Course Title FOUNDATION DEGREE ARTS,

LAW
MODULE Name LAW OF TORTS AND CASE
ANALYSIS
MODULE Reference LAW_501
Year of Course 2018-2019
Date of Exam
Time of Exam
Total Time for Exam 3 Hours

INSTRUCTIONS TO CANDIDATES

You are provided with the following:

Answer Book

Law Report for the Part B Case Analysis: Barrett v Ministry of Defence [1995] 1
WLR 1217

You may use the following materials:

This must be your own copy - Blackstone’s Statutes on Contract, Tort & Restitution
2018-2019

Questions

This paper is divided into two Parts. You must attempt both Parts.

Part A: Problem Solving: This contains three questions. You must answer TWO
questions.

Part B: Case Analysis: This contains three questions. You must answer ALL of the
questions (all questions carry equal marks).

INSTRUCTIONS TO INVIGILATORS AND STUDENTS

 This is a SEEN examination

 All students are to be issued with an answer book and extra paper if required.
1
 Normal exam conditions apply to the conduct of this assessment.

 The invigilator will remind students about the regulations governing this
assessment.

 Students may not leave during the first 45 minutes or the final 30 minutes.

2
Part A: Problem Solving: This contains three questions. You must answer
TWO questions.

Question 1

An accident occurs when a heavy goods vehicle, being driven by Jake, careers off
the road, down an embankment and lands on a railway line. Jake admits to driving
carelessly whilst talking on his mobile phone. Jake’s relief driver, Phillip, is thrown
through the windscreen of the heavy goods vehicle as he is not wearing a seat belt.

A train travelling along the line is unable to stop in time and crashes into the Lorry.
Simon, the train driver, suffers an arm injury and is taken to hospital. As all the
medical staff are busy, he is treated by a junior doctor who wrongly decides that
amputating his arm would be the appropriate treatment.

Fatima had just seen her son Nikhil onto the train and as she was driving home she
saw the train crash and the carriages on fire. Fatima was informed later in the day
that Nikhil had died in the crash and she subsequently suffered a nervous
breakdown.

Susan, a trained first aider, is on leave from her work with a stress related illness.
She lives near the railway line and, on hearing the noise of the crash, runs to the
scene of the accident. She spends several hours helping to pull people from
wreckage and is now suffering from post-traumatic stress disorder.

(a) Advise Phillip and Simon of any claims they might bring in negligence in respect
of their injuries.

(b) Advise Fatima and Susan of their claims in relation to psychiatric damage.

Question 2

Arthur took a group of friends for a cruise on his motorboat, ‘The Pulman’. After an
evening of heavy drinking two of them, Emma and Angelina quarrelled. Emma
picked up an empty wine bottle and, walking towards Angelina, lifted it above her
head, saying: “I’m going to smash your head in.” Arthur stepped between the two
women and, grasping Emma by the wrist forced her to drop the bottle.

Later that evening, Angelina went to Emma’s cabin, took all Emma’s possessions,
and threw them into the sea. Angelina knew that among Emma’s possessions were
a diary and a diamond necklace that had belonged to Emma’s mother, who had

3
recently died. Angelina then went to Emma and told her what she had done. Emma
became distraught as a result.

To prevent more trouble between the two women Arthur escorted Angelina to her
cabin and locked her in. He then took Emma to her cabin, telling her to rest. In order
to ensure that she did not attempt to go to Angelina, Arthur sat outside Emma’s
cabin throughout the night. Emma’s cabin door was not locked. She was unaware
that Arthur was waiting outside to prevent her leaving.

Before embarking on the cruise Arthur had agreed with his guests that he would
return them all to St Kathryn’s Dock, London by early Monday morning. When the
guests awoke on Monday morning they discovered that ‘The Pulman’ was far out in
the Thames estuary. Arthur refused to land until all of his guests agreed to keep
silent about the events involving Emma and Angelina. The last guest agreed to this
on Tuesday morning, when Arthur moored ‘The Pulman’ at St Kathryn’s Dock and
allowed his guests to leave the boat.
Following the incident on ‘The Pulman’

Advise Emma, Angelina and Arthur of their possible liability in tort.

