Neutral Citation Number: [2013] EWCA Civ 676
Case No: B3/2012/2158
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
THE HONOURABLE MR JUSTICE BLAIR
9MA91625
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/06/2013
Before:

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE TOMLINSON
and
THE RIGHT HONOURABLE LORD JUSTICE LEWISON
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Between:

	THOMAS BIRCH	Appellant	
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	MINISTRY OF DEFENCE	Respondent	

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Ms Amanda Yip QC & Mr Christopher Barnes (instructed by Hilary Meredith Solicitors) for the Appellant
Mr Louis Browne (instructed by Berrymans Lace Mawer) for the Respondent

Hearing dates: 15th May 2013
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Judgment

Lord Justice Longmore: 
1.	Mr Tom Birch was born on 18th February 1988.  On 10th January 2005 he enlisted with the Royal Marines and did sufficiently well to pass out as a Lance-Corporal in September 2005.  After his 17th birthday he acquired a provisional licence and took some driving lessons.  But in September 2006 when he was 18½ he was deployed to Afghanistan before he had any opportunity to take a driving test.  Before he left he had received what is called Operational Training and Advisory Group (“OPTAG”) training during which he was instructed that in order to drive army vehicles he needed to have a UK driving licence and also to have what was known as an FMT 600 military driving permit if he was to drive an army Land Rover.  This information was repeated in the Receiving, Staging and Onward Integration (“RSOI”) briefing when he arrived in Afghanistan.
2.	In November 2006 he was stationed at a post on a mountain known as Athens in the area of the Kajaki Dam on the Helmand River with Captain (later Major) Kenny as his commanding officer, who was said to be an informal and popular officer.  The post came under frequent attack and it was a dangerous place to be.  There was a newly made mountain road which connected Athens and the Operations Mentoring Liaison Team (“OMLT”) compound at the foot of the mountain.
3.	Land Rover vehicles kept at the Athens post would go down to and come up from the valley with personnel and supplies.  The keys to the vehicles were kept in the Operations Room and anyone who needed to drive one of the vehicles would register his zap number with the radio operator in that room and the operator would record the details of his task on the movement board.  This was a critical safety procedure so that it was always known where men and officers were.  There were at least three authorised drivers at the base and no one suggested that that was not an adequate number.
4.	It was not unknown for Land Rovers to be driven by men without an FMT 600.  There was evidence that on 10th November 2006 Marine White who had a UK driving licence but not an FMT 600 drove a Land Rover up to the base.  On 13th November Marines Birch and White found themselves in a Land Rover; this time Marine Birch asked Marine White if he (Birch) could drive the vehicle up to Athens and White who was junior in rank to Birch seems to have agreed.  Nothing untoward occurred.  Later that day Captain Kenny needed a vehicle to go down to the base camp to collect three men and bring them up to Athens.  He shouted out for a driver and Marine Birch volunteered for the task (taking with him another Marine called Fenton).  The finding of the judge (para 49) was that Captain Kenny did not order Marine Birch to drive the Land Rover down to the OMLT, but that he did permit him to do so.  The judge also records (para 42) Captain Kenny as saying in evidence that he would not have expected Marine Birch to volunteer for the task because he was not a qualified driver.
5.	Most unfortunately at about 17.15 hours the Land Rover left the road on its downward journey apparently hitting the left hand (mountain) side of the track, crossing the width of the track and then plunging down the mountain side a distance of about 100 feet or so.  The vehicle landed rear first and upright.  The accident was noticed by some American workers in the valley and help soon arrived.  But both Marine Birch and Marine Fenton were at best semi-conscious and Marine Birch had to be cut out of the vehicle.  He suffered severe injuries.  His parents flew out to Oman where he was hospitalised before they all returned to England.  Marine Birch’s injuries have proved to be serious and long-lasting; sadly his army career is over.  His parents attended the appeal on his behalf.
6.	The main contest at trial was whether the cause of the accident was a defect in the vehicle or driver error.  The judge held it was driver error and there is no appeal from that finding or the finding that the vehicle was not defective.
7.	Most of the judgment deals with the question whether the vehicle was defective but Marine Birch always had a secondary case against the Ministry of Defence as his employer for failing to provide a safe system of work or a system where the rule that men without a FMT 600 licence could not drive army vehicles was properly enforced.
