CHAPTER THREE

THE EMPLOYER’S DUTY
OF CARE

Introduction

In this Chapter we will explore the legal rights of service personnel, the types of claims they may bring and consider some developments in the law. As we shall see, although their rights are heavily curtailed when compared to civilians, they are still owed a duty of care by the State which is analogous to that owed by employers to employees, and they have the means to enforce that duty in the civil courts.

3. 1. Actions against the Crown

Previously the Crown (i.e. the State) enjoyed immunity from claims in tort, which meant that service personnel could not sue the MoD in negligence. This doctrine derived from times when the Crown could do no wrong. The Crown Proceedings (Armed Forces) Act 1987 abolished that immunity prospectively from 15^th May 1987. This meant that Section 2 of the Crown Proceedings Act 1947 applied to actions against the Crown by service personnel:

Section 2. Liability of the Crown in tort.

(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:—

(a) in respect of torts committed by its servants or agents;

(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and

(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property:

Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.

(2) Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officers, then, subject to the provisions of this Act, the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity.

What this means is that:

• Claims in tort for breaches of common law and/or statutory duties can proceed against the Crown as if it were a private individual and/or vicariously for breaches of Crown servants, agents or employees.

• Your client can pursue claims in respect of torts that occurred from 15^th May 1987. Obviously, they may be precluded from doing so because of the limitation of claims in negligence (normally three years from the date of injury) and depending on any arguments that they may have under Section 33 of the Limitation Act 1980, which might allow them to bring a claim out of time (see 12.2).

• The Secretary of State does have powers to under Section 2 of the Crown Proceedings (Armed Forces) Act 1987 to revive the old immunity provisions in cases where it is “necessary or expedient” to do so, which may be by reason of any imminent national danger or great emergency. There are currently no known plans to revive the immunity.

3. 2. Domestic health and safety legislation

MoD policy expressly stipulates that it will adhere to domestic health and safety legislation as far as possible. This is your starting point. For our purposes it is also worth noting that the following Acts will bind the Crown as well as any regulations made under them: the Health and Safety at Work Act 1974, the Occupier’s liability Act 1957 and the Highways Act 1980. In many senses the MoD should be treated like any other employer, but there are some exceptions and a few general points to bear in mind:

• There are specific health and safety regulations from which the MoD are exempt (an example is the Carriage of Dangerous Goods etc. Regulations 2007, Regulations 3 and 4, which otherwise would have regulated the ability of the military to transport ammunition and explosives for military exercises). The Secretary of State for Defence also has powers to claim exemption from domestic health and safety legislation in the interests of national security, but this power is rarely exercised.

• In respect of deployments overseas, the MoD’s policy is to apply UK health and safety standards where reasonably practicable, and to take into account the legislation of host nations. But importantly, the MoD will not normally be bound by domestic legislation in relation to overseas deployments. This would not preclude a claimant from arguing that an exercise abroad was negligent on common law principles, or identifying breaches of domestic regulations which may help to prove unsafe working practices.

• Whilst MoD policy requires it to comply with all domestic health and safety legislation, Section 69 of the Enterprise Act 2013 now prohibits civil claims from being brought for breaches of the regulations under the Health and Safety at Work Act 1974 (for all accidents occurring after 1^st October 2013). The practical effect of this Act has been fairly limited so far. It has reduced claims involving reliance on strict liability provisions and has generally shifted the burden on claimants to prove common law principles of negligence to succeed in civil claims against their employers.

• The MoD has a memorandum of agreement with the Health and Safety Executive (“HSE”), which is the government agency responsible for regulating and enforcing health and safety practice in the United Kingdom. This provides for the HSE to have a number of operational investigators who, in agreement with the MoD, inspect a number of its activities and assess them for health and safety practice.

• Military personnel from other States which are stationed in the UK, termed ‘visiting forces’, are exempt from domestic health and safety legislation. The Visiting Forces Act 1952 provides, amongst other directives, for the Secretary of Defence to have recourse to settle civil claims brought for negligent actions or omissions of service personnel from States privy to reciprocal agreements under the Act.

• A number of military regulations exist which supplement and explain the MoD’s common law and statutory duty of care (see Chapter 5).

