England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MR JUSTICE BURNETT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th May 2010

Sir Anthony May:

1. Julian Davies, a former SAS serviceman, tragically died on 24 June 2004 in or near Mosel in Iraq when he was hit in the neck area by a sniper's bullet when he was on convoy protection patrol. He was employed in that role by one or other of the defendants, who themselves had a contract for those services with the US military authorities. His widow claims in these proceedings on her own behalf and on behalf of their son Matthew that her husband's death was caused by the respondent's negligence, relevantly for present purposes, in not fitting bullet-proof glass in the windscreen of the Toyota vehicle in which Mr Davies was travelling when his half platoon was ambushed. The bullet which killed him passed through the windscreen.
2. Burnett J dismissed the claim in a judgment given on 25 September 2009. The judgment may be found at [2009] EWHC 2342 QB and it may be referred to for greater detail than this judgment need contain. Mrs Davies appeals with permission to do so against the judge's decision.
3. The facts may be briefly summarised as follows. Following the end of the second gulf war on 1 May 2003 a Coalition Provisional Authority was established to exercise power in Iraq pending the election of a democratic government. Power was eventually handed over in June 2004. In the intervening period the Provisional Authority embarked on a programme of rebuilding infrastructure and normalising civil life; the United States and British forces played a large role in this programme. In particular the United States entered into contracts with civilian contractors to provide services to the Provisional Authority. The respondents provided armed security personnel in Iraq to protect Provisional Authority places and individuals. They entered into two contracts with the United States government.
4. The first of these was called Operation Filous, which ran until February 2004. This operation did not use armoured vehicles but a range of Toyota vehicles with ordinary bodywork and windows. They were referred to as "soft-skinned vehicles". Many of these vehicles were then transferred to the operation during the course of which Mr Davies died: Operation Northstar.
5. He started working for the respondents in Iraq in August 2003 on the Operation Filous, which was for distributing currency from Baghdad airport to various banks. He was very highly qualified and experienced to undertake private security work of this kind. He had formally served in the parachute regiment, the Royal Marines and the territorial army's SAS division. This subsequent contract for Operation Northstar was signed on 8 March 2004 and secured his services until 1 July 2004. He was paid US $ 500 a day. He was a platoon commander in charge of a group of vehicles when on patrol.
6. The key feature of Operation Northstar was the provision of convoy escort services for commercial vehicles, for example escorting fleets of fuel lorries from the Turkish border south past Mosel and from there to other parts of Iraq. The tactics determined upon by the respondent entailed their escort vehicles be highly manoeuvrable to ensure that they could move to any point in the convoy at speeds. Convoys could stretch a great distance of up to 2 kilometres or more. In addition, in the event of attack the aim was to ensure that the respondent's staff could respond by laying down substantial fire from the vehicles and also get out of the vehicles at speed. For this reason all the doors of the Toyota except the driver's doors were removed and the staff carried various weapons including machine guns and automatic rifles.
7. In the period following the beginning of Operation Northstar there was a deterioration in the security situation in northern Iraq; in particular there was an increased number of attacks on United States forces, civilian contractors and Iraqi civilians which manifested themselves in an increasing number of attacks using small arms and improvised explosive devices. Daily situation reports on Operation Northstar showed a pattern of attacks and risks in and around Mosel in April and May 2004. Another report described an improvised explosive device attack on a fuel convoy on 6 June 2004. Before this there had been no attacks on fuel convoys nor any to the north of Mosel. Owing to the increased danger on the ground the respondents had, before the attack which resulted in Mr Davies' death, installed ad hoc armoured protection in their vehicles. Steel plates were inserted into the drivers' doors and also behind the seat and to the rear of the vehicles.
8. On 24 June 2004 Mr Davies was in charge of a half platoon of escort vehicles consisting of three Toyota vehicles. The platoon was to meet a convoy of fuel trucks coming from the Turkish border. He was the front passenger in the Landcruiser leading the group which was driven by a Mr Tavita Kunacewa. All personnel wore body armour and no complaint is made about the level of protection provided by that armour, so far as it went. However, one of the issues in the case related to whether the body armour should have had, as it did not, a protective collar.
9. The vehicles left the respondent's headquarters at Qayarrah West, an American airbase, at 8.46 in the morning. Mr Alex St Matthew Daniels, the project manager of Operation Northstar, remained in communication with Mr Davies and the other staff of the respondents operating in the region following reports of explosions and small arms fire in central Mosel and sightings of vehicles with machine guns. Mr Daniels advised Mr Davies to proceed with extreme caution. Mr Davies rerouted the vehicles, but at 9.50am his second in command, Mr John Cindric, radioed to say that the group had been hit by small arms fire and that the vehicle in which Mr Davies was travelling had driven on.
10. At 10.10 the Landcruiser in which Mr Davies was travelling arrived at Camp Freedom, another American base. Mr Davies was unconscious and it was clear he had sustained a gunshot to his head. The bullet had passed through the vehicle's windscreen towards the top at the driver's side and it struck Mr Davies just below and behind his left ear. Attempts were made to resuscitate him; these were without success and it was confirmed that he had died at 11.27. As a response to this incident Mr Daniels decided that all soft-skinned vehicles should be confined to camp for the time being.
