Being responsible
Date: 16 October 2009
Authors: Ravi Nayer
Issue: Vol 159, Issue 7389
Categories: Features, Employment
Much has been written about the House of Lords’ judgment in Tomlinson v Congleton Borough Council [2003] UKHL 47, [2003] All ER (D) 554 (Jul) in which the law lords held that whether a claimant was a trespasser in a lake or a lawful visitor when he swam, the defendant council had no liability to him under the Occupiers’ Liability Act in respect of an obvious risk which he willingly ran.
In this journal, as elsewhere, the detail of its application to occupiers’ liability cases and the “compensation culture” that prompted it have been much rehearsed, while virtually nothing has been said of how, if at all, Lord Hoffmann’s powerful imperative that people should accept responsibility for the risks they willingly choose to run applies in the “employment context”. In Radclyffe v The Ministry of Defence [2009] EWCA Civ 635, [2009] All ER (D) 299 (Jun), however, the Court of Appeal considered this important issue.
The facts of Radclyffe
The Okerstausee lake in the Harz nature reserve, near Hanover, Germany is a renowned beauty spot. The lake is crossed by a road bridge. In July 2003, the Ministry of Defence (MoD) organised an adventurous training exercise for a group of some 60 soldiers to the area. The intention was to provide a working break for the soldiers after a three-month tour in Iraq. The men were split into two groups. In charge of the second group was one Captain Jones. He was assisted by the more junior Mr Radclyffe, then aged 24, and a second lieutenant in the First Battalion of the Irish Guards.
On 8 August 2003, no adventure training had been organised. About 20 men from the second group went up to the lake to swim. Four guardsmen asked Captain Jones if they could jump into the lake. Having instructed one of the men to check the bridge and the depth of the water he gave permission for the men to jump from the bridge. While he and Mr Radclyffe watched the men jump, Captain Jones told Mr Radclyffe it would be “bad form” if the officers did not also jump.
Mr Radclyffe felt he was “on duty”; he was new to the unit and, at Sandhurst, he had been taught he was responsible for his soldiers 24 hours a day. These factors meant he felt compelled to jump. He emerged unscathed.
The next day Mr Radclyffe and a few soldiers found themselves at the lake again. Two guardsmen asked Mr Radclyffe for permission to jump from the bridge. Having in mind Captain Jones’s previous permission, Mr Radclyffe agreed to the jump.
First, however, he wanted to demonstrate how to do it properly, believing he was still on duty and responsible for his men. The distance Mr Radclyffe jumped was later calculated at 65 feet: one foot less than a standard cricket pitch; when he hit the water he was travelling at 45mph.
Tragically, Mr Radclyffe sustained serious spinal injuries upon impact with the surface of the water, and was left permanently disabled.
The first instance decision
In the High Court, the judge considered that, once at the lake, the men were operating under “military discipline” —compellingly evidenced by the fact that they sought permission to jump. In giving permission, Captain Jones was acting in the course of employment in accordance with the principles enunciated in Lister and another v Hesley Hall Ltd [2001] UKHL 22, [2001] All ER (D) 37 (May). The judge found that the decision to grant permission to jump was negligent, because at no point did it occur to Captain Jones to assess the likely consequences of a jump from such a height and the likely speed at which the water would be hit.
Critically, the judge found that Mr Radclyffe’s jump was directly and causally influenced by Captain Jones’s conduct on the previous day—the pressure had not evaporated, but rather remained irresistible. Contributory negligence was placed at 40% on account of Mr Radclyffe having gone along with Captain Jones’s flawed perception of the risk of jumping.
The appeal
In the Court of Appeal, the MoD took three points: that Mr Radclyffe was the voluntary author of his own misfortune; that the previous conduct of Captain Jones had no causative influence on the accident; and that the MoD was not vicariously responsible for Captain Jones’s action at the relevant time because, he, Mr Radclyffe and the soldiers were “off duty”.
