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MoD told by Supreme Court it does have a 'duty of care' to provide proper equipment

MoD told by Supreme Court it does have a ‘Duty Of Care’ to provide proper equipment to soldiers going to war


Stephen Allbutt

19 June 2013

The MoD has lost its Supreme Court challenge against an earlier Appeal Court judgment, which forced it to recognise that it owes a duty of care to provide adequate equipment to service personnel engaged in military operations.  
 

 
The Supreme Court refused to allow the MoD to argue that it owes no duty of care to the ‘Challenger Claimants’ to properly equip them and their Challenger tanks from friendly fire attack.
 
The ‘Challenger claimants’ include the widow of Cpl Stephen Allbutt, who was killed when the Challenger II tank he was in came under fire from another British Challenger II tank on the 4th day of the Iraq war in 2003.
 
The group also includes Cpl Dan Twiddy and Trooper Andy Julien, who suffered severe injuries in the incident.
 
The Court dismissed the MoD’s contention that there is no duty owed to the Claimants by virtue of combat immunity because their deaths and injuries were suffered in the battlefield.
 
Lord Hope, in delivering the majority judgment said: “The Challenger claims are about alleged failures in training, including pre-deployment and in-theatre training, and the provision of technology and equipment. They are directed to things that the claimants say should have been done long before the soldiers crossed the start line at the commencement of hostilities [para 91]
 

 
“…These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances. For this reason I would hold that the Challenger claims are not within the scope of the doctrine, that they should not be struck out on this ground and that the MOD should not be permitted, in the case of these claims, to maintain this argument” [para 95]
 

 
Shubhaa Srinivasan, from law firm Leigh Day who represents all the Challenger claimants, said: “We are extremely pleased with the decision. The highest court in the land has now ruled the MoD, as employer must accept that it owes a duty of care to properly equip service personnel who go to war. We have constantly argued that the MOD’s position is morally and legally indefensible. 
 

 
“The claimants’ claims have always been about decisions taken on provision of adequate equipment and training to British troops which are far removed from the battlefield. This equipment ranges from the very basic such as GPS devices, to sophisticated satellite tracker systems, which the Americans had available to them.
 
“It seems incredible that it was often left up to soldiers themselves to buy this equipment as they felt compelled to, so as to better protect their own lives and the lives of those they were responsible for.
 
“The MoD argument that if they accept a duty of care it would inhibit decisions on the battlefield or undermine morale and military discipline seems to defy logic. We argue that morale can only be improved if the Army accepts this duty of care and does everything in its formidable powers to reduce the risks for service personnel on the battlefield”
 


Background to the case

The Supreme Court hearing was held over four days in February 2013 and saw the MoD challenge two sets of claims following a ruling from the Court of Appeal in October 2012 that negligence claims, made against it by the three Challenger Claimants and one claimant in relation to the Snatch Land Rover (the Ellis claim), can continue through the Courts.
 

 
The MoD had argued that where soldiers die or get injured in battle as a result of faulty or inadequate military equipment, the MoD owes no duty of care to them because of the combat immunity principle.
 
They also argued that it is not ‘fair, just and reasonable’ to impose on the MoD a duty of care to its soldiers in claims alleging provision of inadequate equipment as such claims give rise to difficult issues of procurement and questions as to the scarcity of allocation of resources, which are essentially political rather than legal matters.
 
Accordingly the MoD argues British courts are not the place where such matters are to be considered, such scrutiny should be left to politicians in Westminster accountable to Parliament.
 

 
However in his October judgment, in the Court of Appeal, Lord Neuberger described the MoD’s arguments to have the Challenger claims thrown out of court as ‘fatally flawed’ and agreed with the original Court ruling that the Challenger claims should continue on the grounds of negligence.
 
Similarly, Lord Justice Moses (in delivering the majority judgment) also allowed the negligence claims of the Ellis claims in the Snatch Land Rover cases to proceed.
 
However, Lord Justice Moses ruled that the claims brought by the Snatch Land Rover cases on human rights grounds could not be pursued. It is this decision that is being appealed by the families of the Snatch Land Rover victims.
 

 
In response to the Snatch appeal, the MoD are arguing that if the Supreme Court is to find that the MoD is not under any obligation to protect soldiers from deaths or injury in active military operations  (under Article 2 of the Human Rights Act) then there ought to be no duty of care in negligence for such death or injury as well.
 
The MoD, by adopting an ‘all or nothing’ approach have brought the Challenger claims within their argument in the Supreme Court despite their initial statement that they would not appeal against the judgment in relation to the Challenger claims.

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