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Mulcahy v Ministry of Defence [1996] QB 732;

[1996] 2 WLR 474; [1996] 2 All ER 758; [1996] PIQR P276; (1996) 146 NLJ 334

NEGLIGENCE, DUTY OF CARE, SEVICEMEN, SOLDIER INJURED DURING SERVICE, BATTLE CONDITIONS, SAFETY AT WORK, PERSONAL INJURY

Facts

The plaintiff was a soldier serving for the British Army in the Gulf War and was part of the team manning a howitzer. His unit was deployed in Saudi Arabia to fire the howitzer into Iraq. The soldier was ordered by his commander to fetch some water from in front of the gun carriage. While he was in front of the gun, the commander negligently fired it. As a result, the plaintiff was knocked off his feet and his hearing was adversely affected. The plaintiff brought an action against the Ministry of Defence (MoD) as his employer for damages for personal injury alleging that the department was vicariously liable for the gun commander’s negligence or alternatively, the department was in breach of its duty to provide safety at work by allowing the gun to be fired when the soldier was not the safety position required by the gun drill. The county court ruled in favour of the plaintiff. The MoD appealed to the Court of Appeal.

Issue

Do servicemen owe a duty of care to fellow servicemen in battle conditions?

Held

The appeal was allowed and the claim was struck out.

(1) Servicemen owe no duty of care to fellow serviceman in battle conditions since as a matter of public policy and common sense it would not be fair, just and reasonable to impose such a duty on soldiers when engaging with the enemy during hostilities.

(2) This is the case even if the sufficient proximity of relationship to establish a duty of care and the foreseeability of damage are proved.


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