Ministry of Defence v Radclyffe

An army officer may owe subordinates a duty of care during an off-duty activity where rank, presence and military discipline remain relevant and the officer has assumed responsibility for their safety. A request for permission to undertake an obviously risky activity may establish reliance and indicate authority to prevent it. Where the duty arises from the officer’s employment, the conduct may fall within the course of employment for vicarious liability. The occupier-liability rule concerning obvious risks and self-inflicted harm does not automatically govern an employer–employee relationship in which responsibility for safety has been assumed. A claimant’s later conscious decision can still be causally influenced by earlier negligent pressure. An appellate court will not disturb a contributory-negligence apportionment that is not plainly too low.

The respondent, a junior Army officer, was injured after jumping from a bridge into a reservoir in Germany during an informal swimming outing with soldiers. The previous day, his senior officer had authorised soldiers to jump and encouraged the officers to join them. The High Court held the Ministry vicariously liable for negligence and found the respondent 40% contributorily negligent.

The Ministry appealed, arguing that the activities were off duty, the respondent made a genuine and informed choice, the earlier events were not causative, and the apportionment was too low. The central issues were whether a duty of care existed, whether the officer acted in the course of employment, and whether the findings on causation and contributory negligence could be disturbed.

1. Appeal dismissed. Sir Anthony May P gave the judgment of the court. Hooper and Sullivan LJJ agreed.
2. Duty of care. Although the officers and soldiers were relaxing off duty, rank and military discipline remained relevant. In the circumstances, the officer in charge owed the respondent and the soldiers a duty to take reasonable care against the foreseeable risk of injury. His rank, presence and responsibility made it fair, just and reasonable to impose that duty. The soldiers’ request for permission to jump indicated reliance on his authority and responsibility for preventing undue risks.
3. Obvious risks. The rule in Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46, concerning an occupier’s duty in relation to obvious risks and self-inflicted harm, did not govern this employer–employee relationship. The Ministry was not the occupier of the lake, and responsibility for the respondent’s safety had been assumed. This was consistent with Trustees of the Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646.
4. Vicarious liability. The officer’s conduct was within the course of his employment. His responsibilities included taking charge of junior officers and soldiers and taking reasonable care for their safety. The connection between that employment and the breach satisfied the close-connection test in Lister v Hesley Hall Limited [2001] UKHL 22; [2002] 1 AC 215.
5. Breach and causation. Jumping from the height involved was obviously dangerous. The officer should have prevented the activity rather than permitting or encouraging it. The trial judge was entitled to find that the respondent’s later decision to demonstrate the jump was causatively influenced by the pressure and events of the previous day, despite being a conscious decision of his own.
6. Contributory negligence. The 40% apportionment properly reflected the respondent’s ill-judged decision and the substantial pressure exerted by his senior officer. It was not plainly too low, and the finding was not disturbed on appeal.

• Court of Appeal (Civil Division). The appeal from the High Court was dismissed: [2009] EWCA Civ 635.
• High Court of Justice, Sheffield District Registry. His Honour Judge Bullimore held the Ministry vicariously liable for Captain Jones’s negligence and assessed the respondent’s contributory negligence at 40% in a judgment dated 8 August 2008.