Written evidence submitted by Dr. Jonathan Morgan

Corpus Christi College, University of Cambridge

Military Casualties: Alternatives to Tort Compensation

January 2014

Executive Summary

The Ministry of Defence should undertake to pay full tort damages for all deaths and injuries sustained during active operations on a no-fault basis, as the quid pro quo for removing the right to sue in tort (e.g. for negligence).  (Crown immunity can be revived by the Secretary of State’s making a suitable Order under the Crown Proceedings (Armed Forces) Act 1987; it has previously been suggested that this should be done to reverse Smith v. Ministry of Defence to avert that decision’s likely pernicious influence on military effectiveness.)

About the Author

Dr. Jonathan Morgan is Fellow, Tutor and Director of Studies in Law at Corpus Christi College and University Lecturer in Tort Law, University of Cambridge.  He is active as a teacher and researcher in the fields of tort and public law.  He is one of the editors of Hepple and Matthews’ Cases and Materials on Tort.  Publications in the specific field of public authority liability include “Policy reasoning in tort law: The courts, the Law Commission and the critics” (2009) 125 Law Quarterly Review 215, and a case-note on the Court of Appeal’s decision in Smith v. Ministry of Defence, “Negligence: Into Battle” [2013] Cambridge Law Journal 14.  Articles on human rights law include “Amateur Operatics: The Realization of Parliamentary Protection of Civil Liberties” in Campbell, Ewing and Tomkins (eds), The Legal Protection of Human Rights: Sceptical Essays (Oxford 2011).

Military Casualties: Alternatives to Tort Compensation

1. This brief paper simply seeks to reiterate points already made to the Committee (in the course of another of its inquiries) by the present author in November 2013, commenting on the impact of the Supreme Court decision in Smith v. Ministry of Defence (2013) on military effectiveness. 

2. It was suggested in our earlier submission that an Order should be made under the Crown Proceedings (Armed Forces) Act 1987 to reverse the Smith decision.  The prospect of judicial scrutiny of operational decisions (that Smith does little to stave off) is likely adversely to affect the conduct of military operations.  The Supreme Court has, in effect, rendered such matters justiciable.  An Order to revive Crown immunity in these matters is justified by the imperative that fearless decision-making should not be affected by the prospect of judicial review.

3. It must be accepted that such an Order would have direct adverse consequences for wounded personnel and their dependants.  Accordingly, it was suggested that the Ministry of Defence should undertake to pay damages on the full tort quantum to all personnel who suffer injuries during active operations but who cannot bring an action for negligence against the MoD due to the Order.  This would ensure continuation of the salutary effect of the MoD being made to pay for injuries caused (in cold cash terms, procurement decisions would be affected—could the MoD afford not to buy enhanced protection which would save many injuries for which it would be strictly liable to pay?).  But by removing the need for judges to inquire into fault in the decision-making process, the malign effects of negligence liability (in accordance with Smith) could be avoided.

4. Not least, of course, the proposal for an undertaking of liability by the MoD would ensure compensation on the full tort measure for all deaths and injuries sustained on active operations.  This would obviously be to the financial benefit of that group of service personnel and their dependants.

5. These are the advantages of strict liability (as a direct replacement of negligence / Smith).  A number of questions, and possible disadvantages, arise in connexion with it (in order of importance):

6. Equity.  Is it fair that (as proposed here) those injured on active operations should receive full tort compensation on a no-fault basis, whereas other injured personnel would have to allege and prove negligence before receiving such damages?  It should be noted that the recent Review of the Armed Forces Compensation Scheme by Admiral the Lord Boyce rejected suggestions that higher payments should be available for injuries sustained on “active operations”:

the Scheme should continue without change to treat injuries, illness or death due to service in the same way, irrespective of the precise cause, because it is the act of joining up and signalling willingness to make a sacrifice that distinguishes those who serve.[1]

7. Ordinarily, the law should accept this principle of equal treatment irrespective of the cause of injury.[2]  But there is a good reason for the difference in treatment under our proposal.  The payment of tort-level compensation on a no-fault basis is proposed as the quid pro quo for the abolition of the right to bring a negligence claim arising out of active operations.  Since the right to bring tort claims would remain in other situations, and since those claims would (if successful) result in such compensation, the difference in treatment is justified.  It would be considerably less justifiable to revive Crown immunity and not pay damages on a no-fault basis, for those injured on active operations would then have no prospect of receiving such compensation.

8. It might still be objected that the only truly equal situation would be to compensate all military injuries (sustained on active service or not) on the full tort quantum, irrespective of fault.  But why stop there—should not all injuries in society be compensated on this basis?[3]  This might well reflect the ideal (from the compensation perspective), but to insist on utopian equality of treatment before making any moves towards it would ensure that no such move was ever taken.  The best can be the enemy of the good.  The argument that more people could be compensated should not prevent better compensation of some, especially when (as here) there is good reason for it.

9. Affordability.  It would presumably be more expensive to compensate all those killed or injured on active service on the tort basis of “full compensation” (restitutio in integrum), irrespective of fault.  But certain direct cash costs would be saved, especially the expense of the MoD’s defending allegations of negligence.  Ultimately, a political decision is needed on whether the (net) cost of this proposal outweighs its clear benefits: avoiding scrutiny by judges and lawyers of non-justiciable decision making (through the repeal of Smith v. MoD); and the full compensation of all those sustaining injury in active combat.

10. Enforceability.  Would legislation be needed to give effect to this proposal, or would a simple declaration by the Secretary of State (that tort compensation would be paid to those injured on active operations) be binding?  It appears that such a declaration would be sufficient.  The institution of the Criminal Injuries Compensation Scheme without legislation in 1964 did not prevent the courts from reviewing decisions made under it (deemed to be made under the Royal Prerogative).[4]  Of course any declaration could be made on an expressly ex gratia, “absolute discretion” basis—but this would fail to achieve fully the purpose of replacing the right of action in tort (removed, ex hypothesi, by an Order under the Crown Proceedings (Armed Forces) Act 1987).  Even an apparently binding declaration under the Prerogative or otherwise could be rescinded by the Secretary of State with few legal limits.[5]  But this might be politically difficult.  Of course legislation, too, can be amended or repealed by Parliament with “only” political pressure to prevent the Government from doing so.  So it seems that an undertaking to pay made in conjunction with an Order under the 1987 Act would sufficiently achieve our proposal of replacing negligence actions with no-fault compensation in the same amount.

January 2014