Davies v Global Strategies Group
| Jurisdiction | England & Wales |
| Judge | Sir Anthony May,Lord Justice Longmore,Lord Justice Stanley Burnton |
| Judgment Date | 13 May 2010 |
| Neutral Citation | [2010] EWCA Civ 648 |
| Docket Number | Case No: B3/2009/2278 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 May 2010 |
[2010] EWCA Civ 648
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Mr Justice Burnett
QUEEN'S BENCH DIVISION
Before: The President of the Queen's Bench Division
(Sir Anthony May)
Lord Justice Longmore
and
Lord Justice Stanley Burnton
Case No: B3/2009/2278
Dr Nichols Braslavsky QC and Mr Stephen Maguire (instructed by Donns Solicitors Llp) appeared on behalf of the Appellant.
Mr Robert Jay QC Mr Matthew Boyle (instructed by Clyde and Co Llp) appeared on behalf of the Respondent.
Sir Anthony May:
Julian Davies, a former SAS serviceman, tragically died on 24 June 2004 in or near Mosel in Iraq when he was hit in the neck area by a sniper's bullet when he was on convoy protection patrol. He was employed in that role by one or other of the defendants, who themselves had a contract for those services with the US military authorities. His widow claims in these proceedings on her own behalf and on behalf of their son Matthew that her husband's death was caused by the respondent's negligence, relevantly for present purposes, in not fitting bullet-proof glass in the windscreen of the Toyota vehicle in which Mr Davies was travelling when his half platoon was ambushed. The bullet which killed him passed through the windscreen.
Burnett J dismissed the claim in a judgment given on 25 September 2009. The judgment may be found at [2009] EWHC 2342 QB and it may be referred to for greater detail than this judgment need contain. Mrs Davies appeals with permission to do so against the judge's decision.
The facts may be briefly summarised as follows. Following the end of the second gulf war on 1 May 2003 a Coalition Provisional Authority was established to exercise power in Iraq pending the election of a democratic government. Power was eventually handed over in June 2004. In the intervening period the Provisional Authority embarked on a programme of rebuilding infrastructure and normalising civil life; the United States and British forces played a large role in this programme. In particular the United States entered into contracts with civilian contractors to provide services to the Provisional Authority. The respondents provided armed security personnel in Iraq to protect Provisional Authority places and individuals. They entered into two contracts with the United States government.
The first of these was called Operation Filous, which ran until February 2004. This operation did not use armoured vehicles but a range of Toyota vehicles with ordinary bodywork and windows. They were referred to as “soft-skinned vehicles”. Many of these vehicles were then transferred to the operation during the course of which Mr Davies died: Operation Northstar.
He started working for the respondents in Iraq in August 2003 on the Operation Filous, which was for distributing currency from Baghdad airport to various banks. He was very highly qualified and experienced to undertake private security work of this kind. He had formally served in the parachute regiment, the Royal Marines and the territorial army's SAS division. This subsequent contract for Operation Northstar was signed on 8 March 2004 and secured his services until 1 July 2004. He was paid US $ 500 a day. He was a platoon commander in charge of a group of vehicles when on patrol.
The key feature of Operation Northstar was the provision of convoy escort services for commercial vehicles, for example escorting fleets of fuel lorries from the Turkish border south past Mosel and from there to other parts of Iraq. The tactics determined upon by the respondent entailed their escort vehicles be highly manoeuvrable to ensure that they could move to any point in the convoy at speeds. Convoys could stretch a great distance of up to 2 kilometres or more. In addition, in the event of attack the aim was to ensure that the respondent's staff could respond by laying down substantial fire from the vehicles and also get out of the vehicles at speed. For this reason all the doors of the Toyota except the driver's doors were removed and the staff carried various weapons including machine guns and automatic rifles.
In the period following the beginning of Operation Northstar there was a deterioration in the security situation in northern Iraq; in particular there was an increased number of attacks on United States forces, civilian contractors and Iraqi civilians which manifested themselves in an increasing number of attacks using small arms and improvised explosive devices. Daily situation reports on Operation Northstar showed a pattern of attacks and risks in and around Mosel in April and May 2004. Another report described an improvised explosive device attack on a fuel convoy on 6 June 2004. Before this there had been no attacks on fuel convoys nor any to the north of Mosel. Owing to the increased danger on the ground the respondents had, before the attack which resulted in Mr Davies' death, installed ad hoc armoured protection in their vehicles. Steel plates were inserted into the drivers' doors and also behind the seat and to the rear of the vehicles.
On 24 June 2004 Mr Davies was in charge of a half platoon of escort vehicles consisting of three Toyota vehicles. The platoon was to meet a convoy of fuel trucks coming from the Turkish border. He was the front passenger in the Landcruiser leading the group which was driven by a Mr Tavita Kunacewa. All personnel wore body armour and no complaint is made about the level of protection provided by that armour, so far as it went. However, one of the issues in the case related to whether the body armour should have had, as it did not, a protective collar.
The vehicles left the respondent's headquarters at Qayarrah West, an American airbase, at 8.46 in the morning. Mr Alex St Matthew Daniels, the project manager of Operation Northstar, remained in communication with Mr Davies and the other staff of the respondents operating in the region following reports of explosions and small arms fire in central Mosel and sightings of vehicles with machine guns. Mr Daniels advised Mr Davies to proceed with extreme caution. Mr Davies rerouted the vehicles, but at 9.50am his second in command, Mr John Cindric, radioed to say that the group had been hit by small arms fire and that the vehicle in which Mr Davies was travelling had driven on.
At 10.10 the Landcruiser in which Mr Davies was travelling arrived at Camp Freedom, another American base. Mr Davies was unconscious and it was clear he had sustained a gunshot to his head. The bullet had passed through the vehicle's windscreen towards the top at the driver's side and it struck Mr Davies just below and behind his left ear. Attempts were made to resuscitate him; these were without success and it was confirmed that he had died at 11.27. As a response to this incident Mr Daniels decided that all soft-skinned vehicles should be confined to camp for the time being.
The appellant contended that by June 2004 the respondents 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. As a result of the respondent's failure to do so, 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.
The appellant advanced before the judge four allegations of negligence, all of which the judge rejected. Since the appellant does not seek to resurrect three of these on this appeal I mention them only briefly.
Firstly, it was said that in the light of the developing threat the respondents should have required armoured vehicles and changed their tactics for escorting convoys. The judge held that it was reasonable to equip Operation Northstar with soft-skinned vehicles and that the tactics devised for it were reasonable. He was satisfied that the deterioration in the security situation in northern Iraq was not such as to call the wholesale change in such tactics in favour of armoured vehicles. The response of the respondents to consider implementing incremental enhancement of protection was an appropriate one; further, the judge accepted Mr Hayes' evidence that armoured vehicles would not have been readily available in the spring of 2004 for immediate delivery.
Secondly, it was said that the respondent should have provided body armour with a collar. The respondents provided no evidence to the court as to whether or not the acquisition of collars was ever considered by them. The judge found the respondents to be in breach of their duty in failing to provide Mr Davies with a collar for his body armour. However, this breach was held not to be causative of his death; the collar would not have made any difference since the bullet that killed him grazed the lip of his helmet and would have passed above the protective top of the collar.
Thirdly, it was said that on the day of the attack Mr Daniel should have called the mission off as events developed in Mosel. This was not pressed at the trial; the judge preferred the evidence of Mr Hayes over that of Mr Robson and held that the stage had not been reached when the mission should have been called off.
The allegation which failed before the judge which is subject to this appeal was that even if no armoured vehicles were available the respondent should have fitted...
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