Case No: HQ13X05352
Neutral Citation Number: [2015] EWHC 1404 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20 May 2015 

Before :

THE HON MR JUSTICE WILLIAM DAVIS
- - - - - - - - - - - - - - - - - - - - -
Between :

	Spencer Vaughan	Claimant	
	- v -		
	Ministry of Defence	Defendant	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Michael Rawlinson QC and Ms Charlotte Law (instructed by Irwin Mitchell) for the Claimant
Mr Malcolm Sheehan QC and Mr James Williams (instructed by GLS) for the Defendant

Hearing dates: 6-8 May 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice William Davis: 
Introduction
1.	The Claimant, Spencer Vaughan, is aged 27.  When he was 21 he enlisted in the Royal Marines.  After completion of his basic training in July 2009 he was awarded his green beret and posted to 45 Commando in Arbroath.  On 18th January 2010 he and five other Royal Marines from his company flew to Gran Canaria in order to take part in a week’s Adventure Training Exercise.  The purpose of the exercise was to provide Mne Vaughan and his colleagues with the opportunity to crew a yacht in the course of off-shore sailing around the Canaries.  The yacht was skippered by a very experienced Royal Marine sailing instructor, Corporal Justin Sanders, assisted by a Lance Corporal Quirk who was being trained to take on the role of a skipper.  Corporal Sanders had sailed the boat in October and November 2009 from the UK to the Canaries and had engaged in weekly exercises with different groups of Marines after his arrival in the Canaries.  The weekly exercises were due to continue until about April 2010.  This scheme was something he had overseen and supervised bi-annually for about 10 years prior to 2009 
2.	The exercise involving Marine Vaughan proceeded without incident until the 23rd January 2010.  That was the last day of the trip for Marine Vaughan and his colleagues.  The day before there had been a full day’s sailing from Tenerife.  The day had ended with the boat reaching Puerto de Mogan in Gran Canaria, a substantial holiday resort with a large marina.  On the 23rd January the boat had only about 6 miles to sail in order to return to the point at which the Marines were to be dropped off and the next group was to join the boat.  Because there was little or no wind on the morning of the 23rd January, Corporal Sanders decided to postpone the departure from Puerto de Mogan.  The plan was to wait until lunchtime in the hope that the wind would pick up.  Apparently it is the common weather pattern in that part of the Canaries for the wind to gather strength later in the day.  Corporal Sanders told the Marines that they were free to do what they wanted until about 1.30 p.m.  
3.	What Marine Vaughan and his five colleagues did was to go the beach area at Puerto de Mogan.  The beach was a normal tourist pleasure beach with a boom across the bay around which the beach ran, the purpose of the boom being to keep out any boats, jetskis or other craft.  The beach was manned by lifeguards.  It was being used by holidaymakers including families.  Whilst they were there, Marine Vaughan went into the sea from the beach.  When he was about waist deep in the water he executed a shallow dive into the sea.  In doing so he struck his head on something below the surface of the water.  As a result he sustained a fracture of his cervical spine which has resulted in incomplete tetraplegia.  
4.	Marine Vaughan’s case is that his injury was caused by the breach of duty of the Defendant, the Defendant having the same duty to him as would be owed to an employee by virtue of Section 2 of the Crown Proceedings Act 1947.  I am required only to determine the issue of liability.  That involves consideration of the following issues:
•	How it was that Marine Vaughan sustained his injury.
•	The duty owed to Marine Vaughan in the particular circumstances of the accident.
•	Whether there was a breach of such duty as was owed by the Defendant to Marine Vaughan.
•	In the event of a breach of duty by the Defendant being causative of the accident, the extent to which (if at all) Marine Vaughan was contributorily negligent.
The accident
5.	Marine Vaughan was required to give an account of what happened at various points following the accident.  In September 2010 he was interviewed by an officer of the Defendant as a result of a claim for injury under the relevant Royal Navy compensation scheme.  His account of what happened was very brief.  He said “we were swimming and I did a shallow dive unaware that there was a sandbank just below the surface”.  The following September a substantial medical assessment took place and Marine Vaughan gave a large amount of information in the course of the assessment.  However, the account of the accident itself was not lengthy.  He said “I walked into the sea to cool off.  When I got to about waist height in the water I surfaced dived into the sea.  Unfortunately there was a sand bar that I had not seen I hit the top of my head on”.  In his witness statement for these proceedings Marine Vaughan said this:
“On arriving at the beach I entered the water with 3 other colleagues and after walking out until the water was level with my thighs I then dived into the sea.  I made sure that the dive I executed was a shallow one because the water was only about 3 feet deep.  I went under the water and struck something with my head and immediately lost consciousness.”
