Combat immunity argument rejected

Posted: 21st October 2012

In permitting the families of four soldiers who died in Iraq to pursue damages claims against the Ministry of Defence (MoD), the Court of Appeal has rejected arguments that the provision of equipment to forces on active duty falls within the immunity from suit which applies to combat situations.

In two separate cases, the families claim that inadequate equipment was responsible for the soldiers’ deaths. In one case, the lack of armour plating on a soft-skinned Land Rover is criticised and, in the other, the failure to provide troops with available technology is alleged to have caused deaths in a ‘friendly fire’ incident.RCJ

Lord Justice Moses rejected the MoD's arguments that the claims should be struck out on the basis of ‘combat immunity’. The judge, sitting with Lord Neuberger, and Lord Justice Rimer, said that the duty of care owed by the MoD to services personnel is long-established and that Parliament cannot have been of the view that the imposition of liability in negligence was ‘detrimental to the troops’.

He added: ‘The fact that policy considerations and the scarcity of resources will arise in relation to allegations of negligence against the MoD provides no basis for distinguishing the MoD from any other public body in relation to the duty it owes to its employees.’

The judge also rejected the MoD’s arguments in respect of ‘combat immunity’, saying that decisions relating to provision of equipment to services personnel are often taken well before, in some cases many years before, the active operations in which death or injury are caused.

However, the MoD succeeded in persuading the court that linked cases, in which it was alleged that inadequate equipment amounted to a violation of the ‘right to life’ enshrined in Article Two of the European Convention on Human Rights, had rightly been struck out. The court ruled that the convention does not apply to the armed forces of signatories when engaged in operations abroad.