"Such a certificate shall not, however, be issued in any event unless the Secretary of State is satisfied that the circumstances in which the death or personal injury occurred with those of warlike conditions."
"Outside a theatre of war, a want of care for the safety of merchant ships exposes a naval officer navigating a King’s ship to the same civil liability as if he were in the merchant service. But, although for acts or omissions amounting to civil wrongs an officer of the Crown can derive no protection from the fact that he was acting in the King's service or even under express command, it is recognised that, where what is alleged against him is failure to fulfil an obligation of care, the character in which he acted, together, no doubt, with the nature of the duties he was in the course of performing, may determine the extent of the duty of care…It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King’s ship of war was under a common law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer’s conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning then to be mindful of the person and property of civilians. It would mean that the courts would be called upon to say whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy had been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of the question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But a real distinction does exist between actual operations against the enemy and other activities of the combatant services in time of war. For instance, a warship proceeding to her anchorage or manoeuvring among other ships in harbour, or acting as a patrol or even as a convoy must be navigated with due regard to the safety of other shipping and no reason is apparent for treating her officers as under no civil duty of care, remembering always that the standard of care is that which is reasonable in the circumstances. Thus the commander of His Majesty’s torpedo-boat destroyer Hydra was held liable for a collision of his ship with a merchant ship in the English Channel on the night of11 February 1917 , because he failed to perceive that the other ship, which showed him a light, was approaching on a crossing course… obviously the Hydra was on active service and war conditions obtained H.M.S. Hydra [1918] P.78). It may not be easy under conditions of modern warfare to say in a given case upon which side of the line it falls. But, when, in an action of negligence against the Crown or a member of the armed forces of the Crown, it is made to appear to the court that the matters complained of formed part of, or an incident in, active naval or military operations against the enemy, then in my opinion the action must fail on the ground that, while in the course of actually operating against the enemy, the forces of the Crown are under no duty of care to avoid causing loss or damage to private individuals."
"there is no doubt that the executive government and its officers must conduct operations of war, whether naval, military, or in the air, without the control or interference of the courts of law. Acts done in the course of such operations are not justiciable and the courts of law cannot take congizance of them. In my judgment, the case of Ex parte D.F. Marais[1902] AC 109 so decided."
"To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy."
"Nor do we have occasion to consider the position of servicemen engaged in combatant activities in time of war or in training for such activities. It would not be wise, in the abstract, to attempt to mark out whatever line may be thought to exist between one act of military duty and another. Public policy may require that, at some point in the continuum from civilian-like activities performed by servicemen in peacetime to active service in wartime, what would otherwise involve actionable negligence should not give rise to a cause of action. If so, the definition of liability would seem to be pre-eminently a case for legislation, preceded by evaluation and report by law reform agencies."
"In my judgment … as a matter of public policy, if senior police officers charged with the task of deploying what may or may not be an adequate force of officers to control serious public disorder are to be potentially liable to individual officers under their command if those individuals are injured by attacks from rioters that would, in my judgment, be significantly detrimental to the control of public order. It will no doubt often happen that in such circumstances critical decisions have to made with little or no time for considered thought and where many individual officers may be in some danger of physical injury of one kind or another. It is not, I consider, in the public interest that those decisions should generally be the potential target of a negligence claim if rioters do injure an individual officer, since the fear of such a claim would be likely to affect the decisions to the prejudice of the very tasks which the decisions are intended to advance."
"How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the courts’ assessment of the demands of society for protection from the carelessness of others."
"Is a duty of care to be imposed in such conditions so as to make one serviceman liable for his negligent act towards another?"