In the course of his evidence Marine Vaughan said that there were three Marines who had entered the water before him.  They had run into the sea and, in doing so, had run through the middle of a family group – mother, father and young child.  He had not run because of the presence of this group.  Mr Vaughan also explained that, whilst he could be sure that he had not struck his head on a rock or some other hard object because he had not suffered any kind of cut or laceration, he could not say what it was that he had struck.  When in earlier accounts he had referred striking a sand bar or sand bank, this was an assumption he had made.  His evidence to me was that he simply did not know whether he had hit a raised area of sand or whether he had struck sand at the same level as the surrounding sea bed due to a misjudgement on his part as he executed his dive.
6.	Four of the other Marines gave evidence.  None said what it was that Mne Vaughan had struck.  Two Marines were on the beach when the accident happened.  One of them, Marine Keenan, said that someone – he believed that it was Marine Bye – had said that Marine Vaughan had hit a sand bar.  In other circumstances this hearsay evidence might have been of some weight.  In fact Marine Bye gave evidence.  He made no mention in his evidence of making the remark ascribed to him and he did not say that he had observed any sand bar.  His evidence was that Marine Barnett was the person who first had assisted Marine Vaughan.  Marine Barnett said nothing in his evidence about seeing a sand bar or of a sand bar being relevant to Marine Vaughan’s predicament.  Once the other Marines realised something was wrong they were concerned only with getting him back to the beach and giving him such assistance as they could.  No-one looked around the relevant part of the sea bed.  All of that is wholly understandable.  Marine Vaughan’s colleagues were solely concerned with the apparently serious injury which had been caused to their friend.  The last thing on their minds was to investigate the sea bed.  But it follows that there is no assistance at all to be gained from any eye witness as to the presence (or otherwise) of a sand bar.
7.	I have no other evidence – direct or indirect - to suggest that there was a sand bar or sand bars at the point at which Marine Vaughan dived.  There was no evidence of the beach being particularly prone to sand bars developing.  The photograph with which I was provided showed the beach to be around a sheltered bay.  Although the beach apparently is man made rather than natural in the sense that the sand was imported, there is nothing in the topography of the beach which indicates any increased likelihood of sand bars.  In relation to the artificiality of the beach Corporal Quirk had some recollection of Corporal Sanders mentioning that this meant that the beach was rocky beneath the imported layer of sand.  However, this was not referred to or repeated by Corporal Sanders in his evidence and Marine Vaughan’s accident was nothing to do with any rocky area under the sand.  
8.	Mr Rawlinson Q.C. invited me to draw the inference that Marine Vaughan struck his head on a sand bar.  This invitation was extended notwithstanding the terms of his pleaded case, namely “The Claimant, misjudging the depth immediately in front of him, dived and struck his head/neck on the sea floor….”  He relied in part on the hearsay evidence given by Marine Keenan.  For the reasons already given I consider that there is no assistance to be gained from that hearsay evidence.  He relied also on the fact that Marine Vaughan was not apparently acting recklessly and he certainly was not intoxicated.  That made it unlikely that he simply would have misjudged the distance from the surface of the water to the sea bed.  In my judgment the misjudgement required would have been very modest.  Natural movement of the sea very easily could have exaggerated the effect of any minor misjudgement.  The lack of any recklessness or intoxication on the part of Marine Vaughan does not provide a sound basis for an inference that he struck a sand bar.
9.	In consequence I cannot be satisfied on a balance of probabilities that Marine Vaughan struck a sand bar.  Equally I cannot be so satisfied that he did not.  This difficulty in reaching any conclusion about the state of the sea bed is not fatal to Marine Vaughan’s claim.  It may be of some significance when I come to consider what the Ministry of Defence could and should have done to discharge any duty which it had in relation to Marine Vaughan at the point of his accident.
