Matthews v Ministry of Defence
| Jurisdiction | England & Wales |
| Judgment Date | 29 May 2002 |
| Neutral Citation | [2002] EWCA Civ 773 |
| Docket Number | Case No: B3/2002/0243 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 May 2002 |
[2002] EWCA Civ 773
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon. Mr Justice Keith
Lord Phillips, Master of the Rolls
Lord Justice Mummery and
Lady Justice Hale
Case No: B3/2002/0243
Mr David Pannick, QC Philip Sales and Kate Gallafent (instructed by Treasury Solicitor for the Appellant)
Mr Richard Gordon, QC and Robert Weir (instructed by Bond Pearce for the Respondent)
Mr Conor Gearty (instructed by Linder Myers appeared on behalf of PTSD Group Action Claimants as Intervenors)
Lord Phillips MR
This is the judgment of the Court
Introduction
This is an appeal from the judgment of Keith J given on 22 January 2002 [2002] EWHC 13 (QB). It raises the issue of whether s.10 of the Crown Proceedings Act 1947 ('the 1947 Act') is compatible with the European Convention on Human Rights. That is an issue of importance to any serviceman or ex-serviceman, such as Mr Matthews the claimant, who seeks to claim damages against the Ministry of Defence in respect of injuries resulting from events that occurred prior to 1987.
The claim
Mr Matthews served in the Royal Navy as an electrical mechanic between 1955 and 1968. During this time he served in a total of seven vessels. He alleges that during maintenance at sea and periods of refit in port he had to work in boiler rooms where boilers and pipes were lagged with asbestos, from which asbestos fibres and dust dissipated into the air. He claims that, by reason of his exposure to these fibres and dust, he has developed asbestos related injuries, namely pleural plaques and bilateral diffuse pleural fibrosis. These conditions do not carry with them significant disability, but they can lead to more serious, and indeed life-threatening, illnesses.
Mr Matthews alleges that his injury was caused by the negligence and breach of statutory duty of the Ministry of Defence and of fellow servicemen for whose negligence and breach of duty the Ministry is vicariously liable. Mr Matthews learned of the nature of his injury in September 1999 when Dr Halpin, a consultant physician, diagnosed pleural plaques.
The Ministry intends, if necessary, to defend Mr Matthews' claim on the merits. It has, however, taken the preliminary point that it is immune from liability by reason of the provisions of s.10 of the 1947 Act. Mr Matthews contends that it is both possible and necessary to give s.10 an interpretation which leaves his claim unscathed. Alternatively, if this is not possible, he contends that s.10 is incompatible with the Convention. Keith J. rejected the former contention, but upheld the latter. Before describing the issues raised in more detail, it will be helpful to refer to the statutory regime.
The statutory regime
Until the 1947 Act the Crown was neither directly nor vicariously liable in tort. If a servant of the Crown was held liable in negligence for an act or omission in the course of his employment, the Crown would normally indemnify that servant, but was not legally bound to do so. This state of affairs was pithily summarised by the statement 'the King can do no wrong' – Mulcahy v Minister of Defence [1996] QB 732 at p.740.
Away from the field of war there was, prior to 1947, no bar upon one serviceman suing another for negligence in respect of events occurring while on duty. While engaged in warfare, however, no duty of care arose between servicemen – see Mulcahy v Minister of Defence.
The 1947 Act brought an end to the Crown's immunity from liability in tort. Under the general heading 'Substantive Law' s.2 provided:
"2. Liability of the Crown in tort
(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:—
(a) in respect of torts committed by its servants or agents;
(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer;
and
(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property;
Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate."
S.10 of the 1947 Act made special provision in relation to members of 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 or 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.
(2) No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the armed forces of the Crown if—
(a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and
(b) [the Secretary of State] certifies as mentioned in the preceding subsection:
nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, in so far as the death or personal injury is due to anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied.
(3) ……a Secretary of State, if satisfied that it is the fact:—
(a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or
(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces;
may issue a certificate certifying that to be the fact; and any such certificate shall, for the purpose of this section, be conclusive as to the fact which it certifies."
S.10 of the 1947 Act was repealed by the Crown Proceedings (Armed Forces) Act 1987 (the 1987 Act), but only prospectively. Thus, s.1 provided:
"Subject to section 2 below, section 10 of the Crown Proceedings Act 1947 (exclusions from liability in tort in cases involving the armed forces) shall cease to have effect except in relation to anything suffered by a person in consequence of an act or omission committed before the date on which this Act is passed."
S.2 of the 1987 Act gave the Secretary of State power to revive the effect of s.10 of the 1947 Act, but only where necessary or expedient:
"(a) by reason of any imminent national danger or of any great emergency that has arisen; or
(b) for the purposes of any warlike operations in any part of the world outside the United Kingdom or of any other operations which are or are to be carried out in connection with the warlike activity of any persons in any such part of the world."
The certificate
At the time of the hearing before Keith J. the Secretary of State had not issued a certificate under s.10(1)(b) of the 1947 Act. On 11 March 2002 he did so, in the following terms:
"In so far as the personal injury of former Leading Ordnance Electrical Mechanic Alan Robert Matthews (service number D/M947091) is due to anything suffered by him as a result of exposure to asbestos during his service in the Royal Navy between 29 March 1955 to 15 March 1968, I hereby certify that his suffering that thing will be treated as attributable to service for the purposes of entitlement to an award under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 relating to the disablement or death of members of the service of which he was a member."
Mr Matthews has not yet applied for a pension under the 1983 Order. We understand that his medical condition would not be considered to constitute sufficient 'disablement' to entitle him to a pension.
The impact of the Convention
Article 2
Before the Judge, Mr Robert Weir for Mr Matthews, advanced an argument based on Article 2 of the Convention. The Judge recorded this argument at paragraph [47] of his judgment as follows:
"Art 2(1) of the Convention provides:
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for...
To continue reading
Request your trial
- Andrew Crosbie v Secretary of State for Defence
- Deep Vein Thrombosis and Air Travel Group Litigation; Re
-
R (Kehoe) v Secretary of State for Work and Pensions
...with it the consequence that article 6(1) was not in play. 9974. Mr. Jay also relied on the decision of the Court of Appeal in Matthews v. Ministry of Defence [2002] 1 WLR 2621 [2002] EWCA Civ 773, in which, at the time the instant case was being argued, the judgment of the House of Lords......
-
R (Wright and Others) v Secretary of State for Health and another
...on the state to confer any particular civil right. He refers to Home Secretary v MB [2006] 3 WLR 839 at paragraph 36 and Matthews v Ministry of Defence [2003] 1 AC 1163 at paragraph 3, which justify these propositions. Accordingly in considering procedural fairness under article 6(1), the ......
-
Fair comment, judges and politics in Hong Kong.
...and Wales, where he again found himself reversed by a Court of Appeal on a human rights issue in Matthews v Ministry of Defence [2002] 3 All ER 513. (46) Hong Kong Polytechnic University v Next Magazine Publishing Ltd (1997) 7 HKPLR (47) HKSAR v Ng Kung Siu [1999] 2 HKC 10 ('Flag Case'). (4......