Davies v Global Strategies Group Hong Kong Ltd & Anor [2009] EWHC 2342 (QB)

[2009] EWHC 2342 (QB)

Case No HQ07X02122

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 25/09/2009

Before

THE HON MR JUSTICE BURNETT

Between

MRS JOANNE DAVIESClaimant

(Widow and Administratrix of the Estate ofClaimant

MR JULIAN DAVIES, Deceased)Claimant

GLOBAL STRATEGIES GROUP HONG KONG LIMITEDDefendants

GLOBAL STRATEGIES GROUP (UNITED KINGDOM) LIMITEDDefendant

Dr. Nicholas Braslavsky QC and Stephen Maguire (instructed by Donns) for Claimant

Robert Jay QC and Matthew Boyle (instructed by Clyde & Co) for Defendants

Hearing Hearing dates: 20 th, 22 nd 23 rd and 24 th July 2009

Judgment

The Hon Mr. Justice Burnett:

Introduction

[1]Julian Davies died on the 24th June 2004 shortly after being shot by insurgents through the windscreen of the vehicle in which he was travelling on the outskirts of Mosul in Iraq. He was just short of his 40th birthday. The weapon used was probably an AK-47 assault rifle firing a 7.62mm round. This is a claim brought by his widow, Joanne Davies, on her own behalf and on behalf of their son, Matthew. He was born on 22nd March 1998. The defendants are two companies which are part of the Global Strategies Group, an organisation which provides, amongst much else, defence and security services to governments. At the time of his death Mr Davies was working on Operation Northstar. That was a project which involved the protection of human and material assets in Northern Iraq. The defendants had been contracted by the United States Government [“the USA”]. Mr Davies was engaged by the first defendant, their Hong Kong subsidiary, but the British company was heavily involved in the operation in Iraq. Both denied employing Mr Davies. The contention was that he was an independent contractor. However, for the purposes of these proceedings only the defendants accepted at trial that he was their employee so that, in the event that liability were established, judgment should be entered against both defendants.

[2]The claim was pleaded in both negligence and breach of statutory duty, the claimant relying upon the provisions of the Management of Health and Safety at Work Regulations 1999, the Provision and Use of Work Equipment Regulations 1998 and the Personal Protective Equipment at Work Regulations 1992. However, reliance upon the regulations was not pursued at trial because their territorial reach does not extend to Iraq. Similarly, the defendants by their defence had sought to raise an issue of “combat immunity” (see Mulcahy v. Ministry of Defence

[1996] QB 732

) but did not pursue it at trial. The claimant contends that Mr Davies was inadequately protected in a number of respects in circumstances which amounted to a breach of his employer’s duty of care towards him. Although many criticisms were advanced on behalf of the claimant, the principal complaints as they emerged from the evidence were first that by the time of the material attack, the defendants should have fitted bullet resistant windscreens to their vehicles, provided armoured vehicles or that Mr Davies’ body armour should have been fitted with a collar. It was common ground between the parties that a bullet resistant windscreen would have prevented the injury which killed Mr Davies. It was disputed that a collar would have made any difference. The defendants deny negligence and additionally suggest that Mr Davies voluntarily accepted any breach of duty that may be established.

[3]The claimant augmented her written statements by giving oral evidence, directed towards quantum issues. Her solicitor, Anne Moment, provided written evidence of the unsuccessful efforts she and her colleagues had made to contact Alex St Matthew Daniels, who was the defendants’ project manager of the operation in which Mr Davies was engaged. An e-mail dated 12th January 2006 from Mr Daniels to the defendants’ solicitor was produced. By that time he was no longer employed by the defendants. He made it clear that he would not provide a witness statement nor appear to give evidence in court. Mr Daniel had given evidence at the inquest in December 2005 touching the death of Mr Davies. The parties agreed that the evidence given at the inquest should be admitted as evidence in these proceedings. Additionally, the parties provided four bundles of documents, one concerning quantum and the other three relating to the operation in Iraq, which it was agreed were evidence in the case. Both relied on that documentation. The claimant called Mr Stephen Robson to give expert evidence. He had retired from the Royal Marines as a Senior Weapons Instructor in 2000. The defendants’ expert was Mr Guy Hayes, who is a retired brigadier with 37 years experience in the Army. Additionally, the defendants called Damian Perl, the founder and chief executive of the defendants together with Nick Arnold. At the time of the deceased’s death he was head of projects for the defendants and continues to work for them in a senior position.

[4]Dr Braslavsky QC, who appeared for the claimant, submits that adverse inferences should be drawn against the defendants for failing to call Mr Daniel.

[5]The evidence available shows a clear unwillingness on the part of Mr Daniel to be involved in the trial. He had said as much in terms to the defendants’ solicitors. It is likely that he was aware of the claimant’s solicitors’ attempts to contact him. He could have responded if he wished. Furthermore, the evidence suggested that he is currently working in Nigeria for another organisation engaged in providing security. The inference is that there was no realistic prospect of either party securing his attendance at trial. Neither party can be held responsible for that absence, and in consequence in my view no question of an adverse inference arises. Dr Braslavsky also contends that adverse inferences should be drawn on account of the defendants’ failure to call a number of other witnesses. Charles Andrews had negotiated the contract with the USA for Operation Northstar. Simon Crane had significant involvement in the operation. Both Jed Spencer and Steven Woodward were thought to have been involved in the question whether bullet resistant windscreens should be installed. Simon Cameron was concerned with body armour. It was the defendants’ intention to call evidence from Mr Andrews. A statement from him was served in these proceedings, although it is not in the bundles available for trial. At an interlocutory hearing in advance of the trial the defendants applied to substitute Mr Perl as a witness, to which application the Master acceded. Although the full basis of that application was not canvassed before me, its foundation was that he was now working in Columbia for another security organisation. Mr Perl explained in his evidence that he lost contact with Mr Andrews in the middle to end of last year. According to Mr Arnold, Simon Crane is still working for the defendants but the whereabouts of the others were not explored or explained in evidence.

[6]In making his submission Dr Braslavsky relies upon the principles articulated by Brooke LJ in Wisniewski v Central Manchester Health Authority [1998] PIQR 324. After a careful review of authority, at page 337 Brooke LJ concluded with a citation from the speech of Lord Lowry in R v IRC Ex parte Coombs & Co [1991] 2 A.C. 283 at p. 300 and then summarised the position:

“From this line of authority I derive the following principles in the context of the present case: 1. In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. 2. If a court is wiling to draw such inferences, they may go to strengthen the evidence adduced on the issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. 3. There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on the issue. 4. If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

[7]Brooke LJ emphasised the need to look carefully at the evidence adduced by the claimant that the absent witness could respond to, but has not done so. In addition a careful review of the circumstances in which the witness has not attended is required. For reasons which I shall touch upon when considering the evidence in respect of the failings alleged by the claimant I do not consider that this is an appropriate case in which to draw adverse inferences of the sort discussed in Wisniewski, save to some degree in the context of the absence of a collar for the body armour.

[8]Dr Braslavsky also complained on behalf of the claimant that the defendants’ disclosure in this case has been particularly poor. Documents which must have existed have not been located and disclosed. In answer, Mr Perl explained that all documents that have been found and were considered by the defendants’ solicitors to be relevant have been disclosed. He readily accepted that much of the day to day activity of the defendants was not documented in a way that might have been expected. Additionally, the IT system had changed since 2004 which he thought may have caused problems. Furthermore, a large volume of documentation in Iraq was lost when a group of employees left the defendants and began working for a competitor. Dr Braslavsky does not go so far as to suggest that adverse inferences should be drawn on account of the absence of documentation, nor that the defendants are deliberately holding back documents. He does however submit that the absence of documentation which ought to exist should lead to real caution on the part of the court before accepting any statement relating to events at the time in Iraq which is unsupported by disclosed documentation. The claimant’s position on documents would be stronger if there had been an application for specific disclosure, which there was not. The particular documents or classes of documents in question could have been identified and the defendants’ answer in respect of their absence teased out and confirmed by a statement of truth. That said, in considering the reliability of written and oral evidence from Mr Arnold and Mr Perl the absence of supporting documentation is a factor which must be borne in mind when weighing their evidence.

The Duty of Care

[9]It was common ground between the parties that the defendants, as employers, owed Mr Davies a duty to take reasonable care to protect his safety, by establishing a reasonably safe system of work and safeguarding his place of work so far as reasonably practicable to include the provision of reasonable protection. In the context of an activity which necessarily imports danger the nature of the duty is neatly encapsulated in the speech of Lord Tucker in General Cleaning Contractors Ltd v. Christmas [1953] 180 at 194:

“Window cleaning is obviously a hazardous operation and – except in the case of the absolute obligations imposed in certain circumstances under the Factory Acts – there is no absolute obligation upon employers to devise a system for their employees which will be free of risk. Their only duty is to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation. … [it] is not sufficient that the system adopted was in fact unsafe, [the claimant] must show something which could reasonably have been done or omitted which would have made the system reasonably safe and that this failure was the cause of the accident.”

Background Evidence

[10]Much of the background evidence relevant to this claim was uncontroversial, as was the essence of what occurred on the day of the fatal shooting. The Second Gulf War formally ended on 1st May 2003. In anticipation of the election of a democratic government in Iraq, a Coalition Provisional Authority [“CPA”] was established to exercise power pending elections. Power was eventually handed over in June 2004. In the intervening period the CPA embarked on a programme directed towards rebuilding the infrastructure of Iraq and normalising civil life. As is well known, that process was an extremely difficult one with resistance coming from different interest groups. The United States forces played a large role, as did British forces in the south of Iraq. The coalition partners also played their parts. As part of the rebuilding and normalisation programme, the USA entered into contracts with many civilian contractors to provide services to the CPA. Those included security activities which for all intents and purposes were indistinguishable from operations that would have been carried out by coalition forces had they been available. The defendants provided armed security personnel in Iraq to protect CPA locations and individuals. The information available suggests that they then entered into two substantial agreements with the USA. The first was called Operation Filous. It concerned the distribution of currency from Baghdad International Airport to banks across the whole of Iraq. It ran until February 2004. The defendants did not use armoured vehicles for that operation but a range of Toyota vehicles with ordinary bodywork and windows. These were referred to as ‘soft skinned’ in the course of the trial. Many of vehicles which were used in Operation Filous were transferred to Operation Northstar. Operation Filous was described by Mr Perl as a success, although it was not without casualties.

[11]Mr Davies started working for the defendants in Iraq in August 2003. He was engaged on operation Filous. No paperwork has been produced by either party dealing with that engagement. He was very highly qualified and experienced to undertake private security work of this nature. Mr Davies served in the 2nd Battalion the Parachute Regiment for 5 years until 1991, when he was 27. He had served in the Royal Marines reserve before joining the Army. Mr Davies found relatively routine civilian employment after leaving the Army. However, like many ex-soldiers he maintained his interest in the military life by joining the Territorial Army [“TA”]. Mr Davies joined the territorial regiment of the SAS. The claimant had met her husband while she too was serving in the Army. Like him she joined the TA, after leaving the Royal Regiment of Wales. Mr Davies performed his duties as a TA soldier after 1991. In 2001 he was called up and posted to Afghanistan for six months. He returned for a break of a month and was then sent again to Afghanistan with his TA regiment in 2002. The defendants, in seeking personnel to staff their security contracts, recruited ex-servicemen. The information before the court suggests that those who had served in the Parachute Regiment and the SAS together with Ghurkhas and Fijians were particularly sought after.

