Law Report: US cannot be sued by airman: Littrell v United States of America - Court of Appeal (Lord Justice Nourse, Lord Justice Rose and Lord Justice Hoffmann), 12 November 1993

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An American servicemen cannot sue the US government in the English courts for damages for injuries arising out of allegedly negligent medical treatment at an American military hospital on an American base in England since the treatment, which was in the context of the US government's maintenance of its forces in the UK, was an act in the exercise of US sovereign authority and therefore immune from suit.

The Court of Appeal dismissed an appeal by the plaintiff, Ricardo Louis Littrell, from the decision of Sir Gervase Sheldon, sitting as a High Court judge, that the United States government was immune from suit.

The plaintiff, a US citizen, was a staff sergeant in the US Air Force stationed at RAF Mildenhall, Suffolk. He was treated for asthma at the US military hospital at Lakenheath. He claimed that the negligent insertion of a drip into his arm caused him to lose the use of the arm. He was discharged as medically unfit. His claim to compensation in the US was barred on the ground that the US government was immune from suit for injuries to servicemen: Feres v United States (1950) 340 US 135.

Sir Gervase Sheldon dismissed the plaintiff's claim in England against the US government on the grounds that the US government was immune from suit under the Agreement regarding the Status of Forces of Parties to the North Atlantic Treaty (Sofa) and that his medical treatment was an act jure imperii, the exercise of sovereign immune authority, and not an act jure gestionis, of a private or commercial character, for which the US was not immune.

Maurice Mendelson QC, Andrew Buchan and Malcolm Shaw (Cunningham John & Co, Thetford) for the plaintiff; Charles Falconer QC, and Timothy Saloman (Nabarro Nathanson) for the US government.

LORD JUSTICE ROSE said that Sofa had not been incorporated into English municipal law. The terms of a treaty conferring immunity were ineffective in English law unless confirmed by the enactment of Parliament. Any other conclusion would permit the Crown by entering into a treaty to legislate without Parliament's consent.

In the absence of statutory enactment, it was the common law, including the incorporated rules of customary international law, which identified and defined the extent of sovereign immunity, and it was the common law at the time when the claim was made which was determinative. Therefore, Sofa was irrelevant to the plaintiff's claim.

As to whether the medical treatment giving rise to the claim should be characterised as jure gestionis or jure imperii, as set out in I Congreso del Partido (1983) 1 AC 244, as a matter of first impression, it would be astonishing if the plaintiff were able, in a foreign court, to recover from the state in whose forces he served, in respect of treatment provided by that state as an adjunct to that service, compensation on a basis not sustainable in the court of the state which he served. Such a conclusion would constitute a clear and undesirable interference with the relationship between a state and its armed forces.

The activity here was the medical treatment by the US government in one of its base hospitals of a member of its forces, in the context of its maintenance of those forces in the UK. The nature of the treatment, the identity of those involved and the place where it was given were factors which, together, pointed irresistibly to the conclusion that the judge was right in characterising this as jure imperii.

LORD JUSTICE HOFFMANN, agreeing, said that the context in which the act took place was the maintenance by the US of a unit of the US Strategic Air Force in the UK. That looked about as imperial an activity as could be imagined. The operation of a military hospital was a recognised military activity. The judge was right to dismiss the action.

LORD JUSTICE NOURSE, agreeing, said that the plaintiff was being treated by the US government in the performance of its sovereign function of maintaining its armed forces in this country.

Ying Hui Tan, Barrister