3. 3. Combat immunity

The doctrine of combat immunity provides that the State shall not be responsible for acts or omissions which result in death or injury to service personnel in ‘combat’. The public policy arguments in favour of combat immunity are varied and include that:

• There would be unfair pressure applied to personnel and commanders if they had to second guess themselves in the heat of battle out of fear of becoming personally liable to civil claims.

• Commanders may become too cautious in planning operations.

• Combat effectiveness would be undermined and this might threaten national security and the lives of service personnel.

These arguments might at first appear compelling but they are not supported empirically. Some argue that service personnel and their families should be provided with a remedy where negligence has resulted in injury or death, bearing in mind that negligence in this context would not mean decisions made in the heat of battle, but reckless mistakes made outside of combat and which could have reasonably been avoided.

But what does the term ‘combat’ mean and how might it influence your client’s prospects in bringing a claim? There have been some important cases which have examined this doctrine and the legal definition of ‘combat’, as well as exploring the boundaries of the civil claims that might follow. Below we chart the development of this case law. Some cases are not strictly relevant to the issue of combat immunity, but rather deal with rights under the European Convention on Human Rights (ECHR). It is arguably these cases which have contributed most to recent developments in this field.

In Mulcahy v MoD [1996] EWCA Civ 1323, Mr Mulcahy was serving in the Gulf War as a Gunner in the artillery when he suffered an injury. Mr Mulcahy had been ordered to fetch some water in front of a Howitzer gun, which was fired, exposing him to damaging noise which resulted in significant damage to his hearing and the loss of his military career. Mr Mulcahy brought a claim in negligence against the MoD, claiming that the gun was fired negligently and/or that systemic failings in safety contributed to or caused his injury. He accepted that he was deployed to a warzone and that he was part of the allied forces deployed during the war, but also pleaded that:

• The gun being fired was located in Saudi Arabia, firing into Iraq, and the risk of retaliation was minimal.

• In the days running up to and immediately after the injury, his unit had not been under any enemy fire whatsoever.

• On the day of the injury his unit was being visited by journalists.

The MoD sought to strike out the claim on the basis that combat immunity applied and therefore that Mr Mulcahy had no cause of action. The application to strike out was refused by Walker J, whose judgment still reflects the issues we grapple with today in relation to combat immunity:

“…It has to be established…whether the degree of involvement in warlike activities was such as to allow the Crown to argue that it was in fact a heat of battle situation. The Crown says, ‘well, this is precisely the situation where there should be no investigation because it is contrary, in a sense, to public policy to be investigating the circumstances on the field of battle’. The question is was it the field of battle? The plaintiff will seek to argue that it was not the field of battle, although it was firing at the enemy. There are obviously degrees of involvement in warlike activities, some of which have been canvassed by me to counsel on a hypothetical basis. What is the situation of somebody involved in firing a guided missile a hundred miles? What is the situation in somebody arming a bomber? All that had to be determined…”

The MoD successfully appealed Walker J’s decision and Mr Mulcahy’s case was struck out by the Court of Appeal. They successfully argued that imposing a duty of care in the circumstances would not be fair, just or reasonable. In the leading Judgment of the Court of Appeal, Neil LJ found that:

“I do not consider it necessary to examine whether a duty would be owed when someone was involved firing a guided missile over a distance of a hundred miles or when someone was arming a bomber…The plain facts of this case were that the plaintiff was in a war zone taking part in warlike operations and he was a member of a gun crew which was engaged in firing shells on enemy targets…In my judgment the circumstances in which the plaintiff was injured clearly constituted “battle conditions…As I said earlier, I do not find it necessary to explore the territorial limits of this immunity. It is sufficient to say that in my view it covers the present situation where in the course of hostilities against the enemy a howitzer of the plaintiffs’ battalion was engaging the enemy and the plaintiff was a member of the gun team.”

Interestingly, Neil LJ explored the powers of the secretary of State under the Crown Proceedings Act to withdraw liability for tort against the State (mentioned at 3.1 above), and concluded that in the absence of such powers being enacted one must start with the proposition that a duty of care does exist in common law as between service personnel (and indeed no authority exists which would contradict this assumption).

