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Transporting civilians in un-armoured vehicles in Basra in 2003 was not negligent

Hopps v (1) Mott MacDonald Ltd (2) MoD [2009] EWHC 1881 (QB), Christopher Clarke J.

Mark Turner QC and Toby Gee represented Mott MacDonald Ltd.

The Claimant suffered severe injury when the Land Rover in which he was travelling in Basra, Iraq, in October 2003 was attacked by an improvised explosive device (“IED”). The explosion killed an Iraqi engineer and injured the two British soldiers also travelling in the same vehicle. The Claimant alleged that he should have been transported in an armoured vehicle. In a reserved judgment Christopher Clarke J dismissed the Claimant’s personal injury claim, holding that it was not negligent for the Army or a civilian company to transport civilian employees in un-armoured Land Rovers in Basra in 2003. The Court also found that the emergency reconstruction of Iraq following the 2003 Iraq war was a “desirable activity” for the purpose of section 1 of the Compensation Act 2006, and took into account the possible deterrent effect a finding of liability might have on future such activities.

This is believed to be the first UK decision in a claim by a civilian for personal injury suffered in an attack while working in Iraq after the 2003 war. It is also believed to be the first case in which a judge has relied on s.1 of the Compensation Act 2006.

The Claimant Mr Hopps is a civilian engineer who was engaged by Mott MacDonald Ltd to work in Iraq in the emergency reconstruction programme for Southern Iraq after the 2003 Iraq war. His job involved assessing Iraqi power stations and advising as to the work needed to restore electrical power to Southern Iraq. The Army provided the security and transport arrangements for Mott MacDonald’s personnel, including the Claimant. The vehicles provided by the Army to transport the Claimant and his colleagues were ordinary un-armoured (“soft-skinned”) Land Rovers, which gave no protection from IEDs (or sniper fire).

The Claimant was provided with body armour and a helmet. The vehicle was accompanied by a second Land Rover containing armed soldiers. However, these precautions did not give effective protection against IED attack.

The Claimant sued both Mott MacDonald, alleging they were his employer, and the Army, in negligence, for failing to transport him in an armoured vehicle. Mott MacDonald agreed for the claim to be determined on the basis that Mott MacDonald was the Claimant’s employer.

The Court heard from various witnesses including Colonel Timothy Grimshaw, who was in charge of all engineering activities in Southern Iraq in late 2003. The Judge analysed the IED incidents set out in the Post-Operational Report disclosed by the Ministry of Defence, as explained in evidence by retired Brigadier Hayes, a witness called by the Ministry of Defence. He held that, taking into account the level of risk and the urgency and desirability of the emergency infrastructure projects, it was not negligent to transport the Claimant in an ordinary Land Rover.

Although the Claimant alleged a failure to carry out suitable risk assessments, the Judge found that Mott MacDonald and the Army were continually reassessing the security situation, and that, in any case, the absence of a recognisable risk assessment would only be significant if, had one been made, it should have led to a decision to provide armoured vehicles.

Ballistics experts were called as to the size of the IED and whether various types of armoured vehicle would have protected against it. In addition to failing on the issue of negligence, the Claimant failed to prove that an armoured vehicle would have prevented or reduced his injuries in the context of this particular explosion.

As well as finding that the reconstruction of essential services in Iraq was a “desirable activity” for the purpose of s.1 of the Compensation Act 2006, the Court found that s.1 applied to the Claimant’s claim despite the fact that the incident occurred nearly 3 years before that Act came into force. He said that s.1 is directed to the court considering liability, which was after the Act came into force.

Mark Turner QC and Toby Gee were instructed by Kennedys.

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