Davies v Global Strategies Group Hong Kong Ltd & Anor

An employer engaged in inherently dangerous work must take reasonable care to provide a reasonably safe system of work and reasonable protection, but is not required to eliminate every risk. Liability requires proof of a reasonably practicable precaution which would have made the system safer and caused the injury. Courts should assess specialist operational decisions by asking whether the decision fell outside the range of reasonable professional judgment, rather than substituting a different opinion. Adverse inferences from an absent witness require some evidential basis and a careful examination of the explanation for the absence. Where the defendant has failed to explain why a practicable precaution was not taken, an evidential burden may arise. The claimant must nevertheless prove causation.

The claimant, the widow and administratrix of Julian Davies, sued his employers after he was shot and killed while escorting a fuel convoy near Mosul, Iraq. The defendants accepted for the proceedings that Mr Davies was their employee. The claim alleged negligence in using soft-skinned vehicles, failing to provide bullet-resistant windscreens and protective collars for body armour, and failing to abort the mission as the security situation developed. The statutory-duty claims were not pursued because the relevant regulations did not extend territorially to Iraq. The central issues were whether the defendants’ system and protective measures were reasonable, whether any omission was causative, and whether adverse inferences should be drawn from missing witnesses.

1. Claim dismissed. The defendants owed a duty to take reasonable care for Mr Davies’s safety by establishing a reasonably safe system of work and providing reasonable protection. The duty was not absolute. Following General Cleaning Contractors Ltd v Christmas [1953] 180, the claimant had to identify something reasonably practicable which would have made the system reasonably safe and show that its omission caused the accident.
2. The use of light, manoeuvrable, soft-skinned vehicles with the doors removed, except for the drivers’ doors, was reasonable in the circumstances. The deterioration in security before June 2004 did not require wholesale adoption of armoured vehicles. The suggested use of Stryker vehicles was impracticable and suitable armoured vehicles were not readily available.
3. The defendants breached their duty by failing to provide a protective collar for Mr Davies’s body armour. The evidence showed that the defendants had not explained whether collars had been considered or whether suitable collars were available. Applying the principles in Wisniewski v Central Manchester Health Authority [1998] PIQR 324, no broad adverse inference was drawn from the absent witnesses, but the evidential position supported the finding of breach. The breach was not causative: the bullet entered the precise gap between the helmet and any collar, and the evidence did not establish that a collar would have materially altered the outcome.
4. The defendants had considered bullet-resistant windscreens in response to the increased risk. The evidence that they could not reasonably be sourced and fitted in Northern Iraq before the shooting was preferred to the claimant’s unsupported internet research. No causative breach was established on this issue.
5. The allegation that the project manager should have aborted the mission involved a different professional judgment, not conduct outside the range of reasonable specialist decisions. The evidence did not establish negligence.
6. The alternative defence of volenti non fit injuria was academic. Had a causative breach been established, Mr Davies’s agreement to undertake dangerous work would not have amounted to consent to a breach of duty. The claim was dismissed on liability and causation.