Revisiting combat immunity: the law

To sup­ple­ment a pre­vi­ous post,[1] and remem­ber­ing that the case of Smith & Oth­ers v MoD,[2] which con­sidered com­bat immunity, is still pending appeal, this art­icle wishes to exam­ine the concept of com­bat immunity as detailed under com­mon and stat­utory law, spe­cific­ally as it relates to a sol­dier (and thus exclud­ing civil­ians and dam­age to prop­erty from the ana­lysis) in more depth. This should con­sequently con­trib­ute towards cla­ri­fy­ing the pos­i­tion of a sol­dier with regards to com­bat immunity, under both com­mon and stat­utory law.

Com­bat immunity is a defence, or more spe­cific­ally, an exemp­tion from tor­tious liab­il­ity that applies to mem­bers of the armed forces or the Gov­ern­ment, within the con­text of actual or immin­ent armed con­flict. It demarc­ates the para­met­ers in which a duty of care does not arise, based upon tra­di­tional Cap­aro principles,[3] in cases of dam­age to prop­erty, and/​or per­sonal injury or death of fel­low sol­diers or civilians.[4] The com­mon law prin­ciple of com­bat immunity within the jur­is­dic­tion of the United King­dom was first expli­citly developed in the case of Mul­cahy v. Min­istry of Defence,[5] in which the Court of Appeal ruled that a sol­dier did not owe a fel­low sol­dier a duty of care in tort when enga­ging the enemy in the con­text of hos­til­it­ies. Fur­ther, neither was there a duty on the part of the Min­istry of Defence (MoD) to main­tain a “safe sys­tem of work” in battle situ­ations. The rul­ing was based upon com­mon sense and gen­eral policy con­sid­er­a­tions (and thus echo­ing the judg­ment of Gibbs CJ in a 1982 Aus­tralian case)[6] that a duty of care should not be exten­ded to the neg­li­gent acts of one ser­vice­man to another, or for the MoD to provide the afore­men­tioned “safe sys­tem of work”, as per Neill LJ at pages 749 – 50 of the case, para­graphs G-​H.

Mul­tiple Claimants v MoD[7] was a case deal­ing with sol­diers suf­fer­ing from post-​traumatic stress dis­order (PTSD). Although it was ruled that the defend­ant (the MoD) did not owe a duty of care to their ser­vice per­son­nel in that par­tic­u­lar case, Mr Justice Owen provided that, as mat­ter of prin­ciple, not all claims for per­sonal injury or death of mem­bers of the armed forces in com­bat would be rendered non-​justiciable solely because the injury was incurred in combat.

In the case of Smith & Oth­ers v MoD[8] (and once again, focus­ing spe­cific­ally on the Chal­lenger claims, as per the pre­vi­ous post)[9] Mr Justice Owen rejec­ted the MoD’s claim that it did not have a duty of care towards the sol­diers due to com­bat immunity. The decision, how­ever, is to be spe­cific­ally con­tex­tu­al­ized within the sphere of provid­ing adequate pre-​deployment and in-​theatre train­ing and the adequate pro­vi­sion of equip­ment, and does not encom­pass com­bat immunity as a whole. Thus, at para­graph 106 of the judg­ment spe­cific­ally, Mr Justice Owen held that in rela­tion to causes of action in neg­li­gence, the ques­tion in any par­tic­u­lar case will be whether the cir­cum­stances are such that it would not be fair, just and reas­on­able to impose a duty of care. Reach­ing a decision to that ques­tion would be fact-​sensitive, and it would depend upon, inter alia, the nature of the equip­ment in issue, its expense, avail­ab­il­ity and a risk/​benefit ana­lysis. Fur­ther, in Mr Justice Owen’s view the MoD did not provide any com­pel­ling argu­ments towards com­bat immunity apply­ing to pre-​deployment train­ing. How­ever, he hes­it­ated on the ques­tion of liab­il­ity with regards to in-​theatre train­ing, and although he sug­ges­ted that it should fall within the com­bat immunity prin­ciple, he left the res­ol­u­tion of the mat­ter to the trial judge on the evidence.

In addi­tion, and in con­cur­rence with Elias J in Bici,[10] Mr. Justice Owen also provided that the prin­ciple of com­bat immunity should be nar­rowly con­strued, and its applic­a­tion lim­ited to situ­ations in which the interests of the indi­vidual mem­ber of the armed forces must of neces­sity be sub­or­din­ated to the attain­ment of the mil­it­ary object­ive. Import­antly, Mr. Justice Owen, echo­ing his earlier reas­on­ing in Mul­tiple Claimants,[11] stated at para­graph 96, and reit­er­ated in para­graph 108 of the judg­ment, that:

I hold to the view that there is no basis for hold­ing as a mat­ter of prin­ciple that claims for per­sonal injury or death of mem­bers of the armed forces are not jus­ti­ciable simply because the dam­age was incurred in combat.

Such a state­ment thus extends the pos­sib­il­ity to attend to poten­tial claims for per­sonal injury or death that occur to sol­diers in com­bat more intensely, and with an increased poten­tial for suc­cess, in the future. The state­ment is also a strik­ing depar­ture from the judg­ment in the earlier case of Mul­cahy,[12] which pro­pounded the prin­ciple that no duty of care is owed for per­sonal injury or death that has occurred in a war zone dur­ing act­ive service.

The stat­utory prin­ciple of com­bat immunity is codi­fied in the Sec­tion 10 of the Crown Pro­ceed­ings Act 1947. Sec­tion 10 of the 1947 Act there­fore oper­ates to pre­vent pro­ceed­ings being brought against the Crown with regards to the death or per­sonal injury of a mem­ber of the armed forces, provided that the Sec­ret­ary of State for Defence provides a cer­ti­fic­ate that the death of injury is deriv­at­ive to ser­vice for the pur­poses of enti­tle­ment to a war pen­sion. Sec­tion 1 of the Crown Pro­ceed­ings (Armed Forces) Act 1987,[13] however, removes the total blanket pro­tec­tion provided by the 1947 Act (although it does not act ret­ro­spect­ively). Non­ethe­less, as per Sec­tion 2 of the 1987 Act,[14] the Sec­ret­ary of State can rein­sti­tute the total blanket pro­tec­tion if he con­siders it “neces­sary and expedi­ent to do so”, due to “any immin­ent national danger or of any great emer­gency that has arisen”; or for the pur­poses of any war­like activ­ity in any part of the world out­side of the UK, of any other oper­a­tions which are, or are to be car­ried out in con­nec­tion with the war­like activ­ity of any per­sons in any such part of the world. In short, once the Sec­ret­ary of State stip­u­lates that Sec­tion 1 of the 1987 Act no longer applies, com­bat immunity com­pre­hens­ively returns.

Thus, if the Sec­ret­ary of State for Defence chooses to do so, under Sec­tion 2 of the Crown Pro­ceed­ings (Armed Forces) Act 1987, com­bat immunity can be com­pre­hens­ively rein­sti­tuted, thus stat­utor­ily bar­ring the sol­dier from civil action with regards to neg­li­gence in UK courts. If the Sec­ret­ary of State has not so acted, then in any poten­tial case a court has to con­sider whether a duty of care exists at com­mon law.

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