"To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy." …In my opinion there was no duty on the defendants in these battle conditions to maintain a safe system of work." 2.C.10 Sir Iain Glidewell gave a concurring judgment in which he said at 750G – 751 B – "
"Common to all levels of command from independent sub-units upwards is the responsibility of the commander for a) The command, training, security, discipline, education, health, welfare, moral and general efficiency of the troops under their command" (ii) Regulations for the Army Medical Services, published by the defendant in May 1975 [5726] state that the Senior Consultant in Psychiatry (or Area of Divisional Psychiatrist) should inter alia: "…Liaise with Army preventative medicine specialist to assist in the maintenance of optimum physical and mental health within the area. …Be available to give advice to staff officers and commanding officers on the psychological problems of discipline, morale and welfare …Visit units within the area…to ascertain that all unit officers and NCO’s have some instruction in emergency first aid for psychiatric battle casualties" (b) Service personnel are often young and inexperienced. (c) There are special pressures in service life, even short of battle itself. The turbulence, the need to make new friends quickly on short tours, the periods of confinement in hostile surroundings, the alternation between periods of danger with periods of inactivity and boredom, language and cultural barriers overseas, and the periods of separation from families all create the requirement for high levels of supervision, support and psychiatric/psychological care. (d) In battle unimagined stress is a certainty. Battle generates death and physical injury. The more noise, stench, blast, terror, death and destruction that are crammed into narrow confines of space and time, the higher will be the psychiatric casualty rate. The risk of psychiatric injury in battle is not merely a foreseeable one but of the highest order. (e) Gross impoverishment of life in the various forms of chronic and sometime life-long Post Traumatic Disorder, with depression, substance abuse, loss of family relationships and the ability to work, is consequence of stress in combat or conflict if left unaddressed. The risk is one of serious psychiatric illness/disorder by any criteria. (f) In battle it is in the overwhelming interest of the Armed Forces and the comrades of any individual serviceman or woman that he or she is prevented, where possible, from breaking down and, if not, treated and returned to active duty as quickly as possible. Service personnel are the prime resource. Unit morale and cohesion are paramount. (g) In time of peace, unit morale and cohesion remain paramount considerations as the best conditioning and preparation for battle. Again it is in the overwhelming interest of everyone that experienced and expensively trained personnel are not lost to service life through Post Traumatic Disorder. (h) It is in the overwhelming interest of the Armed Forces and comrades that any individual is temperamentally stable and able to withstand the stresses of battle and service life. Soldiers, sailors and aircrew disordered through stress represent particular risks to themselves, to comrades and to others generally. They are often armed, trained to fight and to be aggressive. They represent a potential danger to comrades – and sometimes to the public – in combat, in an active peacekeeping role, when acting in support of the civil power in Northern Ireland or elsewhere, or during the necessarily risky exercise of training. (i) Service personnel discharged while suffering from undiagnosed or untreated Post Traumatic Disorder represent potentially a danger, to themselves and to others, a drain on the public purse and a liability to society. (j) The cost of taking precautions is negligible when compared with the cost of going to war, the sacrifice of the personnel and the legacy of the stress of combat if left unaddressed." 3.D.7 It is submitted on behalf of the Defendant that the submission that a reasonable standard of care necessarily imports a higher standard than would normally be the case is misconceived. I agree. The concept of a higher standard of care has no basis in authority, and is potentially misleading. The law was succinctly summarised by Swanwick J in Stokes v Guest Keen & Nettlefold (Bolts and Nuts) Limited[1968] 1 WLR 1776 at 1783, cited with approval in Joseph v MoD (1980) Times 4 March CA, White v Holbrook Precision (Castings) Ltd[1985] IRLR 215 CA and in Sutherland v Hatton Neutral Citation Number[2002] EWCA Civ 76 ,[2002] IRLR 263 – "