None of the terms “battle conditions”, “warlike activities”, “heat of battle” or “warlike operations” were explored in any depth in Mulcahy. In fact, one might sympathise with the claimant, who faced no real threat of ‘combat’ in the literal sense, but who having accepted that he was operating in a war zone and firing live shells at enemy targets, was not able to secure a remedy despite clear negligence on the part of his superior (in fact the MoD had accepted that two of the three tests required for a duty of care to be applied, namely proximity and foreseeability of damage, were satisfied).

Multiple Claimants v MoD [2003] EWHC 1134 (QB) comprised two group actions brought by veterans who had suffered psychiatric harm as a result of conflicts. In a wide-ranging judgment, Owen J tried the generic issues between the cases, one of which was the application and scope of the doctrine of combat immunity. The facts of the various claims differed greatly and related to exposures to traumatic events across a range of operations and deployments. In respect of the Falklands War veterans, they claimed that combat immunity did not apply to their claims because the MoD failed:

• to make provision for Field Psychiatry Units (FPUs) during the conflict;

• to brief troops properly in the run up to the deployment; and/or

• to debrief troops after the conflict or arrange any necessary follow-up.

The veterans argued that the doctrine of combat immunity should not apply to their claims because these acts or omissions did not occur in combat, but rather they occurred before and/or after combat. In essence, that combat immunity should only apply to breaches during combat, and that because these particular breaches would have occurred in the planning and preparation for warfare, they were avoidable and actionable. Neil J considered this distinction and concluded that it would be wrong to hold the State to account in such circumstances:

“[The doctrine of combat immunity] plainly applies when service personnel are engaged with the enemy in the course of hostilities… does the immunity extend to acts or omissions in the course of planning and preparation for operations in which service personnel may engage in hostilities? Where is the line to be drawn?…In aggressive operations the objective will be to defeat of the enemy; in defensive operations the successful repulse of the enemy. In the planning or and preparation for such operations any more than in their execution. The planning or and preparation for military operations will include decisions as to the deployment of resources. Does the immunity apply to anti-terrorist, policing and peace keeping operations…In my judgment it will apply to operations in which service personnel come under attack or the threat of attack.”

Neil J went on to formulate some guiding principles:

“Accordingly in my judgment the application of the immunity can be resolved by reference to the following propositions.

1. A solider does not owe a fellow soldier a duty of care in tort when either (one or other or both) are engaged with an enemy in the course of combat.

2. 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.

3. In relation to both (1) and (2) the term combat has an extended meaning in that –

1. The immunity is not limited to the presence of the enemy or the occasions when contact with the enemy has been established. It extends to 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.

2. The immunity extends to the planning of and preparation for operations in which the armed forces may come under attack or meet armed resistance.

3. The immunity will apply to peace-keeping/policing operations in which service personnel are exposed to attack or the threat of attack.”

Interestingly, Neil J also dismissed out-of-hand the MoD’s contention that claims for personal injuries sustained in combat are not justiciable, and so compensation for damage suffered during combat is not recoverable. In so doing he said:

“In my judgment that submission is misconceived and confuses the issue of the existence of the duty of care with the causation of injury. The issue is whether the MoD is under a duty of acre in a particular set of circumstances. If the restriction to the duty of care does not arise on the facts, and a claimant is able to demonstrate breach of duty resulting in injury and consequential loss and damage, it is immaterial that the injury was sustained in the course of combat. The question with regard to the injury is then simply one of causation; is it attributable to the breach of duty?”

The point here is that one should not conflagrate the issues of whether immunity applies with the timing of when damage is occasioned; it does not necessarily follow that an injury caused during combat is not actionable. Rather, applying the principles of causation, one must trace the injury to the breach of duty and it is the point of the breach which is crucial in assessing whether combat immunity would apply.

In Bici and another v Ministry of Defence [2004] EWHC 786 (QB), British soldiers were found to owe a duty to civilians despite having been engaged in peace-keeping operations for the UN. The claimants were both Kosovar Albanians who in July 1999 were passengers in a car travelling through the city of Pristina. Seemingly without provocation, British soldiers fired upon the car and killed two of the occupants. The first claimant suffered an injury when shot in his face. The second claimant, although physically unharmed, claimed to have suffered psychiatric injury as a result of this traumatic event.

