Family of fallen troops in Iraq can sue UK for negligence

[The Bread Guy]

Families of British soldiers killed in combat can sue the Government for breaching their human rights by providing faulty equipment, judges declared in a landmark ruling today.

It could open the floodgates to scores of claims over deaths in Afghanistan and Iraq and result in multi-million pound
compensation
bills for the Ministry of Defence.

A case was brought involving three men killed by roadside bombs while in lightly-armoured Snatch Land Rovers in Iraq despite years of criticism about their vulnerability of the vehicles.

Judges at the Supreme Court ruled that the MoD owes soldiers a duty of care under the law of negligence.

They backed a ruling by the Court of Appeal that the MoD could be liable if they “failed to provide sufficient protection while on active service”.

Private Phillip Hewett, 21, was killed in July 2005, Pte Lee Ellis, 23, died in February 2006 and Lance Corporal Kirk Redpath, 22, of Romford, was killed in August 2007. L/Cpl Redpath’s father Colin said: “My son was in the Army, he had a job to do. But all we’re saying is, ‘If you are going to send our men and women in the combat zone then you give them the best possible chances’.

“I think we’d been in Iraq for five years when my son died, and there were generals and MPs saying Snatch Land Rovers were not fit for purpose. Well surely that should have all been sorted out by then, after five years.”

Defence Secretary Philip Hammond immediately warned the ruling could hamper British military action ....

London Evening Standard, 19 Jun 13

Summary of judgement for media attached - full judgement (72 pages) here.

 

[The Bread Guy]

Longish, but worthwhile read at the Thin Pinstriped Line blog on why the UK's Supreme Court decision may not be a good one.....

.... The challenge for commanders is how best to balance the need to deploy their assets, while using the equipment that they have to hand. The challenges of this ruling are that commanders will now need to consider their duty of care and not be able to take as much risk. Would a commander now be willing to send a Snatch vehicle onto the streets if he had no other suitable vehicles available? If the answer is no, then the question becomes ‘what is the impact’? By having to consider the reduced presence, we wonder whether the streets will become less safe, and the operational area less permissive for friendly forces. Could this lead to firing points being established in local areas, where it is not appropriate or physically possible to send a larger vehicle, but which a snatch could get into? If the establishment is mortared as a result of this, and people are killed, then has the UK government failed in its duty?  ....

 

[FJAG]

IMHO the majority decision is a very poor one but not for the reasons set out in the Thin Pinstripe Line but rather for the reasons set out at para 149 of Lord Mance's minority dissent.

Leaving aside the Article 2 of the ECHR issue for the moment, the majority acknowledged that there is effectively no liability at the political/policy level for negligence nor is there one at the battlefield level where combat immunity applies. What the majority have left open is a potential for liability at what one can call the middle management level. Having done so they then caution the lower courts that they should be very slow in finding liability there except in the most exceptional circumstances.  http://forums.army.ca/forums/Smileys/Armyca/pullhair.gif

Mance has my respect. He makes it clear that as the Supreme Court in the UK they should be setting legal policy statements and a policy that creates a mishmash of potential liability based on where within the overall MoD structure the negligence is alleged to occur is "undesirable". The majority seem to have missed the point of what their role as a supreme court is.

The example of the friendly-fire Challenger case is a clear example of the problem. Combat immunity protects the crew of the tank from being sued for firing the round that killed their comrades. High level procurement officials will also be immune but yet the majority allowed a claim that in essence sues MoD for not providing situational awareness and/or IFF equipment and for essentially not training the crew adequately to ensure they wouldn't fire on friendlies at night. That's bizarre and a clear failure by the majority of the court to bring harmony to the various existing and time honoured liability exemptions. As Mance said at para 114, combat immunity from common law negligence liability is a public policy exemption that runs from the crown down through all of its officers, servants and soldiers.

As to article 2, the Strasbourg court has not yet ruled on this issue and has in fact signalled its recognition that on operations, citizen soldiers do not enjoy the same protection of life that would be required for a civilian. Lord Mance couldn't understand why the majority wanted to allow the trial of the issue of whether the British military procurement and training system bore liability for the deaths when there was no indication that Strasbourg required it.

