Free Employment Advice - Service Personnel: Safe System of Work

The claimants, approximately 2000 former service personnel, claimed compensation from the Ministry of Defence on the basis that they had suffered psychiatric injury as a result of exposure to the stress and trauma of combat, or analogous situations, between 1969 and 1996. It was argued on their behalf that the Ministry of Defence (MOD) had been negligent in failing to take any or adequate steps to prevent the development of psychiatric illness and also in failing to detect, diagnose or treat such illness.

The claims comprised two group actions. First, those cases in which the alleged failure of the MOD occurred before May 15, 1987, when Crown immunity was abolished, and, second, cases in which the alleged failure occurred after that date.

The claimants did not accept that the MOD was immune from action in relation to injuries suffered before May 15, 1987. It was argued on their behalf that section 10 did not extend to the breaches of the duty owed to service personnel by the MOD as their employer, that section 10(1) should be construed as being limited to vicarious liability for combat and related activities, and that the “thing suffered” had not been “suffered wholly or exclusively on Crown land or while the claimants were on duty”.

It was accepted by the claimants that no duty of care arose in common law in a Service setting when related to immediate operational decisions and actions within a theatre of war or analogous situations. The issue in relation to combat immunity was its scope.

Decision:

1. On the proper construction of section 10 of the 1947 Act, the MOD was immune from action in relation to acts or omissions occurring before its repeal.

2. In relation to combat immunity, there was no basis for ruling that, as a matter of principle, all claims for personal injury sustained in combat could not be the subject of legal proceedings.

3. A soldier did not owe a fellow soldier a duty of care in tort when either, or both, was engaged with an enemy in the course of combat.

4. The MOD was not under a duty to maintain a safe system of work for Service personnel engaged with an enemy in the course of combat.

5. The term “combat” had an extended meaning, in that the immunity of the MOD was not limited to the presence of the enemy or occasions when contact with the enemy had been established. It extended to all active operations against the enemy in which Service personnel were exposed to attack or to the threat of attack.

6. “Combat” covered attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. The immunity extended to the planning of and preparation for operations in which the armed forces might come under attack or meet armed resistance. It also applied to peace-keeping operations in which Service personnel were exposed to attack or the threat of attack.

7. Apart from four claimants, whose cases turned on their particular facts, the claimants failed to establish that the MOD was in breach of its duty of care with regard to its systems for the prevention, detection and treatment of psychiatric reactions to the stress and trauma of combat.