10.	There is an issue about the way in which Marine Vaughan entered the sea and how he was moving when he executed his dive.  As I have already observed, Marine Vaughan’s account has been consistent throughout, namely that he walked into the sea before executing his dive.  Marine Bye provided a brief handwritten account very shortly after the accident in which he said that “I watched Marine Vaughan run from the beach towards the sea and dive towards (the other Marines in the sea)”.  In his evidence at trial Marine Bye said that this account was incomplete and that Marine Vaughan had slowed in order to walk around a family in the sea.  He also said that he had not seen the dive itself.  Rather, he had seen Marine Vaughan bobbing in the water i.e. after Marine Vaughan had struck his head.  Marine Barnett’s account given within days of the accident was that “I was in the sea when Marine Vaughan ran and dived in to join myself and Marine Speck”.  In his witness statement he said “Spence (i.e. Marine Vaughan) started to run towards the sea to dive in “Baywatch style” to join us….I think Spence was in about waist deep water when he dived in”.  The witness statement was drafted by a solicitor acting on behalf of the Defendant following a telephone conversation with Marine Barnett.  It then was sent to Marine Barnett for signature.  This process had to be adopted because Marine Barnett was deployed out of the jurisdiction for a significant period.  He was cross-examined to the effect that this process led to words being put into his mouth.  He agreed that the wording of the statement was not his; the language was chosen by the solicitor.  However, he also agreed that the quoted passage was a “more or less accurate” account of the relevant events.  I do not find that the use of the term “Baywatch style” was meant to indicate any element of recklessness.  It was merely an attempt to describe a plunge dive from a standing position whilst upright in the sea.  The effect of Marine Barnett’s evidence was that Marine Vaughan ran into the sea in the manner which might be seen countless times on any pleasure beach on any day of the week anywhere in the world.  Marines Murphy and Keenan were on the beach when Marine Vaughan went into the sea.  Marine Murphy’s initial account was that “Marine Speck, Marine Barnett and Marine Vaughan started to run towards the sea to dive in.  I watched Marine Vaughan dive in”.  In evidence he said that he had seen Marine Vaughan running towards the sea and that he presumed that he had dived in.  “If he didn’t, he didn’t” was his final position.  Marine Keenan did not give an eye witness account of Marine Vaughan’s entry into the water and his subsequent dive.  What he said in his witness statement was the result of what others told him.
11.	I am satisfied on the evidence that Marine Vaughan did run through the shallow water near to the beach as he made his way away from the beach.  I make that finding partly because Marine Vaughan was a fit young man and he was doing what is commonplace for anyone of reasonable fitness in that situation and partly in the light of the evidence as outlined above.  As the water became deeper and he was submerged up to his thighs, he plainly was not able to run.  He may also have slowed because of the presence of other people in the sea.  Even without other people around, his progress would have been slowed by the effect of being thigh deep in water.  That is a phenomenon that can be observed regularly on any beach anywhere in the world.  Thus, by the time Marine Vaughan executed his dive, he had slowed to walking pace.  That was the reason he made the dive when he did.
12.	Marine Vaughan’s evidence was that he made what he called “a dynamic assessment” of the position around him just before he dived “as anyone who’s diving into the sea would” and that his judgment was that it was safe to do what he did.  He said that a dive of this kind was something that he had done many times before as had his friends and family.  He explained that his assessment consisted of judging how deep in the water he was and diving accordingly.  I am satisfied that Marine Vaughan did what he said that he did.  His “dynamic risk assessment” (the term used by Mr Rawlinson Q.C. in the course of re-examination) was not a detailed assessment of the sea bed.  It was the kind of judgment of the conditions that might be expected of a sensible adult such as Marine Vaughan when entering the sea from a pleasure beach.
The duty owed to Marine Vaughan by the Defendant
13.	Marine Vaughan’s case is that, subject to combat immunity (which is not relevant to this case), the Ministry of Defence owed to him a duty of care qua employer by virtue of Section 2 of the Crown Proceedings Act 1947.  There is no doubt that this proposition is correct.  However, the duty 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.  It is not necessary to rehearse the many authorities dealing with this issue in its various manifestations.  There is no dispute as to the general principles.  The question for me is whether the accident occurred when Marine Vaughan was engaged in something reasonably incidental to his “work”.  Marine Vaughan argues that he was at the beach in order to undertake physical exercise and that this was something expected of him as a Royal Marine because of the ethos in the service of personal fitness.  In those circumstances he was engaged in something that was at least reasonably incidental to his “work”.  I should say that there was some suggestion in the witness statements that Marine Vaughan had to go into the sea in order to wash, the facilities for showering on the boat being either non-existent or very limited, and that this was a relevant consideration when assessing any breach of duty on the part of the Defendant.  This proposition transpired to be based on a misunderstanding of the extent of the available showering facilities and I need to say no more about it in the context of Marine Vaughan’s argued case.
