Barrett v Ministry of Defence

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE BELDAM,LORD JUSTICE SAVILLE,LORD JUSTICE NEILL
Judgment Date21 December 1995
Judgment citation (vLex)[1994] EWCA Civ J1221-3
Date21 December 1995
Docket NumberQBENF 93/1336/C

[1994] EWCA Civ J1221-3

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(His Honour Judge Phelan)

Before: Lord Justice Neill Lord Justice Beldam Lord Justice Saville

QBENF 93/1336/C

Barrett (Suing on her own Behalf and as Executrix of the Estate of Barrett)
Plaintiff/Respondent
and
Ministry of Defence
Defendant/Appellant

MR B LEVESON QC and MR R JAY [MR S CHAPMAN 21–12–94] (Instructed by the Treasury Solicitors) appeared on behalf of the Appellant

MR G NICE QC and MR A SEYS LLEWELYN (Instructed by Messrs Stewards, Somerset, TA1 3EN) appeared on behalf of the Respondent

1

( )

2

Wednesday, 21 December 1994

LORD JUSTICE BELDAM
3

In these proceedings Mrs Dawn Barrett, widow of Terence Barrett, claims damages for herself and her son Liam under the Fatal Accidents Act 1976 and for the benefit of the estate of her deceased husband under the Law Reform (Miscellaneous Provisions) Act 1934. She blames the appellant, the Ministry of Defence, for the death of her husband who was serving in the Royal Navy. On 12th May 1993 His Hon. Judge Phelan sitting as a judge of the High Court gave judgment for the plaintiff for £160,651.16. He had reduced the damages of £214,201.54 by 25% which he held was the deceased's share of responsibility for his death. The appellant in this appeal challenges one of the two grounds on which the judge found it to have been in breach of duty to the deceased. It also seeks re-assessment of the apportionment of liability.

4

At the time of his death Terence Barrett, the deceased, was thirty years of age and a naval airman serving at a shore based establishment of the Royal Navy at Barduffos in northern Norway. The naval base is somewhat isolated and the shore facilities are uninviting. It was used for a series of training exercises known as "Exercise Clockwork". On 6th January 1988 detachments of marine commandos, together with No. 845 Helicopter Squadron from Royal Naval Air Station Yeovilton arrived to take part in one of these training exercises. The deceased was attached to the squadron.

5

Because the recreational facilities ashore were limited, the appellant had installed several video rooms, computer equipment, a gymnasium, a sauna and other recreational and educational facilities. Within the base there were three bars: the ward room, the senior rates' bar and the junior rates' bar, at which duty free drink could be obtained. Drinking in these bars when off duty was one of the main recreations of personnel attached to the base. In January 1988 the senior naval officer at Barduffos was Lt. Cdr. Lomax. The evidence was to show that his attitude to the enforcement of Queen's Regulations and standing orders, in particular to excessive drinking and drunkenness, was unusually lax. As a consequence of the death of the deceased, he was charged with and pleaded guilty to a breach of art. 1810 of Queen's Regulations which provides:

"It is the particular duty of all officers, fleet chief petty officers, chief petty officers, petty officers and leading ratings actively to discourage drunkenness, over-indulgence 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. Action taken is to be reported to the officer of the watch/officer of the day, naval provost unit or other naval authority as appropriate."

6

His plea of guilty acknowledged that he had negligently performed the duty of actively discouraging drunkenness and over-indulgence in alcohol.

7

Disciplinary measures to limit drunkenness in the Royal Naval have a long history. In his acclaimed work on life in the Georgian Navy, "The Wooden World", Dr. N.A.M. Rodger devotes a section of his chapter on shipboard life to the subject of drink. At page 73 he states:

"Everybody knew that drink was a factor in crime, most often the chief factor, but it was virtually impossible to do much about it. If liberty men came on board drunk, some captains put them in irons, but the regulations of Admiral Smith's divisional system went as far as most officers thought it reasonable or possible to go; the midshipmen of the watch were to "see all men they find far gone in drink, put in their hammacoes". If riotous they were to be confined until sober and then punished. Drinking as such was not a crime. The midshipmen were not:

"… to interrupt the men in mirth and good fellowship while they keep within the bounds of moderation, the intention of it being to prevent excessive drinking, which is not only a crime in itself but often draws men into others which when sober they would most abhor."

