Private Nuisance by Japanese Knotweed

Network Rail Infrastructure Ltd v Williams and Waistell [2018] EWCA 1514, 3 July 2018

Japanese knotweed is a fast-growing plant that can disrupt drains, paving and walls. It spreads by means of rhizomes, ie underground stems, and is difficult to get rid of, partly because it can regrow from any small section of rhizome that is left in the soil. Soil contaminated with Japanese knotweed is designated ‘controlled waste’ under the Environmental Protection Act 1990 and can only be removed and disposed of by licensed organisations. The presence of Japanese knotweed on or near land can reduce its market value, and mortgage lenders frequently insist on costly remedial measures before they will lend money to someone intending to purchase land with the weed growing either on it or within 7 metres of it.

The case involved claims in private nuisance by the owners of two adjoining semi-detached bungalows in Maesteg, South Wales. The defendant, Network Rail Infrastructure Ltd, had allowed Japanese knotweed to grow on its land – a railway embankment – abutting the claimants’ properties. The trial judge – Mr Recorder Grubb – found that the defendant had failed to take adequate or reasonable steps to deal with the issue even after it had notice of the risk of the knotweed interfering with the claimants’ use and enjoyment of their land.

The main issue for the Court of Appeal was whether the claimants had suffered anything that could constitute a private nuisance. The Recorder had found that the knotweed had intruded (‘encroached’) under the claimants’ properties, but that it had not caused any physical damage. He found that the defendant was liable to the claimants, however, on the basis that the owner of a property blighted by the presence of knotweed on neighbouring land could establish an interference with the amenity value of the land as a result of his or her concerns about the effect of the knotweed on the value of the property.

The Court of Appeal held that the Recorder’s basis for finding liability was ‘wrong in principle’. The Court’s primary objection was that a simple devaluation of land is pure economic loss – that is, loss not consequential on physical damage or an interference with rights in land – and that an owner’s concerns about such devaluation could not change the nature of the harm so as to bring it within the sphere of private nuisance. With respect, this is clearly correct: if an owner’s ongoing concerns about property values could turn any substantial devaluation into a private nuisance then the scope of the tort would be greatly expanded, and there would be a significant increase in the number of activities of neighbouring landowners that had to be assessed for ‘reasonableness’. There are many activities that can affect property values but which do not interfere with a claimant’s right to use and enjoy his or her land. For example, advertising a residential property as available for rental by students – as opposed to by families – would lead to a reduction in value of neighbouring properties in many parts of Oxford – as a result of student tenants having a (perhaps unfair) poor reputation as neighbours: but surely a defendant should not be obliged to demonstrate the reasonableness of subjecting his or her neighbours to such worries about the value of their properties? To put the same point another way, a property owner does not have a right that his neighbour uses his or her land only in ways that potential purchasers would be happy about living next door to.

The Court of Appeal dismissed the defendant’s appeal, however, by concluding that the Recorder should have straightforwardly found in the claimants’ favour by relying on the contamination of their soil by knotweed rhizomes. In the words of Sir Terence Etherton MR, who wrote the main judgment, at [55]: ‘the mere presence of [Japanese knotweed] rhizomes, imposes an immediate burden on the owner of the land in terms of an increased difficulty in the ability to develop, and in the cost of developing, the land, should the owner wish to do so. [And] … any improvement or alteration of the property requiring the removal of contaminated soil would require disposal of the soil either on site or, more likely, off site by special, and probably expensive, procedures.” He thought that the presence of Japanese knotweed and its rhizomes “are a classic example of an interference with the amenity value of the land.’

Personally, I would have been inclined to treat the contamination of soil by the presence of rhizomes as a form of physical damage – similar to the claim for the deposit of excess dust in carpets that was discussed by the Court of Appeal in Hunter v Canary Wharf Ltd [1997] AC 655, at 676 (Pill LJ). But, however the effect is conceptualized, it is clear that the Network Rail case limits the scope of private nuisance by prioritizing physical interferences (intrusion, emanation, contamination, obstruction, withdrawal of support, etc) over other annoyances and inconveniences (unfriendly neighbours, an untidy neighbouring garden, closure of the local pub or post office, etc).

The case leaves three significant follow-on questions only partially answered.

