Tort

Duty of care - soldiers' recreational outing - drunken soldier injured falling out of lorry on return journey - duty of supervision Jebson v Ministry of Defence:CA (Kennedy and Potter LJJ and Steel J): 21 June 2000

The claimant was one of a group of soldiers taken into Portsmouth from a military camp for a recreational evening.

The army supplied a lorry with a driver for the evening's transport.

The driver could not see into the back of the lorry where the soldiers were seated.On the return journey, when most of the men were drunk, the claimant fell out of the lorry while trying to climb from the tailgate on to the canvas roof, and suffered severe injuries.His action in negligence against the defendants was dismissed.

The trial judge held that it was foreseeable that the soldiers would return drunk and ought to have been supervised, but it was not foreseeable that the claimant would try to climb on to the roof and therefore liability was not established.

The claimant appealed.Bill Braithwaite QC and James Rowley (instructed by Leigh Day & Co, Manchester) for the claimant.

Robert Jay QC (instructed by the Treasury Solicitor) for the defendants.Held, allowing the appeal with a finding of 75% contributory negligence, that although an adult should ordinarily appreciate the dangers created by his own actions and could not rely on his drunkenness to give rise to a duty on others to take special care, that was not an invariable rule; that since it was foreseeable that the soldiers would return drunk the unsupervised transport provided was deficient; that the foreseeable risk included drunken and rowdy behaviour which might result in someone falling from the vehicle which gave rise to a particular duty to take precautions to protect drunken passengers; and that, accordingly, liability was established.