Dwayne Humphrey (Claimant/Appellant) v Aegis Defence Services Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Richards,Lord Justice Floyd |
| Judgment Date | 14 January 2016 |
| Neutral Citation | [2016] EWCA Civ 11 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2014/0882 |
| Date | 14 January 2016 |
[2016] EWCA Civ 11
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Bidder Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
Lord Justice Richards
and
Lord Justice Floyd
Case No: B3/2014/0882
Mr. Robert Weir Q.C. and Mr. Eliot Woolf (instructed by Bolt Burdon Kemp) for the appellant
Mr. David Platt Q.C. and Mr. Patrick Blakesley (instructed by Kennedys Law LLP) for the respondents
Hearing date: 15 th December 2015
This is an appeal against the order of His Honour Judge Bidder Q.C., sitting as a Deputy Judge of the Queen's Bench Division, by which he dismissed the appellant's claim for damages for personal injury and gave judgment for the respondents.
The appellant, Mr. Dwayne Humphrey, is a former marine who was engaged by the second respondent to work for the first respondent providing close protection security services in connection with the reconstruction of Iraq following the war in 2003. It was common ground that no distinction is to be drawn for the purposes of the present proceedings between the positions of the first and second respondents and it will therefore be convenient to refer to them together simply as "Aegis". Mr. Humphrey's role was to act as part of a security team escorting military and civilian personnel to meet contractors.
The provision of protection services requires the use of Iraqi interpreters, who are also recruited and trained by Aegis. The work is dangerous, because of the risk of armed attacks by insurgents and their use of hidden improvised explosive devices, and it was necessary for both contractors and interpreters to maintain a certain level of fitness. They had to be capable in an emergency of making an orderly withdrawal under fire, taking with them a wounded colleague. In order to simulate those conditions, security escort teams, each consisting of three contractors and an interpreter, were required from time to time to undertake what was known as a 'Fitness for Role' ("FFR") exercise designed partly as a team-building exercise, partly in order to ensure they could respond appropriately if they met armed insurgents, but mainly to test the fitness of the members of the team. The exercise, which was carried out wearing full kit, involved walking quickly for a distance of about 250 metres, making simulated contact with an enemy force, withdrawing under fire in a manoeuvre known as "pepper potting", in which each pair in turn provided covering fire while the other pair retreated, carrying a loaded stretcher a distance of 250 metres before changing positions and then carrying it a further 250 metres. The exercise had to be completed in 13 minutes. It could be completed at a reasonable walking pace, but in practice an element of competitiveness tended to creep in and it was usually carried out at a fast jog.
The contractors themselves were former servicemen who generally maintained a high level of physical fitness, whereas the interpreters, who were all civilians in whose culture high levels of fitness were not so prized, were generally rather less physically fit. In the course of one such exercise conducted on 9 th August 2009 the interpreter member of the appellant's team let go of the back left handle of the stretcher they were carrying without warning, causing an additional weight to be thrown on to the appellant, who was holding the back right handle, wrenching his left shoulder. As a result, the appellant brought a claim against the respondents in negligence seeking damages for personal injury. The respondents accepted that they owed the appellant a duty to take such care for his safety as was reasonable in the circumstances, but they denied that they had been in breach of their duty towards him and in due course that question was tried as a preliminary issue by His Honour Judge Bidder Q.C..
The judge made the following findings of fact which are of direct relevance to the issues that arise on the appeal:
(i) that the exercise was carried out under supervision, the supervisor accompanying the team in order to observe their progress and to make them aware whether they were keeping up to time [37] — [38];
(ii) that the interpreter found the early parts of the exercise arduous, because his cardiovascular fitness level was not good enough for the exercise [40], but the signs of fatigue were not particularly striking [41];
(iii) that the interpreter was puffing and panting after completing the first stage of the exercise, but he gave no verbal indication of wanting to give up before dropping the stretcher, nor did he warn anyone that he was about to do so [54];
(iv) that neither the appellant nor the person being carried in the stretcher thought that the interpreter was a risk to their safety [77];
(v) that the interpreter was on his first FFR exercise and did not have a minimum acceptable level of fitness [112];
(vi) that the standard of fitness of interpreters had been very low between 2005 and 2007, but that by 2009 there had been a significant improvement [58];
(vii) that it was sensible and reasonable to require interpreters to train with the contractors and that their training should include a stretcher-bearing exercise [62];
(viii) that there had been a previous occasion on which an interpreter had dropped out of a stretcher-bearing exercise as a result of lack of physical fitness [64];
(ix) that there was a foreseeable risk of minor soft tissue injury as a result of an unfit interpreter's dropping his handle of the stretcher during an exercise of that kind [71];
(x) that Aegis insisted on an induction training exercise and on regular fitness tests, but that it was reasonable to apply a more lenient standard to the interpreters; although Aegis did dismiss some interpreters whose fitness never improved, it was unrealistic to expect them to achieve the same level of fitness as the contractors [116];
(xi) that Aegis did not demand a minimum level of physical fitness for employment as an interpreter, but they tested their fitness on induction and encouraged them by regular tests to maintain or improve their fitness [73];
(xii) that interpreters were essential to the reconstruction process and that it was extremely important, having regard to their deployment in potentially life-threatening situations, that they should take part in tests designed to encourage an increase in their fitness; that it was also important for them to be part of security escort teams in order to inculcate a team spirit and to make them understand what might happen in an emergency [75];
(xiii) that it was not reasonably practicable to reject interpreters or dispense with their participation in the FFR tests because of their comparatively low fitness level because they were such a scarce commodity [76];
(xiv) that the interpreter dropped the stretcher by reason of fatigue coupled with an element of deliberation [81], rather than simply by accident [83]; the dominant cause of the accident was the unfitness of the interpreter and his decision to drop the stretcher out of fatigue [87].
None of those findings of fact were challenged.
When he came to determine whether the respondents had been in breach of their duty of care the judge identified the risks as follows:
"92. What are then the relevant factors in making the determination of whether the defendants have been proved to have failed in that duty? First of all, what was the nature of the risk? The risk which eventuated and caused the accident, in my judgment, was that of an unfit interpreter, part of the team, through fatigue deliberately or accidentally dropping his end of the stretcher.
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