Barrett v Ministry of Defence

English Tort Law

Barrett v Ministry of Defence
Image: ‘Fra Balestrand’ by Even Ulving

Self-intoxication when subject to unenforced regulatory powers, while seemingly harmless in the early stages, becomes less a voluntary act than an inevitability when boredom and recklessness result in a fatality. Sadly on this occasion, the celebratory rituals of a naval base exposed a regime based upon irresponsibility rather than organised discipline.

In litigation by writ during early 1990, the widow of a naval airman sought damages for negligence arising from a breach of duty of care through the Fatal Accidents Act 1976 and the Law Reform Miscellaneous Provisions Act 1934, after her late husband was found dead in his bunk.

In late January 1988, the deceased was celebrating his 30th birthday and pending promotion while stationed at the Barduffos Royal Naval Air Station, Norway, a base known for its leniency towards off-duty drinking, despite recognised preventative guidelines and clear definitions as per s.28 of the Naval Discipline Act 1957, which read:

“A person is drunk . . . if owing to the influence of alcohol or any drug, whether alone or in combination with any other circumstances, he is unfit to be entrusted with his duty or with any duty which he might be called upon to perform, or behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.”

While art.1810 of the Queen’s Regulations for the Royal Navy 1967 also explained how:

“It is the particular duty of all officers, fleet chief petty officers, chief petty officers, petty officers and leading ratings actively to discourage drunkenness, overindulgence in alcohol and drug abuse by naval personnel both on board and ashore. Should a man appear to be suffering from any of these abuses they are immediately to take appropriate action to prevent any likely breaches of discipline, possible injury or fatality, including medical assistance if it is available.”

On the night before his death, the deceased had consumed enough alcohol to lapse into unconsciousness shortly before midnight, after which he was taken to his room and left in the recovery position. It was during the following three hours that he was visited only three times, after which he had vomited and asphyxiated through inhalation of the vomitus. Within the base codes of conduct was guidance for dealing with inebriated servicemen, within which it read:

“(i) Keep the offender out of distance of officers or senior ratings so that he cannot commit himself by striking or by insubordination. Avoid altercation, (ii) Have him examined by the duty M.O. (iii) Should he be in a state of collapse, make sure he does not lie on his back so that he can suffocate if he vomits. See that he is sighted every few minutes.”

In the first hearing, the judge ruled that the appellants had, by virtue of their inability to enforce the regulations and codes of conduct, failed to provide a sufficient duty of care when managing the deceased and awarded damages of around £214,000, with a one-third reduction for the contributory negligence through over-consumption of alcohol.

Presented to the Court of Appeal on grounds of erring in law when comparing the Queen’s Regulations with the Highway Code and thereby over-extending the liability of the Ministry when passing judgment, the Court reexamined the facts, along with the threshold of culpability, whereupon it held that while the appellants had failed to uphold a reasonable standard of care, the choice to drink excessively was undoubtedly the primary cause of death, at which point the Court reversed the proportion of liability in favour of the appellants thus reducing the damages to roughly £71,000.

Key Citations

“All regulations which encourage self-discipline, if obeyed, will incidentally encourage service personnel to take greater pride in their own behaviour but in no sense are the Regulations and orders intended to lay down standards or to give advice in the exercise of reasonable care for the safety of men when off duty drinking in bars.”

“[T]he imposition of additional duties to take care for the safety of others should develop incrementally and by analogy with established categories, an approach which involves consideration of whether it is fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of another. The mere existence of regulatory or other public duties does not of itself create a special relationship imposing a duty in private law.”

Author: Neil Egan-Ronayne

Author, publisher and foodie...

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