On or off-duty? Injury in the course of employment?

Vaughan v Ministry of Defence (MoD), a decision of William Davis J in May this year, raised the thorny subject of on or off duty status of service personnel undertaking adventure training. The decision could cut across to other civilian and business settings, for example at team building away days, free time at conferences, etc. The recent decision may be contrasted with a previous Court of Appeal case, Radclyffe v MoD, which was pursued by the same claimant firm and the same leading counsel.

Vaughan v MoD [2015] EWHC 1404 (QB)

Spencer Vaughan was a Royal Marine on an adventure training exercise in 2010 in Gran Canaria. On the final day of the trip, a Non-Commissioned Officer (NCO) told the men that they were free to do what they wanted until 1300hrs. While visiting a tourist beach, Vaughan performed a shallow dive into the sea and struck a sand bar. He sustained a fracture of the cervical spine, resulting in incomplete tetraplegia.

His case was that MoD owed him a duty of care and there was no doubt that this proposition was correct. However, did the duty of employer extend to areas outside of work done in the course of employment and anything reasonably incidental to that work? The case also questioned duty status and whether the requirement for Royal Marines to be physically fit meant that whenever they undertook exercise they were acting in the course of ‘employment’.

Two Joint Services publications defined ‘on duty’ for the purposes of adventure training and specifically defined ‘off duty’ as ‘participating in other activities not required to meet the aims of the expedition such as social events’. Thus the conclusion was that the marines were not on duty at the time of the accident and the judge concluded that the men did not go to the beach with the intention of engaging in physical activity.

The NCO said that he was under a general duty as the senior member of the group to take reasonable care for the safety of the men and parallels were drawn with the case of MoD v Radclyffe [2009], although the facts were somewhat different (see below).

The NCO was not present at the beach and even if he had been, the judge was certain that the marines would not have asked his permission to go into the sea or to execute a shallow surface dive. On the issue of breach of duty, the claimant’s military expert said that the NCO should have visited the beach and made safety checks. The judge disagreed because this would have been to impose a requirement far in excess of that required even if this had been an ‘employment’ situation. Moreover, there was no evidence that these steps would have made any difference.

The judge ruled that the claimant had a genuine and informed choice as to how he entered the sea. Furthermore, he was not acting in the course of his ‘employment’ nor was he subject to any lack of capacity. The claim was dismissed and is unlikely to be appealed.

There was no pressure or expectation on Vaughan to execute the shallow dive into the sea and he had nothing to prove to his colleagues. This set his case apart from that of Radclyffe, in which the court found that there was immense pressure on the claimant, including that from a more senior officer, to show his men he was not scared jump from a high bridge into open water.

MoD v Radclyffe [2009] EWCA Civ 635

In Radclyffe the Court of Appeal upheld the right to compensation for catastrophic injuries suffered by 2nd Lieutenant Radclyffe when he leapt 65 feet from the bridge over the Okerstausee reservoir, in Germany, where he and his men were on an adventure training exercise. He was left paraplegic after he hit the water with his knees bent.

At Sandhurst, Lieutenant Radclyffe had been told that “he was responsible for his soldiers 24 hours a day.” On the day of the accident, his Captain indicated he should show the men he was not scared and that it would be “bad form” if he didn’t jump. Several soldiers had already taken the plunge, with the Captain’s permission and, despite his reservations, Radclyffe, who was new to the unit, felt he had to make the jump. He did so without incident.

The following day, as he was swimming in the reservoir with another group of soldiers who also wanted to jump from the bridge, his Captain’s words were ringing in his ears as felt that it was up to him to show his men how to do it. He leapt from the bridge again, but on this occasion suffered catastrophic injuries.

The MoD denied liability, insisting that he was off duty at the time of the second jump and that was “the voluntary author of his own misfortune.” The trial judge disagreed and said that the young officer was under “considerable pressure” to take the plunge, even though it was obviously dangerous, and it was “not solely his own freely made decision.” The Court of Appeal agreed and said there was “huge pressure on him” to prove that he was “as brave as the men.” The MoD’s appeal was dismissed on this basis.


About the Author

Jef Mitchell is a consultant at BLM and former Chief Claims Officer at the Ministry of Defence where he regularly briefed Ministers on claims issues and risk management. He now helps to lead the firm’s Policy and Government Affairs work with Alistair Kinley preparing submissions and supporting evidence for consultations and reform proposals, in addition to liaising with government departments and regulators on key issues and consultations affecting the firm and its clients. Jef is also an accredited mediator.

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