Hopps v Mott Macdonald Ltd & Anor

Graham Hopps (“the claimant”) is a consultant electrical engineer. In October 2003 he was working in and around Basrah on projects designed to restore the country’s shattered infrastructure. On 28^th October 2003 he was sitting behind Captain Hayden Gardner, of the Royal New Zealand Engineers, who was the front seat passenger in a left hand drive grey Land Rover Discovery, which was being driven by Major Jeremy Blades, who was serving with the Royal Engineers. In the seat behind Major Blades was an Iraqi civilian, Mr Nuhad Shaker Abdy Shaiban Al-Shaibai, also known as Mr Neehad. He was an employee of the Southern Iraq Electrical Distribution Company. The vehicle in which the claimant was travelling was being escorted by a Land Rover following behind, which was being driven by a soldier, with another soldier as passenger, and which had two armed soldiers standing in the back.

As the vehicle turned a corner it was struck by the exploding material from an Improvised Explosive Device (“IED”). As a result Mr Neehad was killed and the other three people in the Land Rover were injured. Major Blades sustained various shrapnel wounds to his body. Captain Gardner sustained injuries to his right heel and right hand. The claimant was badly injured in his right forearm and shoulder blade, which was shattered into multiple pieces. He was treated at the Shaiba military hospital to which he was taken in the following Land Rover. On 30^th October he was evacuated to a hospital in Birmingham. On 7^th November he was moved to a hospital in Leeds. He left hospital a week later.

The claimant now brings a claim for damages against Mott MacDonald Ltd, the first defendant (“MM”), which engaged him, and the Ministry of Defence, the second defendant, which was responsible for the security of MM’s employees including himself. MM is a consultancy which provides contract personnel for the Department for International Development (DFID) and other clients in a wide range of service including Energy and Civil Engineering.

There was originally an issue as to whether the claimant was an employee under a contract of service or a provider of services. That issue has been resolved by MM’s acceptance, for the purpose of these proceedings only, that the claim should be determined on the basis that his contract was one of employment.

The invasion of Iraq took place in March 2003. By 30^th April the war phase was over. Iraq was under the control of the Coalition Provisional Authority (“CPA”). The southern region of Iraq, an area about half the size of the United Kingdom (although much of it desert) was largely under British control (Footnote: ¹). The Regional Controller for the CPA South (CPA(S)) was Sir Hilary Synott, KCMG. The Basrah province is about the size of Wales.

The supply of essential services in the region was precarious and its deficiencies gave rise to unrest. Power, water and fuel infrastructures were severely dilapidated on account of lack of investment or proper maintenance and some looting and sabotage, albeit little conflict damage. The people of Southern Iraq felt that their living standards had deteriorated since the fall of Saddam and blamed the invading forces. Summer heat without air conditioning inflamed tempers. On 9^th August 2003 there were riots in Basrah arising out of inadequate provision of electricity and fuel.

From 11^th July 2003 security in Southern Iraq, including Basrah, was the responsibility of the Multinational Division (South East) - MND (SE). MND (SE) took over from 1^st (UK) Armoured Division.

During July and August technical specialists from the Military Works Force assessed the situation and formulated a plan (“Strategy for the Essential Services in Southern Iraq”) for dealing with it. HQ MND (SE) realised that the stabilisation of the power, water and fuel infrastructures would improve the situation on the ground and contribute to an acceptance of the occupying forces. Personnel from MM visited Basrah between 21^st and 28^th August in order to form a view on what was needed to ensure a reliable power supply and other essential services. On their return they prepared a “Southern Iraq Essential Services Review” which set out their views and recommendations.

In the last week of August a week long Energy Conference took place in Tampa Bay, Florida to determine what needed to be done to put in place an emergency infrastructure in Iraq. It was attended by; inter alia, Colonel Timothy Grimshaw, who was the Commander Royal Engineers of MND (SE), Mr Malcolm Holmes of MM and another representative of that company. At the end of August Mr Holmes went out to Iraq with two representatives of the Department for International Development (“DFID”), John Hodges and Steven Young, to investigate how to execute the work that needed to be done.

On 2^nd September 2003 Sir Hilary Synott promulgated the “CPA(S) Emergency Infrastructure Plan” (the EIP) designed to provide support for essential services in order to improve the life of ordinary Iraqis. The program (which originally involved 54 projects, although the number was later reduced) became known as “the Synott plan”. It included amongst other things the provision of transmission lines providing power to the Basrah oil refinery which enabled a significant enhancement to fuel supplies in Iraq.

MM already had a Framework Agreement dated 14^th March 2003 with DFID for the provision of services by staff for work on projects, not limited to Iraq, as and when they arose. On 3^rd September the Mott MacDonald Group Ltd Board met. A paper for the Board recorded that the Group had aimed to maintain links with the UK Government and international organisations with a view to participating in the initial phase of work, not as a business target in its own right but as a necessary part of longer term positioning to meet the Group's ultimate objective of establishing a substantial presence in a rehabilitated Iraq. The Board’s approval was sought to MM entering into a contract to engineer and manage a number of projects emerging from the review of the work required, on the basis that staff in Iraq would be volunteers and that, under the contract with DFID, they would be located in the most secure area of Basrah international airport, the HQ of MND (SE), and have army protection both there and during site visits.

The note concluded:

“Although it would be easy to reject this assignment as an unnecessary risk, we have to consider the impact it may have on our relations with government. There would be awareness at the highest level of any refusal to help on our part, given the importance of visibly improving infrastructure in Iraq to the process of stabilising the country. Ministers and senior civil servants may question whether we are right to deem the current situation unsafe for our people when MOD and FO have concluded it is safe for many other civilians, including their own staff, to be there under identical conditions.”

According to the minutes the paper was noted and agreed subject to preparation of a risk appraisal, proper training and all staff being “true volunteers”.

An MM memorandum of 11^th September records that the Group Board resolved to allow negotiations to proceed and to undertake the work subject to a number of conditions including the following:

“3

For the time being, the team will be living and working in the secure military area by Basra airport and will have military close protection and support at all times when outside this facility……

4

The MM leader in Iraq must at all times have authority to decide to de-mobilise if he believes that the security position is unsound.

………

7

All staff working in Iraq will be volunteers who have not been placed under any pressure whatsoever to undertake the assignment. They must be fully briefed on the security risks and acknowledge their understanding of it and their willingness nevertheless to undertake the work. They will have at any time the right to return to the UK if they do not feel happy with the arrangements.”

In September 2003 a “Calldown Contract” was signed pursuant to the Framework Agreement. It provided for the supply by MM to the CPA of a team of consultant engineers to be based in Iraq between 15^th September 2003 and 28^th February 2004. The total fees payable were to be £ 508,135. One of those engineers was to be the claimant as an Electricity Transmission/Distribution Specialist. The contract stipulated that the military would provide force protection as well as hostile environmental training on arrival (Footnote: ²).

The claimant volunteered to go to Iraq. His contract with MM was dated 18^th September 2003.

Mr Malcolm Holmes was the MM team leader in Basrah. He arrived in Basrah on 15^th September. He was on leave at the time of the incident and returned two week later. The deputy team leader was Ray Yeates, who arrived about a week after Mr Holmes. Mr Holmes sent weekly progress reports back to MM in England. He liaised with Colonel Grimshaw. The claimant arrived in Basrah on 27^th September 2003; and took over from Mr Henry Smith who was there from 22^nd to 30^th September. The MM team was about 6 strong.

In September and October 2003 expatriates based in Basrah included (i) the military; (ii) officials and staff of the CPA (S); (iii) civilian contractors such as MM; (iv) representatives of NGOs; (v) journalists and representatives of the media; and no doubt others.

