Bell v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NEILL,LORD JUSTICE BALCOMBE |
| Judgment Date | 27 June 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0627-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 1985 |
| Docket Number | 85/0350 |
[1985] EWCA Civ J0627-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. PIERS ASHWORTH, Q.C., sitting as a Deputy Judge of the Queen's Bench Division)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Neill
and
Lord Justice Balcombe
85/0350
1981 B. No. 6274
MR. ROBIN STEWART, Q.C. and MR. BRIAN SOMMERVILLE (instructed by Messrs. Park Nelson & Doyle Devonshire, London agents for Messrs. Close Thornton & Co. of Darlington) appeared on behalf of the Appellant.
MR. GUY SANKEY (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
In November 1978 Trooper Wayne Bell was serving with the 15/19 King's Royal Hussars stationed in Germany. He was aged 20. He fell whilst engaged in some horseplay in barracks and received a blow to the head. Such things happen and we know nothing of the circumstances. What was not to be anticipated was that Trooper Bell would die of his injuries. Why the incident should have had so calamitous an outcome is something which his parents would like to see fully investigated in a court of law. In particular they want to know why he did not receive different and more prompt medical treatment.
With this in mind, Trooper Bell's father, Mr. William Bell, began an action against the Secretary of State for Defence. He sued as the administrator of his son's estate and claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934. In other words, this was a claim by the son which devolved upon his estate following his death. Whether Mr. William Bell would or would not benefit if his son's estate were increased by such damages is not directly in point and may well be regarded by Mr. Bell as immaterial.
The accident occurred between 1810 hours and 1840 hours on the 11th November, 1978, but Trooper Bell was not seen by an army doctor until 1930 hours. His head wound was then cleaned and his temperature was taken, but no X-ray examination was undertaken. Apparently the medical notes record that Trooper Bell was conscious, but suffering from the effects of drink, and that he had a head injury. At 2000 hours he was returned to the guardroom and instructions were given that he was to be roused every 15 minutes. This was done. However by 2200 hours the guard commander and the duty officer had become so concerned at Trooper Bell's condition that he was returned to the medical reception centre. It is said that there was then a delay of over an hour before the doctor arrived. When the doctor saw Trooper Bell he sent him to a German civilian hospital accompanied by a nursing sister. The sister is said not to have known much, if anything, about Trooper Bell's injury or recent symptoms.
Basing himself upon these allegations of fact, Mr. Bell makes a number of complaints of negligence. They are of delay before the initial examination by the army doctor, failure to undertake an X-ray examination, failure to take sufficient care in the context of a head injury and sending Trooper Bell back to the guardroom upon a diagnosis of "alcoholic intoxication". In addition, Mr. Bell makes various allegations against the army nursing sisters. He also alleges that the army doctor caused Trooper Bell to be admitted to the German civilian hospital with an inaccurate and misleading case history and without any reference to the head injury. Finally, and crucially, he alleges that, but for that negligence, specialist neurosurgeons could have saved Trooper Bell's life.
The Secretary of State by his defence denies that the army medical staff were negligent and that any such negligence caused or contributed to the death of Trooper Bell. However, he has also raised a special defence under section 10 of the Crown Proceedings Act 1947. It is with that defence that this appeal is concerned, because a preliminary issue was directed on:
"Whether or not, on the facts pleaded in the statement of claim, the provisions of Section 10 of the Crown Proceedings Act 1947 give immunity for the defendant against being vicariously liable for the negligence of army medical staff."
"Army medical staff" in this context means those medical personnel (including doctors and orderlies) who are members of the armed forces, but excludes civilian personnel. Thus "army medical staff" includes the army doctor involved in this incident, but not the nursing sisters who, although apparently army personnel, are technically civilians.
In fairness to all concerned, it must be emphasised that whilst for the purposes of this preliminary issue Mr. Bell's complaints of negligence must be assumed to be well founded, they have not yet been investigated in the action.
Section 10(1) provides as follows:
"10. Provisions relating to the armed forces (1) Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the Crown if—
(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the armed forces of the Crown or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the armed forces of the Crown; and
(b) [the Secretary of State] certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under the Royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member:
Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces."
On the 29th December, 1981 the Secretary of State certified that in so far as Trooper Bell's death was due to anything suffered as a result of a fall (the fall in question) or to anything done or omitted to be done by a member of the armed forces of the Crown while on duty as such, "his suffering that thing will be treated as attributable to service for the purpose of entitlement to award under the Order-in-Council relating to the disablement or death of a member of the force of which he was a member."
Mr. Piers Ashworth, Q.C., sitting as a deputy High Court judge, answered the preliminary issue adversely to Mr. Bell by holding that, on the facts pleaded in the statement of claim, the provisions of section 10 of the 1947 Act did give the Secretary of State immunity against vicarious liability for any negligence on the part of the army medical staff concerned. Mr. Bell appeals and the appeal raises two issues. They are:
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(i) Can the Secretary of State's certificate give immunity from liability in tort when there neither is, nor has ever been, any entitlement to an award under the Order in Council?
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(ii) If so, on the facts does this immunity extend to a claim based upon the alleged failure by the army doctor to give appropriate information to the German civilian hospital?
Immunity where no entitlement to an award
Mr. Robin Stewart, Q.C., appearing for Mr. Bell, submits that prior to the 1947 Act an action in tort would have lain against the army medical staff and, in practice, the Secretary of State would have indemnified that staff and so, in effect, accepted vicarious liability for any negligence on their part. Any statutory provision which purports to exempt the army medical staff or the Secretary of State from liability in tort should be very strictly construed. The exception provided by section 10 should, therefore, be limited to, and the certificate should only be held to be valid in, cases where under the Order in Council there is an entitlement to an award and an award is made.
Under the terms of the Order in Council, an injured serviceman may indeed receive a pension, but one who has died is without any entitlement. A certificate granted in circumstances in which the serviceman has died should, therefore, be regarded as a nullity.
Opinions may well differ on what should or should not be the liability of an allegedly tortious serviceman (the army doctor) and the Secretary of State in these circumstances. That is not something upon which we are called to express a view. Our task is to ascertain what are the intentions of Parliament as expressed in section 10 of the 1947 Act.
Provided that the other conditions of section 10 are satisfied, the exemption from liability in tort applies if the Secretary of State certifies that "his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under" the Order in Council. The scheme of the Order in Council is that all awards are subject to a basic condition, namely that the disablement or death is due to service (article 3). Unless this condition is satisfied, there can be no award. If it is satisfied, the claimant will not obtain an award unless, in addition, he can bring himself within one of the categories specified in other articles. Thus, for example, the claims of parents are dealt with in article 40.
The Secretary of State's certificate is not required to state, and did not state, that Trooper Bell or his...
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