To supplement a previous post, and remembering that the case of Smith & Others v MoD, 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, in cases of damage to property, and/or personal injury or death of fellow soldiers or civilians. 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, 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) 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 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 (and once again, focusing specifically on the Challenger claims, as per the previous post) 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, 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, 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, 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, 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, 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.
Linda Roland Danil is a Doctoral Candidate, Teaching Assistant, and Researcher at the University of Leeds, UK.
 Danil, L.R. (2012): The Value of a Soldier: Considering Combat Immunity”, Critical Legal Thinking, 11 July 2012 [Online] Available: http://criticallegalthinking.com/2012/07/11/the-value-of-a-soldier-considering-combat-immunity/ [12 September 2012].
  EWHC 1676 (QB)
 Caparo Industries plc v. Dickman  1 All E.R. 568: the three-fold test stipulates that in order for a duty of care to arise the following requirements must be met: the damage must be reasonably foreseeable (an objective test) as a result of the defendant’s conduct; there must be a sufficient relationship of proximity between the parties; and it must be fair, just and reasonable to impose liability.
 As elucidated by Elias J in Bici v. Ministry of Defence  EWHC 786 (QB), at paragraph 90.
  QB 732
 Groves v. Commonwealth of Australia  150 C.L.R. 113
  EWHC 1134 (QB)
 Supra, footnote 2.
 Supra, footnote 1.
 Supra, footnote 4.
 Supra, footnote 7.
 Supra, footnote 5.
 Repeal of s.10 of the Crown Proceedings Act 1947.
Subject to section 2 below, section 10 of the Crown Proceedings Act 1947 (exclusions from liability in tort in cases involving the armed forces) shall cease to have effect except in relation to anything suffered by a person in consequence of an act or omission committed before the date on which this Act is passed.
 The text of the provision is too long to be attached here. Please visit: http://www.legislation.gov.uk/ukpga/1987/25 for the full text.