Smith v Ministry of Defence;
Redpath v Ministry of Defence;
Ellis v Ministry of Defence;
Ministry of Defence v Albutt, Twiddy and Julien
 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’.
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: …’
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.’
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.)