To lose one’s child is a difficult thing for a parent to come to terms with. To realise that the child’s death may be due to the negligence of someone against whom you have no legal recourse can be worse than rubbing salt to the wound.
I can’t even begin to imagine how Private Dominique Sarron Lee’s family must feel about the striking out of their claim against the SAF. When I read his mother’s Facebook post, I struggled to hold back my tears. I hope the family will find some way to heal their pain.
However, the Court’s decision is an accurate application of the law. (That is not to say that the law is right.) The State enjoys immunity from claims in tort where injury or death has occurred in the armed forces. I believe that it is time for us to examine whether the law is appropriate and whether we should remove this immunity enjoyed by the state.
Singapore’s Government Proceedings Act traces its origins to an Ordinance from the Colonial era (Government Proceedings Ordinance 1956). Like many of our laws that can be traced back to the colonial era, it is arguable that the specific logic that existed at that time may no longer be applicable today. The Government Proceedings Ordinance in 1957 was modeled on the Crown Proceedings Act 1947 of the UK Parliament.
In English law, there was a time when the Crown enjoyed protection from legal actions. The 1947 Act was designed to remove the immunity of the Crown. However, the then Labour government decided to retain the immunity where the Armed Forces were concerned. This was immediately after World War II. The recent experience of the UK at that time was of protracted warfare and the mindset in Parliament was quite different. Deference was given to the need to put soldiers through realistic, life-threatening training and allowance was made for the fact that inevitable injuries may occur. Back then, the UK Parliament agreed that there should be immunity for servicemen and the Crown even when there was negligence.
By the 1980s, there was public debate in the UK about whether the immunity in the Crown Proceedings Act 1947 had outlasted its utility and whether, in fact, injured servicemen that were victims of negligence were in a worse off position in comparison to their civilian counterparts. Several service related deaths and injuries prompted Parliamentary intervention. In 1987, the Crown Proceedings (Armed Forces) Act was passed removing the immunity. It was a Private Member’s Bill that was supported by the Conservative government of Margaret Thatcher and numerous members of the opposition Labour. The Act repealed s.10 of the previous statute. However, it provided for revival of s.10 via a Ministerial Order in the event of any imminent danger, great emergency or warlike operations of UK forces in any part of the world.
The intent was clear. During peacetime, where injury or death occurred during training, the serviceman or his family should be able to make the usual claim for negligence. Where the Armed Forces are engaged in combat duties or hostilities, the Minister is in a position to issue an Order to revive the immunity for the limited purpose of the military operations.
We ought to ask ourselves whether the rationale for the immunity of the state for service related deaths (during training and during peacetime) in the Armed Forces has outlasted its utility.
It should be noted that the SAF does offer compensations for such injuries and deaths. The State’s immunity is in relation to claims for negligence in a Court of law. The crucial question to be asked is whether the compensation sums awarded by SAF have kept pace with the damages that the Courts would ordinarily award in negligence suits. If they have not, we should review the law. Even if the compensation amounts given by SAF match damages awarded by the Courts, there is no substitute for access to a fair and impartial judicial system that is independent of the Executive. The Courts will always be in a better position to assess the existence and extent of negligence as well as to quantify the amount of damages to be awarded.
Our lawmakers sometimes busy themselves in addressing non-existent threats even to the extent of making Constitutional amendments. I hope that they can pay some attention to the problem of our sons dying and getting injured during National Service.
The following is from the Parliamentary debate of the UK’s Crown Proceedings (Armed Forces) Bill. This extract is from the speech of the backbench MP (grandson of Sir Winston Churchill) that moved the Bill. It was not presented as a Government Bill although the Cabinet supported the Bill.
CROWN PROCEEDINGS (ARMED FORCES) BILL – second reading – 13 Feb 1987
Mr Churchill, MP for Davyhulme:
Of all the duties that Parliament has taken upon itself, few are more ancient in origin or more fundamental to the purpose of our being in this place than the redress of grievances. Predating by far the power to make or break Governments, redressing the grievances of the ordinary citizen against the overmighty power of the Crown or the Government has been seen by parliamentarians down the centuries to he one of the highest duties of our two Houses of Parliament. I am glad to say that to this day that remains the case, although I regret that it should still be necessary.
