Dear Colleagues:
Thanks to Neil for sending this case around. Upon reflection, I
would have to say that neither of the judgments appeal to me. The
dissenters seem to think that the closest analogue are the police
"immunity" cases but to me those cases are not really on point. I
think that they are best understood as nonfeasance/failure to
rescue cases--the police are not liable for failing to prevent
crime since an ordinary citizen is not liable for failing to
prevent crime (there is no immunity involved). I also did not
think it helpful that the dissenters tried to assimilate the
concept of combat immunity into the third part of the Caparo
test. I think that therefore the majority are correct in thinking
that the combat immunity rule is a systematic concern of the law
that responds to or recognizes the executive's right to wage war
and to decide on the most effective mechanism for doing so.
However, I agree with Neil (and the dissenters) that if there is
such a systematic concern then the lines that the majority attempt
to draw are inappropriate.
Finally, neither judgment (at least in the tort law sections)
really seems to investigate what, to most people, would seem to be
the crux of the matter: what risks do soldiers voluntarily assume
when becoming part of the armed services. It seems to me that
many people would think the claims should fail since soldiers
assume the risk of death or injury when actively engaged with the
enemy as part of the core of function of being a soldier.
I might be barking up the wrong tree and would therefore
appreciate any thoughts that anyone has on this.
Sincerely,
Jason Neyers
Cassels Brock LLP Faculty Fellow in Contract Law
Associate Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435
On 20/06/2013 2:17 AM, Neil Foster wrote:
Dear Colleagues;
The important decision of the UK Supreme Court in
Smith
and ors v Ministry of Defence [2013] UKSC 41 (19 June
2013)
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0249_Judgment.pdf
holds by a slim 4-3 majority that both common law negligence
claims, and a claim under art 2 of the European Convention on
Human Rights, against the UK Ministry of Defence, in relation to
the deaths and serious injuries of UK soldiers in Iraq can
proceed to trial. The majority (Lord Hope, with whom Lord
Walker, Lady Hale and Lord Kerr agree) acknowledge the "combat
immunity" at common law spelled out in the High Court of
Australia decision in
Shaw Savill & Albion Co Ltd v
Commonwealth (1940) 66 CLR 344, but hold that the immunity
does not apply to "pre-battle" decisions such as the armour
strength of vehicles or whether appropriate electronic means
should be installed in tanks to avoid "friendly fire" incidents
as happened in one of these cases- see eg [92]. The dissenters
(Lords Mance, Wilson and Carnwath) disagree, arguing that it is
impossible to draw these lines clearly and that, by analogy with
the cases on police immunity when acting to prevent crime,
allowing such liability will generate litigation and presumably
lead to bad military decision making. I don't think it is just
because I am Australian that I think the
Shaw Savill case
is probably a better rule for the reasons given by the
dissenters.
There is also much discussion about the application of
Article 2 to combat zones which I will leave to other colleagues
better placed to comment on ECHR jurisprudence.
Regards
Neil
Neil Foster
Associate Professor in Law,
Newcastle Law School;
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
Room MC177,