Civilian contractor injured during post war reconstruction: s1 Compensation Act 2006 has retrospective effect

The High Court has today handed down judgment in the case of Graham Hopps v (1) Mott MacDonald Ltd and (2) Ministry of Defence (MOD), the first reported case applying s1 of the Compensation Act 2006. The Claimant, Mr Hopps, failed in his claim against the Defendants for compensation for personal injury arising out of an incident in Basrah, Iraq, on 28.10.03, when an improvised explosive device (“IED”) was detonated as the unarmoured vehicle in which the Claimant was travelling passed by.

Background

The Department for International Development (DfID) had engaged Mott MacDonald to assist in implementing a programme for the emergency reconstruction of infrastructure in Iraq, after the occupation of Iraq in 2005. In turn Mott MacDonald engaged the Claimant as an electrical engineer to join their team in Basrah. The Emergency Infrastructure Plan was promulgated by Sir Hilary Synott and was designed to provide support for the essential power and water services needed to improve the lives of Iraqi citizens.

The Mott MacDonald team were based in the international airport in Basrah, which was being used as a military base. The MOD were responsible for the security of Mott MacDonald’s team in Basrah, including the Claimant. Whenever Mott MacDonald’s team left the airport base they were driven and accompanied by armed military personnel in a “white” (non-military) vehicle. The “white” vehicle would be accompanied by 1 or 2 Land Rovers with soldiers armed with rifles keeping a lookout.

On 28.10.03 the Claimant was travelling in a “white” Land Rover accompanied by an Iraqi civilian from the local electricity distribution company and 2 military officers when someone activated an IED, which had been placed on the ground about 3m from the road. Multiple fragments were thrown out from the device at speed and struck the vehicle. The Iraqi civilian was killed and the other 3 occupants, including the Claimant, injured.

It was common ground between the experts that the unarmoured Land Rover would not have given any significant level of protection from an IED of the type used.

The Claimant’s allegations centred on an alleged failure by Mott MacDonald and the MOD to undertake a sufficient risk assessment to assess the suitability of the transport and security arrangements, including consideration of how other civilian workers were being protected, and that had they have done so they would have provided the Claimant with an armoured vehicle of B6 standard. The issues were therefore:

  1. Should the Claimant have travelled only in an armoured vehicle?
  2. If he had been in an armoured vehicle, would the Claimant have suffered no or significantly less injury as a result of the explosion?
  3. Should the Claimant have been confined to the military base on 28.10.03 given the security situation at that time?

The Decision

Mr Justice Christopher Clarke dismissed the Claimant’s claim in its entirety. Although he was quick to add “The fact that I have done so in no way reduces the great credit due to [the Claimant] for the contribution which, at much personal cost, he has made to improving the lot of the Iraqi people.”

The Judge found that there was no breach of duty to the Claimant and it was not unreasonable for the Claimant to have been carried around in an unarmoured vehicle on 28 October 2003. Whilst the risk of attack by IEDs increased in October 2003, prior to the incident there had been no equivalent attack on a vehicle and the IED used at the time of the incident was much larger and more technically advanced than those previously found in Basrah. There was also no evidence to suggest a private security firm would have advised the need for a B6 level armoured vehicle at that time.

In any event he held that even if a B6 armoured vehicle would or should have been available, the onus was on the Claimant to show that the failure to carry him in an armoured vehicle either caused his injury or that his carriage in an unarmoured vehicle materially contributed to that injury. The Judge was not satisfied that the Claimant had satisfied that onus.

The Judge was also not satisfied that the level of risk at the time was such that the Claimant should have been confined to the military base until an armoured vehicle was available to transport him, which would have been 6 weeks or more.

The important points arising out of the judgment are as follows.

  1. The necessity to undertake risk assessments

Mr Justice Christopher Clarke noted that Mott MacDonald produced a detailed Security Plan, agreed with DfID that the Army would be responsible for security and the transport arrangements for Mott MacDonald’s personnel. Their Team Leader was also constantly appraising the security situation and undertaking individual risk assessments of every trip that was planned, even if not written down. The Judge added that “There is no basis for saying that [Mott MacDonald] would or ought to have had any greater knowledge of the security situation than the Army, who had it under constant review.” The Judge concluded that “The absence of a recognisable risk assessment is only of potential significance if, had one been made, it would or should have led [Mott MacDonald] or the MOD to provide [Mott MacDonald’s] employees with an armoured car or confine them to base”.

  1. Section 1 of the Compensation Act 2006

This is the first reported case where the court has had to interpret s.1 of the Compensation Act 2006 and its application.

“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.”

The Claimant sought to argue that s1 of the Act was not retrospective, that it could not be applied in claims where the cause of action had arisen before the Act came into force. Further he argued that the Act should be limited to claims involving desirable activities such as the provision of public amenities or the playing of sports and games or the pursuit of pastimes. He did not consider that it had any real application to a claim for personal injuries suffered in theatre (that is, in a military zone).

The Judge disagreed and held that the Act did apply as s.1 refers to “a court considering a claim” which was taking place after the Act had come into force. He also noted that the purpose of s. 1 is “to draw attention to, and to some extent, to expound the principle of the common law expounded by the House of Lords in Tomlinson v Congleton Borough Council [2004] 1 AC 46.” He therefore held that he was entitled to have regard to whether particular steps (e.g. confinement to the military base until armoured vehicles were available) would prevent the “desirable activity of reconstruction of a shattered infrastructure after a war in a territory occupied by HM forces, particularly when failure to expedite that work would carry with it risks to the safety of coalition forces and civilian contractors in Iraq as a whole.”

This case therefore sets the precedent that s1 of the Act does have retrospective effect in that it applies to cases being considered by the Court where a cause of action arose prior to the Act coming into force. Further as the scope of the Act is clearly not just limited to the provision of public amenities, sports, games or pastimes, we might be seeing greater reference to this provision in future cases. Watch this space!