Question 3

A local government election is due to take place in Rushcliffe. The lead story on the
front page of the Rushcliffe Gazette contained the following item:

‘What an assorted mix of candidates are available for election in two weeks time.
Firstly there is Mary Berry. Like most politicians she likes to pretend she is
something which she is not. She may appear to be a glamorous granny but everyone
knows it is cosmetic injections and the surgeon’s knife which gives her the face and
figure she proudly displays.

Then there is Tom Hardy, no brilliant debater he. His dull delivery and
inconsequential comments make him eligible to be crowned the most boring
politician of 2012.

Lastly there is Michael Crane. Just what is Michael whispering into the ear of the
young woman who calls him Daddy but is not his daughter? See the picture and full
coverage of the election on page seven’

In fact, Mary Berry once had cosmetic surgery to remove a small mole from her face.
The coverage on page seven explains that the woman in the photograph is Michael’s
cousin, Claire, whom he and his wife have brought up as their own child after her
parents were killed in a car crash when she was five years old.

(a) Advise Mary, Tom and Michael of their possible claims in defamation.
(b) Advise the Rushcliffe Gazette of any defences that may be available.

4
5
Read the case of Barrett v Ministry of Defence [1995] 1 WLR 1217 and answer the
following:

1) Explain the legal reasoning of the competing arguments used by counsel in

the case on the duty of care issue?
2) What was the judgment of the Court of Appeal on the duty of care issue and
explain the legal reasoning of the court in response to the arguments used by
counsel on this issue?
3) Eric, a teetotaller, regularly ate his evening meal in the Dog & Duck public
house in the village of Nottingley. Eric went to the pub one evening after a
bad day at work and told Fiona, the landlady, all about it. Fiona said to Eric “it
sounds like you need a proper drink” and persistently encouraged Eric to drink
alcohol with the first drink on the house. Eric eventually accepted. By closing
time Eric had consumed 5 double vodkas and was very drunk and unsteady.
Fiona helped Eric to the door of the pub and sent him home. Fiona knew that
Eric’s journey home involved him walking across a railway line. When
crossing the railway line Eric was struck by a train and lost an arm. Explain,
with reasons and with reference to relevant legal authority, if Eric could sue
Fiona in the tort of negligence.
(You may in your answer to question 2, where you consider it necessary to do
so, discuss decided cases other than Barrett).

6
 *1217  Barrett v Ministry of Defence
Court of Appeal
21 December 1994
[1995] 1 W.L.R. 1217
Neill, Beldam and Saville L.JJ.
1994 Dec. 12, 13; 21
Negligence—Duty of care to whom?—Serviceman—Off-duty sailor dying following
drinking bout at naval base—Officer in command at base guilty of breach of
regulations relating to discouragement of drunkenness—Whether Ministry of
Defence under duty to prevent deceased from excessive indulgence in alcohol—
Whether ministry taking adequate measures after deceased collapsed—Whether
deceased guilty of contributory negligence— Queen's Regulations for the Royal
Navy 1967, art. 1810
The deceased, a 30-year-old naval airman, engaged in a bout of heavy drinking
at a shore-based naval establishment in northern Norway. Having become
unconscious, he was placed in his bunk in the recovery position. He was later
found dead, having asphyxiated on his vomit. The senior naval officer at the base
subsequently pleaded guilty to a breach of article 1810 of the Queen's
Regulations for the Royal Navy 1967, 1 which provided that it was the duty of
officers to discourage drunkenness. The deceased's widow claimed damages
against the Ministry of Defence for herself and their son under the Fatal
Accidents Act 1976 and for the benefit of the deceased's estate under the Law
Reform (Miscellaneous Provisions) Act 1934. The judge held that in the
circumstances it was foreseeable that the deceased would succumb to heavy
intoxication and that, because it failed to enforce its own standards with respect
to discipline, the defendant was in breach of duty to the deceased to take
positive steps to protect him from his own weakness. The judge awarded the
plaintiff damages but reduced them by one-quarter because of the deceased's
contributory negligence.
On appeal by the defendant: —
Held, allowing the appeal, that the purpose of Queen's Regulations and standing
orders was to preserve good order and discipline in the service and to ensure
that personnel remained fit for duty, obeyed commands and did not misbehave
when off duty; but that they were not intended to lay down standards or to give
advice in the exercise of reasonable care for the safety of the men when off duty;
that the mere existence of regulatory or other public duties did not create a
special relationship imposing a duty in private law; that it was fair, just and
reasonable to leave a responsible adult to assume responsibility for his own
actions in consuming alcoholic drink; that, until the deceased collapsed, he alone
was responsible for his condition but, thereafter, when the defendant assumed
responsibility for him, the measures taken fell short of the standard reasonably to
be expected; and that, accordingly, since it was the deceased's lack of self-
control in his own interest that caused the defendant to have to assume
responsibility for him, the damages recoverable by the plaintiff would be reduced
by two-thirds (post, pp. 1223E–F, 1224B, F–G, 1225E–F, G — 1226A).