[12]Mr Davies’ contract for Operation Northstar was signed on 8th March 2004 and secured his services until 1st July 2004. He was paid US$500 per day. There were other benefits, including insurance to cover injury or death in service. Mr Davies was a platoon commander. He was thus in charge of a group of vehicles when on patrol.

[13]On 18th February 2004 the defendants entered into an agreement with the United States Government to provide further security services in the north of Iraq. Operation Northstar had a number of features, but that material to these proceedings was that the defendants agreed to provide convoy escort services for commercial vehicles. An important aspect was the provision of such services was to escort fleets of fuel lorries from the Turkish border south past Mosul and thence to other parts of Iraq. These convoys of fuel lorries might comprise hundreds of vehicles and stretch over two kilometres or more. It was while driving to meet a convoy travelling south that Mr Davies’ group of vehicles came under fire. Those vehicles had been transferred from Operation Filous. They belonged not to the defendants but to the USA. They were soft skinned.

[14]Operation Nothstar was contracted to end on 1st July 2004. The value of the contract was a shade under US$5 million. The contract was extended first for a month and then again to 31st January 2005. Although the defendants bid for a further extension of the contract, they made their tender conditional upon armoured vehicles being provided. The American authorities were not prepared to fund that and so the contract went elsewhere. The defendants’ conclusion that armoured vehicles had become necessary resulted from the fact that by the end of 2004 the security situation in Northern Iraq had very substantially deteriorated. There had been a continuing deterioration from the inception of Operation Northstar. It is on account of that deterioration that the claimant contends that even by June, the defendants should have taken steps to enhance the protection available to their staff on convoy duty either by replacing the soft skinned vehicles with armoured vehicles or by fitting bullet resistant windscreens.

[15]The tactics determined upon by the defendants entailed their escort vehicles being highly manoeuvrable. That was to ensure that they could move to any point in the convoy at speed. Additionally, the aim was to ensure that in the event of an attack their staff could respond by laying down substantial fire from the vehicles and also get out of the vehicles at speed. Furthermore, the view taken was that the personnel should be highly visible. They carried semi-automatic rifles, machine guns and grenade launchers. The vehicles used by the defendants were Toyotas. They were left hand drive. On the day in question Mr Davies was in command of a half platoon which comprised a Toyota Landcruiser Station Wagon, a Toyota Hilux twin cab utility vehicle which had a flatbed on which a machine gun was mounted, and a Toyota Landcruiser flatbed also mounted with a machine gun. To enable personnel to respond rapidly to incoming fire, to get out of the vehicles quickly and to ensure that they and their weapons were visible, all the doors save the drivers’ doors were removed. The rear windows were also removed. The drivers’ doors remained because the drivers would not respond to fire but rather concentrate on getting the vehicle to a place of safety. Before the attack which resulted in Mr Davies’ death, the defendants had installed ad hoc armoured protection in response to the threat from small arms fire and improvised explosive devices. Steel plates were inserted into the drivers’ doors and also behind the seats and to the rear of the vehicles.

[16]Documents created at the time of and within a few days of Mr Davies’ death provide a clear account of what happened on 24th June 2004. Mr Davies was in command of the half platoon of escort vehicles which was tasked to meet the convoy of fuel trucks coming from the Turkish border. That convoy was being escorted by other staff of the defendants. The route of the convoy would bring it to the north side of Mosul. From there it needed to go through or round Mosul and continue its journey south. Mr Davies’ half platoon set off from a base to the south of Mosul. Once on the outskirts of Mosul there were a number of different routes they might take to meet the convoy coming, broadly, from the other direction. The convoy itself had a number of routes available to it to get from one side of Mosul to the other. For obvious reasons efforts were made to vary the route taken. The plan was for Mr Davies’ group to rendezvous with the convoy and augment its protection as it went through and around Mosul and then travel with it to a point about 100 kilometres to the south where it was to be met by American soldiers.

[17]Mr Davies was the front passenger in the Landcruiser which led his group of three vehicles. Tevita Kunacewa was the driver. There were two in the back, Rek Bahadur Gurung and Bhim Narayan Sangbahamphe. The other two vehicles each carried 5 personnel, four inside and one manning the machine gum mounted on the flatbed. All personnel wore body armour. No complaint is made about the level of protection provided by that body armour. The only issue is whether it should have had a collar. The body armour had been purchased from a South African supplier. The jackets themselves provided protection to level III of a widely used American standard. That would be sufficient to provide protection against a rifle bullet of the sort that killed Mr Davies. However, the jackets had been enhanced by the insertion of additional plates to provide protection to level IV. A collar, had it been provided, would have given protection to level IIIA (which is a lower level of protection than level III). It would not have stopped a bullet fired from an AK-47. All personnel wore helmets about which, again, no complaint is made.

[18]The vehicles left the defendants’ headquarters at Qayarrah West, an American base, roughly 70 kilometres south of Mosul at 08.46. The plan was to join the convoy to the north of Mosul. There were 25 fuel tankers in the convoy. Mr Daniel was in the project operations room at Camp Freedom, another American base this time to the north of Mosul. He remained in communication with Mr Davies and the other staff of the defendants operating in the region. It was his job to pass on pertinent information to those on the ground. That might be received by him from mobile units, from the Americans or from the defendants’ operation in Baghdad. At 08.58 Mr Davies reported his position as he headed north towards Mosul. At 09.07 another of the defendants’ sections operating in central Mosul reported explosions and small arms fire. This information was confirmed by the American military. They also passed on the information that there had been two further explosions in western Mosul. This information was conveyed to all mobile units. At 09.25 Mr Davies reported that he had just passed a vehicle travelling in the opposite direction containing four people and with a machine gum sticking out of the window. Although that sighting was not in itself unusual and may not have been sinister, according to Mr Daniel at the inquest, he told Mr Davies to proceed with extreme caution. Two minutes later Mr Davies reported that he was on the outskirts of Mosul and that the traffic was very congested. In the contemporary descriptions of these events various routes are referred to, the precise locations of which have been difficult to pinpoint on the maps available at trial. Nonetheless, at the time that Mr Davies indicated that he had encountered heavy traffic, he was on the ‘southern route’ which had been affected by a build up of traffic due to the earlier bombings. At 09.37 Mr Davies again spoke to Mr Daniel and told him that he was re-routing his vehicles to the ‘northern route’. Mr Daniel once more advised him to use extreme caution. That was the last time that they spoke.

[19]At 09.50 Mr Davies’ second in command, John Cindric (who had been travelling in the following vehicle), radioed to say that the group had been hit by small arms fire. He said that the vehicle in which Mr Davies was travelling had driven on. A Ghurkha in his own vehicle, Indra Magar, had fallen from the vehicle. He too was killed. One of the vehicles had its tyres shot out. Mr Cindric set about replacing the damaged tyres and trying to recover Mr Magar whilst he and his remaining colleagues were under constant fire. Mr Daniel alerted the American forces who sent a quick reaction force to the scene. Support of that nature was part of the agreement. He also put the medical services on stand by to receive casualties and sent another platoon from Camp Freedom to the scene to provide assistance. That was much nearer the site of the attack than Qayarrah West.

[20]As that platoon was leaving Camp Freedom at about 10.10, the Landcruiser driven by Mr Kunacewa arrived. Mr Davies was slumped on the front passenger seat with his head in the driver’s lap. By this stage he was unconscious. It was clear that he had sustained a gunshot wound to his head. Attempts were made to resuscitate Mr Davies but without success. It was confirmed that he had died at 11.27.

[21]When the platoon came under attack it is reasonable to infer that all those in the vehicles would have been on the alert. There is no direct description of precisely how Mr Davies was sitting in the moments before he was shot. He was, as has already been noted, the passenger in a left hand drive vehicle. There was no door on his side of the car. He was armed and would have been orientated towards the door so that he would be in a position to fire if necessary and also get out of the vehicle. That is consistent with the objective evidence of where the windscreen was penetrated by the bullet and also the way in which it struck Mr Davies. A photograph of the windscreen shows that the bullet went through towards the top on the driver’s side. It struck Mr Davies just below and behind the left ear, having scraped the underside of the rim of his helmet, and causing damage to the earlobe before penetrating further. That is entirely consistent with his having been orientated towards the door on the right hand side of the Landcruiser. It is a sadness of this case that if the bullet had been even half a centimetre higher it would have hit the body of the helmet and that would have provided protection. The bullet fragmented as it passed through Mr Davies’ neck, the fragmentation very possibly having started as a result of its passing through the windscreen. It caused extensive damage to the neck and also fractures of the occipital bone of the skull, with associated damage to the brain.

[22]As a response to this incident Mr Daniel took the decision that all soft skinned vehicles should be confined to camp for the time being.

[23]There is one further matter that was not in issue between the parties. In the period following the negotiation and signing of the contract, the danger on the ground in Northern Iraq increased. There was an increased incidence of attacks on United States forces, civilian contractors and Iraqi civilians. These manifested themselves in an increasing number of attacks using small arms and an increase in the use of improvised explosive devices, which were themselves gaining in sophistication. So, for example, rather than relying upon pressure from a passing vehicle to trigger an explosion, insurgents were increasingly using remote controlled and radio controlled bombs. There were also attacks using rocket propelled grenades. Dr Braslavsky drew attention through the documentation to instances of attacks. The defendants readily accepted through both the witnesses who gave live evidence that the position on the ground had deteriorated and was giving rise to increasing concern. The papers before the court contain intelligence summaries produced by the defendants’ intelligence officer, Wally Roth. He brought together information that was in the public domain, information collected from the defendants’ staff operating across Iraq and also information provided by the United States authorities. That intelligence was, to an extent, reflected in daily ‘situation reports’ on operation Northstar and ‘risk assessments and significant activity reports for Iraq’ produced by the defendants’ staff in Baghdad. The papers do not contain all such documents covering Operation Northstar up to Mr Davies’ death, but there are sufficient to provide a clear picture.

[24]By way of example, by 12th March 2004, Mr Roth was reporting a worsening security situation across Iraq. Two of the defendants’ vehicles had been damaged beyond repair by an improvised explosive device on 10th March 2004. On 18th March 4 civilian passengers (not with the defendants) were killed in Mosul. At the end of March two British civilian contractors were killed in a drive-by shooting at the power station at which they worked. A trend analysis produced by Olive Security (UK) Limited, released to all contractors in Iraq, showed that attacks across Iraq had increased in February and March with mounting casualties, both fatal and non-fatal. The north and Mosul in particular were far from immune from such attacks. Small arms fire was noted as the most frequent form of attack. By the beginning of April, Mr Roth considered that Iraq was descending into a failed state and feared that there would be a full scale civil war by July. He noted that insurgents had realised that killing civilians in cars gained as much press coverage as car bombs. That comment reflected the cynical reality that much of the bloodshed inflicted upon military forces, contractors and the civilian population was designed to generate worldwide news coverage. On 7th April there was a large scale attack on a convoy of vehicles driving from Jordan to central Iraq. It was a highly organised almost military operation. Although in a different part of Iraq, it demonstrated the nature of potential threat to convoys. The American forces provided a report covering the whole of Iraq on 9th April 2004. It said this in connection with the north:

““NORTH: In the North Coalition Forces continue operations to reduce the capabilities of the Anti-Coalition Forces (North) to influence the fight in the South. Coalitions Forces sustained 4 direct Fire Attacks, 1 attack on a CPA convoy, 1 Direct Fire attack against ICDC Forces, resulting in Coalition Casualties. An Iraqi Police LT was kidnapped but local nationals provided information leading to his successful rescue and in turn capture of enemy forces. Shi’l Imams in the North for the most part are urging calm in this current unstable situation and are supporting coalition efforts to end the violence.”

