ALL YOU EVER WANTED TO KNOW ABOUT MILITARY CLAIMS
(IN ½ HOUR) BUT WERE TOO AFRAID TO ASK
JAMES ROWLEY QC1 and MARTIN SEAWARD2
Abstract
The over-stretching of UK Armed Forces is a regular theme in the press. Accidents in training and casualties during
deployment on active service will always happen.
Claims against the MoD have their own special tricks and traps.
James Rowley QC and Martin Seaward provide a guide for the uninitiated.
“With more maturity, training and hard work, this Royal Marine recruit could make it as a civilian in
due course, though not an outstanding one.
At present, we feel that he could only be employed
usefully as a torpedo tube pull-through.”
In Confidence - the Jackspeak Triservice Guide to Staff Reporting – Rick Jolly
1.
There is a definite knack to military litigation, whether pursuing the claim or defending it. While a short
presentation can only be a partial substitute for experience (best achieved by young barristers under the
watchful eye of a well-disposed and experienced instructing solicitor) it is possible to provide something
of a short cut. We aim to touch on the following topics:
a) Combat immunity and the duty of care [JR]
b) 6 pack liability – do the Regulations apply? [MS]
c) Assembling the case on liability – what to ask for and where to get it [MS]
d) Assembling the case on damages – ditto [MS]
e) Injured ex service personnel – handling the conference; watching for PTSD; understanding the
acronyms. [MS]
f)
Abatement (by reason of common law damages) of awards under the Armed Forces Compensation
Scheme and War Pensions – an explanation to the claimant. [MS]
g) CPR Part 66 Crown Proceedings – a brief summary of the differences in procedure for claims against
the MoD. [JR]
h) Statements of case – invoking the military ethos. [JR]
i)
Schedules and Counter Schedules in military claims [JR]
j)
Examining military witnesses at trial – what to expect and how to prepare [JR]
James Rowley QC is a barrister at Byrom Street Chambers, 12 Byrom Street, Manchester and 42 Bedford Row,
London. He can be contacted by email at [email protected].
1
Martin Seaward is a barrister at Cloisters, 1 Pump Court, Temple, London.
[email protected].
2
He can be contacted at
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
1
Combat immunity and the duty of care
Introduction
2.
Most will have come across Mulcahy v MoD [1996] QB 732 CA, in which a commander and comrades
owed no duty of care to one of their number in respect of personal injuries suffered during active
operations while firing a howitzer into Iraq. Very few, however, will have read Multiple Claimants v MoD
– The PTSD Group Actions [2003] EWHC/1134 QB: for, the judgment of Owen J is so wide ranging and
lengthy it has never been reported and the full judgment does not even figure in the Lawtel database3.
The starting point for those interested in this topic is James Rowley’s paper Combat Immunity and the Duty
of Care [2004] JPIL 280 in which he set out all the important passages where Owen J considered and
applied Mulcahy. There is room for an abbreviated discussion only here.
3.
In one sense the nature of the role of service personnel in combat does not need stating.
However,
some brief discussion will serve to focus what is at stake. Even in 21st Century warfare, which is many
times more automated and remote than at the end of WW2, service personnel remain the prime resource
and the means by which the battle is won (or at any rate the means by which the peace is won through the
physical occupation of often hostile territory.) In winning the battle or the peace, the welfare of service
personnel remains subsidiary to their military and tactical role. It cannot be otherwise; and it would be a
startling departure if service personnel were to be able to sue each other and their commanders for
decisions and actions taken under the pressures of active operations or in battle conditions 4.
Peace time duty of care
4.
The role of service personnel in peacetime is entirely different. While lip service has sometimes been
paid to it because of lack of resource, the corollary to service personnel being the prime resource and the
means by which the battle is won is that their welfare in time of peace is of paramount importance in preparation for
battle. This notion that the military is something special, to be given resource above the civilian
population, is obvious in many less developed societies where military personnel enjoy higher standards
of living, food and healthcare than the rest of society.
At any rate in the UK, the MoD has now
accepted that, in peacetime, it owes a similar duty to that between employer and employee to take care
for the health and safety of personnel, covering premises, equipment, personnel, systems of work
The section of the judgment covering combat immunity is posted on the Byrom Street Chambers’ web site www.byromstreet.com - accompanying the paper on combat immunity.
3
These 2 phrases are used synonymously and derive from the old property damage cases in time of war, upon which the
Court of Appeal drew when deciding Mulcahy.
4
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
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including supervision and, where appropriate, medical supervision, care and support 5.
Active service – extinguishing the duty of care?
5.
Armies do not, however, move instantaneously from the parade ground to actual fighting: there is an
inevitable period of mobilisation. When does preparation for war become war itself [the temporal
question]?
How are the boundaries to be drawn to define the theatre of combat when campaigns on the
other side of the world are planned, and to some extent executed, from an HQ in Northwood [the
geographical question]?
Much that is done, even in a theatre of combat where war is taking place, is
unrelated to actual fighting: it has often been said that war is made up of short periods of intense activity
interspersed with long periods of boredom and inactivity.
What activities in the conduct of the war
qualify for immunity [the operational question]?
Owen J’s propositions
6.
Owen J summarized his lengthy considerations as follows at 2.C.20:
“Accordingly in my judgment the application of the immunity can be resolved by reference to the following
propositions.
Multiple Claimants v MoD – The PTSD Group Actions supra at 2.A.1 – 2.A.5. Since the Judgment is not widely available,
the relevant passage is now set out:
“2.A. THE DUTY OF CARE
2.A.1 In the Re-amended Generic Statement of Case the Claimants formulate the general duty of care owed
by the MoD to service personnel in the following terms
“C4. The Defendants owed service personnel the duty to take reasonable care for their
health and safety in the course of and incidental to their service. Subject to the
important qualification below, the duty is similar to that between employer and
employee, which covers premises, equipment, personnel, systems of work including
supervision and, where appropriate medical supervision, care and support.”
2.A.2 The qualification is set out in C5 of the Re-amended Generic Statement of Case –
“C5. Whereas an employer is usually liable in respect of damage caused by ultrahazardous activity, the above formulation of the duty of care does not apply in a
service setting when related to immediate operational decisions and actions within a
theatre of war or analogous situations. Service personnel, the prime resource, are the
means by which the battle is won and in battle their personal welfare is subordinate
to their combat role.”
2.A.3 In its Generic Defence the MoD accepts that –
“C1…in general terms it owed a duty of care to its service personnel to provide a safe
system of work so far as was reasonable and practicable in all of the material
circumstances”,
“C2… in general terms it knew at all times material to these Group Actions that combat
was capable of causing psychiatric consequences, including chronic conditions,”
2.A.4 At C4 the MoD “…accepts and adopts the contents of paragraphs C4 and C5” of the Generic
Statement of Case.
2.A.5 Accordingly and subject only to the issue of Crown Immunity, there is no issue between the parties as
to the existence of a duty of care owed by the MoD to service personnel. Secondly there is agreement
in broad terms as to the nature of that duty.”
5
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
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1. A soldier does not owe a fellow soldier a duty of care in tort when either (one or other or both6) are
engaged with an enemy in the course of combat.
2. The MoD is not under a duty to maintain a safe system of work for service personnel engaged with an
enemy in the course of combat.
3. In relation to both (1) and (2) the term combat has an extended meaning in thata. the immunity is not limited to the presence of the enemy or the occasions when contact with the enemy
has been established. It extends to all active operations against the enemy in which service personnel are
exposed to attack or the threat of attack. It covers attack and resistance, advance and retreat, pursuit and
avoidance, reconnaissance and engagement.
b. the immunity extends to the planning of and preparation for operations in which the armed forces may
come under attack or meet armed resistance.
c. the immunity will apply to peace-keeping/policing operations in which service personnel are exposed to
attack or the threat of attack.”
7.
Thus the overriding consideration, switching on or off the duty of care, concerns the operational question.
Immunity attaches for potential breaches while engaged with an enemy in the course of combat.
It does not
matter how far away in time and space the potential breach may be from such an active engagement,
whether in its planning or its execution, whether on the field of battle itself or in a command bunker in
North London. The immunity has at its heart active operations and only extends to cover mistakes within
the scope of engagements with the enemy in the course of combat.
Decisions/planning/preparation/actions
unrelated to such active operations, and simply incidental to the deployment and being in theatre, are
not covered by the immunity 7.
There is a problem at this point since the immunity surely attaches to the actions/inactions of the person potentially in
breach, not the person injured. See the discussion at [2004] JPIL 290, where the writer tentatively suggested a
correction here.
6
Driving without due care and attention leading to an RTA in theatre without the pressure of engagement or threat of
attack will not attract immunity.
Conversely, if an accident occurred during the push to Baghdad in a sand storm
because of the operational necessity to press on, it should attract immunity. If occurring incidentally while moving
forces into position before crossing the start line, immunity should have no part. Negligent discharge of a weapon
(which happens all too frequently in barracks in peacetime conditions) happening in theatre should not be covered by
immunity unless part of an active operation against the enemy. If occurring on active patrol under the pressure of attack or
the threat of attack in Helmand, it should be covered by immunity; if happening incidentally during the unloading of
helicopters in camp, it should not. Where the line should be drawn will require the Court to hear the basic facts (if they
cannot be agreed) to form a judgment as to which side of the line the case falls; and it will be a matter of fact and degree.
See the extended discussion at [2004] JPIL 280 and the case of H.M.S. Hydra [1918] P.78 discussed in Mulcahy.
7
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
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8.
One further matter must be emphasized since it has sometimes been misunderstood. At 2.C.18 Owen J
said:
“In this context there is a further important issue between the parties. It is submitted on behalf of the MoD
that –
“Claims for personal injuries sustained in combat are not justiciable and so compensation for damage
suffered during combat is not recoverable.”
It is implicit in that submission that no cause of action can arise in relation to injury sustained in combat
irrespective of whether the acts or omissions to which such injury is attributable fall within the combat
immunity.
In my judgment that submission is misconceived and confuses the issue of the existence of the
duty of care with the causation of injury.
particular set of circumstances.
The issue is whether the MoD is under a duty of care in a
If the restriction to the duty of care does not arise on the facts, and a
claimant is able to demonstrate breach of duty resulting in injury and consequential loss and damage, it is
immaterial that the injury was sustained in the course of combat. The question with regard to the injury is
then simply one of causation; is it attributable to the breach of duty?”
9.
Many of the breaches alleged in the PTSD Group Actions went to systems devised and trained for (or
not devised and not trained for) in peacetime, outside the scope of planning and preparation for any
specific active operation against the enemy.
Owen J clearly rejected the MoD’s argument that the
immunity attaches simply by reason of the injury occurring at a time when the immunity conditions
attached.
It is the time of the breaches which count, not the occasioning of the damage.
Indeed it
would not be hard to construct facts in which a decision taken in active operations against the enemy
leads to injury after the operation has finished: such decisions must attract immunity.
Personnel with
injuries which can be traced back as a matter of causation to breaches which do not attract immunity have
a valid cause of action8.
8
The supply of body armour in the 2nd Gulf War has been a topic of heated discussion in the press. In Samantha Roberts
v MoD, Sgt. Roberts had been shot by friendly fire as the first British fatal casualty of the campaign. He had been issued
with body armour (which would have saved his life) but ordered to give it up to someone who was thought to be in
greater danger when there was an insufficient supply for everyone. The case was settled for undisclosed damages even
before the inquest. Immunity would surely have attached to the decision of the commander who required Sgt. Roberts
to give up his body armour in pursuance of the operational imperative. A Court might have been reluctant to look at
how the planners decided to obtain and deploy body armour once the decision actually to deploy to the Gulf had been
made. Samantha Roberts would have argued, however, that a real and effective breach was the deliberate decision of
the MoD not to purchase protective body armour in peace time before declaring war and announcing the deployment.
Given the continuing UN weapons’ inspections in Iraq and the political fall out which would have ensued if the UK had
been caught gearing up for war while still purporting to pursue a diplomatic solution, the MoD decided not to purchase
the body armour it required until it was too late to ensure a complete supply to the troops on deployment. It is difficult
to see how combat immunity could defeat such a breach.
5
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
Six pack liability – do the Regulations apply?
10. The Health and Safety at Work etc Act 1974 (HSW Act) and the subordinate regulations apply to the
MOD, its agencies and the armed forces within the baseline of Great Britain: Section 48(1), HSW Act.
Notwithstanding Crown bodies must comply with the requirements of the HSW Act and regulations
made thereunder (subject to certain disapplications and exemption certificates, see below), they are
excluded from the provisions for statutory enforcement including prosecution and penalties.
Nevertheless it is the MOD’s policy in respect of the army, navy and air force to comply with the HSW
Act and “the six-pack”.
11. Although most regulations made under the HSW Act provide for the Secretary of State for Defence to
claim exemption on behalf of the armed forces, in the interests of national security, in practice this is
rarely exercised. For examples of this provision in the regulations, see:
a.
Lifting Operations and Lifting Equipment Regulations 1998 – Reg 12.
b. Work at Height Regulations 2005 – Reg 16
c.
Provision and Use of Work Equipment Regulations 1998 – Reg 36
12. The MOD is specifically exempted from the application of certain regulations:
a.
The Carriage of Dangerous Goods etc Regulations 2007, Regs 3 & 4 – exempted are military
activities, activities carried on in preparation for, or directly in support of, such operations,
or training of a hazardous nature.
b. Health and Safety (Consultation with Employees) Regulations 1996, Reg 11 – appointment
of safety representatives, not election. NB Reg.12 – disapplied to sea-going ships (military or
otherwise.)
c.
Working Time Regulations 1998, Regs 25 & 38 – disapplied from workers, including young
workers, serving as members of the armed forces. There is no complaint to an employment
tribunal under Reg 30 unless a complaint has first been prosecuted through service redress
procedures.
13. The MOD, as a Government Department, enjoys Crown immunity. Accordingly, whilst the HSW Act
and Regulations apply to the MOD, and the MOD must comply with them, the MOD is not subject to
criminal enforcement action in the courts. Instead of criminal enforcement action, administrative
arrangements are in place to mirror them with Crown Notices, instead of normal Improvement and Prohibition
Notices, and Crown Censure instead of prosecution. Details of these procedures can be found in Cabinet
Office Personnel Information Note 45 (PIN45), which in turn can be found in an HSE Sector
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
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Information Minute: SIM 07/2001/34: go to :
http://www.hse.gov.uk/foi/internalops/sectors/public/7_01_34.pdf .
The document shows that between 1988 and 2001, there had been 25 Crown Censures.
14. Crown Censures are used in circumstances where it is the HSE’s opinion that, but for Crown immunity,
there would have been sufficient evidence to provide a realistic prospect of conviction in the courts.
15. On 22 May 2003, Corporal Thomas Eirian Rees, 32, died as a result of injuries when he was crushed
between two armoured personnel carriers being unloaded from a low loader at Teesport,
Middlesbrough, Cleveland. Cpl Rees was from Pembrey, South Wales.
16. On 1 May 2004, Lance-Bombardier Robert Wilson, 29, was crushed between a Multiple Launch Rocket
System vehicle and a large lift truck at Albemarle Barracks, Northumberland and died from his injuries.
L-B Wilson was from Gateshead, Tyne & Wear.
17. Both soldiers were on duty at the time of these incidents and the activities were subject to the full
application of the HSW Act as they took place in Great Britain. Dr David Snowball, HSE’s Director
for Yorkshire & North East Region, said:
“The vehicles involved in these incidents are heavy and powerful and Army personnel have to work
closely alongside them. The risk of personal injury is therefore potentially high. In bringing these
censures, HSE wishes to emphasise to the MOD, and other employers, the importance of assessing,
managing and controlling the operational risks arising from the use of workplace transport.”
18. The MOD policy is to embrace health and safety: see JSP 430. In the past this has been paid more lip
service than accorded true recognition. Nevertheless the policy is in place and within the MOD there has
been a gradually steepening learning curve in respect of the need for and benefits from a systemic
approach to health and safety. Several recent inquests into fatalities in service have revealed the
requirement for a culture change. It is fair to record that the MOD generally still lags far behind civilian
industrial practice; and appears at times to pay scant regard to health and safety.
Assembling the case on liability – what to ask for and where to get it
19. Documents relating to military service have their own special references, limitations on publication and
circulation and are protected by a secrecy culture that pervades disclosure.
20. Knowing which documents to look for is crucial.
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
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a.
First of all, though, obtain a witness statement from the client – signed and dated – and explain
how attention to detail is essential from the outset.
b.
Obtain names, rank, unit and other relevant details of any witnesses.
c.
Write to the MOD for access to any witness for the purpose of taking a statement. Do this early as
long delays arise when witnesses are serving abroad or undergoing extensive training.
d.
Then ask for all potentially relevant documents including:
1.
the Standard Operating Procedure [SOP] that should have applied at the time of the incident
2.
the Book of Reference collating expert wisdom in respect of any particular piece of equipment
3.
any Safety Case Report identifying risks associated with relevant equipment, and for any
further Safety Case reviews undertaken following the Safety Case Report;
4.
the relevant risk assessment for the activity being undertaken;
5.
the relevant Health and Safety Committee meeting minutes over a period of 2-3 years before
the accident.
6.
Any Board of Enquiry [BOI] report into the accident / incident (but remember the purpose of
the BOI is not necessarily to attribute blame, but to learn lessons for the future);
7.
Any documents referred to in any of the above, including relevant provisions of the
disciplinary code (e.g. the Queen’s Regulations for the Army.)
Next, review the case in the light of the documents. Ensure that anything you do not understand is the
subject of a specific enquiry and further explanation. Much of the military jargon seems gobbledy-gook.
You cannot plead or prepare the case without understanding what was supposed to happen, on the one
hand, and what actually happened on the other.
Assembling the case on damages – what to ask for and where to get it
21. The critical documents needed on quantum are:
a. the career forecast
b. the personal file with the service history: P file
c. the GP medical records: F Med 4
d. the hospital medical records: F Med 9
e. confidential reports (which should be compiled at least annually and give a guide to ability and the
chances of promotion)
f. any decisions or payments made under Armed Forces Compensation Scheme or the War Pension
Scheme
g. any service pension details, with pension forecasts to relevant ages.
More generally, it is useful to be on the mailing list to receive the annual MOD Claims report.
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
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Abatement of awards under the Armed Forces Compensation Scheme and the War Pension Scheme
on account of common law damages
22. Abatement is the lowering of a pension or compensation payment to take account of other payments.
23. Article 52 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order
2006 [SI 2006/606] [SPO] gives the Secretary of State [S of S] a wide discretion to withhold or reduce a
pension or gratuity which has been or will be paid under the SPO by taking into account ...in such manner and
to such an extent as he may think fit ... any other compensation which has been or will be paid to the war
pensioner in respect of the same disablement.
24.
Articles 31 to 34 of the Armed Forces Compensation Scheme 2005 [SI 2005/439] [AFCS] similarly
provides for abatement of benefits, i.e. a lump sum payment under the Tariff [LS], Guaranteed Income
Payment [GIP], Survivor’s GIP, Child Payment [CP] and Bereavement Grant [BG.] There is a similarly
wide discretion vested in the S of S under the AFCS, but a wider scope than under the SPO – in
particular, abatement is permitted in respect of some insurance payments and some occupational
pension benefits.
25. Rather than deal with both schemes, this paper addresses abatement under the SPO, which still governs
the vast majority of claims for disability due to injuries and deaths in service. The ambit of Art.52 is
wider than described above, providing for abatement in respect of compensation paid under other
statutory compensation schemes e.g. CICA, but not insurance benefits. Separate provision is made for
abatement of awards in respect of any Social Security benefits.
26. We are dealing here with the “simple” case of a pensioner who receives common law damages for an
injury or disease which also gives rise to entitlement to a war disablement pension under the SPO.
Rights of appeal
27. A decision made by the S of S on or after 9/04/01 ... as to the amount to be deducted from an award ... (under
Art.55) ... is a specified decision: Regulation 3(2)(a) of the Pensions Appeal Tribunals (Additional Rights
of Appeal) Regulations 2001 [PATARA.]
A specified decision must be notified to the claimant specifying
the ground on which it is made and is subject to appeal to the PAT (now the War Pensions Appeal
Chamber) ... on the issue whether the decision was rightly made on that ground: Pensions Appeal Tribunals Act 1943
[the 1943 Ac]), section 5A(1), as amended with effect from 5/11/00. It follows that the PAT has no
jurisdiction to overturn the decision to abate the pension or gratuity; the PAT’s jurisdiction is confined
to assessing the amount to be deducted. In doing so, the PAT exercises afresh the same wide discretion
given to the SS, so that the PAT ... may take the compensation into account against the pension or gratuity in such
manner and to such extent as he may think fit and may withhold or reduce the pension or gratuity accordingly… . Such
discretion should be exercised rationally and, so far as is possible having regard to the circumstances of
each individual case, with a degree of consistency of approach.
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28. The policy aim of Art.55, since enacted in 1983, is to prevent double recovery of compensation for the
same disablement due to the same injury or disease. There is nothing wrong with further recovery i.e.
recovering (and then keeping) compensation for some result of the disablement which is not
compensated for by the war pension. The key to the abatement provisions is thus to ensure that any set
off against pension or gratuity is made like for like.
Any other comparison runs the risk of over-
abatement or double-deduction which would defeat the purpose of the SPO, namely to compensate for death
or disablement injury disease or incapacity due to service:
Hodgson v. Trapp [1989] AC 807
Payne v. Railway Executive [1952] 1 KB 26
29. War disablement pension is compensation for the disablement, from the date of claim, which is due to a
service injury or disease. It is plainly not compensation for loss of earning capacity: this is clear from
Article 9(2)(a) of the SPO which expressly discounts ... the earning capacity of the member in his disabled
condition in his own or any other specific trade or occupation, and ... the effect of any individual factors or extraneous
circumstances. This was first decided by a PAT in the appeal of Monkhouse SD/00294/03. The S of S
decided not to appeal that decision and, it follows, can be taken to have accepted its correctness. It has
been followed in subsequent cases including Copsey SD/00115/03 and McBride SD/00065/04.
30. By contrast to the war disablement pension, an award of common law damages comprises many heads
of loss, including past and future loss of earnings, and is designed to put the claimant in the position
s/he would have been in but for the negligence or breach of statutory duty which caused the injury or
disease. Many of these heads of loss are not like the war disablement pension. Indeed the only head of
loss which is readily comparable to a war pension payment is general damages.
31. Apart from general damages, it is hard to see how any of these other heads of loss could be considered
properly comparable to the basic war disablement pension.
It is submitted that, absent special
circumstances, it would be wrong to abate the war disablement pension by any part of the common law
damages which were awarded for any head of loss other than general damages. It follows that all other
heads of loss should be disregarded and only the balance, i.e. general damages for pain suffering and loss
of amenity, taken into account for the purposes of abatement.
Procedural tips and traps
32. Under CPR Part 66 the Crown no longer enjoys the preferential treatment it had under RSC Order 77.
Proceedings against the Crown are still governed by the Crown Proceedings Act 1947 as amended – the
statutory immunity under section 10 was abolished (but only prospectively) from 15 May 1987 and still
applies in disease cases for potential breaches before then.
The main changes under the CPR are as
follows:
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
10
a) Transfer of claims issued in the provinces no longer follows automatically to London. The location
of the MoD in London is now only one of many factors under CPR Part 30.3 when considering
transfer.
b) CPR Part 16.2 (1A) governs the contents of the claim form against the Crown. It must contain the
names of the government departments and officers of the Crown concerned i.e. the Ministry of Defence and brief
details of the circumstances in which it is alleged that the liability of the Crown arose; but there is no additional
difficulty here.
c) Service on the MoD is governed by CPR Part 6.5(8)(b) under which service on a government department
must be effected on the solicitor acting for that department as required by section 18 of the Crown Proceedings Act
1947. The Practice Direction to Part 66 at Annex 2 provides for service on The Treasury Solicitor
at One Kemble Street, London, WC2B 4TS.
d) A default judgment must be considered by a Master or District Judge before it is entered; and proper
service of the claim form and particulars of claim must be established – CPR Part 12.4(4.)
e) Under the RSC, summary judgment against the Crown was impossible. Now it can be done under
CPR Part 24 but a claimant may not apply for summary judgment until after expiry of the period for filing a defence
specified in rule 15.4 – see Part 24.4(1A.)
Against an ordinary defendant, application may be made
after the time for filing an acknowledgment of service: the MoD gets a short while longer.
f)
Many of the usual rules concerning enforcement do not apply against the Crown – see Part 66.6.
Statements of case
33. There is no magic in stating or defending a military claim.
34. If the injury has been suffered in circumstances where combat immunity might arguably apply, since the
doctrine is not one of a true immunity (an exception to be raised by the defence to negative an existing
duty of care) but involves the question of whether a duty of care arises at all, it is necessary for the
claimant to state sufficient facts and matters to establish the duty of care in the first place. Anyway, it
will avoid the inevitable amendment when combat immunity is raised; and might, if done convincingly,
head off the argument so that it never reaches the light.