7
 Order of Judge Phelan sitting as a judge of the Queen's Bench Division varied.
The following cases are referred to in the judgment of Beldam L.J.:

Anns v. Merton London Borough Council [1978] A.C. 728; [1977] 2 W.L.R. 1024;
[1977] 2 All E.R. 492, H.L.(E.) *1218

Crocker v. Sundance Northwest Resorts Ltd. (1988) 51 D.L.R. (4th) 321

Donoghue v. Stevenson [1932] A.C. 562, H.L.(Sc.)
Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004; [1970] 2 W.L.R. 1140;
[1970] 2 All E.R. 294, H.L.(E.)
Jordan House Ltd. v. Menow (1973) 38 D.L.R. (3d) 105
Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424

The following additional cases were cited in argument:

Ancell v. McDermott [1993] 4 All E.R. 355, C.A.

Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1
Q.B. 428; [1968] 2 W.L.R. 422; [1968] 1 All E.R. 1068
Brown v. Thompson [1968] 1 W.L.R. 1003; [1968] 2 All E.R. 708, C.A.
Condon v. Basi [1985] 1 W.L.R. 866; [1985] 2 All E.R. 453, C.A.
Froom v. Butcher [1976] Q.B. 286; [1975] 3 W.L.R. 379; [1975] 3 All E.R. 520,
C.A.
Hogan v. Bentinck West Hartley Colleries (Owners) Ltd. [1949] 1 All E.R. 588,
H.L.(E.)
Hotson v. East Berkshire Area Health Authority [1987] A.C. 750; [1987] 3 W.L.R.
232; [1987] 2 All E.R. 909, H.L.(E.)
Kirkham v. Chief Constable of the Greater Manchester Police [1990] 2 Q.B. 283;
[1990] 2 W.L.R. 987; [1990] 3 All E.R. 246, C.A.
Morris v. Murray [1991] 2 Q.B. 6; [1991] 2 W.L.R. 195; [1990] 3 All E.R. 801, C.A.
Munro v. Porthkerry Park Holiday Estates Ltd. The Times, 9 March 1984,
Beldam J.
Murphy v. Brentwood District Council [1991] 1 A.C. 398; [1990] 3 W.L.R. 414;
[1990] 2 All E.R. 908, H.L.(E.)
Nettleship v. Weston [1971] 2 Q.B. 691; [1971] 3 W.L.R. 370; [1971] 3 All E.R.
581, C.A.
Ogopogo, The [1971] 2 Lloyd's Rep. 410
Owens v. Brimmell [1977] Q.B. 859; [1977] 2 W.L.R. 943; [1976] 3 All E.R. 765
P. v. Liverpool Daily Post and Echo Newspapers Plc. [1991] 2 A.C. 370; [1991] 2
W.L.R. 513; [1991] 1 All E.R. 622, H.L.(E.)
Paris v. Stepney Borough Council [1951] A.C. 367; [1951] 1 All E.R. 42, H.L.(E.)

8
 Peabody Donation Fund (Governors of) v. Sir Lindsay Parkinson & Co. Ltd.
[1985] A.C. 210; [1984] 3 W.L.R. 953; [1984] 3 All E.R. 529, H.L.(E.)
Pitts v. Hunt [1991] 1 Q.B. 24; [1990] 3 W.L.R. 542; [1990] 3 All E.R. 344, C.A.
Smith v. Littlewoods Organisation Ltd. [1987] A.C. 241; [1987] 2 W.L.R. 480;
[1987] 1 All E.R. 710, H.L.(Sc.)
Stapley v. Gypsum Mines Ltd. [1953] A.C. 663; [1953] 3 W.L.R. 279; [1953] 2 All
E.R. 478, H.L.(E.)
Stovin v. Wise [1994] 1 W.L.R. 1124; [1994] 3 All E.R. 467, C.A.
Wilsons & Clyde Coal Co. Ltd. v. English [1938] A.C. 57; [1937] 3 All E.R. 628,
H.L.(Sc.)
Wooldridge v. Summer [1963] 2 Q.B. 43; [1962] 3 W.L.R. 616; [1962] 2 All E.R.
978, C.A.