MM was in an unusual position. Their staff were billeted at the international airport which was a military base. When they left the base they were driven and accompanied by military personnel. In Army parlance, military vehicles were the “green” fleet. Non-military vehicles formed a “white” fleet (whatever their colour, which could not be green). MM personnel usually travelled in a convoy of either two or three vehicles. The foremost vehicle would be a “white” vehicle driven by a soldier with another in the passenger seat, both armed. They would be followed by a Land Rover with two soldiers armed with rifles in the back, keeping lookout, one looking forward, the other back. The canvas roof was rolled up and the side, windscreen and front windows protected by wire mesh. Sometimes there was a third Army vehicle.

In September 2003 MM staff produced a Security Plan for the MM team, which was supplied to DFID. The claimant was provided with a copy. It included the following:

“2.1.

……… The coalition forces provide physical security, with check points, static and mobile patrols and support to the Iraqi police. However they do not have continuous control of all areas of the country, towns and larger cities. The CPA is working with the coalition military to step up the indigenous police force but this will take time to address the incidents of serious attacks on coalition forces and serious crime, especially at night…

2.4.1.

The security situation in Northern Iraq is considerably worse than that around Basra and to the South of Basra…

2.4.3.

The threats, as assessed by coalition forces (the multi-national division (MND)) include:

Type of Threat to Western Personnel	Assessed Threat Level
[Entries omitted]
Physical Attack	LOW
Kidnapping	LOW
Direct Targeting/Sniper attacks	LOW
Indirect Targeting/Sniper attacks*	MED/HIGH
Mortar Attack	LOW
Mines and Unexploded Ordnance (UXO)	MED {High in some areas)
[Entries omitted]

* Includes Small Arms Fire, grenade and RPG attack

The definitions of the above threat assessment levels are listed below:

LOW – Threat level is considered minimal with no activities or specific intelligence received

MED – Threat level has increased as a result of recent or similar activities and/or specific intelligence received

HIGH – Threat level has increased as a result of an escalation in similar activities and/or as a result of specific intelligence received

2.7.3: The Mott MacDonald TL [Team Leader] shall have the overall responsibility for the security of the Team and shall ensure that this plan is adhered to and that the plan is updated. The TL shall also ensure that appropriate security arrangements are in force at all times under the advice of the MND (SE)… …… The TL shall also be responsible for liaison with MND (SE) on security matters and for ensuring that the Team is kept abreast of the latest security situation. When the TL is absent the DTL shall be delegated the TL’s duties and responsibilities in this respect.

3.6.2.

All vehicle movement will comply with the conditions laid down on the MND (SE) Vehicle Movements Sheet, located adjacent to the J3OPS Desk in the MND (SE) Operations Centre ( identified as Diamond 1). No travel is to be made alone….

3.16.

The TL should regularly review the security situation in

consultation with the MND (SE) and amend locally agreed procedures appropriately and in accordance with the minimum standards set out above.

3.17

The security situation in Iraq is unstable. A formal risk analysis and security report should be completed every one month or sooner (i.e. threat level increases/decreases, significant incident) and this security plan amended accordingly.”

The plan did not address the type of vehicle in which MM’s employees were to be transported.

On 3 October 2003 Mr Stone, MM’s UK Project Manager, e-mailed Mr Holmes to say:

“I know that you are going to hate me for this but we need to get the QES on track with by [sic] completing forms. Employee risk assessment, environmental review and Project Plan of Work needed and of course all overdue. There is a clear link to the Security Plan that is needed for the employee risk form.

Templates are attached for you to have a go at since I believe that you are the only person who can answer most of the questions. Due to the nature of the beast, there is a lot of non-standard work and the forms are not therefore over friendly but best attempt needed anyway.

Please can you complete ASAP please let me know what I can do to help from here.”

In his progress reports of 21^st and 28^th September and 12^th October 2003 Mr Holmes made no reference to security. In his report of 5^th October he referred to the claimant having been caught (as the claimant had been) in a riot in Basrah. He also observed:

“1.9

The MND Chief Engineer has informed us that we would be expected to go to CPA by the end of November, his troops leave from mid-December onwards and a new MND force will replace them. In discussions with Andrew Alderson the CPA (S) Finance Director he considers that we should come under CPA protection supplied by a third party and usually transported in armoured vehicles…. I view this as a good move for us, the security will be as good if not better and we will be nearer the heart of the action on the local government, it also allows us to expand into the medium and long terms (sic) work.”

As is apparent from the terms of this report it was contemplated that MM would move into the CPA’s headquarters at Basrah Palace. Mr Holmes’ evidence was that he did not consider that armoured vehicles could be justified at that time and that his comment “the security will be as good if not better” related to his concern that if the team were shot at (which never occurred) there was a greater risk of being hit by a bullet in a soft-skinned vehicle.

The Joint Force EOD (i.e. Explosive Ordnance Disposal) Group produced weekly sitreps. The report of 18^th October 2003 for the week ending 17^th October included the following;

“Gen Int This has been a busy period with a number of significant incidents occurring in the Basra area. G2 had indicated the possibility of coordinated attacks in Basra from the 13 October 2003 and on that day 33 direct attacks occurred within 80 minutes. Further incidents during the reporting period including the recovery of an RCIED in situ and two separate finds of BME and RC components indicates a significant change in the threat level. Strong indications of a migration of the technical threat from Baghdad to the Basra area were evident in all of these further incidents. A summary of all recent attacks in the 19 Mech Bde AO since July 03 is attached …”

The report contained a summary of incidents which included 9 IED “tasks” together with details of finds, searches, and hoaxes. It also contained a summary of munitions recovered or destroyed. This and subsequent reports indicated that a very large number of munitions of many different types had been recovered.

Mr Holmes’ progress report of 19^th October 2003 referred to difficulties in MM getting the appropriate transportation and security arrangements for their visits observing: “We have requested that the military provide us with the required transport and security but they seem to struggle to do so, and certainly cannot cope with a changing requirement.” As this report indicated, Army transport was sometimes at a premium.

On 20^th October 2003 Mr Holmes e-mailed to MM in England as follows:

“It may amount to nothing but I feel that you should be aware that the military are questioning whether they have to provide security for us. The whole problem has arisen because apparently CPA (S) have asked the military to pick up the bill for their security, currently a private operation (Risk Control or something similar). Our contract is vague, with the appropriate clause suggesting that we should pay for our own security…

I do not know the outcome, but a number of issues arise immediately when security is considered, they must be able to live somewhere, Halcrows live with them, CPA’s live ?? Also, we would need to have vehicles and equipment brought into the country pretty quickly if the military do back out because we would need to have up to three teams by (guess) the early part of November. Clearly, the military could not leave us without and there would have to be a handover period…”

The background to this questioning was that the EIP directive contemplated that, once CPA [S] had sufficient technical and other resources to assume full responsibility for the plan, it would do so and also shoulder security responsibility.

On 22^nd October MM received an e-mail from the FCO which set out the text of a notice on the FCO website which read:

“We advise against all but the most essential travel to Iraq. The security situation in Iraq remains dangerous. We continue to receive information, which indicates that terrorists are actively targeting UK, US, Western, and other international interests in Iraq. The threat to British nationals remains high. If you are in Iraq you should review your security arrangements carefully and consider whether to leave the country.”

This message constituted general information for travellers to Iraq as a whole. It casts limited light on what degree of protection was needed for those who had volunteered to work in Basrah and were embedded with the military. In its own terms it does not refer to an increased threat (“Iraq remains dangerous”) and invites those in Iraq to review their security. In the case of those with the military security was always under review.

The Joint Force EOD Group sitrep of 25^th October 2003 for the week ending 24^th October contained the following:

“Gen Int This has been another busy period with a number of significant incidents occurring in the Basra area. Continued indications of a migration of the technical threat from Baghdad to the Basra area were evident in all of these further incidents and coupled with humint the link is becoming more apparent.

