Vaughan v Ministry of Defence

An employer’s duty of care extends only to work and activities reasonably incidental to it. A serviceman’s general obligation to maintain physical fitness does not make every recreational exercise activity part of his employment. A military superior may owe a duty of care to subordinates during off-duty activities where responsibility has been assumed and a foreseeable risk requires reasonable protection. However, there is ordinarily no duty to protect an adult against an obvious risk where he has a genuine and informed choice and no lack of capacity. A person who knowingly dives into shallow water and misjudges its depth cannot establish breach merely because the risk was foreseeable.

The claimant, a Royal Marine, was injured when he dived from a standing position into shallow sea water while on a break during an adventure-training expedition in the Canary Islands. He suffered a cervical-spine fracture resulting in incomplete tetraplegia.

He alleged that the Ministry of Defence owed him an employer’s duty under section 2 of the Crown Proceedings Act 1947, or alternatively that the senior Marine responsible for the expedition owed him a general duty of care. The court had to determine how the accident occurred, whether the claimant was acting in the course of his employment, the nature and extent of any duty, whether that duty was breached, and whether contributory negligence arose.

1. Claim dismissed. The claimant had not proved that he struck a sand bar, but that uncertainty was not fatal to the claim.
2. Section 2 of the Crown Proceedings Act 1947 imposed on the Ministry the duty that an employer would owe. That duty covered work and anything reasonably incidental to it. The claimant and his colleagues were not on duty when they were given free time at the beach. Their visit was recreational, and the claimant’s swim was not physical training forming part of his employment. The general requirement for Royal Marines to maintain fitness did not convert all exercise into employment-related activity.
3. The question whether conduct was in the course of employment was fact-sensitive. The court applied the approach in Smith v Stages [1989] 1 A.C. 928, that everything depended on the circumstances.
4. A military superior could owe a duty of care to subordinates during an off-duty activity. The duty depended on the circumstances, including the superior’s presence, authority, assumption of responsibility and the foreseeable risk. Ministry of Defence v Radclyffe [2009] EWCA Civ 635 was distinguishable because the superior had been present and had pressured the claimant into an obviously dangerous jump.
5. The principles in Tomlinson v Congleton Borough Council [2004] 1 A.C. 46 applied by analogy. The risk of injury from diving into shallow water was obvious and known to the claimant. There was no duty to warn against that risk because he had a genuine and informed choice, was an adult of full capacity, and was not acting in the course of his employment. The qualifications recognised in relation to employees and persons lacking capacity did not apply.
6. There was no breach of any duty owed by the defendant. The accident was a momentary misjudgement and the issue of contributory negligence did not arise.