If the injury was suffered during active
operations, make sure that the allegations of breach are demonstrably traced back to times when the
immunity conditions do not apply. Avoid unrealistic allegations altogether: they are too easy to defend
and prejudice whatever good points there may be. There may well be only 1 or 2 realistic allegations
which are not defeated by combat immunity: in which case, make only those allegations.
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
Where
11
claimants ignore this advice, the defence will cut the case down with a broad sword.
35. Most claims against the MoD, however, will arise in training and general peace time conditions. Military
service is risky in its very nature; and some amount of risk is necessary in training to make it a realistic
preparation for actual combat.
Even though the scope of the duty of care is similar to that owed by
employers to employees, the practical level of risk which is acceptable is different – there may be no
breach in the military sphere where it would be obvious in civilian conditions.
Here it is important
when deciding whether to bring (and then how to state) a case to make allowances for the military
enterprise and to try to embrace it. Avoid developing and stating a case in purely civilian health & safety
speak.
Nearly all cases can be recast in military language, which should be used generally in these
claims. It makes a claim much more realistic and changes the tone. Rough terrain is a better descriptor
than uneven surface in a military case. Man management is military speak for supervision and control. Use orders
rather than instructions. A soldier suffers injury in the course of his service or duty and not his employment.
And so on.
36. It is very rarely the case that the military imperative and health & safety considerations clash; but it will be
as well to tease it out explicitly by the time you get to a skeleton argument.
In O’Connor v MoD, the
Claimant had fallen, breaking his back, from a narrow slippery sheep track beside a sheer drop on the
side of a mountain, during a night selection exercise for the SAS in atrocious weather conditions. At
first sight this was fertile territory for a defence invoking risk as being part of the process: it needed
unpicking – see the passage from the skeleton argument in the footnote 9.
9
a) There is nothing pleaded (nor anything really in the evidence anywhere) to suggest why the group could not have
walked further in from the drop.
b) It cost nothing to move in a little for a while and would have prevented the risk of going over the drop completely.
c) The exercise was not one designed to test the nerve of the recruits, nor could it in the dark. The exercise was
designed to teach and revise navigational skills and to build on personal fitness [para 2e of the Defence, p14.]
d) There is nothing in the suggested alternative (walking further away from the drop) to impede let alone defeat the
military objective of the exercise. There is no suggestion that the terrain was too rough to negotiate to the left on
the ridge – the Defendants’ witness A was walking precisely there on his own account [Witness statement 2ii b p74
para 21.] Walking over rough terrain would enhance personal fitness, not detract from the exercise.
e) Health & safety in the civilian sphere is not antagonistic to the military aim either - see the evidence generally of the
Claimant’s military expert, Mr Robson, especially at Tab 3b p158 para 19ff and the conclusion at p160 para 25. The
welfare of service personnel has always been paramount in the aims of the Services – they are the means by which
the battle is won and terrain occupied after the battle. There is a paradox in battle itself: while the general aim is to
preserve and maintain the fighting force from harm, the necessity of the battle leads to its expenditure. There is no
duty of care if troops have to be expended in battle but, as any leader will say, he nevertheless tries to look after his
personnel so far as conditions of battle allow; and he certainly looks after them in peace time and in getting them to
the battlefield. If troops do not reach the battlefield safely because of unnecessarily risky navigation when there is a
viable alternative route, the mission stands to be compromised for no gain in the military objective. It makes sense
12
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
Schedules and Counter Schedules
37. Military claims frequently involve detailed calculations for loss of earnings and pension; but in other
respects they are no different from other cases. Almost every claim, no matter how short a career there
was before the accident and how unpromising material the soldier appears, seems to be made on the
basis that the claimant would have served for a full 22 years and risen to the rank of warrant officer 1 !
The mistake is to accept at face value a claimant’s assertion of his career and then to project it as a
certainty. Assessing future loss of earnings and pension is always a loss of chance exercise, balancing the
good with the bad10.
38. The most common form of engagement between 1991 and the end of 2007 was an open engagement.
Simplifying, the longest service was (with a very few exceptions) 22 years and the shortest before a
soldier could leave at his option against the will of the MoD was 4 years 3 months from
attestation/engagement. The clock started ticking 3 months after attestation and a soldier could give 12
months notice once he had got to the 3 year point, making 4 years 3 months as the minimum length of
service to which the soldier committed. Since 1 January 2008, the versatile engagement [VEng] is the
norm, leading to a minimum of 4 years service (or 4 years 3 months depending on age at enlistment.)
Many, however, leave before this time using the excuse of an injury (whether or not truly careerthreatening) or labelled temperamentally unsuited to service life.
Both of these routes may or may not be
consensual between the soldier and the MoD.
39. In Paget v Taylor a private soldier lost an eye when struck in it while paint-balling; and he was medically
retired. He put up a schedule (on the basis of his say so alone) for 22 years service and a final rank of
Warrant Officer 1. He had been in service for a little over a year; had been thought not clever enough
to learn a trade; and had joined the Light Division as a rifleman. His limited reports before the accident
had been precisely average for his rank (as a private soldier.) The career forecast gave the following table
for the statistical chance and time of promotion in the Light Division.
to train personnel in precisely that aim of reaching the battlefield safely – realistic training. The needs of health &
safety and the military objective coincide.
10
Mallett v McMonagle A.C. [1970] 166 (HL) [applied in Brown v MoD [2006] EWCA Civ 546]:
“The role of the court in making an assessment of damages which depends upon its view as to what will be and what
would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining
what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it
treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would
have happened in the future if something had not happened in the past, the court must make an estimate as to what the
chances that a particular thing will or would have happened and reflect those chances, whether they are more or less
than even, in the amount of damages which it awards.” – Lord Diplock at 176 E-G
“… It is inevitable that in assessing damages there must be elements of estimate and to some extent conjecture. All the
chances and changes of the future must be assessed. They must be weighed not only with sympathy but with fairness
for all concerned and at all times with a sense of proportion.” - Lord Morris of Borth-y-Gest at 173F-G
13
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
Rank
Average progress to promotion
Chance of promotion to given
rank from Private
Private
-
-
Lance Corporal
4 years 6 months
21.8%
Corporal
8 years 3 months
12.9%
Sergeant
13 years 6 months
8.3%
Staff Sergeant
16 years 2 months
4.9%
Warrant Officer 2
17 years 8 months
3.2%
Warrant Officer 1
19 years 9 months
1.0%
40. Thus, Rifleman Paget had projected his schedule on the basis of a notional 1% chance, which was in fact
much less than that since most of the cohort of private soldiers who go on to attain the rank of warrant
officer 1 are graded better than average compared with the rest in the first year.
41. Overcooking to a cinder the chance of promotion was not the only mistake.
The median point of
leaving the Light Division was, according to the information in the career forecast, at only 4 years – at
this point 50% of recruits were gone with 50% remaining. The mean length of reckonable service on
outflow was 7 years 7 months, even taking into account the much longer service of those who continue.
The statistics showed that there was a heavy drop out rate, year on year, until well beyond the stage
which Paget had reached. The table showed the drop out year by year [S = Start, with the remaining
percentage shown diminishing in the second row as each year passed.]
S
-2
-1
0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
100
99
86
69
37
33
27
21
17
14
12
10
9
8
8
7
6
6
5
5
5
5
5
5
5
42. Seeing as Paget was only average in his first year (and the mean length of service was extended to 7 years 7
months because of the long service of a few really good soldiers), there was nothing to suggest that the
chances should be balanced to give a career for him beyond the median of 4 years. The claim was settled
on the basis of a rounded Blamire approach to past loss of earnings and not much more for the future,
since Paget was still employable in civilian life.
43. This is not to say that all soldiers will be unable to satisfy a court that they were within the best cohort
within the statistics; but they will need evidence and logic to distinguish them from the broad run.
Those who have been in service for a while (and got past the hump of personnel leaving in the statistics)
will be able to show quite easily that the chances for a full career were in their favour. In Porter v MoD
(Mr Recorder Stuart-Smith QC, Southampton County Court July 2005 11), the Claimant had not been in
11
Transcript of judgment available at www.byromstreet.com with the other materials referred to in the footnotes.
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
14
service for long but he, nevertheless, satisfied the Judge that he would have had a long career. He came
from a Service family, his father having served 22 years and risen to the rank of Conductor, which is an
honour bestowed on the top 25 warrant officer 1s in the country. He was doing well in his short time
in the Army and had formed, the Judge found, an intention to serve a full career. He was a sapper and
learning an engineering trade.
The Judge said he would have found, if necessary, that Porter would
have served 22 years; but it was unnecessary because he accepted the submission that length of service
was irrelevant to loss of earnings since, with a trade, he could have left the Army into civilian life with no
less a package of remuneration than in the Army. He found for promotion to Staff Sergeant or Warrant
Officer 2, there being no difference in pay between these 2 ranks, as a conservative assumption. As to
the MoD’s reliance on the statistics (cf Paget above who was clearly an average soldier) the Judge made it
clear that the issue was where the particular claimant fitted within the statistics; and Porter was not
average.
A family history of lengthy service and promotion in the Armed Forces was also a potent
indicator 12.
(Statistics for length of service and promotion in the Engineering Corps showed much
better chances than in the Light Division.)
[23] Mr Nicoll, the jointly instructed employment expert in the case, made enquiries of the army in relation to
the Claimant’s career prospects. The average length of service for soldiers on leaving the Engineering Corps is 9 years
10 months; the median figure is 7 years. Statistically only a small proportion of those who enlist will serve 22 years, but
the statistical likelihood increases with the length of service that has already been achieved. Thus, the percentage chance
of a soldier serving 22 years is 12% at the moment of his enlistment but this percentage increases to 20% if he has
served for 2 years, as had the Claimant at the time of the accident; the percentage likelihood continues to rise as further
length of service accrues. In addition, as a soldier makes progress through the ranks, his prospects of further promotion
to the next rank increase. Thus, for example, the greatest fall out is before first promotion as only 30.5% of Privates are
promoted to Lance Corporal. Yet once that first promotion is achieved, a Lance Corporal’s statistical chance of being
promoted to Corporal is 55.1%; a Corporal has a 71.1% chance of further promotion to Sergeant; a Sergeant has a
77.7% chance of promotion to Staff Sergeant; a Staff Sergeant has a 68.4% chance of promotion to Warrant Officer II;
and a Warrant Officer II has a 56.5% chance of promotion to Warrant Officer I. It must be remembered that in the
Claimant’s case the percentage approach is distorted by the fact that his effective service was cut short by the
Defendants’ negligence. Also, the Claimant is not a mere statistic. It is necessary to assess where he would have fitted
into the statistics. One thing, however, is clear: there is no evidence (statistical or otherwise) to suggest that he would
have left the service less than three years after enlisting and I have no hesitation in rejecting any such suggestion. …
12
[56] In the absence of evidence, the Defendant has relied upon submissions to support its case that the
Claimant would not have remained in the army for the long term of 22 years. I now address those submissions in turn:
a) The Defendant relies upon the statistics which demonstrate that the majority of soldiers do not serve 22 years. For
the reasons which I have already outlined in paragraph 23, this statistic is of limited assistance. The question is
whether this man was one of the majority who would not have served 22 years or one of the minority who would.
That question cannot be answered by reference to statistics: the statistics merely raise the question;
b) It is submitted that the family background does not assist. I disagree. I do not suggest that the Claimant’s father
can be used as any sort of a comparator: there are many and obvious differences between the two men and the
circumstances in which they served. However, his family tradition assists in two particular ways. First, it means
that when he came to the view that he would stay in the army for the long term, he had much more than two years
experience of army life since he had seen the good and the bad throughout his childhood and had enjoyed it.
Second, I recognise and acknowledge the potency of traditions of service within families and the fact that, as is
clear from the evidence, he would be supported in his ambition to stay in the army by his family. …
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
15
44. I have derived for myself a number of rules of thumb as starting points for considering loss of career in
Army cases at any rate - these constitute the majority of claims.
a) The quality of the man or woman is an obvious guide to both rank and length of service using the
statistics.
Soldiers do not hang around for long, as a general rule, if they get passed over for
promotion or realise that they have reached their ceiling. In the hierarchical structure of the Army,
30 year olds still in the rank of private soldier do not like being bossed about by 25 year old
corporals; or seeing the men they enlisted with as staff sergeants. They leave. Thus, if one gets a
feel for the final rank of a claimant (up to sergeant), a length of service to a year or 2 past the average
length of service to the rank immediately above is a reasonable bet.
b) At higher levels of NCO status, further promotion is not necessarily the same driver to stay or to
leave. As the statistics show, fall out after 12 years of service is low: if a soldier gets to that stage, it
is a reasonably safe bet they will have a full or nearly full career.
c) Statistics exist also for officers; but there are very few claims involving them and each case will have
to be examined individually.
d) Most soldiers with a trade in the Army can leave at any time and take up civilian employment on a
remuneration package at least as advantageous as within the Army.
Thus, projecting length of
service only matters to the claim for pension loss and not for earnings. The key is to predict final
rank, which will generally set the bar for loss of earnings in civilian life after the Army career is over.
Someone good enough to command respect to warrant officer level, with a trade, in the Army is
going to earn, broadly, correspondingly well in civilian life.
Likewise at other levels of rank.
e) Infantry soldiers, particularly poor ones, may struggle to find jobs in civilian life with comparable pay
or security of position. Estimating length of service for such soldiers is, therefore, more important.
They may take some time to find work and adjust to civilian life after leaving: a modest reduction in
the multiplier may be made to reflect a period out of work.
Unless they are very poor soldiers
indeed (when they will not last long and may be unemployable in civilian life) taking the rate of pay in
final rank as a starting point for a civilian career afterwards is not a bad idea.
Again, adverse
contingencies for poorer work, if that is the feel for the case, can be made by adjusting the Ogden
earnings multiplier modestly beyond the suggestions in the tables within the Introduction.
45. Rates of pay for the compilation of schedules can be found on the internet by using a search engine for
Armed Forces Pay Review Body 200* with the required year completed. The reports are usually published
in late April or early May and give the rates of pay (for the year just begun in April) for each rank (and
time in rank) in tables towards the end. Infantry soldiers attract pay on the lower band. With a trade,
soldiers may be on the higher band: the career forecast should make clear the banding.
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
The Armed
16
Forces Pension Schemes (there are 2: AFPS 75 and, for entrants after 6 April 2005, AFPS 05) can also
be found easily on the internet with explanatory booklets. See http:// www.army.mod.uk/join/terms/
1141.aspx for a brief introduction to Army pensions.
Soldiers move up the pay scales within their
rank every year (until they reach its ceiling); and this is timed from their engagement. Thus, doing the
job properly, there will usually be two steps in pay each year to bring into the schedule or counter
schedule – one in April for the annual pay award, and one at the anniversary of engagement.
46. Committal bonuses (for staying on at about 5 years) are also payable – see http:// www.army.mod.uk
/join/terms/10530.aspx.
47. Benefits in kind form part of the overall remuneration in the Armed Forces – see
http://www.army.mod.uk/join/terms/1103.aspx.
Valuing the benefits is not easy.
their accommodation and food (when not on deployment or exercise.)
Soldiers pay for
The claim, being a current
benefit in kind, is not properly put forward (as is so often seen in schedules) charging the civilian rent
after leaving the Army as a head of damage; rather the loss is fixed by considering the real value of the
accommodation/food being received while in the Army compared with the subsidised rates then being
charged for them – the net continuing benefit in kind. The problem for substantial claims is that the
quality of accommodation in the Armed Forces is generally so scandalously poor that soldiers often get
what little they pay for13 !
While the Army makes play on its free medical care, it is no better (and
arguably worse apart from the immediate care of those injured in combat) than NHS care in civilian life
– no loss there then.
Dental care is free; and so long as NHS dentistry is difficult to find there is
potential here for a modest claim.
Gym facilities are widely available in the Services; and the value
equivalent to a civilian gym membership should be recoverable. These items should not be claimed as
miscellaneous heads of damage. They are losses of current benefits in kind to be included as perks in
the loss of earnings claim14, the multiplicand of which should be rounded up accordingly.
Military witnesses at trial
48. The inward looking nature of the Armed Forces makes it inevitable that, where the group is threatened
or criticised, it closes ranks. It is still not uncommon for a unit to have rehearsed its evidence so that,
where questions cover material which has been discussed every man will answer (and give the same
answer), but where the material has not been discussed they all say they don’t know. The same questions
may need to be asked of all witnesses to expose this kind of affair. More importantly, it means that an
encyclopaedic knowledge of all the material in the case – prior statements and evidence to the Board of
Inquiry [BOI] and Special Investigations Branch [SIB – the military police] – is a must in order to cross
Mr Recorder Stuart-Smith QC, at the invitation of the Claimant in Porter v MoD, awarded damages comparing the
(lower) cost of married quarters for NCOs in the Army with a housing association semi in the Southampton, costing
£80 per week in 2005. He lamented the lack of disclosure from the MoD.
13
Contrary to Mr Recorder Stuart-Smith QC’s thought in Porter at [62], these benefits in kind are not taxable within the
Armed Forces.
17
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
14
examine.
49. Collusion is not always the case, of course.
people are much more open.
Experience shows that the crack units with the cleverer
The enlisted men and senior officers are often alarmingly frank.
The
problem may lie more often with the ambitious NCOs and junior officers whose careers stand to be
blighted by adverse findings. After a series of evasive or shifty witnesses, it is usually easy to spot the
reliable evidence with the refreshing change of testimony, now coming obviously from direct memory
and addressing the real question.
50. The same advice concerning presentation of statements of case and skeleton arguments applies to the
oral questioning. The appropriate military vocabulary, proper use and understanding of acronyms, and
points which have been well defined, respecting the military ethos at the heart of the case, will all
advance the claim or defence admirably. Poorly made points will be brushed off at best or put down
savagely by the commanding officer in the witness box. Prepare the questioning more fully than usual
unless you are very experienced in these claims; and pare down the material to the best points only.
© James Rowley QC and Martin Seaward for the PIBA Annual Conference 2009
18
MULTIPLE CLAIMANTS
V
THE MINISTRY OF DEFENCE
PART I – THE GENERIC ISSUES
1.
Introduction
5
2.
The legal framework
8
A. Duty of care
8
B. Crown immunity
12
C. Combat immunity
33
D. Standard of care
51
E. Liability for psychiatric injury – PTSD/PTD
56
F. Causation
64
G. The approach to the comparators, USA and Israel
68
The structure of medical services
70
3.
4.
Terminology
79
5.
State of Knowledge
87
6.
Culture
163
7.
The theatres of war
A. Northern Ireland
188
B. Falklands War
216
C. Gulf War
238
D. Bosnia
245
8.
Screening
262
9.
Briefing
288
10.
Forward Psychiatry
303
11.
Debriefing
318
12.
Detection
332
13.
Treatment
386
14.
Discharge
422
15.
PPO 9/93
427
16.
Conclusions
454
PART II – THE LEAD CASES
1.
Introduction
459
2.
Clive Davies
463
3.
Michael John Kift
482
4.
X
493
5.
Timothy Andrew Connor
513
6.
William James Sutherland
527
7.
Anthony Arthur McNally
545
8.
John Michael Flynn
557
9.
Anthony McLarnon
567
10.
Malcolm New
582
11.
Melvyn West
599
12.
Julie Earl
610
13.
Joseph Kelly
618
14.
Darren Mark Lambert
628
15.
Sukhinder Singh Deo
640
16.
Gary John Owen
643
17.
Conclusions
660
APPENDICES
1.
Abbreviations
2.
Parties agreed list of Generic Issues
3.
Claimants’ Revised Synopsis of Case on System
4.
Schedule of successive Directors of Army Psychiatry and Professors of
Military Psychiatry
5.
List of Witnesses Claimants
a. Lay
b. Expert
6.
List of Witnesses Defendants
a. Lay
b. Expert
2.
THE LEGAL FRAMEWORK
A. The duty of care
B. Crown Immunity
C Combat Immunity
D. The Standard of Care
E. Psychiatric Injury
F. Causation
2.A.
THE DUTY OF CARE
2.A.1
In the Re-amended Generic Statement of Case the Claimants formulate the
general duty of care owed by the MoD to service personnel in the
following terms
“C4. The Defendants owed service personnel the duty to
take reasonable care for their health and safety in the
course of and incidental to their service. Subject to the
important qualification below, the duty is similar to that
between employer and employee, which covers premises,
equipment, personnel, systems of work including
supervision and, where appropriate medical supervision,
care and support.”
2.A.2
The qualification is set out in C5 of the Re-amended Generic Statement of
Case –
“C5. Whereas an employer is usually liable in respect of
damage caused by ultra-hazardous activity, the above
formulation of the duty of care does not apply in a service
setting when related to immediate operational decisions
and actions within a theatre of war or analogous
situations. Service personnel, the prime resource, are the
means by which the battle is won and in battle their
personal welfare is subordinate to their combat role.”
2.A.3
In its Generic Defence the MoD accepts that –
“C1…in general terms it owed a duty of care to its
service personnel to provide a safe system of work so far
as was reasonable and practicable in all of the material
circumstances”,
“C2… in general terms it knew at all times material to
these Group Actions that combat was capable of causing
psychiatric consequences, including chronic conditions,”
2.A.4
At C4 the MoD “…accepts and adopts the contents of paragraphs C4 and
C5” of the Generic Statement of Case.
2.A.5
Accordingly and subject only to the issue of Crown Immunity, there is no
issue between the parties as to the existence of a duty of care owed by the
MoD to service personnel. Secondly there is agreement in broad terms as
to the nature of that duty. Thirdly the parties agree that no duty of care
arises “…in a service setting when related to immediate operational
decisions and actions within a theatre of war or analogous situations”, a
principle that has been variously described as the common law immunity
or battle immunity; but which I propose to call the ‘combat immunity’, a
term that describes the context in which it arises and is wider than the term
battle immunity, a battle being ordinarily understood to be a prolonged
fight between large organised armed forces.
2.A.6
The Claimants contend that there was a single unitary duty to take
reasonable care, and that it is misleading to break down that duty by
posing a number of questions such as whether the MOD was under a duty
to provide training or advice as to the possible psychological consequences
of exposure to stress in combat. They direct my attention to the following
passage from Clerk & Lindsell on Torts, 18th Ed at 7-160 “To express the standard in terms of a duty of care is to
confuse two distinct questions. The duty question is
concerned with the general nature of the relationship
between the parties and asks whether there should be a
duty of care in that kind of relationship. The scope of
any duty may be described by reference to the
circumstance of the relationship. Thus, the relationship
between the parties may justify a duty of care to prevent
harm being caused by third parties and the restricted
nature of that duty of care will tend to suggest that what
is reasonably required should not place an onerous
burden on the defendant. However, the specific level of
care required, e.g. whether a warning should have been
given, will depend on the particular circumstances of the
case. Both duty and standard turn on reasonableness
but in the case of duty, the question is whether the nature
of the relationship requires that care be taken; whilst in
the case of standard, the question is what conduct is
reasonably required in the particular circumstances.”
and to the judgment of Stuart-Smith LJ in N. v Agrawal [1999] P.N.L.R.
939 at 943 “In my judgment an attempt to formulate a duty of care in
this way is wholly misconceived. If a duty of care exists
at all it is a duty to take reasonable care to prevent the
claimant from suffering injury of the type in question, in
this case psychiatric injury. A failure to give evidence
could be a breach of such a duty: but it is not the duty
itself. Thus a motorist owes a duty to take care not to
injure other road users or damage their property. He
does not owe a duty to take care to blow his horn; his
failure to do so when proper care requires that he should,
may amount to a breach of the duty of care”.
2.A.7
Mr Irwin QC argues that in a factually simple case, it is possible to speak
loosely of a duty to do this or that specific act, when in fact what is meant
is that the relevant act or omission would constitute a breach of the duty of
care; but that it is important to maintain the conceptual distinction between
duty and breach of duty in the analysis of a case of such complexity.