The parties agreed that the case should be determined according to English law. It was clear that the soldiers owed a duty of care to the public and the MoD accepted in principle that it would be vicariously liable for any proven wrongs of any of its service personnel, but raised the doctrine of combat immunity and also claimed that the soldiers had acted in self-defence.

Elias J heard evidence from General Sir Mike Jackson, who was in Command of the forces in Kosovo at the relevant time and described the state of anarchy that existed in Pristina after the Serb forces had left the city. He explained that the role of the British forces was to help facilitate the transfer of power to the Kosovo Albanians. Elias J also heard evidence on the rules of engagement stipulated to British Forces on the ground, namely, that anyone thought to be threat should first be challenged and that force should be used as a last resort. Having considered all the circumstances, Elias J found that there was no evidence of threat or provocation to the soldiers which could have necessitated their reaction to fire on the vehicle, nor sensible grounds on which to argue that this was a ‘combat’ situation. The forensic evidence lay waste to the suggestion of any imminent threat posed to the soldiers by the occupants in the vehicle, whereas the evidence of the British soldiers was far from convincing (two of the three chose not to attend the trial and give evidence). In his judgment, Elias J rejected the contention that the soldiers had acted in self-defence and determined that combat immunity did not apply, stating that:

“The defence of combat immunity is not strictly a defence at all, in the sense of rendering lawful what is alleged to be unlawful. Rather, where the doctrine applies its effect is to remove the jurisdiction of the court to decide certain kinds of dispute; they are non-justiciable… I confess that I have considerable difficulty in seeing how the doctrine has any application at all in this case. It is relied upon when a person is injured or their property is damaged or destroyed in circumstances where they are the “innocent” victims of action which is taken out of pressing necessity in the wider public interest arising out of combat. It is not the conduct of the victim which justifies immunity from suit but rather a very pressing public interest.”

The first Claimant succeeded in proving recklessness and negligence, and in securing damages. The second Claimant failed to prove trespass to his person, because there was no evidence of intention to place him in fear of imminent violence. Bici helps to identify precisely the sort of case to which the doctrine of combat immunity should not apply.

R (on the application of Smith) v Secretary of State for Defence and another [2010] UKSC 29 concerned the death of Private Jason Smith who was deployed to Iraq in 2003. Private Smith was operating in temperatures in excess of 50 degrees Celsius and became ill. He repeatedly complained to medical staff about his symptoms. Eventually, he suffered cardiac arrest and died of hyperthermia (see Chapter 7). An inquest was held into his death but which was wholly inadequate in respect of its breadth and transparency. Private Smith’s mother, Catherine Smith, challenged the Coroner’s decision by way of judicial review proceedings on the basis that crucial documents were not made available to the family. She wanted another inquest to be held which would accord with the requirements of Article 2 ECHR: the right to life. This is known as an ‘Article 2 Inquest’; essentially a broader and more thorough exploration of the circumstances of death.

At first instance, the High Court determined that, inter alia, the Human Rights Act (and therefore Article 2 of the ECHR) applied to service personnel both on and off base i.e. wherever they may be deployed in the world. This would have meant that in the future, wherever and whenever systemic failures were suspected to have caused loss of life, and those systems where the responsibility of a public body, then an inquest into the death would have to be fully compliant with Article 2.

The MoD appealed this decision on the basis that this would open the ‘floodgates’ to litigation and that decisions of commanders in operational situations will be scrutinised under the ECHR. But the Court of Appeal upheld the decision. Its reasoning was that service personnel remain subject to British military and civil law wherever they are in the world, and that therefore they should enjoy the same protections.

The MoD appealed a second time, this time to the Supreme Court. By that stage, the MoD had conceded that an Article 2 inquest was warranted and the Supreme Court directed that the new inquest would necessarily have to take place. However, on the jurisdictional point, the Supreme Court held that for the purposes of the ECHR, service personnel would only be considered within the jurisdiction of the State when on a British military base. This meant that the obligations on the State under the convention ceased when service personnel were ‘off-base’, for example in transit, on operations or other duties. In overturning the decision of the Court of Appeal, the Supreme Court limited geographically the applicability of human rights to service personnel abroad.

