COURT OF APPEAL
CHRISTOPHER JEBSON
and
MINISTRY OF DEFENCE
CASE REPORT
Drunken claimant suffers severe brain injury when he falls
out of Army lorry The defence is that he is not owed a duty because he chose
to get drunk.
On the 8th April 1995 Mr Christopher Jebson, who was born on the 24th December
1973 and so was then 21, was injured severely when he fell out of an Army
lorry. His claim came on for trial of liability before Mr Justice Jowitt in
May 1999, and failed. His appeal to the Court of Appeal succeeded. The case
raises an area of great interest to those of us who frequently represent claimants
in the Armed Forces, highlighting as it does the difficulties arising out
of drunkenness.
The Claimant was a guardsman in the Grenadier Guards, and his company was
being trained for a spell in Northern Ireland. Their commanding officer arranged
for them to have a night out in Portsmouth, to "relax"; he arranged a lorry
to take them there and back, and a driver was volunteered. On the way back,
almost all of them were "plastered" (that being the word used by one of the
NCOs present). There was a Lance Sergeant present, who had been out, but apparently
he was not drunk; he was the "vehicle commander" required by regulations in
addition to the driver of the lorry. He got into the front passenger seat,
having checked the men into the back of the lorry, and they started on the
journey back to barracks. No doubt because they were drunk, one or more of
the men started to "show off" in the back, this being a canvas topped four
tonne lorry, with an open back. There was a car with four girls in it behind
them, and doubtless the temptation was too much. The men were standing on
the tailgate, and one of the NCOs was trying to climb onto the roof of the
lorry. The Claimant tried to stop him, but then himself started to try to
climb onto the roof. Not surprisingly, but tragically, he fell onto the road
and sustained severe brain damage.
This practice is moderately well-known generally, and is called "urban surfing".
The trial judge found that
it was reasonably foreseeable to the Defendants that, on an occasion
such as this, at least some of the soldiers would return to the lorry
for the journey back to camp in various stages of drunkenness
it was foreseeable that drunken men might well not sit sensibly during
the journey, but might stand up and move about in the back of the lorry
being part of such a group of men might encourage some to be restive
and foolish
it was reasonably foreseeable that, if this happened, the combination
of the movement of the lorry and the effect of the alcohol might well
cause a person to stumble or fall
in so doing, he could suffer injury of a kind which could range from
slight to serious.
Robert Jay Q.C. for the Ministry of Defence argued that none of that foreseeability
helped the Claimant, because there was no duty on the Defendants to protect
the Claimant against the consequences of his own voluntary act in getting
drunk, and his own foolhardy, reckless and voluntary conduct in climbing up
onto the tailgate, and trying to climb onto the roof. It was accepted by the
Defendants that, if they owed the Claimant a duty, an appropriate way to discharge
that duty would have been to have supervision in the back of the lorry.
The Defendants relied heavily on Barrett v Ministry of Defence [1995] 1
WLR 1217. In that case, an off-duty naval airman at a shore base in Northern
Norway engaged in a bout of heavy drinking and became unconscious. He was
placed in his bunk in the recovery position, but was later found dead, having
choked on his vomit. Up to the time that the deceased's colleagues assumed
responsibility for him, by taking him to his bunk, he alone was held to be
responsible for his condition. It was argued that Barrett was decisive against
Mr Jebson.
The judge held that
there was a duty, by reason of the drunkenness of the Claimant and others,
to supervise the passengers in the back of the lorry, and that
such supervision would have prevented the accident, but that
it was not reasonably foreseeable that, whilst the lorry was going at
40 to 50 mph, the Claimant "would go so far along the road of folly as
to stand on the tailgate and try from there to climb on to the canvas
top".
The judge distinguished Hughes v The Lord Advocate [1963] AC 837. That was
the case in which a boy of eight fell into an unattended open manhole in the
road, causing an explosion when a traffic lamp fell into the manhole with
him, and broke. He said that Hughes did not assist the Claimant, because this
was not a case of damage arising unpredictably from a foreseeable accident,
but that the accident itself was not foreseeable.
We felt that conclusion was wrong, and were moderately confident of success
on appeal on that point. However, the Defendants cross-appealed, arguing that
they did not owe the Claimant a duty of care to safeguard him from the consequences
of his own foolhardiness. In other words, they sought to put the case on the
same basis as Barrett.
The argument in the Court of Appeal was fascinating. The initial impression
was that this was one step too far for claimants. If you go out and get drunk,
then you must take the consequences. However, the Army had arranged the trip,
provided the lorry and driver, and could and should have anticipated that
the men would be drunk and behave foolishly. They could have prevented the
accident simply by arranging for the Lance Sergeant to sit in the back and
keep order.
There was a moment of real human interest. The argument gradually swung
in favour of the Claimant, and eventually the Court asked defence counsel
if his case was that the duty on the Defendants should be assessed regardless
of the fact that they knew that the Claimant was drunk. He was driven to agree
that he was indeed putting that argument forward, and the whole court paused
for contemplation, seeing, I thought, the essential weakness of the defence
position.
The end result was that the appeal succeeded, but the trial judge's assessment
of contributory negligence was not changed (I thought that a fair assessment
of respective blame would have been 50/50, but the Court of Appeal felt that
they had gone far enough by allowing the appeal, and were not prepared to
alter the judge's view.
