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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Durrheim & Ors v Ministry of Defence  EWHC 1960 (QB) (13 June 2014)
Cite as:  EWHC 1960 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DYLAN DURRHEIM and others
|- and -
|MINISTRY OF DEFENCE
Timothy Grice (instructed by Harris Fowler Solicitors and Wixted & Co) for the Respondents J Adams, C Burridge, W Downey, S Duffy, D Durrheim, S Reeve, E Williams, A Hodgson and A Monro
Brent McDonald (instructed by Gil Akaster LLP) for the Respondent D Scholey
Leigh-Ann Mulcahy QC, Adam Heppinstall and Hannah Curtain (instructed by The Treasury Solicitor) for the Appellant
Hearing date: 22nd May 2014
Crown Copyright ©
Mrs Justice Patterson:
a) to transfer the personal injury claims, made by serving and former service personnel alleging noise induced hearing loss (NIHL) caused by service, which are listed at Schedule 1 to the attached witness statement of Helen Mary Horsfall, from existing County Courts all around the country to the High Court in London so that they may be case managed centrally;
b) to transfer any subsequent cases that raise the same issues to the High Court;
c) to provide for a common case management process and timetable for these claims
in order that the cases can be managed expeditiously, consistently and in a way that minimised use of public funds.
i) the Senior Master applied the wrong test to determine whether or not it was appropriate to order a test group of claims and misinterpreted the judgment of the Supreme Court in Smith v Ministry of Defence  UK SC 41 in its application to the present claims;
ii) the Senior Master failed to give any or any proper consideration to the degree of commonality across the group;
iii) the Senior Master failed to give any consideration to the importance of achieving consistency in first instance decisions across the group, specifically in relation to the determination of the existence and scope of a duty of care in combat conditions, following the guidance of the Supreme Court in Smith;
iv) the Senior Master wrongly took into account the issue of delay when in reality delay was a "neutral point" and will occur irrespective of whether or not a test group is ordered;
v) the Senior Master failed to give consideration to proportionality, specifically in relation to the duplication of disclosure and expert evidence, contrary to the Overriding Objective in CPR 1.1 that the court should decide cases at proportionate cost;
vi) the Senior Master failed to give consideration at all to the criteria for a transfer of claims to the High Court as set out in CPR 30.3(2) and failed to give consideration to the Attorney-General's note on that topic, specifically in relation to the complexity of the proceedings, public interest, and the location of the MOD and the Treasury Solicitors.
Approach to the hearing
"By that stage, I want to make it absolutely clear, I will want, if the defendants are going to go on with this application, to be convinced that it is not just that there is a common defence, for example, combat immunity in each case, but that there is a situation in which a High Court judge should make a decision in respect of combat immunity or other issues which will be binding and relevant in all or a large number of these cases. If the situation is that it is just that a common defence is being raised in each case, and will have to be worked out on the individual facts of each case according to guidance we have been given in the Supreme Court then I do not see that as a reason for having these claims dealt with together, because I am not convinced that just bringing them here to make it easier for the Treasury Solicitor to manage them all in one court is an adequate reason for bringing them here."
"… the question whether a duty should be held not to exist depends on the circumstances, on who the claimants are and when, where and how they are affected by the defendant's acts. Circumstances in which active operations are undertaken by our armed forces today vary greatly from theatre to theatre and operation to operation. They cannot all be grouped under a single umbrella as if they were all open to the same risk which must of course be avoided of judicialising warfare. For these reasons I think that the question, whether the claims in this case fall within the exclusion that was recognised in Mulcahy or any extension of it that can be justified on grounds of public policy cannot properly be determined without hearing evidence."
"Therefore in my judgment the question of whether the combat immunity defence can be made out or whether a duty of care is owed when the standard of care should be recalibrated in any claim is clearly fact sensitive. In effect the Supreme Court decided that such matters cannot be the subject of strike out on assumed fact. There must be a trial of the facts or I would suggest, at the very least, agreed facts upon which to base a final individual decision in each claim."
"Indeed this is the guidance, that whether a claim falls within the narrow confines of the combat immunity defence is a matter to be decided on the facts of each case if necessary after they have been tried and found and similarly that the question of whether a duty of care should be imposed or the standard of care adjusted is equally a matter to be decided on the facts of each case as has been the case in respect of many previous first instance decisions."
"I reject that argument. In my judgment it is not that there will be answers to the legal test to be applied in 62 different ways. The fact is that the outcome may well be different in 62 different ways according to the facts of each case. In my judgment Mr Allen QC for some of the defendants and other counsel who put forward the same argument are correct to say that the situation which I envisaged in my interim judgment- "If the situation is that it is just a common defence is being raised in each case, and will have to be worked out on the individual facts of each case according to the guidance that we have been given in the Supreme Court" has in fact come to pass."
