Hopps v Mott Macdonald Ltd & Anor

An employer’s duty is to take reasonable care to devise and operate a safe system of work. Reasonableness depends on the circumstances, including the nature and likelihood of the risks, the potential harm, the purpose of the work, the priority of competing risks, the effectiveness of precautions and their consequences. In a dangerous post-conflict environment, protection need not eliminate every risk. The court may consider whether proposed precautions would prevent or discourage a desirable activity under Compensation Act 2006. A claimant must prove that the breach caused the injury or materially contributed to it; showing only an increased risk is insufficient. On the evidence, the defendants were not negligent in using soft-skinned vehicles and the claimant failed to prove that an armoured vehicle would probably have prevented or reduced his injuries.

The claimant, a consultant electrical engineer engaged by Mott MacDonald Ltd, was injured by a remotely detonated improvised explosive device while travelling in a military convoy in Basrah on 28 October 2003. He claimed damages against Mott MacDonald and the Ministry of Defence, alleging that reasonable care required transport in a factory-produced B6 armoured vehicle or confinement to base until one became available.

Mott MacDonald accepted that the relationship was one of employment. Both defendants accepted that they owed the claimant a duty of care, although security responsibility had been delegated to the Ministry of Defence. The issues were whether the precautions taken were reasonable, whether the claimant should have been kept at base, and whether the absence of an armoured vehicle caused or materially contributed to his injuries.

1. Disposition. The claim was dismissed.
2. An employer must take reasonable care to devise and operate a safe system of work. The standard is assessed in context. Relevant considerations included the nature, likelihood and potential extent of the risk; the nature and purpose of the work; the priority of competing risks; the effectiveness of available precautions; and the consequences of adopting them.
3. The reconstruction work was urgent and important. Under section 1 of the Compensation Act 2006, the court could consider whether requiring further precautions would prevent or discourage that desirable activity. That provision drew attention to, and expounded, the common-law principle discussed in Tomlinson v Congleton Borough Council [2004] 1 AC 46.
4. The military’s security arrangements, including intelligence gathering, route control, armed drivers and escorts, and changing routes, materially reduced the relevant risks. The evidence did not establish that, before the attack, reasonable care required the defendants to procure a factory-produced B6 vehicle or confine the claimant to base. The circumstances of personnel who were priority targets did not determine the position of civilian reconstruction workers.
5. On causation, the claimant had to prove that the use of a soft-skinned vehicle caused the injury or materially contributed to it. It was insufficient merely to show that the absence of armour increased the risk: Clough v First Choice [2006] EWCA Civ 15. The exceptional approach in Fairchild v Glenhaven Funeral Services Ltd [2001] 1 AC 32 was not suggested to apply.
6. The ballistic evidence did not establish that a B6 vehicle would probably have prevented or reduced the claimant’s injuries. The behaviour of shell fragments, including penetration, ricochet and spalling, was too unpredictable. Nor was the danger level sufficient to require confinement to base pending delivery of an armoured vehicle.