The decision in R (on the application of Smith) was subsequently overruled by the Supreme Court in Smith and Others v the Ministry of Defence [2013], which determined that the protections under the ECHR could extend to service personnel operating outside of a military base. The case which contributed to that eventual about-turn was Al-Skeini v United Kingdom (2011) 53 EHRR 589. This case concerned claims brought by the relatives of six Iraqi civilians who were all killed during the Gulf War whilst British and American forces occupied Iraq. The relatives had exhausted domestic recourse for compensation and had lost their cases at the House of Lords, which determined that the ECHR did not apply to the actions of British Soldiers occurring outside of the British Army base. The Grand Chamber of the European Court of Human Rights disagreed and overturned this decision. It determined that the UK did have a duty to investigate the deaths because, regardless of the fact that they occurred outside of a British Army base, the UK had assumed responsibility for the security of Basrah and Southern Iraq, and so was exercising ‘control and authority’ over Iraqi civilians at the time. It determined that:

“…the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.”

Having determined that the UK had jurisdiction within the meaning of Article 1 ECHR (i.e. the general obligation to respect human rights) for all six deaths, the court then considered whether an effective investigation into the deaths had been carried out in accordance with Article 2. It found that there had been no adequate inquiry in accordance with Article 2 and awarded 17,000 Euros to five of the six applicants plus 50,000 Euros towards their costs jointly. The decision in Al-Skeini extended the MoD’s duty of care under the ECHR to civilians in a warzone. What this also achieved was to extend geographically the duty of care owed by the MoD to service personnel i.e. outside of British bases.

The most recent guidance on combat immunity has been provided in the cases of Smith and others v Secretary of State for Defence; and two other cases [2013] UKSC 41, which involved several claims arising out of the deaths of three soldiers and injuries caused to another two soldiers during military operations in Iraq between 2003 and 2006:

• The ‘Challenger’ claims concerned the death of Corporal Albutt and injuries caused to Trooper Julien and Lance Corporal Twiddy in ‘friendly fire’ incidents. The Claimants argued that technology and training was available which would have reduced the risk of such incidents when operating Challenger tanks.

• The ‘Snatch Land Rover’ claims arose from the deaths of Private Philip Hewett and Private Lee Ellis, who were both killed in separate incidents of Improvised Explosive Devices (‘IEDs’) and allegedly as a result of inadequate planning and provision in respect of the Snatch Land Rover’s that were provided by the MoD for patrolling and other duties. Primarily, it was argued that (i) the MoD was in breach of its Article 2 obligations (i.e. to protect life) and (ii) that the vehicle or systems in place provided no adequate counter-measure to the likelihood of IED devices. Essentally, that the MoD should have provided better armoured vehicles or stipulated that those available vehicles that were armoured would have to travel at the front of any patrol.

These cases are sometimes referred to colloquially as the ‘Snatch Land Rover’ cases and, whilst all the claims comprised different facts, they were all related because the claimants (and/or their dependants) all alleged that the MoD failed to provide adequate equipment and/or training prior to deployment and/or combat. The MoD argued that the claims should be struck out on the basis of combat immunity and that it would not be fair, just or reasonable to impose a duty of care. They also sought to strike out any claim under the ECHR for any deaths that occurred outside of the jurisdiction of the UK.

At first instance in the High Court, Owen J struck out the Article 2 aspect of the Land Rover claims on the basis that the Claimants had not been within the jurisdiction of the United Kingdom when they died (i.e. following R (on the application of Smith) above). On appeal by the claimants, the Court of Appeal made similar conclusions, and the cases proceeded to the Supreme Court, which had to consider three main issues:

1. Whether Hewett and Ellis were at the time of their deaths within the jurisdiction of the United Kingdom for the purposes of Article 1 ECHR.

2. Whether the State owed a positive duty under Article 2 ECHR to preventing the death of its own soldiers in active operations against the enemy.