2.A.8
The defendants accept that the duty is to take reasonable care, and that that
is what has been described as the threshold question. But they argue that
in litigation in which wide ranging allegations are made as to breach of
duty it is not only helpful but necessary to consider what the general duty
entails, and that that can conveniently be done by posing the question of
whether the MOD owed specific duties to service personnel. They rely
upon the judgment of Lady Justice Hale in Sutherland v Hatton Neutral
Citation Number [2002] EWCA Civ 76, [2002] IRLR 263. At paragraph
23 she said -
“To say that the employer has a duty of care to his
employee does not tell us what he has to do (or refrain
from doing) in any particular case. The issue in most if
not all of these cases is whether the employer should have
taken positive steps to safeguard the employee from
harm: his sins are those of omission rather than
commission. Mr RF Owen QC, for the appellant
defendant in the Bishop case, saw this as a question of
defining the duty; Mr Ralph Lewis QC, for the appellant
defendant in the Jones case, saw it as a question of
setting the standard of care in order to decide whether it
had been broken. Whichever is the correct analysis, the
threshold question is whether this kind of harm to this
particular employee was reasonably foreseeable. The
question is not whether psychiatric injury is foreseeable
in a person of ‘ordinary fortitude’. The employer’s duty
is owed to each individual employee, not to some as yet
unidentified outsider: see Paris v Stepney Borough
Council [1951] AC 367. The employer knows who his
employee is. It may be that he knows, as in Paris, or
ought to know, of a particular vulnerability; but he may
not. Because of the very nature of psychiatric disorder,
as a sufficiently serious departure from normal or
average psychological functioning to be labelled a
disorder, it is bound to be harder to foresee than is
physical injury. Shylock could not say of a mental
disorder, ‘If you prick us, do we not bleed?’ But it may be
easier to foresee in a known individual than it is in the
population at large. The principle is the same as in other
cases where there is a contractual duty of care, such as
solicitors’ negligence: see Cook v Swinfen [1967] 1 WLR
457; McLoughlin v Grovers [2001] EWCA Civ 1743.”
2.A.9
The alleged breaches of the MoD’s duty of care to provide service
personnel with a safe system of work are essentially omissions. They are
conveniently summarised in the Claimants’ Revised Synopsis of
Claimants’ Case on System dated 10 June 2002 (Appendix 3) served to
particularise their positive case in relation to each of the Generic Issues.
My task is to determine which of the steps identified by the Claimant
ought reasonably to have been taken by the MoD in the discharge of its
general duty of care. Whether expressed as a question of duty or as a
question of breach, the key issue is the same; have the Claimants proved
on the balance of probabilities that the MoD was in breach of its general
duty of care to the Claimants by failing to take each or any of the steps
summarised in the Revised Synopsis of Case. Provided that that test is
kept clearly in mind, the Defendant’s approach, namely to pose the
question of whether it was under a duty to do X or Y, is not misleading.
2.B.
CROWN IMMUNITY
2.B.1
The Legislative framework
2.B.2
The Crown’s historic immunity from action in tort was brought to an end
by the Crown Proceedings Act 1947 (the 1947 Act). Section 2(1) provided
that –
“2. Liability of the Crown in tort
Subject to the provisions of this Act, the Crown shall be
subject to all those liabilities in tort to which, if it were a
private person of full age and capacity, it would be
subject:(a) in respect of torts committed by its servants or agents;
(b) in respect of any breach of those duties which a
person owes to his servants or agents at common law by
reason of being their employer; and
(c) in the respect of any breach of the duties attaching at
common law to the ownership, occupation, possession or
control of property;
Provided that no proceedings shall lie against the Crown
by virtue of paragraph (a) of this subsection in respect of
any act or omission of a servant or agent of the Crown
unless the act or omission would apart from the
provisions of this Act have given rise to a cause of action
in tort against that servant or agent or his estate.
But section 10 made special provision for the activities of the Armed
Forces.
“10(1) Nothing done or omitted to be done by a member
of the armed forces of the Crown while on duty as such
shall subject either him or the Crown to liability in tort
for causing the death of another person, or for causing
personal injury to another person, in so far as the death
or personal injury is due to anything suffered by that
other person while he is a member of the armed forces of
the Crown if—
(a) at the time when that thing is suffered by that other
person, he is either on duty as a member of the armed
forces of the Crown or is, though not on duty as such, on
any land, premises, ship, aircraft or vehicle for the time
being used for the purposes of the armed forces of the
Crown; and
(b) the [Secretary of State] certifies that his suffering that
thing has been or will be treated as attributable to service
for the purposes of entitlement to an award under the
Royal Warrant, Order in Council or Order of His
Majesty relating to the disablement or death of members
of the force of which he is a member:
Provided that this subsection shall not exempt a member
of the said forces from liability in tort in any case in
which the court is satisfied that the act or omission was
not connected with the execution of his duties as a
member of those forces.
(2) No proceedings in tort shall lie against the Crown for
death or personal injury due to anything suffered by a
member of the armed forces of the Crown if—
(a) that thing is suffered by him in consequence of the
nature or condition of any such land, premises, ship,
aircraft or vehicle as aforesaid, or in consequence of the
nature or condition of any equipment or supplies used for
the purposes of those forces; and
(b) the [Secretary of State] certifies as mentioned in the
preceding subsection;
nor shall any act or omission of an officer of the Crown
subject him to liability in tort for death or personal
injury, in so far as the death or personal injury is due to
anything suffered by a member of the armed forces of the
Crown being a thing as to which the conditions aforesaid
are satisfied.
(3) …..a Secretary of State, if satisfied that it is the
fact:—
(a) that a person was or was not on any particular
occasion on duty as a member of the armed forces of the
Crown; or
(b) that at any particular time any land, premises, ship,
aircraft, vehicle, equipment or supplies was or was not,
or were or were not, used for the purposes of the said
forces;
may issue a certificate certifying that to be the fact; and
any such certificate shall, for the purposes of this
section, be conclusive as to the fact which it certifies.”
2.B.3
Section 10 of the 1947 Act was repealed by the Crown Proceedings
(Armed Forces) Act 1987 (the 1987 Act), which came into effect on 15
May 1987. Section 1 provided that “1. Subject to section 2 below, section 10 of the Crown
Proceedings Act 1947 (exclusions from liability in tort in
cases involving the armed forces) shall cease to have
effect except in relation to anything suffered by a person
in consequence of an act or omission committed before
the date on which this Act is passed.
2.B.4
The MoD’s claim to Crown Immunity
The Secretary of State has issued certificates under section 10(1)(b) of the
1947 Act in relation to each of the Claimants, and accordingly seeks to
rely upon the immunity afforded by section 10 in relation to all breaches of
duty alleged to have occurred before 15 May 1987. The alleged breaches
of duty fall into two broad categories; first breaches of the duty owed to
service personnel by the MoD as their employer, and secondly specific
acts or omissions by its servants or agents whilst on duty for which it is
vicariously liable. Section 10(1) provides that “…nothing done or omitted
to be done by a member of the armed forces of the Crown whilst on duty
shall subject either him or the Crown to liability in tort…”. It is submitted
on behalf of the MoD that the acts or omissions of service personnel for
which it would otherwise be vicariously liable plainly fall within the
immunity; and secondly that as the Crown is a constitutional construct that
can only act by its servants or agents, the immunity must also extend to
employers liability.
2.B.5
The Claimants do not accept that the MoD is immune from action in
relation to injuries sustained before the repeal of section 10. They contend
first that the statutory immunity does not extend to breaches of the duty
owed to service personnel by the MoD as their employer (construction
issue 1 – employer's liability), secondly that section 10(1) should be
construed as limited to vicarious liability for combat and combat related
activities (construction issue 2 – vicarious liability), and thirdly that in any
event that the immunity does not arise as the “thing suffered” within the
meaning of section 10(1) “was not suffered wholly or exclusively on (or
even mainly) on Crown land or while the Claimants were on duty” (per the
Claimant’s closing submissions para 21.101) (construction issue 3 – ‘the
thing suffered’).
2.B.6
Construction issue 1 - Employer's Liability
The Claimants’ primary submission is that on its proper construction, the
immunity provided by section 10(1) is limited to vicarious liability for the
acts or omissions of the Crown’s servants or agents, and does not extend to
any “direct or primary liability that the Crown may have.” There are five
strands to the Claimants argument namely –
“(i) the construction of the 1947 Act viewed as a whole
and the construction in particular of s10;
(ii) the case law on the liability of public authorities;
(iii) the legislative history of s10;
(iv) the case law on s10;
(v) the common law presumption of access to the courts.”
2.B.7
(i) The construction of the 1947 Act viewed as a whole and the
construction in particular of s10.
Section 2(1) of the 1947 Act identified the tortious liabilities to which the
Crown was henceforth to be subject. Its three subsections specified three
types of liability; s. 2(1)(a), torts committed by its servants or agents (ie
vicarious liability), s.2(1)(b), employer’s liability, and, s. 2(1)(c),
occupier's liability. Mr Irwin QC submits that section 10 provides an
immunity only in relation to the first and third, vicarious liability and
occupier's liability. He argues that the specific reference in section 10(1)
to acts “…done or omitted to be done by a member of the armed forces of
the Crown while on duty as such”, must relate to vicarious liability, and
that section 10(2) unarguably relates to occupier's liability. He submits
that if it had been the intention of Parliament to include employer's
liability in the section 10 immunity, it would surely have done so in
express terms so as to reflect the categorisation in section 2.
2.B.8
Secondly Mr Irwin submits that the contention that 10(1) is limited to
vicarious liability as opposed to the direct liability to which an employer or
occupier is subject, is borne out by a comparison of the wording of 10(1)
and that of 10(2). The 10(1) immunity specifically relates to acts or
omissions of members of the armed forces, whereas 10(2) provides that
“No proceedings in tort shall lie against the Crown…” in relation to
occupier's liability. The different phraseology reinforces the distinction
between vicarious liability and direct liability drawn in section 2. In this
context he also relies upon the proviso to section 10(1) which denies an
exemption from liability “…in any case in which the court is satisfied that
the act or omission (of a member of the forces) was not connected with the
execution of his duties as a member of those forces.” He submits that
again the emphasis is on the actions of the servant or agent rather than
upon any primary liability.
2.B.9
Thirdly Mr Irwin QC argues that if the MoD’s argument is sound, and
section 10(1) applies to employer's liability on the basis that the Crown
can only act by its servants or agents, then it is difficult to see why was it
necessary to include section 10(2), as the MoD’s analysis would apply
equally to occupier's liability.
2.B10
(ii) the case law on the liability of public authorities
The second strand to the Claimants’ argument is that employer’s primary
liability was well known to the law in 1947. That is not in issue. In
Wilsons & Clyde Coal Company Ltd v English [1938] AC 57 Lord Wright
articulated the general principle in the following terms –
“The whole course of authority consistently recognises a
duty which rests on the employer and which is personal
to the employer, to take reasonable care for the safety of
his workmen, whether the employer be an individual, a
firm or a company, and whether or not the employer
takes any share in the conduct of the operations.” p 84
The principle was recognised in the categorisation in section 2 of the Act
to which I have already made reference. But the fact that the principle was
well established by the date upon which the 1947 Act was passed, does not
in my judgment assist in the proper construction of section 10.
2.B.11
(iii) the legislative history of s10
The Claimants invite me to take account of the legislative history of
section 10.
Mr Jay QC for the MoD submitted that the section was
difficult to construe but not ambiguous; and that it was therefore not
appropriate to have resort to the parliamentary material.
But I am
satisfied that the legislation is sufficiently ambiguous and obscure to
justify the use of such material as an aid to construction. I am reinforced
in that view by the fact that in the judgment of the Court of Appeal in
Matthews [2002] EWHC 13, 1 WLR 2621 the Master of the Rolls had
regard to Hansard in his analysis of section 10; and on the appeal to the
House of Lords, Lord Hope of Craighead made express reference to a
detailed account of the history of the legislation in “The Debates behind
an Act – Crown Proceedings Reform 1920-1947”by Joseph M Jacob
[1992] PL 452.
2.B.12
Two points emerge from consideration of the legislative history. First the
form of section 10(1) is to be contrasted with that of the draft Crown
Proceedings Bill published in 1927. The material provision was clause
29(1)(g) –
“Except as therein otherwise expressly provided, nothing
in this Act shall – (g) entitle any member of the armed
forces of the Crown to make a claim against the Crown in
respect of any matter relating to or arising out of or in
connection with the discipline or duties of those forces or
the regulations relating thereto, or the performance or
enforcement or purported performance or enforcement
thereof by any member of those forces, or other matters
connected with or ancillary to any of the matters
aforesaid.”
Had section 10 been enacted in that form, it would unquestionably have
created an immunity both in relation to direct liability, employer's liability
and occupier's liability, and to vicarious liability.
The explanatory
memorandum that accompanied the 1947 Bill specifically contrasted
clause 10 with clause 29(1)(g) of the 1927 Bill –
“But in regard to certain matters (e.g. the defence of the
realm, the maintenance of the armed forces of the Crown
and the postal service) the analogy between the Crown
and the subject breaks down, for in these spheres the
functions of the Crown involve responsibilities of a kind
which no subject undertakes.
The Bill, therefore,
following the Bill of 1927, treats these matters as
exceptions to the ordinary rule… by clause 10 of the Bill
the Crown and its officers are in certain circumstances
relieved from liability in tort for death or personal injury
to members of the armed forces. So far as clause 10 is
concerned with the liabilities of the Crown, the exemption
from liability for which it provides is of a less general
and more clearly defined character than that provided for
by clause 29(1(g) of the Bill of 1927.”
Mr Irwin QC submits that it demonstrates that Parliament must have
intended section 10 to be more limited in its scope than the 1927 draft; and
that that provides strong support for the construction of section 10 for
which he contends.
2.B.13
Secondly the Claimants seek to place reliance upon statements made by
Ministers in Parliament during the passage of the Bill. In the course of the
second reading of the Bill in the House of Lords (at HC Debs 4 March
1947 col 68) the Lord Chancellor, Viscount Jowitt, contrasted the relevant
clause with clause 29 of the 1927 Bill saying that “In some respects,
however it is much less wide”. Having then rhetorically posed the question
“I have often wondered what is the true legal position as between two
persons in the armed forces of the Crown, one of whom is injured by the
negligence of the other”, he continued -
“Could a trooper who took part in the charge of the light
brigade whose leg was shattered by a cannon-ball have
brought an action against Lord Raglan?… And consider
the case of Passchendaele. Could a soldier who was
injured through sticking in the mud at Passchendaele
have brought an action against Sir Douglas Haig
alleging that he had not properly considered the nature of
the terrain or the effect of the bombardment on the
drainage system…
Therefore we make it quite plain here that there must be
no action in respect of these matters, either against the
Crown or against a servant of the Crown, behind whom
of course the Crown would have to stand if such an
action were allowed in respect of these matters.”
2.B.14
Similarly in the course of the second reading in the House of Commons (at
HC Debs, 4 July 1947, cols 1675-1753), the Attorney General, Sir Hartley
Shawcross, referred to the clause as a “limited exclusion” (col 1682), and
said that the government had “not gone nearly so far in this matter as the
1921 Committee (the committee that had assisted in the drafting of the
1927 Bill) recommended” (col 1682), and that -
“I think Members will appreciate the special position
which exists. For instance, it is necessary in the course
of service training, in order to secure the efficiency of the
forces, to exercise them in the use of live ammunition, in
flying in close formation and, in the Navy, in battle
conditions, with, perhaps, destroyers dashing about with
lights out, and so on. These operations are highly
dangerous and, if done by private citizens, would, no
doubt, be extremely blameworthy, but it is impossible to
apply the ordinary law of tort in regard to them, or make
the Crown liable for any injury which, unhappily,
results.” (col. 1681)
2.B.15
The record of the Parliamentary debates, and in particular the passages
relied upon by the Claimants, certainly reveals that section 10 was
regarded as being more restricted in its ambit than clause 29 in the 1927
draft. But section 10 is more restricted than clause 29 in a number of
respects; and the record is silent as to whether it was the intention of
Parliament to restrict the immunity to vicarious liability and occupier's
liability. Thus although the record does not undermine the construction for
which Mr Irwin contends, I do not consider that it assists with regard to the
issue that I am required to determine.
2.B.16
(iv) the case law on s10
The Claimants submit that the construction for which they contend is not
undermined by authority. The issue did not arise in the first three
authorities upon which they sought to rely, Adams v War Office [1955] 1
WLR 1116, Bell v Secretary of State for Defence [1986] QB 322 and
Pearce v Secretary of State for Defence [1988] 1 AC 755. Adams and Bell
were clear cases of vicarious liability; in Pearce the court was concerned
with the proper construction of section 10(2).
The highest that the
Claimants sought to put the argument was that in both Mulcahy v Ministry
of Defence [1996] AB 732 and Matthews v Ministry of Defence [2002]
EWHC 13 (QB) [2002] 3 All ER 513, the court proceeded on the
assumption that section 10(1) was concerned only with vicarious liability.
In Mulcahy they rely upon Neill LJ’s summary of the effect of section 10
at 742 B-C –
“It will be seen the effect of section 10 of the Act of 1947
was to prevent proceedings being brought in respect of
the death of or personal injury to a member of the armed
forces caused by another member of the armed forces
provided that the Secretary of State issued a certificate
that the death or injury was attributable to service for the
purposes of entitlement to a war pension.”
There are two points to be made; first the passage is equally consistent
with the construction for which the MoD contends; secondly Neill LJ was
not addressing the issue with which I am concerned; and it is not implicit
in his judgment that he made the assumption that the section did not apply
to breach of the employer’s duty of care as opposed to vicarious liability.
Similarly in Matthews the point did not arise for consideration; nor is it
implicit in the judgments of the Court of Appeal or the speeches in the
House of Lords that on its true construction section 10(1) was limited to
vicarious liability.
2.B.17
(v) the common law presumption of access to the courts
Finally it is submitted on behalf of the Claimants that it is a well
established principle of statutory interpretation that limitations in statutes
should be interpreted restrictively, particularly where the effect of the
limitation is to restrict the right of access to the courts. They rely upon the
following passage from the speech of Lord Reid in Anisminic v Foreign
Compensation Commission [1969] 2 AC 147 at 170 C-D –
“It is a well established principle that a provision ousting
the ordinary jurisdiction of the court must be construed
strictly – meaning, I think, that if such a provision is
reasonably capable of having two meanings, that
meaning shall be taken which preserves the ordinary
jurisdiction of the court.”
2.B.18
Conclusion
There is force in the three principal arguments advanced by Mr Irwin QC;
first that had Parliament intended to exclude employer's liability, it would
surely have done so, bearing in mind the clear categorisation of the types
of liability in section 2 and the specific provision in section 10(2) with
regard to occupier's liability; secondly that a comparison of the wording
used in section 10(1) and that of section 10(2) demonstrates a clear
recognition by the legislature of the different nature of vicarious liability
and direct liability; and thirdly that the MoD’s argument that the Crown
can only act by its servants or agents, and that accordingly section 10 must
embrace employer’s liability, would apply equally to occupier's liability,
and if valid would mean that 10(2) would be redundant. I also take
account of the common law presumption of access to the courts.
2.B.19
But I have come to the conclusion that the construction for which the MoD
contends is to be preferred. I have arrived at that conclusion for two
reasons. First, and as has been submitted on behalf the MoD, the Crown is
a constitutional construct that can only act by its servant or agent: The
phrase “Nothing done or omitted to be done by a member of the armed
forces of the Crown while on duty as such” must embrace the acts or
omissions upon which the Claimants rely.
2.B.20
Secondly, and as was made clear in the opinions of the House of Lords in
Matthews, the purpose of section 10 of the 1947 Act was to provide a
comprehensive no fault compensation scheme for servicemen which
precluded a common law claim for damages. It would have been wholly
anomalous for employers liability to have been excluded from that
scheme. As Lord Bingham of Cornhill said in Matthews –
“(4) There is nothing to suggest that when s 10(1), as it
was to become, was uncontentiously amended in the
House of Commons, there was any intention to alter the
essential thrust of the provision as previously drafted.
The inference is, I think, clear that the object of the new
certification procedure was to ease the path of those
denied any right to a common law claim towards
obtaining a pension, by obviating the need to prove
attributability, an essential qualifying condition for the
grant of a pension….”
“(6) Although different judges have used different
language, the English courts have consistently regarded s
10(1) as precluding any claim at common law. Thus one
finds references such as these –
‘Provided that the other conditions of s 10 are satisfied,
the exemption from liability in tort applies…excludes the
Secretary of State’s liability in tort…any compensation
shall be provided under the service pension scheme
contained in the Order in Council and not under the
common law…s 10 provides a complete defence at
common law.’ (see Bell’s case [1985] 3 All ER 661 at
665,666, [1986] QB 322 at 328, 329, 330 per Donaldson
MR)
‘…the effect of s10 of the 1947 Act was to prevent
proceedings being brought in respect of the death of, or
personal injury to, a member of the armed forces caused
by the negligence of another member of the armed forces
provided that the Secretary of State issued a certificate
that the death or injury was attributable to service for the
purposes of entitlement to a war pension’ (see Mulcahy’s
case [1996] 2 All ER 758 at 764, [1996] QB 732 at 742
per Neill LJ)
‘Section 10 provides immunity to the Crown…’ (see
Quinn v Ministry of Defence [1998] PIQR P387 at 390
per Swinton Thomas LJ)
‘…the defendant is entitled to rely on the defence which
[s10(1)] provides…It is easy to see why, in 1947, s 10(1)
should have been thought necessary in order to protect
the Crown from claims at common law damages…The
immunity conferred by section 10…(see Derry v Ministry
of Defence (1999) 49 BMLR 62 at 76,77 per Chadwick
and Laws LJ respectively)’”
2.B.21
It follows that in my judgment the section 10 immunity extends to
employer's liability.
2.B.22
Construction issue 2 - Vicarious Liability
The Claimants invite me to construe section 10(1) so as to restrict the
immunity in relation to vicarious liability to combat and combat related
activities of members of the armed forces. There are two limbs to the
argument. First they rely upon the common law presumption in favour of
access to the courts; secondly it is submitted that the construction of
section 10(1) for which the MoD contends is a denial of access to the
courts that infringes Article 6(1) of the European Convention on Human
Rights; but that it is possible to read and give effect to the section in a way
which is compatible with convention rights (see section 3(1) of the Human
Rights Act 1998).
2.B.23
The first limb of the argument founders on the analysis of section 10 by
the Court of Appeal in Matthews.
The construction for which the
Claimants contend was specifically rejected by the court per Lord Phillips
at 531J – 532C -
“73. It is convenient now to refer to the argument of
construction, which Mr Gordon, with permission from
this Court granted on 10 April of this year, advanced as
his primary case. It was not advanced before Keith J. It
was founded on this explanation for s.10 of the 1947 Act
given to the House of Commons by the Attorney General,
Sir Hartley Shawcross (Hansard) for July 1947 p. 1681
“Clause 10 is another clause to which the attention of the
House ought to be directed, because it contains a special
exemption, or exclusion, in the case of claims between
members of the Armed Forces in respect of personal
injury which they have sustained while on duty as
members of the Forces, or on service premises. Here,
again, I think Members will appreciate the special
position which exists. For instance, it is necessary in the
course of Service training, in order to secure the
efficiency of the Forces, to exercise them in the use of live
ammunition, in flying in close formation and, in the Navy,
in battle conditions, with, perhaps, destroyers dashing
about with lights out, and so on. These operations are
highly dangerous and, if done by private citizens, would,
no doubt, be extremely dangerous, but it is impossible to
apply the ordinary law of tort in regard to them, or make
the Crown liable for any injury which, unhappily,
results.”
74. Mr Gordon submitted that this explanation for section
10 could not justify conferring immunity on servicemen
or the Crown in respect of tortious conduct that occurred
in circumstances where warlike conditions did not
pertain. S. 10 should be given a purposive interpretation
in order to make it accord with Parliament’s intention.
This should be achieved by implying the following
additional sentence at the end of section 10(1)(b):
“Such a certificate shall not, however, be issued in any
event unless the Secretary of State is satisfied that the
circumstances in which the death or personal injury
occurred with those of warlike conditions.”
75. Mr Gordon submitted that his proposed interpretation
would have the effect that s.10 addressed a legitimate aim
in a manner which was proportionate and thus rendered
the section compatible with the Convention. It was
legitimate and indeed mandatory to give the section this
interpretation because of the obligation imposed on the
Court by s.3 of the HRA. The decision of the House of
Lord’s in R v A (No.2) [2001] 2WLR 1546 showed that
the technique of ‘reading down’ a statutory provision so
as to restrict its ambit was legitimate.
76. We can deal with these submissions quite shortly. In
the first place, we have concluded that neither Article 6
nor the First Protocol is engaged by the facts of this case.
It follows that section 3 has no application. In the second
place, we consider that to imply the additional clause
suggested by Mr Gordon would be to go beyond the
bounds of what section 3 of the HRA permits. The
fundamental alteration of the scope of section 10 which
would result from the addition of the proposed clause,
would amount to legislation by this Court. Such a course
is not permissible.
Keith J. came to the same
conclusion.”
2.B.24
As to the second limb at the stage at which I heard argument as to the law,
the appeal to the House of Lords in Matthews had not been heard, and
counsel for the Claimants acknowledged that the decision in the Court of
Appeal was binding, but reserved their position pending final resolution of
the appeal. The House of Lords affirmed the decision by the Court of
Appeal that section 10 (1) is not incompatible with Article 6(1), and
accordingly this limb of the argument must also fail.
