Humphrey v Aegis Defence Services Ltd & Anor

In assessing breach of a duty of care, the court must evaluate the risk in context. Relevant considerations include the likelihood and seriousness of foreseeable harm, the social utility and importance of the activity, and the cost, effectiveness and practicability of precautions. Social utility is not confined to cases where precautions would make the activity impossible. An employer is not automatically required to take every available measure or reduce risk to the lowest practicable level. The question is the scope of the duty in the circumstances. Where the activity has substantial utility, the risk is modest and reasonable precautions have been taken, failure to impose further uncertain precautions may not amount to negligence.

The claimant, a former marine employed in close-protection work in Iraq, injured his shoulder when an interpreter released a stretcher handle during a supervised Fitness for Role exercise. He sued the respondents in negligence. The High Court, deciding breach as a preliminary issue, found a foreseeable but modest risk of minor soft-tissue injury and held that it was reasonable to require interpreters of lower fitness to participate, given their importance and scarcity. The claim was dismissed: [2014] EWHC 989 (QB). The appeal concerned whether social utility could be considered only where precautions would stop the activity, and whether the duty required pre-exercise fitness testing or other steps to reduce the risk further.

Lord Justice Moore-Bick gave the leading judgment, with Lord Justices Richards and Floyd agreeing. The appeal was dismissed.

1. Assessment of the duty. The nature and scope of a duty of care must be determined in context. Relevant considerations include the risk of harm, its likelihood, the nature and gravity of foreseeable harm, the social utility and importance of the activity, and the cost, effectiveness and practicability of measures to eliminate or reduce the risk. The assessment is not confined to whether the defendant could have taken some further precaution.
2. Social utility. The court rejected the submission that social utility is relevant only where eliminating the risk would make continuation of the activity impossible. The importance of the activity, the scarcity of Iraqi interpreters and the need for their integration into security teams were legitimate considerations in defining Aegis’s duty. Tomlinson v Congleton Borough Council, [2003] UKHL 47, and Daborn v Bath Tramways Motor Co Ltd, [1946] 2 All E.R. 333, supported that contextual approach.
3. Further precautions. King v Sussex Ambulance Service NHS Trust, [2002] EWCA Civ 953, did not establish the standard of care required in every case. A general principle that workers do not accept risks which reasonable care can avoid did not answer whether a proposed measure fell within the duty. The nature of the risk and the cost and effectiveness of the proposed measure had to be considered.
4. Application. Aegis had used induction testing and regular fitness tests. The Fitness for Role exercise itself tested fitness. The foreseeable risk was modest and the foreseeable injury was minor soft-tissue injury. No sufficiently precise or effective additional test was identified. In those circumstances, Aegis was not at fault in allowing the interpreter to participate, and the trial judge had treated social utility as one factor in the assessment rather than as a complete answer.

• Court of Appeal (Civil Division): On 14 January 2016, the appeal from the High Court was dismissed.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Bidder Q.C. decided the breach issue as a preliminary issue, dismissed the claim and gave judgment for the respondents in [2014] EWHC 989 (QB).