Jason says:
“Could a soldier refuse to engage the enemy on the grounds that they should have better/safer equipment or more competent generals (ie that the military is
negligent)? That doesn't seem right to me but perhaps that doesn't flow from an ability to sue afterwards for these injuries.”
Indeed it doesn’t. It is
because a soldier can’t refuse to obey that we can’t read compliance with orders as signifying anything much about his/her intention. The army can say “Take one step forward, soldier!” but can’t add “BTW, we’ll take your step forward as an agreement
to run any resulting risk.”
Steve Hedley
Faculty of Law
University College Cork
9thlevel.ie
private-law-theory.org
From: Jason Neyers [mailto:jneyers@uwo.ca]
Sent: 26 June 2013 13:08
To: Hedley, Steve; obligations@uwo.ca
Subject: Re: UKSC on liability for injuries to soldiers on active service
Could a soldier refuse to engage the enemy on the grounds that they should have better/safer equipment or more competent generals (ie that the military is negligent)? That doesn't seem right to me but perhaps that doesn't flow from an
ability to sue afterwards for these injuries.
My gut reaction is that there is a difference between firemen and soldiers, a difference between ordinary employees and those in the service of the crown in the military--in any event, I would have liked to see some discussion of this in
the judgments instead of things being hidden behind opaque questions of fair, just and reasonable which ignore the fact that there is a pre-existing relationship between the parties.
On 06/26/13, "Hedley, Steve" <S.Hedley@ucc.ie> wrote:
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Jason Neyers said:
“… 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 …”
70 years ago, the E&W Court of Appeal were prepared to say that there some “inherently dangerous” employments where it could be shown that the employee “agreed
that what risk there was should lie on him” (Bowater v. Rowley Regis DC [1944] KB 476), and so Jason’s argument applied. But is this really the modern law? It doesn’t seem very logical ; presumably the claimant isn’t complaining about the inherent
risk, but about the additional risk created by the employer’s negligence. How could it be shown that the plaintiff agreed to this added risk? If it is in fact the case that the added risk is very small, then presumably the claim will fail on breach or causation
grounds.
Steve Hedley
Faculty of Law
University College Cork
9thlevel.ie
private-law-theory.org
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.
Neil Foster
Associate Professor in Law,
Newcastle Law School;
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
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Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435