14.	Marine Vaughan’s argument will require consideration of the circumstances in which he and his colleagues came to be on the beach on the morning of the 23rd January 2010.  However, I first shall consider the question of whether the Marines were on duty at the time of Marine Vaughan’s accident.  If they were on duty, that would be clearly indicative of a continuing duty qua employer owed by the Defendant albeit that a finding that they were not on duty would not be determinative against Marine Vaughan’s case.  The training activity for which they had travelled to the Canaries was off shore sailing.  Clearly being on the beach was not a direct part of that activity.  Nor was it anything to do with the boat on which the sailing activity was to take place.  But 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.
15.	I have been provided with extracts from two Joint Services Publications in relation to adventure training expeditions.  The first (JSP 419) post dated the accident so that its content was of limited assistance.  The second (JSP 765) was an annex to the Armed Forces Compensation Scheme.  It was in force in January 2010.  Insofar as is relevant to this case it defined “on duty” for the purposes of adventure training expeditions as “participating in an activity recognised under the (adventure training scheme) and required to meet the aims of the expedition”.  “Off duty” was defined as “participating in other activities not required to meet the aims of the expedition such as social events”.  Corporal Sanders did not consider the concepts of on-duty and off-duty in the course of his evidence.  So far as he was concerned, on the morning of the 23rd January 2010 the Marines were free to go where they wanted.  They were in their own time given that there was no work to do on the boat.  He had mobile telephone contact numbers for them which he had taken from them right at the start of the expedition.  He had done that so that he could get hold of them if he needed to do so for any reason.  
16.	The clear conclusion to be drawn from all of that evidence is that the Marines were not on duty vis-à-vis the training expedition at the time of Marine Vaughan’s accident and the training expedition was the extent of their duty at that point.  The person in charge of the expedition, Corporal Sanders, gave no instruction at all as to what Marine Vaughan and his colleagues should or should not do in their free time.  As became apparent in the course of the evidence, he was not sure where the Marines had gone; let alone what they were doing.  Marine Vaughan and the other Marines were still to some extent subject to military discipline at the time of the accident.  As Marine Keenan put it, “our actions always have consequences”.  But that is not the same as being on duty.  
17.	Mr Dolan, a retired Army officer with considerable experience of physical training activities whilst in the Army, gave evidence as an expert on behalf of Marine Vaughan.  In the course of his evidence he said that, because the Marines believed that they were on duty, there was an obligation on the Defendant to instruct them as to how to spend their time.  He said that the Marines should not have been given any free time of the kind afforded to them by Corporal Sanders.  I had difficulty in following this evidence.  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.  The conclusion put forward by Mr Dolan was not presaged in his written report.  It was unsupported by any document or protocol or by reference to any identified military practice.  This was but one example of the very unsatisfactory nature of Mr Dolan’s evidence.  I shall have to return to his evidence more than once hereafter.
18.	However, the conclusion in relation to “on duty” does not determine the issue of whether Marine Vaughan was acting in the course of his “employment”.  His case is that he was undertaking physical exercise and that this was something required of him as a Royal Marine because of the ethos of the service.  The current version of the Royal Marines Fitness Tests Policy Statement was produced in the course of the evidence.  The introductory paragraph reads as follows:
“Physical fitness is a fundamental requirement for every member of the Royal Marines in order to ensure combat effectiveness, job performance, and general health are maintained. Furthermore, physical fitness is an indispensable aspect of leadership that is essential to the day to day effectiveness and combat readiness of the Royal Marines. The degree of self-discipline required to gain  and retain high levels of physical fitness is inherent in the Royal Marines way of life and must be part of the character of every member of the Royal Marines. Royal Marines who are unfit reduce the effectiveness of their Units and detract from the overall performance and public image of the Royal Marines.”  (The emphasis is as it appears in the policy statement.)