3. In respect of the negligence claims, whether it would be fair, just and reasonable to impose a duty of care in the circumstances (i.e. the question of combat immunity).

The Court found:

• Unanimously that Hewett and Ellis were within the United Kingdom jurisdiction for the purposes of Article 1 of the ECHR. In so doing, the Court overruled its own decision in R (on the application of Smith in line with the developments in Al-Skeini, extending the protections of the ECHR to service personnel ‘off-base’.

• By majority, that the claims could proceed to trial because they fell within the scope of Article 2 ECHR.

• That in respect of the claims in negligence, these could proceed to trial because the facts indicated that a duty of care could be imposed, despite arguments that the doctrine of combat immunity applied.

In making its determinations, the Supreme Court allowed these cases to proceed to trial and we await those further decisions, which may cast more light on the factual circumstances in which claims brought in ‘combat’ may still proceed. In the meantime, the following general points are offered in summary of the current position:

• 1. A duty of care normally exists between the MoD, service personnel and civilians.

• 2. The duty of care cannot normally exit in “combat”. What will be termed combat will depend on the facts of the case. The more risks there are of hostilities and engagement with the enemy, the more likely that any given situation will be termed one of “combat”.

• 3. Just because an injury occurred in combat, does not mean that “combat immunity” will apply. What is important is when and where the breach of duty occurred. For example, a failure to provide training before deployment which results in injury may be actionable in principle.

Whilst the ECHR has played a significant part in recent developments in combat immunity, there are current plans for the UK to opt out of the ECHR on future military operations (depending on the nature of the operation). The potential danger here, advocated by some, is that opting out of the ECHR would result in protections for both service personnel and civilians being lost. This remains an area of uncertainty and contention for now.

3. 4. The Compensation Act

The Compensation Act 2006 was designed to address some specific issues in mesothelioma cases and to regulate claims management companies. In so doing, it summarised some basic legal principles in respect of common law negligence and breach of statutory duty, but there was quite a furor when the Act came into force and personal injury lawyers questioned the construction of the Act. For our purposes, Section 1 may come into play:

1. Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

1. prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

2. discourage persons from undertaking functions in connection with a desirable activity.”

Some defendants, and particularly the MoD, have sought to buttress their defences to claims by arguing that training and exercises are a “desirable activity”. For example, the MoD will regularly argue that:

• military training exercises are a desirable activity because they seek to create effective service personnel and this contributes to national security; and therefore that

• the courts should give weight to s. 1 of the Compensation Act when determining whether liability should attach in any particular case.

However, the case law suggests that the Act does not in any way expand on the legal or policy considerations that would normally be taken into account by the courts when assessing negligence or breach of statutory duty (see Royal Opera House Covent Garden Foundation v Goldshieder [2019] EWCA Civ 711).

3. 5. Points for practice

• The Crown can normally be sued in common law negligence and for breaches of statutory duty as if it were an individual for any torts that occurred from 15^th May 1987 (subject of course to considerations of limitation). It can also be sued vicariously for the wrongs of its employees, servants and/or agents.

• MoD policy is to apply and adhere to domestic health and safety legislation wherever possible. The provisions of the Health and Safety at Work Act 1974 and its associated regulations will normally apply to the MoD, save where express exemption is provided.

• Military claims lawyers need to be flexible in their approach and, generally, will need to rely on a combination of the common law, statutory duty and military regulations (JSPs) in proving breach of duty. This process can be challenging when there are relatively few reported cases that address breach of duty in a military context and/or when interpreting and applying domestic regulations to facts involving military activities. More on this in Chapter 5.

• Where your client was injured in combat, they may be precluded from bringing a claim because of the doctrine of combat immunity. This doctrine is still being tested in the courts. The majority of military claims relate to accidents and faults in this jurisdiction and outside of combat, whether in training or in respect of management or treatment, and so will not normally engage the doctrine of combat immunity.

• The MoD will raise s.1 of the Compensation Act 2006 wherever possible. This is unlikely to influence the court’s approach to the legal principles in a negligence claim, but it acts as a reminder that policy considerations will be a natural haven for defendants in military claims.

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