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Published: Fri, 02 Feb 2018
Serving as a solider in the employment
Higgins, a serving solider in the employment of the Ministry of Defence (“MOD”), was on active duty in Afghanistan in 2009. One day, he was on patrol in a residential area and was hit in the chest by a bullet and suffered extensive injuries. Higgins claims that the MOD was negligent in that he had not been supplied by them with enhanced combat body armour (‘the armour”) due to shortages of such equipment. Thus, there was none had been available for him to wear when on the patrol. Higgins alleged that he was owed a duty of care in the tort of negligence by the MOD. The MOD admitted that, if Higgins had been supplied with the armour, he would have escaped without injury. Nevertheless, the MOD has denied that they owe a duty of care in tort of negligence to Higgins as his injuries were sustained in the course of active combat.
Before 15th August 1987  , it was almost impossible to sue the Crown as “the King can do no wrong” per Niell LJ  , and the Crown enjoyed “combat immunity” under S.10 of The Crown Proceedings Act 1947. S.10 of The 1947 Act was repealed by The Crown Proceeding (Armed Forces) Act 1987 (“The 1987 Act”) which removed the “combat immunity” and armed forces who suffered a personal injury as a result of their service now has a right to sue the Crown. Theoretically the Crown could be vicariously liable  for injuries sustained by its armed forces as a result of the negligence of another “in peacetime”  under The 1987 Act. Higgins can rely on S.1 of The 1987 Act to bring proceeding against the MOD for his personal injury claim during his employment service abroad in Afghanistan.
To succeed the allegation, Higgins must prove three matters: (1) the MOD owed him a duty of care in fact  and in law  as recognized by the court, (2) that the MOD was in breach of that duty of care and (3) that damage was caused by that breach of duty which can be fairly attributed to that breach  to Higgins.
In Higgins’s case, since there is “no direct English authority” to decide whether the MOD owe a duty of care in law to Higgins. In such a novel situation, to determine whether the MOD is vicariously liable as common employment in tort of negligence by failing to provide the armour to Higgins resulting of his injuries. Higgins must satisfy the “3 stage test” namely, “foreseeability”, “proximity” and it is “fair, just and reasonable” to impose a duty of care to the MOD, which the law recognizes and capable of give rise to liability in negligence to the MOD in such novel situation before any claims. (Caparo v Dickman  )
(1) “Foreseeability”. In Higgins’s case, the MOD admitted that if Higgins had been supplied with the armour on patrol, he would have escaped without injury. This implied that the armour is sufficiently enough to protect Higgins of any injury of the hit of the bullet to his chest during patrol.
Even if the MOD did not admit the shortage of supply the amour leads to Higgins’s serious injury, it remains the fact that the MOD didn’t provide a “safety system”  to Higgins when he was on patrol. It is reasonably foresee that Higgins has a high potential to be injured or caused death by the bullet hit in his chest. As a result, he suffered extensive injuries without the protection of the armour. The “negligence act or omission” of the MOD was amounted to a “real and immediate risk to life” towards Higgins. (Bourhill v Young  )
A normal reasonable man would reasonably foresee that in the condition as Higgins, he was too vulnerable to protect himself against the hit of the bullet. The likelihood of risk of injury  to Higgins ought to have reasonably foreseen that the MOD not supplying the armour to Higgins resulted his injury was a reasonably foreseeable consequence. Thus, “foreseeability” is established in Higgins’s case.
2) “proximity”. Higgins was a serving solider, under the employment of the MOD, on active duty in Afghanistan where he received his injury. Higgins, like the other public service personnel employed by the Crown who perform their duty in the United Kingdom, he was performing his public duty in Afghanistan. There was a “contractual relationship” between Higgins and the MOD where Higgins was an “employee” and the MOD was an “employer”, which the MOD has legal duty to take reasonable care to its “neighbour”  – Higgins and the courts would likely to attribute a duty of care to the MOD.
The MOD has a legal duty, like any other UK employers, to protect all its “employees” – the armed forces wherever he was stationed in the world during his tenure. The MOD is also vicariously liable for any negligence acts or omissions of its employees to another employee(s) committed in the course of employment imposed by the common law  .
If Higgins was not employed by the MOD and deployed to Afghanistan under military discipline, he would not present in the place where he suffered serious injuries. As armed forces, Higgins could not disobey any military order and had to patrol even though there was none of such equipment had been available for him to wear. The failure of the MOD in providing the armour to Higgins led to his serious injury. There is no information indicated there was other intervention caused Higgins injury.
By fact, there was a sufficient causation of the MOD in failure to supply sufficient armour to Higgins, which was below normal standard of care to its service employees, caused Higgins suffered serious injury. Thus, there is a sufficient “proximity” between Higgins and the MOD in fact and in law.
