30.6.09

Ministry of Defence vicariously liable for acts of captain involving jump from bridge leading to serious injury.  

Charles Radclyffe was a second lieutenant whose unit had spent three months in Iraq. An adventure training exercise was organised for 60 soldiers in Germany as a break. Captain Jones was in charge of a group of 30 including Mr Radclyffe. On 8 August 2003, 20 of his group decided to go to a reservoir to swim. People were seen to jump from a bridge about 20 metres above the lake. Four guardsmen asked Captain Jones if they might jump and he authorised this. Captain Jones suggested to Mr Radclyffe that it would be bad form if they did not join in. Mr Radclyffe did so and was uninjured. The next day he and a group of soldiers went mountain biking. Two of them asked him if they could go back to the bridge and jump from it. He agreed and decided he should demonstrate how to do it. He entered the water with his legs bent and was rendered paraplegic. At first instance it was held that the MoD was vicariously liable for the negligence of Captain Jones and that this had resulted in Mr Radclyffe’s injuries, subject to 40% contributory negligence.  

Held: The Court of Appeal upheld the first instance decision. Although the officers and men were relaxing off duty, rank and military discipline remained relevant. When they were at the lake on 8 August 2003, Captain Jones owed Mr Radclyffe and the soldiers a duty to take reasonable care to guard them against the foreseeable risk of injury if they jumped from the bridge. The decisions in Tomlinson and Poppleton relating to obvious risks or self inflicted harm did not apply - these cases related to the duties of occupiers and here the relationship was that of employer and employee. The fact that Captain Jones owed Mr Radclyffe a duty of care (taking charge of junior officers and men) indicated that he was acting in the course of his employment by the MoD and the MoD was vicariously liable for his breach of duty. Mr Radclyffe’s decision to jump the following day was causally influenced by the pressure deriving from what Captain Jones had said and done on the previous day. The finding of contributory negligence should not be disturbed.  

Comment: The case of Lister v Hesley Hall Ltd [2001] (a school warden sexually abusing the claimants while they were resident at school) showed how far the courts would go when assessing “acting in the course of employment”. The question is, are the torts so closely connected to the employee’s employment that it would be reasonable to hold the employer vicariously liable? In the military context, even in an off duty scenario, rank and military discipline remain relevant and this weighed heavily with the appeal Judges. The causal link between the actions of Captain Jones – who was not even there on the day of the accident – was established, as the findings of the Judge at first instance on the influence of this on Mr Radclyffe on the day of the accident were not amenable to appeal. Whilst this would appear to EL insurers to be another nail in the coffin of defending vicarious liability cases, it is clear that the military context and its unique issues of duty, rank and discipline were highly relevant.