2.B.25
Construction issue 3 – “the thing suffered”
The Claimants submit that the immunity in respect of acts or omissions of
the Defendant’s servants or agents does not arise in this case as “the thing
suffered” within the meaning of section 10(1) “was not suffered wholly or
exclusively (or even mainly) on Crown land or while the Claimants were
on duty” (per the Claimants’ closing submissions para 21.101)
2.B.26
The immunity under section 10(1) will only arise “…in so far as the death
or personal injury is due to anything suffered…” whilst the person
concerned is a member of the armed forces and “…he is either on duty as
a member of the armed forces of the Crown or is, though not on duty as
such, on any land, premises, ship, aircraft or vehicle for the time being
used for the purposes of the armed forces of the Crown.” Section 10 (2)
contains a similar proviso. In order to establish whether the MoD are
protected by the immunity, it is necessary to determine what ‘the thing
suffered’ is in this context. As was readily acknowledged by both parties
the application of the proviso presents very considerable difficulties.
2.B.27
This litigation is concerned essentially with alleged omissions on the part
of the MoD. They fall into two broad categories; the failure to take
measures that would allegedly have prevented the development of
psychiatric illness, and secondly the failure to detect and treat such
illnesses.
2.B.28
The rival contentions
It is submitted on behalf of the Claimants that –
“In summary, it follows from this analysis that: (i) the
relevant omission in the Claimants’ generic case (the
failures to brief/train, debrief, detect problems, properly
diagnose, treat etc.) gave rise to a “thing suffered” in the
form of the subsequent onset and thereafter the
persistence (due to the continuing omission) is of the
PTD/PTSD stress disorder; (ii) this suffered thing
eventually manifested itself in various disorders,
dysfunctions and illnesses (or those proportions of them
which would have been avoided by the interventions
omitted); (iii) that this thing suffered was not suffered
wholly or exclusively (or even mainly) on Crown land or
while the Claimants were on duty; and therefore (iv) s
10(1) cannot be relied on the by the Defendant.”
(Claimants’ closing submissions para 21.101)
2.B.29
The defendants submission is that “the thing suffered” is the avoidable
prolongation of any of the Claimants post-traumatic stress disorder or
PTD.
2.B.30
The authorities
The parties’ submissions were focussed on the decision of the Court of
Appeal in Derry v Ministry of Defence (1999) 11 Admin LR 758 (18
March 1999), [1999] PIQR 204. The authorities that preceded it were
succinctly summarised by Kennedy LJ in his dissenting judgement in
Derry -
“There are three previous decisions relating to section 10
which we have been invited to consider. In Bell v
Ministry of Defence (1986) 1 QB 322 the plaintiff was the
administrator of a serviceman who died after a fall in a
barracks in Germany. It was alleged that he was sent to
a civilian hospital with an inaccurate and misleading
case history, and without any reference to the fall. As a
result for a critical period of about 45 minutes no
diagnosis of his injury was made, and he did not receive
the neurosurgical help which he needed and which could
have saved his life. A certificate having been issued it
was held on appeal that section 10 gave rise to some
immunity on the part of the Army Medical Staff, but (per
Neill and Balcombe LJJ) the ”thing suffered” by the
deceased could be regarded as the failure or omission to
provide the complete records to the civilian hospital, a
failure which continued and took effect when the civilian
doctor read the incomplete notes, and so was disabled
from making an immediate and accurate diagnosis. At
the time when it took effect the deceased was not on duty,
nor was he on Crown land, so the claim was not barred
by section 10.
In Pearce v. Secretary of State for Defence (1988) 1 A.C.
755 the plaintiff, a serving soldier on Christmas Island,
claimed to have been negligently exposed to radiation as
a result of not being properly equipped and advised as to
the precautions which should have been taken. The
defendants sought to rely on section 10(2) but failed to
make good that defence on the trial of the preliminary
issue at first instance, in this court and the House of
Lords. Both in the Court of Appeal and in the House of
Lords it was held that the defendant was not entitled to
rely on a defence which the Atomic Energy Authority, if
sued earlier, could not have invoked. But in the Court of
Appeal and in the House of Lords it was said that Bell’s
case had been wrongly decided, and that references to
“anything suffered” and to a “thing” being “suffered” in
section 10(1) were references not to the act or omissions
relied upon as giving rise to liability but to the casualty
or other event caused by the acts or omissions from
which the personal injury or death resulted. So, in the
context of Pearce’s case, the thing suffered by the
plaintiff was his exposure to radiation.
In the third case, Quinn v. Ministry of Defence (1988)
P.I.Q.R. 387, the plaintiff was a seaman who developed
mesothelioma, allegedly as a result of exposure to
asbestos whilst serving in the Royal Navy. The Crown
relied on section 10 successfully, both at first instance
and on appeal. In his case the thing said to have been
suffered was the inhalation of asbestos fibres. P207-8.
2.B.31
In Derry the plaintiff was a soldier serving in Germany who had developed
an adenoid cystic carcinoma. It was not diagnosed by doctors at the
British military hospital in Munster on various occasions between 1985
and 1987.
The appropriate treatment was eventually started after the
diagnosis was made at a civilian hospital in the United Kingdom when the
plaintiff was on leave. The matter came before the Court of Appeal on
appeal from the judgment of Butterfield J. on a preliminary issue.
Butterfield J. had held that –
“The injury here suffered by the plaintiff was the
exacerbation of his assumed pre-existing carcinoma, with
the resultant personal injury and loss of expectation of
life pleaded in the statement of claim. The cause of that
exacerbation was the alleged negligent failure to
diagnose the condition and the consequent failure to
prescribe radiotherapy. What caused the plaintiff's
personal injury and loss of expectation of life was the
failure to treat his condition. That failure, on the facts
agreed for the purposes of this preliminary issue, was
itself caused by the negligent failure of Dr Pampapathi to
diagnose the plaintiff's condition. There are thus two
factors here relevant. First, a failure to diagnose by the
doctor, which is the negligent omission relied upon by the
plaintiff; second, the resultant progression of the
untreated carcinoma, causing personal injury and loss of
expectation of life. It is the progression of the carcinoma
which is the casualty or event which results in the
plaintiff having suffered loss and damage, not the
omission by itself.” P208.
2.B.32
The Court of Appeal held, Kennedy LJ dissenting, that the Defendant was
entitled to rely upon the defence provided by section 10 (1).
The
reasoning of the majority is conveniently summarised in the headnote –
“Per Chadwick LJ. Whilst potential difficulty arises
where death or personal injury results from disease, the
“thing suffered” for the purposes of sub-section 10 (1) of
the 1947 Act in the instant case was a misdiagnosis. The
point of time at which each alleged tortious omission
occurred was the same time at which each alleged
misdiagnosis was suffered by the plaintiff. On that basis
the “thing suffered” was suffered at a time when that the
plaintiff was on Crown land, the British Military
Hospital, and accordingly the Defendant was entitled to
rely on the defence provided by sub-section 10 (1).
Per Laws LJ. Section 10 of the 1947 Act contemplates
three successive eventualities: (a) an act or omission
which causes (b) something to be suffered by the plaintiff
which in turn causes (c) death or personal injury. In a
case of disease, a distinction needs to be drawn between
the personal injury suffered by a plaintiff, which
comprises subjective effects upon the plaintiff constituted
by his pain, suffering and loss of amenity, and the
objective condition of the plaintiff's body, the disease
affecting the plaintiff. Accordingly, the Defendant's
reliance on section 10 could not be said to fail for the
reason that no distinction could be drawn between the
continuing carcinoma and personal injury suffered by the
plaintiff. The ”thing suffered” for the purposes of the
sub-section was capable of referring to a continuing state
of affairs as well as to a specific concrete event. The
”thing suffered” in the instant case was the undiagnosed
continuing disease. Where the ”thing suffered” by the
plaintiff was a continuing state of affairs, sub-section 10
(1) is satisfied where, the continuance of the state of
affairs having commenced as a consequence of an act or
omission, the plaintiff is on duty, or on Crown land, at the
commencement of that continuance of the plaintiff's
condition persists during periods when the plaintiff is on
duty or on Crown land and its continuance through those
periods is a substantial cause, that is more than a de
minimis cause, of the pain suffering and loss of amenity
of which the plaintiff complains in the proceedings.
Where the state of affairs also continues after the act or
omission complained of at times when the plaintiff is not
on duty, or on Crown land, that does not prevent the
Crown from relying on the sub-section as the “thing
suffered” relevant for the purposes of sub-section 10 (1)
is the continuance of the plaintiff's condition in periods
when, and only when, he is on duty, or on Crown land.
The plaintiff was on Crown land on each occasion when
he visited the military hospital and he was then and there
left with an undiagnosed and untreated carcinoma. The
Court was entitled to infer that the plaintiff had remained
on Crown land, and was on duty, during very substantial
parts of the period between 1985 and 1987 when he was
serving in Germany. In truth and in substance the
plaintiff's pain and suffering was attributable to his being
left with a continuing cancer after every occasion it
should have been diagnosed. Its continuation then
produced its continuation thereafter.”
2.B.33
As Mr Irwin QC for the Claimants submitted, it is not easy to discern a
common rationale in the judgments of Chadwick LJ and Laws LJ. For his
part Mr Jay QC for the MoD submitted that the Lord Justice Chadwick’s
analysis comes perilously close to the “nothing done or omitted to be
done” in the opening words of the section and therefore to falling foul of
Bell v Ministry of Defence, and that Lord Justice Laws’ analysis comes
equally perilously close to re-stating what the personal injury was in the
third line of section 10(1). But both acknowledge that I am bound by the
decision unless it can be distinguished on the facts.
2.B.34
There are two secure foundations upon which to build in the construction
and application of the proviso. First it was held by the House of Lords in
Pearce v Secretary of State for Defence [1988] AC 755 that –
“The Court of Appeal in the present case were firmly of
the opinion that all references to “anything suffered” or
to a “thing” being “ suffered” in both subsection (1) and
subsection (2) of section 10, were references, not to the
act or omission is relied on as giving rise to liability, but
to the casualty or other event caused by the act or
omissions from which personal injury or death resulted.
They did not regard Bell's case as an obstacle to their
view because they considered that it had been decided
per incuriam; alternatively that, even if they were bound
by Bell's case with regard to the meaning of the relevant
expressions in subsection (1) of section 10, they were not
so bound with regard to the meaning of the same
expressions in subsection (2).
Applying their
interpretation of the expression ”anything suffered” to
the facts of the present case, the Court of Appeal held
that the thing suffered by the plaintiff was his exposure to
radiation; that that exposure was suffered by him in
consequence of the nature or condition of the land,
premises, etc., used by the armed forces of the Crown;
and that the defendants therefore, if they had been
entitled to rely on section 10 at all, would have been able
to bring themselves within the protection from liability
given by subsection (2) of that section.
Ralph Gibson LJ… analysed the decision in Bell's case
fully and thoroughly in his judgment, and no useful
purpose would be served by my doing so again. It is
sufficient to say that I agree entirely with his analysis and
with his conclusion, concurred in by O’Connor and Neill
LJJ, that, in relation to the meaning of the expressions
“anything suffered” or a “thing” being “suffered” in
section 10(1) of the Act of 1947, Bell’s case was wrongly
decided.” per Lord Brandon 804J – 805 D.
2.B.35
Secondly it is clear from wording of section 10(1) that “the thing suffered”
is not the death or personal injury. As Lord Justice Chadwick put it in
Derry –
“First, the death or personal injury is not, itself, the
“thing suffered” for the purposes of section 10(1) and
(2). This must follow from the requirement that the death
or personal injury is due to the thing suffered. The
requirement is that the thing suffered must be the cause of
the death or personal injury; and the two cannot be the
same.” p210
2.B.36
Accordingly “the thing suffered” is neither the negligent act or omission
nor the death or personal injury, but is causally related to both. Thus in
relation to breaches of the alleged failure to take preventive action (eg
briefing), “the thing suffered” is the exposure to traumatic events without
the protection of the relevant preventative measures. In relation to failures
post-exposure to the traumatic events (eg detection) “the thing suffered” is
the state of greater vulnerability to the onset of psychiatric injury than
would have been the case had there been the specified intervention or
interventions. It is a continuing state, but it begins at the point at which
the requisite intervention should have taken place.
In relation to the
alleged failure to detect and/or treat, “the thing suffered” is being in an
untreated state. Again it is a continuing state, but begins at the point at
which there should have been detection and/or treatment. That analysis is
consistent with the decision in Derry.
2.B.37
What is the consequence of the application of that analysis? First as to the
alleged failure to take preventive action pre-exposure to traumatic events,
the MoD is entitled to the protection of the immunity as the exposure will
have occurred whilst the individual claimant was on duty as a member of
the armed forces.
2.B.38
Secondly where “the thing suffered” is a continuing state, ie the state that
arose either upon the failure to intervene following exposure to the
traumatic event or events and before the onset of psychiatric illness, or the
untreated state caused by the failure to detect and/or treat the psychiatric
illness, it will have arisen at the point at which the omission or omissions
occurred. The overwhelming probability is that at that time the individual
Claimant will either have been on duty or on Crown property. There is the
remote possibility that that will not have been the case, as it is conceivable
that a Claimant may have had a consultation with a doctor employed by
the MoD when he, the Claimant, was not on duty and the consultation may
not have taken place on Crown property.
But that is a theoretical
possibility that has not arisen in relation to any of the lead actions. On the
premise that when the state amounting to “the thing suffered” arose, the
claimant was either on duty or on Crown property, is the MoD’s
entitlement to the protection of the immunity affected by the fact that it
continues when the claimant is neither on duty nor on Crown property?
That question was expressly addressed by Laws LJ in Derry at p217
“What then of the case where that state of affairs does
continue at times when the plaintiff is not on duty or on
Crown land? I think it must be accepted that the state of
affairs relevant for the purposes of section 10 (1)(a) – the
“thing suffered”, or (b) as I have put it - is the
continuance of the plaintiff's condition in periods when,
and only when, he is on duty or on Crown land. In my
judgment, section 10 (1)(a) will be satisfied if the
plaintiff's condition so persists during those periods that
the court is able to conclude that its continuance through
those periods was a substantial cause of the pain,
suffering and loss of amenity of which he complains in
the proceedings. By “substantial” I mean only that the
causal link must not be de minimis; this is a familiar
distinction in the law’s treatment of problems of
causation. The fact that the state of affairs persisted also
during other periods will not then take the case out of
section 10 (1)(a). As I have said, it is a premise of this
whole argument that the negligent act or omission – (a)
must have caused (b); otherwise there is no potential
liability in any event. Where (b) is a continuing state of
affairs whose continuation commences as any
consequence of (a) and that the plaintiff is then on duty or
on Crown land, its continuation thereafter when the
plaintiff may sometimes be off duty or elsewhere (a) will
generally itself have been caused by its having been
allowed to continue in the first place.
…. In truth and in substance, on the agreed facts the
plaintiff's pain and suffering is attributable, as the law
understands the concept of causation, to his being left
with a continuing cancer after every occasion when the
doctor should have diagnosed it. Its continuation then
produced its continuation thereafter.”
2.B.39
The question did not arise on Lord Justice Chadwick’s analysis of the subsection, but I find Lord Justice Laws’ reasoning compelling. Moreover the
facts of Derry are indistinguishable from the alleged failures to detect and
treat psychiatric illness; and it would be illogical for the purposes of
section 10(1) to treat the failure to intervene following exposure to
traumatic events before the onset of psychiatric illness in a different
manner to subsequent failures to detect and treat.
2.B.40
I therefore reject the Claimants submission that on the proper construction
and application of section 10(1), the “thing suffered” was “…not suffered
wholly or exclusively (or even mainly) on Crown land or while the
Claimants were on duty”.
2.B.41
Accordingly the MoD is in my judgment immune from action in relation to
acts or omissions unless a Claimant is able to demonstrate that when the
‘thing suffered’ arose he was neither on duty nor “on land, premises, ship,
aircraft or vehicle…used for the purposes of the armed forces of the
Crown.”
2.C.
COMBAT IMMUNITY
2.C.1
As indicated above it is common ground that at common law no duty of
care arises “in a service setting when related to immediate operational
decisions and actions within a theatre of war or analogous situation”, the
combat immunity. But there is an issue as to its ambit.
It is first necessary to consider the historical context, an exercise that was
undertaken by Neill LJ in giving the principal judgment of the Court of
Appeal in Mulcahy v Ministry of Defence [1996] QB 732. Mr Mulcahy
was a serving soldier in an artillery regiment deployed in Saudi Arabia
during the Gulf War. He was part of a team manning a howitzer, and
brought a claim against the defendants alleging that he had suffered
personal injury as a result of the negligence of the gun commander whilst
the gun was firing live rounds into Iraq. The MoD applied to strike out the
claim on the ground that it disclosed no reasonable cause of action. The
application was dismissed on the ground there should be a trial to
determine the facts before the court considered the nature and extent of
any duty of care. The defendants appealed; and the appeal was allowed,
the Court of Appeal holding “…that the pleaded facts clearly established that the
plaintiff was in a war zone taking part in warlike
operations and were sufficient for decision of the
question whether the claim should be struck out; that a
soldier did not owe his fellow soldier a duty of care in
tort when engaging the enemy in battle conditions in the
course of hostilities, nor was there any duty on the
defendants in such a situation to maintain a safe system
of work; that, therefore, the plaintiff did not have a cause
of action in negligence against the defendants; and that,
accordingly, his statement of claim should be struck out
and the action dismissed.” 732H – 733A.
2.C.2
In the course of his judgment Neill LJ considered the historical position of
the Crown with regard to liability in tort. He summarised the position in a
passage beginning at page 740D “Until 1947 actions against the Crown were inhibited by
two principles of ancient though doubtful origin. The
first was that the King could not be impleaded in his own
courts. The effect of the application of this principle was
that until the 19th century proceedings against the Crown,
so far as they were available at all, had to be brought by
various complicated procedures including a petition of
right. These procedures were simplified by the Petitions
of Right Act 1860 (23 & 24 Vict. C.34) and it was held in
Thomas v The Queen (1874) L.R. 10 QB. 31 that
proceedings by way of petition of right were available to
recover unliquidated damages against the Crown for
breach of contract. But proceedings for damages for tort
were inhibited or rather prevented by the application of
the second ancient principle, the principle that the King
could do no wrong. It may be that at one time the maxim
“the King can do no wrong” meant that the King was not
privileged to commit illegal acts, but it came to be
understood to be a rule barring actions in tort against the
Crown…
The consequences of the immunity of the Crown against
proceeding in tort were mitigated by the practice
whereby, for example, if a claim were brought for
damages for negligent driving against a Crown servant
acting in the course of his employment, the Crown, in
what were considered to be appropriate cases, would pay
the damages on an ex gratia basis. But the system
attracted widespread criticism and both Lord Haldane
and Lord Birkenhead made proposals for reform.
Furthermore in Australia and New Zealand the matter
was largely rectified by statute by the beginning of this
century.
The pre-1947 law, however, throws little light on the
rights of servicemen rather than civilians to make claims.
It seems probable that, irrespective of the rule as to
Crown immunity, if one serviceman had made a claim for
damages for personal injuries against another
serviceman the Crown could have resisted liability under
the doctrine of common employment. The researches of
counsel brought to our attention the decision in Weaver v
Ward (1616) Hob. 134 where it was held on demurrer
that an action of trespass would lie if in the course of
military exercises a soldier were injured by another
unless the latter could prove that the injury had been
“utterly without his fault.” But it is clear that the
military exercise was being undertaken in peacetime
conditions.”
2.C.3
Neill LJ then turned to the Crown Proceedings Act 1947 (the ‘1947 Act’)
and recited the material parts of sections 2 and 10. At 742 B he continued
–
It will be seen that the effect of section 10 of the Act of
1947 was to prevent proceedings being brought in
respect of the death of or personal injury to a member of
the armed forces caused by the negligence of another
member of the armed forces provided that the Secretary
of State issued a certificate that the death or injury was
attributable to service for the purposes of entitlement to a
war pension.
The Crown Proceedings (Armed Forces) Act 1987
Few cases involving the operation of section 10 of the Act
of 1947 came before the courts. As time passed, however
there was growing dissatisfaction that section 10 acted as
a bar to claims in tort even in peacetime conditions. A
wide disparity was perceived between the level of
pensions awarded and the sums that would have been
obtained had an action for damages been available. A
further cause for concern was the restricted rights of
dependent parents to make a claim for a war pension.
In 1987 the Crown Proceedings (Armed Forces) Act 1987
was passed to remove the blanket protection of section 10
of the Act of 1947.”
2.C.4
Section 2 of the 1987 Act gave the Secretary of State power to revive the
effect of section 10 of the 1947 Act. Section 2(2) provided that –
“The Secretary of State shall not make an order reviving
the effect of the said section 10 for any purpose unless it
appears to him necessary or expedient to do so –
(a) by reason of any imminent national danger or of any
great emergency that has arisen; or
(b) for the purposes of any warlike operations in any part
of the world outside the United Kingdom or of any other
operations which are or are likely to be carried out in
connection with the warlike activity of any persons in any
such part of the world.”
2.C.5
The Secretary of State has not exercised his powers under section 2 in
relation to the operations the subject of the Group Actions and it is
therefore necessary to necessary to consider the position at common law.
2.C.6
Until the decision in Mulcahy there was no direct English authority to
support
the
existence
of
combat
immunity
at
common
law,
notwithstanding the observation by Lord Walker of Gestingthorpe in his
opinion in Matthews v Ministry of Defence [2003] UKHL 4 that –
“…it (the 1947 Act) left untouched the principle that in
battlefield conditions (and because of the exigencies of
battle) the common law does not impose on any soldier a
duty of care towards his fellow soldiers (see Mulcahy v
Ministry of Defence).”
2.C.7
But the absence of authority is readily explicable. As Sir Iain Glidewell
said in his judgment in Mulcahy –
“ An action in negligence by one member of the armed
forces of the Crown against another would have been
barred by the doctrine of common employment until that
doctrine was abolished by the Law Reform (Personal
Injuries) Act 1948. When that happened the Crown
Proceedings Act 1947 was already in force. Neill LJ has
set out in his judgment the terms of section 10 of that Act.
The terms of that section clearly required the question
posed by Mr Havers (Does one soldier owe to another a
duty of care when engaging the enemy in the course of
hostilities?) to be answered “No”. Thus it was not until
section 10 of the Act of 1947 was itself suspended by
section 1 of the Crown Proceedings Act 1987 that the
answer to the question depended for the first time, on the
general common law principles of the law of negligence.”
2.C.8
In Mulcahy the MoD sought to establish the principle by reference to three
strands of authority, the decisions of the High Court of Australia in Shaw
Savill and Albion Co Ltd v The Commonwealth (1940) 66 C.L.R. 344 and
Groves v Commonwealth of Australia (1982) 150 C.L.R. 113; secondly
the dicta in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75; and
thirdly cases involving injuries to police officers while engaged on
operational duty.
Neill LJ examined each strand in some detail in a
passage beginning at 743G –
“I should refer first to the Shaw Savill case, 66 C.L.R.
344. In that case the plaintiff company sued the
Commonwealth of Australia for damages in consequence
of a collision which occurred between HMAS Adelaide
and a motor vessel owned by the plaintiffs. In the defence
the Commonwealth pleaded that at the time of the
collision and at all material times there existed a state of
war in which the Commonwealth of Australia was
engaged. Paragraph 23 of the defence was in these
terms, at page 348.
“The plaintiff’s supposed cause of action consisted solely
in acts matters and things done or occurring in the
course of active naval operations against the King’s
enemies by the armed forces of the Commonwealth”.
