Who takes the blame?

For personal injury lawyers acting for claimants in fatal accident cases, inquests can be a fruitful source of evidence for a civil claim. This is notwithstanding r 42(b) of the Coroners Rules 1984, which states that no inquest verdict should be framed in a way which appears to determine any question of civil liability. The question of whether and to what extent inquest verdicts can trespass on questions of blameworthiness and, consequently civil liability, is a particularly sensitive one in regard to military deaths. There is currently much debate in the media and the armed services themselves about whether the “military covenant” has been broken, with complaints about poor equipment, inferior housing and lack of proper healthcare for service personnel. Defective equipment is a particular concern, and many complaints have been brought into sharper focus by high-profile inquests.

Particularly newsworthy have been the inquests conducted by Andrew Walker, the assistant deputy coroner for Oxfordshire. Walker was appointed in 2006 to conduct military inquests. In the majority of military deaths, the bodies are fl own back to RAF Brize Norton in Oxfordshire. The jurisdiction for an inquest arises where the body lies and once an inquest has been opened it is not possible for it to be transferred. Hence Walker has had conduct of a succession of high-profile inquests. Inquests heard by Walker have included those relating to the deaths of Daniel Wright and Jason Smith. Wright died in a parachute accident because he was deprived of a £50 radio. Smith was serving in southern Iraq. He died from heatstroke in temperatures reaching 60°C. Walker concluded that the tragedy occurred because of “a serious failure to recognise and take appropriate steps to address the difficulty that (Smith) had in adjusting to the climate”. In these and other high-profile narrative verdicts Walker has been highly critical of the Ministry of Defence (MoD).

After the Smith inquest the secretary of state for defence applied to the High Court to quash the inquisition. The MoD argued that Walker's narrative verdict that Smith's death had been caused by a “serious failure” breached r 42(b), because it was framed in a way which appeared to determine issues of civil liability.
Human Rights Act 1998

In considering the application Mr Justice Collins had to consider the interplay between r 42 (b) on the one hand, and the obligations created by the Human Rights Act 1998 (HRA 1998) on the other. HRA 1998, Art 2 deals with the right to life. Where there has been a failure by the state or its agents to protect life, it also creates a procedural obligation that there should be some form of official investigation. An inquest may constitute the means by which the state discharges this obligation; however a verdict which does not express the coroner's conclusions about the matters being investigated may fall short of the requirement (laid down in Jordan v UK [2002] All ER (D) 123 (Dec)) that “the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests”.

The MoD contended, first, that HRA 1998 would not apply to soldiers on active service. Collins J recognised that soldiers cannot receive absolute protection from Art 2—combat immunity will apply in battle conditions. But a soldier “does not lose all protection simply because he is in hostile territory carrying out dangerous operations”. Sending British soldiers out on duty with defective equipment may breach Art 2. Applying a historical analogy, Collins J explained: “Failures to provide any adequate medical attention in the Crimean war would [breach HRA 1998], whereas the charge of the Light Brigade would not.”

Given that HRA 1998 applied, Collins J held that the inquest “must be one which accords with the procedural obligations under Art 2”. He then considered the coroner's use of phrases such as “serious failure” in the light of the prohibition laid down in r 42. The MoD argued that “a verdict which speaks of “failure” is in danger of transgressing r 42 and the addition of the adjective 'serious' crosses the line”. The judge disagreed: “The prohibition is against framing a verdict in such a way as to appear to determine any question of civil liability. The word 'determine' is important; a finding that there was a failure to act in a particular way does not appear to determine a question of civil liability. It no doubt will assist a potential claimant, but it is the evidence which is elicited which will in the end be material, not the verdict of the coroner or the jury.”
 

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