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Update on Combat Immunity

In the recent case of Smith & Ors v MoD [2011] EWHC 1676, the MoD ("M") applied to strike out several claims brought in respect of the death or injury of British troops whilst on active military duty in Iraq.

Claims were brought arising out of the deaths of servicemen as a result of improvised explosive devices being detonated beside military vehicles. They contended that Article 2 of the European Convention on Human Rights placed an obligation on M to take reasonable steps to protect the lives of servicemen in relation to the procurement and deployment of properly armoured vehicles. A number of other claims involved the injury and death of servicemen as a result of an incident of friendly fire, where one ally Challenger II tank fired on another. In all of the claims, allegations of negligence at common law were also advanced.

M contended that the allegations related to the conduct, command and control of military operations, the development, procurement, availability or use of military equipment and the adequacy of training given to the UK Armed Forces personnel and as such raised issues of a political and military nature that were not capable of constituting a breach of Article 2 or of founding a claim in negligence. M also disputed the claims as the deaths occurred outside of the UK's Convention jurisdiction.

While the Article 2 claims were struck out on the jurisdiction ground, it was held that a positive systems duty could be owed under Article 2 with regard to the supply of equipment, but no duty would be owed as regards operational decisions made in the course of military operations. Owen J also held that a duty of care in negligence could also potentially be owed by M. The question in any case was whether it would not be fair, just and reasonable to impose a duty. The conclusion would be fact sensitive, with relevant matters including the type of equipment, cost, availability and a risk/benefit analysis. Thus, it cannot be said that as a matter of principle claims for personal injury or death are bound to fail where the damage is sustained during the course of combat situations.

/ 1st Aug 2011


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