The Commonwealth sought to set the service of the writ
aside or, in the alternative, an order that the action
should be stayed. The High Court refused to dismiss or
stay the action and held that the question whether at the
time of the collision the warship was engaged in active
operations against the enemy was an issue which the
court could decide for itself. In the course of the
judgments, however, consideration was given to whether
a duty of care was owed if the warship had been engaged
on active operations. Dixon J said at pp.361-362:
“Outside a theatre of war, a want of care for the safety of
merchant ships exposes a naval officer navigating a
King’s ship to the same civil liability as if he were in the
merchant service. But, although for acts or omissions
amounting to civil wrongs an officer of the Crown can
derive no protection from the fact that he was acting in
the King's service or even under express command, it is
recognised that, where what is alleged against him is
failure to fulfil an obligation of care, the character in
which he acted, together, no doubt, with the nature of the
duties he was in the course of performing, may determine
the extent of the duty of care…It could hardly be
maintained that during an actual engagement with the
enemy or a pursuit of any of his ships the navigating
officer of a King’s ship of war was under a common law
duty of care to avoid harm to such non-combatant ships
as might appear in the theatre of operations. It cannot be
enough to say that the conflict or pursuit is a
circumstance affecting the reasonableness of the officer’s
conduct as a discharge of the duty of care, though the
duty itself persists. To adopt such a view would mean
that whether the combat be by sea, land or air our men
go into action accompanied by the law of civil
negligence, warning then to be mindful of the person and
property of civilians. It would mean that the courts
would be called upon to say whether the soldier on the
field of battle or the sailor fighting on his ship might
reasonably have been more careful to avoid causing civil
loss or damage. No one can imagine a court undertaking
the trial of such an issue, either during or after a war. To
concede that any civil liability can rest upon a member of
the armed forces for supposedly negligent acts or
omissions in the course of an actual engagement with the
enemy is opposed alike to reason and to policy. But the
principle cannot be limited to the presence of the enemy
or to occasions when contact with the enemy had been
established. Warfare perhaps never did admit of such a
distinction, but now it would be quite absurd. The
development of the speed of ships and the range of guns
were enough to show it to be an impracticable
refinement, but it has been put out of the question by the
bomber, the submarine and the floating mine. The
principle must extend to all active operations against the
enemy. It must cover attack and resistance, advance and
retreat, pursuit and avoidance, reconnaissance and
engagement. But a real distinction does exist between
actual operations against the enemy and other activities
of the combatant services in time of war. For instance, a
warship proceeding to her anchorage or manoeuvring
among other ships in harbour, or acting as a patrol or
even as a convoy must be navigated with due regard to
the safety of other shipping and no reason is apparent for
treating her officers as under no civil duty of care,
remembering always that the standard of care is that
which is reasonable in the circumstances. Thus the
commander of His Majesty’s torpedo-boat destroyer
Hydra was held liable for a collision of his ship with a
merchant ship in the English Channel on the night of 11
February 1917, because he failed to perceive that the
other ship, which showed him a light, was approaching
on a crossing course… obviously the Hydra was on active
service and war conditions obtained H.M.S. Hydra
[1918] P.78). It may not be easy under conditions of
modern warfare to say in a given case upon which side of
the line it falls. But, when, in an action of negligence
against the Crown or a member of the armed forces of the
Crown, it is made to appear to the court that the matters
complained of formed part of, or an incident in, active
naval or military operations against the enemy, then in
my opinion the action must fail on the ground that, while
in the course of actually operating against the enemy, the
forces of the Crown are under no duty of care to avoid
causing loss or damage to private individuals.”
Rich A.C.J. and McTiernan J. agreed with the judgment
of Dixon J. Starke J. and Williams J. concurred in the
result. Starke J. said, at pp355-356:
“there is no doubt that the executive government and its
officers must conduct operations of war, whether naval,
military, or in the air, without the control or interference
of the courts of law. Acts done in the course of such
operations are not justiciable and the courts of law
cannot take congizance of them. In my judgment, the
case of Ex parte D.F. Marais [1902] A.C. 109 so
decided.”
Williams J. reached a similar conclusion. He too
referred to Ex parte D.F. Marais [1902] A.C. 109 and
said, at p. 336, that if it were proved that actual
hostilities were in progress at the time “the alleged cause
of action would not be justiciable.”
It is apparent from the later decision of the High Court of
Australia in the Groves case, 150 C.L.R. 113 that when
the claim by Shaw Savill came to trial the action
succeeded on the ground that the captain of the Adelaide
had steered a wrong course: see 150 C.L.R. 113, 123.
Presumably the trial judge found that at the material time
the warship was not engaged in actual operations against
the enemy. But Gibbs C.J. , at p. 117, affirmed as correct
what had been said by Dixon J. in the Shaw Savill case,
66 C.L.R. 344. Gibbs J. added: “To hold that there is no
civil liability for injury caused by the negligence of
persons in the course of an actual engagement with the
enemy seems to me to accord with common sense and
sound policy.”
The plaintiff in the Groves case, 150 C.L.R. 113, was an
airman in the R.A.A.F. who was injured when leaving a
stationary aircraft being used to transport civilians in a
time of peace. The accident occurred when a folding
ladder collapsed beneath him as a result of the absence
of locking pins. The High Court held that as the case
arose out of routine duties in time of peace the plaintiff
was entitled to the same protection of the common law as
would protect other members of the community, and that
the Commonwealth were vicariously liable for the
negligence of other members of the crew. In a joint
judgment of four members of the court led by Stephen J.
references were made to the Shaw Savill decision, 66
C.L.R. 344. As I read the judgment, however, the support
given to Shaw Savill was less emphatic than in the
judgment of Gibbs C.J. It was said, at p.134:
“Nor do we have occasion to consider the position of
servicemen engaged in combatant activities in time of
war or in training for such activities. It would not be
wise, in the abstract, to attempt to mark out whatever line
may be thought to exist between one act of military duty
and another. Public policy may require that, at some
point in the continuum from civilian-like activities
performed by servicemen in peacetime to active service in
wartime, what would otherwise involve actionable
negligence should not give rise to a cause of action. If
so, the definition of liability would seem to be preeminently a case for legislation, preceded by evaluation
and report by law reform agencies.”
On the other hand in other passages in the judgment, at
p. 12, and in the judgment of Murphy J., at p.136, there
seems to have been a recognition of the fact that warlike
activities fell into a special category. Looking at the case
as a whole I do not consider that it throws any doubt on
the proposition affirmed in the Shaw Savill case, 66
C.L.R. 344 that no duty exist where a serviceman is
engaged in actual operations against the enemy.
Counsel for the defendants also referred us to the
decision in Burmah Oil Co. Ltd v Lord Advocate [1965]
A.C.75. In that case installations belonging to the
appellant companies near Rangoon had been destroyed
by the army in order to prevent them falling into the
hands of the enemy. It was held that as the demolitions
had taken place otherwise than in the course of actual
military operations compensation was payable. The
speech of Lord Reid contains an interesting account of
the general rule that where property was taken or
destroyed in the exercise of the Royal prerogative
compensation was payable. But Lord Reid recognised
the exception of what had been called “battle damage”.
He said, at p.110
“Such damage must include both accidental and
deliberate damage done in the course of fighting
operations. It cannot matter whether the damage was
unintentional or done by our artillery or aircraft to
dislodge the enemy or by the enemy to dislodge our
troops. And the same must apply to destruction of a
building or a bridge before the enemy actually capture it.
Moreover, it would be absurd if the right to compensation
for such a building or bridge depended on how near the
enemy were when it was destroyed.”
In the House of Lords the decision of the First Division of
the Court of Session was reversed by a majority on the
basis that the destruction of the installations was not so
intimately tied up with the actual fighting as to be
regarded as battle damage. It seems quite plain,
however, that Lord Reid would have upheld the decision
if he had reached the same conclusion as the Court of
Session on the facts.
Lord Pearce adopted a similar approach to that of Lord
Reid. He said, at p.162
“In respect of a house that has the misfortune to be in the
centre of a battlefield and is inevitably demolished by the
Crown’s artillery, it is clear, on the principles which have
been almost unanimously set out, that the subject can
have no claim. In respect of a house that is demolished
by the Crown with wise forethought, long before any
battle, to provide a fort or a clear field of fire in case of
threatened invasion I think that is equally clear that the
subject should obtain compensation. Cases which lie
close to that line, wherever it be drawn, must depend on
fact and degree… I would define the line as excluding
damage done in the battle or for the necessities of the
battle. If an evacuating army destroys as it goes, I would
exclude from compensation any damage which it does for
the purposes of its survival, for example, by destruction of
ammunition which will be turned against it by the enemy,
or petrol which would be sued by the enemy to pursue it,
or food which will sustain the enemy during their attacks
upon it.”
It is to be noted that, at p. 169B. Lord Upjohn too
recognised the distinction between the taking of property
to prevent it being of use to the enemy and the destruction
of property caused by artillery in, for example, retaking a
town from the enemy. The House accepted that the
relevant law was the law of Burma but the case was
decided on the basis that the law of Burma in 1941 had to
be assumed to be the same as the law of England.
It was therefore submitted in this court that the decision
in the Burmah Oil case, though it was concerned with
compensation for loss of property, was some support for
the proposition that a claim could not be based on
damage sustained in the course of military operation
against the enemy.
The third strand of authority relied upon by the
defendants related to actions against the police. In
particular, our attention was directed to the decision of
May J. in Hughes v National Union of Mineworkers
[1991] I.C.R. 669. In that case the plaintiff, who was a
police officer, was injured during disturbances at a
colliery in North Yorkshire in 1984. The plaintiff brought
an action against the union and also against the Chief
Constable or the North Yorkshire Police. He alleged that
there had been a failure to provide him with adequate
protection, that there had been inadequate co-ordination
of the police forces available and that he had been
exposed to the risk of injury. On the application by the
Chief Constable to strike the action out the judge referred
to a number of cases involving the police including Hill v
Chief Constable of West Yorkshire [1989] A.C. 53.
Having considered these authorities the judge expressed
his conclusion, at p. 680:
“In my judgment … as a matter of public policy, if senior
police officers charged with the task of deploying what
may or may not be an adequate force of officers to
control serious public disorder are to be potentially
liable to individual officers under their command if those
individuals are injured by attacks from rioters that would,
in my judgment, be significantly detrimental to the
control of public order. It will no doubt often happen
that in such circumstances critical decisions have to
made with little or no time for considered thought and
where many individual officers may be in some danger of
physical injury of one kind or another. It is not, I
consider, in the public interest that those decisions should
generally be the potential target of a negligence claim if
rioters do injure an individual officer, since the fear of
such a claim would be likely to affect the decisions to the
prejudice of the very tasks which the decisions are
intended to advance.”
It was said that the Hughes case was another illustration
of the rule that in what may be called “battle conditions”
those who take part in an attempt to control events should
not be made liable for damages in civil proceedings.”
2.C.9
Neill L.J. set out his conclusions at 748 G –
“In my judgment the circumstances in which the plaintiff
was injured clearly constituted “battle conditions” in the
sense contemplated by Lord Reid, Lord Pearce and Lord
Upjohn in the Burmah Oil case [1965] A.C. 75.
Furthermore, I consider that an English court should
approach this claim in the same way as the High Court of
Australia in the Shaw Savill case, 66 C.L.R. 344.…As I
said earlier, I do not find it necessary to explore the
territorial limits of this immunity. It is sufficient to say
that in my view it covers the present situation where in
the course of hostilities against an enemy a howitzer of
the plaintiff’s battalion was engaging the enemy and the
plaintiff was a member of the gun team.
In addition it may be helpful if I state what my conclusion
would be even in the absence of the Australian decisions
and the Burmah Oil case [1965] A.C. 75. It is true that
the Secretary of State, by exercising his powers under
section 2 of the Act of 1987 could have reintroduced the
immunity conferred by section 10 of the Act of 1947. But,
in the absence of this statutory protection one still has to
consider the position at common law. It is therefore
necessary to consider whether at the relevant time
Sergeant Warren owed a duty of care to the plaintiff at
common law.
In Marc Rich and Co. A.G. v Bishop Rock Marine Co. Ltd
[1996] 1 A.C. 211, 235, Lord Steyn drew attention to the
fact that since the decision in Dorset Yacht Co. Ltd v
Home Office [1970] A.C. 1004 it has been settled law
that the elements of foreseeability and proximity as well
as considerations of fairness, justice and reasonableness
are relevant to all cases of alleged negligence whatever
the nature of the harm sustained by the plaintiff.
In the present case it is accepted on behalf of the
defendants that two of these components of a duty of care
- proximity and foreseeability of damage – are present.
The issue to be determined is whether it is fair, just and
reasonable that a duty of care should be imposed on one
soldier in his conduct towards another when engaging
the enemy during hostilities. In the light of recent
amendment to the plaintiff’s pleading the same question
has to be asked in relation the alleged duty to maintain a
safe system of work.
It is plain from the decision of the House of Lords in the
Marc Rich case [1996] 1 A.C. 211 that in order to decide
whether it is fair, just and reasonable to impose a duty of
care one must consider all the circumstances including
the position and role of the alleged tortfeasor and any
relevant policy considerations. In this context one should
bear in mind the dictum of Lord Pearce in Hedley Byrne
and Co. Ltd v Heller and Partners Ltd [1964] A.C.465,
536: “How wide the sphere of the duty of care in
negligence is to be laid depends ultimately upon the
courts’ assessment of the demands of society for
protection from the carelessness of others.” This dictum
was cited by Lord Diplock in the Dorset Yacht case
[1970] A.C. 1004, 1058. In the absence of legislative
guidance the question of policy has to be resolved by the
courts.
I am satisfied that in a hypothetical case a court would
require proof that the injury was sustained in battle
conditions. But here, as it seems to me, the plaintiff’s
pleaded case makes the position clear. The question then
becomes: “Is a duty of care to be imposed in such
conditions so as to make one serviceman liable for his
negligent act towards another?” In my opinion, despite
the careful arguments addressed to us on behalf of the
plaintiff, there is no basis for extending the scope of the
duty of care so far. I would echo the words of Gibbs C.J.
in the Groves case, 150 C.L.R. 113,117: “To hold that
there is no civil liability for injury caused by the
negligence of persons in the course of an actual
engagement with the enemy seems to me to accord with
common sense and sound policy.” …In my opinion there
was no duty on the defendants in these battle conditions
to maintain a safe system of work.”
2.C.10
Sir Iain Glidewell gave a concurring judgment in which he said at 750G –
751 B –
“Like Neill L.J. it is in my judgment clear that public
policy does require that, when two or more members of
the armed forces of the Crown are engaged in the course
of hostilities, one is under no duty of care in tort to
another. Indeed it could by highly detrimental to the
conduct of military operations if each soldier had to be
conscious that, even in the heat of battle, he owed such a
duty to his comrade. My reasons are thus in essence
those expressed by Dixon J. in the passage from his
judgment in Shaw Savill and Albion Co. Ltd v The
Commonwealth, 66 C.L.R. 344 which Neill L.J. has
quoted. If during the course of hostilities no duty of care
is owed by a member of the armed forces to civilians or
their property, it must be even more apparent that no
such duty is owed to another member of the armed forces.
This conclusion is wholly consistent with, and supported
by, the decision of the House of Lords in Burmah Oil co
Ltd. v Lord Advocate [1965] A.C. 75, and depends upon
similar reasoning to that adopted by May J. in relation to
police officers in Hughes v National Union of
Mineworkers [1991] 1 C.R. 669. In my judgment,
therefore, at common law, one soldier does not owe to
another a duty of care when engaging the enemy in the
course of hostilities.”
2.C.11
It is to be noted that neither Neill LJ nor Sir Iain Glidewell sought to
define the parameters of the immunity. It was not necessary for them to do
so as at the material time Mr Mulcahy was part of a gun crew firing live
rounds at the Iraqi enemy. The circumstances in which he was injured
unquestionably constituted “battle conditions” in the sense contemplated
by Lord Reid, Lord Pearce and Lord Upjohn in the Burmah Oil case. But
the extent or ambit of the immunity is of central importance in this
litigation as is readily apparent from a cursory consideration of some of the
issues that arise in relation to the Falklands War. Three illustrations will
suffice. The MoD are criticised for failing to make provision for forward
psychiatry in the Falklands campaign. The Claimants contend that Field
Psychiatric Units (FPUs) ought to have been deployed. The decision not to
deploy such units, or, if it be the case, the failure to address the question of
whether to deploy such units, were acts or omissions on the part of those
responsible for assembling the task force. It is submitted on behalf of the
MoD that the relevant decisions were made or at least influenced by the
operational and logistical considerations inherent in mounting an
amphibious invasion of heavily defended territory approximately 8000
miles from the United Kingdom. Does combat immunity apply to such
decisions?
Secondly criticism is made of the failure to brief troops
adequately en route to the Falkland Islands. Do such alleged breaches of
duty fall within the ambit of combat immunity?
If it did not apply
throughout the voyage, did there come a time when it did, eg when the
troop ships came within range of the Argentine air force? Thirdly it is the
Claimants’ case that the MoD was in breach of duty in failing to carry out
operational debriefing “at the earliest reasonable opportunity whether in a
lull during battle, following battle, campaign, attack or patrol”; and that
combat immunity does not apply to such periods, a contention with which
the MoD takes issue.
2.C.12
The basis of combat immunity emerges clearly from the judgments in
Mulcahy and from the authorities cited with approval by Neill LJ, in
particular the decision of the High Court of Australia in Shaw Savill. In
the course of hostilities service personnel will be exposed to the risk of
death and of injury, both physical and psychological. That is the nature of
warfare.
But the welfare of the soldier, sailor or airman must be
subordinated to their combat role. The military objective must override
the interests of the individual. As Dixon J said in Shaw Savill –
“To concede that any civil liability can rest upon a
member of the armed forces for supposedly negligent acts
or omissions in the course of an actual engagement with
the enemy is opposed alike to reason and to policy.” Per
Dixon J in Shaw Savill.
“…there is no doubt that the executive government and
its officers must conduct operations of war, whether
naval, military or in the air, without the control or
interference of the courts of law.” Per Starke J in Shaw
Savill
2.C.13
What then is the scope of combat immunity? It should of course be no
wider than is necessary. It plainly applies when service personnel are
engaged with the enemy in the course of hostilities. Given the nature of
modern warfare, which may be conducted at a considerable distance from
the enemy, Dixon J was in my judgment correct in holding in Shaw Savill
that –
“The principle must extend to all active operations
against the enemy. It must cover attack and resistance,
advance and retreat, pursuit and avoidance,
reconnaissance and engagement."
2.C.14
Does the immunity extend to acts or omissions in the course of planning
and preparation for operations in which service personnel may engage in
hostilities? Where is the line to be drawn? Some assistance is to be
derived from the decision of the House of Lords in Burmah Oil to which
Neill LJ made extensive reference in Mulcahy, and in particular to the
passage from the speech of Lord Pearce at p162. The decision in Burmah
Oil was concerned with damage to property, the destruction of installations
near Rangoon to prevent them falling into enemy hands in the course of
the Second World War. The House of Lords held that the destruction of
the installations was not so intimately tied up with the actual fighting as to
be regarded as battle damage. Lord Pearce posed the question of where
the line was to be drawn –
“Cases which lie close to that line, wherever it be drawn,
must depend on fact and degree…..I would define the line
as excluding damage done in battle or for the necessities
of battle.”
2.C.15
As Dixon J said in Shaw Savill in the passage cited by Neill LJ in Mulcahy
–
“… a real distinction does exist between actual
operations against the enemy and other activities of the
combatant services in time of war.”
2.C.16
In aggressive operations the objective will be defeat of the enemy; in
defensive operations the successful repulse of the enemy. In the planning
of and preparation for such operations the interests of service personnel
must be subordinate to the attainment of the military objective. In my
judgment 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. The planning of and preparation for military
operations will include decisions as to the deployment of resources.
2.C.17
Does the immunity apply to anti-terrorist, policing and peace keeping
operations of the kind in which British forces were engaged in Northern
Ireland and in Bosnia? In my judgment it will apply to operations in
which service personnel come under attack or the threat of attack. I derive
support for that proposition from the judgment of May J in Hughes v
National Union of Mineworkers [1991] I.C.R. 669, cited with approval by
Neill LJ in Mulcahy. Mr Hughes was a police officer who was posted to a
support unit whose role was to assist in the maintenance of public order at
a colliery where mineworkers on strike were picketing working miners.
He formed part of the front line of police officers outside the colliery
entrance, and was injured when a large number of pickets surged forward
knocking him to the ground. He brought an action inter alia against the
Chief Constable of North Yorkshire for negligence in “causing, permitting
or requiring the plaintiff to take up an unsupported and unprotected
position; failing to implement proper riot control and exercise proper coordination and in all the circumstances failing to operate a safe system of
work”. The Chief Constable applied to have the proceedings struck out as
disclosing no reasonable cause of action. The district registrar dismissed
the application. May J upheld an appeal by the Chief Constable. At the
conclusion of his judgment he said –
“In my judgment, having considered Hill v Chief
Constable of West Yorkshire [1989] AC 53 on the one
hand and Knightly v Johns [1982] 1 WLR 349 and Rigby
v Chief Constable of Northamptonshire [1985] 1 WLR
1242 on the other, as a matter of public policy, if senior
police officers charged with the task of deploying what
may or may not be an adequate force of officers to
control serious public disorder are to be potentially
liable to individual officers under their command if those
individuals are injured by attacks from rioters that would,
in my judgment, be significantly detrimental to the
control of public order.
It will no doubt often happened that in such
circumstances critical decisions have to be made with
little or no time for considered thought and where many
individual officers may be in some danger of physical
injury of one kind or another. It is not, I consider, in the
public interest that those decisions should generally be
the potential target of a negligence claim if rioters do
injure an individual officer, since the fear of such a claim
would be likely to affect the decisions to the prejudice of
a very task which the decisions are intended to advance.
Accordingly, in my judgment, public policy requires that
senior police officers should not generally be liable to
their subordinates who may be injured by rioters or the
like for on the spot operational decisions taken in the
course of attempts to control serious public disorder.
That, in my judgment, should be the general rule in cases
of policing serious public disorders.”
2.C.18
In this context there is a further important issue between the parties. It is
submitted on behalf of the MoD that –
“Claims for personal injuries sustained in combat are not
justiciable and so compensation for damage suffered
during combat is not recoverable.”
It is implicit in that submission that no cause of action can arise in relation
to injury sustained in combat irrespective of whether the acts or omissions
to which such injury is attributable fall within the combat immunity. In
my judgment that submission is misconceived, and confuses the issue of
the existence of the duty of care with the causation of injury. The issue is
whether the MoD is under a duty of care in a particular set of
circumstances. If the restriction to the duty of care does not arise on the
facts, and a Claimant is able to demonstrate breach of duty resulting in
injury and consequential loss and damage, it is immaterial that the injury
was sustained in the course of combat. The question with regard to the
injury is then simply one of causation; is it attributable to the breach of
duty? The point can be illustrated by reference to the Claimants’
contention that the MoD was under a duty to devise and implement a
system for screening recruits so as, and I paraphrase, to eliminate those
vulnerable to stress, and that as a result of breach of that duty recruits who
should have been rejected were enlisted, and subsequently sustained
psychiatric injury when exposed to the trauma of battle. If that contention
is well founded, it will obviously not be open to the MoD to argue that the
combat immunity applies to the relevant acts or omissions. The injury will
have been sustained in combat; but the exposure to stress in combat is
simply the mechanism by which the breach causes injury.
2.C.19
I therefore see no basis for holding that as a matter of principle all claims
for personal injuries sustained in combat are not justiciable. Nor do I find
support for the proposition in the authorities upon which the MoD sought
to place reliance. D.F.Marais v The General Officer Commanding the
Lines of Communication and the Attorney-General of the Colony ex p.
Marais [1902] AC 109 is simply authority for the proposition that “Where
actual war is raging, acts done by the military authorities are not
justiciable by the ordinary tribunals.” In Burmah Oil Co v Lord Advocate
[1965] AC 75 the House of Lords was concerned with the issue of
compensation for the destruction of oil installations. It was held that (per
the headnote at p 76) –
The taking or the destruction of property in the course of
actually fighting the enemy does not give rise to any
claim for compensation, but these demolitions did not fall
under the head of battle damage, because, although the
enemy was approaching, they did not arise out of the
military operations.”
The distinction drawn by the majority in the House between battle damage
and damage that did not arise out of military operations, does not bear on
the issue of the recoverability of damages at common law for injury
sustained in the course of combat, but attributable to breach of duty not
occurring in combat.
2.C.20
Accordingly in my judgment the application of the immunity can be
resolved by reference to the following propositions.
1. A soldier does not owe a fellow soldier a duty of care in tort when
either (one or other or both) are engaged with an enemy in the course of
combat.
2. The MoD is not under a duty to maintain a safe system of work for
service personnel engaged with an enemy in the course of combat.
3. In relation to both (1) and (2) the term combat has an extended meaning
in thata. the immunity is not limited to the presence of the enemy or the
occasions when contact with the enemy has been established.
It
extends to all active operations against the enemy in which service
personnel are exposed to attack or the threat of attack. It covers attack
and resistance, advance and retreat, pursuit and avoidance,
reconnaissance and engagement.
b.
the immunity extends to the planning of and preparation for
operations in which the armed forces may come under attack or meet
armed resistance.
c. the immunity will apply to peace-keeping/policing operations in
which service personnel are exposed to attack or the threat of attack.
2.D.
STANDARD OF CARE
2.D.1
In considering the standard of care a distinction has to be drawn between
the duty owed by the MoD to service personnel as their employer, and the
duty owed by the MoD as the provider of general and specialist medical
services. As to the former it is common ground that the defendants owed a
duty of care to their service personnel to provide a safe system of work so
far as was reasonable and practicable in all the material circumstances. It
is not asserted on behalf of the MoD that it did not have the resources to
take any of the steps for which the Claimants contend. Accordingly the
complex issues as to the allocation of limited resources addressed by the
Court of Appeal in R v Cambridge Health Authority ex parte B [1995] 1
WLR 898 do not arise.