Tech Int The RC receivers/transmitters recovered in a search Op last week were returned to the UK for detailed analysis. Once again the IED incidents in the AO have been primarily RC devices. A report from Baghdad has detailed the discovery of a collapsing circuit device which indicates another step forward in technology for the bomb makers.

The Summary to the Sitrep observed:

“As mentioned in last weeks report the IED threat is becoming more sophisticated and the discovery of a collapsing circuit device is undoubted evidence of the ability and desire to target EOD operators.”

Mr Yeates did not receive a copy of that report.

Other units provided weekly Sitreps, such as MND(SE) in respect of the EIP, MND(SE)’s Weekly Engineer Sitrep, and 38 Engineer Regiment. In respect of Operation Telic 2 (Footnote: ³), MND(SE) compiled a Post Operational Report (“POR”) which was a record of incidents compiled twice daily, morning and evening, from the Watchkeeper's Log in the HQ. I consider the significance of its content hereafter.

Ramadan began on or about 26^th October.

The MM report for the week ending 26^th October recorded that “Issues with travel and security have been resolved.”

The Land Rover in which the claimant was travelling on 28^th October had been driven by Major Blades from the airport (starting at about 0830) to the Najeeb Power Station – to collect a briefcase of his which had been left there the previous day. He then drove to the City Centre to the offices of the local electricity distribution company, where they picked up Mr Neehad; and then to three separate power installations on the Al Fawa peninsula, some 50 miles from Basrah. They then returned to Basrah. They went to Basrah Palace – the HQ of 19 Mech Brigade and the location of a part of the CPA (S) HQ. They left some time after 1400 and went down the road which leads from the Shatt Al Arab waterway in a south westerly direction until they reached the junction (marked with a blue roundel with a “1” in it on Map 2 and known as “Blue 1”), where the Land Rover rounded the corner to turn right along the “Blue route”, the intention being to return Mr Neehad to his home. Mr Neehad had suggested this route rather than a more direct one which he thought would be congested. Major Blades had spoken with Divisional HQ to inform them of his intention to drop Mr Neehad off and had not received any security warning.

As Major Blades turned the corner someone activated an explosive device which had been placed on the ground adjacent to a concrete monument about 3m from the edge of the road probably in a mound of rubbish. The local police had searched the area (“cursorily” according to the IED Incident Report in respect of the 29^th October incident) about fifty minutes before the attack. However, putting the device into position would only have taken a matter of minutes. The device incorporated an artillery shell of between 152 and 155mm calibre as the main explosive charge, containing within it 6.9 kg (about 15lbs) of high explosive. Some form of explosive was attached to the shell which was activated by remote control – probably by electric detonators triggered by a modified keyless car entry system “firing pack”.

The shell had probably been so positioned that it lay on the ground roughly parallel to the approaching (and turning) vehicle. The main force of the blast was taken across the front and right side of the vehicle. Photographs taken immediately after the incident show much damage to the front of the vehicle in front of the engine block, penetration of the windscreen in at least three places, a hole in the front of the roof immediately above the windscreen on the passenger’s side, and several holes along the front of the right hand side, mainly in the lower half, including a large hole low down on the front right door. The right hand side windows (with the exception of the quarter light in the rear door) were shattered. It is not possible to be certain whether the windows were shattered by the blast or by fragments or both, or to know how many shell fragments penetrated the side; but it seems to me inherently likely that some fragments penetrated the glass.

The likelihood is that the person who initiated the explosion acted (for his purposes) too soon. Had he waited very slightly longer the full force of the blast would have struck the side and not the front of the vehicle, where significant protection was afforded by the engine block. If he had done so the injury and loss of life would in all probability have been greater.

The effect of the explosion of an artillery shell is that multiple fragments are thrown out at enormous speed. The mass of these fragments would have ranged from as low as 1 gram to as high as 250 grams, but most of them would have had a mass of between 10g and 100g. These are the fragments which would have originated from the longest side of the shell (the side facing the vehicle) and they would have been travelling at a speed in excess of 1500m/sec. Such fragments are designed to result in penetrating trauma of the human body and to penetrate some armoured vehicles.

It is common ground between the experts that the Land Rover in which Mr Hopps was travelling would not have given any significant level of protection from an IED of the type in question. It was a standard production “soft skinned” Land Rover, no different to that which comes off the production line for civilian use.

On 29^th October Mr Yeates recorded in a note, amongst other things, that “the military will support us if we are not prepared to make field trips at present” and that there was an assumption that the increased attacks were related to Ramadan. For a fortnight after the incident the MM staff were confined to the airport.

On 31^st October Mr Turley and Mr Stone of MM met Diane Brookes and David Morgan from DFID. Mr Turley was the Country Manager for Iraq. MM said that they wanted armoured vehicles. The DFID representatives were sympathetic and asked if MM could purchase them and DFID reimburse the cost later. MM agreed to this. On 31^st October Mr Yeates e-mailed to Messrs Stone and Turley to tell them that two consequences of the incident were that MM would not transfer any staff to the CPA offices until the end of Ramadan at the earliest, and that that MM should “approach/demand” that MM was provided with equivalent protection to that given to CPA staff within MM's DFID contract.

On 2^nd November Mr Yeates e-mailed again to record that he was aware that the Regional Coordinator (i.e. Sir Hilary) had agreed with the recommendations of security advisers, including DFID, that all civilians should travel in armoured vehicles with an armed driver and close protection and that civilians should no longer travel in soft skinned vehicles. This was probably a reference to civilians employed by CPA(S) who were not co-located with the military. At this stage the CPA(S) staff were billeted in an old electricity HQ building with their own security framework largely composed of retired Ghurkhas, and were due to move to Basrah Palace The e-mail stated that MM staff were the only civilians not covered by this policy.

On the same day the weekly Engineer Sitrep for MND (SE) stated that activity during the week had been intense, referred to the 28^th October incident and observed:

“The threat levels remain high and there are signs of increasing sophistication and perhaps the migration of FRLs from Baghdad and the north into the Basrah area but since the flurry of incidents in the early part of the week the situation has been stable.”

On 3^rd November Mr Yeates recorded that he had had:

“.. long discussion with Military last night, you can imagine that Col Tim (Footnote: ⁴) not impressed but he knows the score. His view would-be that armoured vehicles not necessary outside Basrah and there is some merit in that, at present. However, £ 500,000 on two armoured vehicles looks a good investment to me.”

Colonel Grimshaw’s view was as reported. He felt that the security provided was appropriate to his needs and the needs of those who worked for him, which included the MM team.

Later on 3^rd November Mr Turley reported that he had agreed with DFID that MM would submit a proposal in a couple of days requesting the possibility of armoured vehicles for the staff:

“The issue may not be the purchase of armoured vehicles but the availability of armoured vehicles to purchase as the world wide stock may have already been taken up at present for Iraq and I believe the delivery for new ones to be approximately 6 to 8 weeks.”

On 4^th November 2003 a German company called Cloer International GmbH quoted for two Toyota Land Cruisers armoured to “NATO Class” in accordance with CEN level B6. CEN stands for Central European Normalisation and is a NATO standard relating to the resistance of a material to bullets. The standard has different levels. Level B6 signifies that the material is resistant (i.e. is not penetrated although it may be deformed or shatter) to 7.62 x 51 mm NATO bullets with a mass of 9.5 grams. The test is carried out by firing 3 bullets into a 120mm triangle from a point 10 metres from the test piece. The floor of such a vehicle also gives protection against small anti-personnel mines and fragment-splinter hand grenades. The total cost was € 218,000 for two units, not including delivery and various recommended extras.

The quote made no mention of IEDs and also made plain that:

“The armouring of the vehicle provides protection against a wide range of projectiles and explosives. However, complete protection is not possible for reasons of design and modern military weapon technology.”

