Humphrey v Aegis Defence Services Ltd and Aegis Defence Services (BVI) Ltd [14.01.16]

Court of Appeal dismisses claim that Defendants were in breach of their duty of care to the Claimant whilst he was working in Iraq; it was appropriate to take into account the social utility of the activity.

Implications 

This case helps to clarify the application of the ‘social utility’ factor that courts can take into account when considering a claim in negligence, based on s.1 Compensation Act 2006, (which essentially follows the common law position following Tomlinson v Congleton Borough Council and another [2003]). 

This enables a court, when considering a claim in negligence, to have regard to whether a requirement to take particular steps to meet a standard of care might prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way. 

The Claimant had argued that the social utility factor can be taken into account only if the measures required to reduce the risk of harm would make it impossible to carry on the activity in question. The Court of Appeal considered that this set the bar too high. Essentially, social utility is just one of the factors to be taken into account in determining the nature and scope of any duty of care, alongside the risk of harm and the nature and gravity of that harm. Between this case and the earlier case of Hopps v Mott MacDonald and Ministry of Defence [2009] the concept of ‘social utility’, and the circumstances in which it can be taken into account, is now firmly part of the law of negligence. 

Kennedys acted for the Defendants in their successful defence of this claim. 

Background 

The claim related to an injury sustained by the Claimant in Iraq whilst engaged by the Defendants under a contract for services. 

The Claimant’s work involved escorting military personnel and/or civilians to meet contractors. He would always be accompanied out on mission by an Iraqi interpreter. Iraqi interpreters were a scarce commodity. 

On 9 August 2009 a simulated stretcher carrying exercise took place, which was designed to encourage team building, test fitness and ensure correct drill in conditions similar to the team being under attack. Each member of a team of four had to hold one handle of a stretcher. In the course of the exercise one of the Claimant’s team, an Iraqi interpreter, dropped the stretcher without warning. The Claimant alleged that he suffered an injury to his shoulder which would prevent him from undertaking this kind of lucrative work in the future. He claimed damages in excess of £2 million. 

His claim was dismissed by the High Court. View our case review of this decision.

Decision 

Giving the leading judgment of the Court of Appeal, Lord Justice Moore-Bick dismissed the Claimant’s appeal. He held as follows:

  • It was impossible to say that the Defendants were at fault in failing to take further steps to ensure that interpreters were fit enough to undertake the exercise. The steps taken by the Defendants were sufficient, including testing their fitness during an induction training exercise to ensure that it reached a minimum level. The importance of the use of Iraqi interpreters and their integration into the teams and the modest degree of risk involved were relevant factors.
  • The Judge did not treat social utility as a complete answer to what he would otherwise have accepted as a well-founded claim. When deciding whether the Defendants were in breach of duty, he was right to take into account the importance of the activity in question and the measures required to avoid the risk of harm, as well as the nature of the foreseeable harm.