On that same day, one of the defendants’ vehicles was involved in an improvised explosive device incident in Mosul resulting in three non-fatal casualties.

[25]The situation reports showed a varied pattern of attacks and risk in and around Mosul in April and May 2004. There were occasional references to the situation being ‘relatively calm’ but there was a continuing pattern of small arms fire and improvised explosive device attacks on military personnel and contractors alike. According to an Operation Northstar situation report dated 3rd June 2004, prior to June there had been no attacks on fuel convoys nor any to the North of Mosul. That situation report is confusing because whilst it is dated 3rd June it refers to an incident on 6th June. At least one of the dates must be wrong. Be that as it may, the report described an improvised explosive device attack on a fuel convoy on 6th June. Its author, Mr Daniel, wondered whether it represented a change in enemy tactics. On 12th June a Standard Operating Procedure identified the threat to road movements on Operation Northstar with precision:

“THREAT 3. The threat to vehicles cannot be underestimated. The majority of past incidents have targeted military convoys, but there are an increasing number of attacks involving civilian unmarked vehicles and convoys. 4. The threats include Improvised Explosive Devices (IED’s). Unauthorised or Unknown Vehicle Check Points (UVCP), Unexploded Ordnance (UXO) and Ambushes. A rigorous approach to control management of vehicles must be applied to ensure these incidents are avoided.”

On 21st June a convoy of another contractor was attacked south of Mosul by improvised explosive devices and small arms fire.

[26]This pattern of activity was recognised by the defendants as generating increased risk. That recognition of the increasing risk was reflected in the decision taken to fit ad hoc protection using steel plates. It was also recognised in improved protection that the defendants fitted to the vehicles when the contract was extended in July 2004. Most importantly, in the light of the case advanced by the claimant, was the explicit acceptance by the defendants that the risk of attack by small arms fire had led them to consider whether to install bullet resistant glass to the Toyota vehicles before Mr Davies’ death. It is the evidence on that issue and the explanation given by the defendants why that did not happen which was most in issue in the course of the hearing.

The Documentary Evidence

[27]In the course of their submissions, counsel referred me to a large number of documents found in the trial bundles. Those and others were also referred to by the parties’ experts. A small number of the documents formed the basis of cross examination of Mr Perl and Mr Arnold. Dr Braslavsky and Mr Jay Q.C., who appeared for the defendants, urged me to review all the documentation, whether referred to in the course of evidence and argument or not, to assist in making factual findings. Paragraphs [23] and [24] above contain a brief summary of the security situation in and around Mosul during the currency of the contract before Mr Davies’ death.

[28]On 17th February 2004 Mr Crane, who is due course signed the contract for Operation Northstar on behalf of the defendants, produced a draft Project Initiation Document [“PID”]. No separate document other than this draft has been produced. However, one of the curiosities of the document is that, despite being dated 17th February, it states in the introductory paragraph that the defendants’ proposal has been accepted ‘and the contract was signed 18 February 2004.’ It is at least a possibility that the original draft was amended following signature of the contract. The PID is a detailed document. Having identified the threat, local friendly forces and the area of operation it summarised the mission: “MISSION 1 6. You are to set up operations 2 and conduct daily security taskings as directed by C-3 MNB-N, to include:a. Convoy escort of private organisation vehicles supporting US Military missions. For example, escort of Kellogg, Brown and Root (KBR) supplies from Turkey to Mosul.

b. Protective security of both military and non-military personnel. For example, providing protection 3 for Coalition Provisional Authority (CPA) delegates who move in and around northern Iraq.

c. Escort directed host nation cargo designated by the C-3 MNB-N. For example, escorting 4 large amounts of currency in and around northern Iraq.

d. Supplement military escorts both host nation and US when directed by C-3MNB-N or his designated representative. For example, assisting Iraq Civil Defence Groups (ICDC) or host nation police with the movement of future election ballots. In order to secure personnel and cargo within northern Iraq.” 1The mission is extracted from the PWS, Reference A, and the contract without any amendments. 2Setup encompasses an operations room, dedicated Division LO, 14 gun buggies and 4 command vehicles” 3This task calls for Armed Protection NOT Close Protection and doers not stipulate transportation of the personnel. 4Again, note that transportation of these goods is not stipulated ion the PWS. The set up referred to in paragraph 6.a. included an operations room and liaison officer, 14 gun buggies and four command vehicles. It described the ‘Intent’ of the operation as being to deter hostile activity against convoys by maintaining an overt and professional security posture. All aspects of the operation were then covered in the document. Paragraph 28 of the PID recorded that ‘servicing for the vehicles is likely to be sourced from Bukkehave’. That is a Dutch company which features later in the discussion of bullet resistant windscreens. Annexes to the PID deal amongst much else, with schematics for the composition of groups of vehicles that would be deployed on escort duty, including a half platoon of the sort that Mr Davies was commanding at the time of the attack. Annex E to the PID (which bears an internal date of 15th February) notes that the stores were to come from Operation Filous. The vehicles identified as coming from Operation Filous are detailed in Appendix 2 to that Annex. a. Convoy escort of private organisation vehicles supporting US Military missions. For example, escort of Kellogg, Brown and Root (KBR) supplies from Turkey to Mosul. b. Protective security of both military and non-military personnel. For example, providing protection 3 for Coalition Provisional Authority (CPA) delegates who move in and around northern Iraq. c. Escort directed host nation cargo designated by the C-3 MNB-N. For example, escorting 4 large amounts of currency in and around northern Iraq. d. Supplement military escorts both host nation and US when directed by C-3MNB-N or his designated representative. For example, assisting Iraq Civil Defence Groups (ICDC) or host nation police with the movement of future election ballots. In order to secure personnel and cargo within northern Iraq.” 1The mission is extracted from the PWS, Reference A, and the contract without any amendments. 2Setup encompasses an operations room, dedicated Division LO, 14 gun buggies and 4 command vehicles” 3This task calls for Armed Protection NOT Close Protection and doers not stipulate transportation of the personnel. 4Again, note that transportation of these goods is not stipulated ion the PWS.

[29]The contract itself required the provision of a fleet of no fewer than 18 vehicles, 14 of which were to have ‘crew served weapons’. That was a reference to the two types of Toyota with flatbeds on which machine guns were mounted. The cost of maintaining the vehicles was to be reimbursed by the USA. The contract identified the need for the defendants to develop their operational procedures to meet new and evolving threats.

[30]On 24th April 2004 Mr Daniel wrote a document called ‘Northstar Over Brief and Issue log’. The context in which this document was written it set out in its introduction. It was in contemplation of an extension of the contract to October 2004 and thereafter to 2005. It noted that a draft proposal had already been lodged with the defendants’ Iraq country office, although no such document has been produced. The overview summarised the dispositions, manpower and finance of Operation Northstar. The document proceeded to discuss issues relating to manpower, equipment and materials together with leave for, and rotation of, staff. Mr Daniel’s conclusion was that:

“4. Conclusion. The Proposal for the extension of the contract, should be used as a vehicle for addressing the above issues. Also attached are examples of the initial proposals for this contract.”

[31]The claimant relies in particular upon the part of this document dealing with equipment which was as follows:

“2. Equipment and material. The project does not have a Photocopier or FAX machine for use in the Administration Cell. The VHF HF radios are unreliable. Within the present contractual conditions for vehicle maintenance the serviceability of the vehicle fleet will not be able to be sustained until Jan 05, should the contract be extended to this date. The task vehicle fleet is inappropriate for the Project Task. Toyota Hi Luxes and Landcruisers are not efficient weapons platforms. As a platform, Hi Luxes are unstable when fully loaded and are unsuitable for the deployment of a heavy machine Gun. This mitigates against interoperability. There are three task vehicle varieties; Landcruiser, Landcruiser (sic), Pick Ups and Hi Luxes. This makes vehicle maintenance and husbandry unnecessary complex. The vehicles are unarmoured and place the operators at high risk given the tactical situation. The vehicles are scruffy and there is no budget for resprays. The white colour of the vehicles is tactically unsound. Issued weapons are difficult to deploy effectively in a vehicle borne roll. There is currently no countermeasure against Radio controlled Improvised Explosive Devices. There is no provision of uniform items for Expats. This undermines Global Corporate presentation. It is recommended that: a. The project buy a photocopier and a FAX machine to assist with the administration of 150 and possibly more men. b. At the very least, all radios should be professionally serviced in a structured programme. c. If the contract is extended to Jan 05 extra facility should be made in the vehicle maintenance paragraph to represent the wear and tear on vehicles after 10 months of driving in a harsh environment. d. The Toyota Hilux and Landcruiser were originally selected for use on OP Filous Project. The Landcruiser was appropriate for LO and general tasks. The Huilux was an adequate gun buggy platform but only for medium weapons. Northstar has different requirements driven by the nature of the task and the tactical situation. Task vehicles should be standardised. The Toyota Landcruiser Pick Up 4 cab is the ideal vehicle to deploy as a gun platform. It is suggested that the fleet be standardised to this model. This would ease sourcing of spares and simplify servicing. It would allow all weapons to be mounted on any vehicle. The power of the vehicle is more accommodating to the weight of additional armour, with little compromise to vehicle performance. e. An armouring package should be initiated. f. If new vehicles are acquired their colour should be dark and unobtrusive. g. An ECM capability should be provided for vehicles to counter IEDs. f. (sic)Uniform items, such as shirts ands hats carrying the Company logo should be sourced for the Expats.”

It is apparent that Mr Daniel was particularly concerned that both types of Toyota flatbed were not suitable for heavy machineguns. He was worried about maintenance and, as is especially apparent from his use of bold type, he thought that the tactical situation called for armouring of the vehicles. Armoured vehicles, or the armouring of soft skinned vehicles, provides protection from bullets and also substantial, but not complete, protection from improvised explosive devices and rocket propelled grenades.

[32]No document has been disclosed showing a considered response to this brief and issue log. However, it is clear from other documentation that the issues raised by Mr Daniel were taken up in the process that led to the extension of the contract first for a month and then until January 2005.

[33]On 10th July 2004 Mr Crane signed a contact on behalf of the defendants which provided additional funding for personnel and for vehicle maintenance. The justification for increasing the rates of pay for the staff engaged by the defendants was that the operation had become more dangerous. Notes attached to the agreement show that the casualty rate on Operation Northstar since 1st March had been 13%. As has been the custom for centuries in the military context (to the frustration of outsiders) the casualty figures do not distinguish between those killed and injured, or between those seriously injured and less so. Military commanders tend to be interested in how many troops they have who are fit for service. Nonetheless, the same document records that ‘the threat has increased …and is likely to remain high in the immediate future.’ That provided a justification for increasing pay and allowances in an environment when all staff were volunteers, not subject to military discipline and thus free to leave whenever they chose. The spare parts listed as required by the Operation Northstar vehicles show that they were taking a pounding. The list of spare parts was preceded by an explanation which demonstrated the difficulty in undertaking repairs and maintenance of vehicles at all in Northern Iraq. “1. Op Northstar vehicles have become increasingly subject to breakdown since our supply of JP8 fuel become contaminated firstly by water and secondly by JP4. 2. The effect on vehicles has been disastrous as fuel injector pumps and lines have become disabled and can only be supplied direct from Japan at a cost of around $4000-00 per item. Dubai, Kuwait and Jordon have been tried for possible supplies to no avail. Prices are favourable to supplies from No-Lemon Baghdad, who also have to order direct from Japan. 3. Quality tyres cannot be found locally. A tyre of Chinese origin has been obtained. These are cheap, continually puncturing and are already showing wear after only 5-7,500km. 4. There is also no qualified personnel to carry out maintenance and effect repair to a reasonable standard. It is therefore to requested that spare parts and personnel from No-Lemon Baghdad (parent company Bukkehave, Denmark), be tasked to supply and fit accordingly. A breakdown of assessed costs is given below.”

