Mulcahy v Ministry of Defence

A member of the armed forces owes no common law duty of care in tort to another member while they are engaging the enemy in the course of hostilities. The same public policy precludes a direct duty on the armed forces to provide or maintain a safe system of work in those battle conditions.

The rule concerns active operations against the enemy. It does not establish immunity for every activity performed by service personnel during wartime. A claim may be struck out where the pleaded facts establish battle conditions and no further factual inquiry could make the claim legally viable.

A serving soldier alleged that he was injured in Saudi Arabia during the Gulf War. He was part of a howitzer crew firing live shells at enemy targets. The gun commander allegedly ordered him to fetch water and then negligently fired while he was forward of the prescribed safety position.

The Ministry of Defence applied to strike out claims based on vicarious liability for the commander's negligence and direct liability for failure to maintain a safe system of work. His Honour Judge Walker refused the application because he considered that further evidence was required to determine whether the incident occurred in battle conditions.

The Ministry appealed. The central issue was whether one soldier owes another a duty of care when engaging the enemy in the course of hostilities.

1. Appeal allowed unanimously. Neill LJ, with whom McCowan LJ agreed, held that the pleaded facts sufficiently established battle conditions. The respondent was in a war zone, forming part of a gun crew which was firing live shells at enemy targets. No further factual inquiry could alter the essential framework of the claim. Sir Iain Glidewell agreed.
2. The summary jurisdiction to strike out must ordinarily be confined to plain and obvious cases. A developing or fact-sensitive question should not be decided on hypothetical facts. Nevertheless, where all material facts are pleaded, further facts would not change the claim, and the opposing arguments have been fully deployed, the court may determine the legal viability of the action at an early stage.
3. Neill LJ applied the duty-of-care inquiry requiring foreseeability, proximity and consideration of whether imposing a duty would be fair, just and reasonable. Foreseeability and proximity were conceded. Public policy, however, made it neither fair, just nor reasonable to impose a duty on one soldier towards another while they were engaging the enemy during hostilities. Civil negligence liability in such circumstances could be detrimental to the conduct of military operations.
4. The common-law rule applies to active operations against the enemy, including the work of a gun crew firing at enemy targets. The court did not determine its territorial limits or the position of personnel engaged in more remote supporting activities. The absence of an order reviving section 10 of the Crown Proceedings Act 1947 under section 2 of the Crown Proceedings (Armed Forces) Act 1987 did not prevent the common law from withholding a duty of care on public-policy grounds.
5. The same reasoning defeated the direct allegation that the Ministry owed a duty to adopt and maintain a safe system of work in battle conditions. The amendment adding that allegation could not make the action sustainable.
6. The statement of claim was struck out and the action dismissed. Legal aid taxation was ordered. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: The Ministry of Defence's appeal was allowed unanimously. The statement of claim was struck out and the action dismissed. Leave to appeal to the House of Lords was refused.
2. Halifax County Court: His Honour Judge Walker refused the Ministry's application to strike out the claim by an order dated 22 September 1994.
3. Permission: Rose LJ granted leave to appeal to the Court of Appeal on 25 November 1994.