R v The Ministry of Defence

A negligence claim based on allegedly inadequate security in communal accommodation must assess the system as a whole and in its factual context. The claimant must prove that the defendant’s arrangements were unreasonable. Where an alternative security device is said to be superior, objective evidence of comparative effectiveness or practice elsewhere may be needed, although expert evidence is not required in every case. It may be reasonable to rely on responsible adult residents following instructions, rather than imposing intrusive or disciplinary controls. A resident’s responsibility to escort visitors does not itself create a duty of care to other residents. An assumption of responsibility to the claimant is required, together with a sufficient basis for anticipating the visitor’s criminal conduct.

R, an RAF servicemember, claimed damages from the Ministry of Defence after another RAF servicemember raped her in accommodation at RAF Cranwell. The trial judge found the rape proved and awarded damages against the assailant, but dismissed the claim against the MOD. The claim alleged systemic negligence in the security arrangements and vicarious liability for Fiona Graham, who had invited the assailant to the accommodation. The MOD challenged the finding that it owed a relevant duty of care and raised contributory negligence by respondent’s notice. The appeal concerned whether the security arrangements were unreasonable and whether Fiona Graham owed the claimant a duty to escort the assailant from the premises.

1. Appeal dismissed. The claimant did not establish that the MOD was legally responsible for the rape. The Court of Appeal agreed with the trial judge on both systemic failure and vicarious liability.
2. Systemic failure. The reasonableness of the accommodation’s security arrangements had to be assessed as a whole and in context. The relevant system included external site security, corridor locks, room locks, instructions to keep doors secured, and the expectation that residents would escort visitors. It was not appropriate to isolate the combination locks or room locks from the rest of the arrangements.
3. The claimant had not proved that electronic fob locks were so much safer or preferable that it was unreasonable to continue using combination locks. Expert evidence was not required in every case, but objective evidence, including evidence of practice in comparable establishments, was needed where the alleged superiority of an alternative security system was not self-evident. The evidence concerning room locks was likewise insufficient, including because there was no evidence that the claimant would have used an additional rim lock.
4. The court agreed that it was reasonable in the circumstances to rely on responsible adult residents to keep doors locked and escort male visitors, without imposing a disciplinary rule or stationing guards. Even a stricter escorting rule would not have established causation, since Fiona Graham had no reason to anticipate that the assailant would seek out or assault the claimant.
5. Vicarious liability. Fiona Graham did not owe the claimant a duty to escort the assailant from the premises. Such a duty would require an assumption of responsibility to the claimant, for which there was no evidential basis. Nor was there any reason for Fiona Graham to foresee the assailant’s criminal conduct.
6. Lady Justice Smith agreed with some hesitation. The late-disclosed Carillion letter describing the replacement system as more secure did not justify setting aside the judgment because the issue had not been a focal point at trial and the available evidence still supported the judge’s conclusion. The respondent’s notice concerning duty of care and contributory negligence was not determined; the court expressly stated that it was not saying the judge had been wrong on those points.

• Court of Appeal (Civil Division): On 12 December 2007, the court dismissed the appeal. The court’s judgment is reported at [2007] EWCA Civ 1472.
• Middlesbrough District Registry: HHJ Bryant dismissed the claimant’s negligence claim against the MOD on 2 March 2007, while finding the assailant liable in damages for trespass to the person.