military relationship became irrelevant.
22. I do not read the Tomlinson decision as applying to the situation presently before the court. That case held that the duty of an occupier does not extend to protect visitors or trespassers against obvious risks or self inflicted harm. Such a duty only exists in cases where there is no genuine and informed choice "as in the case of employees whose work requires them to take the risk" (Lord Hoffmann at paragraph 46 in Tomlinson). As I added in paragraph 17 of the judgment in Poppleton case, a duty may also exist where the defendant has in some relevant way assumed responsibility for the claimant's safety. In the present case the defendants were not occupiers of the lake. The relationship between them and Mr Radclyffe was that of employer and employee, and they had, as I have indicated, assumed through Captain Jones responsibility for his safety.
23. The very fact that Captain Jones, as I hold, owed Mr Radclyffe and the men a duty of care indicates that he was acting in the course of his employment by the defendants, and that the defendants are vicariously liable for his breach of duty. The connection between the nature of his employment as an officer in the army and his breach of duty was well within the Lister v Hesley Hall test. The job on which Captain Jones was engaged by the Ministry of Defence included taking charge of junior officers and men and taking reasonable care for their safety. This extended to doing so on such off duty occasions as the military relationship extended to, and included the swimming party on 8^th August.
24. Given the existence of the duty of care, there is no doubt but that Captain Jones was in breach of it. It was obviously dangerous to jump from so great a height into the water, and, so far from encouraging Mr Radclyffe to jump, he should have ordered him and the men not to do so. The evidence sufficiently supports the judge's findings in this respect.
25. As to the ground of appeal by which the defendants contend that the events of 8^th August did not carry through causatively to 9^th August, Mr Radclyffe's evidence, which the judge accepted, was to the contrary, and it was well within the judge's judicial competence to decide this question of fact as he did. His finding is not amenable to appeal. Certainly Mr Radclyffe took a decision of his own, and certainly he decided to give a demonstration which had not occurred on the previous day. However, his decision was causatively influenced by the pressure deriving from what Captain Jones had said and done on the previous day.
26. As to the judge's attribution of contributory negligence, the judge dealt with this fairly shortly, but I have no doubt that he took account of the full facts as he had set them out earlier in the judgment. Mr Radclyffe took an ill-judged decision to face an obvious risk but he was under great pressure from what Captain Jones, his senior officer, had said, done and not done on the previous day. An attribution of 40% is not plainly too little and I am not persuaded that this finding of fact by the judge should be disturbed on appeal.

Conclusion

27. For these reasons, in my judgment, the appeal fails.
28. Lord Justice Hooper
    I agree.
29. Lord Justice Sullivan
    I also agree.