APPEAL from Judge Phelan sitting as a judge of the Queen's Bench Division.
By a writ dated 18 January 1990 and an amended statement of claim originally
dated 29 January 1990 the plaintiff, Dawn Barrett, suing on her own behalf and
as executrix of the estate of her deceased husband, Terence Barrett, claimed
damages against the defendant, the Ministry of Defence, *1219  for herself and
her son under the Fatal Accidents Act 1976 and for the benefit of the estate of
the deceased under the Law Reform (Miscellaneous Provisions) Act 1934. On 12
May 1993 Judge Phelan gave judgment for the plaintiff totalling £160,651.16,
having reduced damages of £214,201.54 by one-quarter for the deceased's
contributory negligence.
By a notice of appeal dated 2 September 1993 the defendant appealed on the
grounds, inter alia, that (1) the judge erred in law in holding that the defendant
owed the deceased a duty of care; (2) in concluding that such a duty of care
existed, the judge erroneously had regard to the Queen's Regulations and
various standing orders as determining the existence, as opposed to the extent,
of the postulated duty; (3) the judge erroneously relied upon Barnett v. Chelsea
and Kensington Hospital Management Committee [1969] 1 Q.B. 428 as authority
for the proposition that it was “just and reasonable” to impose a duty of care upon
the defendant; and (4) if the judge was correct in imposing a duty of care in that
regard, then he erred in law in rejecting the defendant's contention that the
maxim volenti non fit injuria applied to negative any breach of such duty. In
addition, there were various factual grounds of appeal.
By a respondent's notice dated 28 September 1993 the plaintiff sought to affirm
the judgment on the findings of fact and law of the judge and on additional
grounds.
The facts are stated in the judgment of Beldam L.J.
Representation

Brian Leveson Q.C. and Robert Jay for the defendant.

Geoffrey Nice Q.C. and Anthony Seys Llewellyn for the plaintiff.

9
Beldam L.J.
21 December. The following judgments were handed down.
In these proceedings, Mrs. Dawn Barrett, widow of Terence Barrett claims
damages for herself and her son Liam under the Fatal Accidents Act 1976 and
for the benefit of the estate of her deceased husband under the Law Reform
(Miscellaneous Provisions) Act 1934. She blames the defendant, the Ministry of
Defence, for the death of her husband, who was serving in the Royal Navy. On
12 May 1993 Judge Phelan, sitting as a judge of the High Court in the Queen's
Bench Division, gave judgment for the plaintiff for £160,651.16. He had reduced
the damages of £214,201.54 by 25 per cent., which he held was the deceased's
share of responsibility for his death. The defendant in this appeal challenges one
of the two grounds on which the judge found it to have been in breach of duty to
the deceased. It also seeks reassessment of the apportionment of liability.
At the time of his death the deceased was 30 years of age and a naval airman
serving at a shore-based establishment of the Royal Navy at Barduffos in
northern Norway. The naval base is somewhat isolated and the shore facilities
are uninviting. It was used for a series of training exercises known as “Exercise
Clockwork.” On 6 January 1988 detachments of marine commandos, together
with No. 845 Helicopter Squadron from Royal Naval Air Station, Yeovilton arrived
to take part in one of these training exercises. The deceased was attached to the
squadron.
Because the recreational facilities ashore were limited, the defendant had
installed several video rooms, computer equipment, a gymnasium, a *1220 
sauna and other recreational and educational facilities. Within the base there
were three bars: the wardroom, the senior rates' bar and a junior rates' bar, at
which duty-free drink could be obtained. Drinking in these bars when off duty was
one of the main recreations of personnel attached to the base. In January 1988
the senior naval officer at Barduffos was Lieutenant Commander Lomax. The
evidence was to show that his attitude to the enforcement of Queen's
Regulations and standing orders, in particular to excessive drinking and
drunkenness, was unusually lax. As a consequence of the death of the
deceased, he was charged with and pleaded guilty to a breach of article 1810 of
Queen's Regulations, which provides:
“It is the particular duty of all officers, fleet chief petty officers, chief petty
officers, petty officers and leading ratings actively to discourage
drunkenness, overindulgence in alcohol and drug abuse by naval
personnel both on board and ashore. Should a man appear to be
suffering from any of these abuses they are immediately to take
appropriate action to prevent any likely breaches of discipline, possible
injury or fatality, including medical asistance if it is available. Action taken
is to be reported to the officer of the watch/officer of the day, naval
provost unit or other naval authority as appropriate.”

