The recent Supreme Court judgment of Smith and others v Ministry of Defence  UKSC 41 has been criticised by Lord West, former First Sea Lord as 'a total nonsense', as it has opened up the door for potential damages for military families of those who have died or been injured as a result of negligence by the Ministry of Defence.
The cases arose out of the deaths of three young soldiers and the very serious injuries of two other young British servicemen in Iraq. The claims allege that the Ministry of Defence were negligent by not providing the proper equipment and failed to give adequate training to the soldiers.
The Supreme Court ruled in a landmark decision that the Government have a legal duty of care to protect its soldiers and their human rights. Private Hewett and Private Ellis were killed when travelling in a Snatch Land Rover when an improvised explosive device exploded underneath them. Their deaths were deemed to be in the jurisdiction of the UK for the purposes of the European Convention of Human Rights and so the negligence claim could not be struck out for that reason.
In addition, the death of Corporal Albutt and serious injury of Lance Corporal Twiddy and Trooper Julien resulted from an incident involving British tanks and ‘friendly fire.’ The ground of combat immunity could not be used against a claim of negligence where it is fair, just and reasonable to extend the Ministry of Defence’s duty of care to those cases.
Lord West believes that the ruling goes against “the duty of military men to fight the war they are in with the equipment they have.” Other comments from members of the Ministry of Defence and House of Lords have highlighted the concern that this could ‘shackle Commanders’ on the battlefield and that ‘urgent discussions’ would be taking place on the implications of the ruling.
Stephensons would like to offer our condolences to the families and friends of the soldiers involved.
By Melanie Chisnall