"If I were to bring these claims in their entirety to the RCJ and choose some of them as test cases and stay the remainder there would be considerable delay in the resolution of the question in each case on its facts depending on the circumstances and the different types of 'kit' involved as to whether there was a duty of care and what the standard of care was in those circumstances. I think this would be unjust and not in keeping with the overriding objective even in its amended form. Of course litigation must be run at proportionate cost but that can relate to each individual claim just as much as the overall cost of several. When it is alleged by a numerous group of claimants that an alleged tortfeasor has negligently injured them in as many different circumstances as there are claims, it is not surprising that the tortfeasor may have to stand the expense of defending numerous claims in courts which are local to those claimants giving them local and for them speedier and cheaper justice. I have not forgotten that it was some years ago that the right of the crown to insist on claims being brought to London was abrogated. Having listened carefully to the defendants arguments it is my view that they are in reality wanting to bring these claims here to make it easier and cheaper for them to manage and fight them. I have no doubt that from their point of view that is perfectly legitimate and I do not criticise them for that but in balancing the advantages to them against the detriment to the individual claimants I have come to the conclusion that the defendant's application must be dismissed."
Misapplication of the legal test
"The question which these claims raise is whether the doctrine of combat immunity should be extended from actual or imminent armed conflict to failures at that earlier stage. I would answer it by adopting Elias J's point, with which Owen J agreed in para 99 of his judgment in this case, that the doctrine should be narrowly construed. To apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it has previously been applied. That in itself suggests that it should not be permitted. I can find nothing in these cases to suggest that the doctrine extends that far.
He continued at [94 H],
"The principle as he described it is not limited to acts or omissions in the course of an actual engagement with the enemy. It extends to all active operations against the enemy. While in the course of actually operating against the enemy, the armed forces are under no duty of care to avoid causing loss or damage to those who may be affected by what they do. But, as Dixon J also said at page 362, there is a real distinction between actual operations against the enemy and other activities of the combatant services in the time of war."
"The closest the cases have come to applying that reasoning to cases involving members of the armed forces is Mulcahy v Ministry of Defence  QB 732, where Neill LJ said at p 750 that there was no duty on the defendants in battle conditions to maintain a safe system of work and Sir Iain Glidewell said at p 751 that one soldier does not owe to another a duty of care when engaged in battle conditions. As in the other cases, the question whether a duty should be held not to exist depends on the circumstances – on who the potential claimants are and when, where and how they are affected by the defendant's acts. The circumstances in which active operations are undertaken by our armed services today vary greatly from theatre to theatre and from operation to operation. They cannot all be grouped under a single umbrella as if they were all open to the same risk, which must of course be avoided, of judicialising warfare. For these reasons, I think that the question whether the claims in this case fall within the exclusion that was recognised in Mulcahy or any extension of it that can be justified on grounds of public policy cannot properly be determined without hearing evidence."
a) whether or not an injury sustained as a result of noise exposure in combat conditions is justiciable in principle (by reason of combat immunity or otherwise).
b) whether or not procurement related issues in particular (including failure to provide/replace PIHP/PPE) are justiciable (whether by reason of combat immunity or because no duty of care arises by reason of the Caparro third limb) and, if so, the nature and scope of the MOJ's duty in making such procurement decisions and the standard of care applicable.
c) whether or not the alleged the incompatibility of PPE with a claimant's radio/helmet and whether or not the choice of whether to wear the PPE to preserve situational awareness in combat or related conditions are justiciable matters and, if so, the nature and scope of the MOD's duty in respect of these alleged inadequacies in the PPE and the standard of care applicable. Further, whether as a matter of fact the alleged inadequacies in the PPE are established.
d) whether or not the alleged failure by the MOD to enforce use of the PPE in combat or related conditions is justiciable and, if so, the nature and scope of the MOD's duty in this regard and the standard of care applicable. Further, whether as a matter of fact the alleged lack of enforcement is established at a general level.
Ground Two - Failure to have regard to identified common issues
Ground 3: Failure to have regard to consistency in decisions
Ground 4: Incorrectly taking into account a "neutral" point: delay
Ground Five - Failure to take into account proportionality and cost savings
Ground Six - Failure to have regard to the criteria for transfer: CPR 30.3
Discussion and conclusions
"Circumstances in which active operations are undertaken by our armed services today vary greatly from theatre to theatre and operation to operation. They cannot all be grouped under a single umbrella as if they were all open to the same risk, which must of course be avoided, of judicialising warfare."
"Close attention must be paid to the time the alleged failures are said to have taken place, and to the circumstances in which and the persons by whom the decisions that gave rise to them were taken. It would be easier to find that the duty of care has been breached where the failure can be attributed to decisions about training or equipment that were taken before deployment, when there was time to assess the risk to life that had to be planned for, that it will be where they are attributable to what was taking place in theatre." (paragraph 99)
"I would have to be convinced that all of the cases that I was going to bring in here are cases which can be put under criteria of common issues of that sort and that these are genuine common issues which do arise in each or a large number of cases."
"when it is alleged by numerous groups of claimants that an alleged tortfeasor has negligently injured them in as many different circumstances as there are claims, it is not surprising that the tortfeasor may have to stand the expense of defending numerous claims in courts which are local to those claimants giving them local and for them speedier and cheaper justice. I have not forgotten that it was some years ago that the right of the crown to insist on claims being brought to London was abrogated. Having listened carefully to the defendant's arguments it is my view that they are in reality wanting to bring these claims here to make it easier and cheaper for them to manage them and fight them."