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:
a) Should the Claimant have travelled only in an armoured
vehicle?
b) If he had been in an armoured vehicle, would the Claimant have
suffered no or significantly less injury as a result of the
explosion?
c) 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”.
2.
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—
(a) prevent a desirable activity from being
undertaken at all, to a particular extent or in a particular way,
or
(b) 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!
Kennedys acted for the First Defendant,
Mott MacDonald Ltd. The First Defendant's Leading Counsel was Mark Turner QC and Junior Counsel was Toby Gee, both of Crown Office Chambers.