[34]The contractual documents relating to the extensions first for the month of July and then for the period thereafter are not at all easy to follow within the bundles and do not appear to be complete. In a document prepared on 7th May by the defendants in connection with a possible seven month extension various pieces of equipment connected with providing protection from attack were itemised. The first was an improvised explosive device frequency blocker. This piece of equipment is designed to interrupt a radio signal used to set off a roadside bomb. The second was blast goggles, the purpose of which is self-evident. The third was vehicle blast blankets. These provide some protection in the event of a bomb blast. The fourth was an armoured vehicle. That was a reference to an armoured Landcruiser brought up to what was described as B6 standard. By the 24th June the wish list had expanded to include larger numbers of most of the items earlier identified but also blast proof film for all vehicles. Blast proof film must be contrasted with bullet resistant glass. Blast proof film is capable of preventing the windows of a vehicle from being blown in when the vehicle is subject to a bomb attack. It is laid on top of the windows. Although described as ‘film’ it is in fact relatively thick. It does not, however, prevent penetration by bullets through the window.

[35]Amendments to the contract were signed off by Mark Tavera on behalf of the USA on 24th July and again early in August 2004. Shortly thereafter the defendants entered into negotiations to ‘up-armour’ their fleet of Toyotas (which had been augmented for the contract extension). On 10 August they received a quotation for both the Hilux and Landcruiser. 40 kits could be made available from a South African supplier with five days for shipment by air to Baghdad. The suppliers explained both how the panels were constructed and how they should be fitted to the vehicles. In essence panels are fitted to all the bodywork including doors and floors. It is implicit that the vehicle would then be used with doors attached to the vehicle, rather than removed as was the case at the time of the ambush that led to Mr Davies’ death. The ‘up-armouring’ did not include any enhanced protection for the windows. That was explained in an email dated 11th August. The South African supplier indicated in that e mail that he would send a quotation for window film the next day, although no such quotation is in the bundles. However, there is a quotation which the defendants obtained from an American supplier on 10th August 2004 for Mylar protective film. Its properties were described in the quote as follows:

“Applied directly to automotive glass, this Mylar protective film works like an invisible coat of armor, strengthening the automobile’s “weakest link” – the glass – making it virtually impenetrable to flying rocks, club, axes, vandalism and attempted break-ins.”

[36]It was this film which the experts agreed would not necessarily stop a bullet from a rifle. Its ability to reduce the momentum of a bullet was not explored in evidence. The documentation does not disclose precisely what was ordered or when.

Mr St Matthew Daniel

[37]Mr Daniel had been commissioned in 1989 after Sandhurst into the Royal Corps of Transport. He served in the Army until 2002, retiring as a Major. A number of the documents he created immediately following the fatal shooting provide the uncontroversial account of events on 24th June 2004. He gave evidence at the inquest. He described the organisation of Operation Northstar, the training arrangements, the mission on 24th June and the routes available to the convoy and those going to meet it. He elaborated upon the violence that broke out in Mosul that day and confirmed the regularity of attacks and the relentless nature of the threat under which he and his colleagues operated. In answer to questions from the Coroner he explained the modifications that had been made to the Toyota vehicles:

“C How were they modified MrStM The doors were missing, all apart from the driver’s door, they were left hand drive, so the driver’s door was in place on all the vehicles. The Landcruiser had four doors, three doors missing. In some cases the rear tailgate of the Landcruiser was removed or at least the rear windscreen. As far as the Toyotas were concerned, they could seat four people and therefore again three doors removed, one door remaining. On the back of each one of the Highlighters was a pole which had medium or a heavy weapon mounted on it. Where there was a door as the driver’s door, we had inserted sheet metal plates within the door to provide more protection. We had also put metal plating behind the seats to give protection from the back and also the back of the flatbed Highlighters was provided with armoured plate and that was to give people a better chance in case of fragmentation coming up from underneath the vehicle. Other modifications were fitted with extra fire extinguishers and also straight towbars. C Straight towbars what were they for MrStM Solid towbars, a solid bar, and additionally they carried a second spare tyre, rather than just one spare tyre, they would carry another C And what was the thinking behind the vehicle themselves, what was the thinking behind a Landcruiser rather than an armoured vehicle, a jeep or something that one might associate with such a high risk environment MrStM You mean why didn’t we have armoured vehicles Madam C Well I am asking a more general question, yes that is part of it, I want you to help me with the understanding of the choice of vehicle, why it was a Landcruiser and not an armoured vehicle or any other sort of vehicle MrStM The vehicles came from a previous project and basically they were handed me downs. If I can explain, you are probably wondering therefore why did we take the door off, well as the project manager I have to work with what I had of these ascertained boxed in vehicles in a very dangerous environment, and therefore it was better as far as the vehicle crews were concerned, in being able to bring weapons to bear and also escape from the vehicle and also to dismount the vehicle when there is traffic, it was better to have no doors in order to allow freedom of movement, because at the end of the day a soft skin door against a bullet or a piece of shrapnel is of no consequence, so you might well have free movement in a sense C So you had these Landcruisers because they were what were given to you MrStM That’s right Ma’am.”

C Straight towbars what were they for MrStM You mean why didn’t we have armoured vehicles Madam C So you had these Landcruisers because they were what were given to you MrStM That’s right Ma’am.”

C So you had these Landcruisers because they were what were given to you

[38]He then went on to deal with the question of bullet-proof glass “C Were they any special sort of glass MrStM No C Was there any discussion about putting bullet-proof glass in MrStM Yes C Can you describe that to me MrStM Well, we have requested additional equipment, to provide more protection and we were talking about ballistic blankets which is a blanket that is partially resistant to a bullet and it is fairly resistant to shrapnel, which can be draped over seats affording the passengers a little bit more protection. We had also spoken about a special coating that could be applied to windscreens to make them more resistant to bullets and shrapnel C And what happened about these requests MrStM They were accepted by Global and Global made various undertakings to secure that equipment. However, it hadn’t arrived by the time we had the incident on the 24th C Did you personally request these MrStM I had, yes C Just remind me, how long had you been involved in this project MrStM At the time of the 24th June, approximately four and a half months C When did you make the request MrStM I cannot be precise on that C Approximately MrStM It would have either been at the end of March or during April C And which month did you begin your involvement MrStM Late February C So you started your involvement with the project in late February and by the end of March or the beginning of April you formed a view that you would be assisted by these additional pieces of equipment and you made a personal request for them MrStM I did C And by June they hadn’t arrived MrStM No” Mr Daniel’s answers make it unclear whether he was referring to bullet resistant glass as an option, in addition to the coating, of which Mylar is an example. It seems more likely that his reference was to Mylar coating which would not be bullet resistant (see paragraph [35] above). MrStM No C Was there any discussion about putting bullet-proof glass in MrStM Yes C Can you describe that to me C And what happened about these requests C Did you personally request these MrStM I had, yes C Just remind me, how long had you been involved in this project MrStM At the time of the 24th June, approximately four and a half months C When did you make the request MrStM I cannot be precise on that C Approximately MrStM It would have either been at the end of March or during April C And which month did you begin your involvement MrStM Late February MrStM I did C And by June they hadn’t arrived MrStM No”

C And by June they hadn’t arrived

[39]Mr Daniel was asked whether he gave consideration to aborting the mission in the light of developments that morning in and around Mosul but explained that there was inadequate time. He also made the point that the platoon leader on the ground, with the best appreciation of the local circumstances together with such input as is coming from the control room, could always decide to turn back. He knew that Mr Davies was making adjustments to his route in response to the developing situation on the ground. The attack followed within a few minutes. When cross examined on behalf of Mrs Davies, Mr Daniel confirmed that he did not consider that the vehicles were suitable, that he asked for armoured vehicles, ballistic blankets and for the covering for windscreens. This is a clear reference to the factors he identified in his Overview and Issue Log of 24th April. He was also asked by the Coroner what lessons were learned from the incident. His conclusion was as follows:

“C As far as the events leading up to his death, how they happened, any conclusions that you drew from your discussions on how they happened MrStM Well the windscreen should have been armoured, that is one conclusion. As far as the rest is concerned really everything came to a head very very quickly. The damage was done by the time people were able to react to it. I don’t think, certainly for myself, I wouldn’t have done anything differently and the way people react to it I think is appropriate C Is there anything else that you think would be useful for me to know MrStM I think the most important thing for you to understand is the general risk climate that we were operating in. It is extremely difficult to illustrate the haphazard violence of that environment and therefore what you and I would seem incredible that nobody knew or could react to what was happening, it was really because it was more violent, a more intensive version of what usually happens. As far as the day was concerned, it started much the same as any other violent day, but it intensified to such a level that not only ourselves were caught out but the Americans also lost I think 5 people that day and, unfortunately, we lost Julian and Indra on that day. This is my final word, initially you lose a few people of experience level. The majority of the people who work with me are either ex soldiers or police who would have had full careers in those services and also many other people have had up to a year or more in Iraq working, such as Julian and myself, we had been there ten months, so it was not as if people were unaware of the severity of the sort of violence that one could see. It wasn’t as if people were unaware of the environment they were operating in. Everybody was keenly aware and I don’t think anybody would knowingly have done something to risk another person’s life either by omission or commission.”

C Is there anything else that you think would be useful for me to know

The Evidence of Mr Arnold and Mr Perl

[40]Nick Arnold made a statement for use at the Inquest. That was dated 5th December 2005. He made statements for the purposes of these proceedings on 13th June 2008 and 10th November 2008. At the time of Operation Northstar he was Head of Projects based in London. He now holds a more senior position. As Head of Projects he oversaw both Operation Filous and Operation Northstar, with day to day management being in the hands of the Project Manager, Mr Daniel. His statement of December 2005 gave background information about the defendants and summarised their involvement in Iraq. He described the structure of the defendants’ organisation in Iraq and in particular the distribution of responsibilities for Operation Northstar. He did not give detail of the thinking which resulted in the provision of vehicles used by Operation Northstar, nor the level of protection they afforded. He did explain the tactics used by the defendants on convoy escort duties, the need for manoeuvrability and (in broad terms) the armaments used. He noted that the vehicles had come from Operation Filous. He also explained that Mr Davies had suffered minor injury during a training exercise on 4th April 2004 when the breech of a machine gun exploded.

[41]In his second statement Mr Arnold expanded upon the general position in and around Mosul in early 2004. He spoke of the success of Operation Filous and suggested that neither a bank note nor a man had been lost. That was incorrect. Mr Arnold corrected his assertion that no man had been lost at the outset of his oral evidence. There had been casualties. In a fax to their counterparts dated 15th July 2009 the defendants’ solicitors stated that one man was killed when on guard duty and five others were injured at various times during Operation Filous. Further documents produced during the trial suggest that the details contained in that fax may not be accurate. Whilst Mr Arnold readily accepted the error in his statement he did not provide any clear explanation of how he came to make the error. He told me that at the time he made that statement he ‘assessed’ that there had been no casualties. Although perhaps a little surprising, I accept that at the time he made his statement in July 2008 he had forgotten that Operation Filous sustained casualties. However, what this lapse demonstrates is a lack of care in ensuring the accuracy of an important assertion in the statement.

