From: Duncan Fairgrieve <d.fairgrieve@biicl.org>
To: Jason Neyers <jneyers@uwo.ca>
Neil Foster <Neil.Foster@newcastle.edu.au>
CC: obligations@uwo.ca
Date: 01/07/2013 13:23:50 UTC
Subject: RE : ODG: UKSC on liability for injuries to soldiers on active service

Dear Colleagues,

 

Just to add a slightly different take on the SCt judgment – in favour of the majority judgment.

 

I think the majority is right in construing combat immunity narrowly. Areas of non-justiciability have continued to be whittled away in both private and public law contexts, and my view is that it is right for the courts treat broadly-framed exclusionary rules with skepticism, whether that be articulated as a stand-alone immunity or through a non-actionability rule expressed in terms of it being not just, fair and reasonable to impose a duty (often mere judicial hunches – unsupported by hard evidence).

 

An interesting aspect of the majority’s judgment is the implication that the various policy factors and justiciability issues are to be factored into the analysis of breach rather than the existence of a duty of care. That suggests an interesting shift away from the duty as the control mechanisms, and has been reflected in other state liability case. It does present procedural challenges and makes it very difficult to deal with cases on a preliminary issue or a strike-out basis as it removes the bright line duty / lack of duty which assists in filtering cases at an early stage.

 

Not sure at all about the dissenters' parallels with the police cases. Jason makes the parallel with private citizens, but setting aside the point that the police are not ordinary rescuers but statutorily empowered, highly-trained and publicly funded to do so, ordinary citizens can still be liable if they make matters worse by botching a rescue, but the police are not even subject to that limited duty in respect of core functions (the fire service is under Capital Counties - another illustration of variable geometry in this area).

 

There is much talk in the SCt judgment about the need to avoid “Judicialisation of warfare”, but hasn’t that already occurred through the constraints of public international law ?

 

 

Best regards,

 

 

Duncan Fairgrieve

 

 


De: Jason Neyers [mailto:jneyers@uwo.ca]
Date: mar. 25/06/2013 18:49
À: Neil Foster
Cc: obligations@uwo.ca
Objet : Re: ODG: UKSC on liability for injuries to soldiers on active service

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,