2.D.2
With regard to the duty owed by the MoD to service personnel as the
provider of general and specialist medical services, it is common ground
that where there is an issue as to the care provided for an individual
serviceman or woman by a doctor or nurse in a clinical or therapeutic
setting, then the test propounded in Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582 and Bolitho v City and Hackney Health
Authority [1998] AC 232, will apply. In Bolam McNair J formulated the
test in the following terms –
“I myself would prefer to put it this way, that he is not
guilty of negligence if he has acted in accordance with a
practice accepted as proper by a reasonable body of
medical men skilled in that particular art…Putting it the
other way round, a man is not negligent, if he is acting in
accordance with such a practice, merely because there is
a body of opinion who would take a contrary view. p 587
2.D.3
In Bolitho Lord Browne-Wilkinson made it clear that in applying the
Bolam test –
“The use of these adjectives – responsible, reasonable
and respectable – all show that the court has to be
satisfied that the exponents of the body of opinion relied
upon can demonstrate that such opinion has a logical
basis. In particular in cases involving, as they often do,
the weighing of risks against benefits, the judge before
accepting a body of opinion as being responsible,
reasonable or respectable, will need to be satisfied that,
in forming their views, the experts have directed their
minds to the question of comparative risks and benefits
and have reached a defensible conclusion on the matter.”
241H – 242B.
2.D.4
The practice of medicine in a military environment is similar but not
identical to civilian practice.
It follows that although the acceptable
standard of civilian psychiatric or primary health care may be relevant to
the question of whether a military medical officer (MO), psychiatrist or
nurse was negligent, it is not determinative. For the purposes of the Bolam
test, the appropriate comparison is with the standard accepted by a
reasonable and responsible body of military MOs, psychiatrists or nurses.
That formulation takes account of any additional training or instruction
given to doctors or nurses practising in the military environment.
2.D.5
Where an issue arises as to specialist psychiatric advice given by a
psychiatrist to the MoD, for example by Brigadier Abraham as Director of
Army Psychiatry to the Director General of Army Medical Services
(DGAMS), the test is whether such advice fell below the standard accepted
by a reasonable and responsible body of military psychiatric opinion. The
application of that test will involve consideration of a number of factors, in
particular whether the advice had a logical basis, whether it showed a
proper weighing of risks against benefits, and the strength of the evidential
basis both for the advice given and for the advice that it is submitted ought
to have been given.
2.D.6
It is submitted on behalf of the Claimants that “in the context of service
personnel and their families a reasonable standard of care necessarily
imports a high practical standard of care as an obligation – higher than
might be the case in other situations” (C8 of the re-amended generic
statement of case.) A number of reasons are advanced as to why the
reasonable standard of care necessarily imports a high practical standard. –
“C8 (a) The defendants have a uniquely high degree of
control over service personnel, both as to their daily life
and as to their health care.
(i) Queens Regulations state at 3.001 [909]:
“Common to all levels of command from independent
sub-units upwards is the responsibility of the commander
for
a) The command, training, security, discipline, education,
health, welfare, moral and general efficiency of the
troops under their command”
(ii) Regulations for the Army Medical Services, published
by the defendant in May 1975 [5726] state that the Senior
Consultant in Psychiatry (or Area of Divisional
Psychiatrist) should inter alia:
“…Liaise with Army preventative medicine specialist to
assist in the maintenance of optimum physical and mental
health within the area.
…Be available to give advice to staff officers and
commanding officers on the psychological problems of
discipline, morale and welfare
…Visit units within the area…to ascertain that all unit
officers and NCO’s have some instruction in emergency
first aid for psychiatric battle casualties”
(b) Service personnel are often young and inexperienced.
(c) There are special pressures in service life, even short
of battle itself. The turbulence, the need to make new
friends quickly on short tours, the periods of confinement
in hostile surroundings, the alternation between periods
of danger with periods of inactivity and boredom,
language and cultural barriers overseas, and the periods
of separation from families all create the requirement for
high
levels
of
supervision,
support
and
psychiatric/psychological care.
(d) In battle unimagined stress is a certainty. Battle
generates death and physical injury. The more noise,
stench, blast, terror, death and destruction that are
crammed into narrow confines of space and time, the
higher will be the psychiatric casualty rate. The risk of
psychiatric injury in battle is not merely a foreseeable
one but of the highest order.
(e) Gross impoverishment of life in the various forms of
chronic and sometime life-long Post Traumatic Disorder,
with depression, substance abuse, loss of family
relationships and the ability to work, is consequence of
stress in combat or conflict if left unaddressed. The risk
is one of serious psychiatric illness/disorder by any
criteria.
(f) In battle it is in the overwhelming interest of the
Armed Forces and the comrades of any individual
serviceman or woman that he or she is prevented, where
possible, from breaking down and, if not, treated and
returned to active duty as quickly as possible. Service
personnel are the prime resource. Unit morale and
cohesion are paramount.
(g) In time of peace, unit morale and cohesion remain
paramount considerations as the best conditioning and
preparation for battle. Again it is in the overwhelming
interest of everyone that experienced and expensively
trained personnel are not lost to service life through Post
Traumatic Disorder.
(h) It is in the overwhelming interest of the Armed Forces
and comrades that any individual is temperamentally
stable and able to withstand the stresses of battle and
service life. Soldiers, sailors and aircrew disordered
through stress represent particular risks to themselves, to
comrades and to others generally. They are often armed,
trained to fight and to be aggressive. They represent a
potential danger to comrades – and sometimes to the
public – in combat, in an active peacekeeping role, when
acting in support of the civil power in Northern Ireland
or elsewhere, or during the necessarily risky exercise of
training.
(i) Service personnel discharged while suffering from
undiagnosed or untreated Post Traumatic Disorder
represent potentially a danger, to themselves and to
others, a drain on the public purse and a liability to
society.
(j) The cost of taking precautions is negligible when
compared with the cost of going to war, the sacrifice of
the personnel and the legacy of the stress of combat if left
unaddressed.”
3.D.7
It is submitted on behalf of the Defendant that the submission that a
reasonable standard of care necessarily imports a higher standard than
would normally be the case is misconceived. I agree. The concept of a
higher standard of care has no basis in authority, and is potentially
misleading. The law was succinctly summarised by Swanwick J in Stokes
v Guest Keen & Nettlefold (Bolts and Nuts) Limited [1968] 1 WLR 1776
at 1783, cited with approval in Joseph v MoD (1980) Times 4 March CA,
White v Holbrook Precision (Castings) Ltd [1985] IRLR 215 CA and in
Sutherland v Hatton Neutral Citation Number [2002] EWCA Civ 76,
[2002] IRLR 263 –
“The overall test is still the conduct of the reasonable
and prudent employer, taking positive thought for the
safety of his workers in the light of what he knows or
ought to know; where there is a recognised and general
practice which has been followed for a substantial period
in similar circumstances without mishap, he is entitled to
follow it, unless in the light of commonsense or newer
knowledge it is clearly bad; but, where there is
developing knowledge, he must keep reasonably abreast
of it and not be too slow to apply it; and where he has in
fact greater than average knowledge of the risks, he may
be thereby obliged to take more than the average or
standard precautions. He must weigh up the risk in
terms of the likelihood of injury occurring and the
potential consequences if it does; and he must balance
against this the probable effectiveness of the precautions
that can be taken to meet it and the expense and
inconvenience they involve. If he is found to have fallen
below the standard to be properly expected of a
reasonable and prudent employer in these respects, he is
negligent.”
2.D.8
Furthermore the Claimants’ reliance upon the existence and content of the
Queen’s Regulations in support of their argument is misplaced.
As
Beldam LJ made clear in Barrett v Ministry of Defence [1955] 1 WLR
1217 –
“In my view the judge was wrong to equate Queen's
Regulations and standing orders with guidance given in
the Highway Code or in pamphlets relating to safety in
factories. The purpose of Queen's Regulations and
standing orders is to preserve good order and discipline
in the service and to ensure that personnel remain fit for
duty and while on duty obey commands and off duty do
not misbehave, bringing the service into disrepute. All
regulations which encourage self-discipline, if obeyed,
will incidentally encourage service personnel to take
greater pride in their own behaviour but in no sense are
the Regulations and orders intended to lay down
standards or to give advice in the exercise of reasonable
care for the safety of men when off duty drinking in
bars”.
2.D.9
The matters relied upon by the Claimants do not import a higher standard
of care, but are material circumstances to be taken into account and given
the weight properly to be attached to them in setting the standard of care
reasonably to be expected of the MoD.
IN THE SOUTHAMPTON COUNTY COURT
Before Mr Recorder Stuart-Smith QC
BETWEEN:CRAIG PORTER
-andMINISTRY OF DEFENCE
Claim No. 4MA 03520
Claimant
Defendant
Judgment
Introduction
1.
On 13 April 2002 the Claimant was a 22 year old Sapper serving with the 38th
Engineering Regiment at Westdown Camp, Tilshead. On that date he suffered a
serious crush injury to his left hand. On 17 February 2004 he issued
proceedings alleging that his accident was caused by negligence and breach of
statutory duty on the part of the Ministry of Defence, its servants or agents. On
27 April 2004 the Defendant served a Defence which put liability in issue and
alleged contributory negligence on the part of the Claimant. However, liability
was subsequently admitted and the allegations of contributory negligence were
withdrawn in April 2005. Accordingly, the only remaining issues for
determination at the trial which was held on 6 and 7 July 2005 were issues of
quantum. This judgment addresses those issues.
2.
Although agreement has been reached on some heads of claim, fundamental
issues of fact remain to be determined. At the heart of the dispute is a
disagreement about what the Claimant’s career path would have been if the
accident had not happened; and what it will be given that it has. The Claimant’s
case is that he would have remained in the army and made steady progress
through the ranks until April 2022 by which time he would have achieved the
rank of Warrant Officer II, while the Defendant’s case is that he would have left
the service in or about 2003 (i.e. after less than 3 years service) in order to
pursue a civilian career. On the latter point, there is a dispute about whether the
Claimant will remain at or about the level of employment which he has
achieved thus far, or whether he will retrain and make his way into more
satisfying and lucrative employment.
3.
Resolution of these issues depends primarily upon an assessment of the
Claimant as he is now and as he was before the accident. When assessing the
Claimant as he was before the accident, the Court must be careful not to see his
pre-accident world through unduly rose-tinted spectacles. The assessment of
the Claimant after the accident and for the future is made more difficult by the
fact that the trauma and severity of the accident caused him to suffer significant
psychological injury in addition to his physical injuries. The effect of the
psychological injury has been to rock his confidence to such an extent that he
now doubts his own ability to embark upon a more demanding career even if,
viewed objectively, he would be capable of doing so. In June 2004 Dr Austin
Tate, a consultant psychiatrist, recommended that the Claimant should undergo
treatment which should reduce the continuing incapacity which is attributable to
his psychological injury. It is a regrettable feature of the case that an interim
1
payment to assist in funding such treatment has only recently been made, so that
the treatment has not yet been undertaken. Thus one of the tasks which the
Court has to undertake is to assess the extent to which a reduction of his
psychologically-based incapacity will enable him to adopt a more positive
approach to the rest of his working life.
The Claimant Before The Accident
4.
The claimant was born on 3 November 1980 into a family with a strong
tradition of military service. His father joined the army in 1968 at the age of 18
and served for 22 years, initially as a Fusilier and subsequently in the Royal
Ordinance Corps. He left school with no qualifications but became a noncommissioned officer of the highest order. He was promoted to Lance Corporal
in late 1970 and to Corporal in 1975. Thereafter he was promoted to Sergeant
in 1977, Staff Sergeant in 1979, Warrant Officer Class II in 1984 and Warrant
Officer Class I in 1986, after 18 years service. For one year before leaving the
army he held the appointment of Conductor. This is a prestigious appointment:
it is the highest non-commissioned appointment and there are only 25
Conductors at any one time in the entire army. It is therefore apparent that he
was an exceptional soldier. Two other features of his career are, however,
relevant. First, it is clear on the evidence that, in retrospect, both he and his son
regret the fact that he did not obtain a commission. Second, when he left the
army he had difficulty in obtaining employment despite his distinguished
record. This was not least because his army career had not equipped him with a
readily transferable trade.
5.
The Claimant’s mother was a nurse in the Nursing Corps and served until she
became pregnant at which point she was discharged, as was the custom of the
day. She has continued to serve the community in civilian life and is now a
psychiatric nurse. Although there was no formal evidence about the details of
his career, I was told without objection being taken that her brother, the
Claimant’s Uncle, served in the Royal Dental Corps for 22 years, achieving the
rank of Warrant Officer II. Similarly I was told that their father, the Claimant’s
maternal grandfather, served in the Navy. He went to sea at the age of 14,
served throughout the war without being sunk and that he continued to serve to
the age of 40, emerging as Yeoman of Signals.
6.
The practical effect of this for the Claimant was that he grew up fully familiar
with army life, living in army accommodation and enjoying travel to other parts
of the world. He said, and I accept, that he had a happy childhood. He
described his upbringing as adventurous and easy: he felt safe and did what he
wanted. That said, he recognised the difficulties that his father had experienced
on being discharged after many years of service. As his father put it, being with
him the Claimant saw what went on, good and bad.
7.
The Claimant was not a distinguished scholar, but he achieved 6 GCSEs with a
mixture of C and D grades in 1997. He was a keen footballer. His father
described him as a committed sort of person who always wanted to lead and
who had shown his commitment by joining the Cubs and Scouts. I accept that
general description which is consistent with the evidence of the Claimant and
what I saw of the Claimant when he gave evidence in the witness box. On
2
leaving school at the age of 16 he went to college to study the relatively nonacademic subjects of Sport and Geography. However, he found that this was
not what he wanted to do and so he left and started on a pipe-fitting and
plumbing apprenticeship. Then, at the age of 19, he applied to join the army.
The documents disclose that he first applied to enlist in early 1999. He was
interviewed and the recruiters’ notes [2/698] show that the recruiters thought he
was a promising candidate. However, he failed the medical and was deferred
for 6 months because of a problem with his right knee [2/734-739, 711]. When
he reapplied he was accepted.
8.
It is plain that a number of reasons contributed to his decision to enlist. I accept
his evidence that he did not want to remain in Southampton for the rest of his
life and that he wanted to travel. However, the evidence establishes that the
break-up of his parents’ marriage loomed large and influenced his decision to
join at that time. The Claimant now believes that he was always destined to join
the army. Given his background that is an understandable belief, and I have no
doubt that his decision was made easier by his upbringing and by the fact that he
had a number of close friends who had already joined the army. Whatever the
precise combination of reasons, he joined in April 2000; and he showed a
measure of determination by persisting with his application after he had been
refused entry on the first occasion. In addition, he deliberately chose to go to a
branch of the army that would equip him with a trade; and, having joined, he
threw himself into his new life as a soldier.
9.
The circumstances of his application to enlist gave rise to a full-frontal attack
upon his veracity as a witness which must now be considered in a little detail.
The attack is a collateral attack upon his honesty and integrity in the sense that
the Defendant does not suggest that the Claimant deliberately attempted to
mislead the Court, save in one particular respect to which I will return. Instead,
the Defendant submits that since he has deliberately misled others in the past he
may now subconsciously be prone to give unreliable evidence to secure a gain.
Thus, it is said, before the Court accepts his evidence on primary matters, the
Court must be careful that he is not (by whatever psychological route)
misleading. I have already indicated that I am conscious of the need to avoid
the uncritical donning of rose-tinted spectacles when looking at the period
before the accident. I now consider whether there is anything further to be
gained from this submission.
10.
The Defendant points to five occasions on which it is said that the Claimant has
deliberately misled others in the past. I deal with each in turn.
11.
When applying to enlist, the Claimant submitted a health questionnaire which
was accompanied by a signed declaration of truth [2/722-725]. In section 8 of
the Questionnaire he was asked whether he had ever in his life, including
childhood, had any of the following conditions, which included “knee pain” and
“Migraine or severe headaches”. In respect of both of these questions he ticked
the box to answer “no”. In fact, as he accepted in evidence, he had a long
history of headaches although he said that he did not think of them as Migraines
at the time. Also, he accepted in evidence that his answer in respect of knee pain
was untrue. In respect of both of these answers he said that the conditions were
3
not troubling him at the time and so he did not think it necessary to answer
“yes”. The problem with this, as he was forced to accept, was that he answered
“yes” to a similar question in relation to a broken arm which had occurred 4
years previously and which was also not causing any current problems. The
presence of the signed declaration of truth highlighted the importance of telling
the truth when providing answers to these questions, and I accept that his
explanation for giving incorrect answers was not satisfactory. It is, however,
important to keep a sense of perspective. There is some force in Mr Rowley’s
submission that many people have told far more serious lies in order to serve
their country. Furthermore, the army’s own attitude is instructive. It rapidly
discovered that the answer in relation to knee problems was untrue when the
problem resurfaced and led to his failing his medical. However, the army at that
stage did not take an overly grave view of this breach of the signed declaration:
despite failing him on his medical for this knee problem which it recorded as
being undeclared, it invited him to re-apply after six months. I should also
record that there is no evidence before me to contradict the Claimant’s assertion
that he did not then consider his headaches to be migraines: document 3/1061,
to which I was referred, was created two years later.
12.
In addition to the health questionnaire, the Claimant filled out a general
questionnaire [2/698-707]. On page 706 he was asked if he had ever taken any
form of drug or solvent. He said that he had. He was asked which and how
often, to which he replied that he had tried cannabis and amphetamine once or
twice. It appears from the recruiters notes that he told the recruiter that he had
tried them as part of the social scene when out; he had realised it was wrong and
did not continue; and the last time had been the previous September whilst
drinking. The basis of the attack now made on the Claimant is that he said in
evidence that he had taken a class A drug and that it had been Ecstasy. Ecstasy,
as is well known, normally comes as tablets whereas Amphetamine normally
comes as a powder. So it is said that the Claimant lied to the recruiters by
concealing the fact that he had taken Ecstasy as well as Amphetamine. When
challenged on this point, the Claimant said that he was not sure whether it had
been Ecstasy or Amphetamine. I am not convinced that the Claimant’s answers
to the recruiters was untrue. It is apparent that he was prepared to declare past
use of a Class A drug and not merely past use of Cannabis. It would not have
made an enormous difference to the gravity of his reply if (assuming that he had
once taken an Ecstasy tablet) he had mentioned it in addition to having once
tried amphetamine. Alternatively, despite the different format in which the
drugs normally appear, it is possible that there was confusion, particularly if (as
I am sure is the case) he was not an habitual drug user. Even if he had taken
Ecstasy, I am confident that the burden of his disclosure to the recruiter was
substantially true: he had tried drugs on one or two occasions and had turned his
back on them. Mr Nicoll, the employment expert, was asked whether the fact
that a person had taken drugs before recruitment tended to suggest that they
would not stick in the army for long. Though the question was put in a different
context, it is worth recording that Mr Nicoll’s incredulous response was to
question whether it was reasonable to assume that any recruit from a major city
(and port) such as Southampton was likely to be able to say truthfully that they
had never taken illicit drugs. Again, the army’s reaction at the time was
proportionate and, while not in any way condoning either illegal drug use or
4
lack of integrity, it is important to retain a sense of perspective when
considering the answers made by a 19 year old on a job application.
13.
There is, however, another limb to the Defendant’s attack in relation to drugs.
In May 2004 the Claimant was seen by Dr Austin Tate for the purposes of a
psychiatric medico-legal report. At page 1/215, he recorded: “Mr Porter drinks
alcohol two to three times weekly. He takes non-prescription medicines in the
form of aspirin and multi vitamins. He states that he has never taken illicit
drugs. He reports a minor driving offence, but no other conflicts with the law.
He has no significant financial problems.” The Claimant saw this report before
it was disclosed to the Defendant without comment on its accuracy. In evidence
the Claimant said that he would not have said never, yet the language of Dr
Tate’s report strongly suggests that he did. If so, it is hard to fathom why he
should have done so. The Defendant’s case is that he would mislead people in
order to secure a financial advantage: but that does not readily apply to his
conversation with Dr Tate. Secondly, as has already been discussed, he was
prepared to disclose prior use of Class A drugs to the army on recruitment; so it
is not clear why he should have been more reticent with Dr Tate. It cannot be
said that he had become more reluctant to disclose his past drug use in the
context of this case, since he disclosed it immediately upon being asked in
cross-examination. Dr Tate was (quite properly) not called to give oral
evidence. The disadvantage of that is that it was not possible to ask for his
recollection, or to review his original notes, or to ask him about his normal
method of questioning, all of which might have shed light on the question.
Having heard and seen the Claimant’s response when challenged on this point, I
am not satisfied that he deliberately set out to mislead Dr Tate and I cannot
exclude the likelihood of a misunderstanding between Doctor and patient.
14.
At 3/869 there is a medical record dated 13 March 2003 made by Brigadier
Wickenden. In passing, it is notable that the Brigadier diagnosed PTSD of
moderate severity, but his opinion is not admitted as expert evidence in the case.
Of more immediate relevance is the fact that he recorded: “There is no abuse of
drugs and he is not on any long term medication.” It was suggested to the
Claimant that he had misled the Brigadier. There is no substance in this point.
The note is in the present tense, as is the surrounding contextual text. I have no
doubt that what was recorded was accurate.
15.
Finally, the Defendant relied upon a further reference in Dr Tate’s report, on the
same page as previously considered. Dr Tate recorded: “He is awaiting
arthroscopy to his left knee”. The Claimant is adamant that he has never been
waiting for an arthroscopy to his left knee. I accept that evidence and conclude
that this is a clear example of a misunderstanding between Doctor and patient.
This colours my view that there may have been a misunderstanding in relation
to illicit drugs, as discussed above. Also, this clear factual error was not picked
up by or on behalf of the Claimant when the report was disclosed.
16.
Other points were taken in cross-examination which were rightly not pursued in
closing submissions, and I do not consider them further here. Viewed overall, I
am not satisfied that any of these allegations, whether taken singly or
cumulatively, should lead me to approach the Claimant’s evidence with any
5
special degree of distrust. Even if I were entirely satisfied that all the
allegations were made out, which I am not, I would not be disposed to accept
the premise on which the submission is founded. Except in relation to the
disputed question of Ecstasy and Amphetamine, it is common ground that the
Claimant has not sought to mislead the Court when giving his evidence – and
that reflects my view, independently formed after watching and hearing him in
the witness box. I know of no reason why a person’s evidence should be
considered suspect when he is trying to tell the truth simply because he has on
occasions in the past deliberately misled other people in other circumstances. In
any event, as I have made clear, I do not accept that the factual allegations of
previously misleading behaviour are made out, except to the extent that I have
indicated above. I therefore approach the Claimant’s evidence with the normal
level of critical scepticism that is appropriate in contested cases where the facts
are in dispute and a Claimant has been seriously injured by the tort of the
Defendant. It is, however, a notable feature of the conduct of this trial that
virtually no part of the Claimant’s two detailed witness statements was directly
challenged as being either wrong or exaggerated. The main thrust of any
positive case that was put to the Claimant was that there can be no certainty that
he would have remained in the army for 22 years and that he is now unduly
pessimistic about his future prospects.
17.
The Claimant now believes and believed during the time of his active service
before the accident that he had found his metier and that he would have stayed
in the army for 22 years. In his initial application form, in February 1999, he
wrote that he thought that joining would do him a world of good and the
recruiter noted that joining might possibly be a way of focussing himself
[2/707]. In recommending him for recruitment, the recruiting officer noted that
he displayed some uncertainty over his job choice, but continued that “he does
appear to be keen and well motivated and is an enthusiastic and regular team
sports player. I feel, with reservations, that once fully committed he could
prove to be a high quality recruit and could do well both in CMS(R) and in his
chosen trade.” The senior recruiter agreed, noting that the Claimant was “still
growing up” and concluding: “I believe he has potential” [2/710]. The evidence
of the Claimant and his father, which I accept, is that once he joined, he fitted in
and became dedicated to his new career. Although he did not expressly discuss
with the Claimant how long he would stay in the army, it was his view that the
army was the making of his son and that he was perfectly suited to army life
[1/189/18]. The Claimant particularly enjoyed the physical fitness and the
opportunity to play sport to a good standard: he represented his regiment at
football which was equivalent to a semi-professional level.
18.
By the time of the accident he had just done a radio user’s course. After the
exercise on which he was engaged at the time of the accident he was due to go
to Canada and then to embark on an NCO’s course. His troop commander told
him that he was already performing a Lance Corporal’s role and encouraged
him to go on the course. Although he had not seen the report on his Class 2
training to which I refer below, he knew he was not being fast tracked. He said
in evidence that this got his hackles up and he felt he had to focus and decide
what he wanted to do. But he also said that if he had been offered a 22 year
contract there and then he would have signed it. I accept that evidence,
6
although it is obviously not determinative of the question in issue, namely
whether he would in fact have stayed in the army for 22 years if the accident
had not happened.
19.