[42]Mr Arnold’s statement explained why armoured vehicles were not used from the outset of Operation Northstar, essentially on grounds of manoeuvrability, and the need for the defendants’ personnel to be able to open fire and deploy quickly. Dr Braslavsky did not submit that the decision in February 2004 to equip Operation Nothstar with soft skinned vehicles was negligent, even though Mr Robson had been critical of it. Mr Arnold’s second statement explains that during the four month period of Operation Northstar before its extension, the defendants had escorted about 300 convoys. Three were attacked. The attack on 24 June was the only hit with small arms fire, the other two having involved improvised explosive devices. The defendants were able to respond to any attack and call on the resources of the American military. There was a further attack on 12th July on a convoy of 92 trucks, when no casualties were sustained by the defendants or the convoy. He summarised the position at the end of the contract in this way:

“2.13 Northstar ran until February 2005. By late 2004, we felt the state of the vehicles now having been operational for over 18 months constantly and the ever-increasing risks being faced by our men were such that we would have no choice but to acquire custom-modified defensively armoured vehicles despite the tactical and operational drawbacks we had already identified. No matter how we presented the economics of the project to the US Military, however, they simply would not countenance that type of expenditure and therefore we were not successful when the contract was rebid. This approach for future convoy escort work essentially priced ourselves out of this particular service so we did not undertake future convoy escort contracts. The replacement Northstar contractor, Falcon Security, adopted the same MO and tactics using local Kurdish ‘Peshmerga’ but less successfully and to such a point that the client de-scoped their operations significantly.”

[43]This second statement also contained the essence of the defendants’ case concerning their response to increased risk after the inception of the contract. “2.3 By March 2004, when Northstar began, other security contractor companies, including Aegis, Amour Group, Erniys, Falcon, Triple Canopy, Blackwater, Hart, Dyncorp and CRG, were also operating in various parts of Iraq. To the best of my knowledge, no other private security contractor was operating with armoured Land Rover/Land Cruiser four-wheeled drive type vehicles at that time. The same went for the US, British and other coalition partners. By “armoured” vehicles I mean hard-skinned (Level B6) vehicles designed to provide mobile protection for their occupants from a direct hit by small-arms fire, although I was not keen on Land Rovers themselves due to lack of; manoeuvrability inside the vehicle, reliability, maintenance support and speed. 2.4 The insurgents or terrorists (“assailants”) were not armed with artillery, but some of them had access to mortars and armour-piecing ammunition. Rock Propelled Grenades (“RPGs”) were also a serious threat, if aimed accurately. Improvised Explosive Devices (“IEDs”) were being used, but generally out on the open roads and not in the city. As a general comment, in an urban environment even military vehicles such as armoured personnel carriers and tanks are at serious risk from this type of firepower because the narrow streets, traffic congestion, and pedestrians result in slow speeds and a general lack of manoeuvrability. This makes them easy targets for assailants, who can select the optimal ground for an attack, getting up close to the vehicles and, using the element of surprise, simultaneously attack the vehicle from multiple points before there is an opportunity to respond. Mosul city, in which our teams were operating on a daily basis, was no different in this regard. 2.5 As the IED threat increased, we started coordinating our convoys to move after the US Military ‘sweep’ for IEDs had been undertaken on the routes that we were intending to travel on. As a result of my visit to Mosul in March 2004 we commenced negotiations with the client to enhance as much as possible the protection of consultants from bullets and shrapnel by installing sheet metal plates into the vehicles. These plates were inserted:2.5.1 behind the seats of the driver and front passenger;

2.5.2 inside the driver’s door;

2.5.3 either side of the gearbox console;

2.5.4 in some cases, between the rear passenger seats; and

2.5.5 in the Toyota Hiluxes, up against there back of double cabs. The US forces in Mosul were doing the same due to the high number of soft skinned vehicles (Hummers) they were operating with. 2.6 In respect of small-arms fire, I was aware that bullet-restraint glass could theoretically be used but, having discussed the matter with the Northstar Project Manager, Alex St. Matthew-Daniel (“ASMD”) and his senior managers, we thought the following factors were important: 2.6.1 Such glass would be very thick (around 40 mm, I believe), and it was simply not practicable to retro-fit such glass to vehicles with curved windscreens in Iraq during the period March – June 2004 (i.e. the initial period of Northstar). Quite apart from the specialist equipment and skill required (non-existent in Mosul at the time), the installation process would have resulted in the vehicles being out of action for long period of time which was 1) not feasible and 2) likely to have resulted in us breaching our contract with the US Military, who did not have the manpower available to allow our operation to be interrupted for a single day. 2.6.2. The men had removed three of the four doors of the vehicles for tactical reasons to ensure all security operatives could provide the widest possible circle of coverage around the vehicle and as a result deter attack through an alert and overt presence. A bullet-resistant windscreen would at best only give protection in a very limited arc – say 60 degrees. The assailants were not well trained or accurate with their gunfire at first, but they became better. Once they realised we had mitigated the threat from a frontal attack, they would have adopted their modus operandi to achieve maximum first strike damage from a different angle of attack before accurate return fire could be initiated by the GLOBAL teams. 2.6.3 Although the door weight had been lost, the vehicles were already heavy from the equipment, weapons and ammunition they carried and the reinforcing plates GLOBAL had inserted for extra protection from bullets and shrapnel. In light of this, we thought there was a real danger that these vehicles would lose their speed, flexibility and manoeuvrability if even more weight was added. It was also crucial both for the protection of the convoys and the safety of our men that the vehicles’ suspension and transmission systems did not let them down.” 2.5.1 behind the seats of the driver and front passenger; 2.5.2 inside the driver’s door; 2.5.3 either side of the gearbox console; 2.5.4 in some cases, between the rear passenger seats; and 2.5.5 in the Toyota Hiluxes, up against there back of double cabs.

[44]The third statement was largely a commentary on the expert evidence of Mr Robson.

[45]Mr Arnold was cross-examined thoroughly by Dr Braslavsky. He readily accepted that vast swathes of documentation that must either exist or have existed had not been disclosed. There is nothing which records pre-contractual negotiations with the USA; nothing detailing risk assessments made in advance of signing the contract; nothing setting out the detail of training or training records of individuals; nothing relating to the discussions about bullet resistant windscreens. The documentation produced itself suggested that there were gaps. Mr Arnold accepted that an incident had occurred during Operation Filous when one of the defendants’ staff was shot in the arm whilst driving a Toyota in southern Iraq on 17th November 2003. There was a significant dispute between that person and the defendants about the circumstances. Yet Dr Braslavsky reasonably wished to understand why there had been no disclosure of documents relating to that incident when it appeared relevant to the issues in this case. Mr Arnold was unable to help.

[46]Mr Arnold was asked about collars for body armour but was unable to help with the detail. He explained that Simon Cameron procured the body armour and the he, Mr Arnold, did not know whether collars were available.

[47]It was on the question of consideration of bullet resistant glass that Mr Arnold was most strongly pressed. Dr Braslavsky suggested that there had been no such discussions. The clear implication was that Mr Arnold was simply making up this part of his evidence. That he denied. He explained that as well as being in close contact with those on the ground in Iraq when he was in London, by telephone and e mail, he also visited Iraq in March and spent time with Operation Northstar. He was unable to give any details of the nature of the discussions he had with Mr Daniel and others about bullet resistant glass but he was adamant that such discussions took place and were sparked by the increase in risk from small arms fire that he and his team fully appreciated. The discussions either took place during his visit in March or later by telephone. Mr Arnold said that the defendants were in constant touch with Bukkehave. As the documents show, that company was involved in the maintenance of the vehicles for Operation Northstar. Those who had direct communication with Bukkehave were Steven Woodward and Jed Spencer, neither of whom any longer works for the defendants. Mr Arnold accepted the advice received through them that fitting bullet resistant windscreens was at that time not feasible. He summarised the effect of the first reason why bullet resistant windscreens were not fitted that he had given in his statement as ‘the manufacturer Bukkehave said it could not be done.’ He was questioned about the second and third reasons advanced in paragraph 2.6 of his second statement. Whilst he accepted that the first reason given was determinative of the issue, he confirmed to Dr Braslavsky that there had been discussion at the time concerning the others. Mr Arnold had no recollection of seeing Mr Daniel’s document of 24th April at the time, but he said that its contents were not a surprise as he and Mr Daniel were discussing such matters all the time. He referred to the discussions that then followed in connection with vehicles, which is evidenced in the documentation relating to the extensions of the contract.

[48]Damian Perl made a statement dated 22nd May 2009 in circumstances already touched upon, namely in substitution for Charles Andrews, the former Deputy Chief Executive Officer of the defendants who is now working in Columbia and with whom Mr Perl has lost contact. Mr Perl is the founder, group Chairman and Chief Executive Officer of the defendants. His background was in the Royal Marines and in Special Forces, where he had served with Mr Davies. He founded the defendants in 1998. In his statement he explained that before entering the contract for Operation Northstar a thorough risk assessment was done. It was set out ‘in part’ in the PID. In cross-examination he was pressed on the question of poor documentation but could not explain whether there were other documents and, if so, where they now were. He indicated that everything that still existed that was considered relevant by the defendants’ solicitors had been disclosed. He frankly accepted that the documenting of activities was not a priority, and the difficulties to which reference has been made in paragraph [7] above. He made it clear that those on the ground had authority to get on with what was necessary. Mr Perl visited operation Northstar from time to time and travelled with convoys. He had done the same during Operation Filous and had himself come under attack by insurgents when in a vehicle with Mr Davies. He confirmed Mr Arnold’s evidence regarding the tactics for escorting convoys and readily accepted the fact that risk from both improvised explosive devices and small arms fire increased after the contract was signed. The relatively benign atmosphere in and around Mosul deteriorated as the spring of 2004 developed. His statement dealt with the question of bullet resistant glass in the context of additional protection to meet the increasing threat. He gave four reasons why it was ruled out. First ‘partly on the grounds of the practical problem of sourcing and fitting it to existing vehicles’; secondly he referred to weight; thirdly to the fact that a bullet resistant windscreen would provide only limited protection to a risk not often encountered; and fourthly that it would have curtailed the ability to return fire, i.e. through the windscreen.

[49]Mr Perl amplified his evidence in answer to questions from Mr Jay. He added as a reason telling against fitting bullet resistant glass the problem that it would have taken time to fit and made it difficult to maintain the escort duties to which the defendants were committed. In answer to Dr Braslavsky, Mr Perl confirmed that the installation of bullet resistant windscreens was considered specifically in response to the increased risk from small arms fire. He explained that he was personally involved in discussions about that issue, but he could not now say how often. He thought it would have involved direct conversations, telephone conversations, e mails and perhaps faxes. He said someone had searched for e mails and he had tried to find them himself, but without success. He recollected discussing the topic with both Charlie Andrews and Nick Arnold. His understanding was that such windscreens were not available in Iraq at the time. He was asked directly whether he would have authorised the funds if such screens had been available. He said he would.

[50]This last point was of importance. This was a commercial operation, albeit of a quasi military nature, for which the United States Government had agreed a price which made no provision for additional protection to the vehicles. The documents show that that the Americans in fact agreed additional funding to increase the remuneration of staff engaged by the defendants. Yet it would be no answer to a claim for damages to say that the provision of protection otherwise reasonably required and available would make the contract unprofitable. There is no suggestion that the Americans were approached, save in the context of the extension of the contract, to fund windscreens or other up-armouring. The evidence suggests that they did agree to fund enhanced protection during the extension period, but refused to pay for fully armoured vehicles from January 2005. The ad hoc additional protection (metal plates) added to the vehicles in the spring of 2004 was installed at the defendants’ initiative and expense.