1. Can a claimant make a claim against a defendant who has Japanese knotweed on its land even before the rhizomes intrude into the claimant’s soil? The answer to this appears to be that the claimant will not be able to claim simply because he or she is worried about the situation, still less because the market value of his or her property has fallen, but he or she may be able to seek a quia timet injunction where the prospect of physical intrusion and contamination is sufficiently likely.
2. What is the current status of the ‘affront’ cases, such as Thompson-Schwab v Costaki [1956] 1 WLR 335 and Laws v Florinplace Ltd [1981] 1 All ER 659, where the claimants do seem to have based their claims on their concerns about what was happening on neighbouring land (respectively, prostitution and the opening of a ‘Sex Centre and Cinema Club’)? Sir Terence Etherton MR discussed these cases in his judgment in the Network Rail case, but appeared to distinguish them on the basis that in them the evident nature of the neighbouring activities was causing the interference with the claimants’ enjoyment of land, as opposed to causing a devaluation in property which then worried the claimants.
3. Where an occupier has Japanese knotweed on its land that could foreseeably spread and cause problems for neighbours then what steps must it take in order to behave reasonably vis-à-vis those neighbours? This question was not one that the Court of Appeal had to confront. But clearly the decision that Network Rail Infrastructure Ltd can be liable for allowing Japanese knotweed to continue growing on a railway embankment – where it had apparently been growing for at least 50 years – is likely to make the question important. The case of Holbeck Hall Hotel Ltd v Scarborough BC [2000] QB 836 suggests that where a private nuisance may arise as a result of a natural hazard it may be appropriate to consider how far both defendant and claimants are likely to benefit from removal of the hazard, and the resources available to both defendant and claimants, when deciding what can reasonably be expected. In cases involving tress roots, however, it seems that defendants generally bear the cost of protective measures. As a result, the issue may only be settled by further litigation.

 

Roderick Bagshaw (uploaded- 3 July 2018)

Harassment for the Purpose of Preventing or Detecting Crime: Hayes v. Willoughby [2013] UKSC 17

“Harassment“ is, according to Lord Sumption (with whom Lord Neuberger and Lord Wilson agreed), “an ordinary English word with a well understood meaning”, which is, he continues, “a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress” (following Lord Phillips of Worth Matravers MR in Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 30). Under the Protection from Harassment Act 1997 harassment is both a criminal offence (section 2) and a civil wrong (section 3), but a defendant will avoid liability if he or she can show that he or she pursued his or her course of conduct “for the purpose of preventing or detecting crime”. In Hayes v. Willoughby [2013] UKSC 17 the Supreme Court had to determine whether this meant that a defendant who “sincerely believed” that the claimant had committed a variety of offences, and pursued a campaign that was “subjectively directed at the prevention or detection of crime”, could rely on this defence even if his persistence in that campaign, after being assured that his allegations had been investigated and found to be unsubstantiated, “exceeded even the widest limits of reasonableness and became unreasonable and obsessive”. (The quotations in the previous sentence are from the trial judge’s findings of fact, as quoted by Lord Sumption.)

The Court of Appeal had decided that: (1) It was possible to distinguish between the purpose of a course of conduct and the purpose of the person pursuing that conduct, and if the conduct itself was not rationally connected to the goal of preventing or detecting crime then the person pursuing it could not rely on the defence; and (2) the person could only rely on the defence if his sole purpose was to pursue or detect crime (and as a result a tinge of vengefulness could negate the defence). The Supreme Court rejected both of these propositions. Thus, on (1): “in the context of section 1(3)(a) purpose is a subjective state of mind” (at para [14], see also para [21]), and on (2): “the ordinary principle is that the relevant purpose is the dominant one” (at para [17], see also para [21]). A majority of the Court, however, (with Lord Reed dissenting), held that a person will only be held to have a particular “purpose” (a subjective state of mind) if he or she has engaged in the “minimum mental processes necessary to acquire the relevant state of mind”, that is “thought rationally”.

A lengthy passage from para [15] is worth quoting since it relies on a difficult distinction between whether a person has gone through particular mental processes before reaching a particular “state of mind” and whether some notional, reasonable person might have been able to reach the same “state of mind”. Here’s the passage:

“Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter. He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it. If he has done these things, then he has the relevant purpose. The court will not test his conclusions by reference to the view which a hypothetical reasonable man in his position would have formed. If, on the other hand, he has not engaged in these minimum mental processes necessary to acquire the relevant state of mind, but proceeds anyway on the footing that he is acting to prevent or detect crime, then he acts irrationally. In that case … the law will not regard him as having had the relevant purpose at all. He has simply not taken the necessary steps to form one.”

