The law regularly needs updating, so that legal tests and principles reflect modern issues and society. Indeed, sometimes the law needs a clarification concerning a grey area of uncertainty.
One such case that both updated and clarified the law (relating to personal injury and employment) was before the High Court this May- Vaughan v MoD  EWHC 1404 (QB). The case was brought by Spencer Vaughan, 27, of the Royal Marines, against the Ministry of Defence (MoD).
2010 had seen Marine Vaughan taking part in a sailing expedition with fellow Marines. The sailing was organised and arranged by the Royal Navy & Royal Marines, and was considered an adventurous training expedition for the benefit of the personal development and training of the Marines –as well as being good fun, and an experience for all on board.
The voyage was around the Canary Islands. On the last day of the voyage, a lack of win caused the very experienced skipper to delay the sailing of the vessel from Puerto Mogan marina in Gran Canaria. The skipper expected the wind to pick up later that day – and told the Marines under sail training that they had free time until later that afternoon. The Marines promptly went ashore, and took advantage of that unexpected free time by visiting the beach at Puerto Mogan. Whilst at the beach, waist deep in water, Mne Vaughan attempted a “Baywatch style” dive. In doing so, he unfortunately struck his head against a submerged sandbank, and sustained “a fracture of his cervical spine.”
Following the accident, Mne Vaughan started personal injury legal proceedings against the Royal Marines- with the case appearing before the High Court in May of this year. The basis of his claim was that he had been injured as a result of a breach of the duty of care that the MoD owed him. He argued that he was on a “training exercise” at the time of the accident (the sailing expedition), and was therefore covered by the liabilities existing between employers and employees at the time. Therefore, the MoD owed him the same duty of care at the time of his accident as any civilian employer would for a workplace accident.
The MoD argued against this. According to the MoD, at the time of the accident, the Marines were not “on duty” at the time, or working for the Marines at time. Although they were on a training exercise, they had been told that they were on their own time prior to leaving for the beach; as such, they were not under the responsibility of the MoD. Further, although the skipper (Corporal Sanders) had, by law, a duty and responsibility for his crew and the Marines under his command in the vessel, he was not present on the beach at time of the accident. Further, in such a situation, if Cpl Sanders had been present, his permission would not have been asked for such activities as diving into the sea.
It was up to Mr Justice William Davis in the High Court to determine whether the employee/employer relationship and liabilities was present at the time of the accident. In his verdict, he started by summarising the key matters of law. Amidst other such points, to Judge Davis, the overall legal point under debate was, at the time of the accident, did the Royal Marines owe Mne Vaughan a duty of care at the time of the accident?
Quoting from his speech,
“The duty [of care] cannot be greater than the duty that would be owed by an employer i.e. the duty covers the performance of the “work” done by Marine Vaughan and anything reasonably incidental to that “work”. If his activity was outside the course of his “employment” the Defendant owed no duty qua employer.” (p.13)
From p.14, it is evident that the Marines themselves all considered themselves to be “working” for the MoD throughout the voyage;
“Marine Vaughan said that he considered himself to be on duty for the whole time that he was deployed on the training exercise i.e. from the moment he left to travel to the Canaries until the point of his return. He took that view because he had been ordered to go on the training exercise. Marine Barnett was of the same view for what amounted to the same reason. His rationale was that, because Corporal Sanders could have exercised control over him on the morning of the 23rd January had he wanted to, he was on duty. Marine Keenan also said that he was on duty for the whole of the period of the training exercise. He commented that a Royal Marine represents the service at all times whether in or out of uniform. Corporal Quirk was of the view that the issue was a grey area. He said that, had he gone to the beach and told the Marines to go back to the boat, they would have had to do so. To that extent they were on duty. Equally, the Marines at the relevant time were free to do whatever they wanted.”
This would (probably) include matters such as the trip to the beach. However, the same paragraph also illustrates the grey area present. According to MoD publications referred to by the Judge, even the MoD recognises that even when participating in adventurous training and other supporting military activities (and definition “on duty”) there are times where the participant can be said to be “off duty”.
The skipper clearly had stated that the Marines had free time that morning, there being no work to do on the boat- and had given them no further instructions or orders. Indeed, he was unsure as to where they had gone, demonstrating that at that moment he was no longer in charge of them –despite absolutely having responsibility for them. As such, Judge Davis at p.16 is drawn to the conclusion that the Marines were of duty whilst on the beach. It is as if the Judge is somewhat reluctant to make that admission, but is forced to by the logic of his line of reasoning and legal argument.
Throughout, Judge Davis returns to the point that the Marines in question had considered themselves on duty throughout. At p.17, this is called into question:
“The proposition that the Defendant should have treated the Marines as being on duty because the Marines thought they were on duty is not sustainable; not least because the Defendant – whether via Corporal Sanders or otherwise – had no reason for believing that this was what the Marines thought.”
Although the verdict is fairly obvious at this point, Judge Davis still has further issues to clarify; the conclusion in relation to “on duty” does not determine the issue of whether Marine Vaughan was acting in the course of his “employment” (p.18). Even though on adventurous training, and indirectly working towards their mental and physical fitness – of great importance to the Marines – once again, it cannot be said that the Marines were on duty
Judge Davis throughout gently (and it seems with reluctance) proves the point that, although there was responsibility and a degree of liability throughout, the Marines at the time of the accident cannot be said to have been under the command and control of the MoD at the time of the accident. As such, there was no employer/employee liability- and therefore no breach, causation or any of the usual elements of tort. At p.38, Judge Davis dismisses the appeal.
Although clearly at work, and indirectly working for their employer, the Marines were not considered to be under employer/employee liability at the time of the accident on Puerto Mogan beach. Not just in the military, but in many situations in civilian employment there is often that “grey area” which can surround some accidents at work, or personal injuries, and whether the individuals or managers concerned were “on duty” or “off duty.” Sometimes, despite being on duty, or at work, the exact nature of the situation or environment might similarly call into question whether the employer owed the injured employee a similar duty of care at the time of the accident. Despite having responsibility towards employees at all times – sometimes, that responsibility does not translate in to liability.
That grey are of personal injury law still persists. Vaughan v MoD goes some way into clarifying that very matter. As such, it is a welcome addition to the canon of case law surrounding personal injury and work injury claims. Vaughan v Mod is also useful for personal injury law as it similarly helps to clarify the distinctions between “on duty” and “off duty”.
One phrase that Judge Davis uses or paraphrase several times in his concise verdict is the concept that, for there to be a liability, the Marines (or employees) must have been performing duties “reasonably incidental to their work.” As a benchmark or test, it is s useful phrase. Despite itself being flexible and open to interpretation, “reasonably incidental to their work” does provide some clarity.
It is only too easy to be injured at work, despite all the best precautions, and the liability of employers regarding health and safety at work. Given the flexibility of the modern working environment and workplace, it is also only too easy to receive an injury in a situation where it is uncertain whether an employer still retains that liability along with their responsibility. Vaughan v MoD goes some way into defining where that liability starts and ends.