In the vast majority of injury claims against employers an employee is usually successful only if the accident occurred during performance of their work or anything incidental to that work.

However as the recent case of Spencer Vaughan v Ministry of Defence highlighted, there can be difficulties in establishing whether an employee was acting in the course of their employment when something goes horribly wrong and they are left injured. This is more so in cases involving service personnel.

In this case the claimant, a marine, sought to bring a claim against the MOD his employer for catastrophic injuries he suffered while executing a shallow dive in the sea with a few of his colleagues. His head struck something hard and as a consequence he suffered a spinal cord injury, which resulted in incomplete tetraplegia. This incident occurred during a training week, but at a time when the claimant was off duty.

His claim was that the injury had been caused by his employer’s breach of duty, which the MOD was liable to meet under section 2 of the Crown Proceedings Act 1947.

During the course of the trial on liability it became apparent that no one quite knew what object he had struck. It was accepted a duty of care was owed, but only in relation to the performance of work and anything reasonably incidental to that “work”.

The claimant and his colleague were given the morning off to do as they pleased during a break on the last day of training. They decided go to the beach without the knowledge of their superior when the claimant was injured.

One of the questions to be determined was whether the act of diving was undertaken in the course of the claimant’s employment. There were suggestions that the claimant had gone to the sea to wash up due to limited washing facilities within the boat he had been travelling on. He sought to argue that he was exercising, which was part of his training and duty as a marine.  He should therefore have been warned about the risks of swimming/diving in the sea. In addition, he claimed that he considered himself to be on duty the whole of the time; from the moment he left for the training programme until his return home.

On the evidence available the court was satisfied that the claimant had not been on duty at the time, his superior had not known where he or his colleagues were going, diving was not part of the training and they had all gone to the beach for recreational purposes. It was accepted that marines are expected to maintain a general level of fitness. However even if the court had found that the activities he had undertaken prior to this accident formed part of “exercises” for training purposes, that would not have placed a limitless duty on his employers to carry out risk assessments for all exercises he undertook, even those during his holiday. Crucially, the claimant confirmed that he carried out his own assessment of the risk before taking the dive, thereby making an informed decision to engage in such an act. He was not acting in the course of his employment. Therefore any warning by his superior would have made no difference to the tragic outcome.

The judgment on liability in this case may have been different if the clamant had been instructed by his superior to go to the beach and dive in the sea even during this break, as it would then have been comparable to the case of MOD v Radclyffewhere an off duty solider suffered catastrophic injuries when he repeated the act the day after being directed by his superior to jump 65 feet from a bridge into a lake to swim. In that case, the employers had breached a clear duty of care by authorising such a dangerous act.

Although the marine’s case was similar to the case of Tomlinson v Congleton Borough Council, the MOD could not be held responsible because unlike the 18 year old in that case who dived into a shallow lake owned and occupied by the council, suffering similar injuries, this claimant had not been visiting the MOD’s premises and had in any event assessed the dangers himself.

It is undoubtedly a tragic outcome for the young marine who has to live with the devastating consequences of this accident, but the court rightly had to draw a line between activities carried out on duty and those while off duty. Each case is of course fact specific.