In the previous paragraph (para [14]) the suggestion is made that “thinking rationally about the material” (underlining added) involves applying “a minimum objective standard to the relevant person’s mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse.” Thus a person will only have “thought rationally” if he or she has thought in a way that avoids these failings, and unless he or she has “thought rationally” the law will not be able to conclude the he or she had the requisite “purpose”.

Lord Reed dissented. He argued that additional limits should not be read into statutory provisions, in particular where their effect will be to extend the scope of a serious criminal offence. Moreover, he expressed doubt about whether juries, or indeed judges, would be capable of understanding the distinction and applying such a “rationality” test to the facts. He also suggested that Parliament might have concluded that a simpler subjective defence – perhaps (my formulation), “did the defendant sincerely understand himself to be acting (predominantly) in pursuit of the purpose of preventing or detecting crime?” – would be appropriate in order to avoid investigative journalists and others being “chilled” by the threat of having to justify their actions.

The majority’s answer to the first and third concerns would, presumably, be that their decision simply illuminated the limits that Parliament actually intended all along. Opinions on those issues are likely to divide in accordance with different opinions about the evidence to be found in the text of the statute and about how the task of “statutory interpretation” ought ideally to be conducted. But what of the criticism that the majority’s “rationality demand” is too subtle for juries (and perhaps also for judges, practising lawyers and legal academics)? On that issue, my personal view is that juries will find it easier to decide whether any particular defendant’s reasoning process was “wholly irrational” than judges have found it to catalogue the ways in which reasoning can be “irrational”.

A Secondary Psychiatric Victim of a Delayed Crisis: Taylor v. A. Novo Ltd [2013] EWCA Civ 194

In Taylor v. A. Novo Ltd [2013] EWCA Civ 194, the claimant, Ms Crystal Taylor, developed post-traumatic stress disorder (PTSD) after witnessing her mother’s sudden collapse and death as a result of deep vein thrombosis and consequent pulmonary emboli (blood clots moving to the arteries in her lungs). Her mother’s deep vein thrombosis, pulmonary emboli and death were a result of an accident at work three weeks previously, in which she sustained injuries to her head and left foot, from which she had appeared to be recovering well. And this accident at work was a result of the admitted negligence of her employer, the defendant. Clearly, if the claimant had developed post-traumatic stress disorder as a result of directly witnessing a horrifying accident in which her mother was killed she would, in accordance with the rules set out in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310, have been able to claim in negligence against a party whose carelessness had brought about that accident. So the question for the Court of Appeal was whether she should still be able to claim when she witnessed not the immediate accident but horrifying effects of it that arose suddenly and unexpectedly three weeks later. The Court of Appeal’s answer was ‘no’: it held that the three week gap between the initial accident at work and her mother’s collapse meant than the claimant was not in a sufficient relationship of proximity with her mother’s employer, and that consequently her mother’s employer had not owed her a duty of care.

Why did the Court of Appeal reach this conclusion? Lord Dyson MR invoked two arguments. First, he identified a general theme in the relevant decisions of the House of Lords as having been “thus far and no further” (quoting Lord Steyn in Frost v. Chief Constable of South Yorkshire Police [1999] 2 AC 455), with any further substantial extension of the law being a matter for Parliament. Perhaps surprisingly, he thought that allowing the claimant to recover for directly witnessing horrifying effects arising three weeks after an accident would involve a substantial extension of the law. Secondly, he insisted that “an ordinary reasonable person” would think it was “unreasonable and indeed incomprehensible” to allow the present claimant to recover whilst saying that people who arrived on the scene of an accident shortly after “the aftermath” could not.