The Bill seeks to rectify an injustice that has become increasingly more glaring—the discrimination between members of the armed forces and the ordinary citizen in seeking damages in cases of injury or death arising from the negligence of others. An ordinary citizen or his dependants may sue through the courts and obtain substantial damages, but members of the armed forces are denied that right. This discrimination has given rise to much bitterness and a sense of injustice among those who have served their country loyally and suffered for it, not once, but twice—first, in suffering injury or death in the course of their duty and, secondly, in being denied the proper level of compensation that would he their due if they were in any other walk of life. I count myself fortunate that the opportunity has fallen to me to rectify this injustice.
The concept of Crown immunity dates back to at least the 13th century and was based on the maxim that “the King can do no wrong.” In practice, that meant that the King could not be sued in his own courts. That remained the situation until 1947, when the first post-war Labour Government brought in the Crown Proceedings Act as a reforming measure aimed at removing much of the Crown privilege and granting the citizen, for the first time, the right to sue the Crown. However, the Government of the day were adamant that that right could not be extended to members of the armed forces by reason of the special and hazardous nature of their employment. Indeed, they went further. They removed the right, which had previously existed, of one member of the armed forces to sue another in cases of injury or death caused by negligence. It has to be said that this was a right that was rarely used in practice and was discouraged by the fact that the Crown was not legally obligated to stand behind any officer or soldier who might have been sued.
The then Attorney-General, Sir Hartley Shawcross—now the noble Lord, Lord Shawcross — on Second Reading of the Crown Proceedings Bill in July 1947, stated:
It is necessary in the course of Service training. in order to secure the efficiency of the Forces, to exercise them in the use of live ammunition, in flying in close formation and, in the Navy, in battle conditions with, perhaps, destroyers dashing about with lights out, and so on. These operations are highly dangerous and, if done by private citizens, would, no doubt, be extremely blameworthy”.
Parliament at the time accepted that it would not be appropriate for service personnel, even in peacetime, when it is often essential to push training to the limits of realism, with risks comparable to those encountered in actual operations, to be able to bring civil actions for negligence against one another. It was considered in the atmosphere of 40 years ago that to do so would run against the fundamental requirement of mutual trust, confidence and loyalty which is essential to an effective fighting force.
However, 40 years have since past; years in which, apart from Korea and brush-fire wars in various part of the globe, we have been at peace. The general climate of public opinion in civil and human rights has changed considerably since that legislation was enacted. Throughout society there is now much less willingness to accept that the special circumstances of life in the armed forces justify depriving the service man or service woman of the rights enjoyed by his or her fellow citizens, particularly in peacetime, and particularly in circumstances that are similar to those experienced by other disciplined forces that are engaged on hazardous duties, such as the police and the fire brigades. This change of opinion is undeniably in the right direction and we in Parliament must respond to it.
Section 10 is outdated and places at a distinct disadvantage a section of society in peacetime in a way that does not apply to those who do not have the honour to wear the service man’s uniform. Because of section 10, a service man who is injured in peacetime as a result of negligence on the part of one of his colleagues is denied the right to pursue a claim for damages in court. Instead, he is paid, regardless of faults, his pension and disability benefit if he is forced to quit the armed forces. These payments are normally tax free and are operated as necessary to take account of inflation. However, let us not forget that the existing legislation was enacted many years ago and in rather different circumstances. What may have been valid in the deliberations of 1947 is certainly not so today.
On Second Reading of the Crown Proceedings Act in 1947 the then Attorney-General acknowledged that if a service man who was injured on duty remained in the service he would get proper medical care and treatment.
On the other hand, if he was invalided out of the service or died he or his dependants would have pension rights. The Attorney-General went on to say:
the capital value of the pension rights, in terms of money is, in general—I am not saying it is so in every case, because one cannot be certain in every case what damages will be awarded—as valuable as the probable damages which may be recoverable in an action at law if such an action lay.”