19.	The fact that a Royal Marine is required to be physically fit and that retaining physical fitness requires regular exercise cannot mean that whenever a Royal Marine undertakes exercise he is acting in the course of his “employment”.  This issue was investigated with Mr Dolan.  He advanced the concept that the ethos of fitness applied at all times so the duty on the Defendant to take all reasonable steps to ensure a Marine’s safety when taking physical exercise also applied at all times.  He accepted that the logical extension of his view was that the Defendant would have to take such steps by way of a proper risk assessment even if the exercise was being undertaken when the Marine was on holiday.  He said that this “would be to an extreme extent”.  I am quite satisfied that Mr Dolan’s view is wholly misconceived.  As before it was not supported by any other evidence.  The fundamental unreality of his view was essentially acknowledged by Mr Dolan himself when he referred back to the belief of the Marines that they were on duty as being the trigger to the duty on the Defendant to undertake a risk assessment.  
20.	It follows that determination of whether Marine Vaughan was acting in the course of his “employment” will depend upon the facts in relation to his presence and activity on the beach as I find them to be.  In Smith v Stages [1989] 1 A.C. 928 the House of Lords considered a conventional employers’ liability case concerned with travelling to and from work (although the circumstances were more refined than that).  The issue was whether the employers’ driver (who negligently drove the car in which he and his co-worker were travelling home from working away) was acting in the course of his employment.  The detailed facts of Smith are of no relevance to this case.  Rather, it is the dictum of Lord Goff of Chieveley at 937D which is apposite: “But how do we distinguish the cases in this category [i.e. travelling from work cases] in which a man is acting in the course of his employment from those in which he is not?  The answer is, I fear, that everything depends on the circumstances.”  Mr Rawlinson Q.C. accepted that every case must be decided on its own facts applying the general principle that something reasonably incidental to the work will fall within the scope of the employment.
21.	Corporal Sanders was not able to recall if he had been told by any of the Marines that they were going to the beach.  Had he been told that, it would not have been of any concern or interest to him since the men were free to do what they wanted.  In any event he was not told specifically that any of them intended to go swimming.  It follows that he was unaware that any particular form of physical exercise was in the contemplation of Marine Vaughan or any of his colleagues.  It was put to him that it would not have surprised him had he learnt that Marine Vaughan was intending to engage in physical exercise on the beach.  Corporal Sanders did not accept that proposition.  He said that, had anyone told him that they were going to the beach to go swimming, he would have thought that this would have been for purely recreational purposes.
22.	Marine Vaughan’s evidence was that he and his colleagues took the opportunity to go for a swim.  He said that he and his colleagues had not swum out to a particular point.  They had swum just around the area of the beach for about 20 minutes.  “I wouldn’t say that we took a vigorous approach to maintaining fitness at that particular time but….we went with the intent of doing some training” was how he put it.  That did not apply to Marine Murphy.  He went to chill out at the beach.  He lay and sunbathed.  Marine Keenan did likewise.  Both men did go into the sea but only briefly and not in any sense as part of some physical training regime.  Mr Rawlinson Q.C. argued that the fact that two men did not partake of physical exercise was of no consequence to the issue of the Defendant’s liability for the injuries suffered by Marine Vaughan.  I accept that it is not determinative of the claim made by Marine Vaughan.  If he were able to demonstrate that he was undertaking an activity required of him by the Defendant as part of his “employment”, what others were doing would be of no consequence.  Equally, it is of evidential significance that two of his colleagues were sunbathing and not engaged in anything remotely resembling physical exercise.  It is some indication of the true nature of the group’s visit to the beach.  It tends to indicate a genuinely recreational visit.  Even Marine Vaughan’s own evidence is equivocal as to the nature and extent of the physical exercise i.e. not a “vigorous approach”.
23.	Marine Bye’s evidence was that the group had agreed to go to the beach in order to do some “phys” as he put it.  His belief was that everyone in the group apart from Marine Keenan swam out to the boom protecting the beach and around the whole length of the boom with periods of treading water interspersed with the swimming.  Marine Barnett did not agree with the proposition that there had been some kind of plan to go to the beach for fitness training.  He said that it was just something that they did.  When cross-examined he said that he and his colleagues had spent a considerable period of time swimming.  He said that this was as a means of taking exercise and as part of being a Marine.  Equally he accepted when re-examined that his witness statement was accurate when it said that “to start with we were all just lying on the beach sunbathing and then a few of us decided to cool off in the sea."