This second argument deserves some further attention. No doubt, “an ordinary reasonable person” might need some persuading that it is sensible for the law to draw a line between those who are injured as a result of directly witnessing horrifying accidents involving their loved ones, or the immediate aftermath of such accidents, and those who are injured as a result of learning about such accidents and then participating in deeply distressing steps such as identifying a body in a mortuary. (The latter is intended to be the sort of case that Courts have consistently held falls just beyond “the immediate aftermath”.) Indeed, “an ordinary reasonable person” might need some persuading that it is sensible for the law to draw a line between those who are injured as a result of directly witness horrifying accidents involving their loved ones and those who are injured as a result of the stresses of caring for, and worrying about, severely injured loved ones for several years. But it is less clear that once the ordinary reasonable person had understood the line (loosely, somewhere between that which causes terror and that which causes grave and terrible distress) he or she would insist that the claimant in the current case could not be distinguished from those learning about the accident and then participating in deeply distressing formal steps: the claimant in Taylor v. A. Novo Ltd directly witnessed a sudden and traumatic emergency, which threatened her mother’s life, albeit this emergency occurred three weeks after the initial accident. Wasn’t this a “terror case” rather than a “grave and terrible distress case”?

(This isn’t, of course, intended to defend the law’s drawing of such a line; merely to query whether, in a legal system where the line exists, it is appropriate to classify Ms Taylor’s claim as outside the “terror” category where tort recovery is a possibility.)

Lord Dyson MR’s insistence that “an ordinary reasonable person” would find distinguishing between Ms Taylor’s claim and a “just-after-the-aftermath” claim “incomprehensible” seems to depend on some combination of the thoughts that: (i) such a person wouldn’t think the experience of witnessing a sudden, traumatic emergency three weeks after an accident was a more traumatic experience than learning about an accident and then participating in deeply distressing steps such as identifying a body in a mortuary, and (ii) consequently, such a person would find it mystifying that people subjected to traumatic experiences three weeks, or more, after an initial accident could sometimes recover damages whilst people subjected to (similarly) traumatic experiences a few hours after an initial accident would sometimes be prevented from recovering damages because they did not witness the “immediate aftermath”. But the problem with any reasoning that relies on thought (i) is that it tends to undermine the basic distinction between cases of “terror” and cases of “terrible distress”: it doesn’t seem appropriate to rely on the fact that a “reasonable ordinary person” would struggle to comprehend the significance of the dividing line in order to decide which side of the line a particular case should fall on.

What is the position, then, if a defendant does something careless but this action causes no injury to the primary victim until three or more weeks later, and a secondary victim directly witnesses the primary victim being injured? For example, suppose that a defendant electrician fails to disconnect a redundant electrical cable in a factory where he has been removing machinery, and a few weeks later a primary victim comes into contact with the cable and is electrocuted whilst a close relative of the primary victim witnesses the horrific accident. In such circumstances, where there is a time delay between the carelessness and the horrific accident that it causes there can be little doubt that a claim by the secondary victim is possible. (Accidents often occur a significant time after the negligence that caused them – for example, the negligence of the car mechanic in failing to spot the corrosion of the brake cable or the looseness of the wheel nuts – and no one has ever suggested that such a time lag should alter the position of potential secondary victims.) If this is correct then it seems that if the facts had been different – (NB the following set of facts are hypothetical) – and a negligent medical practitioner had carelessly failed to diagnose the possibility of Mrs Taylor’s deep vein thrombosis, with the result that three weeks later she suddenly collapsed in front of her daughter in a horrific and shocking way, then her daughter ought to have been able to claim against the negligent medical practitioner. (Indeed, in Taylor’s case the Court of Appeal distinguished North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792, [2003] PIQR P16, which was a case involving a claim for psychiatric injury brought by the mother of a baby that died as a result of medical negligence, where the circumstances of the death were horrific – albeit drawn out over 36 hours – and much of the admitted medical negligence occurred some weeks before the baby’s death. In Taylor’s case the Court of Appeal focused on the fact that in Walters the 36-hour crisis that led to the baby’s death involved a “seamless tale”, but said nothing to suggest that the claim should have been barred because the admitted negligence occurred some weeks before the final, horrific, crisis.) But this raises a difficult question: if the daughter could claim against a negligent medical practitioner in the hypothetical case, and there would be no problem in a court finding sufficient ‘proximity’ between her and the practitioner despite the three week delay between the negligence and the horrifying consequences, then why will such a three week gap cause problems in Taylor’s case where the negligence had both immediate and delayed consequences? Would Lord Dyson MR’s “ordinary reasonable person” find this distinction (between Ms Taylor’s claim – rejected – and the hypothetical claim against a negligent medical practitioner – allowed) “comprehensible”? (NB I have no desire to encourage the Court of Appeal to hold that the claim against the negligent medical practitioner should be rejected!)

