COMBAT IMMUNITY
An Update
David Knifton
Exchange Chambers
Liverpool, Manchester & Leeds
INTRODUCTION
“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 has been established…The principle
must extend to all active operations against the
enemy.”
Shaw Savill & Albion Co v The Commonwealth (1940)
66 CLR 344, per Dickson J
BASIS OF THE DOCTRINE?
• Rule of policy, based on public interest of the
state prevailing over the interests of the
individual
• Exclusionary immunity, where duty of care would
otherwise exist? (cf advocates’ immunity prior to
Arthur (JS) Hall v Simons [2002] 1 AC 615)
• No duty owed, as not fair, just and reasonable?
(Caparo Industries v Dickman [1990] 2 AC 605)
• No duty owed, as such issues non-justiciable?
HISTORICAL DEVELOPMENT
• Pre-1947 – no right of action in tort against the
Crown
• Crown Proceedings Act 1947 s2 – Crown liable in
tort, including as employer
• s10 exemption – no liability for death or personal
injury to member of armed forces caused by
negligence of another member of armed forces, or in
consequence of the condition of service property,
provided Sec of State certified that entitled to war
pension
• Crown Proceedings (Armed Forces) Act 1987 –
s10 immunity abolished from 15.5.87
• s2 – Sec of State permitted to revive s10 by
statutory instrument where necessary or
expedient by reason of any imminent national
danger or great emergency, or for purposes of
any warlike operations, or operations in
connection with warlike activity, in any part of
world outside UK
• Never exercised to date
IMMUNITIES AND THE HRA 1998
• Hill v Chief Const of W Yorks [1989] AC 53 – on
public interests grounds, no duty owed to victim
in investigation of crime
• Osman v UK (1998) 29 EHRR 245 – blanket policy
immunity, without consideration of merits of
claim, contravened Art 6 right to fair trial
• Z v UK (2001) 34 EHRR 3 – legitimate for UK law
to limit liability in tort on considerations of public
policy, and for claims to be struck out where no
duty existed. Art 6 concerned with procedural
obstacles to fair hearing, not situations where
substantive law precluded a claim
CASES ON COMBAT IMMUNITY
Ex parte Marais [1902] AC 109
PC refused leave to appeal alleged wrongful
detention by military authorities in S Africa under
martial law
“where actual war is raging acts done by the
military authorities are not justiciable by the
ordinary tribunals…The truth is that no doubt has
ever existed that where war actually prevails the
ordinary Courts have no jurisdiction over the action
of the military authorities” per The Lord Chancellor
Shaw Savill & Albion Co Ltd v The
Commonwealth (1940) 66 CLR 344
Collision between Australian Navy ship and
another vessel during WWII, due to negligent
navigation by captain, did not fall within combat
immunity, as did not involve actual operations
against the enemy, as opposed to other
activities of combatants in time of war
“It may not be easy under conditions of modern
warfare to say in a given case upon which side of
the line it falls” – per Dickson J
Burma Oil Co Ltd v Lord Advocate [1965] AC 75
Destruction of oil installations to prevent capture by
advancing Japanese army in WWII would not have
been subject to compensation if “battle damage”
during course of military operations
“Such damage must include both accidental and
deliberate damage done in the course of fighting
operations” – per Lord Reid
“I would define the line as excluding damage done
in the battle or for the necessities of the battle” –
per Lord Pearce
Mulcahy v MOD [1996] 1 QB 732
Claim for injuries suffered by artilleryman as result
of negligence of gun commander firing live rounds
from Saudi Arabia into Iraq during 1st Gulf War was
struck out, as he was in a war zone taking part in
warlike operations, and it would not be fair, just and
reasonable to impose a duty of care
“public policy does require that, where 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” per Sir Iain Glidewell
CA declined to consider limits of doctrine
• What if firing guided missile 100 miles?
• What if arming a bomber?
• What if driving vehicle bringing ammunition to
front line from rear?