There is surprisingly little material generated by the army on the Claimant’s
progress in the period from enlistment in April 2000 to the accident in April
2002. He did his basic training for 12 weeks from April to June 2000. Weekly
reports show that he overcame early difficulties and gradually improved the
level of grades that were being allocated to him on assessment of various
personal qualities. In his final report his personal qualities were assessed as
being above those of the majority of soldiers in 5 out of 13 categories, with the
other 8 all being in the higher of two “majority” grades [2/548]. His section
commander noted the early difficulties and concluded that: “if he continues to
work hard in phase 2 training he should do very well”. His platoon commander
noted that: “he has a firm handle on what he wants to achieve. However, I have
felt on a number of occasions that he was content to coast. I consider that he
would have been a contender for Best Recruit if he had pushed himself that little
bit more. He certainly has the ability to carve a career for himself but he must
prove he has the will.” I do not know how many recruits were undergoing this
training at the same time.
20.
From 10 July to 13 October 2000 the Claimant undertook Class 3 Training.
This included training in Combat Engineering. In 10 assessed phases he was
assessed for practical and theoretical proficiency. On the practical side he
achieved good passes (with the maximum possible mark) in 4 phases,
satisfactory passes in 5 phases and an ordinary pass in one phase. In theory the
pass mark for a phase was 60%. His lowest mark was 68%. Two marks were
between 70-79%, three marks between 80-89%, and three marks between 9099% with a highest mark of 96% for demolitions and a Final Course Average of
84.5%. The report on his performance was in glowing terms. In relation to his
potential the report stated: “Spr Porter has an excellent understanding of
Combat Engineering. He requires little or no supervision and will make a very
good section sapper. He has shown good NCO potential.” [2/547] His Troop
Commander and Officer Commanding signed the report.
21.
Between March 2001 and January 2002 the Claimant undertook Class 2 training
as further qualification to act as a military Fitter General. He passed and
achieved an overall grade C which is defined as being “Above the Minimum
Acceptable Standard” with a possible recommendation “Return for Class 1
training in his turn.” The Claimant was in fact recommended for Class 1
training but not for early training. The student report is the latest of the
assessments on the Claimant before the accident and is correspondingly
important, bearing in mind that at this stage the Claimant was still only just 21.
The report stated: “He proved to be a good student who applied an average level
of effort to all phases of his training. He had some difficulty in coming to terms
with the theoretical aspects of the trade and was generally a little reluctant in
raising questions to clarify any areas of concern. His level of understanding and
retention led him to produce results above the required standard. He worked
hard to assimilate the information being given but demonstrated poor recall of
the knowledge. Practically, he performed well approaching all set tasks with
7
some enthusiasm and completing them to a good standard within the allocated
time frame. He displayed good mechanical aptitude and was able to relate the
practical task in hand to the theory taught. He has displayed good leadership
qualities during the course and demonstrated an ability to work both as an
individual and team member. He has proved to be a mature student with a
pleasant demeanour who needs time and guidance to realise his true potential.
He is considered not suitable to be nominated as a potential Clerk of Works
candidate. He needs to gain confidence and experience. Whilst at the Const
Engr Sch he maintained a high level of fitness and participated in various sports
to an individual level of proficiency. Spr Porter has the ability to become a
good tradesman and should be given the opportunity to undertake Higher Trade
Training in his turn. He is acceptable for all employments but particularly
wishes to be a Fitter ACR. In addition to gaining his trade qualification Spr
Porter also worked towards achieving an NVQ level 2 in Engineering
Maintenance 1694, which is currently undergoing final verification.”
22.
The Defendant has adduced no evidence to help interpret or extrapolate from
the meaning of these reports. Nor is there any evidence from any senior officer
who had knowledge of the Claimant while he was in active service. Despite the
absence of any such assistance, the following features emerge from these
reports:
a)
b)
c)
d)
e)
In his initial training he overcame early difficulties to emerge as one of
the best recruits in his group and better than the majority of soldiers in a
significant number of areas. He was seen as someone who had the
ability to carve a career for himself in the army if he had the will, the
implication being that he could carve a long-term career in the army
rather than as a civilian;
When he did his Class 3 training he was assessed as having maturity,
intelligence and enthusiasm shortly before his 20th birthday. He showed
leadership in encouraging weaker members of his section, had an
excellent understanding of Combat Engineering. It was thought that he
would make a good sapper and was thought to show good NCO
Potential. These assessments again suggest that he was thought to have
the potential for a long-term career in the army;
When he did his Class 2 training he passed and was assessed as being
someone who would progress further, albeit not in the fast track;
The main identified weakness at this level was difficulty with theoretical
work. Despite this he produced results above the required standard. He
did well in practical work and demonstrated enthusiasm. He was
regarded as having leadership qualities. He was regarded as being
mature but as someone who still required time to realise his full
potential. Overall there is much in the report that encourages him to
progress further in his career. The only door that appeared to be shut
was that he was considered not suitable to be nominated as a potential
Clerk of Works candidate. It is not clear whether this meant that he
could not be reconsidered as a candidate at some later date;
There is nothing in any of the reports to suggest that his career in the
army might be short term only;
8
f)
It should be noted that the Claimant was not informed of the assessment
that he was not a potential Clerk of Works candidate until relatively
shortly before trial. I return to this particular feature later.
23.
Mr Nicoll, the jointly instructed employment expert in the case, made enquiries
of the army in relation to the Claimant’s career prospects. The average length
of service for soldiers on leaving the Engineering Corps is 9 years 10 months;
the median figure is 7 years. Statistically only a small proportion of those who
enlist will serve 22 years, but the statistical likelihood increases with the length
of service that has already been achieved. Thus, the percentage chance of a
soldier serving 22 years is 12% at the moment of his enlistment but this
percentage increases to 20% if he has served for 2 years, as had the Claimant at
the time of the accident; the percentage likelihood continues to rise as further
length of service accrues. In addition, as a soldier makes progress through the
ranks, his prospects of further promotion to the next rank increase. Thus, for
example, the greatest fall out is before first promotion as only 30.5% of Privates
are promoted to Lance Corporal. Yet once that first promotion is achieved, a
Lance Corporal’s statistical chance of being promoted to Corporal is 55.1%; a
Corporal has a 71.1% chance of further promotion to Sergeant; a Sergeant has a
77.7% chance of promotion to Staff Sergeant; a Staff Sergeant has a 68.4%
chance of promotion to Warrant Officer II; and a Warrant Officer II has a 56.5%
chance of promotion to Warrant Officer I. It must be remembered that in the
Claimant’s case the percentage approach is distorted by the fact that his
effective service was cut short by the Defendants’ negligence. Also, the
Claimant is not a mere statistic. It is necessary to assess where he would have
fitted into the statistics. One thing, however, is clear: there is no evidence
(statistical or otherwise) to suggest that he would have left the service less than
three years after enlisting and I have no hesitation in rejecting any such
suggestion.
24.
I will make further and more detailed findings later in this judgement. At this
point it is sufficient to record summary findings of fact as follows. Although
the Claimant may initially have had doubts about whether the army was for him,
he settled in well and showed himself to be a recruit and soldier who was above
average ability. He thoroughly enjoyed the new life, both for the camaraderie
and security of the army community and for the activities which it provided. He
had formed a number of close friendships with other service personnel. He also
enjoyed his work and the training that it was giving him in his chosen trade. His
strengths were more practical than theoretical but, in combination, both he and
the army considered that he would go further in his army career. The army had
become his life in a real sense that the army would wish to encourage in its
soldiers.
The Accident
25. There was a Volvo FL12 vehicle which was equipped with a HIAB crane
located behind the driver’s cabin and which had been parked beside a Combat
Engineer Tractor with a view to using the crane to lift the gear-box from the
tractor. The crane had a JCB arm which was powered by hydraulics that were
controlled from a panel which was also located behind the driver’s cabin. The
crane was secured between the cabin and the tipper of the Volvo by lugs that
9
were intended to ensure that it did not move in transit. The Claimant was
working with Lance Corporal Bowyer and others. Lance Corporal Bowyer
operated the control panel but the crane arm did not move. It was thought that
this was because of a lock-out that could be remedied by repeating the last
movement of the controls that had preceded the lockout. Lance Corporal
Bowyer instructed the Claimant to operate the controls so as to clear the
lockout.
26.
The Claimant stood by the control panel which was between waist and chest
height. He placed his left hand on top of the control panel and operated the
levers at the bottom of the control panel with his right hand. He followed a
procedure that he had followed before, trying each control lever in turn. As he
did so, the crane began to shake and twitch, which he interpreted as an airlock in
the hydraulic system. He decided to look behind the control panel at the
hydraulic couplings and stood on tiptoe in order to do so, keeping his left hand
in position on the panel. Suddenly there was a loud bang. Although the
Claimant cannot remember what happened next, the arm of the crane had
become subject to such hydraulic force that it had broken free of its securing
lugs, powered down and crushed the Claimant’s left hand.
27.
At first the Claimant felt no pain but it soon became apparent that he had
suffered a severe crush injury to his hand which involved his little and ring
fingers. I deal with the consequences of the accident in more detail when
considering general damages. For the present it is sufficient to record that he
has undergone either five or six operations under general anaesthetic, the end
result of which is that his little finger has been amputated in its entirety.
Despite extensive surgery, his ring finger remains significantly disabled and his
hand is scarred, discoloured and unsightly. In addition he has suffered
psychiatric symptoms which, in lay terms, have led to a severe loss of
confidence as well as other behavioural changes.
The Claimant Since the Accident
28. At the time of the accident the Claimant had a steady girlfriend. They had been
together for 2 ½ years and she was sufficiently committed to him to have gone
to Germany to investigate employment prospects against the possibility of his
being posted there. When he left hospital he moved in with her and stayed there
until about April 2003 when the relationship foundered. He says that things
started to go wrong after the accident and describes how his behaviour changed
so that he was irritable and moody when compared with his former self. When
he split with his girlfriend he moved to his mother’s house, where he has
remained up until now.
29.
The Claimant was discharged from the army as being permanently unfit for
service on 8 February 2004. He had a further operation on 26th April where the
knuckle from his little finger was transposed to replace the fractured knuckle of
his ring finger. This operation has not been a success in that it has not improved
the range of movement in the ring finger. He underwent rehabilitation from
May to July 2004 and, after considerable job-searching, obtained a job as a
Trainee Installation Engineer with a growing company called 4Com Limited
from 9th August 2004. He has held down that job to the date of trial. It is a job
10
well below the level of what he would have expected to get if uninjured but he
feels secure in the job and in his ability to do it. His main difficulties are that
his left hand is weak and sensitive to cold. As his evidence makes clear, he is
unwilling at present to contemplate moving to a more demanding job or taking
the risk (as he sees it) of taking time out to study for an HND that would equip
him for a career leading to more “professional” jobs in the future. His present
unwillingness is genuine: the issue is whether his state of mind will improve and
whether he should reasonably take steps to better himself in the future.
30.
The Claimant’s account of the period since the accident is set out at paragraphs
20-45, 54-60, 63-81 of his first statement [1/135] and 1-13 of his second
statement [1/164]. As his second statement makes clear, there has been some
improvement since his first statement was compiled, particularly in relation to
his ability to do household chores. In the last year or so he has ceased using
analgesics for pain in his hand, which is another marker of some improvement.
This is reflected in the answers which he gave to a questionnaire for Salisbury
Hospital during his rehabilitation in June 2004 where he described himself as
having moderate difficulty in opening tight or new jars, preparing a meal, doing
garden or yard work and recreational activities in which he takes some force or
impact through his arm – this would of course include football. He also
described himself as having mild difficulty with heavy household chores,
making a bed, carrying objects over 10lbs in weight, and sexual activities. He
had no difficulties in the other activities listed which were activities such as
writing, turning a key, pushing a heavy door or changing a light bulb overhead
[3/1017]. I consider that the statements provide a reasonable picture of the
difficulties that the Claimant has faced since the accident when taken in
conjunction with the questionnaire and the medical reports which are agreed.
31.
I therefore turn to consider the heads of damage in the case.
Damages
General Damages for Pain Suffering and Loss of Amenity
32. The severity of the initial injury to the left hand and the history of his treatment
thereafter are set out in the Claimant’s statements to which I have referred
already and the agreed reports and letters from Mr Campbell Semple
[1/191,201, 206; 5/3]. When seen in August 2003, 16 months after the accident,
the little finger had been partially amputated. The Claimant gave Mr Campbell
Semple a list of eleven comments or complaints about his left hand. In
summary, grip was much impaired; the hand was tender when knocked; it ached
in cold weather; he was aware of the hand though not describing it as painful at
that time; he was embarrassed by its appearance; he could drive but after 10 to
15 minutes his hand would start aching; he was not playing football for fear of
falling on it; he could manage routine domestic tasks such as shaving, washing
and eating; if he turned onto his left side in his sleep there was a tendency for
the hand to start aching; he could only use a keyboard for a short time before his
hand started aching. At that stage, on making a fist, the tip of the ring finger
failed to reach the distal palmar crease by 3 cms; and the ring finger failed to
flex properly. Power grip in the left hand was just over half that in the right.
11
33.
By October 2004, 2 ½ years after the accident, the remainder of the little finger
had been amputated and further reconstructive surgery was being contemplated.
The Claimant felt that his grip in the left hand had deteriorated and was now
more apprehensive about banging the hand when undertaking active pastimes.
Mr Campbell Semple described the ring finger as being “very stiff indeed”: the
tip failed to meet the palm by 2.5 cms. On testing, power grip in the left was
now just under half that in the right hand though, in absolute terms, it had
increased by 1kg.
34.
By the time of the final report in April 2005, three years after the accident, there
had been no significant change and no improvement or deterioration is expected
in the future. Mr Campbell Semple amplified his views in June 2005: he credits
the Claimant’s reluctance to return to football on account of his reasonable fears
of hurting the hand; while there are no domestic tasks that the Claimant cannot
perform now, he will be slower and clumsier in certain activities; and he would
be unsuited to return to his pre-army occupation as a plumber [5/3-4].
35.
In evidence the Claimant described how, if he clips the hand inadvertently it
feels like stubbing a toe hard, but with the pain persisting for longer. He often
has altered sensation in the hand which falls short of being pain, including a
phantom itching sensation in the missing little finger. His scarring is significant
and unattractive though not grossly disfiguring or repulsive as some cases which
come before the Courts. I noticed that, when asked to open or turn to pages in
the trial bundles he appeared instinctively to use his right hand for all
movements such as opening the file, undoing the restraining clip or finding the
page, and only brought his left hand into play when absolutely necessary.
36.
In addition to his physical injuries the Claimant has suffered a significant
psychological injury as explained by Dr Tate in his agreed medical report and
follow-up letter [1/211, 234]. In the discussion section of the report [1/228] he
points to the severity of the injury (which one doctor has assessed as giving rise
to a 50% disability) and to the Claimant’s constant fear of further injury. The
Claimant’s significant number of re-experiencing, hyperarousal, and avoidance
symptoms “impact significantly upon his functioning due to the frequency and
intensity of the symptoms. There has been limited improvement in such
symptoms over time.” The Claimant has developed a depressive disorder which
has not been improved by Counselling.
37.
Dr Tate did not make a diagnosis of PTSD, although others have done so
previously. However, he diagnoses the Claimant as suffering from an
adjustment disorder directly attributable to the accident and a depressive
disorder or moderate severity that requires treatment. His prognosis is that 15
outpatient sessions of Cognitive Behavioural Therapy and Eye Movement
Desensitisation and Reprocessing will minimise the chronicity of the symptoms.
However, both in his main report [1/230] and in his follow up letter he
expresses the view that treatment will lead to improvement in chronicity and
reduction of incapacity but not full resolution.
38.
One of the marked features of the Claimant’s evidence is his pessimism about
his ability to better himself in the future. In part this is a realistic appraisal of
12
the effect of a severe hand injury on his future employment prospects and
general existence. However, there can be no doubt that part of it is attributable
to the psychological injury which he has sustained. The example of his
pessimism which impacts most on the question of damages is that he doubts
whether he would be prepared to take the risk of leaving a relatively secure but
poorly paid job in order to do a full time 2 year HND course with a view to
bettering his career prospects. While accepting that taking time out inevitably
gives rise to some risk, I have formed the view that he probably will adopt this
course of action in due course. There are a number of features which lead me to
this conclusion:
a)
b)
c)
d)
I am confident that he will now undertake proper treatment for his
psychological injuries and that such treatment will lead to a material
improvement in his psychological well-being so that he will have greater
confidence in his own abilities;
The Claimant is and remains an impressive young man with
considerable presence and abilities: he is still the young man who had
realistic ambitions to be a senior NCO in the army, despite the fact that
he has taken a physical and psychological battering as a result of the
accident;
He has expressed quite eloquently the frustration that he feels in not
doing a more demanding and satisfying job and is a young man who will
wish to better himself over the next 40 years of his working life;
His financial concerns about the consequences of taking time out should
be reduced by the cushion which will be provided by an appropriate
award of damages arising out of this action.
39.
The improvement in the incapacity attributable to his psychological injuries will
also reflect in a general improvement in his outlook and the residual level of
suffering and loss of amenity attributable to the accident.
40.
For the Claimant, Mr Rowley contends that an appropriate award of damages
for pain suffering and loss of amenity excluding any award for loss of congenial
employment would be £20,000, although in closing he suggested that an higher
award might be appropriate. Mr Browne contends for an award of not more
than £15,000. He refers to the fact that, physically, the Claimant can cope with
the activities of normal daily life as described by Mr Campbell Semple at
[5/4/6] to which I have referred above and that he can hold down a job.
Psychologically he again refers to the Claimant’s ability to hold down a job and
he referred to a document at 3/852 in which Brigadier Wickenden expressed the
view in March 2003 that the symptoms attributable to PTSD were then minimal.
Brigadier Wickenden was not called and his opinions are not in evidence: I rely
upon the evidence of Dr Tate.
41.
The Defendant submitted that the physical injury to the Claimant’s hand falls
within category 6I(f) of the JSB Guidelines, 7th Edn, “Less Serious Hand
Injury” which has a bracket of £8,000-16,000. In my judgment the injury has
many of the features of category 6I(e) for which the bracket is £16,000-34,000.
Most relevantly, the capacity of the hand has been reduced to about 50% in
measured grip power and general function and it is right to describe the injury
13
as one which results in gross diminution of grip and serious cosmetic
disfigurement even if not “gross” loss of dexterity. Arguably the injury is on
the cusp of sub-categories (e) and (f). However, if the physical injury had been
the only component I would have awarded £16,000 or something very close to
it. The psychological component must be taken into account, albeit not by a
simple process of aggregation.
42.
Viewed overall, I consider that £20,000 is not in any way overcompensation for
the pain suffering and loss of amenity (excluding loss of congenial employment)
that the Claimant has suffered and will suffer in the future as a consequence of
his injuries, physical and psychological.
General Damages for Loss of Congenial Employment
43. This head of damages is well established in principle but lightly sketched in
application in reported cases. Some assistance is derived from Kemp & Kemp,
The Quantum of Damages at 10-070-071 and Kennedy LJ sounded a warning
note in Chase International Express Ltd v Mcrae [2004] PIQR21 when he said
at paragraph 23 of an award made to a motor cycle courier in the court below:
It might have been appropriate to make an award under this head if the
claimant had been employed for a considerable length of time in this
capacity and genuinely was a person who felt disadvantaged and
aggrieved as a result of the loss of congenial employment. That could
not possibly be said in relation to someone who had only been doing this
work for some seven weeks or so.
44.
In this case there can be no doubt that the Claimant reasonably feels aggrieved
at the loss of his military career which he believed at the time and believes now
was going to be for a long period. Equally, I do not consider that his period of
two years service with total immersion in army life and training is to be equated
to Mr McCrae’s seven weeks as a motor cycle courier. I therefore consider that
this is a case where an award is appropriate although the amount to be awarded
depends upon my views on how long the Claimant was likely to stay in the
army. For the reasons which I will set out in detail later, I have come to the
view that the Claimant had as good a chance as anybody of staying in the army
for the full 22 years and probably would have done so. On that basis the
Defendant contends that the award should be less than or equal to £5,000 while
the Claimant contends for £12,500-15,000.
45.
In Pratt v Smith [20 December 2002, Unreported] David Foskett QC sitting as a
deputy High Court Judge considered the case of a successful publishing
executive who had been deprived of his career by his injuries. In a helpful
judgment he noted that the categories of employment to which this head of
damage can apply are not closed and that awards have been extended to,
amongst others, “a trainee professional dancer, an assistant in a florist’s shop, a
trainee electrical engineer in the Royal Navy, a stuntman and an actress.” The
inclusion of the trainee dancer and the trainee electrical engineer in the Royal
Navy indicates that the mere fact that someone is early in their career is no bar
to the making of such an award. This reinforces the conclusion that the
Claimant in this case is not debarred from such an award. I can see no logical
14
reason why he should be, since he had been employed for quite long enough to
appreciate the “congeniality” of his chosen career.
46.
I have not been referred to any case where more than £10,000 has been
awarded for loss of congenial employment. In 1998 Michael Harvey QC sitting
as a deputy High Court Judge awarded £7,500 to a 25 year-old who was just
embarking on a career as a professional musician and who, in consequence of
her injuries, was working as a church social worker: Byers v Brent [24.4.1998
Unreported]. In Langford v Hebran [2001 PIQR Q13, Klevan J awarded
£7,500 to a kick-boxer who was said to be destined for international success. In
Pratt v Smith, £8,750 was awarded to an older man who was already well
established in his career.
47.
In determining the level of award in this case, it seems to me that the following
features predominate:
a)
b)
c)
d)
48.
The Claimant was deprived of about 20 years of his army career at a
time when he fully appreciated what it would involve;
Although he is now doing work which is well below his pre-accident
capacities he will probably better himself over the coming years as
outlined later in this judgment and will find himself in employment
which is more satisfying than his present situation;
It appears that most awards for loss of congenial employment involving
the loss of a whole career have tended to be in the region of £5,0006,000. However, most of these examples are now long in the tooth and,
as the three cases mentioned above show, higher awards have been
awarded in appropriate cases;
The Court of Appeal has indicated that such awards should be kept in
proportion, bearing in mind the other elements of compensation that are
also to be recovered by the Claimant: see Willbye v Gibbons [2003]
EWCA Civ 372 at paragraph 11.
In my view an appropriate award in this case which reflects the features that I
have outlined above is £7,000.
Interest on General Damages
49. General damages total £27,000. It is agreed that interest should be calculated at
2.75%: this gives a figure of £742.50
Loss of Earnings – The Principles and Findings of Fact
50. In assessing loss of earnings for both the past and the future it is necessary to
reach a view about what the Claimant would have done but for the accident and
to balance that against what he will do in the events that have happened. In
many cases, as here, this exercise may involve speculating about periods that
stretch far into the future and attempting to form a view about career prospects
(both actual and notional) on the basis of short pre-accident periods in the lives
of young claimants.
15
51.
The principles to be applied are now well established by the leading cases of
Wells v Wells [1999] 1 AC 345 and Mallett v McMonagle [1970] AC 166. The
following well known passages bear repeating:
Nor can the accuracy which can usually be achieved in the assessment of past
loss of wages and of other past losses and expense which fall under the broad
heading of special damages be matched when it comes to the future. The
court cannot say precisely what will happen. It can only proceed by means of
assumptions. The calculations which it then makes will involve the use of
arithmetic as the multiplier is applied to the multiplicand. To that extent the
exercise will give the impression of accuracy. But the accuracy of the result
achieved by arithmetic will depend on the assumptions on which it has been
based. In making these assumptions the court must do the best it can on the
available evidence. Wells v Wells per Lord Hope at 389 G-390A.
The annuity approach requires that once the necessary assumptions have been
made, the calculation of the award will result in an amount which matches as
accurately as possible the sum required over the entire period of the assumed
loss. Whatever policy reasons there might have been for regarding it as
acceptable that there may be less than a full recovery in regard to wage loss –
and I should make it clear that I do not subscribe to that policy – there can be
no good reason for a shortfall in the amount required for future care or to
meet all the other outlays which have been rendered necessary by the
disability. The calculation should make the best use of such tools to assist
that process as are available.
Some of the assumptions which have to be made in the assessment of future
loss are made at the stage of arriving at the multiplicand for each head of the
claim. The selection of the right multiplier requires that further assumptions
be made, so that the calculation can be related to the period of the annual loss
or expense which is to be compensated for. Wells v Wells per Lord Hope at
390 D-F.
One has to accept that the calculation will not be altogether exact, but one has
to do the best one can to achieve as close an approximation as may be
possible. Wells v Wells per Lord Clyde at 394C-D.
If each of the elements has individually achieved the best approximation
possible to the proper compensation for each particular aspect of the claim,
then the total figure should correspondingly represent the best assessment
possible for the total claim. If at the conclusion of the exercise the judge is
uneasy at the total result he should not seek to make any overall adjustment in
either direction to the total award to meet his unease; he should return to
reconsider each element in the calculation and secure that there is no need for
revision at that level. Wells v Wells per Lord Clyde at 395C-D.