By now it is probably obvious that I was not convinced by the Court of Appeal’s reasons for overturning the decision of the trial judge in Taylor’s case: I think that from the perspective of the Alcock ‘limits’ the claim could have been straightforwardly classified as one involving direct perception of a horrifying incident involving a very close relative. At the same time, however, I can appreciate why the Court of Appeal was concerned that many injuries might eventually bring about (or at least make a ‘material contribution’ to the occurrence of) horrifying crises at some later date. Personally, however, I think that the answer to the spectre of cases (unexpectedly?) arising from the degeneration of injuries many years later ought to be found in a robust test of “reasonable foreseeability” at the remoteness of damage stage (i.e. were the injuries suffered by the claimant of the same “type or kind” as those that reasonable person in the defendant’s shoes ought to have foreseen as a real possibility?) rather than in artificial rules about whether the injured relative witnessed the “same event” as the defendant’s negligence caused, and whether there was a “seamless tale” (!), etc.

A closing thought – could it be argued that the tendency to invent complex and artificial “proximity rules” has been (in part) encouraged by a lack of confidence (and consistency) in the application of remoteness rules?

Vicarious Liability for Sexual Abuse – The Supreme Court Clarifies Three Key Points

The Catholic Welfare Society v Various Claimants (FC) [2012] UKSC 56

 

(This post attempts to summarise the main points of decision in the case. It does not offer an evaluation of the decision.)

 

In this case the Supreme Court had to consider whether an unincorporated association, ‘The Brothers of The Christian Schools’ (referred to hereafter as ‘The Institute’), was vicariously liable for acts of sexual abuse committed by members of the Institute at a residential school called St William’s. The Institute’s main mission was teaching and its members were lay brothers of the Catholic Church, who had made vows of poverty, chastity and obedience. The brothers were obliged to go wherever they were directed by the Institute, and those who were sent as teachers to St William’s made over their contractual earnings to the Institute, which then provided them with food and accommodation.

 

The case raised three major questions.

Firstly, whether the Institute could be vicariously liable for torts that the brothers (its members) committed at St William’s given that the relationship between the Institute and the brothers was not a contractual relationship between an employer and employee. This can be called the ‘akin to employment’ point.

Secondly, whether the Institute could be vicariously liable for torts that the brothers (its members) committed at St William’s given that the brothers were employed to teach at St William’s by a different party (that was not appealing against the conclusion that it was vicariously liable for their torts). This can be called the ‘dual liability’ point, since it involves asking whether (and, if so, when) two defendants can be vicariously liable for a tort.

Thirdly, whether there was a sufficiently close connection between the brothers’ torts and the relationship between the brothers and the Institute to make the Institute vicariously liable for the torts concerned. This can be called the ‘close connection’ point.

The Supreme Court, in a judgment written by Lord Phillips with which the other members of the Court agreed, decided all three points against the Institute and held that it was fair, just and reasonable to hold the Institute vicariously liable for the acts of abuse committed by the brothers at St William’s.

 

1. ‘Akin to employment’

 

On the ‘akin to employment’ point, Lord Phillips identified five ‘incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant’(START of quotation from para 35):

 

i) The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

 

ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

 

iii) The employee’s activity is likely to be part of the business activity of the employer

 

iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;

 

v) The employee will, to a greater or lesser degree, have been under the control of the employer.

[END of quotation from para 35]

He then held (at para 47) that: ‘Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is “akin to that between an employer and an employee”.’

 

On the facts he found that the relationship between the brothers and the Institute was sufficiently ‘akin to employment’.

 

2. ‘Dual employment’

 

On the ‘dual employment’ point, Lord Phillips held (at para 45) that the approach of Rix LJ in  Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2005] EWCA Civ 1151; [2006] QB 510 was to be preferred to the approach of May LJ in that case. Thus the five incident ‘akin to employment test’ should be applied independently to each party that it is submitted may be vicariously liable. He also stated that when deciding whether there is ‘dual vicarious liability’ there is ‘no justification’ for applying the ‘stringent test’ employed by the House of Lords in Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1.

 

On the facts he found that the Institute could be vicariously liable for the torts committed by the brothers who worked as teachers at St William’s even though their contractual employers were also vicariously liable for these torts.