All three grounds were dismissed by the Court of Appeal (the president of the QBD, Sir Anthony May, giving the only reasons) and the decision below upheld. The second and third grounds were decided on relatively straightforward bases: (i) the conclusion that the previous day’s events carried through causatively was well within the judge’s judicial competence and was not amenable to appeal; and (ii) the judge’s conclusion that the men were under “military discipline” could not be interfered with and, in those circumstances, the fact that the men were “off duty” was nothing to the point. In dismissing the MoD’s argument on the Tomlinson point, the president reasoned that he did not read the Tomlinson decision as applying to the case he had to decide. Contrary to Tomlinson, and in accordance with his comments in Poppleton v Trustees of Portsmouth Youth Activities Committee [2009] PIQR P1, the MoD had assumed, through Captain Jones, responsibility for Mr Radclyffe’s safety.
Immiscible concepts
Proximity
From the judgment in Radclyffe, the starting point must be that, at least hypothetically, the door remains open for a successful application of Tomlinson in the employment context. Lord Hoffmann’s opinion in Tomlinson (where he stated that “a duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk …” [emphasis added]) would also seem to require it.
However, it is also plain that the Court of Appeal did nothing to controvert the comments of the judge at first instance focusing upon the more proximate relationship between employer and employee or that Tomlinson was grounded in the principles relating to users of land. Indeed, the Court of Appeal may have tacitly approved, emphasising that the “relationship between [the MoD] and Mr Radclyffe was that of employer and employee, and they had…assumed through Captain Jones responsibility for his safety”, at [22].
This prompts the question why all employment cases will not be characterised by this most basic assumption of responsibility.
We might also legitimately ask if it is somehow more distasteful for employers to deploy Tomlinson arguments against employees, than for landowners in respect of claims by trespassers. To some, in some small way such arguments hark back to a time when it was normal to speak of “masters” and “servants” and where the legal defences of “common employment” and volenti were determinative.
Today, employees are altogether more valued and, certainly, more protected. More, however, is expected of their employers. So much was acknowledged by Lord Slynn in Spring v Guardian Assurance Plc [1995] 2 AC 296, at 335. It is with one eye on this inexorable progression that defendants cannot expect courts to strain unduly to find the comparatively high standard of care that employers owe their employees undermined by an employee’s acts—so long as to some extent they are in the course of employment and causatively sustainable.
The Compensation Act 2006
By reference to more general policy considerations, s 1 of the Compensation Act 2006 purports to crystallise the House of Lords’ judgment in Tomlinson. As such, it may be thought to shed light on how Tomlinson applies outside of the occupiers’ liability context. However, it is apparent that the emphasis of the draftsman of the Act is upon situations where the ties between tortfeasor and injured party are a good deal less proximate than those between employer and employee.
This may explain why the explanatory note to the Act seeks to protect “the social value of activities” and the Act itself refers to “desirable activit[ies]”. Did the draftsman really have mind the case of employees? Certainly, it is straightforward that employment is not an activity expressly mentioned; nor, for most, in any sense is it an optional pastime (like climbing mountains and hang-gliding, at [45] of Tomlinson) but an unavoidable fact of life.
For those keen to rely on Tomlinson, all may not be lost though. In a judgment handed down after the Court of Appeal’s in Radclyffe (though not referring to it), the High Court considered a case of alleged breach of the employer’s primary duty of care to protect a civil engineer who voluntarily went into Iraq to assist with reconstruction of the country (see Hopps v Mott MacDonald Ltd and The Ministry of Defence [2009] EWHC Civ 1881, [2009] All ER (D) 259 (Jul)).
While not suggesting that Mr Hopps was the author of his own misfortune, as the MoD did in Radclyffe, the defendants did deploy s 1 of the Act. In siding with the employer, the judge held that application of the 2006 Act should not be limited to “desirable activities”, instead holding that it could have a bearing on issues directly relevant to a finding of whether an employer had breached his duty towards his employee, particularly when that work “would carry with it risks to the safety of coalition forces and civilian contractors in Iraq …”. It remains to be seen what, if any, bearing this wide construction of s 1 will have on the next case seeking to apply Tomlinson in the employment context. Certainly, it is potential authority that Tomlinson policy principles, despite the outcome in Radclyffe, have a role to play in employers’ liability cases.