In the accompanying e-mail Mr Cloer envisaged delivery within 4-6 weeks and added:

“So far, we have delivered some 45 armoured Land Cruisers to Baghdad and Basra, mainly to embassies and relief organisations. Another 30 units are in production for delivery until the end of the year. APN, CS News, ABC News, Channel Four, British Airways, DFID, UK FCO, CPA, UNHCR, IMF and the World Bank are only a few of our clients in Iraq…”

On 5^th November Mr Turley made a formal request to DFID for two armoured vehicles for its staff. DFID confirmed its agreement to MM’s proposal for 2 armoured Toyota 100s on the same day.

What happened thereafter is not entirely clear. The position appears to be as follows:

After the incident of 28^th October MM employees were given the option to return to the UK if they were unhappy with the risk involved or the arrangements for their safety. None chose to do so.

In his weekly report for 11^th December Mr Holmes said that

“The security situation seems to have calmed down considerably with any improvised explosive devices (IEDs) present seeming to be detected before causing damage. We are constantly being warned that this may be just a quiet period, but the longer it continues the better the situation starts to look.”

An employer owes his employee a duty to take reasonable care for the safety of his employees. Since, as is now accepted, MM is to be regarded as the claimant’s employer that duty, which it owed to him, was not delegable, and it is no longer relevant to consider whether MM’s duty to take reasonable care was fulfilled simply by entrusting protection of its staff to the military.

As appears from para 14 above, the arrangements between MM and DFID and the military were that the military would be responsible for the security of MM’s employees. MM had delegated the responsibility for the security of its staff to the MOD. The delegation was not, however, total. MM devised its own security plan. It reserved the right to decline to allow its staff to go out whatever the military might say.

The MOD accepts that it owed the claimant a duty of care. It had plainly assumed a responsibility to do so. That did not, however, absolve MM from its own liability if the duty to take reasonable care was not fulfilled by it and the MOD between them.

The claimant contends that the fulfilment by MM of its duty of care to him as a civilian employee fulfilling a substantial contract between MM and DFID required a high degree of care. More might have to be done than was the case in respect of a member of the Army. The claimant was unused to, and untrained for, a war zone. There could be no basis for any unreasonable running of risks to his safety.

The first step that should have been taken by MM in discharging its duty of care was to carry out, prior to the claimant’s arrival in Basrah, a detailed and properly informed risk assessment to assess the suitability of the proposed transport arrangements and the provision of security. Mr Stone recognised this in his e-mail of 3^rd October 2003. No such assessment was carried out. MM simply delegated the work of safeguarding its staff to the military. If it was to do that it should only have done so having formed a proper understanding of the risks confronting the claimant in Iraq. It should have taken advice from security companies in the region in order to inform itself of the steps that were being taken by other civilian contractors to safeguard their staff.

If MM had carried out such an assessment and taken such advice it should have decided in September that armoured vehicles of B6 standard should be provided. The MOD should also have undertaken a risk assessment to understand how other civilian workers were being protected.

There was not, as there should have been, any ongoing assessment as events unfolded day by day and hour by hour. During October 2003 the security situation in Basrah deteriorated, as is apparent from the EOD Sitreps, the MM progress reports, the contents of the POR and the FCO warning set out in para 25 above.

Further the onset of Ramadan was likely to increase tensions. The MND(SE) Weekly Engineer Sitrep dated 26^th October reported as follows:

“5

CF (Coalition Forces) continue to be contacted by small arms in a number of incidents across the AO and IEDs are also still being used in attacks with the largest number in Basrah city. There have been reports of eight VBIEDs (Vehicle Born Improvised Explosive Device) being driven from Baghdad to MND (SE) but no definite targets have been confirmed. There has been a report from CJTF7 that an IED was found with a collapsing circuit fitted. This is the first of its type that has been reported and fears are that similar devices will be seen in MND (SE)

…

7

It has been assessed that anti CF feelings will rise during the Ramadan celebrations.”

Colonel Grimshaw accepted that the New Year festival would be a time for Iraqis to assess their quality of life and whether it was improving; and that a small proportion of the population might use the opportunity to show that things were not improving.

In those circumstances, on 28^th October a reasonable employer who had given proper consideration to the circumstances would have kept his employees in the airport base until the situation stabilised, if a B6 level armoured vehicle was not available.

In the event the claimant found himself travelling upon a road known as “Bomb Alley” or “IED alley” (as to which see para 76 below) in a soft skinned vehicle on the third day of Ramadan sitting next to an Iraqi in a British military convoy, unaware of the deteriorating security situation in the Basrah region throughout October. It is irrelevant whether or not the MOD or others continued the use of soft-skinned vehicles after 28^th – since this was indefensible even as an interim measure.

These contentions give rise to the following issues:

When the claimant came to give his evidence in chief he was asked a number of supplementary questions. In one of them he was asked whether, in his view, he would have been safe to go out in an unarmoured Land Rover had he known what is contained in the POR about the security situation. Objection was taken on behalf of both defendants to that question being answered, on the ground that it was, in effect an invitation to the claimant to express his opinion on one of the very issues which the court had to decide. I declined to allow the question to be answered at that stage on the basis that it would be better to await the nature and outcome of the cross examination.

In the event no further application was made for that or any similar question to be put. However, passages in the written final submissions on behalf of the claimant appeared to be designed to support a contention that the defendants were negligent in not properly informing the claimant of the security situation and giving him a choice whether to go out on 28^th October or not and that the claimant would be entitled to recover, regardless of whether or not a reasonable employer would have confined him to base, if the claimant, having been properly informed of the situation, had decided that he did not wish to go out.

This was not a pleaded contention. Both defendants objected to it being put forward. In my view it was not open to the claimant to pursue it without an amendment to the pleadings, which would have been resisted. In the event it was not pursued and Mr Nigel Wilkinson, QC, for the claimant accepted that what he had asked was, in the light of the pleadings, not an appropriate question. Nor is there any evidence that the claimant would have acted differently if given any different information to that which he possessed.

The claimant was briefly cross-examined and then re-examined. I then heard the expert evidence of both sides. After that Mr Mark Turner, QC, for MM indicated that he did not intend to adduce the evidence of his witnesses of fact. The question then arose as to whether MM’s witnesses’ written statements should be received in evidence under the Civil Evidence Act 1995 and whether any of them should be cross-examined. In the event the parties agreed that MM’s witness statements should be received in evidence under the Civil Evidence Act, and no application was made under CPR 33.4 or otherwise that any of them should be cross-examined.

I record these facts because at one stage in his submissions Mr Wilkinson submitted that I should draw an adverse inference from MM’s decision not to call any factual evidence, on the basis that MM’s case could only have been weakened by the cross-examination of Mr Holmes and Mr Yeates and that the court had been deprived of an opportunity to form a better understanding of the level of protection afforded to Halcrow staff because of their absence.

I decline to draw any such inference. The fact that evidence is admitted under the Civil Evidence Act does not mean that its accuracy is automatically accepted. But it is not, in my judgment, open to a party who has agreed to the evidence being so admitted, and who has not applied to cross-examine a witness who is available for cross-examination, to invite the court to draw an adverse inference against an opposing party on the ground that he has not called the witness, on the footing that, if he had, cross-examination would have revealed the weakness of his case.

In September and October 2003 the security situation in Northern Iraq, and in Baghdad in particular, was considerably worse than in the south, in which Basrah lies. A number of witnesses described the situation in Basrah as “relatively benign”. Security levels fell into three categories – Jupiter 1, 2 and 3. Throughout these months the applicable level was mostly Jupiter Level 2, which signified that there was a defined threat but not an imminent one, which would be Jupiter 3 when the whole base was locked down. The threat level was Jupiter 2 prior to the incident. The security plan regarded direct targeting as low risk. Prior to the 28^th October there had been no direct threat to the safety of those working for MM or others rebuilding the Iraqi infrastructure.