Even excessive drinking was only a slight offence, and no man who was peaceably drunk would normally be punished for it but in this as in all things, there was a great difference between the standards obtaining at sea and in port …"

8

For the purpose of Exercise Clockwork (Navy) 1988, Captain R.P. Warwick, commanding officer of Royal Naval Air Station Yeovilton, issued instructions to the senior naval officer of Barduffos who was to be in local administrative and tactical control of all Royal Navy and Royal Marine personnel attached to Royal Naval Air Station Barduffos for the purpose of Clockwork training. The instructions included control and security of duty free stores, bars, entertainment etc. and powers of punishment. Attention was drawn to the rules in force for the Royal Naval detachment at Barduffos for the senior rates' mess and for the junior rates' mess, including instructions for the running of mess bars with opening and closing times. Sec. 28 of the Naval Discipline Act contains a definition of drunkenness:

"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 any duty which he might reasonably expect to be called upon to perform or behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty's service."

9

In this section "his duty" refers to his professional duties, together with other duties incidental to naval life. He could reasonably expect to be called upon to carry out his normal duties during working hours and when nominated for duty outside working hours. Notes included guidance for dealing with men who were unfit for duty due to drink:

"(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. When in doubt send for the duty M.A.

(iv) If be becomes violent, keep the cell door locked. If he tries to injure himself, call the medical officer and restrain him if necessary with additional hands and a Neil Robinson stretcher.

(v) All senior ratings are to be placed in the care of the president of the mess.

(vi) On no account is a drunken man to be charged. This should follow when he is sober."

10

The echoes from Admiral Smith's divisional system are obvious.

11

The facts leading up to the death of the deceased were not in dispute. He died in his bunk between 2 a.m. and 2.30 a.m. on the morning of Saturday, 23rd January 1988. Friday, 22nd, was the deceased's thirtieth birthday. He had recently learned that after some ten years service he was to be promoted leading hand and so had additional reason to celebrate. Friday evening was customarily an evening for heavy drinking. On this Friday a Hawaiian party event had been organised in the senior rates bar. A number of the senior rates attending the party decided they would compete to see who could drink the most. Very substantial quantities of duty free spirits were consumed.

12

The deceased went to the junior rates' bar at about 9.15 p.m. to begin his celebrations. Having placed money behind the bar to treat his mess mates, the judge found he himself consumed there three cans of cider and two double Bacardis. At about 10.30 p.m. he was invited to the senior rates' bar where he was bought six Bacardis, each of which was a double measure. By about 11 p.m. he had consumed a minimum of four ciders and nine double Bacardis. It was not, however, suggested that the barmen in charge of either bar had served him personally with this number of drinks. Most of the drinks were bought for him. At about 11.30 p.m. he returned to the junior rates' bar to get fuel for his cigarette lighter and then went back to the senior rates' bar where, shortly afterwards, he became unconscious. He was carried back to the junior rates' bar where he was placed on a chair in the lobby. He was seen there by Lt. Cdr. Parker who had just returned from sledging. The deceased was then in a collapsed state and insensible. Petty Officer Wells, the duty senior rate whose office was nearby, organised a stretcher and the deceased was taken to his cabin where he was placed in his bunk in the recovery position. He was in a coma but tossing and turning. He was visited on about three occasions by the duty ratings. When his cabin mate went to turn in at about 2.30 a.m., he found that the deceased had vomited, had inhaled his vomit and was apparently asphyxiated. Attempts were made to revive him but without success. A board of inquiry was held and a ship's inquiry and many statements were taken from witnesses. Based on these...

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