The claimants, (M) and (S) respectively, sought damages from the respondent (MOD) in negligence and trespass to the person for injuries allegedly sustained as a result of the actions of British soldiers involved in the United Nations peacekeeping operation in Kosovo. The claimants and other Kosovar Albanians had been travelling in a car when the soldiers shot and killed two of the car's occupants. M was one of two further occupants who were injured. S did not suffer any direct physical injury, but allegedly suffered psychiatric illness as a result of personal fear and witnessing the incident. The soldiers claimed to have acted in self defence, as they believed one of the car's occupants (F) was about to shoot them. Neither of the claimants had threatened the soldiers and there was no evidence that they were specifically targeted by the soldiers. The claimants accepted that the soldiers had not intended to interfere with their personal security. The MOD conceded that it was vicariously liable for wrongs committed by any of the soldiers. It was agreed that the MOD's liability should be determined according to English law pursuant to the Private International Law (Miscellaneous Provisions) Act 1995 s.12. The claimants raised the issues of recklessness, the doctrine of transferred malice and the principle in Wilkinson and Downton. In addition to the defence of self defence, the MOD raised a defence of "combat immunity" and submitted that no duty of care was owed by the soldiers to the claimants.

 

HELD: (1) The soldiers were not being threatened with being shot when they fired their guns and there were no reasonable grounds for them to believe that they were. The defence of self defence therefore failed. However, the claimants had not shown that the soldiers were reckless in deliberately firing to disable the car. (2) The circumstances had not negated the existence of a duty of care. Soldiers owed the same duties of care as ordinary citizens and the latter clearly owed a duty of care in the circumstances. The duty of care was, in principle, applicable to peace keeping and policing functions of the instant kind. The soldiers were subject to a duty as there was no relevant aggressive action directed against the authorities at all. (3) There was clearly a breach of a duty to prevent personal injury for which the MOD was vicariously liable. They were in breach of duty, not due to the manner in which they fired their weapons, but in firing on F at all. They had failed to take reasonable care in that they deliberately fired when there was no justification in law for so doing. (4) The doctrine of transferred malice applied to the tort of battery where a soldier deliberately fired against one person but hit another person instead because he had "intentionally" applied force to the person who was struck, Livingstone v Ministry of Defence (1984) N.I.L.R. 356 followed. Therefore, the MOD was liable to M in trespass to the person, as well as negligence. (5) S's claim for assault could not succeed. There was no basis for any finding that the soldiers intended personally to put him in fear of imminent violence. The fact that it may have been the consequence of their actions, even a foreseeable consequence, was not enough to fix the soldiers with liability in trespass. S's claim for psychiatric harm based on Wilkinson v Downton also failed. There was neither intention to cause the requisite harm nor recklessness with regard to S, Home Office v Wainwright & anr (2003) UKHL 53, (2003) 3 WLR 1137. (6) Combat immunity was not strictly a defence. Where it applied, its effect was to render certain kinds of disputes non-justiciable. Given that the defence of self defence failed, the principle of combat immunity could not be engaged. The instant incident was far from any kind of situation where the courts would permit the executive by reason of state necessity to act free from any legal fetters for negligent or intentional acts. It was at most an incident of disorder in the streets. The soldiers had not claimed that they were in a combat situation and they were plainly not. (7) It could not sensibly be said that the claimants had, by their conduct, shared in the responsibility for their injuries. Any imprudence on their part was dwarfed by the acts of the soldiers. It would not be just or equitable to reduce the damages on grounds of contributory fault. (8) (Obiter) Had the soldiers been acting in lawful self defence, their firing, inaccurate as it was, would not have been considered negligent in the circumstances.

 

Judgment for claimants.

 

Counsel for the claimants: Paul Rose QC.