8.	The judge recorded that the duty imposed on Commanding Officers such as Captain Kenny by the Defence Road Regulations (JSP 341) was a duty to ensure that clear procedures and effective training for road safety and accident prevention were put into effect.  There was also (15.031) an obligation to ensure that all personnel permitted to use service vehicles were properly qualified and licensed.  The judge therefore added that Commanding Officers
“… are also responsible for ensuring that all personnel permitted to use service vehicles are properly qualified and licensed in accordance with the Regulations.”
9.	The judge concluded (paras 38 and 151) that the rule was not fully enforced in the light of that fact that Marine White had driven a Land Rover on a previous occasion and had also given evidence that he did so at least 3 times a week.  He also said that Marine Birch knew he was not allowed to drive a Land Rover since he did not have a FMT 600 permit.
10.	He then expressed his ultimate conclusion in this way (para 156):-
“… on balance I accept the defendant’s submission that the claimant must take responsibility for his own decision to drive, even though Captain Kenny permitted him to do so.  My conclusion on the claimant’s alternative case is as follows.  Captain Kenny said that he enforced the FMT 600 requirement as much as he could, and Corporal Hewett said that as section commander he enforced it.  I have accepted their evidence in this regard.  As I have found, there was a degree of non-enforcement, which I consider reflected the difficult conditions that existed for those serving in the observation post.  But in my view, it fell well short of establishing a failure to provide a safe system of work, or otherwise establishing breach of duty of care on the part of the defendant.”
Submissions
11.	Ms Yip QC for Mr Birch submitted that the judge failed to take into account the change that occurred in the defendant’s case at trial.  In response to Marine Birch’s claim that the MoD had not provided a safe system of work and that he should not have been allowed to drive the pleaded defence was that, when Marine Birch volunteered to drive, Captain Kenny did not know that he was not qualified to do so.  Captain Kenny’s witness statement said, however, that he did not know it was Marine Birch who had volunteered to drive.  In his oral evidence he said that he accepted responsibility for ensuring that the drivers he used were properly qualified and he also said that he knew Marine Birch (and for that matter Marines White and Fenton) had no FMT 600 licence and were therefore not qualified to drive.  He maintained that he did not know it was Marine Birch who had volunteered.  The judge must be assumed to have rejected that case because he held that Captain Kenny had permitted Marine Birch to drive.  Therefore, submitted Ms Yip, the true position was that Captain Kenny had permitted Marine Birch to drive when he knew he was not qualified to do so.  That was a clear breach of the MoD’s duty to provide a safe system of work for enlisted men such as Marine Birch and of their general duty of care to Marine Birch as a serving soldier.
12.	Mr Browne for the MoD submitted that the judge’s finding that Captain Kenny “permitted” Marine Birch to drive did not mean that he knew it was Marine Birch who was to do the driving.  The judge used the word “permitted” only because he was rejecting Marine Birch’s case that he had been ordered to drive.  The judge’s conclusion that Marine Birch had to take responsibility for his own decision to drive (even though Captain Kenny permitted him to do so) was, moreover, correct.
13.	It is perhaps a little unfortunate that the judge has not made any clear finding on either the question whether Captain Kenny knew Marine Birch was not qualified to drive an army Land Rover or on the question whether Captain Kenny knew it was Marine Birch who had volunteered and would drive the Land Rover.  It is understandable since the first question was, after Captain Kenny’s evidence, no longer really in dispute.  But the fact that Captain Kenny in his oral evidence accepted that he knew Marine Birch was not qualified did make it important to have a finding on the question which was now in dispute namely whether Captain Kenny knew it was Marine Birch who was going to drive the vehicle.
Knowing Marine Birch was unqualified?
14.	The pleaded defence case that Captain Kenny did not know Marine Birch was unqualified must have been derived from Captain Kenny’s statement to the Royal Military Police soon after the accident.  Captain Kenny is recorded as saying:-
“Since the incident occurred I have been informed by Mne Keen, of my unit, that LCpl Birch may not be licensed to drive a Land Rover and that he may not even have a UK driving licence.  Had I known this at the time I would not have permitted him to drive the vehicle.  I have not yet been able to establish if LCpl Birch holds a UK driving licence or FMT 600.”
