Ministry of Defence and The Duty Of Care

By Mubin123

My Lords, the issue of appeal concerns the ‘duty of care’ owed by the a public body, namely the Ministry of Defence (MoD), to the claimant, an employee and patrolling soldier in Iraq at the time of the incident. Specifically, the issue relates to whether the MoD can claim immunity from a ‘duty of care’ and this requires analysis of existing case law and policy reasoning. The findings of the lower court, in this instance, support the premise that the MoD do not owe such a duty; the court held that it would not be ‘fair, just and reasonable’ to impose a duty because the claimant was in the course of combat when the injuries were sustained. The cases referred to in support of this claim will be analysed further in this judgement.

The leading authority on ‘duty of care’ in negligence is Caparo Industries v Dickman,[1] which laid down the criteria that there must be ‘proximity’, ‘forseeability’ and that it must be ‘fair, just and reasonable’ to impose a duty of care.[2] It is evident, however, that the evolution of ‘duty of care’ should develop in ‘novel categories of negligence’ rather than some ‘massive extension of a prima facie duty of care’.[3] Indeed, the lower courts have held that proximity and forseeability are of no relevance in the case it is agreed upon here that the criteria would add nothing of relevance in a situation involving a public body and an employee in a combat situation. The focus must therefore be on whether it is ‘fair, just and reasonable’ to impose a duty of care onto the MoD in such circumstances. This judgement will therefore assess how far combat immunity should be allowed to expand, whether it makes sense from a public policy perspective to impose a duty on the MoD and finally, whether recent developments in terms of Human Rights have any influence upon the current case.

The most prevalent of arguments in relation to combat immunity and policy is that in extreme battle conditions, a public body cannot be expected to maintain a level of care which a regular civilian employer would be obliged to maintain in relation to health and safety.[4] Under the Crown Proceedings Act 1947,[5] s.10 guaranteed immunity to the Crown from owing a duty of care where injury is inflicted during combat, but ss. 1-2 of the Crown Proceedings Act 1987 suspended a statutory immunity, and ‘combat immunity’ has since become a common law issue. Perhaps the most significant case for our consideration, and which the lower court also considered, is Mulcahy v Ministry of Defence,[6] which drew extensively on the Australian case of Shaw Savill and Albion v the Commonwealth[7] in deciding that when engaged with the enemy, there is no ‘duty of care on the defendants… to maintain a safe system of work’.[8] The general logic behind this is extensively referred to in both judgements, and is summarized by Owen J in Multiple Claimants v Ministry of Defence[9] when he states that ‘service personnel will be exposed to the risk of death and of injury… this is the nature of warfare. But the welfare of the soldier… must be subordinate to their combat role’.[10] Furthermore, in the heat of the battle, it is argued that where there is ‘little or no time for considered thought’, it is unreasonable to impose a duty of care.[11]

The prevalent issue is how far this ‘combat immunity’ granted in Mulcahy is reasonably able to extend; as Dixon warned in Shaw, ‘a real distinction does exist between the actual operations against the enemy and other activities’.[12] The facts of the current case, concerning both patrol and deployment of resources, are different from Mulcahy, which concerned a soldier deafened during an artillery bombardment in the Gulf War. Here, the facts resemble more what Lord Reid in Burmah Oil v Lord Advocate[13] described as instances which lie ‘close to that line’[14] which must be drawn between peacetime and combat.

For guidance on this, I call upon the judgement of Dixon in Shaw Savill, who said that the principle of combat immunity ‘must extend to all active operations against the enemy… attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement’.[15] Lord Pearce in Burmah Oil offered a second view that ‘I would define the line as excluding damage done in battle or for the necessities of battle’.[16] Undoubtedly, it is clear that patrol is covered sufficiently within the above catagories. Patrol is often an activity done as means of reconnaissance. Where it is not, however, there is still an established threat of attack and patrol remains a necessary part of the overall conduct of combat.

However, it is possible to say that the duty of care is owed in relation to planning and preparation, and including deployment of resources; this is where the line becomes more difficult to determine. The facts of Multiple Claimants has more relevance to the current case than Mulcahy on this issue, as it relates to alleged omissions of the MoD to deploy psychiatric units and in terms of the ambit of combat immunity, relates to planning and preparation and deployment of resources, amongst other issues.[17] In his judgement, Owen, drawing upon Lord Pearce’s ‘necessities of battle’ idea,[18] held that ‘the military cannot be constrained by the imposition of civil liability in the planning of and preparation for such operations any more than in their execution’.[19] This would seem a sensible approach, given that often, the planning procedures are made under circumstances comparable to heat of the battle moments. The MoD act under pressure, with the prospect of war imminent, and often with a time limit imposed upon it by central government to deploy the resources that it considers adequate for both military efficiency and the safety of the servicemen. With that considered, the judgement of Owen is agreeable on the basis that planning and preparation can reasonably be accounted for as acting within the parameters of combat immunity.