"We are aware from our preliminary consultations that there are strongly held views on this topic. On the one hand, there are those who are sceptical about the award of damages for psychiatric illness. They argue that such illness can easily be faked; that, in any event, those who are suffering should be able to ‘pull themselves together’; and that, even if they cannot do so, there is no good reason why defendants and, through them, those who pay insurance premiums should pay for their inability to do so. . . . On the other hand, medical and legal experts working in the field, who are the people who most commonly encounter those complaining of psychiatric illness, have impressed upon us how life-shattering psychiatric illness can be and how, in many instances, it can be more debilitating than physical injuries." [5] The latter we entirely accept. But although there have been great advances in understanding of the nature and causes of psychiatric ill-health, there are still important differences between physical and mental disorders. (1) The dividing line between a normal but unpleasant state of mind or emotion and a recognised psychiatric illness or disorder is not easy to draw. Psychiatric textbooks tell us that with a physical disease or disability, the doctor can presuppose a perfect or ‘normal’ state of bodily health and then point to the ways in which his patient’s condition falls short of this. There is probably no such thing as a state of perfect mental health. The doctor has instead to presuppose some average standard of functioning and then assess whether his patient’s condition falls far enough short of that to be considered a disorder. However, there is now a considerable degree of international agreement on the classification of mental disorders and their diagnostic criteria, the two most commonly used tools being the most recent American Diagnostic and Statistical Manual of Mental Disorder, the DSM-IV (1994) and the World Health Organisation’s ICD-10 Classification of Mental and Behavioural Disorders (1992). (2) While some of the major mental illnesses have a known or strongly suspected organic origin, this is not the case with many of the most common disorders. Their causes will often be complex and depend upon the interaction between the patient’s personality and a number of factors in the patient’s life. It is not easy to predict who will fall victim, how, why or when. (3) For the same reason, treatment is often not straightforward or its outcome predictable: while some conditions may respond comparatively quickly and easily to appropriate medication others may only respond, if at all, to prolonged and complicated ‘talking treatments’ or behavioural therapy. There are strong divergences of views amongst psychiatrists on these issues. [6] In their report on Liability for Psychiatric Illness (Law Com No 249, 1998) at para 1.2, the Law Commission referred to the divergence of academic views on the approach the law should take: "
" By 1996, a modern survey revealed that Americans had achieved greater scientific understanding of mental illness. But the increases in knowledge did not defuse social stigma."
"I did get ashore to Ajax Bay. I went ashore to visit and to see for myself what was going on but it was made quite clear to me that I was expected back on board Canberra where I had a job of work to do other than the psychiatric … I was actively involved in helping to manage the psychological issues of the wounded, the blinded, the amputees, Argentinean and British." 7.B.32 On 18 June Surgeon Cdr Scott-Brown, the psychiatrist aboard the Uganda, wrote to Brigadier Abraham saying – "
"12 Q. On your second statement, paragraph 3 on the Gulf War, 13 you tell us that the US Army deployed everyone to 14 the Gulf that was able to function in garrison. 15 What does that mean, please? 16 A. Well, what it meant was that people on prescription 17 medicines, people with family problems, sort of 18 the normal things that would get you out of deployment; 19 the people were simply sent anyway. 20 There were people who were deemed to be weak and who 21 were expected not to do well but they were sent 22 regardless. And the experience was that, in fact, very 23 often people were surprised at how well the people who 24 were deemed weak did and how poorly some people who were 25 stars in garrison and less demanding environments, how page 48 1 poorly they did when they actually got in theatre. 2 This reinforced our idea that any sort of 3 pre-selection based on clinical impression or clinical 4 status really was of very limited use in terms of 5 predicting what will happen to a person once they are in 6 a theatre of operations. 7 But we really did, literally, send everybody. 8 Whether they were halt, lame, lazy or just plain crazy, 9 they went." 8.21 Colonel Stokes is currently Combat Stress Control Program Officer in the US Army Medical Command. Before taking up that appointment in 2000 he had spent nineteen years at the Academy of Health Sciences (AHS), U.S. Army Medical. In 1994 he gave an overview of the policy of the US Army in response to a request for information from the Irish Defence Forces. The Irish Defence Forces wanted to know whether the U.S. Army used any screening methods " to determine susceptibility to stress breakdown or post-traumatic stress syndrome (PTSS) before sending men into action "
"If screening is to weed out all those likely to develop a psychiatric disorder, all should be weeded out" (Anderson, 1966, p. 391). "