[51]For the purposes of these proceedings, the critical questions that arise on the evidence of Mr Arnold and Mr Perl are whether the installation of bullet resistant windscreens was considered and, if it was, why it was rejected as a possibility. Dr Braslavsky, as he was bound to do, suggested that the discussions spoken to by these witnesses simply did not occur. There is, in my judgment, no room for mistake on the part of these witnesses regarding this issue. The question boils down to whether both lied in their witness statements and lied on oath in court. I recognise that there were a number of unsatisfactory aspects of their evidence. Mr Arnold’s failure to remember the losses sustained during Operation Filous and his frankly inadequate explanation for the error contained in his statement was one. There were times during Mr Perl’s evidence when I considered that he was trying to avoid Dr Braslavsky’s questions rather than answer them. Furthermore, there was a small number of aspects of their evidence (on the periphery, in my view) in which they contradicted each other. Nonetheless, I formed the clear view that each was telling me the truth and doing his best to recollect events now more than five years old. I am satisfied that discussion concerning the installation of bullet resistant glass did take place between March and June 2004.

[52]Dr Braslavsky relied heavily on the absence of supporting documentation to evidence the sort of discussions Mr Arnold and Mr Perl spoke of. If this were a case where there was a seamless stream of documentation covering all aspects except this one, that point would be very telling. However, the available documentation in this case is patchy, to say the least, and so its absence in connection with this aspect is not, in my judgment, sinister.

[53]At the time of the events with which this case was concerned the defendants were a fast expanding organisation but very tightly controlled by Mr Perl and a small number of his senior colleagues. I accept that recording decision making and discussions leading to decision making was not a high priority at the time.

[54]One consequence of the evidence given by Mr Arnold and Mr Perl is that the defendants cannot be heard to say that they should not have fitted bullet resistant windscreens, if such were reasonably available. I do not doubt that as military men all those concerned would have considered and discussed issues surrounding those windscreens beyond their immediate availability. The essence, however, of the evidence of Mr Arnold and Mr Perl was that the investigations made by the defendants’ staff in Mosul of the organisation who would have supplied and fitted such windscreens was that they were not available. I am satisfied that was the message received by Mr Arnold and in turn by Mr Perl from their staff on the ground.

The Expert Evidence

[55]Before reviewing the material aspects of the expert evidence adduced in this case a summary of the breaches of duty relied upon be the claimant is called for. In his closing submissions Dr Braslavsky identified four material breaches of duty as being causative of Mr Davies’ death:(a) In the light of the developing threat the defendants should have acquired armoured vehicles and thus changed their tactics for escorting convoys, as they contemplated doing when they re-tendered for the contract in early 2005. Such vehicles were available, submits the claimant.

(b) Even if no armoured vehicles were available the defendants should have fitted bullet resistant windscreens to their vehicles by the time of the Mr Davies’ death.

(d) On the day of the attack Mr Daniel should have called the mission off as events developed in Mosul.

[56]It is important to keep in mind the breaches of duty upon which the claimant relies as being causative of Mr Davies’ death because the experts ranged over much wider territory in their reports.

[57]Mr Robson, the claimant’s expert, retired from the Royal Marines as a Warrant Officer 2 after 22 years’ service. He was a specialist weapons and tactics instructor. He was involved in bullet penetration testing on equipment and vehicles at the end of his service. He had considerable experience of countering improvised explosive devices in Northern Ireland and had personal experience of route reconnaissance and escort duties there. Since leaving the Marines, Mr Robson has acted as a management consultant and now works in an administrative capacity for the NHS. This was only the second occasion on which he had given oral evidence (the first being a few weeks earlier) but he had provided reports in about 10 cases and advised in more, always on behalf of claimants.

[58]Mr Robson’s inexperience as an expert witness told in a number of respects. For example, he did not set out the material with which he had been provided to produce his report of 8th September 2008. He gave his opinion on a number of matters which were outside his expertise. He was also inclined to act as an advocate for the claimant.

[59]Mr Hayes, the defendants’ expert, was a brigadier who retired from the Army after 37 years service. He had done three tours in Northern Ireland, one as a company commander and another as a commanding officer. He was Chief of Staff to the United Nations Protection Force in Bosnia Herzegovina in 1993. Mr Hayes had never given oral evidence before. He has been involved in a number of other cases, on those occasions advising the Ministry of Defence. He too was apt to argue the case on behalf of his client.

[60]Mr Robson was highly critical of the contract into which the defendants had entered, largely because there was a lack of supporting documentation. On the basis of Mr Daniel’s Over Brief and Issue Log of 24th April 2004 and a series of half a dozen e mails in the second half of June, Mr Robson concluded that ‘the organisation was operating beyond its capability both managerially and with personnel and equipment that was unfit for purpose. Senior management were not in proper control and it raises doubts about whether [the defendants] were fit to take on the task’. He then went on to make a number of specific criticisms. Unsurprisingly, the defendants answered those charges both through the statements of Mr Arnold and Mr Perl and also the evidence of Mr Hayes. Mr Robson also made general criticism of training and inadequate risk analysis based substantially on the absence of records. It is an entirely fair criticism of the defendants that the documentation provided concerning Operation Northstar is strikingly sparse. However, the generally critical conclusions reached by Mr Robson do not follow. Dr Braslavsky did not suggest that these criticisms could found liability independently of the four breaches of duty he identified. Yet it was said that the operation was in general a poorly managed and equipped one. I am unable to accept these general criticisms. Almost all of the staff engaged by the defendants were highly professional ex-servicemen. That was true of those on the ground as well as those holding managerial positions. They were operating in a dangerous environment. They operated along military lines. Whilst it is reasonable to question the reaction of the defendants to the evolving threat to enable conclusions to be reached on the four discrete allegations of causative negligence, in my judgment Mr Robson has been too quick to reach adverse general conclusions on the basis of insufficient information.

[61]Mr Robson noted in his report that the Toyota vehicles could have been modified by fitting armour and bullet resistant windscreens. He suggested that the best protection available would be by using a fully armoured vehicle and his conclusion was that the defendants should have used a Stryker armoured vehicle or similar.

[62]Mr Robson noted that the body armour worn by Mr Davies did not have a collar. A collar would provide protection (albeit not sufficient to stop a bullet fired from an AK-47 rifle). He concluded that a collar ‘would have given protection’ to Mr Davies and on the balance of probabilities ‘his injuries would have been less serious’.

[63]Mr Robson also reviewed the information available about the events on 24th June 2004 and concluded that Mr Daniel should have halted the operation as events unfolded.

[64]In the joint report of the experts dated 12th June 2009 Mr Robson maintained that the defendants could have obtained and used military armoured vehicles for Operation Northstar. That was a response to Mr Hayes report which had explained in some detail why he considered that none was available even if a decision in principle in favour of acquiring armoured vehicles had been taken. On the question of body armour, Mr Robson ‘considered that when seated body armour tends to be pushed up and had a collar been fitted to the body armour the area between the top of the collar and the helmet would have given better protection and the injuries suffered by the deceased would have been less.’ By contrast Mr Hayes noted that the evidence suggested that the bullet came from above Mr Davies and scuffed the rim of the helmet suggesting that a collar would have made no difference. Mr Robson also maintained his view that Mr Daniel should have called off the task, whilst Mr Hayes thought that Mr Davies was best placed to evaluate the immediate dangers.

[65]It is striking that Mr Robson’s report does not deal with the availability of armoured vehicles and the joint report merely contains an assertion that they would have been available. Similarly, there is nothing in Mr Robson’s written material detailing the availability of the body armour which he says should have been worn, nor of the availability of bullet resistant windscreens.

[66]In his oral evidence, Mr Robson accepted that he is not a ballistics expert nor qualified to give an opinion about the extent to which Mr Davies would have been injured if the bullet had gone through the collar he was suggesting should have been worn. He volunteered for the first time when cross examined that a collar might have deflected the bullet to some extent. He accepted that in the light of the prevailing conditions Mr Davies would have been on the alert. That was a point raised to question his suggestion in the joint report that body armour rides up when one is sitting down. In short, on the question of collars, Mr Robson accepted that he was providing a non-expert opinion that a collar might have made a difference.

[67]Mr Robson was tested about why he had not explored the practicalities of obtaining bullet resistant windscreens in either his report or in the joint report. He explained that at the time he wrote his original report he had done no research on that topic. He had since discovered that the weight of such a windscreen would be about 120 – 130 pounds, as opposed to an ordinary windscreen’s weight of about 45 pounds. He also said that bullet resistant windscreens were available in 2004. His implication was that they were available in Iraq although that was not clear. This he had discovered through internet research in late 2008, of which he had made no notes and in respect of which he had printed nothing off. He provided no detail beyond the bare assertion in cross-examination. Mr Jay asked Mr Robson about the availability of Stryker vehicles and for his comment on the proposition that no private company anywhere was using them. A Stryker is a very substantial armoured vehicle used by the American military. Mr Robson thought each Stryker cost $6 million (the defendants thought $3.3 million) and that the defendants should at least have asked for them. He was unable to say that they were available in 2004, but thought that something similar could have been obtained. He said that he had found researching that topic very difficult. In re-examination he suggested that armoured versions of the Humvee were available. The Humvee is a basic soft-skinned vehicle used by the American military. He also mentioned a South African vehicle called a Hilar. He final position was that, even though he had been unable to research the matter, ‘I am sure that they could have got something.’

[68]It became clear in the course of Mr Robson’s oral evidence that he was unfamiliar with the approach of the courts when considering criticism of professional judgments made in a specialist arena. When the contrast was explained between a criticism based on a personal difference of opinion and one founded on the proposition that the course followed was outside the range reasonably available to the professional concerned, Mr Robson readily accepted that his suggestion that Mr Daniel should have called the operation off fell into the former and not the latter category.

[69]Mr Hayes produced a report dated 7th August 2008. He wrote a supplementary report dated 11th November 2008, the content of which was subsumed within a further supplementary report of 22nd May 2009. He was taken to task by Dr Braslavsky for failing to consider Mr Daniels’s document of 24th April 2004 in his first report. By contract with Mr Robson, Mr Hayes listed all the documents he was sent when he received instructions to provide a report on the allegations originally pleaded. That document was not among them. He readily accepted, however, that at some stage before he was instructed to write a report he had been sent a bundle of documents in connection with the case and he thought that Mr Daniel’s document was amongst them. When he produced his report he had forgotten the contents of the earlier documents or that they were not the same as those sent when he was asked to write a report.

[70]His report is, in my judgment, a careful and properly researched body of evidence so that his material conclusions stand up to scrutiny. His overall conclusions were set out early in his report. “1.03 Summary of my Conclusions. This report will show that in my professional opinion:1.04.1 The situation on the ground at the time called for military style methods for the successful conduct of convoy escort tasks and that the necessary operating procedures were put in place based on sound military principles. Given the circumstances the underlying strategy, the tactics and the operating procedures developed by Global for Operation Northstar were professional and appropriate.

1.04.2 The IED threat in Iraq made even heavily armoured vehicles vulnerable to attack. The use of soft-skinned vehicles was commensurate with accepted military doctrine on the conduct of convoy escort. As such it was both reasonable and practical, and the evidence suggests there was no practical alternative in the circumstances.

1.04.3 Operation Northstar was conducted as a quasi military operation. Given the realities of military operations, or Operation Northstar, Global’s risk assessment was adequate. Measures taken to ensure that the operation was able to be conducted as safely as possible covered the passage of intelligence, facilitating rapid situation updates, suitable equipment, comprehensive SOPs, initial and refresher training.

1.04.4 Global equipped their operatives with helmets and vest style body armour that provided the same Level IV ballistic protection as the combat body armour on issue to US forces but did no include integral or additional neck protection. However, the fatal wound to Julian Davies was caused by a bullet that struck him just below his left ear in an exposed area lying between the helmet and any neck protection had it been worn.”

