Background
In March 2019, an 18-year-old rifleman stationed at Bulford Army Base in Wiltshire fell from a second-floor landing while returning to barracks after an evening of drinking with fellow soldiers. The fall caused serious injuries, including significant brain injury. At the time of the accident, the balustrade guarding the landing was approximately 900 millimetres high—a height unchanged since the building’s construction around 1939. The soldier sued the Ministry of Defence as both his employer and occupier of the premises, alleging negligence and breach of statutory duty under the Occupiers Liability Act 1957. The MOD defended the claim by arguing that the soldier and his companions were acting outside the scope of their licence to occupy the premises by drinking excessively.
The High Court trial, conducted by HHJ Simon in January 2025, found in favour of the claimant. The judge concluded that the incident was intoxicated playfighting rather than an intentional assault, that the soldiers had not breached Army rules by their drinking (the applicable standard being fitness for the next parade), and that the MOD had breached its duty of care by failing to conduct adequate risk assessments that would have identified the balustrade as presenting an inadequate barrier for the range of heights and builds of soldiers using the premises.
The MOD appealed on six grounds, mounting a sustained challenge to the trial judge’s findings of fact and conclusions of law.
The Court’s Holding
The Court of Appeal unanimously upheld the trial judgment. The court held that the MOD owed a duty of care to the soldier under the Occupiers Liability Act 1957, notwithstanding his intoxication. The court rejected the MOD’s arguments that the soldier’s drinking placed him outside the scope of his implied licence to occupy the premises. The soldier’s conduct, whilst intoxicated, did not breach Army rules because the applicable standard of fitness—whether the soldier could parade the following morning—had been met. No criminal conduct occurred; the incident was a case of drunken horseplay that accidentally resulted in the fall.
On the core issue of breach, the court found that the MOD had failed to conduct sufficiently rigorous risk assessments before the accident. Had proper assessments been undertaken, they would likely have identified the 900-millimetre balustrade as inadequate, particularly given the height and build variation among servicemen living in the barracks. The soldier claimant was 6 feet 4 inches tall, whilst his companion was 5 feet 6 inches. A balustrade height of approximately 1100 millimetres would materially have reduced the risk of falling over it and likely would have prevented the injury. The court noted that the cost of raising the balustrade would have been modest, with similar works across the entire Army Estate costing approximately £400,000. Following the accident, the MOD did raise the balustrade, implicitly acknowledging the hazard.
On causation, the court accepted the evidence of Mr Watts, the claimant’s building surveyor and falls expert, that the fall occurred without great force and that a higher balustrade would likely have prevented it. The court also rejected any defence of contributory negligence, finding that the claimant’s intoxication and participation in horseplay did not amount to a failure to take reasonable care for his own safety.
Key Takeaways
- An employer’s duty of care to employees living on premises extends to off-duty conduct and accidents occurring in common areas, even when the employee is intoxicated, provided the employee has not materially breached workplace rules.
- An occupier’s duty under the Occupiers Liability Act 1957 requires adequate risk assessment, including assessment of the range of heights and physical characteristics of anticipated users—failure to identify an obvious hazard (a low balustrade) constitutes breach.
- Youthful off-duty drinking by soldiers does not place them outside the scope of their implied licence to occupy military barracks, provided they remain fit for duty and comply with applicable rules.
- A court will not infer criminal conduct from evidence of intoxicated horseplay absent clear evidence of intentional assault; loss of recall by an injured party does not override witness evidence of non-malicious conduct.
Why It Matters
This decision clarifies that employers occupying residential or mixed-use premises owe a continuing duty to assess and mitigate structural hazards affecting employees, even where employees are off-duty or engaged in non-work activities. The court rejected attempts to use employee intoxication as a broad shield against liability, instead focusing on whether the employee complied with applicable conduct rules (here, fitness for the next duty). The decision confirms that defences such as ex turpi causa (illegality) and volenti non fit injuria (assumption of risk) are unavailable where no criminal conduct or informed assumption of a known risk has occurred.
For the British Armed Forces and other large residential employers, the judgment emphasises that risk assessments must account for the physical variation among occupants and that design defects identified post-accident cannot retroactively relieve an employer of pre-accident liability. The practical implication—visible in the MOD’s subsequent £400,000 program to raise balustrades across its estate—is that modest safety improvements may be legally required even where accidents are rare.