24.	I conclude from all of the evidence that Marine Vaughan and his colleagues did not go to the beach with the intention of engaging in physical exercise as part of their requirement as Royal Marines to keep fit.  I rely inter alia on the following matters in reaching that conclusion.  First, they did not say they were going to do this to Corporal Sanders who was the senior Marine on the boat.  It is very likely that they would have done so had any kind of focused physical training been in train.  Corporal Sanders’s evidence about what he would have thought had he been told that the Marines intended to swim is of significance in this regard.  Second, two of their number did not partake of physical exercise of the kind which might have been regarded as physical training.  Third, the evidence of those who did go in the sea is inconsistent and contradictory.  For instance, Marine Bye’s evidence is not consistent with the witness statement adopted by Marine Barnett.  I consider that Marine Vaughan and his colleagues went to the beach in order to relax and enjoy their free time.  Whilst some of them swam, they did so because they were fit young men who enjoyed physical exercise.  It did not constitute part of their “employment”.
25.	In any event I consider that there are serious problems of definition inherent in the proposition put forward on behalf of Marine Vaughan.  I already have noted the consequences of the view offered initially by Mr Dolan in respect of the extent of the Defendant’s supposed duty.  The difficulties go beyond that.  At what point would taking exercise become physical training intended to meet the ethos of the Royal Marines?  Would all physical exercise fall into that category?  If so, the scope for the Defendant’s duty would be almost limitless.  If the extent of the duty is to be restricted, how and by whom is it to be defined?  I do not consider that a duty can be imposed on the Defendant when the factual extent of the duty is so problematic.  Moreover, at the point of Marine Vaughan’s accident, was the physical training still in progress?  If Marine Bye is correct, he and others (including Marine Vaughan) had undertaken a substantial swim and he and Marine Vaughan had gone back to the beach.  It may be that all of the swimmers had gone back to the beach.  In any event Marine Vaughan sustained his injury when he went back into the sea.  By that stage the only sensible inference is that this was not part of the physical training; rather it was a recreational dip in the sea.  
26.	One answer to the definitional problem was suggested by Mr Dolan.  He said that there should not have been any ad hoc or unorganised physical training undertaken by the Marines.  Corporal Sanders or someone to whom he delegated the task should have supervised it.  That proposition would meet the uncertainty point.  The Defendant’s duty would exist whenever there was supervised training.  Unfortunately, whatever the theoretical merits of the proposition it does not deal with the facts of this case or the way in which the claim is put on behalf of Marine Vaughan.  
27.	The fact that the Defendant did not owe Marine Vaughan a duty of care qua employer in relation to the circumstances of his accident is not the end of the matter.  Corporal Sanders said that he was under a general duty as the senior member of the crew to take reasonable care for the safety of those on the boat.  He put it in his witness statement thus: “a duty of care to ensure that they are okay and safe”.  That was in the context of having taken the details of the mobile telephone numbers of the Marines.  I am satisfied that he was not required to “ensure” the safety of the crew.  Rather he was required to take reasonable care to guard the crew of the boat against foreseeable risks of injury.  I shall come on to consider what was reasonable to expect of a skipper in that situation shortly.  
28.	To a limited extent this case is comparable to Ministry of Defence v Radclyffe [2009] EWCA Civ 635 where a serving soldier suffered injury in the course of off duty swimming in the intervals between organised adventure training.  However, the facts of that case were far removed from this one.  Lieutenant Radclyffe was pressured by his senior officer to jump 65 feet from a bridge into a lake.  On the findings of fact in that case this pressure was what caused Lieutenant Radclyffe to repeat the exercise the following day with catastrophic results.  Even though the protagonists were off duty, the senior officer owed a duty of care to his subordinate.  What the senior officer pressured the subordinate into doing was obviously dangerous.  The senior officer was present when Lieutenant Radclyffe made his first jump.  Subject to a deduction for contributory negligence Lieutenant Radclyffe succeeded in his claim based on the breach of duty of the senior officer.  Paragraph 21 of the judgment of the then President of the Queen’s Bench Division is as follows:
The key to the legal analysis is to be found in the answer to the question whether Captain Jones owed Mr Radclyffe and the soldiers a duty of care when they were at the lake on 8th August. In my judgment, he did. He was the officer in charge of them in Germany and, in the context of the swimming party, it was fair, just and reasonable to ascribe to him a duty to take reasonable care to guard his subordinates against the foreseeable risk of injury, if they jumped from the bridge into the lake. By his own presence there in the circumstances that pertained and by reason of his rank, he assumed responsibility to prevent them from taking undue risks of which he was or ought to have been aware. They asked him if they might jump. The very fact that they asked predicates reliance sufficient for a duty of care and their assumption that he had authority to order them not to jump.  That authority derived from his rank and the fact of his and their military employment. His authority was no doubt more circumscribed than if they had all been on duty. The fact that they were off duty did not mean that the military relationship became irrelevant.