"fear is normal", "fear should not be suppressed but talked about openly", "there is no shame in feeling or showing fear, only in giving in to it", and "you can overcome your fear." "6. All ranks should have been prepared after this fashion. The message could reasonably been delivered in different language for different ranks and groups. It should have been taught to all ranks during training and reinforced in the preparation for any hazardous deployment and in its early stages. It is accepted that this training is normally inappropriate for the eve of battle or in a moment just before battle begins, unless in response to an expression of worry by an individual serviceman or woman." 9.5 The Claimants go on to assert that such a system would not only have been protective of the men, but would also "have tended to generate a culture within the services which was much more helpful in coping with the consequences of ASR and PTD when they inevitably arose". 9.6 The Claimants contend that the value of such briefing has long been recognised within the British military; and in support of that contention point to a number of articles and documents, including those from which the following extracts are taken – "
"Most randomized clinical trials (RCTs) with combat (mostly Vietnam) veterans showed less treatment efficacy than RCTs with nonveterans whose PTSD was related to other traumatic experiences … Therefore, some experts believe that combat veterans with PTSD are less responsive to treatment than survivors of other traumas. Such a conclusion is premature. The difference between veterans and other PTSD patients may be related to the greater severity and chronicity of their PTSD rather than to differences inherent to combat traumas. Furthermore, the poor treatment response in veterans may be a sampling artifact, since veterans currently receiving treatment at VA hospitals may constitute a self-selected group of chronic patients with multiple impairments. In short, there is no conclusive evidence at this time that PTSD following certain traumas is especially resistant to treatment … (Foa et al, 2000, p. 4). However, a few pages later, the same source went on to state, " … The phenomenon of treatment resistance has been particularly noted among Vietnam War veterans receiving VA treatment in the United States …" (Foa et al, 2000, p. 15). To repeat, the authors of this authoritative review of PTSD treatment characterized the treatment response of combat veterans as "poor."
"Q. Can we draw together some threads? 15 You are in post and in this post you have overall 16 responsibility for medical/legal support service 17 administration. You are the top General for that. 18 A. (Witness nods) 19 Q. You yourself have taken an interest in stress issues 20 from way back because of your own command experiences. 21 You have reached conclusions about the changing 22 nature of the Army organisation, shrinking numbers, 23 the reduction in the effectiveness of some of 24 the traditional modes of addressing morale, the loss of 25 the sense of community, and I have put to you in 107 1 addition, and I think you have agreed, that you add to 2 that a broader context in which the Army is less tied 3 into the broader community than it has been or had been 4 for a long time. 5 Within a very short time of the visit to the 6 hostages and the visit to the Woolwich Hospital, you 7 were stimulating a process, as we shall see from 8 the documents before long, intending to achieve 9 a comprehensive system for addressing all of the stress 10 problems, not merely frank battleshock but longer term 11 problems. 12 A. That is right. 13 Q. Is it unfair to say: well, you realised as soon as you 14 were presented with all that we have seen as 15 a responsibility, that it needed a comprehensive and 16 systematic answer, rather than an ad hoc series of 17 answers being left to the responsibility of commanders, 18 however well intentioned? 19 A. Well, I felt that, as you know, it would be much more 20 effective if, instead of the Army trying to do something 21 on its own, if all three services faced up to the fact 22 that they were all having to face up to changed 23 circumstances of warfare than they had before. 24 After all, the Falklands had shown what it was like 25 to be stuck in a ship which is then hit by an Exocet and 108 1 the Air Force were flying at speeds at which they had 2 never flown before and were involved in missile attacks 3 on each other. So, warfare had changed. 4 Now, if warfare had changed, so had the stresses and 5 strains on the individuals who were conducting it. 6 Therefore it seemed to me to make sense that we all 7 moved in and that is, after all, what you had Principal 8 Personnel Officers for. If you were using the Ministry 9 of Defence with its purple overarching direction, you 10 had far more chance, it seemed to me, of getting 11 something done if it came from that than if you went 12 merely down a single service route." 15.3 He and the Surgeon General, Sir Peter Beale, were also concerned about publicity given to the subject of stress following the Gulf War; and it was the subject of a meeting between them on5 November 1991 . They were concerned in particular about the disparity between the adverse publicity suggesting that large numbers of those who had served in the Gulf were suffering from stress and the reported psychiatric casualty rates which were very low. Sir David Ramsbotham identified a problem created by recent changes in the Army – "