Birch v Ministry of Defence

A safe system of work must be assessed in its operational context. In a military setting, the duty concerning service-vehicle driving was to ensure that drivers were properly qualified, licensed and trained, and that personnel understood the authorisation requirements. It did not require training an individual who was not eligible to drive. Adequate briefings and procedures may discharge the duty even where enforcement is imperfect. A claimant who knowingly drives without authorisation may bear responsibility for that decision. Liability still depends on proof of the alleged breach and its causative connection with the accident.

The claimant, a Royal Marine, was seriously injured when a Land Rover driven by him left a mountain track in Afghanistan. He alleged that the vehicle had suffered a steering defect and that the Ministry of Defence had failed to provide a safe system of work by permitting an unqualified and untrained driver to drive in off-road conditions. The defendant denied mechanical failure and relied on the claimant’s own decision to drive.

The trial concerned liability and causation. The central issues were the cause of the accident, the adequacy and enforcement of driver-qualification systems, and whether any breach of duty by the defendant caused the injuries.

1. Mechanical defect. The claimant bore the burden of proving his case on the balance of probabilities. The evidence did not establish a significant pre-existing steering defect or severe loss of swivel-bearing preload. The lower swivel pin had fractured through a single-event overload, not fatigue. The more likely explanation was that it fractured while the vehicle was falling down the cliff, rather than while it was being driven on the track. The mechanical-defect case therefore failed.

2. Cause of the accident. The court found that the accident was caused by driver error. The claimant was inexperienced, had no off-road training, and was driving at dusk down a difficult mountain track. The court could not identify the precise sequence of events, but found on the balance of probabilities that loss of control was not caused by mechanical failure.

3. Safe system of work. The content of the duty had to be assessed in the context of an isolated military observation post subject to enemy attack. The duty included ensuring that persons permitted to drive service vehicles were properly qualified and licensed, and providing appropriate safety instruction. Under JSP 341, the relevant responsibilities included clear road-safety procedures, effective training and ensuring that permitted drivers were properly qualified.

4. The duty did not extend to training the claimant to drive the Land Rover. He had not passed the UK driving test and was ineligible for the FMT 600 military driving permit. The defendant discharged the relevant information duty through pre-deployment and theatre briefings, reinforced by oral instructions. Although the prohibition was not fully enforced and the commanding officer permitted the claimant to drive, the claimant knew, or must have known, that he was not authorised to do so. The degree of non-enforcement fell well short of establishing a breach of the duty to provide a safe system of work.

5. The claim therefore failed on both pleaded grounds. It was unnecessary to determine contributory negligence, although the judge stated that, if required, it would have been assessed at 50 per cent.

Not stated in the judgment.