Jebson v Ministry of Defence

Where transport is provided for a group expected to return drunk and boisterous, reasonable care may require more than a safe vehicle and competent driver. If the vehicle's design and the driver's inability to observe passengers create a foreseeable risk of injury from rowdy conduct, reasonable care can require effective supervision.

Foreseeability concerns the genus of risk, not the precise sequence of events. An injury caused by a particular reckless act falls within the duty where it is a particular manifestation of the foreseeable risk of drunken and rowdy passengers falling from a moving vehicle.

The claimant, an off-duty Guardsman, was seriously injured after falling from the tailgate of an Army lorry returning a party of soldiers from a drinking trip. The Ministry had supplied the lorry and a sober driver. It was foreseeable that the passengers would return drunk, but neither the driver nor the senior passenger could observe the rear of the vehicle while it was moving.

Jowitt J dismissed the claim. He found that reasonable care required a sober person of authority to supervise the rear of the lorry, and that supervision would have prevented the accident. However, he held that the claimant's attempt to climb on to the canvas roof was not foreseeable. He would have assessed contributory negligence at 75%.

The claimant appealed on foreseeability and contributory negligence. The Ministry's respondent's notice challenged the finding that it owed a duty to provide supervision.

1. Appeal allowed unanimously. Potter LJ gave the judgment, with whom Steel J and Kennedy LJ agreed. The judge was entitled to find that the Ministry owed a duty to provide effective supervision in the rear of the lorry.

   The duty arose from the transport arrangement, not merely from the claimant's military status or internal service regulations. The Ministry had arranged an outing expected to involve drinking, supplied a lorry with a substantial opening above its tailgate, and provided a driver who could not see the passengers. In those circumstances, the safe transport package was deficient without a person able to exercise supervisory authority in the rear. The ordinary principle that an adult is responsible for the consequences of drunkenness was not invariable where care had been undertaken in circumstances in which drunken and reckless conduct was foreseeable.

2. The judge's finding on foreseeability was reversed. Applying the approach in Jolly v Sutton LBC [2000] 1 WLR 1082 and Hughes v Lord Advocate [1963] AC 837, the relevant inquiry was whether the actual injury fell within the foreseeable description of risk, rather than whether the precise act of climbing towards the roof had been predicted.

   The foreseeable risk was injury, including a fall from the vehicle, caused by the drunken and rowdy behaviour of passengers. The claimant's conduct was a particular instance within that genus. His injury was therefore within the scope of the duty.

3. The 75% assessment of contributory negligence stood. The claimant's conduct was persistently and extremely dangerous, and there was no basis to disturb the judge's conclusion that he was largely the author of his own misfortune.

4. Judgment was entered for the claimant for damages assessed at 25% of full liability. The Ministry was ordered to pay the claimant's costs of the action and appeal on the standard basis.

• Court of Appeal (Civil Division) — Allowed the claimant's appeal. It upheld the finding of a duty to supervise, reversed the finding that the injury was unforeseeable, and left the 75% contributory-negligence assessment undisturbed.
• High Court, Queen's Bench Division (Jowitt J) — On 6 May 1999, dismissed the claim. The judge found a breach through the absence of supervision but held that the claimant's attempt to climb towards the roof was not reasonably foreseeable.