His plea of guilty acknowledged that he had negligently performed the duty of
actively discouraging drunkenness and over-indulgence in alcohol.

10
Disciplinary measures to limit drunkenness in the Royal Navy have a long
history. In his acclaimed work on life in the Georgian navy, The Wooden World
(1986) Dr. N. A. M. Rodger devotes a section of his chapter on shipboard life to
the subject of drink. He states, at p. 73:
“Everybody knew that drink was a factor in crime, most often the chief
factor, but it was virtually impossible to do much about it. If liberty men
came on board drunk, some captains put them in irons, but the
regulations of Admiral Smith's divisional system went as far as most
officers thought it reasonable or possible to go; the midshipmen of the
watch were to ‘see all men they find far gone in drink, put in their
hammacoes.’ If riotous they were to be confined until sober and then
punished. Drinking as such was not a crime. The midshipmen were not:
‘to interrupt the men in mirth and good fellowship while they keep within
the bounds of moderation, the intention of it being to prevent excessive
drinking, which is not only a crime in itself but often draws men into
others which when sober they would abhor.’ Even excessive drinking was
only a slight offence, and no man who was peaceably drunk would
normally be punished for it but in this as in all things, there was a great
difference between the standards obtaining at sea and in port …”

For the purpose of Exercise Clockwork (Navy) 1988, Captain R. P. Warwick,

commanding officer of Royal Naval Air Station, Yeovilton, issued instructions to
the senior naval officer of Barduffos who was to be in local administrative and
tactical conrol of all Royal Navy and Royal Marine personnel attached to Royal
Naval Air Station, Barduffos for the purpose of Clockwork training. The
instruction included control and security of duty-free stores, bars, entertainment
etc. and powers of punishment. Attention was drawn to the rules in force for the
Royal *1221  Naval detachment at Barduffos for the senior rates' mess and for
the junior rates' mess, including instructions for the running of mess bars with
opening and closing times. Section 28 of the Naval Discipline Act 1957 contains
a definition of drunkenness:
“A person is drunk … if owing to the influence of alcohol or any drug,
whether alone or in combination with any other circumstances, he is unfit
to be entrusted with his duty or with any duty which he might be called
upon to perform, or behaves in a disorderly manner or in a manner likely
to bring discredit on Her Majesty's service.”

In this section “his duty” refers to his professional duties, together with other
duties incidental to naval life. He could reasonably expect to be called upon to
carry out his normal duties during working hours and when nominated for duty
outside working hours. Notes included guidance for dealing with men who were
unfit for duty due to drink:
“(i) Keep the offender out of distance of officers or senior ratings so that
he cannot commit himself by striking or by insubordination. Avoid
altercation. (ii) Have him examined by the duty M.O. (iii) Should he be in
a state of collapse, make sure he does not lie on his back so that he can

11
 suffocate if he vomits. See that he is sighted every few minutes. When in
doubt send for the duty M.O. (iv) If he becomes violent, keep the cell door
locked. If he tries to injure himself, call the medical officer and restrain
him if necessary with additional hands and a Neil Robinson stretcher. (v)
All senior ratings to be placed in the care of the president of the mess.
(vi) On no account is a drunken man to be charged. This should follow
when he is sober.”

The echoes from Admiral Smith's divisional system are obvious.