Another argument in relation to the ‘duty of care’ which needs to be considered is the proposition that on a policy level, it would make sense to allow the MoD to owe a duty of care. This has been forwarded in recent articles on the matter; Basu argues that ‘financial pressures [ie. successful claims] can be very effective at forcing safety improvements’.[20] This has some common law application. In Phelps v Hillingdon L.B.C.,[21] the claimant brought forward a claim for negligence against the local authority over sufficient implementation of special needs educational requirements. Lord Clyde rejected any negative policy arguments on the basis that potential liability may well have the effect of ‘securing that high standards are sought and secured’.[22] It was claimed that allowing a duty of care to exist would neither ‘lead to a flood of claims’ nor create a particularly defensive policy.[23]

Nonetheless, the view in Phelps is something of a minority view and deals with substantially different facts to those in question here, mainly because a Council’s educational policy only has limited parallels with the MoD planning for war. In Hill v Chief Constable of West Yorkshire,[24] concerning alleged police duty of care, Lord Keith was adamant that public policy reasons barred him from allowing a duty to exist; ‘the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind… The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime.’[25] Hill has parallels with the current case, and on the above grounds it is difficult to totally discount the possibility that the MoD may suffer from becoming overly defensive in strategy as to avoid claims against them.

It is also important to remember that the Ministry of Defence is responsible for a number of different aspects in society, including employment, schooling of service personnel’s children, as well as vetting and analytical agencies.[26] In Stovin v Wise,[27] Lord Hoffman worried that imposing a duty of care on a local authority would ‘inevitably expose the authority’s budgetary decisions to judicial inquiry’ which would ‘distort [their] priorities’.[28] The concern here is that the MoD could tend to insist upon stronger foundations than are necessary,[29] and that money could therefore be unfairly and inefficiently re-distributed from one agency to another; it is an eventuality that cannot be eradicated.

Furthermore, the basis on which Basu and Lord Clyde argue are perhaps fundamentally unsound. Hoffman states that he does not think ‘that the duty of care can be used as a deterrent against low standards…the court is not in a position to say what an appropriate standard of improvement would be’.[30] This links back to a point made in Shaw Savill, in which Stark J argues that ‘there is no doubt that the executive government and its officers must conduct operations of war… without the control or interference of the courts of law’.[31] It has been asserted that the courts have to ascertain the standard of care in other areas of tort law and therefore public bodies should be no different.[32] However, the key point to be made here is that the political rights of the executive should arguably be preserved to allow freedom of the government to implement their plans without interference from the court imposing standards of improvement or safety.

Recent developments in Human Rights have had significant impact on the law of tort and must also be addressed. The case of R (smith) v Assistant Deputy Coroner for Oxfordshire[33] has been reported as being a ‘groundbreaking judgement’ with ‘widespread implication for defence chiefs’.[34] In the case, Collins J held that Article 2 of the Convention, enforced by the Human Rights Act,[35] imposes a ‘positive obligation… to take reasonable steps to safeguard life’, and Collins has drawn distinction between Mulcahy ‘heat of the battle’ cases, and cases where sufficient equipment is provided.[36] It has also been an issue of contention that providing a public body with a ‘combat immunity’ is a possible breach of Article 6 which guarantees the right to a fair trial.[37] This argument is made most notably in Osman v United Kingdom where police immunity was held to amount to a breach of the right to a fair trial.[38]

With regards to Article 6, it has become sufficiently clear since Z v United Kingdom[39] that application of the ‘fair, just and reasonable’ criteria does not amount to ‘exclusion’ or ‘immunity’ in the sense which would breach Article 6. Rather, it allows for the facts to be heard and policy reasons given in relation to where a duty of care may be excluded. In relation to bringing a claim under Article 2, cases such as Smith v Chief Constable of Sussex Police[40] and Van Colle v Chief Constable of Hertfordshire[41] have been influential in arguing that domestic law should not mirror the convention but provide parallel remedies; they should develop side by side, rather than converge.[42] This seems to be a sensible judgement on the basis that the two remedies provide different redress; a claim under the tort of negligence compensates loss and has an emphasis on policy considerations, while an application under Article 7 compensates breach of Human Rights, which here is considered separate to the tort of negligence.

It is therefore evident that imposing a duty of care on the MoD in this case would not be fair, just and reasonable. Some debate is necessary in relation to how far combat immunity can be applied, and this case is certainly a borderline issue, though the argument that its principles extent to planning and preparation make sense considering the pressure and potential threat to life that such development involves. Alternative policy arguments have been considered, namely the idea that a duty of care would impose a positive financial burden on the public body to secure high standards. However, it still seems that the principles laid down in cases such as Hill and Stovin are too important to be overlooked, and it is important to remember the wider consequences involved in specific deployment of resources and planning. To impose a duty of care in this situation would potentially result in an unnecessary re-distribution of resources and it is considered here that issues such as the level of safety and efficiency are political matters for the MoD and government to retain – the courts should not try to influence them by allowing ‘floodgates’ to open in relation to claimants. Finally, in relation to Human Rights, it is evident that Article 2 may be in question, though it is satisfied particularly in Smith and Van Colle that this is a separate issue and the policy reasons above still apply in relation to the duty of care.

[1] [1990] 1 All ER 568

[2] Same as above, but find the page number on Westlaw

[3] Sutherland Shire Council v Heyman (1985) 60 ALR 1, per Brennan J, 43-44 (check!)

[4] James Rowley, ‘Combat Immunity & the duty of care’, p. 3.

[5] Crown Proceedings Act (get proper reference!)

[6] [1996] 2 W.L.R. 474

[7] (1940) 66 CLR 344

[8] Mulcahy, find reference on westlaw.

[9] [2003] EWCH 1134 (QB)

[10] Multiple Claimants, get page number

[11] Hughes v National Union of Minworkers (westlaw this)

[12] Shaw Savill, get page number