During September and October, particularly the latter, the situation gradually became more violent. The major concern at the time was increased small arms fire, shooting incidents and rocket propelled grenade attacks together with riots arising largely as a result of the lack of power, water and fuel.

IEDs vary in type, size and sophistication. Many of them are blast IEDs, which consist mainly of small amounts of high explosive without metal fragments or shrapnel. Grenades placed in cans or tins filled with fuel are a typical example. Although they can cause injury and death they usually result in limited damage. Others are fragmentation IEDs which produce metal fragments and shrapnel which are more likely to be lethal. Fragmentation IEDs can vary from a nail bomb (or explosive with other “dockyard confetti”) to a device built around a high explosive artillery round. The latter is the most lethal.

On 4^th August 2003 HQ MND (SE) issued FRAGO 096 (Fragmentary Order 096) which called for countermeasures to IEDs including:

In August and September the risk of an IED attack against vehicles was regarded by the military as low. Many of them were blast IEDs which were small or of poor quality. Several of them either missed their target or did not go off. By contrast to Baghdad, where larger and more sophisticated IEDs had been deployed, the incidence of IED attacks in MND (SE)’s AO was limited. The army frequently received intelligence about IEDs and investigated such reports. Many were hoaxes or false alarms or, if not, were removed safely.

The risk of attack by IED increased in October 2003. There was an increase in the frequency of attacks and finds and some signs that technological knowledge in respect of fragmentation devices and remote forms of detonation was being imported into Southern Iraq from Baghdad, where there had been sizeable IEDs: see paras 22-26 above. Appendix A to this judgment contains a table of incidents involving IEDs used against (or intended to be used against) vehicles extracted by Mr, previously Brigadier, Hayes, an enquiry agent for the MOD from the POR.

As can be seen from that :

At the start of Ramadan there were two reports of IEDs. These turned out to be false alarms. On 27^th October there was an attack against a military foot patrol using explosive in a drainage pipe. On 28th October an IED was reported and cleared without incident and there was another hoax.

There was, prior to the incident in question nothing involving an artillery shell targeted at a vehicle. The IED whose explosion caused the claimant’s injuries was far larger and more technically advanced than any previously found in Basrah.

Appendix A only contains details of IED incidents involving vehicles. A large number of other incidents are reported in the POR, involving small arms fire, looting, seizures of weapons and ammunition, reports of planned attacks etc as well as IEDs. The claimants have prepared and I have studied a précis of events leading up to the incident on 28^th October. These include reports of IEDs which were not used against vehicles. The latter are contained in a summary of all IED related entries between July-October, prepared by Mr Hayes, which with my amendments forms Appendix B to this report (these include but with less detail the incidents in Appendix A).

The IED Incident Report in respect of the incident of 28^th October refers to the convoy as travelling “west towards Blue 1 along “Flower pot” or “bomb alley””. The 38 Engineer Regiment Sitrep of 25h October 2003 refers to 32 HQ Sqn having conducted a “priority 1 task to remove plant pot from IED Alley”. These nicknames do not appear to have been universal and their significance is not wholly clear. The expression “Flower pot alley” is probably attributable to the fact that there was a large flower pot in one of the traffic islands. Prior to seeing the IED report Major Blades was not aware of the nicknames “Bomb alley” or ““IED alley”. The claimant had not heard of them, nor had Corporal Leicester, the driver of the following Land Rover. The POR report does not reveal IED incidents along the nicknamed route.

Mr Holmes did not carry out a written risk assessment in respect of MM employees. That does not mean that MM made no assessment of the risks that its employees faced or how they should be dealt with. MM produced a detailed Security Plan, in conjunction with DFID, which was based on a security plan drawn up by Halcrow, another contractor. MM agreed with DFID that the Army would be responsible for security and the transport arrangements for MM’s personnel. Considerable thought was given at the MOD and in theatre to the protection of MM personnel (as appears from the evidence of Mr Scott – see footnote 6 below). The security situation and threat level was continually re-assessed by the military, which was in the best position to do so, and was the subject of two daily briefings (“bird table meetings”). The first meeting in the morning was a high level meeting which Mr Holmes did not attend. The second was for junior officers and others, which Mr Holmes or his deputy attended and which the claimant was entitled to attend but, in view of his workload, did not. This meeting included a summary of incidents in the area of operations and an assessment of the threat level. There was an evening meeting as well.

Colonel Grimshaw gave regular “sweep-up” evening briefings to MM during which the EIP and it implementation were discussed and the EOD group gave an update on developments, including IED use and threat. Colonel Grimshaw was out of Iraq between 14^th and 29^th October. The evidence is not specific (Footnote: ⁵) as to whether someone continued the evening briefings in his absence; but it seems to me that the likelihood is that this was so.

Mr Holmes’ evidence, which I have no reason to doubt, was that he was constantly appraising the security situation and undertaking individual risk assessments of every trip that was planned. He would look at the security situation himself in the light of his knowledge of trips in the past and the information given at security briefings and otherwise by the military. On one occasion, despite Army preparedness to go, he vetoed a proposed excursion in the light of previous information. He did not allow a return to the Basrah Water Board, even if the Army was prepared to take MM personnel there, having discovered from one of the water engineers that the military had remained outside with weapons because they regarded it as undefendable. The MM team shared desk areas with the Engineer branch in HQ MND (SE) and always travelled with officers from the Engineer branch, as a result of which they were kept abreast of the latest situation.

Mr Yeates, when acting as deputy leader, also assessed the security situation (in the light of the information which he had, largely from the military) on a daily basis: see paras 15 and 49 of his statement.

According to Mr Holmes’ evidence he was told in the weeks prior to the incident that the military had started to receive reports of some small IEDs which were set next to a road, triggered manually and targeted towards military vehicles. Their locations were stated at the security briefings but they were not specific predictable areas. They were reported as missing their target most of the time and, where they had hit, as flattening the nearest tyre. The IEDs were small and of poor quality and often failed to go off or, if they did, were a long way off target.

Paragraph 38 of his statement reads as follows:

“I have now been shown the Ministry of Defence’s disclosure by Kennedys. I have seen the Situation Reports for the time immediately prior to the incident and after. This is the first time I have seen these type of reports. I did not have access to them out in Basrah. More importantly, I note that the military is suggesting that there was a threat that the more sophisticated IEDs that had been found in Baghdad were coming south and that this war is a “significant cause for concern”. This information was not evident from the daily briefings and the military did not specifically bring this to my attention. Had I been informed that there was an increased and more serious threat I would have discussed this with the Royal Engineer's and reflected these discussions back to my engineers and agreed a way forward. Ultimately though I relied on the security provided by the military and in their assessment of the risks to the provision of that security.”

Mr Yeates had no recollection of being told that there would be a rise in anti CF feelings during Ramadan. Nor, according to his evidence, was he aware that there was an increased risk of IEDs or that they were becoming more sophisticated.

It may well be that Mr Holmes and Mr Yeates either were not told of, or did not pick up, the increase in quantity and sophistication of IEDs in MND (SE)’s AO revealed by the reports summarised in the POR, which they would not have seen. They are certainly unlikely to have been provided with the full details of the incidents (description, nature of device, effectiveness, target, casualties, and location) with which the court has been provided, by and through Mr Hayes, and which are summarised and analysed in Appendices A and B. These details cast light on the significance (or otherwise) of the incidents.

