Bici & Anor v Ministry of Defence

Civil self-defence requires an honest and reasonable apprehension of imminent attack and the use of reasonable, proportionate force. Soldiers performing policing or peacekeeping functions ordinarily owe the same duty of care as private citizens. Operational difficulty affects the standard of care rather than extinguishing the duty.

Combat immunity is confined to active operations against an enemy or comparable circumstances of imminent, serious threat and pressing necessity. It does not protect unjustified force used during an ordinary incident of public disorder. A person unintentionally struck by force deliberately directed at another may recover in battery through transferred intention where the original use of force was unjustified.

British soldiers serving in a United Nations peacekeeping force in Kosovo fired 15 rounds towards a car during public celebrations. Two occupants were killed. Mohamet Bici was shot in the face, while Skender Bici alleged psychiatric injury from being endangered and witnessing the incident. The Ministry of Defence accepted vicarious liability for any tort committed by the soldiers.

A separate trial of liability was conducted under English law. The claimants alleged negligence and trespass. The Ministry relied on self-defence, combat immunity and the absence of a duty of care. The central questions were whether the soldiers reasonably believed that an armed occupant was about to shoot them, whether combat immunity applied to the peacekeeping operation, and which causes of action were established.

1. Judgment for both claimants in negligence and for Mohamet Bici in battery. The evidence clearly established that the armed occupant had not aimed his weapon at the soldiers. Any belief to the contrary was unreasonable. The forensic evidence, the bullet's path and the position of the weapon were inconsistent with the soldiers' account. Civil self-defence therefore failed, although the court did not decide whether the soldiers had held an honest mistaken belief.

2. The soldiers breached their duty by deliberately firing when there was no lawful justification. The breach did not lie in the inaccurate manner of firing. Had lawful self-defence existed, that inaccuracy would not itself have been negligent in the circumstances. Skender Bici was a primary victim because physical injury to him was foreseeable. His psychiatric injury was therefore recoverable in principle.

3. Mohamet Bici also succeeded in battery. The principle of transferred intention in Livingstone v Ministry of Defence [1984] N.I.L.R.356 was sound and was followed. Force deliberately directed at one person may constitute battery against another person whom it strikes, despite the absence of a specific intention to injure that claimant, provided the original force was unjustified.

4. Skender Bici's assault claim failed. The soldiers neither intended to make him apprehend immediate violence nor subjectively appreciated and disregarded that possibility. Transferred intention was unavailable because there was no evidence that the intended target apprehended violence. His claim under Wilkinson v Downton also failed because there was neither an intention to cause the relevant harm nor subjective recklessness.

5. Combat immunity did not apply. The doctrine is a narrow exception to ordinary legal accountability. It may cover active operations against an enemy and sufficiently serious and imminent threats during peacekeeping, but requires pressing necessity. The soldiers were undertaking policing and peacekeeping duties during, at most, street disorder. They did not fire because of combat, an attack on the protected building or a wider public necessity.

6. The soldiers owed the claimants a duty of care. Difficult and sensitive peacekeeping duties affect the applicable standard of care; they do not ordinarily remove the duty. The claimants' knowledge that an occupant unlawfully possessed and fired a weapon did not justify apportionment under the Law Reform (Contributory Negligence) Act 1945. Any imprudence was dwarfed by the soldiers' deliberate and unjustified acts. Damages were left for assessment at a separate hearing.

not stated in the judgment.