No duty of care owed to soldier in wartime

LAW REPORT 29 February1996 Mulcahy v Ministry of Defence; Court ofAppeal (Lord Justice Neill, Lord Justice McCowan and Sir Iain Glidewell); 21 February 1996

One soldier does not owe to another a duty of care when engaging the enemy in the course of hostilities. Accordingly, a soldier injured by the negligent firing of an artillery gun during the Gulf War was unable to sue the Ministry of Defence for damages.

The Court of Appeal allowed the MoD's appeal against the decision of Judge Walker, sitting in Dewsbury County Court on 22 September 1994, and struck out, as disclosing no cause of action, a claim brought by the plaintiff, Richard Mulcahy.

According to his pleaded case, the plaintiff was a soldier serving with 32 Heavy Artillery Regiment, 74 Battalion, during the Gulf War. In February and March 1991 he was part of a team manning an M110 8-inch Howitzer gun deployed in Saudi Arabia to fire into Iraq. The team was under the command of Sergeant Warren, who was the only person allowed to fire the gun. The plaintiff's job was to swab out the breech after firing, for which he was provided with a bucket and mop.

At a time when the gun was ready for firing, Sgt Warren ordered the plaintiff to fetch a jerrycan of water for the mop bucket, which required him to go to the front of the gun carriage where the jerrycans were stored. While he was to the front of the gun, Sgt Warren negligently caused the gun to fire and the discharge knocked the plaintiff off his feet, whereafter he was temporarily unable to focus properly, was disorientated and his hearing adversely affected.

He claimed damages for personal injury on grounds of Sgt Warren's negligence, for which the MoD was vicariously liable, and breach of the MoD's duty to maintain a safe system of work.

Philip Havers QC and Ian Burnett (Treasury Solicitor) for the MoD; Simon Hawkesworth QC and David Gripton (Wilkinson Woodward & Ludlam, Halifax, W Yorks) for the plaintiff.

Lord Justice Neill said that section 10 of the Crown Proceedings Act 1947 had prevented proceedings being brought in respect of the death or injury of a member of the armed forces caused by the negligence of another member of the armed forces, provided a Secretary of State issued a certificate that the death or injury was attributable to service for the purposes of entitlement to a war pension.

As time passed, however, there was growing dissatisfaction that section 10 barred claims in tort even in peacetime conditions.

The Crown Proceedings (Armed Forces) Act 1987 removed the blanket protection of section 10 of the 1947 Act. But section 2 provided for the revival of its effect, by order of the Secretary of State, for "the purposes of any warlike operations in any part of the world outside the United Kingdom". Such an order could have been made for the purposes of the Gulf War, but no such order was made.

The MoD relied on a number of cases in which it had been held that no duty of care existed in respect of injury or damage occurring under "battle conditions": see Shaw Savill and Albion Co Ltd v Commonwealth (1940) 66 CLR 344, 361, 356; Groves v Commonwealth (1982) 150 CLR 113, 40 ALR 193, 195, 208; Burmah Oil Co v Lord Advocate [1965] AC 75, 110, 162, 169 and Hughes v NUM [1991] ICR 669, 680. In his Lordship's judgment, the circumstances in which the plaintiff was injured clearly constituted "battle conditions" in the sense contemplated.

The MoD accepted that two components of a duty of care, proximity and foreseeability of damage, were present in this case. The question was whether as a matter of policy it was fair, just and reasonable that a duty of care should be imposed on a soldier in his conduct towards another when engaging the enemy during hostilities.

In his Lordship's opinion, there was no basis for extending the scope of the duty of care so far. Nor was there a duty on the MoD in these battle conditions to maintain a safe system of work.

Paul Magrath, Barrister