The majority decision is a difficult read and leaves me with the view that those judges were trying too hard to balance the interests of the deceaseds' families with public policy and while also giving lip service as to how the courts should stay out of military issues. Reminds me of the old adage "Hard cases make bad law". It also reinforces the fact that the days when many lawyers and judges had some military service are long gone.  http://forums.army.ca/forums/Smileys/Armyca/brickwall.gif

They've unfortunately now dumped this down on some poor trial judge to sort it out.  http://forums.army.ca/forums/Smileys/Armyca/popcorn.gif

 

[Robert0288]

Very well stated and echo's my own sentiment.  Never heard of the concept of combat immunity, so thanks for pointing that out and give me something to read up on.

 

[FJAG]

Very well stated and echo's my own sentiment.  Never heard of the concept of combat immunity, so thanks for pointing that out and give me something to read up on.

Combat immunity relates to the issue of negligence.

The law of negligence in general states that if there is a duty imposed by law not to injure another (and by injure we mean physically or financially etc) and you breach that duty and cause damages then you will be liable in law to compensate for that loss. The key issue is "is there a duty of care?" in any particular circumstance.

Combat immunity in brief says that there is no legal duty of care on a soldier (or his leaders or his government) when engaged on military operations; either as to fellow soldiers or to civilians and certainly not the enemy. As such a soldier engaged in combat operations cannot be liable in negligence for his actions.

Note that acts of negligence might still be culpable if they are war crimes or other criminal acts. As an example there is NDA 124 Negligent performance of duty. Note also that combat immunity is a common law concept and may always be set aside by legislation if a legislature chooses to do so.

A recent case in Australia makes it clear that neither their legislature nor the UK's have changed the common law. You should note that the Aussie case was one respecting a criminal charge of manslaughter against civilians during combat in Afghanistan. Manslaughter has underlying it a concept of criminal negligence and in that case the charge would not stand and was dismissed in a pre-trial application on the grounds that a soldier owed no duty of care to the civilians who were accidentally killed.

In Canada we have legislation in section 9 of the "Crown Liability and Proceedings Act" which states that no one can bring a law suit against the crown or one of the crown's servants in respect of death, injuries, damages or loss for which a pension or compensation has been paid (or is payable).  In a way this works similar to Worker's Compensation legislation. Effectively if one of our soldiers is injured by one of his fellows by negligence, he gets a medical pension and can't sue either the fellow soldier or the crown.

 

[Robert0288]

Thank you.

 

[The Bread Guy]

Another lawyer uncomfortable with the situation (with some more detail about combat immunity)....

.... The claimants’ solicitor says: ‘It is clearly in the public interest that the authorities are legally required to consider the safety of their soldiers in times of military conflict. Safety will not be the only consideration or even perhaps the primary consideration, but it is right that our soldiers should expect to be properly equipped.’ The question here is not whether soldiers should be properly equipped; it is whether the standard of proper equipment should be made by the MoD or judges. Neither is it disputed that the safety of soldiers should be considered. What is disputed is whether imposing a legal obligation on the MoD regarding safety is desirable. In short, the issue is: who has the final say on MoD priorities - the military or judges?

( .... )

Lords Mance and Wilson gave a trenchant minority judgment in the Smith case, highlighting how the majority view would impede the MoD’s ability to function. They asked whether many disastrous casualties of the First World War could have been avoided if the War Office had recognised the significance of the proposal for a tank that was put to it in 1912, 1914 and 1916 by the Australian engineer Lancelot de Mole. When de Mole was given a post-war Commission on Awards to Investors in 1919, it was noted that his ‘brilliant invention’, the tank, ‘was in advance of his time, and failed to be appreciated and was put aside because the occasion for its use had not then arisen’. Were the MoD negligent for not having developed the engineer’s ideas in 1912? How many lives could have been saved if the MoD had developed his ideas in 1912? Fortunately, in the aftermath of the First World War, there was no culture of individual rights that would have encouraged thousands of young men and their families to sue for their losses.

In the Second World War, was the fall of Singapore, with the ensuing slaughter and torture, due to culpable failures to fortify the Malay peninsular or to provide armoured vehicles or aircraft for protection? Or was it due to failures of military commanders on the ground? Or was it inevitable in the context of what Churchill described as ‘our bitter needs elsewhere’? These questions should be the preserve of military historians. But in future, such issues will be adjudicated on by judges asking themselves whether military planners had breached a legal duty of care to avoid death or injury.

( .... )