Davies v Global Strategies Group
| Jurisdiction | England & Wales |
| Judgment Date | 25 September 2009 |
| Neutral Citation | [2009] EWHC 2342 (QB) |
| Docket Number | Case No: HQ07X02122 |
| Court | Queen's Bench Division |
| Date | 25 September 2009 |
[2009] EWHC 2342 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon MR Justice Burnett
Case No: HQ07X02122
Dr. Nicholas Braslavsky QC and Stephen Maguire (instructed by Donns) for the Claimant
Robert Jay QC and Matthew Boyle (instructed by Clyde & Co) for the Defendants
Hearing dates: 20 th, 22 nd 23 rd and 24 th July 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON MR. JUSTICE BURNETT
The Hon Mr. Justice Burnett:
Introduction
Julian Davies died on the 24 th 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 40 th 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 22 nd 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.
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.
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 12 th 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.
Dr Braslavsky QC, who appeared for the claimant, submits that adverse inferences should be drawn against the defendants for failing to call Mr Daniel.
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.
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.”
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.
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...
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Susan Smith (on her own behalf and as administrator of the Estate of Philip Hewett, Deceased) (1st Appellant) Colin Redpath (on his own behalf and as Executor of the Will of Kirk James Redpath, Deceased) (2nd Appellant) Courtney Ellis (A Child) by her Litigation Friend Karla Ellis and Karla Ellis (3rd and 4th Appellants) v The Ministry of Defence
...law concepts into questions of liability in negligence would simply not arise. 50 Two recent examples can be found in Davies v Global Strategies Group (Hong Kong) Limited [2009] EWHC 2432 (a husband shot by insurgents when travelling in Iraq) and Hopps v Mott Macdonald Ltd and the Ministry ......