Once Captain Kenny had said in para 27 of his witness statement that he did not know it was Marine Birch who had volunteered to drive and (almost ostentatiously) did not say that he did not know Marine Birch was not qualified to drive, it was obvious that he would be asked about that.  This exchange duly took place in the course of cross-examination:-
“Q. You are aware now that Chapter 15 [of the Defence Road Transport Regulations] contains responsibilities on the commanding officer, and I think you heard yesterday that in the statement to the police by Captain Oliver he indicated that there was a failing in the MoD duty of care.
A.	No, no, I wouldn’t.
Q.	But you accept an unlicensed driving was driving.
A.	No.  Well, yes, subsequently.
Q.	At the time, you did not know that.
A.	No.
Q.	Although you should have known as the commanding officer.
A.	I knew who were the allocated drivers and none of the 5 Troop guys, so the likes of White, Fenton, Birch, because they were young guys straight out of training , it was known that they wouldn’t have the chance to do any driving and there was no need for us to actually drive because we’re foot-borne close combat company – sorry, troop – so there is no need for drivers.
Q.	So you knew that none of those marines should have been driving.
A.	Yes”
15.	It was further put that this evidence contradicted his statement to the Military Police
“Q. That is completely contradictory to what you have told us today, is it not?  You have told us today that you knew Thomas Birch did not have a licence.
A.	Yes, none of the 5 Troop guys did.
Q. But here you are telling the Military Police two days after the accident you did not know that he did not have a licence.  Had you known that, you would not have let him drive.
A. Yeah.  If there’s a guy, one of the guys driving, and he’s not entitled to drive, he’s not going to be driving.
Q. This statement to the police just does not fit with what you are saying now, does it?
A. Yeah, it’s a bit confusing but the fact is I mention these – I requested a driver.  I didn’t know that Corporal Birch took on the task because he’s not a driver, which is why, as it was quite difficult processing the casualty evacuation because he wasn’t on the list, because that number wasn’t in the ops room, neither was Fenton’s, so that’s why it took a bit of time to process that because it was news to me.”
It is fair to add that Captain Kenny continued to maintain in his oral evidence that he did not know it was Marine Birch who was going to drive.
16.	In the light of this evidence the MoD could no longer argue that Captain Kenny thought that Marine Birch was qualified to drive an army vehicle and this issue disappeared from the case.  That may, as I have said, explain why the judge has made no finding.  It seems to me, however, that it is impossible for this court to make any assumption other than that Captain Kenny knew Marine Birch was not qualified to drive.  The critical question therefore is whether Captain Kenny knew it was Marine Birch who was going to drive.
Knowing Marine Birch was going to drive?
17.	On the face of it the judge has found that Captain Kenny knew Marine Birch was going to drive because he has expressly found that Captain Kenny “permitted” him to drive.  I agree with Ms Yip that it would ordinarily follow from this finding that Captain Kenny knew it was Marine Birch (whom he knew to be unqualified) who was going to drive.  How can anyone “permit” a person to do something without appreciating that, if that permission is given, that person will then do what he is permitted to do?
18.	Mr Browne’s submission that “permitted” did not carry any connection of knowledge because it was only used in rejecting Marine Birch’s case that he had been ordered to drive does not carry conviction.  It is true that there was some evidence that there were 3 volunteers and Captain Kenny said that that they would have to “spoof” for it by which it was meant that there would have to be some elimination process such as the “rock, paper, scissors” method of elimination.  The judge rejected that evidence and also rejected the suggestion that Marine Birch had been ordered to drive, largely on the basis of Captain Kenny’s near contemporaneous statement to the Military Police (set out above) that if he had known that Marine Birch was not qualified to drive he would not have permitted him to drive the vehicle.  The judge then said (para47):-
“The implication is that, contrary to his evidence at trial, Captain Kenny did permit the claimant to drive the Land Rover down that evening.  He accepted that this was confusing, but maintained that he did not know that the claimant had carried out the task until later on.”
19.	When therefore two paragraphs later the judge says that on balance he finds that Captain Kenny “permitted” Marine Birch to drive the Land Rover down the mountain because that is what he said to the Military Police “shortly after the event when his recollection would have been much fresher”, he is (in my view) not just accepting Captain Kenny’s evidence that he permitted Marine Birch to drive but, by necessary implication, rejecting that part of Captain Kenny’s oral evidence in which he maintained that he did not know it was Marine Birch who was going to be doing the driving.  That necessarily implicit finding accords with reality and I would uphold it.