It is evident that it was not the intention of the Labour Government or of Parliament to place the service man at a disadvantage compared with his civilian counterpart, but rather to provide what might today be called a “no fault” system of compensation that effectively cut out the lawyers and the courts, and with them much expense and delay. Regrettably, that is not how things have worked out…………
…………The situation has changed dramatically over the past 40 years, above all with the fact that the awards made by the courts to civilians who are the victims of negligence have far outstripped, sometimes by a factor of 10 or more, compensation available to the service man. By way of example I cite a case drawn to my attention by my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop), who cannot be here today as he has to attend a constituency appointment in the west country. He writes:
For many years I fought—and without any eventual success — to receive adequate compensation for a young man who had a brilliant career as an amateur boxer. Unfortunately, through gross incompetence, he was terribly burned in an entirely avoidable accident while under instruction inside the fire tunnel at RNAS Culdrose. Whereas he had every right to expect a successful career as a boxer after his engagement in the Royal Navy, the injuries which he received had the consequence that he was refused a licence by the British Boxing Board of Control. Instead of a well-paid career, he has instead part-time work as a labourer.
Had that young man been a civilian, the courts would undoubtedly have taken full account of his blighted career as a boxer and the remuneration that would have gone with that career. As it was, because he wore the Queen’s uniform and is judged still to be fit to do a part-time labouring job, he qualifies for only a 20 per cent. pension from the Ministry of Defence. This is the sort of injustice that my Bill seeks to correct.
Nor am I the first to attempt this reform. As long as 15 years ago the injustice of this Act had become apparent, and in 1975 the former Member for Upminster, Mr. John Loveridge, fought unsuccessfully to bring in a similar Bill. Since then more and more cases of injustice have come to light. I propose to cite only one, though I feel that to do so may be invidious because there are so many cases that deserve mention and to which no doubt other hon. Members will allude.
It is a recent case, which involved 19-year-old Vincent Anderson, a sapper in the Royal Engineers. He died on 15 July last year of heatstroke, after being made to run in a deepsea diving suit on a hot day. The pathologist said that the diving suit prevented the body’s normal cooling process from working and should never have been used for exercise outside water. Mr. Anderson’s father, in a letter to me, alleges that not only has he been denied sight of the Army’s report on this incident, but that the report was not made available to the coroner, who, no doubt, because of his incomplete possession of the facts, amazingly returned a verdict of accidental death.
It is my hope that that kind of shameful cover up, when death was plainly caused by negligence rather than by accident, will no longer be possible once the Bill is enacted. I also hope that those who are responsible for such training, which is rightly realistic and can be dangerous, will take their responsibilities even more seriously to ensure that no serious injury or harm is caused to trainees.
I have a son in the Royal Navy and when his mother heard that he would be put through the fire tunnel she said, “I will call up his commander. It is monstrous that my boy should be treated in that way.” His mother was especially worried because she had heard that officers can be reprimanded for unrealistic training if a proportion of those involved do not sustain minor burns when going through those fire tests. However, I believe that it is fair to point out that it was precisely because of the realism of the training to which the armed forces are subjected—I cite particularly the case of the Royal Navy—that their loss of men during the Falklands campaign in the south Atlantic was far lower than it might have been. Though many ships were blown up and lost, in no case did more than 10 per cent. of the crew lose their lives.
That was directly attributable to the realism of their training in peacetime and I would not wish that training to change, but in cases such as the one I have cited it is clearly unforgivable for sombody to be put in a deepsea diving suit in the heat of a summer’s day and be required to carry out vigorous exercises in suits not designed for that purpose. When this legislation is enacted it will be impossible for the Ministry of Defence to escape liability—as no doubt it will seek to do so in the case that I have cited, as it has in previous cases—by resorting to the infamous section 10 of the Crown Proceedings Act 1947.
For 15 years or more successive Labour and Conservative Governments have refused to countenance any change in the law. It is to the great credit of this Government, and especially my right hon. Friend the Secretary of State and my right hon. Friend the Minister of State for the Armed Forces, who have taken such a close personal interest in this Bill, that not only have the Government agreed to reconsider this matter, but, in the face of the natural inertia of bureaucracy, have determined that section 10 should he repealed. The Government’s decision is courageous, for it represents an implicit admission that the existing system is unjust. Such an admission strikes at the heart of the doctrine of bureaucratic infallability. It will be severely frowned upon by the “Sir Humphrey” brigade when they gather at the Athenaeum or such watering places as they may frequent.
My right hon. and hon. Friends deserve the gratitude of the House for having the fairness, good sense and courage to recognise that it is unacceptable, in peacetime, to deprive members of the armed forces—all of them volunteers—of one of their basic rights as citizens.