11. The appellant contended that by June 2004 the respondents should have taken steps to enhance the protection available to their staff on convoy duty either by replacing the soft-skinned vehicles with armoured vehicles or by fitting bullet-resistant windscreens. As a result of the respondent's failure to do so, Mr Davies was inadequately protected in a number of respects in circumstances which amounted to a breach of his employer's duty of care towards him.
12. The appellant advanced before the judge four allegations of negligence, all of which the judge rejected. Since the appellant does not seek to resurrect three of these on this appeal I mention them only briefly.
13. Firstly, it was said that in the light of the developing threat the respondents should have required armoured vehicles and changed their tactics for escorting convoys. The judge held that it was reasonable to equip Operation Northstar with soft-skinned vehicles and that the tactics devised for it were reasonable. He was satisfied that the deterioration in the security situation in northern Iraq was not such as to call the wholesale change in such tactics in favour of armoured vehicles. The response of the respondents to consider implementing incremental enhancement of protection was an appropriate one; further, the judge accepted Mr Hayes' evidence that armoured vehicles would not have been readily available in the spring of 2004 for immediate delivery.
14. Secondly, it was said that the respondent should have provided body armour with a collar. The respondents provided no evidence to the court as to whether or not the acquisition of collars was ever considered by them. The judge found the respondents to be in breach of their duty in failing to provide Mr Davies with a collar for his body armour. However, this breach was held not to be causative of his death; the collar would not have made any difference since the bullet that killed him grazed the lip of his helmet and would have passed above the protective top of the collar.
15. Thirdly, it was said that on the day of the attack Mr Daniel should have called the mission off as events developed in Mosel. This was not pressed at the trial; the judge preferred the evidence of Mr Hayes over that of Mr Robson and held that the stage had not been reached when the mission should have been called off.
16. The allegation which failed before the judge which is subject to this appeal was that even if no armoured vehicles were available the respondent should have fitted bullet-resistant windscreens to their vehicles by the time of Mr Davies' death. The evidence of Mr Arnold and Mr Perl was crucial in determining this issue. The judge found that the respondents did consider installing bullet-resistant windscreens in response to the increased risks on the ground in Iraq and held that the evidential burden was on them to show why they were not installed. The judge found the evidence from both sides to be unsatisfactory on this issue. Nevertheless, the respondents did make inquiries of the organisation responsible for maintaining the vehicle -- an organisation called Bukerhaver -- and the message they received back was that it could not be done. Against this was the evidence of Mr Robson who had explored in 2008 the practicalities of installing bullet-resistant windscreens through Google. On this basis the judge found the evidence of the respondents to be more concrete than that given by Mr Robson and concluded that it was not reasonably practicable to fit a bullet-resistant windscreen to the Toyota Landcruiser in which Mr Davies was travelling before the fatal attack.
17. Before the judge the appellant made a number of general criticisms of the quality of the evidence called on behalf of the respondents. Mr Daniel, a retired army officer, was the respondent's project manager for Operation Northstar. He had given evidence at the inquest of Mr Davies but he was not called at the trial. The evidence he gave at the inquest was admitted by agreement. The appellant submitted that adverse inferences should be drawn against the respondents from their failure to call him. The judge held that he had shown a clear unwillingness to be involved in the trial. There was a number of other possible witnesses who the respondents did not call. The judge did not consider that it was an appropriate case in which to draw adverse inferences of the sort discussed in Wiszniewski v Central Manchester Health Authority [1998] PIQR 324.
18. The appellant also complained of inadequacies in the respondent's disclosure but there had been no application for specific disclosure. That said, the judge considered that in considering the reliability of written and oral evidence from Mr Arnold and Mr Perl, who were the witnesses called for the respondents, the absence of supporting documentation must be borne in mind when weighing their evidence.
19. Expert evidence was given by Mr Robson on behalf of the appellant; he was a retired warrant officer from the Royal Marines. The judge said of him that his inexperience as an expert told in a number of respects, which the judge mentioned briefly in paragraph 58 of his judgment. Mr Hayes, the respondent's expert, was a retired brigadier who had never given oral evidence before and was inclined to argue the case on behalf of his client. As to bullet-resistant windscreens, Mr Robson's evidence implied, though not clearly, on the basis of unrecorded internet research in 2008 that such were available in Iraq in 2004, but he provided no detail beyond the bare assertion in cross-examination. Mr Hayes had said that fitting bullet-resistant windscreens would have been a difficult and lengthy job, although he accepted that he was not an expert in such matters. The judge noted this but said that, nevertheless, to an extent the point was an obvious one.
20. Dr Braslavsky QC had referred the judge, as he has referred us, to the judgment of Scott Baker LJ in Brown v Corus UK Limited [2004] EWCA Civ 337 at paragraph 34 for the proposition that once a claimant shows that he was exposed to a risk which was capable of being reduced there is an evidential burden on the defendant employer to show why the reduction was not achieved. This applied, it was said, to the failure to install bullet-resistant windscreens.
21. Both Mr Arnold and Mr Perl had given evidence that they understood from information given by Bukkehave that bullet-resistant windscreens were not available in Iraq in 2004. The judge regarded these two witnesses as truthful. In his evaluation of the evidence on this topic he said this:

"80. Both Mr Arnold and Mr Perl recognised the increased risk of attack by small arms fire after the contract was signed. The defendants' consideration of the question of installing bullet resistant windscreens was a response to that risk. The question of their ability was, as I have found, explored by those on the ground in Northern Iraq. That question included consideration of whether screens could be found and also whether the equipment and skills necessary to install them were available in Northern Iraq. I am satisfied that had they been available (in that broad sense) they should have been installed. The essence of the evidence of both Mr Arnold and Mr Perl was that screens could not have been installed. That was the information coming from Bukkehave. There is no evidence to suggest that the subsidiary reasons given by Mr Arnold (concern about weight and the possibility that insurgence would adapt their methods of attack) were fully though through or determinative of the issue. No doubt weight would have been an issue if the screens were available."

22. And then, leaving out the rest of that paragraph, paragraph 81:

"Dr Braslavsky submits that the failure of the defendants to call Mr Daniel (with whom Mr Arnold had conversations) and the other staff who directly investigated the availability of windscreens is fatal to the defendants' case. He submits that this is evidence they should have called and the failure to do so results in an adverse inference in the face of Mr Robson's assertion that such windscreens were available. Whilst I have concluded that there is a good reason for Mr Daniels absence as a witness (see [4] above) there is nothing beyond the fact that Messrs Spencer and Woodward have left the defendants' service to explain why they had not given evidence on this issue. It is not clear whether any attempt was made to find them. The fact that they had moved on provides some explanation, if not a wholly satisfactory one, for their absence.

82. Yet the defendants have not remained silent in the face of the suggestion that bullet resistant windscreens should have been fitted before 24 June 2004. Both Mr Arnold and Mr Perl have given evidence that the issue was discussed. Both have said that the issue was explored by those on the ground in Northern Iraq with Bukkehave and the result of that exploration was passed on to them. There is independent documentary evidence that Bukkehave were indeed the organisation concerned with the maintenance of the vehicles used in Operation Northstar. There is also documentary evidence that suggests that the availability of even routine spares was limited in Northern Iraq at the time.

83. It is not appropriate to draw an adverse inference against the defendants on this issue. Rather I have to evaluate evidence from both sides which is unsatisfactory. A proper criticism of the evidence given by Mr Arnold and Mr Perl is that it is in effect hearsay evidence. Those who could give direct evidence have not been called and so the detail of their investigations is not before the court and has not been cross examined. It is worth repeating that Mr Arnold's evidence was that Bukkehave was suggesting it could not be done. So had Mr Spencer and Mr Woodward been called they would have been relaying information gleaned from people within that organisation. I have earlier concluded that I accept both Mr Arnold and Mr Perl to tell the truth about this issue. As with the question of collars, there is an evidential burden on the defendants to explain why bullet resistant windscreens were not installed. Here the evidence has been adduced. The court's task is to evaluate the competing evidence to determine whether screens probably were or were not available and capable of being fitted at the time. On the one hand, the defendants caused inquiries to be made of the organisation responsible for maintaining the vehicle. The message that came back was that it could not be done. Against this the evidence of Mr Robson that after writing his report he explored through Google the practicalities of installing bullet resistant glass to a Toyota Landcruiser. Through this mechanism he discovered the thickness of such screens and their weight. It is also through a Google search made towards the end of 2008 that Mr Robson was able to assert such screens were available in 2004.

