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.
Issues
Do servicemen owe a duty of care to fellow servicemen in battle conditions?
Decision/Outcome
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.
Updated 20 March 2026
This article accurately summarises the Court of Appeal’s decision in Mulcahy v Ministry of Defence [1996] QB 732. The core legal principle — that servicemen owe no duty of care to fellow servicemen in battle conditions as a matter of public policy, even where foreseeability and proximity are established — remains good law.
However, readers should be aware of significant subsequent developments in this area. The Supreme Court in Smith v Ministry of Defence [2013] UKSC 41 considered related questions about the liability of the MoD to armed forces personnel, including claims under the Human Rights Act 1998 (Articles 2 and 3 ECHR) and in negligence. The Supreme Court declined to strike out the claims at a preliminary stage, finding that it was not plain and obvious that no duty of care arose in all combat-related circumstances, and that the so-called “combat immunity” principle should not be extended beyond its established boundaries. Mulcahy was distinguished rather than overruled, but Smith makes clear that the scope of combat immunity is not unlimited and requires careful case-by-case analysis. Students and practitioners should read Mulcahy alongside Smith v Ministry of Defence for a complete and current understanding of this area.