28.	In this case Corporal Sanders was not present at the beach.  Even if he had been there, I am sure that the Marines would not have asked his permission to go into the sea or to execute a shallow surface dive as they were going into the sea.  Corporal Sanders in fact did not know where the Marines were or what they were doing.  Moreover, the activity which caused Marine Vaughan’s injury was far removed from the kind of jump involved in Radclyffe.  That case demonstrates that a duty of care can arise in a military setting even when the activity involved is not part of the serviceman’s duty or part of any adventure training.  Otherwise it is of no direct assistance to Marine Vaughan’s case.  The nature and extent of any duty will vary from case to case.  It is to be noted that Mr Radclyffe’s accident was pleaded as relevant to the factual circumstances of the accident which befell Marine Vaughan and the alleged negligence of the Defendant in this case.  I consider that this pleading was misconceived.
Was there any breach of the duty owed to Marine Vaughan?
29.	In the context of the claim as put on behalf of Marine Vaughan there was significant criticism of the risk assessment of the training exercise on which he was engaged.  This was on the basis that only the risks involved in off shore sailing were assessed in any formal manner.  The risks in relation to on shore activities were not assessed.  The argument was that this was far too narrow a view of the expedition.  I do not consider that it is necessary to consider this issue at any length.  Risk assessment could not conceivably form part of Corporal Sanders’s duty of care in relation to the on shore activities of the Marines outside the course of their “employment”.  In any event the case as put in his closing submissions by Mr Rawlinson Q.C. was that a simple warning about the relevant risks would have been sufficient.
30.	In the context of the alleged duty of care qua employer Mr Dolan said that Corporal Sanders (or someone to whom he had delegated the task) ought to have visited the beach before any Marine swam there.  He should have looked at the sea to see if there were any obvious dangers such as rocks.  He should have looked for any areas of lighter water (indicating that the water was shallow) or darker water (indicating deeper water).  On the assumption that none was visible he then should have asked a lifeguard whether there were any dangers prevalent in the area that were not visible.  I consider that this would have been to impose a requirement far in excess of that required of Corporal Sanders even if this had been an “employment” situation.  Whether the issue was within Mr Dolan’s expertise is open to question.  Further, there is no evidence that these steps would have made any difference at all to the outcome.  As I observed when concluding that I could not make a finding as to the presence of a sand bank or sand bar, the lack of any observable hazard could be of relevance to whether a supposed breach of duty was of any causative relevance.  In any event no such steps of the kind put forward by Mr Dolan were required of Corporal Sanders in the light of the duty in fact owed by him. 
31.	On behalf of Marine Vaughan reliance is placed on the fact that Corporal Sanders did tell the Marines that they were not to swim in the marina.  It is argued that this shows that he appreciated the need to warn against risks other than those connected with the boat or off shore sailing.  Thus, he should have warned against the risks of diving in shallow water off the beach.  However, it emerged in the course of the evidence of Corporal Sanders that, although swimming in the marina would have been dangerous both because of the passage of boats to and fro and because of pollution within the marina, the reason for his instruction to the Marines was because of a local byelaw prohibiting swimming in the marina.  The expedition being undertaken by Marine Vaughan was one of many during the winter and early spring months.  Corporal Sanders was aware that breach of the byelaws by those on the boat he skippered would lead to the boat losing its right to moor in the marina.  Were that to happen, future expeditions would be put in jeopardy.  It follows that no assistance can be gleaned from the “no swimming in the marina” warning.
32.	Was it then necessary for Corporal Sanders to issue any warning?  He did not know that the Marines were going to go to the beach or that they intended to go into the sea.  Equally, I am satisfied that it was reasonably foreseeable that the Marines, having been given the morning off on a pleasant day, would go to the beach and would go into the sea.  What was reasonably required of Corporal Sanders in those circumstances?  I pose that question conscious of the fact that the pleaded case always has been that Marine Vaughan was acting in the course of his “employment” and that the Defendant has argued that, in the event of a finding that he was not, the claim must fail.  In my judgment it is necessary and appropriate to consider Corporal Sander’s duty as he acknowledged it to be albeit that he did not define it in legal terms.  