In many respects Mr Robson's evidence is extraordinary. The issue of the availability of bullet resistant windscreens in Iraq in the spring of 2004, and the availability of people to fit them in Northern Iraq was of obvious importance in the case. It was a central feature of Mr Arnold's written evidence of 13 June 2008. It is not covered in Mr Robson's report, nor was it dealt with by him in the joint report of the experts. No supplementary report was ever provided on this issue. The evidence did not emerge in Mr Robson's short evidence in chief rather it was produced during cross examination by Mr Jay. Anyone can do a Google search. This evidence was not expert evidence at all. It might have been given by anyone. Mr Robson printed nothing from the internet that he found through his Google search, nor does it appear that he made any notes. His evidence was completely lacking in specificity and its source is invisible. Whether his information amounted to anything more than that in 2004 bullet resistant windscreens were generally available for Toyota Landcruisers was unclear. The defendants have not contended otherwise. Mr Robson did not given any details of from whom they were available. He gave no evidence that such windscreens were readily available in Iraq or, if not, how long it would take to get them. He did not explain that they were available off the shelf or whether, as with armoured vehicles on Mr Hayes' account, they were made to order. He did not deal with the practicalities of fitting such windscreens, readily accepting that he was not qualified to do so.

Whilst it might be objected that the defendants' evidence on windscreens is not of high quality it is, in my judgment, rather more concrete than that given by Mr Robson. There is no reason to suppose that those who dealt directly with Bukkehave failed to pass on the essence of the advice they were given. I am satisfied that it was not reasonably practicable to fit a bullet resistant windscreen to the Toyota Landcruiser in which Mr Davies was travelling before the fatal attack. It follows that the claimant has not established any causative breach of duty on the part of the defendants."