The facts leading up to the death of the deceased were not in dispute. He died in
his bunk between 2 a.m. and 2.30 a.m. on the morning of Saturday, 23 January
1988. Friday, 22 January was the deceased's 30th birthday. He had recently
learnt that after some 10 years' service he was to be promoted leading hand and
so had additional reason to celebrate. Friday evening was customarily an
evening for heavy drinking. On this Friday a Hawaiian party event had been
organised in the senior rates' bar. A number of the senior rates attending the
party decided they would compete to see who could drink the most. Very
substantial quantities of duty-free spirits were consumed.
The deceased went to the junior rates' bar at about 9.15 p.m. to begin his
celebrations. Having placed money behind the bar to treat his mess mates, the
judge found he himself consumed there three cans of cider and two double
Bacardis. At about 10.30 p.m. he was invited to the senior rates' bar, where he
was brought six Bacardis, each of which was a double measure. By about 11
p.m. he had consumed a minimum of four ciders and nine double Bacardis. It
was not, however, suggested that the barmen in charge of either bar had served
him personally with this number of drinks. Most of the drinks were brought for
him. At about 11.30 p.m. he returned to the junior rates' bar to get fuel for his
cigarette lighter and then went back to the senior rates' bar where, shortly
afterwards, he became unconscious. He was carried back to the junior rates' bar,
where he was placed on a chair in the lobby. He was seen there by Lieutenant
*1222
Commander Parker, who had just returned from sledging. The deceased was
then in a collapsed state and insensible. Petty Officer Wells, the duty senior rate,
whose officer was nearby, organised a stretcher and the deceased was taken to
his cabin, where he was placed in his bunk in the recovery position. He was in a
coma but tossing and turning. He was visited on about three occasions by the
duty ratings. When his cabin mate went to turn in at about 2.30 a.m., he found
that the deceased had vomited, had inhaled his vomit and was apparently
asphyxiated. Attempts were made to revive him but without success. A board of
inquiry was held and a ship's inquiry and many statements were taken from
witnesses. Based on these statements and the evidence which he had heard, the
judge found that at this isolated base cases of drunkenness, especially at the
weekends, were commonplace and that disciplinary action that might lead to
punishment was not taken.
The judge also found there was a much more relaxed attitude to drinking
tolerated at this base than there would be in the United Kingdom. Drunkenness

12
was common at the weekends when the men were off duty and especially on
Friday nights. The judge summarised the situation disclosed by the evidence as:
“A perfectly deplorable situation.” The defendant does not challenge this
assessment of the discipline at Barduffos. Of the deceased the judge found that
he was quite a heavy drinker and this was widely known. There was little
inducement for anyone to go ashore for recreation for alcohol prices were
remarkably high in Norway and astonishingly low in the base. A good range of
recreational facilities existed but boredom was inevitable and foreseeable. The
deceased was under the defendant's codes of discipline and it controlled all
facilities. Disciplinary codes existed which, if implemented, would have greatly
reduced drunkenness. The judge said that the deceased was a heavy drinker
introduced to a potentially dangerous situation. In these circumstances the judge
held that it was foreseeable in this particular environment that the deceased
would succumb to heavy intoxication. Although it was only in exceptional
circumstances that a defendant could be fixed with a duty to take positive steps
to protect a person of full age and capacity from his own weakness, he
considered in the exceptional circumstances that arose in this case it was just
and reasonable to impose a duty to take care on the defendant. He also held that
the defendant was in breach of that duty because it failed to enforce the
standards it itself set in matters of discipline. He referred particularly to the
requirements:
“(i) To control by daily mustering and otherwise over quantities of alcohol
used; (ii) to preventing sale of bottles across the bars; (iii) to disciplining
and recording details of those from time to time found drunk so that
personnel would be properly discouraged from drinking to excess; (iv) to
preventing an undue amount of fraternisation between the senior and
junior rates' bars; (v) to preventing breach of standing orders or specific
instructions as to how heavily intoxicated persons should be dealt with;
and (iv) to failing to ensure that alcohol was consumed only within bars.”

The deceased himself had a bottle of brandy in his cabin.

It should be said that there was no evidence that the deceased had consumed
brandy on the night he died or that anyone knew he had a bottle of brandy in his
cabin. The defendant challenged the grounds on which the judge held that it was
a breach of duty to the deceased. The judge had likened the disciplinary codes to
the Highway Code or even *1223  pamphlets relating to safety in factories,
describing them as “a practical guide to a standard the defendant aimed at.” In
this the defendant says he misdirected himself. Queen's Regulations and
standing orders are not comparable to he Highway Code or safety regulations,
still less to pamphlets relating to safety in factories. The purpose of Queen's
Regulations and standing orders is the maintenance of good order and discipline
in the service. In so far as the standing orders extend to conduct by personnel
ashore, they are confined to actions calculated to bringing the Royal Navy into
disrepute.
The judge also held that once the deceased had collapsed, the defendant had
assumed responsibility for him and had taken inadequate steps to care for him.