33.	The proper parallel to be drawn is that of an occupier owing the common duty of care pursuant to the Occupiers Liability Act 1957.  That means that the decision of the House of Lords in Tomlinson v Congleton Borough Council [2004] 1 A.C. 46 is highly relevant.  In Radclyffe (supra) the then President of the Queen’s Bench Division observed that Tomlinson did not apply to the situation under consideration in that case.  The position here is very different and I am satisfied that the principles in Tomlinson (supra) are applicable.  It is not necessary to rehearse the facts in that case in any detail.  It is sufficient to say that they involved an 18 year old youth going into a lake occupied by the local authority and diving from a standing position into shallow water as a result of which he struck his head on the sandy bottom and broke his neck.  There are clear factual similarities to Marine Vaughan’s accident.  The House of Lords decided the case on the basis that the young man was in the lake as a lawful visitor of the local authority as occupier.
34.	The finding of the judge at first instance in Tomlinson was that there was an obvious risk of injury from diving into a lake where the water was shallow.  In this case Marine Vaughan himself said in the course of his evidence that he knew at the time of his accident that there was a risk of injury if one dived into shallow water.  That must lead to a similar finding in this case.  Although the unchallenged evidence called by the Defendant was that there had been no recorded incident of any injury caused to any Royal Navy personnel by shallow water diving in a five year period from 2008 to 2013, I am satisfied that Corporal Sanders, had he applied his mind it, would have acknowledged such a risk.  
35.	Was there a duty on Corporal Sanders to warn Marine Vaughan against the danger?  At first blush it might seem that, even if there were such a duty, a warning would have had no effect.  Marine Vaughan knew of the risk himself.  He still undertook the dive in shallow water.  In evidence he said that, had Corporal Sanders warned him of the risk of diving in shallow water, he “would probably have thought twice about what I was doing”.  He also said that he “probably would have proceeded into the water further”.  Even on the basis that I were to accept that evidence, I consider that it barely establishes that a warning by Corporal Sanders would have had any effect on Marine Vaughan’s behaviour.  Marine Vaughan already knew about that which Corporal Sanders supposedly should have warned.  On the 23rd January 2010 he did what he had done and what friends and family had done many times before.  I suspect that he would have done the same irrespective of anything said by Corporal Sanders.
36.	However, it is not necessary to reach a concluded view on this issue.  I am quite satisfied that there was no duty on Corporal Sanders to warn Marine Vaughan of the risks involved in diving from a standing position in shallow water.  The position in circumstances such as these was summarised by Lord Hoffman at page 85D in Tomlinson (supra).
I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ (at para. 45) that it is "only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability". A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, or in the case of employees, or some lack of capacity, such as the inability of children to recognise danger (British Railways Board v Herrington [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves (Reeves v Commissioner of Police [2000] 1 AC 360).
Applying that principle to the facts of this case leads inevitably to the result that there was no breach of duty on the part of Corporal Sanders.  Marine Vaughan had a genuine and informed choice as to how he entered the sea.  He was not acting in the course of his “employment”.  He was not subject to any lack of capacity.  He assessed whether it was safe to do what he did before he went headfirst into the sea.  He misjudged the position with catastrophic results.  It is a tragedy that a young man of such promise has suffered such a serious injury.  Unfortunately I cannot ameliorate the position in which he now finds himself with a finding of liability on the part of the Defendant unless there is a proper legal basis for doing so.  I am satisfied that there is none.
Contributory negligence
37.	In view of my conclusions thus far, the issue of contributory negligence does not arise.  Marine Keenan in his witness statement described the accident as “just one of those things” i.e. a pure accident with no fault involved.  I consider that this is a reasonable description of the event.  Marine Vaughan did something that he had done many times before.  I infer that other people did the same on the beach in question on the 23rd January 2010.  Marine Vaughan made what was a momentary and minor misjudgement.  It would be harsh to say that in doing so he was careless of his own safety.
Conclusion
38.	For all of the reasons I have given I am satisfied that Marine Vaughan’s injury was not caused by any breach of duty owed to him by the Defendant.  His claim must fail.