[71]He endorsed the views of Mr Arnold and Mr Perl that the nature of the escort duty at the core of Operation Northstar called for light and manoeuvrable vehicles, and the tactics in play. That is having highly visible mobile personnel capable of laying down rapid fire in the face of attack. He considered it reasonable to equip Operation Northstar with soft skinned vehicles. As I have indicated, the claimant did not in the end suggest otherwise. He did not think that the developing threat after the beginning of March and before the time of Mr Davies’ death was such that the decision later made in January 2005 (namely that if the Operation were to continue all personnel should be in armoured vehicles) should have been taken then. In any event, Mr Hayes explored the question of the availability of armoured vehicles in 2004. None of three well known producers would have been able to provide such vehicles off the shelf. On this point his conclusion was:

“Opinion. Clearly this is not comprehensive but the indications are that suitable armoured convoy escort vehicles with offensive capability were not available in early 2004. In my opinion the decision by Global to opt for light, quick and manoeuvrable vehicles was justified given the requirements of accepted doctrine for convoy escort group operating procedures. The removal of vehicles doors would have enhanced speed of dismounting in an emergency and more significantly improved observation and the ability to spot potential IED sites; it also enhanced the deterrent posture on which Global was placing emphasis for protection from opportunity attacks and gave all occupants (less the driver) the ability to return fire immediately in a contact. The ‘gun trucks’ employed were capable of quick reaction and laying down the heavy weight of fire from machine guns and 40mm grenade launchers that was necessary to suppress the enemy and extract the convoy from a contact.”

In his supplementary report he explained why, in his view, Mr Robson’s suggestion that Stryker vehicles should have been used was totally impracticable.

[72]Mr Hayes concluded that fitting bullet resistant windscreens would have been ‘a difficult and lengthy job’. He noted Mr Arnold’s concerns over the practicability of doing so. He referred to the advertising material for a rival product, VehicleGARD, which suggested that installation of ballistic rated glass was extremely difficult. Dr Braslavsky questioned him about this on the hypothesis that a rival was bound to talk up the difficulties of competing products. He also relied upon a series of e mails from Paul Hazell at Cranfield comparing the properties of VehicleGARD and another product known as Clearguard, a transparent polymer. There is no evidence that Clearguard was available in 2004, but it is an alternative to bullet resistant glass. Clearguard is fitted in conjunction with an ordinary windscreen in a similar way to a bullet resistant windscreen. Both options are much thicker than an ordinary windscreen and so, according to Dr Hazell, if either were to be fitted an armoured steel rebate would have to be welded to the chassis of the vehicle. Mr Hayes readily accepted that he was no expert in the fitting of bullet resistant windows. In the course of his service he had seen two distinct varieties fitted to otherwise ordinary vehicles. The first was of the sort that Dr Hazell had in mind, that is a substitute for the conventional windscreen. That is custom made to fit the vehicle concerned. The second was a flat sheet of bullet resistant glass mounted on brackets in front of the conventional windscreen. Mr Hayes was in fact not keen on this second sort in an environment where improvised explosive devices posed the greatest threat because he thought such a screen would create additional danger in the event of an explosion.

[73]On the issue of how difficult it would be to fit a bullet resistant windscreen if one were available Mr Hayes has trespassed into giving expert evidence which is outside his true area of expertise. Nonetheless, to an extent the point is an obvious one. The task in contemplation is a very different one from that confronted by ordinary motorists who find it necessary to replace a windscreen.

[74]My Hayes undertook detailed research into the availability of body armour with a collar and into the ballistic protection such collars provide. Mr Robson’s point had been that United States forces had body armour with collars. Such a collar would not stop a bullet of the sort that both experts believe killed Mr Davies. He also looked at a newer form of body armour known as Interceptor Body Armour, which he concluded was not available for purchase by civilian contractors. The United States military was a monopoly purchaser of such equipment. He concluded that collars with sufficient ballistic protection to stop an AK-47 bullet might have been available in the open market although he did not identify one. However, given the fact that the bullet scraped the underside of Mr Davies’ helmet and penetrated just behind the ear, Mr Hayes’ conclusion was that a collar would have made no difference because that is precisely the area that remains unprotected even with a collar.

Conclusions

[75]I am satisfied that it was reasonable to equip Operation Northstar with soft skinned vehicles and to use them with all doors removed, save the drivers’, to enable the heavily armed occupants to be seen by potential enemies and also to respond quickly to hostilities. The tactics devised for Operation Northstar were reasonable. I accept Mr Hayes’ evidence that the concept was the correct one. I am also satisfied that the deterioration in the security situation between when the contract was signed in February 2004 and Mr Davies’ death was not such as to call for the wholesale change of those tactics in favour of armoured vehicles. In any event, such a decision would have effectively required the defendants to withdraw from the contract. The response of the defendants to consider and implement incremental enhancement of protection was an appropriate one. Furthermore, I accept Mr Hayes’s evidence that armoured vehicles would not have been readily available in the spring of 2004 for immediate delivery. Mr Robson’s suggestion that Stryker vehicles should have been used was entirely impracticable, not least because none was available. It was troubling that Mr Robson could make such a suggestion without having investigated the practicalities. Mr Hayes dealt in detail in his report with the availability of other armoured vehicles. The absence of any detailed response suggests that Mr Robson was unable to find any basis for contradicting Mr Hayes. The attempt in re-examination to raise, for the first time, the possibility of other vehicles being available and then to assert, without any proper foundation, that something must have been available was unconvincing.

[76]The defendants called no evidence from anyone concerned on their behalf in the procurement of body armour. So there is no evidence before the court that speaks to whether the acquisition of collars was ever considered. There is no evidence whether collars that would provide sufficient ballistic protection to stop an AK-47 bullet were available to the defendants. Equally, they have called no evidence to suggest they were not. Mr Hayes has shown that those available to the United States military are not widely available but he does not go so far as to suggest that nothing was available although as I have indicated he did not identify any that gave the necessary protection. No reason has been advanced to suggest any intrinsic disadvantage in wearing collars. The defendants’ employees then responsible for the procurement of body armour no longer work for them. But there has been no reason given in evidence (by contrast with the position of Mr Daniel and Mr Andrews) why they are not available.

[77]Dr Braslavsky has referred me to the judgment of Scott Baker LJ in Brown v Corus (UK) Limited

[2004] EWCA Civ 337

at paragraph [34] where he concluded that once a claimant had shown that he had been exposed (in that case) to excessive levels of harmful vibration, it was for the defendant to show why the situation was allowed to continue. Dr Braslavsky submitted that the case is an example of the courts recognising that once a claimant has shown that he was exposed to risk which was capable of being reduced, there is at least an evidential burden on the defendant to show why the reduction was not achieved. He also relies upon the principle discussed in Wiesniewski (see paragraphs[5] and [6] above) to support the proposition that the complete silence from the defendants concerning their consideration of this topic should lead to the conclusion that the precaution of a collar to provide some ballistic protection in this case should have been taken. I accept those submissions on this aspect of the case, and therefore that the defendants were in breach of their duty in failing to provide Mr Davies with a collar for his body armour.

[78]The question then arises whether that failure was causative of his death. Two issues arise. The view of the experts is that such collars, for example as worn by US forces, would not have stopped a bullet fired by an AK 47 rifle. Whilst I accept that as a matter of basic physics, the momentum in a bullet necessarily reduces as a result of its passing through any structure, there was nothing in the material before me which provided an evidential basis for concluding that such a collar would have made a material difference to the outcome had a bullet passed through it. Whilst Mr. Hayes considered that a collar with increased protection might have been available that was speculative and, in this regard, not supported by Mr. Robson. Furthermore, if such were available it begs the question why the US Military were not using them. I am not persuaded that such a collar was available. But there is a more certain foundation for concluding that in this case, the wearing of a collar could have made no difference. The evidence from the contemporary documents and from Mr Daniel is that the bullet that killed Mr Davies grazed the lip of his helmet. It is clear that the bullet was travelling in a downward trajectory. It then penetrated Mr Davies’ neck behind his left ear. In my judgment the inevitable conclusion from these facts is the one drawn by Mr Hayes, namely that the wound was precisely in the area on the head and neck that lies between the bottom of the helmet and the top of any neck protection. Mr Robson’s suggestion that because he was sitting down, Mr Davies’ body armour would have ridden up, thus perhaps closing that gap, is highly speculative especially given his position turned to the right and fully alert to deal with hostilities. In those circumstances causation is not established.

[79]The suggestion that Mr Daniel was negligent in failing to instruct Mr Davies to abort his mission at some point before the attack did not survive Mr Robson’s cross examination. It may be that, given the same information, Mr Robson would have done so. In any event, I preferred the evidence of Mr Hayes that the stage had not been reached where the mission should have been called off.

[80]Both Mr Arnold and Mr Perl recognised the increased risk of attack by small arms fire after the contract was signed. The defendants’ consideration of the question of installing bullet resistant windscreens was a response to that risk. The question of their availability was, as I have found, explored by those on the ground in Northern Iraq. That question included consideration of whether screens could be found and also whether the equipment and skills necessary to install them were available in Northern Iraq. I am satisfied that had they been available (in that broad sense) they should have been installed. The essence of the evidence of both Mr Arnold and Mr Perl was that screens could not have been installed. That was the information coming from Bukkehave. There is no evidence to suggest that the subsidiary reasons given by Mr Arnold (concern about weight and the possibility that insurgents would adapt their methods of attack) were fully thought through or determinative of the issue. No doubt weight would have been an issue if the screens were available. However, such evidence as was adduced in the course of the trial suggested that the additional weight would have been about 90 pounds. The suggestion that insurgents would have adapted their modus operandi has a theoretical air about it. They would have to know that the windscreens were armoured either as a result of loose talk or observation or by having shot at a windscreen and realising that the bullet had failed to penetrate. This was an issue that would, no doubt, have been properly thought through if windscreens had been available. There would have been other issues too. One would have been the inability to fire defensively through the windscreen and another might have been Mr Hayes’ concern that some types of bullet resistant windscreen would increase risk in the event of an explosive attack. (As a matter of fact, the protection arranged when the contract was renewed did not include bullet resistant windscreens, but instead Mylar protective film, machine cut to fit the windows concerned and installed using special tools. As already noted the experts considered that this would not stop an AK-47 bullet. The extent to which it would absorb the energy of a bullet passing through it is not explored in the material contained in the papers.)

[81]Dr Braslavsky submits that the failure of the defendants to call Mr Daniel (with whom Mr Arnold had conversations) and the other staff who directly investigated the availability of windscreens is fatal to the defendants’ case. He submits that this is evidence they should have called and the failure to do so results in an adverse inference in the face of Mr Robson’s assertion that such windscreens were available. Whilst I have concluded that there is a good reason for Mr Daniel’s absence as a witness (see paragraph [4] above) there is nothing beyond the fact that Messrs Spencer and Woodward have left the defendants’ service to explain why they have not given evidence on this issue. It is not clear whether any attempt was made to find them. The fact that they have moved on provides some explanation, if not a wholly satisfactory one, for their absence.

[82]Yet the defendants have not remained silent in the face of the suggestion that bullet resistant windscreens should have been fitted before 24th June 2004. Both Mr Arnold and Mr Perl have given evidence that the issue was discussed. Both have said that the issue was explored by those on the ground in Northern Iraq with Bukkehave and the result of that exploration was passed on to them. There is independent documentary evidence that Bukkehave was indeed the organisation concerned with the maintenance of the vehicles used in Operation Northstar. There is also documentary evidence that suggests that the availability of even routine spares was limited in Northern Iraq at the time.