 

3. ‘Close Connection’

 

Lord Phillips accepts that: ‘It is not easy to deduce from Lister the precise criteria that will give rise to vicarious liability for sexual abuse. The test of “close connection” approved by all tells one nothing about the nature of the connection.’ Consequently, he sets out to improve matters, and after surveying the previous cases in Canada, England and before the Privy Council, (- the High Court of Australia is said to have ‘shown a bewildering variety of analysis’ -), he identifies ‘the criteria that establish the necessary “close connection” between relationship and abuse’ (START of quotation from para 86):

 

Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.

(END of quotation from para 86)

Thus the extent to which the defendant’s deployment of the abuser has ‘created or enhanced the risk’ of the tort being committed will in future be an important element in assessing the ‘closeness of connection’ between the tort and the defendant’s relationship with the primary tortfeasor.

Negligence of the Ministry of Defence in the Procurement of Equipment and the Training of Military Personnel.

Smith v Ministry of Defence;

Redpath v Ministry of Defence;

Ellis v Ministry of Defence;

Ministry of Defence v Albutt, Twiddy and Julien

[2012] EWCA Civ 1365

This note discusses two groups of claims which have been brought against the Ministry of Defence alleging that it acted negligently, as an employer, in failing to provide soldiers with superior equipment and better training. (I have written it, in part, because I am updating a lecture in a series on ‘Tort Liability of Public Authorities’ that covers the issue of when ‘non-justiciability’ arguments can be legitimately raised in negligence claims.)

The Challenger Claims

Corporal Albutt was killed and Troopers Twiddy and Julien were injured when their Challenger II tank was hit by shells fired by another British tank during the offensive against Basra, Iraq in March 2003. The claims alleged that the Ministry of Defence, as the soldiers’ employer, was negligent in not providing them with available technology to protect against the risk of ‘friendly fire’ and in not providing the other tank crew with adequate vehicle recognition training.

The Snatch Land Rover Claims

Private Ellis was killed in Iraq in February 2006 when an improvised explosive device (IED) was detonated next to the Snatch Land Rover which he was driving. His dependants claimed that the Ministry of Defence was negligent towards Private Ellis, as his employer, by failing to limit the patrol to better-protected vehicles, failing to provide better-protected vehicles, and failing to ensure that ‘Element A’ was fitted to the electronic counter measures on the Snatch Land Rover concerned.

Summary of the Legal Process

The Ministry of Defence submitted that these negligence claims should be struck out, but Owen J refused to do so, except with regard to the claim that the Ministry of Defence ought to have prevented Private Ellis’s Snatch Land Rover from going on patrol until ‘Element A’ had been fitted. The Ministry then appealed against Owen J’s refusal to strike out the majority of the claims, and the claimants in the Ellis case cross-appealed against the striking out of the ‘Element A’ allegation. The Court of Appeal held that all the negligence claims should proceed to trial.

The Ministry of Defence relied on two arguments in support of its appeal: First, that the allegations would require a judicial assessment of non-justiciable policy issues, and second that the allegations were inconsistent with the doctrine of ‘combat immunity’.

Justiciability

With regard to justiciability, the Court of Appeal accepted that the courts had sometimes refused to recognise a duty of care in a novel situation because of a concern that it would require judges to pronounce on non-justiciable issues. But the Court distinguished these cases on the basis that the present claims did not require any novel duty of care to be recognised:

– para 38, ‘It is beyond dispute, and the MOD did not purport to dispute, that it owed a duty of care at common law to members of the armed forces as their employer’;

para 46, ‘The question whether a duty of care owed by the MOD to armed forces should be recognised has long since been answered ‘.

In cases where there was a well-established duty of care the fact that the defendant might have been required to make decisions about the deployment of scarce resources was, in the Court’s judgment, a matter that was relevant to the standard of care, rather than one that negatived the existence of a duty:

– para 51, ‘That is not to say that such policy issues are irrelevant. On the contrary, they are relevant but not to the question whether there exists a duty of care but as to whether it has been breached. They are relevant to the standard of care to be applied (Professor Craig 898, Phelps, Lord Clyde 672H-673A, Barrett, Lord Slynn 572F). The standard against which the acts or omissions are to be measured takes account of the complexities of the decisions made, the detriment to those involved in the decision-making process, and the scarcity of resources: …’

Combat Immunity

With regard to ‘combat immunity’, the Court of Appeal accepted that: ‘Courts cannot adjudicate on decisions made in active operations.’ And that: ‘The rationale extends to the full width of active operations.’ It held, however, that: ‘the question whether a decision alleged to have been negligent was a decision made during the course of active operations is a question of fact to be determined at trial.’ (All quotations from para 59.)

