Birch v Ministry of Defence

An employer breaches its duty of care where its commanding officer permits an employee whom he knows to be unqualified to drive a service vehicle, contrary to requirements for proper qualification and licensing. The employee’s decision to volunteer does not displace that breach where the employer’s duty was to prevent him undertaking the task. For contributory negligence, the question is whether any reduction is just and equitable having regard to the claimant’s share in responsibility. An inexperienced and untrained claimant whose driving was not shown to fall below the reasonable standard does not share responsibility merely by volunteering. No deduction follows.

Birch v Ministry of Defence concerned injuries suffered when the appellant, a Lance-Corporal serving in Afghanistan, drove a Land Rover down a mountain track without the required military driving permit. The trial judge found driver error and rejected the claim that the Ministry of Defence had failed to provide a safe system of work, treating the appellant as responsible for his decision to drive.

The appellant challenged the findings concerning the commanding officer’s knowledge and permission, and argued that the Ministry had breached its duty by allowing an unqualified driver to undertake the task. He also challenged any reduction for contributory negligence. The central issues were whether the commanding officer knew that the appellant would drive despite knowing that he was unqualified, and whether the appellant shared responsibility for the resulting injuries.

Appeal allowed unanimously.

1. Longmore LJ held that the evidence established that the commanding officer knew the appellant was unqualified to drive. The trial judge’s finding that he had permitted the appellant to drive ordinarily implied that he knew the appellant would undertake the driving. In context, that was the necessary implication of the judge’s reasoning, and the Court of Appeal upheld it.
2. The Defence Road Transport Regulations (JSP 341) required an authorised driver to possess the appropriate competence and legal qualification. They also placed responsibility on the commanding officer to ensure that personnel permitted to use service vehicles were properly qualified and licensed. The officer had accepted that responsibility but failed to discharge it. The Ministry was therefore in breach of its duty of care. The difficult operational conditions made the lapse understandable but did not relieve the Ministry of responsibility.
3. The trial judge’s focus on general non-enforcement of the licensing rule did not satisfactorily address the separate issue that the appellant had been specifically permitted to drive. It was insufficient to say that he had to take responsibility for his own decision.
4. Under s 1(1) of the Law Reform (Contributory Negligence) Act 1945, any reduction had to be just and equitable having regard to the appellant’s share in responsibility. The evidence did not establish careless or imprudent driving. His volunteering for a task which the Ministry ought, for his protection, to have prevented him from performing did not amount to shared responsibility. His rank did not make him equally responsible with the commanding officer. No deduction was therefore made.
5. Tomlinson LJ agreed on liability and contributory negligence. Lewison LJ agreed with both judgments. The compensation payments made under the Armed Forces Compensation Scheme were to be taken into account when compensation was assessed.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal and set aside the decision on liability.
• High Court, Manchester District Registry: Mr Justice Blair rejected the alternative safe-system-of-work and duty-of-care case, having found driver error and a degree of non-enforcement of the licensing requirement.