13
No medical officer or medical attendant was informed and supervision of the
deceased was wholly inadequate by the standard with the defendant's own
officers accepted were necessary. The defendant does not challenge the judge's
findings that it was in breach of duty to take care of the deceased once he had
collapsed and it had assumed responsibility for him. The defendant's principal
ground of appeal is that the judge was wrong to hold that it was under any duty
to take care to see that the deceased, a mature man 30 years of age, did not
consume so much alcohol that he became unconscious. If the deceased himself
was to be treated as a responsible adult, he alone was to blame for his collapse.
On this basis the judge's apportionment of liability was plainly wrong. Even if the
judge's finding of this duty were to stand, the deceased ought to have been
regarded as equally responsible for his own death.
In my view the judge was wrong to equate Queen's Regulations and standing
orders with guidance given in the Highway Code or in pamphlets relating to
safety in factories. The purpose of Queen's Regulations and standing orders is to
preserve good order and discipline in the service and to ensure that personnel
remain fit for duty and while on duty obey commands and off duty do not
misbehave, bringing the service into disrepute. All regulations which encourage
self-discipline, if obeyed, will incidentally encourage service personnel to take
greater pride in their own behaviour but in no sense are the Regulations and
orders intended to lay down standards or to give advice in the exercise of
reasonable care for the safety of men when off duty drinking in bars.
The judge placed reliance on the fact that it was foreseeable that if the
Regulations and standing orders were not properly enforced in this particular
environment the deceased would succumb to heavy intoxication. He also said it
was just and reasonable to impose a duty in these circumstances. In Dorset
Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 1058 Lord Diplock said:
“the judicial development of the law of negligence rightly proceeds by
seeking first to identify the relevant characteristics that are common to
the kinds of conduct and relationship between the parties which are
involved in the case for decision and the kinds of conduct and
relationships which have been held in previous decisions of the court to
give rise to a duty of care.”

Later in his speech he commented that Lord Atkin's proposition in Donoghue v.

Stevenson [1932] A.C. 562, 580 that a duty of care is owed to a person who in
law is to be regarded as a neighbour could be regarded as a milestone in the
development of the law of negligence if used as a guide to characteristics which
will be found to exist in conduct and relationships which give rise to the legal duty
to take care. He added, *1224  however, that it was not intended to be used as a
universal proposition for such a foundation.
There are now many judicial pronouncements of high authority that mere
foreseeability of harm is not a sufficient foundation for a duty to take care in law.
Since Anns v. Merton London Borough Council [1978] A.C. 728 the House of
Lords has preferred the approach of the High Court of Australia in Sutherland
Shire Council v. Heyman (1985) 157 C.L.R. 424 that the imposition of additional

14
duties to take care for the safety of others should develop incrementally and by
analogy with established categories, an approach which involves consideration
of whether it is 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 or other public duties does not of itself create a special relationship
imposing a duty in private law.
In the present case the judge posed the question whether there was a duty at
law to take reasonable steps to prevent the deceased becoming unconscious
through alcohol abuse. He said his conclusion that there was such a duty was
founded on the fact that: “It was foreseeable in the environment in which the
defendant grossly failed to enforce their regulations and standing orders that the
deceased would succumb to heavy intoxication.” And in these circumstances it
was just and reasonable to impose a duty.
The plaintiff argued for the extension of a duty to take care for the safety of the
deceased from analogous categories of relationship in which an obligation to use
reasonable care already existed. For example, employer and employee, pupil
and schoolmaster, and occupier and visitor. It was said that the defendant's
control over the environment in which the deceased was serving and the
provision of duty-free liquor, coupled with the failure to enforce disciplinary rules
and orders, were sufficient factors to render it fair, just and reasonable to extend
the duty to take reasonable care found in the analogous circumstances. The
characteristic which distinguishes those relationships is reliance expressed or
implied in the relationship which the party to whom the duty is owed is entitled to
place on the other party to make provision for his safety. I can 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 is better placed to judge the amount that he can safely consume or to
exercise control in his own interest as well as in the interest of others. To dilute
self-responsibility and to blame one adult for another's lack of self-control is
neither just nor reasonable and in the development of the law of negligence an
increment too far.
Should the individual members of the senior rates' mess who bought rounds of
drinks for a group of mess mates and the deceased each be held to have had a
share in the responsibility for his death? Or should responsibility only devolve on
two or three of them who bought the last rounds? In the course of argument Mr.
Nice for the plaintiff experienced great difficulty in articulating the nature of the
duty. Eventually he settled on two expositions. It was a duty owed by the
defendant to any serviceman at this base in this environment to take into account
group behaviour and arising from a duty to provide for the servicemen's
accommodation and welfare there was a duty to take reasonable care to prevent
drunkenness/drinking “(a) to a level which endangered his safety or (b) such as
to render him unconscious.” The impracticality of the duty so defined is obvious.
The level of drinking which endangers safety depends *1225  upon the
behaviour of the person affected. The disinhibiting effects of even two or three
drinks may on occasions cause normally sober and steady individuals to behave
with nonchalant disregard for their own and others welfare and safety.
The plaintiff placed reliance on Crocker v. Sundance Northwest Resorts Ltd.