23. The written grounds of appeal are in substance as follows. Firstly, it is said that there was wholly insufficient evidence for the judge to reach the conclusion that he did. The appellant notes a number of deficiencies in the respondent's evidence, for example, despite the fact that he must have known about the consideration of providing bullet-resistant windscreens, Mr Daniels did not refer to this in his witness statement nor in his oral evidence to the coroner. This omission remains unexplained. Furthermore, the appellant claims that a host of central witnesses who were allegedly at the heart of discussions between the respondents and their suppliers about bullet-resistant windscreens were neither produced as witnesses, nor was there any evidence of attempts to secure their attendance as witnesses. There was a clear lack of documents provided by the respondents; in particular they did not produce a single document to support their contention that the bullet-resistant windscreen could not reasonably have been sourced and fitted.
24. Secondly, it is said that the evidence which the judge accepted was in the event insufficient to discharge the burden on the respondent. The appellant is highly critical of the evidence of Mr Arnold and Mr Perl, and Dr Braslavsky's written submission draws attention to quite extensive parts of the transcript of the evidence. They spoke of their understanding or experience of the consideration to fit the bullet-resistant windscreens. It is said that their evidence amounts to no more than hearsay evidence, a mere assertion without detail, evidential support or the evidence from any of the individuals involved in the alleged inquiries with Bukkehave, and that that cannot discharge the evidential burden. Bukkehave themselves were not called to say what had happened.
25. Thirdly, it is said that the judge failed to consider the central issue of whether the respondent had discharged the burden on the evidence led by the respondent but rather drew a conclusion based on a resolution of the competing evidence of the parties, and it is said that this is a fundamentally flawed approach. The appellant submits that the correct approach set out in Brown v Corus is that, once it is concluded by the judge that the deceased had been subjected to excessive levels of risk of death or bodily injury, the burden shifts to the defendant to justify why that situation was allowed to continue. It is suggested that, at paragraph 83 of the judgment which I have read, the judge sought to resolve the issue in relation to bullet-resistant windscreen by evaluating the competing evidence of the parties and that this was wrong. It is contended that the discharge of the burden by the respondents cannot be achieved merely by contrasting lay evidence on one side with expert evidence on the other, and that in this way the judge's approach was wrong.
26. The essence of the submission as I have understood it is that the quality of the respondent's evidence on the non-availability of bullet-resistant windscreens was so poor that the judge should have regarded them as having failed to discharge the initial evidential burden of giving an explanation why the windscreens were not installed. Consideration of the evidence of Mr Robson therefore did not logically arise because an appropriate adverse inference against the respondents should have been drawn.
27. Dr Braslavsky in his oral submissions contends that a distinction should be drawn between evidence of whether bullet-resistant windscreens were available in northern Iraq in June 2004, which was the issue which the judge addressed, and evidence of whether the respondents made sufficient inquiry on this subject. Although in a sense these two issues are closely related, in my view the second does not arise on this appeal. This is because the judge had held that if the windscreens had been available they should have been installed, so that the respondent's successful defence depended entirely on establishing that they were not reasonably available. The essence of Dr Braslavsky's oral submissions was as follows. He submits that the respondent's evidence on what turned out to be the decisive point amounted to nothing and was unsupported by detail or documents. It should not have been held to be sufficient to establish that bullet-resistant windscreens were not reasonably available. The point upon which the respondents succeeded was not pleaded, and although Dr Braslavsky does not maintain a pure pleading point, the point should have been regarded as an insubstantial and unsubstantiated afterthought. The fact that the appellant's evidence on this topic was unpersuasive should not have told against her when she did not come to court to meet this point. The result of the litigation should not, it is submitted, turn on whether the appellant was out manoeuvred by an unpleaded allegation. The failure to call either Messrs Spencer or Woodward, whose absence was inadequately explained, should have told against the respondents, whose evidence was so poor that it should not have carried the day.
28. Although I think there is some general force in the pleading point, I do not think that it really adds much weight to the rest of the case. Certainly the unavailability of bullet-resistant windscreens did not feature in the pleaded defence but it did, as I read them, feature, albeit shortly, in the defendant's witness statement, and Dr Braslavsky rightly did not at trial stand on a pure pleading point nor ask for an adjournment. The judge had to deal with it and the issue on the evidence before him.
29. In my judgment the judge did not, as it is submitted he did, adopt a wrong approach to the evidence. He noted the submission based on Brown v Corus, and a proper analysis of his judgment shows that he proceeded in accordance with it. In Brown v Corus the defendant had called no relevant explanatory evidence. In the present case they had that of Mr Arnold and Mr Perl. The judge said at paragraph 82 that the defendants had not remained silent in the face of the suggestion that bullet-resistant windscreens should have been fitted before 24 June. Both Mr Arnold and Mr Perl gave admissible evidence that the respondents had explored the matter with Bukkehave who were the organisation concerned with the maintenance of the vehicles. The information was that the windscreens were not available.
30. The judge accepted this evidence and regarded it as sufficient to discharge the initial evidential burden. This, in my judgment, is the effect and intent of the first sentence of paragraph 83 of the judgment, where the judge said that it was not appropriate to draw an adverse inference against the respondent. He then quite properly proceeded to evaluate the whole of the relevant evidence which came from both sides. There were criticisms to be made of the evidence of Mr Arnold and Mr Perl which the judge set out and considered. The evidence from Mr Robson was extraordinary and unsatisfactory. In the end the judge accepted the evidence of Mr Arnold and Mr Perl as sufficient to establish that it was not reasonably practicable to fit a bullet-resistant windscreen to the Toyota Landcruiser in which Mr Davies was travelling, noting that it might be said that the relevant evidence of the defendants was not of high quality.
31. This was, in my judgment, an evaluative process and a conclusion which it was open to the judge to make on the evidence. There were significant criticisms to be made of the quality of the respondent's evidence, but the evidence was given and the judge accepted it as true. Although it was hearsay it was admissible. What is more, the central proposition that bullet-resistant windscreens were not available was intrinsically likely, given evidence suggesting that the availability of even routine spares was limited at the time in northern Iraq.
32. I would certainly accept, as did the judge, that there were criticisms to be made of the quality of this relevant evidence; but I do not consider that a paper consideration in this court of evidence, which the judge heard and we have not, should lead us to conclude that this factual conclusion critical to the appeal was not available to him.
33. In these circumstances, and for these reasons, I would dismiss this appeal.

Lord Justice Longmore:

34. I agree. It is impossible not to have the greatest sympathy for Mrs Davies and her family in having to come to terms with her husband's death while providing private security services in Iraq, but the sad truth is that she cannot recover from the defendants unless they were negligent. The judge applied the right test by putting the burden on the defendants to justify the continuation of high risk to which Mr Davies was continually exposed, but whether the defendant satisfied the burden of so showing was a matter for the judge on the evidence. This court will never lightly interfere, and indeed can only interfere, if, on the evidence before the judge, he was bound to decide that the defendants had not discharged that burden. As my Lord has said, there was evidence, even if it was not as strong as it could have been, which could in law justify the continuation of the risk, namely the evidence that bullet-proof windscreens were not readily available in Iraq at the relevant time. The judge was entitled to accept that evidence, and it is not for this court, which has not heard the evidence which was given over a four-day trial, to interfere with the judge's conclusions. I too would dismiss this appeal.

Lord Justice Stanley Burnton:

35. I agree with both judgments.

Order: Appeal dismissed