Consequences of Captain Kenny’s knowledge
20.	Once it is accepted that Captain Kenny, having asked for volunteers, knew Marine Birch was going to drive and that he was unqualified, it follows to my mind that the MoD were in breach of their duty of care as Marine Birch’s employer.  Chapter 1.044 of the Defence Road Transport Regulations provides:-
“Competence of Drivers and Commanders.  The MoD has a duty of care to its employees and to other road users during the operation of vehicles.  To meet that duty of care it is mandatory that any MoD employee, dependent or contractor, who is authorised to drive a vehicle, has the appropriate competencies i.e.:
a. That the driver is legally qualified to drive the vehicle.  In certain cases, an individual who holds a licence but not an EU pattern licence may be permitted to drive a vehicle on the public roads within the UK provided this licence is recognised by DVLA, subject to familiarisation training and the issue of an FMT 600.”
Chapter 15.031 reinforces this by providing:-
“Commanding Officer’s responsibility.  It is the responsibility of CO’s/Head of Establishment to ensure that all personnel permitted to use Service vehicles are properly qualified and licensed in accordance with these Regulations – see para 1.044.”
Captain Kenny accepted it was his duty to ensure the regulations were complied with but did not, in the circumstances outlined above, discharge that duty.  This is, of course, an extremely pardonable lapse on his part when he had, no doubt, hundreds of more important things about which to be concerned in the exposed position which Athens was.  But it is a lapse for which MoD must accept responsibility.  It is not sufficient to say simply that the claimant must himself take responsibility for his decision to drive.
21.	The judge in his final paragraph  on liability (para 156) said that the fact that there was a “degree of non-enforcement which … reflected the difficult conditions … in the observation post fell well short of establishing a failure to provide a safe system of work”.  That is, however, only half the story.  Marine Birch expressly pleaded that he should not have been allowed to drive thus questioning the conduct of Captain Kenny who had allowed or “permitted” him to do so.  The judge has not, with respect, dealt satisfactorily with this issue merely by adding after the words “establishing a failure to provide a safe system of work” the words “or otherwise establishing breach of duty of care on the part of the defendant”.  It seems that the seriousness of this part of the case may have been somewhat under-emphasised and thus overlooked in a case teeming with other issues and, in particular, difficult scientific evidence in relation to possible defects in the Land Rover, all of which has been dealt with by the judge in an entirely exemplary manner.  We have had the comparative luxury of being able to confine our consideration to the single issue of the circumstances in which Marine Birch came to be driving.  As it is I would allow the appeal.  It is therefore necessary to consider the issue of contributory negligence.
Contributory Negligence
22.	The judge would have held Marine Birch 50% responsible if he had had to assess the matter.  Since, however, the judge had already dismissed Marine Birch’s claim on the basis that he had to take responsibility for his own decision to drive, it is perhaps not surprising that he felt Marine Birch’s own negligence to have largely contributed to the accident.
23.	The judge records Ms Yip as saying that it should be no higher than 25%.  She withdrew even that concession before us and submitted that there should be no deduction at all.
24.	There is no easy answer but I have in the end concluded that it would not be fair that Marine Birch should submit to any deduction from whatever sum is held to be proper compensation for his injuries.  It is true that as a Lance-Corporal he should shoulder more responsibility for his actions in general than a private soldier.  But Lance-Corporal is hardly a high rank; there was evidence that the ethos of the army (particularly perhaps the Royal Marines) is that, if a senior officer asks for volunteers, there should be no holding back.  That is confirmed by the fact that Marines Ravenscroft and Fenton seem to have been volunteers also, albeit in Marine Fenton’s case only to accompany Marine Birch down the mountain.  The suggestion that they had a motive of their own (such as having a shower or downtime at the base) is belied by the fact that they were to bring the necessary personnel up the hill before it got dark.  I find it impossible to attach any blame to Marine Birch for what was a selfless act.  It is not easy to see why, if Captain Kenny knew that Marine Birch was not authorised to drive, Marine Birch can himself be blamed for failing to point out what Captain Kenny already knew.
25.	Once the decision on liability is set aside, the question of contribution negligence is at large for this court.  I would not myself make any deduction.