Multiple Claimants v MOD [2003] EWHC 1134
Claims for PTSD sustained as consequence of
combat exposure in N Ireland, Falklands, 1st Gulf
War or peace-keeping in Bosnia
Owen J held that:
• A soldier does not owe a duty of care to
another soldier when engaged with enemy in
course of combat
• MOD not under duty to maintain safe system
or work for personnel engaged with enemy in
course of combat
As to scope of combat immunity:
• Combat immunity extends to all active operations
against the enemy in which personnel are
exposed to attack or threat of attack (attack and
resistance, advance and retreat, pursuit and
avoidance, reconnaissance and engagement)
• Combat immunity extends to planning of and
preparation for operations where personnel may
come under attack or meet armed resistance (but
doubted by majority in Smith v MOD)
• Applies to peacekeeping and policing operations
where personnel are exposed to attack or threat
of attack
Bici v MOD [2004] EWHC 786
UK soldiers who shot Albanians during peacekeeping operations in Kosovo were not covered by
combat immunity, as they were merely dealing with
street disorder, and were not in a combat situation
“The courts recognise that very exceptionally the
basic liberties of the citizen may have to give way to
vital interests of state. When armed clash or attack
is imminent [and serious], the citizen may be an
unfortunate victim, whether as a result of enemy
action or sometimes friendly fire or precautionary
actions…It is not the conduct of the victim which
justifies immunity from suit but rather a very
pressing public interest” – per Elias J
Elias J held that:
• Doctrine was related to “necessity” – exceptional
defence to state to act free from any legal fetters
for negligent or intentional acts during actual or
imminent armed conflict
• Where doctrine applied, its effect was to remove
jurisdiction of court - as such, should be narrowly
construed (approved by majority in Smith v MOD)
• It requires a significant degree of necessity before
combat immunity can trump the fundamental
protection of recourse to courts
Smith v MOD [2014] AC 52
2 groups of claims re UK deployment to Iraq
2003-09:
• Snatch Land Rover claims – alleged failure to
provide adequate protection from IEDs, in
breach of Art 2 (right to life) and negligence
• Challenger claims – alleged negligent failure to
provide technology or adequate recognition
training to prevent injury/death due to
friendly fire from 1 tank to another, during
active combat phase
D applied to strike out claims:
• Deaths occurred outside UK jurisdiction under
Art 1 ECHR, so Art 2 duty not owed
• Alleged failures re military procurement,
training etc were non-justiciable under
combat immunity, or because not fair, just and
reasonable to impose duty
Owen J at 1st instance:
• Struck out Art 2 claims as outside UK jurisdiction,
applying territorial test (R (Smith) v Oxford Coroner)
• Refused to strike out negligence claims for failure to
provide suitable equipment, available technology
and adequate recognition training, as combat
immunity should be narrowly construed to planning
and preparation of the particular operations in which
injury was sustained
• Struck out negligence claim re sending Snatch Land
Rover on patrol, when previously withdrawn due to
earlier deaths, on basis of combat immunity
CA:
• Upheld strike-out under Art 2, as outside
jurisdiction, though conflict between ECtHR and
SC authorities (Al Skeini and Smith)
• Allowed all negligence claims to go to trial
• MOD owed employer’s duty of care, so cases
excluding duty re non-justiciable issues of
procurement etc on public policy grounds did not
apply – policy issues were relevant to standard of
care (ie breach), not to existence of duty
• Claims did not allege acts or omissions in heat of
battle or during “active operations”, so arguably
combat immunity would not apply – factual issue
to be determined at trial
SC:
• Unanimously allowed appeal re Art 1 – extraterritorial jurisdiction under ECHR applied due to
authority and control exercised by UK in Iraq
• By 4:3 majority, allowed all claims to go to trial
• Lord Hope (majority) – combat immunity was a
special rule, which should be narrowly construed, as
in Bici, but arguably did not apply here, and issue of
whether fair, just and reasonable to impose duty
should be determined at trial
• Lords Mance and Carnwath (minority) – combat
immunity should be regarded as application of fair,
just and reasonable test, not as separate doctrine,
but claims should be struck out on basis that no duty
owed re active military operation
Lord Hope (Walker, Hale & Kerr JJSC concurring):
• Combat immunity best thought of as a special rule,
excluding any duty when it applies
• Scope of immunity should be construed narrowly to
actions in course of actual or imminent armed
conflict, and not extend to planning and preparation
• Challenger claims concerned failures long before
commencement of hostilities, when time to think,
plan and exercise judgment, far removed from
pressures and risks of active operations
• Snatch Land Rover claims may involve failures during
active operations, within combat immunity, but
factual issues must be left for trial
Lord Hope (cont’d):
• Question whether no duty owed as not fair, just and
reasonable on grounds of policy, could not be
determined without evidence at trial
• Close attention must be paid to time and
circumstances of alleged failures
• Easier to find breach re pre-deployment decisions,
when time to assess and plan risks, than when
attributable to actions in theatre
• Great care needs to be taken not to subject military
to duties that are unrealistic or excessively
burdensome, having regard to public interest,
unpredictable nature of armed conflict, and
inevitable risks, when striking balance as to what is
fair, just and reasonable
Lord Mance (Wilson & Carnwath JJSC concurring):
• Combat immunity is not so much an entirely separate
principle as the result of a conclusion that not fair, just
and reasonable as question of public policy to impose
duty of care in conduct of active military operations or
war
• Cannot separate issues re supply of technology and
equipment from decisions on ground during active
service
• Allegations of failures in equipment and training involved
policy issues of huge width, essentially political rather
than legal, as in Hill v Ch Const
• Different considerations applied re equipment and
training in peacetime
• Death or injury unconnected with risks of active combat
(eg due to defect in equipment) might give rise to duty
Lord Carnwath (minority):
• Starting point should be 3-stage Caparo test, rather than
separate doctrine of combat immunity
• New duties should be developed incrementally and by
analogy
• Closest analogies were police “immunity” in investigation
of crime (Hill) or control of major public disorder (Hughes
v NUM), and emergency services not liable for risks
inherent in their employees’ work (King v Sussex
Ambulance)
• Later Snatch Land Rover cases, after combat operations
ceased, involved failure to deal with known and
preventable risk, so not excluded as matter of policy
WHERE NEXT?
• Smith – strike-out only. Trial some way off
• Factual difficulties in proving alleged failures
fall outside non-justiciable political judgments
or issues of policy
• Difficulties in proving breach, where injury
occurred during risks of active operations
• Causation issues – did injury result from
inadequate equipment/training (duty?), or
decisions/acts
in
battle
conditions
(immunity)?
PINZGAUER CLAIMS
• Injuries sustained from IEDs in Afghanistan when
patrolling in Pinzgauer Vector
• Design faults – no V-shaped hull; driver over front
axle (“cone of destruction”)
• Better-protected vehicles (eg Mastiff) available at
comparable cost
• Other NATO forces used mine-resistant vehicles
• Concerns aired in Parliament pre-deployment
David Knifton
Exchange Chambers
Liverpool, Manchester & Leeds
www.exchangechambers.co.uk
knifton@exchangechambers.co.uk