Barrett v Ministry of Defence

A public body’s disciplinary regulations, control of an environment, provision of cheap alcohol and foreseeability of intoxication do not ordinarily impose a duty to prevent a competent adult from drinking to unconsciousness. New duties in negligence must develop incrementally from analogous relationships and must be fair, just and reasonable. The position changes when a defendant assumes responsibility for an unconscious person, when it must exercise reasonable care. Voluntary intoxication may remain a direct and continuing cause of death. It may therefore justify a substantial reduction for contributory fault.

The widow of a naval airman brought claims under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 following his death after heavy drinking at an isolated Royal Navy base in Norway.

His Honour Judge Phelan held the Ministry of Defence liable both for failing to prevent the deceased becoming dangerously intoxicated and, after his collapse, for inadequate care. He awarded £160,651.16 after reducing damages by 25% for the deceased’s fault. The Ministry accepted the breach after collapse but appealed the existence of the earlier duty and the apportionment of responsibility.

The central issue was whether the Ministry owed a duty to prevent a responsible adult serviceman from drinking himself into unconsciousness in the circumstances at the base.

1. The appeal was allowed unanimously. Beldam LJ gave the only reasoned judgment, with which Saville and Neill LJJ agreed. The judge’s finding of a duty to prevent the deceased’s pre-collapse alcohol abuse was reversed.

2. Foreseeability did not itself establish a duty. Following the incremental approach to negligence, the court considered whether the relationship had characteristics analogous to established duty situations and whether the proposed duty was fair, just and reasonable. The mere existence of public or regulatory duties did not create a private-law special relationship.

3. The Queen’s Regulations and standing orders existed to secure discipline, good order and fitness for duty. They were not safety standards for off-duty drinking comparable to the Highway Code or factory-safety guidance. The Ministry’s control of the base, its provision of duty-free alcohol, lax enforcement of discipline and the foreseeability of drunkenness did not justify transferring responsibility for a competent adult’s consumption of alcohol to it.

4. The Canadian decisions relied on involved further features creating a duty, namely permitting an obviously intoxicated person to undertake a dangerous ski race, or expelling an intoxicated customer into an immediate road danger. They did not support a general duty to prevent drinking to the point of unconsciousness. Until his collapse, the deceased was therefore solely responsible in law for his condition.

5. Once the deceased had collapsed, the Ministry assumed responsibility for his care. It accepted that it failed to obtain medical assistance and supervised him inadequately. His own excessive drinking nevertheless remained a direct and continuing cause of death because it caused both his vomiting and his inability to protect his airway, and it necessitated the Ministry’s intervention.

6. It was just and equitable to attribute two-thirds of the responsibility to the deceased and one-third to the Ministry. The award of £160,651.16 was set aside and judgment was entered for the plaintiff for £71,400.51, with interest to be assessed.

• Court of Appeal — Allowed the Ministry’s appeal and set aside the award, reported at [1995] 1 WLR 1217.
• High Court — On 12 May 1993, His Honour Judge Phelan found the Ministry liable and awarded £160,651.16 after a 25% reduction for the deceased’s contributory responsibility.