[83]It is not appropriate to draw an adverse inference against the defendants on this issue. Rather I have to evaluate evidence from both sides which is unsatisfactory. A proper criticism of the evidence given by Mr Arnold and Mr Perl is that it is in effect hearsay evidence. Those who could give direct evidence have not been called and so the detail of their investigations is not before the court and has not been cross examined. It is worth repeating that Mr Arnold’s evidence was that Bukkehave were suggesting it could not be done. So had Mr Spencer or Mr Woodward been called they would have been relaying information gleaned from people within that organisation. I have earlier concluded that I accept both Mr Arnold and Mr Perl told the truth about this issue. As with the question of collars, there is an evidential burden on the defendants to explain why bullet resistant windscreens were not installed. Here evidence has been adduced. The court’s task is to evaluate the competing evidence to determine whether screens probably were or were not available and capable of being fitted at the time. On the one hand, the defendants caused inquiries to be made of the organisation responsible for maintaining the vehicle. The message that came back was that it could not be done. Against that is the evidence of Mr Robson that after writing his report he explored through Google the practicalities of installing bullet resistant glass to a Toyota Landcruiser. Through this mechanism he discovered the thickness of such screens and their weight. It as also through a Google search made towards the end of 2008 that Mr Robson was able to assert such screens were available at in 2004.

[84]In many respects Mr Robson’s evidence is extraordinary. The issue of the availability of bullet resistant windscreens in Iraq in the Spring of 2004, and the availability of people to fit them in Northern Iraq was of obvious importance in the case. In was a central feature of Mr Arnold’s written evidence of 13th June 2008. It is not covered in Mr Robson’s report, nor was it dealt with by him in the joint report of the experts. No supplementary report was ever provided on this issue. The evidence did not emerge in Mr Robson’s short evidence in chief rather it was produced during cross examination by Mr Jay. Anyone can do a Google search. This evidence was not expert evidence at all. It might have been given by anyone. Mr Robson printed nothing from the internet that he found through his Google search, nor does it appear that he made any notes. His evidence was completely lacking in specificity and its source is invisible. Whether his information amounted to anything more than that in 2004 bullet resistant windscreens were generally available for Toyota landcruisers was unclear. The defendants had not contended otherwise. Mr Robson did not give any details of from whom they were available. He gave no evidence that such windscreens were readily available in Iraq or, if not, how long it would take to get them. He did not explain whether they were available off the shelf or whether, as with armoured vehicles on Mr Hayes’ account, they were made to order. He did not deal with the practicalities of fitting such windscreens, readily accepting that he was not qualified to do so.

[85]Whilst it might be objected that the defendants’ evidence on windscreens is not of high quality it is, in my judgment, rather more concrete than that given by Mr Robson. There is no reason to suppose that those who dealt directly with Bukkehave failed to pass on the essence of the advice they were being given. I am satisfied that it was not reasonably practicable to fit a bullet resistant windscreen to the Toyota Landcruiser in which Mr Davies was travelling before the fatal attack. It follows that the claimant has not established any causative breach of duty on the part of the defendants.

Volenti non fit injuria

[86]My conclusion thatthere was no causative breach of duty on the part of the defendants renders academic their alternative argument that even if in breach, the claim should be defeated on the ground that Mr Davies should be taken to have agreed to the defendants breach of duty: volenti non fit injuria. Had I concluded that there was a causative breach of duty the application of this principle would not have defeated the claim. Mr Jay referred to a number of well-known authorities on the subject. He recognised that there have been very few examples where the concept had been applied in the employment context. Whilst it is clear that Mr Davies agreed to undertake a task that carried with it significant risk, it is quite impossible for the defendants successfully to argue that he consented to any breach of duty on their part.

Quantum

[87]Despite the best efforts of the parties, which continued through the trial, no success was achieved in agreeing the value of this claim subject to liability. Beyond Mrs Davies’ oral evidence no evidence was referred to during the trial directed towards quantum. Instead one of the files of documents dealt with the topic. Mr Jay invited me to resolve a number of factual issues, and quantify one head of damage. He suggested that the parties would be able to agree the resulting figures. Dr Braslavsky was less confident that agreement would be possible in those circumstances and invited me to quantify the claim fully, working on the basis of the schedule, counterschedule, revised schedule and bundle of documents.

[88]Since I have heard very little argument on quantum, nor was I taken to any of the documents in the relevant bundle, I propose to follow the course suggested by Mr Jay. If necessary I will receive further written argument, hear short oral argument at a later date and produce a supplementary judgment on quantum.

[89]The issues that fall for resolution at this stage are as follows:(i) The general damages for pain, suffering and loss of amenity to reflect that fact that Mr Davies survived for a little over an hour and a half following the shooting;

(ii) Whether Mr Davies would have continued working for the defendants or a similar organisation beyond the end of his contract, and if so for how long;

(iii) Whether more generally Mr Davies would have worked until 65 or 70;

(iv) How the claimant’s earning capacity, absent her husband’s death, should be calculated. That turns in particular on whether Mr and Mrs Davies would have had another child and the extent to which she would have worked part-time or full-time had Mr Davies lived;

(v) The appropriate figure for a dependency based upon services provided by Mr Davies. (i) General Damages: Mr Davies was shot at 09.50 and had died by 11.27. The evidence suggests that he was not rendered unconscious immediately because he was able to speak for a short while after being injured. Nonetheless, he was soon unconscious and he did not regain consciousness before he died. It is inevitable that he must have appreciated the seriousness of his injury and probable that he realised he was at risk of dying. Dr Braslavsky submits that the appropriate award for general damages in this case should be £5,000 whilst Mr Jay contends for £2,000. Having regard to cases referred to in the section in Kemp & Kemp: Quantum of Damages dealing with cases of this sort, my conclusion is that Mr Jay’s suggested figure of £2,000 adequately reflects the proper award in this case, which I therefore adopt.

[91](ii) Mr Davies’ future working pattern: The claimant suggests that Mr Davies would have continued working for these defendants or a similar organisation, thus earning about $500 a day working a total of 8 months a year, for a further five years from his death. It is plain from the evidence given by Mrs Davies that there was a tension between her desire that he should cease undertaking dangerous work of this nature, and his wish to carry on in a profession that he loved. Mrs Davies was deeply concerned about her husband’s continued exposure to danger. In early June 2004 she became particularly distressed about conditions in Iraq as a result of what she saw on CNN news broadcasts. Her distress was sufficient to cause Mr Davies to return to the United Kingdom on compassionate leave. Mrs Davies told me that she wanted to keep him at home. He was plainly sensitive to his wife’s concerns. For example, although he was injured in April 2004, he had not told her about the incident. Mrs Davies explained that they had not come to an arrangement that Mr Davies would not return to Iraq. Conversely, Mr. Davies told Mr Arnold that he intended to return home for good when the contract came to an end on 30th June.

[92]The difficulty in trying to establish a reasonable working pattern for Mr Davies is that events might conspire to cause a change of plan and his undoubted love of the job and desire to be involved in military activities would have been a constant pull. I have little doubt that when he told Mr Arnold that he intended to go back for good at the end of June he meant it. But realistically, if offered a month’s extension (which was the original given to the defendants) he would probably have taken it. And similarly, there would have been a strong possibility of his staying until January the following year when, once more, the contract was extended. Pulling the other way would have been Mrs Davies’ understandable desire for him to come home from a dangerous environment and his own natural wish to be with her and his growing son. The pull to be at home would have become all the greater if there were another child.

[93]It seems to me that the appropriate way to reflect these competing considerations is to evaluate, as best one can on the evidence, the chance that he would have remained in private security work during the five year period which realistically represented the remaining time available to him for this type of work. My conclusion is that there was a 50% chance that he would be in such work during the five years following his death, and the same chance of his returning to more routine work in the United Kingdom, coupled with TA activity.

[94](iii) Date of retirement: The Claimant’s schedule asserts that Mr Davies would have worked until he was 70, whilst the defendants contend that there is nothing in the evidence to suggest that he would have worked beyond a normal retirement age of 65. Once back in employment in the United Kingdom his position would be no different from other workers. Whilst there is general reason to suppose that everyone working in the United Kingdom may be under pressure to work longer (either full-time or part-time) there is no evidence before me which supports the contention that Mr Davies would have particular reason to work beyond 65. Even with the advent of a second child, working to 65 would cover the period of likely financial dependency. On the evidence available my conclusion is that for the purposes of calculating earnings related dependency, 65 is the appropriate age of retirement to determine the multiplier.

[95](iv) A second child and the Claimant’s earning capacity: Mrs Davies mentioned in her oral evidence, but not her written statements, that she and her husband had discussed having a second child and that they would have done so. Mr Jay expressed scepticism about that assertion but did not feel able to suggest to Mrs Davies that she was not telling the truth about the matter. I am satisfied that Mrs Davies was telling the truth about their desire to have a second child and that as a matter of probability another child would have been born within one and two years of her husband’s death. Mrs Davies is a teacher. At the time of the death she was working three or four days a week as a supply teacher. She had been offered a full time job at Bradford Grammar School, but as a result of the death she was unable to take up the appointment which otherwise she would have done. Quite apart from her salary, teachers at the school could take advantage of generous discounts on fees. That benefit was available for the preparatory part of the school as well as the senior school. It was the intention to take advantage of that benefit for Matthew’s education. Mrs Davies told me that on the birth of her second child she would have resigned her position until he or she was ready to go to school and then sought part time work, although in answer to Mr Jay she recognised that if part-time work were available at Bradford Grammar School after the second child arrived she would have done it (inferentially after maternity leave). This aspect of the case was not explored very fully in evidence. It was clear from the way in which Mrs Davies gave her evidence that firm plans had not been laid about how the family would operate with two children. Much of her evidence was necessarily speculative, an observation I make without intending criticism, because so much was uncertain, not least precisely what Mr Davies would be doing. Experience also dictates that even firm plans in this environment can change for all sorts of reasons.

[96]My conclusion on this issue is that the reasonable basis on which to calculate Mrs Davies’ earning capacity absent the death is as follows. First, she would have worked full time until shortly before the birth of her second child. Secondly, she would have taken advantage of her statutory maternity leave entitlement. Thirdly, she would have returned to part time work thereafter for three days a week. Fourthly, she would have returned to full-time employment when the second child started school.

[97](v) Dependency based on services: The services related dependency is set out in the claimant’s schedule but was not dealt with in her witness statements. In oral evidence Mrs Davies explained that her husband was a keen and accomplished handyman and gardener. When at home (that is to say during the four months in the United Kingdom) she estimated an average of 14 hours spent each week on DIY, gardening and the like together with 10.5 hours alone looking after Matthew, to allow her to go out. One can see that these figures represent a rough average of two hours a day on the first and an hour and a half a day on the second. I accept that as a reasonable estimate of the time spent whilst Mr Davies was at home for 4 months of the year. It would clearly not be appropriate to assume the same intensity of activity were Mr Davies working in the United Kingdom and also still being active in the TA. I accept that Mr Davies enjoyed DIY and was good at it. Taking account of a notional full-time job, time away from home on holiday and with the TA my conclusion is that an average of 6 hours a week over the year on DIY, gardening etc and 3 hours a week of exclusive child care would be a reasonable estimate.

[98]With these findings I trust that the parties can agree the value of this claim, subject to liability. However, in the light of my conclusions on liability and causation, the claim is dismissed.

Cited in 1 later judgment

Davies v Global Strategies Group ( Hong Kong) Ltd. & Anor 2010