Supreme Court indicates that the MOD has a duty of care on the battlefield to combatants as claimants are given the go ahead to take their compensation claims forward.

The UK Supreme Court has this morning issued a judgement on its case of Smith and others v The Ministry of Defence [2013] UKSC 41 which has arisen out of the death of three and the serious injuries sustained by two servicemen, whilst on operational duties in Iraq.

The proceedings centre on two different incidents, one being a "friendly fire" incident and a number of related MOD misgivings and another concerning the suitability of and safety afforded by a class of "snatch Land Rover" vehicles that were being used by some of the servicemen concerned. The main legal issues in the proceedings relating to the snatch land rover claims were whether the deaths of the two Privates concerned were within the jurisdiction of the European Convention on Human Rights, and if so, whether and to what extent did article 2 (The right to life) impose positive obligations on the UK with a view to preventing the deaths of its own soldiers in active operations against the enemy. In relation to the friendly fire incidents, and a commensurate negligence claim, the issue to be determined was whether the allegations of negligence should be struck out because they fall within the scope of combat immunity and because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances.

The court held that with regards to the Snatch Land rover claims, the privates concerned did fall within the UKs jurisdiction for the purposes of the convention at the time of their deaths and as such the claims should not be struck out as determined by the lower courts. The courts also decided that the negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MODs duty of care to those cases.

The reasons for the decision centred on three main themes. Firstly, the jurisdiction of the convention did extend to the circumstances of these cases, particularly given that the issue was raised by the European Court of Human Rights in the Al-Skeini case in July 2011 which stated that six Iraqi civilians who had died as a result of the actions of British armed forces were within the UK's jurisdiction for Convention purposes. The UKSC also appear to have formulated a general principle that extra-territorial jurisdiction can exist whenever a state, through its agents, exercises authority and control over an individual. The Convention, it indicated was not an indivisible package but could be divided and tailored to the particular circumstances of the extra territorial act in question.

The second line of reasoning in the decision was that although a wide margin of appreciation was to be deferred to the state in this domain, in order to avoid imposing unrealistic or disproportionate obligations upon the state, the court must nevertheless give effect to those obligations where it would be reasonable to expect the individual to be protected by article 2. In principle therefore, the claimants may be able to proceed with their claims under this article, though the facts of each case have to be analysed.

Thirdly, the circumstances in which operations are undertaken by the UKs armed services vary and cannot all be dealt with a broad brush, deferential approach. The issue of whether it would be fair just and reasonable to impose a duty of care on the MOD in the areas relating to the snatch rover claims under article 2 cannot be properly determined without hearing full evidence and only then can the court properly determine whether any proposed duties could be deemed as unrealistic or burdensome.

The Supreme Court reports that the effect of this decision is that all three sets of claims may now proceed to trial to essentially be able to determine whether damages can be recovered for the incident in any of the claimant's specific circumstances.

The case is a welcome result for servicemen and women and the families of deceased service men and women who may have previously been barred from pursuing damages claims against the MOD for incidents in Iraq by virtue of their previous lack of jurisdiction to bring a case forward. It is expected that many individuals will now launch cases in respect of injuries they sustained whilst on duty during the course of their employment with the MOD.