The role of the court in making an assessment of damages which depends
upon its view as to what will be and what would have been is to be contrasted
with its ordinary function in civil actions of determining what was. In
determining what did happen in the past a court decides on the balance of
probabilities. Anything that is more probable than not it treats as certain. But
16
in assessing damages which depend upon its view as to what will happen in
the future or would have happened in the future if something had not
happened in the past, the court must make an estimate as to what the chances
that a particular thing will or would have happened and reflect those chances,
whether they are more or less than even, in the amount of damages which it
awards. Mallett v McMonagle per Lord Diplock at 176 E-G
…it is inevitable that in assessing damages there must be elements of estimate
and to some extent conjecture. All the chances and changes of the future must
be assessed. They must be weighed not only with sympathy but with fairness
for all concerned and at all times with a sense of proportion. Mallett v
McMonagle per Lord Morris of Borth-y-Gest at 173F-G
52.
These passages emphasise the need for the Court to make assumptions about
what would have happened and what will happen in the future even though it is
recognised that there can never be the same certainty as about the past. The
Court’s task is to reach the closest approximation it can on the available
evidence. Naturally, where there is a long past track record and only a short
period to be considered in the future, that will be one feature that will tend
towards certainty in relation to future conduct. Conversely, where there is a
short track record and a longer period, that will tend towards uncertainty. But
these are only one part of the evidence that may be available to the Court in a
given case; and the Court must make its assumptions on the basis of all the
available evidence. In this case the Defendant submits that there is such
uncertainty that the Court should not adopt a multiplier and multiplicand
approach at all but should award a lump sum to compensate the Claimant for his
future losses. I do not exclude the possibility that there might be cases where it
is inappropriate to use a multiplier and multiplicand approach. However even a
lump sum approach as advocated by the Defendant should be rational and will
ultimately depend upon assumptions about future probabilities and possibilities.
Therefore, it seems to me that the Court’s starting point must be to look at the
evidence and see what assumptions, if any, can properly be made.
53.
In this case I have already found that the Claimant believed by the time of his
accident that he would stay in the army for the long haul. He did not start out
with that belief but came to it with time. Before enlisting he had had a rather
chequered history since leaving school, having bailed out of college and
undertaken a number of relatively short-term employments. However, there
came a time when the evidence indicates that he took stock of what he was
doing and decided to enlist. All the evidence that I have seen and heard
indicates that he took to the army as a duck to water. It is well known that the
army life can exert a powerful hold on people and it is not difficult to accept his
evidence that he was one of those people, particularly since that evidence is
supported by his father who has had many years of service of his own and long
experience of seeing those for whom the army life was right, and those for
whom it was not. It is right that I should say that I found his father to be an
impressive witness and I accept his evidence, including his evidence about how
his son reacted to enlistment - “In my opinion he was perfectly suited to Army
life, the Army was the making of him. He was one of the best recruits after his
basic training and enjoyed the Army lifestyle.”: [1/189/18].
17
54.
Quite apart from the positive evidence from the Claimant and his father, there is
the complete absence of anything in his army records to suggest that anyone at
any stage thought that the Claimant would only be a short-term recruit. I have
already quoted extensively from the few reports that have been disclosed and
commented on the absence of any witness evidence from the Defendant to
contradict or even put a gloss upon the evidence adduced for the Claimant.
55.
I have had the advantage of seeing the Claimant give evidence. He is still a
young man and he has an air of pessimism caused by his psychological injury to
which I have already referred. However, I formed the view that he is an
impressive man; and I can well understand why his superiors considered him to
be a potential NCO and a long-term member of the service as indicated in their
reports. So far as I could judge from seeing him give evidence, he would have
been well suited to a long-term career in the army.
56.
In the absence of evidence, the Defendant has relied upon submissions to
support its case that the Claimant would not have remained in the army for the
long term of 22 years. I now address those submissions in turn:
a)
b)
c)
The Defendant relies upon the statistics which demonstrate that the
majority of soldiers do not serve 22 years. For the reasons which I have
already outlined in paragraph 23, this statistic is of limited assistance.
The question is whether this man was one of the majority who would
not have served 22 years or one of the minority who would. That
question cannot be answered by reference to statistics: the statistics
merely raise the question;
It is submitted that the family background does not assist. I disagree. I
do not suggest that the Claimant’s father can be used as any sort of a
comparator: there are many and obvious differences between the two
men and the circumstances in which they served. However, his family
tradition assists in two particular ways. First, it means that when he
came to the view that he would stay in the army for the long term, he
had much more than two years experience of army life since he had seen
the good and the bad throughout his childhood and had enjoyed it.
Second, I recognise and acknowledge the potency of traditions of
service within families and the fact that, as is clear from the evidence, he
would be supported in his ambition to stay in the army by his family.
As a later submission it was suggested that the Claimant’s maternal
grandfather may have been conscripted. So he may, but there is no
substance in the point: he continued to serve for many years after the
war and after conscription.
The Defendant submitted that army life is now less attractive than it was
in his father’s time because some more exotic locations (such as Hong
Kong) are no longer available and tours of duty were now more likely to
be in places such as Kosovo and Iraq. I find this a surprising submission
for Her Majesty’s Army to make. However, the Claimant answered it in
his evidence – he regretted not going to Iraq and it gets him down when
he sees his service friends who did go: [1/154/55]. It is a commonplace
that for many soldiers the high point of their service is in war zones
18
d)
e)
f)
g)
h)
rather than exotic locations. What remains for members of the army,
even now, is considerable variety which includes amenable places here
and abroad.
It is undoubtedly true that the army is presently in a state of flux with
reorganisations and reductions in overall numbers. So far as the court is
aware, that has also been true for most if not all of the period while his
father served. What matters is not the absolute numbers but the relative
opportunities. Therefore, if the pyramid of the command structure
remains the same, the opportunities for promotion in a slimmed-down
army will be no worse than before. As Mr Rowley pointed out, the
modern army will tend to be more (rather than less) mechanised and will
always require engineers. If the Defendant had wished to establish that
chances of promotion in the future were going to be worse than
established by statistics from the recent past, it could and should have
adduced evidence to that effect.
The Defendant points to the Claimant’s evidence that he could have
commanded civilian jobs with salaries of £25,000-35,000 had he not
been injured. This forms the basis for a submission that the Claimant
may have left the army in order to earn more in civilian life. And it is
said that by choosing a trade within the army, he would have given
himself advantages in the labour market should he have wished to return
to civilian life. There are two main responses to this. First, although the
headline figure for gross earnings in the army projected on behalf of the
Claimant does not reach £25,000 until 2008 [1/252/54], the army
“package” includes additional benefits (such as promotion bonuses and
subsidised food and accommodation) in addition to a way of life which
many soldiers value. Second, in the context of a loss of earnings claim,
this submission does not help the Defendant since it only serves to show
that taking army rates of pay is a prudent and conservative approach: if
he would have moved from the army to increase his earnings in civilian
life, his loss of earnings is correspondingly greater. This response does
not apply fully to the loss of pension claim which I will consider
separately.
The Defendant submits that the impetus for the Claimant joining the
army came from his father, that he was not certain of his choice at the
time of enlistment [2/710]; and that he had a chequered past
employment history. This submission would have had force at the time
of enlistment; but by the time of the accident the continuing impetus was
his own, he was certain that he had made the right choice, and he had
put his chequered past history behind him.
It is suggested that the Claimant had an advantage over younger recruits
because he joined the army at the age of 19 but that his advantage would
have waned with time. There is nothing in this point. At his age it was
expected that he too would mature further: [2/695].
While the evidence is that his then girl-friend was supportive of the
army life, that relationship might not last. This is true as a matter of fact
and it is possible that he might subsequently have had a girl-friend,
partner or wife who was not supportive of the army life. This, however,
seems to me to be speculation upon speculation and of little or no
weight in the overall context of the argument.
19
i)
j)
k)
The Defendant submits that an unrelated medical condition might have
caused him to leave the army. Reference is made to past injuries to his
knees. If the Defendant had wished to submit that the Claimant was at
any particular risk of being discharged because of a medical condition
unrelated to his hand injury, that could and should have been supported
by evidence, which it was not. I accept that, as with everyone else, the
Claimant would have been subject to the same health-based vicissitudes
of life as any other soldier. I have no information about what the risk of
such vicissitudes might have been.
Selective quotation from some documents could suggest that the
Claimant was unnaturally keen to get out of the army after his accident.
I am satisfied that a proper reading of those documents in context shows
that his reluctance to remain in the army was driven by his fear of the
accident re-occurring and of his not being able to do his job properly.
There is nothing in this point.
Finally, the Defendant asks rhetorically what the Claimant would have
done after his rebuff from consideration for the position of Clerk of
Works. In the event, he knew at least that he had not been fast-tracked
and his decision was to knuckle down. Even if the rebuff was
permanent and he could not subsequently be considered to become
Clerk of Works (which is not entirely clear on the evidence) I see no
reason to believe that such a rebuff would have been likely to cause him
to leave the army.
57.
If it were necessary to do so I would find as a fact on the balance of probability
that the Claimant would have stayed in the army for 22 years. In the light of the
passages to which I have referred above, it is not necessary to make such a
finding. Instead the evidence justifies assessing the future loss of earnings on
the assumption that he would have remained in the army for that period and it is
an assumption which I am prepared to make with confidence that the
assumption reflects what would in fact have happened. It is then necessary to
make assumptions about what his career path would have been within the army
in order to establish levels of earnings.
58.
On this point, with one exception, I have no hesitation in adopting the career
path laid out by Mr Nicoll at paragraph 54 of his report [1/252]. My reasons
can be shortly stated:
a)
b)
This projection is the less favourable of the two outlined by Mr Nicoll
and is rightly described as pedestrian. It assumes that the Claimant
would have progressed to the rank of Staff Sergeant or WO II (there
being no salary differential between these ranks) with promotions being
achieved later than the average for those who remain in the service and
achieve these promotions: see [5/18A]. On my findings this is probably
a conservative assumption to make;
It is the Defendant’s primary case that the Claimant may have left the
army in order to achieve significantly higher earnings. Although I have
rejected that case as the probable outcome, it remains relevant when
making assumptions about future earnings. The more pedestrian the
army model that is adopted, the more likely it would have been that the
20
Claimant would have left in order to increase his earnings. This tends to
support the suggestion that assuming a slower-than-average progress
through the ranks is a conservative assumption on which to base a loss
of earnings calculation.
59.
On 29 June 2005 the Defendant disclosed a report by Lt Colonel Taylor which
was dated 11 February 2005 and which had been sent to the Royal & Sun
Alliance on 21 February 2005. This document contains a projection which
assumes a very much slower than “standard” progression. In particular, it
assumes promotion to Corporal in January 2014, 4 years and 10 months slower
than standard, and to Sergeant in January 2020, 7 years and 3 months slower
than standard. Colonel Taylor was not called to give evidence and no attempt
was made to put his report in evidence, as could and should have been done if
the Defendant wished to rely upon it. Even so, if the report had revealed any
obvious logic to support the projection, that could have been considered: but
there is none. I therefore place no reliance upon the report.
60.
Colonel Taylor’s report was served under cover of a letter from a Mr McAdam
from the Army Personnel Centre. No steps were taken to put this letter in
evidence either; but it does reveal one fact which had not previously been
known or taken into account, namely that the Claimant would have been entitled
to taxable bonuses of £3,000 and £2,500 in April 2005 and April 2008
respectively on completing 5 and 8 years’ service. Since I am taking continued
service in the army as the conservative model for the Claimant’s earnings, these
bonuses should be brought into the equation.
61.
In addition to basic army salary the Claimant received benefits in kind in
subsidised accommodation and food. The Claimant has advanced calculations
on the basis of assumptions as to the value of both accommodation and food.
While the Claimant’s army payslips give clear evidence about the amount that
he was charged as a single man for accommodation and food, there is limited
evidence on the basis of which to determine the value of these benefits. It is,
however, agreed that the cost of renting a three bedroomed semi-detached
housing association property in and around Southampton is currently £80 per
week: this can only sensibly be taken as a comparator for a married soldier. In
addition, the evidence is that the Claimant currently pays his mother £200 per
month, not including for his food which he buys separately for himself.
62.
What is entirely missing is any material from the Defendant about the value of
these benefits. There can be no doubt that the benefits are real, and the army
advertises that “you can’t really compare directly with civilian salaries as the
Army often pays your living costs.”: [1/317]. The Claimant’s solicitors
expressly requested disclosure of materials relating to the value of these benefits
at a time when the Schedule of loss claimed for loss of benefits in kind such as
subsidised accommodation, food, sports facilities/gymnasia and so on. By a
letter dated 15 June 2005 the Defendant’s solicitors responded that such
information “could only be relevant if you were to amend your schedule of
loss.” Since I have not heard argument on the point, I do not know what the
rationale behind this assertion may have been. However, I am and remain
surprised that no disclosure relating to the value of benefits was given at any
21
stage. I would have thought that these benefits would be taxable. I would also
have thought that, for reasons of public accountability, the Army must have
addressed the value of such benefits. I would therefore assume that information
about the value of benefits should have been available; and the letter of 15 June
is at least consistent with the existence of such information. If such information
existed, it would clearly have been directly relevant to this head of claim. On
the information which is available to me I can do no more than record that no
disclosure was given.
63.
In these circumstances, the Defendant submits that no calculation can or should
be made of the lost benefits. In its Provisional Counter-schedule it allows
£1,250 as a one-off for accommodation costs, which I understand to cover both
past and future loss of benefit. I do not accept the Defendant’s case on this
point. I am satisfied that the calculation of the value of lost benefits is
reasonable and probably conservative as a working assumption on which to base
an award of damages, even if it is necessarily not “accurate” in the sense of
being based on full and complete information. I accept that it is for the
Claimant to prove his case, and I am satisfied that he has done so by putting
forward a calculation which is prudent and which probably understates his loss.
It is not necessary to resort to Wisniewski v Central Manchester HA [1998]
Lloyd’s Rep Med 223 in the circumstances of this case since, in the absence of
evidence to the contrary, the evidence which has been adduced is sufficient to
justify the relatively modest loss of benefits which is claimed.
64.
The Claimant’s actual earnings since the accident to the date of trial are not in
dispute. By the end of the trial, the difference between the parties as to his
future earnings had narrowed but not disappeared. It is therefore necessary to
make findings and assumptions about what will happen in the future during the
period until the time that the Claimant would have left the army. Thereafter,
there is no claim for continuing loss of earnings though there is a residual Smith
v Manchester claim.
65.
The Claimant bases his claim on the projection set out by Mr Nicoll at
paragraph 59 of his report [1/253]. In essence this assumes that the Claimant
will retrain in due course, either by obtaining an HND or by going on to a full
degree course. Thereafter he will be qualified to seek and obtain more
“professional” work than his present work, with correspondingly higher
earnings.
66.
For the purposes of making assumptions upon which to base a loss of future
earnings claim, I consider that this is a reasonable working assumption subject
to one qualification. Once again, I can outline my reasons quite shortly:
a)
I accept that the Claimant presently has real and significant doubts about
what he will do. In particular, he is distinctly risk-averse and is quite
unpersuaded that it would be either feasible or sensible for him to give
up his job, which he perceives to be safe, and to take up to three years
out of the employment market while he retrains with no certainty of
employment thereafter. He is rightly concerned that, even after training,
22
b)
c)
d)
his injured hand will put him at a disadvantage on the employment
market;
While I do not doubt the Claimant’s present concerns, they are at least
partially due to his psychological injury which should be improved with
the proper treatment that he will now undertake. This will not eradicate
his pessimism or his incapacity, but it will improve it. He will become
more optimistic about his abilities, and rightly so;
The Claimant remains a significant man with many of the qualities that
the army recognised. I do not think it at all likely that he would be
satisfied by spending the rest of his working life doing the sort of work
he is doing now;
Taking these features into account the Court should reasonably assume
that he will take sensible steps to improve his lot and thereby mitigate
his loss.
67.
The projection in paragraph 59 of Mr Nicoll’s report assumes a period of three
years out of employment. This could represent the period of a degree course or
a two year period for HND with a year of unemployment. The qualification
which I would enter is that I do not think that either of these is likely to be what
happens. I do not think that the Claimant will enrol for or complete a three year
degree course. His strengths are practical first and foremost and I do not think
he will particularly relish a period of study, even though I assume that he will
undertake it. It is therefore much more likely that he will do a two-year HND
course, particularly since the earnings benefits of a third year are fairly
speculative. At the same time, at the end of his two-year study period he will be
at a disadvantage on the labour market because of his hand and his residual
psychological incapacity. However, for the purposes of simplicity, I shall adopt
the future loss of earnings calculations based upon Mr Nicoll’s projection and
then give credit against any Smith v Manchester award that I might otherwise
make.
68.
In the light of this review of the evidence and these findings and assumptions, it
is now possible to turn to the figures. References to “Hilton” and Appendices
are references to the revised report of Hilton Sharp & Clark [1/286A]. The
report conveniently sets out mathematical calculations which I adopt as
indicated.
Past Loss of Earnings and Benefits
69. Loss of earnings to date are £10,810: Hilton Appendix 1 [1/286A/3]. Loss of
benefits to date are £7,014: Hilton Appendix 20 [1/286A/33]. The combined
total is £17,824. Interest at ½ rate from 1 April 2004 to date is approximately
4.5%: £802
Care & Attendance
70. This head of claim is agreed for the past and future inclusive of interest in the
sum of £12,500.
Past Miscellaneous Expenses
71. This head of claim is agreed for the past in the sum of £1,000 inclusive of
interest.
23
Future Loss of Earnings and Benefits
72. The expected income on the assumption that he remained in the army and
progressed in accordance with paragraph 54 of Mr Nicoll’s report is £285,962:
Hilton Appendix 5 [1/286A/7]. To this must be added a sum to reflect the loss
of long-service bonuses as described in paragraph 60 above. I assume that they
would be taxed at 22%, apply a discount for accelerated receipt of the bonus in
2008 and adopt a rounded aggregate sum of £3,800. This provides a total of
£289,762.
73.
The anticipated income in civilian employment on the basis of paragraph 59 of
Mr Nicoll’s report is £200,495: Hilton Appendix 1 [1/286A/3]. On this model it
is not contended that there is any continuing loss of earnings after the assumed
date on which the Claimant would have come out of the Army in April 2022
although there is the Smith v Manchester claim which I consider separately
below.
74.
The total for future loss of earnings is therefore £89,267.
75.
Future loss of benefits is derived from the figures set out in Hilton Appendices
15 and 21 on the assumptions there set out which are reasonable. Of course
there is no certainty as to when, if at all, the Claimant would have married. But
it is a reasonable working assumption that he would have married at the
comparatively late age of 30 and would have been married thereafter. This
produces an award of £33,644.
76.
The aggregate award for future loss of earnings and benefits is therefore
£122,911.
Smith v Manchester
77. The principles are well established. An award for loss of earning can and
should only be made if the Court is satisfied that there is a substantial or real
risk that the Claimant will lose his present or subsequent employment at some
time before the estimated end of his working life and that, if the risk
materialises, he will be at a disadvantage in seeking to obtain a job or an equally
well-paid job by reason of his injuries. If an award is to be made it should
reflect the present value of the risk of the financial damage which the Claimant
will suffer if the risk materialises: see Moeliker v Reyrolle & Co Ltd [1977] 1
WLR 132; Robson v Liverpool City Council [1993] PIQR Q78.
78.
It was Mr Nicoll’s view that, on the assumption that he retrains, the Claimant
will probably be on the labour market at least twice with a risk of greater
frequency. His reasoning was that, after qualifying, the Claimant will obtain his
first post-qualification job but will then wish to leave that job in order to move
up the ladder. I think that is likely to be correct; but it is also likely that, in such
circumstances, he will look for and find his next job before he gives up the first.
In my view the real risks are as follows:
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a)
b)
c)
d)
Upon qualification he will be in the employment market and will be at a
disadvantage because of his hand and a reduced residual psychological
incapacity;
In the period between obtaining his first post-qualification job and April
2022 there must be a real risk that he will find himself in the
employment market without having pre-arranged his next job. This may
be as a result of any one of a number of occurrences which are too well
recognised in today’s world of fluid employment to need enumerating
here;
In the period between April 2022 and retirement (which is likely to be
about a further 20 years) there is again a significant risk that he will find
himself on the open employment market involuntarily, for the same
range of reasons;
During all of these periods he will be at a disadvantage as against
uninjured competitors although the level of disadvantage will diminish
as he builds up a track-record of employment and moves towards
“professional” work and away from manual employments.
79.
In my view there are two further factors that need to be taken into account. The
first is that the loss of earnings calculation which I have already carried out
assumes a period of twelve months unemployment after the conclusion of his
HND. I would not expect him to take that long to find his first employment.
The second is that (subject to the three year period of the HND and the
subsequent year) the loss of earnings calculation assumes full and uninterrupted
employment had he remained in the Army and on the civilian model which is
now adopted. This assumption is valid if he was to remain in the Army. It
follows that any period of unemployment (and not merely the incremental
unemployment attributable to his disadvantage in the market) can be viewed as
a loss for the Claimant.
80.
It is important not to over-egg this head of claim. As I have said already, the
Claimant is and remains an impressive individual and I would expect him to be
quite readily employable, even in times of full employment. If I were to allow a
period of 6 months immediately after his period of training, I would not expect
him to be unemployed for more than a total of one full year between 2010/2011
and 2021/2022 because of his injuries. For the period from 2022 to retirement, I
would not expect him to be unemployed for more than one further year because
of his injuries. The possibility of obtaining lower paid employment than he
would have done if not subject to his injuries has already been taken into
account in the rates of earnings that have been projected for him.
81.
The considerations set out in paragraph 80 lend a spurious air of precision to
what must inevitably be an imprecise head of claim, not least because of the
element of accelerated receipt. I have come to the conclusion that, in addition
to the element that is already built in to the loss of earnings calculation, an
appropriate award under this head would be £15,000. This figure is not the
product of a precise calculation but takes into account all of the features that I
have set out above.
Loss of Pension
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82.
Hilton Appendix 2 [1/286A/4] sets out a calculation the mathematical accuracy
of which has not been challenged. The value of the Army pension which the
Claimant has lost is £103,766.
83.
This figure must be further discounted to allow for two arguments:
a)
b)
The Claimant may obtain pensionable employment in the period to 2022
in any event; and
The Claimant concedes that there should be a discount following Mallett
v McMonagle.
84.
It is common knowledge that pensions are in a state of flux. Mr Nicoll
confirmed what is also common knowledge, namely that the trend is away from
the provision of non-contributory pensions. The Army’s pension provision is
non-contributory and there is no evidence that there is any significant risk of
that changing during the period with which I am concerned. It is of course
possible that the Claimant will obtain employment with non-contributory
pension benefits at some stage between 2011 and 2022, but the evidence
suggests that this is unlikely. I would not discount the pension loss by more
than 10% for this contingency.
85.
I agree that there is a difference between the main loss of earnings claim and the
loss of pension claim and that the loss of pension claim should be discounted as
conceded by the Claimant. But it remains necessary to bear in mind that, if
uninjured, the Claimant would probably only have left the army if doing so
would have given him clear financial benefits; and, in calculating his overall
benefits, he would doubtless have taken his Army pension into account. I have
already said that, if necessary, I would find on the balance of probabilities that
he would have stayed in the Army to 2022 and I would make that finding
despite all of the Defendant’s submissions to the contrary, including those based
upon his youth. Given that he would probably not have moved except to better
himself, I consider that the discount to be applied on this ground is again
modest.
86.
Overall, I would discount the loss of pension claim by 25% and round the figure
to £75,000.
Future Loss of Services, DIY Etc
87. This head of loss is agreed in the sum of £12,500 for past and future inclusive of
interest.
Medical Treatment
88. This head of loss is agreed in the sum of £1,500 which has recently been paid by
way of interim payment.
Future Miscellaneous Costs
89. This head of loss is agreed in the sum of £1,000.
Summary
90.
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General damages
Pain, suffering and loss of amenity
20,000
Loss of congenial employment
7,000
- interest
743
£27,743
Past losses
Earnings (including benefits in kind)
17,824
- interest
802
Care & attendance (past and future inclusive of
12,500
interest)
Miscellaneous (inclusive of interest)
1,000
£32,126
Future losses
Earnings (including benefits in kind)
122,911
Smith v Manchester award
15,000
Loss of Pension
75,000
Services, DIY etc
(past and future including
12,500
interest)
Medical treatment
1,500
Miscellaneous
1,000
£227,911
Total
£287,780
Conclusion
91. Having approached the heads of damage on an item-by-item basis, I stand back
to look at the overall award in order to guage whether it is either inappropriately
high or inappropriately low for the injuries which the Claimant suffered and
their consequences. It seems to me that this is reasonable but by no means
excessive compensation for what has happened in the past and what will happen
in the future. In particular, I am firmly of the view that the approach which the
Claimant has taken to his loss of earnings and loss of earning capacity claims is
realistic and, if anything, conservative.
92.
I would therefore award the Claimant £287,780.
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