The Supreme Court’s decision in Smith v Ministry of Defence (commonly known as the Snatch/Challenger cases), handed down in June 2013, has caused something of a stir.  In Smith, Lord Hope delivered a judgment representing the view of the majority. He drew a distinction between the defence of combat immunity and the issues of whether it was fair, just and reasonable to impose a duty of care.

Lord Hope made it perfectly clear, in my view, that decisions relating to the provision of protective work equipment and training and the adequacy of the same will not be covered by the defence of combat immunity:

“ At the stage when men are being trained, whether pre-deployment or in theatre, or decisions are being made about the fitting of equipment to tanks or other fighting vehicles, there is time to think things through, to plan and exercise judgment. These activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of those activities and to their circumstances”.

The Defence Secretary, Philip Hammond, in response to the Supreme Court decision said “I am concerned about the wider implications of this judgment which could ultimately make it more difficult for our troops to carry out operations and potentially throws open a wide range of military decisions to the uncertainty of litigation”.  Despite these concerns, the Government has yet to disclose any evidence of the effects Smith is having on commanders’ decision making in combat situations. The Defence Committee’s report titled ‘UK Armed Forces Personnel and the Legal Framework For Future Operations’ urges the Government to consider reform and to review current legislation to restate the limits of tort liability for military negligence, but  what does this actually mean for our injured troops?

One option the Defence Committee suggests  the government consider is a proposal to compensate combat injuries fully, on a no fault basis (strict liability), coupled with the revival of Crown Immunity using the 1947 Act ,the purpose being to clarify the scope of combat immunity – potentially barring common law negligence claims overseas in relation to training, equipment and decision making outside the heat of battle.

This approach would mean that a revised ‘no fault, full quantum, Armed Forces Compensation Scheme(AFCS)’ would be substituted, and eradicate the future need, for tort claims. As a military claimant lawyer I could rest in peace if I knew that all injured personnel, regardless of the MoD’s fault,  would be paid in full without having to fight for it by taking legal action. This is especially the case given that the MoD as an employer almost always resists liability and refuses to make payments to the very last minute in litigation if at all.

But would combat injured personnel really receive 100% compensation under the scheme if it were implemented? The aim of a civil action in tort is ‘to restore the injured person to the position in which he/she would have been had the injury not occurred’ – but who will assess whether the award made under AFCS is 100% sufficient to reflect potentially complex and difficult future care needs, and treatment costs, especially for those with devastating lifelong serious injuries, or those with no capacity .  The damages that I obtain for almost all of my clients who have been injured as a result of negligence are significantly higher than payments made under the current AFCS.

Welcome as this would be to our clients, if the Government were prepared to legislate no fault schemes on a 100% basis for members of the Armed Forces then they would need to explain why they recently removed “strict liability” with the introduction of section 60 of the Enterprise Bill and Regulatory Reform Act 2013 for breaches of health and safety regulations. Surely, employees who work in other public sectors such as fire fighters and police officers who are now unable to bring a claim under strict liability against an employer would claim the same legislative protection as those with combat injuries in the Armed Forces.

Is the government really likely to roll out a strict liability scheme given that they have so very recently taken away these rights from employees in the UK? With ever increasing defence cuts my worry is that “reform” to overturn the decision in Smith will leave injured personnel undercompensated and with little recourse.