Law Report: Navy liable for drinker's death: Barrett v Ministry of Defence. Queen's Bench Division (Judge Phelan, sitting as a deputy High Court judge), 27 May 1993

The Ministry of Defence was liable in negligence for the death of a naval airman who was allowed to get so drunk at a party to celebrate his birthday that he fell into a coma and choked on his own vomit. The Navy was in breach of its duty of care to the deceased, and the fact that he had willingly consumed the alcohol was no defence, though damages were reduced by a quarter for contributory negligence.

Judge Phelan gave judgment for the plaintiff, Dawn Barrett, suing on her own behalf and as executrix of the estate of her deceased husband, Terence Barrett, and awarded her pounds 160,651 in damages against the Ministry of Defence, pursuant to her claim under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.

The deceased died on the night of 22-23 January 1988 at a naval base in Bardufoss, Norway. He was in good health and had been celebrating his 30th birthday and promotion. Between 9.15pm and midnight, he drank at least four ciders, nine double rums with cola, and a vodka with orange. After vomiting and being left slumped in a chair, he was carried unconscious to his cabin where, lying in a coma, he was watched intermittently until 2.40am, when his cabin mate returned. An attempted resuscitation was unsuccessful. He died of aspiration of vomit consequent on intoxication.

Geoffrey Nice QC and Anthony Seys Llewellyn (Stewarts) for the plaintiff; Brian Leveson QC and Robert Jay (Treasury Solicitor) for the defendants.

JUDGE PHELAN said the evidence he had heard, of routine drunkenness at the base, largely encouraged by its commanding officer, depicted a perfectly deplorable situation.

The deceased was known to be a heavy drinker. There was little inducement to go ashore for recreation, since alcohol prices were high in Norway and astonishingly low in the base. Despite a good range of recreational facilities, boredom was inevitable and foreseeable. Disciplinary codes existed which, if implemented, would have greatly reduced drunkenness.

If the defendants grossly failed to enforce their regulations it was foreseeable, in this particular environment, that the deceased would succumb to heavy intoxication.

His Lordship accepted that in the absence of voluntary assumption of responsibility or obligations to take care, it was only in exceptional circumstances that a defendant was fixed with a duty to take positive steps to protect a person of full age and capacity from his own weakness.

Those circumstances, exceptionally, arose here and it was just and reasonable to impose a duty at law to take reasonable steps to prevent the deceased becoming unconscious through alcohol abuse.

As for the defendants' duty once the deceased had collapsed, save for advice to put him in the recovery position and watch him, there were no clear orders from officers as to how he should be treated and no adequate medical cover available.

The doctrine of volenti non fit injuria had been pleaded as a defence to any finding of negligence up to the time the deceased became incapable. Since the introduction of apportionment for contributory negligence, strict requirements had been imposed on the defence of volenti: see Morris v Murray (1991) 2 WLR 195 and Nettleship v Weston (1971) 2 QB 691. The plaintiff must expressly or impliedly agree to waive any claim for injury arising from the defendant's failure to measure up to the standard of care required.

Here, the deceased's mind became clouded with alcohol and the evidence could not possibly justify a conclusion that he voluntarily assumed the risk of grave or fatal injury by carrying on through this evening, despite the defendants' lack of control over excessive drinking.

The defendants also alleged contributory negligence, which the onus was on them to establish. Here, the deceased became unconscious through drinking too much and was then so inadequately cared for that he died.

Had he been adequately cared for, on the probabilities, he would not have died. If he himself, to some degree, caused his vulnerable condition of unconsciousness, it seemed the case was analogous to the passenger who created a vulnerable situation by failing to use a seat-belt: see Froom v Butcher (1976) QB 286.

In the circumstances, his Lordship considered it just and equitable that damages should be reduced by 25 per cent for the deceased's contributory negligence.