Bass v Ministry of Defence

The Management of Health and Safety at Work Regulations 1999 do not apply to activities outside Great Britain unless expressly extended by the relevant statutory provisions. An employer’s common-law duty requires a suitable and sufficient risk assessment, but the assessment must address the employer’s operations as a whole. In a military deployment, the employer may weigh competing disease risks, the likely consequences, the effectiveness and tolerability of proposed precautions, and the quality of available evidence. It may adopt a cautious approach and await stronger evidence before changing an established prophylaxis regime. An appellate court reviews, rather than rehears, factual findings and will not interfere unless the decision below was wrong.

The claimant, a soldier, contracted Q fever after deployment to Afghanistan and developed Q fever chronic fatigue syndrome. He claimed damages from the Ministry of Defence, alleging failures to carry out an adequate risk assessment and to prescribe doxycycline prophylaxis. The claim was dismissed by HHJ Baucher in the Central London County Court on 29 March 2019.

On appeal, the claimant challenged the territorial application of the Management of Health and Safety at Work Regulations 1999, the adequacy of the risk assessment, the consideration of tolerability, and findings on compliance and causation. The central issues were whether the defendant had breached its common-law duty and whether any breach caused the illness.

1. Territorial application of the Regulations. Regulation 23 of the Management of Health and Safety at Work Regulations 1999, read with section 84 of the Health and Safety at Work etc. Act 1974 and article 3 of the Health and Safety at Work etc Act 1974 (Application Outside Great Britain) Order 2001, meant that the Regulations did not apply to the claimant’s activities in Afghanistan. The relevant activities were extra-territorial, and the exclusion also covered decisions made in the United Kingdom concerning those activities. The claim therefore fell to be determined under the common law.
2. Risk assessment and breach. The reasonable and prudent employer must consider the likelihood of injury, its potential consequences, the probable effectiveness of precautions, and their expense and inconvenience. The employer must keep abreast of developing knowledge and reassess as appropriate. The defendant had undertaken a detailed medical intelligence assessment, kept the risks under review, and considered the emerging evidence concerning Q fever and doxycycline. It was entitled to assess malaria as the principal risk, to consider the competing risks of changing prophylaxis, and to adopt a cautious approach pending better evidence.
3. The defendant was not required to assess Q fever in isolation or to prescribe doxycycline solely to prevent it. Since the existing malaria regime was apparently effective and the evidence supporting a change was incomplete, the defendant was entitled to retain that regime. The claimant therefore failed to establish breach of duty.
4. Causation and appellate review. The finding that the claimant would not probably have complied with a doxycycline regime was a factual finding which the appellate court could not properly disturb. That finding independently defeated the causation case. It was unnecessary to determine whether doxycycline would have prevented Q fever or chronic fatigue syndrome, although the judge below was entitled to reach her findings on those matters. The appeal was dismissed.

• High Court (Queen’s Bench Division): Appeal from the Central London County Court. HHJ Baucher dismissed the claimant’s claim on 29 March 2019. The appeal was dismissed.