It seems that the Court envisaged that a decision made on an active army base as to which vehicle to send on a specific patrol would be much more likely to fall within the scope of ‘combat immunity’ than a decision taken many months, or years, before as to what equipment to procure for the armed forces. But beyond this the Court refused to provide any significant gloss on the pivotal concept of ‘active operations’:

– para 60, ‘It is not possible, without considering the evidence, to say, as a matter of legal principle, precisely when “active operations” start and when they finish. Nor should a court do so. The extent of that concept will vary from conflict to conflict and from case to case.’

Criticism

My personal view is that the Court of Appeal was over-optimistic in assuming that ‘standard of care’ can absorb and deal with all non-justiciability concerns so long as a negligence claim is being brought by an employee against his or her employer. (Indeed, the continued existence of ‘combat immunity’, discussed below, may be good evidence that there is at least one category of cases where courts will say that there is no duty owed by employer to employee in the circumstances, rather than that there is a duty but the standard of care is so low that employer has not breached it.)

Suppose, for instance, that a hypothetical soldier claimed that it was negligent of the Ministry of Defence to send soldiers onto the ground in Iraq at all given the balance between the reasonably foreseeable risks and the likely benefits of such action. In other words, suppose that the hypothetical claimant offers to demonstrate that the likely benefits of such action were so low when compared to the reasonably foreseeable risks to the safety of employees that no reasonable employer would have made the deployment. Clearly, a court might take the approach that because the claim is between employee and employer it ought to investigate the evidence relied on by the claimant and consider it against whatever standard of care might be appropriate when assessing the decision of a reasonable employer in the circumstances. But an alternative approach might be to say that an employer’s duty is to take reasonable care of the safety of its employees against the background of certain fixed political decisions, and a court simply cannot address the question whether those background political decisions paid insufficient regard to the safety of employees. Why not? Because it would be constitutionally inappropriate for it to seek to stipulate how much weight must be given to the safety of employees within such a background political decision.

The reference to what is ‘constitutionally inappropriate’ is important because it helps to explain why purporting to set a standard of care for those deciding whether to deploy troops in a dangerous setting is very different from setting standards of professional competence for doctors or solicitors. (Indeed, in most cases judges simply police the standards that the profession itself acknowledges.) But clearly the category ‘background political decisions that it would be constitutionally inappropriate to re-open in a negligence claim’ is not one which is self-defining. Nonetheless, I would argue that it is a category that is just as important between parties who commonly owe a duty to one another (eg employer and employee) as it is in contexts where the decision is framed as whether the defendant should owe any duty of care to the claimant at all. And it is not clear that it is a category that is any more opaque than ‘active operations’. It might also be the case that a judge could not determine whether a particular claim was seeking to challenge a ‘background political decision that it would be constitutionally inappropriate to re-open in a negligence claim’ until hearing the evidence: but then the conclusion could, in my opinion, properly be ‘no duty’ rather than ‘no breach’.

Two objections should be considered. First, it might be said that my hypothetical claim is far-fetched, and my objection to the Court of Appeal’s optimism will only be valid in extreme cases that are unlikely ever to arise; in the sorts of cases that it is realistic to anticipate the Court of Appeal’s optimism will cause no problems. Secondly, it might be said that my solution will provide a foothold for abuse; as soon as the courts acknowledge that a category of ‘background political decisions that it would be constitutionally inappropriate to re-open in a negligence claim’ exists, then powerful defendants will deploy their considerable resources to expand this category beyond its legitimate scope. The difficulty with objections like these is that they rely on assumptions about the future behaviour of litigants – here the assumptions appear to be that claimants will not try to use the tort of negligence to challenge political decisions, whilst defendants will undoubtedly seek to pass off mundane negligence as grand policy. For obvious reasons, I would prefer courts to design legal rules that can be defended without the need to appeal to any such assumptions.

 

The Human Rights Issue

(In these cases the Court of Appeal also had to decide a difficult issue about whether events involving British soldiers operating in Iraq fell under the jurisdiction of the European Convention on Human Rights, so that the soldiers could bring claims relying on their Convention right to life. But this note does not discuss that issue.)