15
 (1988) 51 D.L.R. (4th) 321, a decision of the Supreme Court of Canada, and on
another Canadian case, Jordan House Ltd. v. Menow (1973) 38 D.L.R. (3d) 105.
In the first case the defendant was held liable to an intoxicated plaintiff for
permitting him to take part in a dangerous ski hill race which caused him to be
injured. The defendant had taken the positive step of providing him with the
equipment needed for the race knowing that he was in no fit state to take part.
The plaintiff had consumed alcohol in the defendant's bars. Liability was based
not on permitting him to drink in the bars but in permitting him to take part in the
race. In the Jordan House case the plaintiff was a habitual customer of the
defendant. He became intoxicated from drinking heavily. The defendant
proprietor evicted him knowing he was unsteady and incapable in spite of the
fact that he would have to cross a busy thoroughfare. The court held that these
circumstances, including the fact that at the time he was evicted the plaintiff's
relationship with the defendant was that of invitee/invitor, were sufficient to justify
the imposition of a duty to take care for the safety of the customer. In each of
these cases the court founded the imposition of a duty on factors additional to
the mere provision of alcohol and the failure strictly to enforce provisions against
drunkenness.
In the present case I 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, I would hold that the deceased
was in law alone responsible for his condition. Thereafter, when the defendant
assumed responsibility for him, it accepts that the measures taken fell short of
the standard reasonably to be expected. It did not summon medical assistance
and its supervision of him was inadequate.
The final question is how far the deceased should be regarded as responsible for
his death. Mr. Nice argued that once the deceased had become unconscious his
fault was virtually spent and the whole responsibility for his death ought to fall on
the defendant, though he did not seek to disturb the judge's assessment for 25
per cent.
The immediate cause of the deceased's death was suffocation due to inhalation
of vomit. The amount of alcohol he had consumed not only caused him to vomit,
it deprived him of the spontaneous ability to protect his air passages after he had
vomited. His fault was therefore a continuing and direct cause of his death.
Moreover his lack of self-control in his own interest caused the defendant to have
to assume responsibility for him. But for his fault, it would not have had to do so.
How far in such circumstances is it just and equitable to regard the deceased as
the author of his misfortune? The deceased involved the defendant in a situation
in which it had to assume responsibility for his care and I would not regard it as
just and equitable in such circumstances to be unduly critical of the defendant's
fault. I consider a greater share of blame should rest upon the deceased than on
the defendant and I would reduce the amount of the damages recoverable by the
plaintiff by two-thirds, holding the defendant *1226  one-third to blame.
Accordingly I would allow the appeal, set aside the judgment in the sum of
£160,651.16 and order judgment for the plaintif in the sum of £71,400.51 with
interest to be assessed.
SAVILLE L.J.

16
 I agree.
NEILL L.J.
I also agree.
G. F.Representation

Solicitors: Treasury Solicitor; Stewarts

Order accordingly. Leave to appeal refused.

22 June 1995. The Appeal Committee of the House of Lords (Lord Keith of
Kinkel, Lord Mustill and Lord Nicholls of Birkenhead) dismissed a petition by the
plaintiff for leave to appeal.

17