For a number of reasons it is not, in my judgment, profitable to examine the extent to which there was any failure of communication. Firstly, Mr Holmes was not cross-examined. Secondly, and more importantly, given the delegation by MM to the Army of responsibility for security it seems to me that the reasonableness or otherwise of MM and the MOD’s fulfilment of their duty of care must be determined by reference to what the Army knew or ought to have known, whether that was passed down to MM or not. There is no basis for saying that MM would or ought to have had any greater knowledge of the security situation than the Army, who had it under constant review by several different units. No civilian organization could be expected to have the same degree of intelligence as to what was going on. Thirdly, as is apparent from the preceding paragraph, Mr Holmes’ evidence was not that, had he been informed of the detail of the contents of the POR up to 28^th October 2003 he would have demanded armoured vehicles, but that he would have discussed the situation with the Army. It is clear from Col Grimshaw’s evidence that, had he done so, he would have been advised of Col Grimshaw’s view that the level of risk was not such as to require the use of armoured vehicles. He would probably have accepted that advice. That view itself represented an assessment of risk applicable to the claimant and other MM employees.

The absence of a recognisable risk assessment is only of potential significance if, had one been made, it would or should have led MM or the MOD to provide MM’s employees with an armoured car or confine them to base.

An employer’s duty of care requires him to take reasonable care to devise and operate a safe system of work. What is reasonable depends on the circumstances. In the present case they were highly unusual. The claimant had voluntarily agreed to go to a dangerous place in the aftermath of a war. He did so partly for his own benefit (the rewards being markedly greater than he would have received in a less dangerous role); but also as a brave personal contribution to the rebuilding of a shattered economy to the benefit, whether perceived or not, of the Iraqi people. He did so as a civilian, not as a soldier, who may on occasion have to bear risks of a different order of magnitude. He was entitled to have such protection as was, in all the circumstances, reasonable, having regard to what was or ought to have been known by the military about prevailing conditions. He ran the risk that, even with such protection, he might suffer grievous injury, even death.

A determination of what in these circumstances was required is not straightforward because there are a number of relevant considerations to be taken into account and, to some extent, balanced. In determining what is reasonable it is, firstly, necessary to consider the extent of the risks to which the claimant and others were exposed. I accept the submission of the MOD that that involves considering (a) the nature of the risk; (b) the likelihood of it eventuating; and (c) the likelihood of harm being sustained (and the extent of that harm) if it does. In deciding what steps had to be taken in order to deal with these risks it is relevant to take into consideration (i) the nature and purpose of the work that the claimant was employed to perform; (ii) the priority of the risks i.e. which were the principal and which the secondary risks; (iii) the effectiveness of various protective measures that could be taken and (iv) the consequences of taking them.

The risks which the claimant faced could not, if he was to carry out his job, be eliminated. If he left the airport he could be the victim of small arms fire, a grenade attack, a roadside bomb or a riot.

The work on which the claimant was involved was urgent and important work of reconstruction. It was, itself, a measure to reduce risk. If power, water and fuel were not available there was likely to be Iraqi disgruntlement, resentment and anger, leading to civil unrest and aggression (Footnote: ⁶). If the infrastructure was improved, the battle for hearts and minds would be more easily won and the risk of attacks on coalition forces and those associated with them reduced. There was a legitimate wish on the part of the UK armed forces to portray, when they could, a softer than warlike approach (e.g. by wearing berets as opposed to helmets, although helmets replaced soft hats after riots in late August). MM personnel and others like them needed to use vehicles which were suitable for the reconstruction task. That would exclude armoured tracked vehicles such as the tank like “Warrior” vehicles which had very limited load capacity (and into which it would probably be impossible to get an Iraqi to go) and were likely significantly to damage Basrah’s roads (The Mayor of Basrah had asked HQ MND (SE) for the use of tracked vehicles to be restricted). These efforts had had some success in that Iraqi people (but not all of them) gave backing to the military and companies such as MM.

Section 1 of the Compensation Act 2006 provides:

“1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might–

(a)

prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b)

discourage persons from undertaking functions in connection with a desirable activity”.

It was at one stage submitted on behalf of the claimant that this section was not retrospective and could not affect the outcome of this claim. I disagree for two reasons. Firstly, the section must, as it seems to me, be applicable to this claim since it is a claim which the court is “considering”. Secondly the purpose of the section is to draw attention to, and to some extent, to expound the principle of the common law expounded by the House of Lords in Tomlinson v Congleton Borough Council [2004] 1 AC 46.

It was suggested that the section can have no real application to a claim for personal injuries suffered in theatre; and is more applicable to desirable activities such as the provision of public amenities or the playing of sports and games or the pursuit of pastimes. I do not accept this. It seems to me that in determining whether particular steps (e.g. confinement to the airport until armoured vehicles were available for transport) should have been taken I am entitled to have regard to whether such steps would prevent the desirable activity of reconstruction of a shattered infrastructure after a war in a territory occupied by HM forces, particularly when failure to expedite that work would carry with it risks to the safety of coalition forces and civilian contractors in Iraq as a whole.

The claimant’s role in that reconstruction was as an expert in electricity transmission. His job was to attend meetings with Iraqi companies and authorities, undertake site visits, assess damage to infrastructure, decide on the most effective use of resources to restore power, specify equipment and coordinate through other team members the purchase, transport, erection, testing and livening of equipment. He was working with Mr Neehad, a local Iraqi power distribution expert, whose knowledge was crucial to an understanding of what needed to be done to repair the power distribution system. The visits upon which they were engaged were to assess the repair work needed to restore essential services. The importance of MM’s role is obvious and was recognised by the Secretary of State (Footnote: ⁷).

At the relevant time the principal risk that soldiers and civilian personnel associated with them faced was from small arms fire and rocket propelled grenade attack. Ammunition and grenades were not in short supply and the incidence of attacks with these weapons gradually increased. Such attacks carried with them the risk of death or injury. The next greatest threat was probably from civil unrest, which also carried with it such risks. In one riot a number of RMPs had been killed. The next highest risk was from IEDs. The nature and extent of the risk is set out in paras 66-75 above.

The work of reinstatement of the Iraqi infrastructure was a measure intended to reduce the risk of attacks of all kinds by removing or reducing grounds for grievance and bringing about a return to some form of normality.

The measures adopted to reduce the risk of attack by small arms or grenades or being caught in a riot included embedding the claimant and others like him in a military base, and, for travel outside that base, providing body armour and a helmet, a military driver and front seat passenger, both armed, and providing an armed escort (“top cover”), able to spot potential aggressors and, if necessary shoot them. In addition the Army was continuously engaged in intelligence gathering with a view to being forewarned of the possibility of attack, or able to predict the possibility of one. In the light of that intelligence areas could be and were put out of bounds and routes changed or avoided. Before leaving the airport drivers were required to “log out” with the Motor Transport Department who would advise of any security updates or “no go” areas. Corporal Leicester, the driver of the “green” Land Rover, did so on 28^th October.

The measures referred to in the previous paragraph were also means of reducing the risk of injury from IED attack. The military liaison officer and driver of the vehicle, Mr Blades, was a bomb disposal officer. The top cover soldiers were in a position to lookout for possible IEDs or loiterers who might be poised to detonate a device and to alert the driver. All vehicle movements were controlled by HQ MND (SE) in order to prevent pattern setting of routes. Routes used most frequently were swept by troops or local police. Army driven vehicles were in constant communication with HQ and given updates on the security situation particularly with regard to route selection. In turn, those on them provided up to date information to HQ. IED incidents were considered in the risk assessment at the bird table briefings. As the events of this case show such measures could, however, provide no guarantee against injury from an IED attack.

The claimant contends that the risk of IEDs necessitated the use of armoured vehicles. Possible armoured vehicles include the following:

In the original Particulars of Claim the claimant identified a Macroloned Land Rover as a vehicle which would have protected him from the blast. Reliance is no longer placed on such a vehicle which, as Mr Robson, the claimant’s expert, makes clear, would not have protected the claimant against IEDs. In paragraph 5 (ii) of the Particulars of Claim the claimant contended that a Land Rover modified by the placing of sandbags on the floor, the welding of metal sheets to the sides and floor, the provision of Kevlar blankets and the fitting of steel mesh screens would have seriously reduced the risk of injury. But the expert evidence makes clear that these expedients would not have protected the claimant from the IED on 28 October 2003.