Postscript
26.	It is important to record that the MoD has throughout this unfortunate litigation been anxious to act with complete propriety.  They have given Marine Birch a lump sum award, pursuant to the Armed Forces Compensation Scheme, of £318,000.  They have also awarded him an annual tax free guaranteed income payment of £27,239 which is index linked.  His case has, therefore, always had consideration of the appropriate kind and Mr Birch accepts that these payments will have to be taken into account when it comes to assess his compensation.
27.	As it is, I would allow this appeal.
Lord Justice Tomlinson:
28.	I agree, and although we are differing from the judge below, there is nothing which I can usefully add on the issue of liability.  I add a word only on the question of contributory negligence, to which the judge, perhaps understandably, devoted very little attention.
29.	Under s.1(1) of the Law Reform (Contributory Negligence) Act 1945 the damages recoverable are to be “reduced to such extent as the court thinks just and equitable having regard to the Claimant’s share in the responsibility for the damage”.
30.	At trial, the Defendant set out to prove that the Claimant was driving too fast for the prevailing conditions.  The particulars of  contributory negligence pleaded in the Defence included the following:-
“Lost control of the vehicle when with the exercise of appropriate skill, care and caution he would and should have avoided so doing.  The Defendant repeats paragraph 8(e)(2) herein in support of this averment.”
	   Paragraph 8(e)(2) in turn read:-
“. . . the Defendant will aver the most likely cause of the accident was that the Claimant, an unqualified driver, was driving too fast for prevailing conditions, drove too close to the edge of the track, oversteered, hit the side of the mountain and veered off the side of the mountain.  The accident happened on a straight stretch of the track.  There was no time pressure to perform the task.”
Furthermore, there was pleaded in support of this allegation the conclusion of the Land Accident Prevention and Investigation Team which in its report dated 22nd December 2006 said this:-
“. . . This accident occurred because an unqualified driver was driving too fast for the prevailing conditions on a route that was, at best, described as marginal.”
31.	The attempt to attribute blame to the Claimant in this manner largely failed.  At paragraph 63 of his judgment the judge recorded that, in contrast with the contemporary conclusion of the LAPIT report into the accident, the accident reconstruction experts in the litigation were in agreement that there was no evidence to support the conclusion that the accident occurred because the Claimant drove at excessive speed.  At paragraph 134 of his judgment the judge expressed his overall conclusion on this aspect in this manner:-
“On the balance of probabilities, I am satisfied that the cause of the accident was driver error.  It is impossible to provide a precise explanation of what happened but, despite his aptitude, the Claimant was an inexperienced driver, had no off-road training and was driving a Land Rover down a difficult mountain track at dusk.  In those circumstances, he lost control of the vehicle, which went over the edge.”
Thus the judge found no lack of care or lack of caution on the part of Lance Corporal Birch.
32.	It was no doubt because of these findings that the emphasis before us was not on the standard of the Claimant’s driving but rather on the extent of the responsibility that he should shoulder for his own decision to drive, bearing in mind in particular the position of responsibility which he occupied by virtue of his rank, Lance Corporal.
33.	Like my Lord I find that approach unrealistic.  I am not attracted to the notion that a Lance Corporal and a Captain (and commanding officer) bear equal responsibility for damage caused by what is at bottom, as my Lord has pointed out, a breach by an employer of its duty of care to its employee.  
34.	The gravamen of the case against the MoD is that it allowed Lance Corporal Birch to get into a position in which he might lose control of the vehicle precisely because he lacked the skill which experience and appropriate training would have given him.  It is an obvious purpose of the Defence Road Transport Regulations to which my Lord has referred that an employee of the MoD should not be placed in such a position or even allowed to place himself in such a position.  Seen in that light, the defence of contributory negligence must in my view fail.  There is no finding that Lance Corporal Birch failed to exercise that degree of care in his driving which could reasonably have been expected of an unqualified, inexperienced and untrained driver.  All that can be relied upon is his volunteering to undertake a task which he knew that his employer ought not, for his own protection, to allow him to perform.  In such circumstance the Claimant does not in my view share in the responsibility for his injuries.  It would be neither just nor equitable that the damages recoverable from the MoD should be reduced.
Lord Justice Lewison:
35.	I agree with both judgments and I wish particularly to associate myself with the postscript to Lord Justice Longmore’s judgment.