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Failing to provide a private security contractor in Iraq with an armoured vehicle or bullet resistant windscreen was not negligent

Davies v (1) Global Strategies Group (Hong Kong) Ltd; (2) Global Strategies Group (UK) Limited [2009] EWHC 2342 (QB), Burnett J

Matthew Boyle was junior Counsel representing the successful Defendants, Global Strategies Group.

The Claimant’s husband was shot and killed by insurgents near Mosul, Northern Iraq, in June 2004 whilst working as a platoon commander for the Defendant security companies. At the time he was killed the Deceased was on a mission to protect a United States convoy and travelling in a modified ‘soft skinned’ (ie un-armoured) vehicle. His widow brought a claim in negligence, alleging that – against the background of the rising insurgent threat in or around Mosul during 2004 – the Defendants ought to have:

  • (1) Provided fully armoured vehicles to those undertaking convoy missions; and/or
  • (2) Alternatively, installed a bullet resistant windscreen on their soft skinned vehicles; and/or
  • (3) Ensured that the Deceased’s body armour included a neck collar.

The Court assumed (but did not find) that the Deceased had been an employee of the Defendants. However it rejected the Claimant’s first two contentions, accepting the Defendants’ factual and expert evidence that fully armoured vehicles were not available at the relevant time and that it would have been impracticable to install bullet resistant windscreens. The Court went onto find that, even if the Defendants had provided a neck collar to the Deceased, it would not have prevented his death. In doing so the Court confirmed the approach of the House of Lords in General Cleaning Contractors Ltd v Christmas [1953] 180 that, when faced with an activity which necessarily involves danger, an employer did not have an absolute obligation to devise a system of work that is free from all risk.

The Court also gave consideration to the circumstances in which an adverse inference can be drawn against a party for failing to call a material witness or to disclose relevant documents, applying the guidance of the Court of Appeal in the earlier case of Wisniewski v Central Manchester Health Authority [1998] PIQR 324. It also gave brief consideration to the defence of volenti non fit injuria.

Matthew Boyle (led by Robert Jay QC) was instructed by Clyde & Co.

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