The amended Particulars of Claim identifies the vehicle required as “an armoured Land Rover”. That description embraces a Land Rover in which armour is fitted after it has been manufactured and one that was originally constructed with such armour. Whilst a vehicle retrofitted with B6 armour would provide improved protection, it would not meet the B 6 standard and would be unlikely to have provided sufficient protection to the claimant to avert serious injury from an IED as substantial as the one in question. That this is so is apparent from the memorandum of Mr Burns of 20^th July 2008 and the comments of Mr Robson, on it.

In the end the vehicle identified as appropriate was a commercially produced B6 vehicle, which would have provided a level of protection greater than all the vehicles identified in para 99 with the exception of the last three. The claimant does not contend that he should have been transported in any of those three. The Mastiff or Cougar type vehicle was not available in 2003.

The claimant’s pleading alleged that other civilian employers such as Halcrow ensured that their employees were transported in armoured vehicles. This has not been shown to be the case.

It is not disputed that armoured vehicles were used elsewhere in Iraq. A company called Control Risks Group (“CRG”) provided armoured vehicles for certain civilians in Al Amarah, 150 kms north of Basrah, where there was a higher risk of IEDs, and in Baghdad, where CRG transported foreign office staff.

CRG was also responsible for the security of CPA staff in the Southern region. In Basrah they had two armoured vehicles which were used to transport high ranking CPA representatives and Ministerial level visitors or the like. The claimant himself had seen armoured vehicles transporting Hilary Benn, who was the DFID Minister, and Sir Hilary Synott and other CPA representatives to quite a large meeting at the Najeed power station about the Basrah distribution network. In addition the MOD had 2 armoured Land Rovers for use by the General Officer Commanding MND (SE). The personnel carried in these vehicles, e.g. the UK PM, the Secretary of State for Defence, the New Zealand PM, the UK’s senior Military Commander in Iraq, the Norwegian Army Chief of Staff and its Chief Engineer, were potential priority targets and were provided with additional protection on that account. They did not have a military escort as well.

It was the claimant’s belief, as expressed in his second statement of 11^th January 2007, that Halcrow, the engineering contractor, whose personnel were based in an hotel, used armoured vehicles. It is apparent from the evidence of Messrs Trimble (Deputy and then Head Team Leader) and Hodgkins (Chief Resident Engineer) of that company that they did not. They had two (on occasion three) soft-skinned vehicles – Mitsubishi Pajeros. Toyota Land Cruisers armoured to B6 levels arrived on 18^th December 2003, having been ordered in about October 2003. When those became available the soft top vehicles continued to be used as the second vehicle in the convoy containing armed security guards. They did not change their security operations between 28^th October and 18^th December, and still went around in soft-skinned vehicles.

The claimant stated in his witness statement that Bechtel used armoured vehicles. But he had no direct knowledge of that; he was going on what he was told by some unidentified person. I do not regard that hearsay as evidence upon which I can place any reliance as to the position up to 28^th October 2003, particularly having regard to the inaccuracy of the claimant’s belief about Halcrow (a mistaken belief shared by other witnesses namely Ray Yeates and Mr Burns – see para 109 below).

The evidence of Mr Callaghan suggests that Armor Group did not provide armoured vehicles for their staff at the time. He describes them as providing no protective equipment and having a huge difference in safety cultures as compared to CRG. In his statement he said that he went out to work in Iraq with the Armor Group around the end of 2003 or beginning of 2004. In fact, as he confirmed in evidence, he was in Basrah between 24^th May 2003 and 27^th June 2003. After that he went to work for CRG in Baghdad. But there is no evidence that Armor changed their procedures in 2003.

Mr Burns’ evidence (given under a Civil Evidence Act notice) shows that European Solutions Ltd (“ESL”) and S3 AG, which are two companies in the Sefinor group engaged in explosive ordnance disposal work, did not have armoured vehicles in September or October 2003. He was employed by ELS as a Group Security Manager and later Security Advisor and then Group Security Advisor. EDS only obtained an armoured vehicle after a further similar incident involving a roadside IED on 17^th October 2004.

Mr Burns’ very general statement that there were 3 security companies operating in Iraq in 2003 which were using armoured vehicles namely (i) Armor Group, (ii) CRG and (iii) Olive Security does not establish that civilian contractors in Basrah were using armoured vehicles in the latter half of 2003. The statement does not specify in which parts of Iraq such vehicles were being used. Mr Burns himself was not based in Basrah and only went to Iraq on 4^th November 2003. CRG was using armoured vehicles in Basrah, but for the CPA. The position in respect of Armor Group is as stated in the paragraph 108. Olive Security provided security to Halcrow who did not have armoured vehicles.

On 1^st January 2004 Mr Burns sent a detailed memo, which in substance amounts to a risk assessment, to his line manager highlighting a number of concerns. In that memo he referred to the facts (a) that the security situation was degenerating day by day and (b) that various types of IEDs were being located within public thoroughfares and main roads. He referred to drive by shootings becoming more common and vehicles playing an important role in deciding whether you would be attacked or not. He recommended that the current stock of vehicles should be altered to include other types and models, that overt VHF antenna should be integrated into the vehicles so as not to identify the occupants as internationals and that windows should be tinted.

What he did not recommend was the use of armoured vehicles. His recommendations were not implemented. After the 17^th October incident, in which a man was very seriously injured, he was asked to go to Basrah and report on the incident. One of his recommendations was the retro-fitting of vehicles. He thought that 24 were decided on but, in the event, only six were received, because the Sefinor group was not prepared to finance any more, and some of them took more than eight months to arrive.

It may be, although the evidence is very limited (Footnote: ⁸), that there were some undertakings such as news companies, the Red Cross and others who used armoured transport because of their nature of their front line work. I do not, however, regard it as possible to make any definite finding in that respect.

I do not regard it as unreasonable for the claimant to have been carried around Basrah in an unarmoured vehicle on 28^th October 2003. In order for such unreasonableness to be established it would be necessary to show either:

I do not understand proposition (a) to have been suggested and it is inconsistent with the claim that the nature of the defendants’ fault is their failure to provide some form of armoured vehicle. In any event I reject it.

As to (b) I am not satisfied that prior to the incident on October 28^th 2003 there had come a point at which the exercise of reasonable care required the procurement of a factory produced B6 armoured vehicle. The information available to the military about IEDs, amongst other weaponry, does not seem to me to be such as to have made it unreasonable to allow civilian personnel outside the airport in Land Rovers driven by armed soldiers and accompanied by a top escort. The number of attacks appeared to be increasing; but the nature of the attacks and the IEDs involved and of their consequences does not seem to me such that, acting reasonably the defendants should have ordered armoured vehicles for civilian contractors. The circumstances applicable to the CPA and Army personnel for whom such vehicles had been provided were different. They were priority targets inherently more likely to be exposed to attack than civilian contractors seeking to reconstruct local services.

The fact that other civilian contractors do not appear to have had armoured vehicles does not necessarily mean that the defendants were not negligent in failing to ensure that they were provided. Similarly the facts (a) that Colonel Grimshaw’s view both before and after the incident of 28^th October was that the level of risk did not require the use of armoured vehicles; (b) that he himself did not travel in an armoured vehicle; (c) that a formal inquiry and review of movement procedures by operations staff from HQ MND (SE) after the incident did not produce any substantial change in procedures; and (d) that Major (Ret’d) Driver-Williams, the defendants’ expert, travelled around in Iraq from about May 2004 only in un-armoured vehicles and that Mr Scott did so until 2005 do not necessarily have that consequence. But these facts confirm me in the view that I have taken about the reasonableness of the defendants’ conduct.

There is no evidence of what advice security companies would have given before the incident. In particular, it is not established that they would have advised that a B6 level armoured vehicle was needed, and I doubt that they would have done.