So what does Tomlinson add?
It remains arguable that the above thematic difficulties are eclipsed by the practical obstacles in running a Tomlinson defence. Reverting to first principles for a moment, it is trite that an employer will only be liable to his employee if: (i) he is shown to be vicariously liable for the negligence of another employee which leads to the claimant employee being injured (the facts of Radclyffe); or (ii) he is in breach of his personal or statutory duty of care to the claimant employee who suffers injury as a result of a breach. He will escape liability in the former case where it is found that the acts or omissions of his employee were: (i) not negligent; (ii) if negligent, not in the course of their employment; and/or (iii) that, quite apart from any finding of negligence, such acts or omissions were not of any causative potency. In the latter case, an employer will escape liability because (i) it is found that there is no breach of personal or statutory duty (in this context, note the relevance of the “course of employment” test imported by s 52 of the Health and Safety at Work etc. Act 1974); (ii) it can be shown that, on the balance of probabilities, but for the breach the same outcome would have eventuated; and/or (iii) that the employee’s own wrongful act is solely responsible for putting the employer in breach of statutory duty.
The above gives rise to the seemingly ineluctable conclusion that, where Tomlinson might otherwise be argued to apply, it is arguments about the course of employment and causation of injury that are determinative in employees’ claims against their employers. Consider the Radclyffe scenario—in deciding whether an employee has acted negligently in the course of their employment, the courts, looking at the position broadly, assess the role the employee performed, and then all of the circumstances of the commission of the tort.
But a finding that the employee was acting in the course of employment cannot, or at least should not, then be opened and subjected to Tomlinson policy arguments. As well as introducing a further barrier to recovery for claimants, it creates confusion.
First, it stands to reason that the foundations of the Tomlinson doctrine (and, by extension, the submissions of the MoD in Radclyffe) sit uncomfortably with Lord Steyn’s rejection, in Lister, that “the greater the fault of the servant, the less the liability of the master”, at [23]; especially where, as in Radclyffe, the circumstances of the negligent employee’s acts were inextricably linked with those of the claimant employee’s, ie giving permission to jump and the jump itself.
Second, since liability in vicarious liability cases has itself grown from nothing more than “social convenience and rough justice”, applying pronouncements to similar effect is unnecessary.
It remains to be seen, taking this argument to its limit, whether any brave lawyer will invite a judge to interpret Lord Hoffmann’s words—“as in the case of employees whose work requires them to take the risk”—as no more than an appreciation that Tomlinson will not apply to employees acting in the course of their employment.
It is at least arguable, therefore, that common law principles of employers’ liability suffice to answer the vast range of scenarios, without recourse to Lord Hoffmann’s warnings. The Court of Appeal’s failure to consider whether the duty of care, which certainly existed, was destroyed by Mr Radclyffe’s actions may constitute an acceptance of this state of affairs.
In reality then, Tomlinson arguments did not have a material part to play in Radclyffe.
The MoD required the Court of Appeal to overturn the judge’s factual findings that Captain Jones was acting in the course of employment when he commented on the need to jump into the lake; and that these comments exerted a baleful influence on Mr Radclyffe. Had it done so, the MoD’s liability for Mr Radclyffe’s injuries would have been avoided.
This outcome prevents Radclyffe from being a landmark ruling—as Tomlinson itself was. Rather, the importance of the case lies in its novelty.
Defendant lawyers should, however, take note—it is hard to conceive of a set of facts where a defendant employer will be found to be vicariously liable or primarily liable but for the application of the doctrine in Tomlinson. The simple reason is that there is in law no real need for it.
Ravi Nayer, barrister, Fishburns Solicitors
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