Perrin v Ministry Of Defence

At the permission stage, an appeal is justified where the first-instance judgment raises a real doubt whether its findings provide a proper basis for fault and causation. A finding that a ricochet risk was remote does not conclusively determine whether protective measures, such as helmets, were required. Permission may also be granted where there is a realistic possibility that the apportionment for contributory negligence was too generous. The Court of Appeal granted permission without deciding the merits.

A Royal Marines sergeant, acting as range conducting officer, was injured by shrapnel ricocheting from an ammunition box explosion while he and others were in an observation tower without helmets. His Honour Judge Wilkie QC held the Ministry of Defence at fault in negligence, but found the claimant 20 per cent contributorily negligent. The Ministry sought permission to appeal, arguing that the finding that the risk was remote undermined breach and causation, and that helmets were not required for the operation. The issue was whether the proposed appeal raised a proper basis for challenging liability or the apportionment.

Lord Justice Latham, with whom Lord Justice Jonathan Parker agreed, granted permission to appeal. The court did not determine the merits of the negligence claim or the contributory-negligence finding.

1. Liability and causation. The first-instance judge found that open-sided observation towers created a known risk from flying shrapnel, but regarded ricochet from the tower structure as a remote possibility. He nevertheless concluded that safety depended on the wearing of helmets and that the Ministry should have addressed a culture of complacency through emphatic regulations, warnings and enforcement. Latham LJ considered that these findings raised a real doubt whether the judgment provided a proper basis for fault. The appeal could examine whether the identified risk required precautions and, if so, whether any breach was causative.
2. Contributory negligence. Even if the Ministry’s causative fault were established, there was a realistic possibility that the finding of 20 per cent contributory negligence was too generous in the circumstances.
3. Order. Permission to appeal was granted. The defendant was awarded its costs in the appeal, with an LSC order for detailed assessment of the applicant’s costs.

• Court of Appeal (Civil Division) — Permission to appeal granted from the decision below. Costs orders were made in favour of the defendant/applicant.
• Queen’s Bench Division — His Honour Judge Wilkie QC held the Ministry of Defence at fault and the claimant 20 per cent contributorily negligent on 1 May 2001.