If a B6 vehicle had been ordered it would not have arrived immediately. The armoured vehicles ordered by Halcrow took about 6-8 weeks to arrive after being ordered. After the incident MM obtained armoured vehicles (a Volvo and a Mercedes) on loan, which took about six weeks to arrive. Some of the vehicles for which ELS commissioned up-armouring from a local suppler had still not arrived 8 months after being ordered. Even if, contrary to my view, a reasonable employer should have realised at the end of September or the beginning of October that an armoured vehicle was necessary, it would not be likely that a factory fit (or retro fitted) B6 vehicle would have arrived by 28^th October.

If a factory produced B6 vehicle would or should have been available the next question is whether, had the claimant been transported in it he would have suffered either no or less injury. In this respect the onus lies on the claimant to show that the failure to carry him in an armoured vehicle either caused his injury (in the sense that but for the fact that he was carried in a soft-skinned as opposed to an armoured vehicle he would not have suffered the injury that he did) or that his carriage in a soft-skinned Land Rover materially contributed to that injury. It is not sufficient for the claimant to show that the absence of an armoured vehicle materially contributed to the risk of injury: Clough v First Choice [2006] EWCA Civ 15; unless the principle in Fairchild v Glenhaven Funeral Services Ltd [2001] 1 AC 32 is applicable, which is not suggested.

I have heard expert evidence from Mr Stephen Robson on behalf of the claimant and Mr Crispin Driver-Williams on behalf of the defendants. Mr Robson was in the Royal Marines for 22 years leaving with the rank of Warrant Officer 2, having specialised as a weapons and tactics instructor. He has had extensive training and experience in Northern Ireland in relation to IEDs. Major (Ret’d) Driver-Williams was in the Army between 1989 and 2007 , for the last ten years of which he was employed as an Ammunition Technical Officer (ATO) and IED disposal and ballistics specialist, serving in Northern Ireland, Iraq and Afghanistan. He served as a counter-terrorist bomb disposal operator in Basrah between May and September 2004, where he investigated a number of IED incidents, and was between 2005 and 2007 the MOD’s senior worldwide IED intelligence analyst.

In his first report Mr Robson expressed the view that, if the claimant had been travelling in a B6 vehicle, it was very likely that he and all the other occupants would not have been injured at all. If he had been travelling in a Land Rover with local modifications it was very probable that his injuries would have been lessened. In the joint memorandum he is recorded as considering that the level of protection from a B6 vehicle would have reduced or even prevented his injury.

Major (Ret’d) Driver-Williams’ view was that a vehicle armoured to B6 standard (“a B6 vehicle”) vehicle would be unlikely to have protected the claimant. Such vehicles are only designed to afford protection against 7.62 mm and lesser calibre bullets and small hand grenades and anti-personnel mines. The only type of vehicle capable of effectively shielding the claimant from this type of IED so as to avoid or materially reduce his injury was a main battle tank (which, even if available, was unfeasible for the routine movement of personnel due to its size, cost and crew limitations) or a Cougar Mine Resistant Ambush Protected (MRAP) vehicle or a “Mastiff” Protected Patrol vehicle. The former is of US, the latter of UK, manufacture. They have the same chassis. Neither was available in Iraq in 2003.

His view was that the majority of the fragments from the body and the ogive of a 152 mm shell such as the one involved in the incident would in all probability penetrate a B6 vehicle even if the angle of the blast was (as it probably was) at about 45º to the car. Even if there was a ricochet so that the first fragment did not penetrate (which he thought unlikely even if the fragment struck at an oblique angle) the first fragment would have weakened the armour to such an extent that the next fragment to impact would be bound to penetrate. The fragment that hit the claimant could have come through the window of the front or rear passenger door, or through the door and rerouted itself from a ricochet inside.

Mr Robson in his evidence accepted the following propositions:

I found the evidence of Major (Ret’d) Driver-Williams, given against a background of considerable expertise and experience, convincing. In the light of his evidence and that of Mr Robson it does not seem to me that the claimant has established that the fact that he was not carried in a B6 vehicle has caused or materially contributed to his injuries.

Mr Wilkinson submits (correctly) that a B6 vehicle would have provided better protection than a soft-skinned Land Rover and that it stands to reason that the claimant would have been in a better position than, in the event, he was if he had been afforded that protection. The law should not set an unrealistic standard of proof in circumstances where the precise route by which the claimant came to be injured and the path of the fragment(s) that ripped into him are unknown; and where a forensic examination of the vehicle (e.g. with the use of trajectory rods to trace the path taken by fragments) has not been possible. The court could and should take a broad view of the likelihood of an armoured vehicle affording significant protection. The claimant should recover if it was possible to say that a much better outcome could be expected if he had been in a significantly enhanced vehicle. It is nothing to the point that, had the claimant been in a B6 vehicle there might have been some deflexion which would have sent the fragments off in a different way. Examination of the photographs of the vehicle show that much of the impact of fragment is either to the front or along the right hand side at a low level. The resistance of a B6 vehicle to such fragmentation would be likely to have made a difference.

I accept that the court should not adopt an unduly rigid approach in determining whether or not the claimant has satisfied the onus of proof that rests on him. But, even approaching the matter in a broad way, I am not satisfied that the claimant has satisfied that onus. The effect of an explosion of this kind is chaotic. If, as I accept is the case, fragments thrown off would have penetrated the vehicle they would have done so at great speed and by whatever path offered the least resistance. The behaviour of such fragments once they had penetrated the vehicle is unpredictable and may involve ricochet and spalling. The person worst affected may be in a position which might be thought to have afforded the best protection. In the present case Mr Neehad who was sitting behind the driver was furthest from the source of the blast and it was he who was killed. Major (Ret’d) Driver-Wllliams indicated that in every case which he had investigated in which a shell of comparable size had exploded in the vicinity of a B6 armoured vehicle in Iraq, there had been at least one fatality.

In those circumstances I find it impossible to conclude that the likelihood is that if the claimant had been in an armoured vehicle he would probably not have suffered the injury that he did or that his injuries would have been less serious. Nor is there any medical evidence, or combination of medical and ballistic evidence which establishes that the flying projectile(s) which were the cause of the claimant’s injury would have been less injurious if travelling at a lower velocity.

Lastly, I am not satisfied that the level of risk from IED attacks was such that by 28^th October 2003 the claimant should have been confined to the compound until an armoured vehicle was available to transport him. Given my conclusion that it was not incumbent on the defendants to have ordered an armoured vehicle by 28^th October, this is a conclusion a fortiori.

But, even if I am wrong in my former conclusion, I would not accept that the danger level was such that the MM team should have been kept in base or at least out of Basrah until 6 or more weeks had elapsed for the delivery of such a vehicle. The effect of doing that would have been to afford the claimant protection from IEDs. But it would also have precluded him and other MM employees from doing their job. That in turn would have had a serious effect on the implementation of the EIP, which was intended to bring about as swift a repair as was possible, and would have increased or, at the least, done nothing to reduce, the risks (disillusionment, unrest, violent defiance) associated with the continuation of a crumbling infrastructure. It would also have contributed to a growing humanitarian crisis.

I note that the suggestion that the claimant should have been confined to base first appears, somewhat obliquely (“failed to consider adequately or at all whether it was safe for the Claimant to leave his compound and travel around Basra in a soft skinned Land Rover or at all on 28^th October 2003”) in the amended particulars of June 2009 and was not, in terms, suggested to any witness.

For these reasons I propose to dismiss the claimant’s claim. The fact that I have done so in no way reduces the great credit due to him for the contribution which, at much personal cost, he has made to improving the lot of the Iraqi people.

I am grateful to counsel for their lucid presentation of their respective cases.

SUMMARY OF IED INCIDENTS AGAINST VEHICLES PRIOR TO THE ATTACK ON THE CLAIMANT