3) policy considerations: “fair, just and reasonable”
In considering whether the MOD owe a duty of care and vicariously liable to Higgins, Higgins must satisfy the “public policy consideration” test  . That is, it must be “fair, just and reasonable” for the English court to impose a duty to the MOD at the place where Higgins received his injury  .
Higgins, by facts, without the protection of the amour, he was “exposed to attack or the threat of attack” by the bullet hit into his chest when he was on patrol at the residential area in Afghanistan. The legal definition of “combat”  is “… all active operations against the enemy in which service personnel are exposed to attack or the threat of attack. It covers attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement.” Hence, “soldier does not owe a fellow soldier a duty of care …. engaged with an enemy in the course of combat,” and “the MOD is not under a duty to maintain a safe system of work for service personnel engaged with an enemy in the course of combat.” Higgins at the moment he received his injury, did fell within the legal definition of “combat” situation that he was in the course of combat activities.
Though the MOD shall vicariously liable to not providing “safe system” or failure to warn Higgins had resulted in his injuries in non-combat situation or during a military training exercise  but not applied in the course of combat activities as discussed above. At common law, no duty of care arises “in a service setting when related to immediate operational decisions and actions within a theatre of war or analogous situation” against enemy  . This is known as “combat immunity” and English courts are reluctant to impose a duty of care arise in connection with combat operations against the enemy. Technically, the MOD did not in breach of its duty of care by failing to provide a “safe system” to Higgins.
For policy considerations, the court will take into account if an extension of current scope of duty to the MOD in the course of combat serving abroad in Afghanistan; it might lead to a flood of litigation or attract any fraudulent claims than they are today once granted Higgins to succeed his litigation.
Secondly, it may diverse the MOD’s resources to finance local and/or overseas military operations if extend the current MOD’s scope of duty of care to its armed forces during combat operations. The increased combat operation litigations may increase financial burden towards the MOD as the MOD has to reserve “funds” to compensate any failure litigation alleged by its armed forces. It may lead to insufficient funds for the MOD to finance enhanced protective equipment for military operations. Subsequently, increases the injuries and/or the death of its armed forces during active combat operations with light protection. As a result, it extends the breach of MOD’s duty to take reasonable care to its armed forces.
Thirdly, during active combat operations, many immediate decisions have to be taken by soldiers in the battle field and the MOD is accountable for their decisions made. It is difficult for the MOD to maintain the same standards in relation to health and safety to its service personnel. It will fetter its armed forces to perform their public duty  if the MOD is liable for any negligent acts by its armed forces in active combat situation.
Finally, has there an alternative means of redress e.g. deployment of the armour to Higgins when sent him on patrol? There is insufficient information provided by the case. It is unreasonable to impose a duty of care owed by the MOD to its service personnel in the combat situation.
It seems that Higgins could not satisfy the requirements of policy considerations as the MOD is covered by the “combat immunity”. Subsequently, the MOD did not in breach of its duty and Higgins claim is unlikely to be success.
The “combat immunity” seems to be a bar to armed forces to access the courts. Higgins could not disobey any military order, thus on patrol without the armour. It seemed unfair to Higgins by “combat immunity” for the MOD to escape its liability to Higgins. Suggested Higgins can allege that the MOD violated the Article 2 of Human Rights Act 1998 (“The 1998 Act”) as the MOD failed to provide the “safe system” to Higgins which deprived his “right to life” even in the course of combat.
The MOD could defend that only the ECHR applied in combat operations abroad – Afghanistan  but not the 1998 Act. But Higgins could apply R (Smith) v Secretary of State for Defence  which held that “… British soldiers service abroad … without territorial limit … was protected by the Convention and the 1998 Act”. Higgins now can rely on The 1998 Act to claim that the MOD was in breach of the “substantive duty to protect life imposed by Article 2″ that the MOD put him in a “real and immediate risk to life”  when he was on patrol. There is not too “remote” to reasonably foresee the aforesaid injury caused to Higgins. Higgins may likely to succeed his claims in his allegation.
There was a sufficient link between Higgins and the MOD as satisfied by “foreseeability” and “proximity” tests, and the MOD has reasonably foresee that had not provide the armour to Higgins subsequent to his injury. However, it seems that Higgins cannot satisfy the “policy considerations” test as he was in the course of “combat” in which he was “exposed to attack or the threat of attack”. By “combat immunity”, the MOD does not owe duty of care to Higgins, and the MOD was not in breach of duty to Higgins, thus, the MOD no vicarious liability to Higgins.
However, followed by R. (Smith) v Secretary of State for Defence, Higgins can rely on The 1998 Act that the MOD in breach of its duty to protect his life imposed by Article 2 when he was performing public service abroad. If so, the MOD did owe Higgins a duty of care and Higgins might success his claims in his litigation.
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