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LAW REPORT: Sailor most to blame for own death - Barrett v Ministry of Defence. Court of Appeal (Lord Justice Neill, Lord Justice Beldam and Lord Just ice Saville), 21 December 1994.

A naval airman who got so drunk at a party to celebrate his birthday that he fell into a coma and choked on his own vomit was mainly responsible for his own death. But the Navy, which owed him a duty of care, was also partly liable.

The Court of Appeal unanimously allowed an appeal by the Ministry of Defence against the decision of his Honour Judge Phelan, sitting as a deputy High Court judge (the Independent, 3 June 1993) who had awarded £160,651 in damages to the plaintiff, Dawn Barrett, suing on her own behalf and as executrix of the estate of her deceased husband, Terence Barrett, pursuant to her claim under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.

The judge held the Navy to be principally responsible for the deceased's death seven years ago but reduced damages by a quarter for his own contributory negligence. The Court of Appeal increased the deceased's contributory negligence to two-thirds and reduced the damages award to £71,400.

Terence Barrett was serving at a naval base in Norway. The judge heard evidence, which he described as deplorable, of routine drunkenness at the base, largely encouraged by its commanding officer.

On the night of 22 January 1988, the deceased was 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 upon intoxication.

The deceased was known to be a heavy drinker and it was foreseeable in this particular environment that he would succumb to heavy intoxication. In these circumstances, the judge considered that it was just and reasonable to impose a duty of care on the defendant, and held that it was in breach of that duty because it failed to enforce its own disciplinary codes on the sale and consumption of alcohol. But the defendant denied the existence of a duty of care and said that the deceased, as a m ature adult,was solely to blame for his collapse.

Brian Leveson QC and Robert Jay (Treasury Solicitor) for the defendant; Geoffrey Nice QC and Anthony Seys Llewellyn (Stewarts) for the plaintiff. LORD JUSTICE BELDAM said mere foreseeability of harm was not a sufficient foundation for a duty to take carein law. The question was whether it was fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of another. The mere existence of regulatory of other public duties did not of itself create a special relationship imposing a duty in private law.

His Lordship could see no reason why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink. No one was better placed to judge the amount that he couldsafely consume or to exercise control in his own and others' interest. To dilute self-responsibility and blame one adult for another's lack of self-control was neither just nor reasonable, and would take the development of the law of negligence an increment too far.

His Lordship would reverse the judge's finding that the defendant was under a duty to take reasonable care to prevent the deceased from abusing alcohol to the extent he did. Until he collapsed, the deceased was in law alone responsible for his condition.Thereafter, when the defendant assumed responsibility for him, the measures taken fell short of the standard reasonably to be expected. Medical assistance was not summoned and the supervision provided was inadequate.

But the deceased's fault was a continuing and direct cause of his death and a greater share of the blame should rest on him. His damages should be reduced by two-thirds, leaving the defendant liable for one-third of the total amount.