6 Februar y 2005 WEM WEM February 2005 1

WEM Water &EnvironmentMagazineFebruary 2005 Volume 10 Number 2

Is the MoD getting itself intodeep water?

Inside:Could they really sue us for

doing that?Squeaky green

A big splashWalk in the park

Up on the roofDrugs on tap

WEM Feb 2005 27/1/05 5:56 pm Page 1

COULD THEYREALLY SUE USFOR DOING THAT?

WEM Feb 2005 27/1/05 5:57 pm Page 4

It is hot, 50oC in the shade hot and I sit here re-

reading the warning notice I have just served

on a sewage suction tanker that had dumped

its load of sewage sludge on the roadside

rather than at Hamden Sewage Treatment

Works in Basra, Iraq. I do not know from where

the tanker collected its load, maybe from a

civilian cesspit, maybe from a British Forces

base, certainly we employ tankers of this type;

however, in this new sovereign Iraq that is

growing around us, I wonder that if they could,

would the Iraqi people sue us for the health

hazard or for the environmental damage that

suction tanker had just caused if it was working

for the British Army?

As we all know, sewage can be a significant

hazard to human health. Worldwide nearly 2

million children die each year from diarrhoea

and at any one time nearly 1.5 billion people

suffer from parasitic worm infestations. A

cholera outbreak in Peru in the early 1990s cost

their economy US $1 billion in lost tourism and

exports in just ten weeks. These events all stem

from faecal contamination; the principal means

of preventing events of this type is through the

safe disposal of sewage, something that was

barely occurring in Basra in 2004.

The British Army frequently has to operate

within a culture of litigation. In Northern Ireland,

my current place of work, claims abound for

alleged harassment, verbal abuse, damages,

illegal arrest and detention; although these are

directed more at the infantry than the Corps of

Royal Engineers. In Iraq, claims of this type are

starting to be directed at Coalition Forces.

Recent legal cases demonstrate that UK

based organizations, even the MoD, face the

prospect of being pursued in the UK courts for

WEM February 2005 3

In a new sovereign Iraq, Major Matthew Walton-Knight*wonders that if the Iraqi people could, would they sue the UKMinistry of Defence (MoD) for the health hazard or theenvironmental damage resulting from illegally dumped BritishArmy sewage sludge? He poses the question having watchedillegally dumped sludge flow into channels from which heknew children drank.

WEM Feb 2005 27/1/05 5:57 pm Page 5

damages if they cause death, injury or

environmental damage overseas. Although a

claim may be unlikely when conducting a

peace support operation, it would not be

impossible. A pragmatic policy to minimize

litigation is to apply UK standards where

reasonably practicable in addition to

complying with relevant local standards; this is

the current approach of the MoD.

The problems of dealing with sewage

sludge are complex; it consists of organic

material and pollutants that will decompose

and become offensive, and it also has a very

high concentration of pathogens. The current

military method for sewage sludge disposal in

the British Army is to employ a private

contractor from the host nation to deal with

the matter. Despite strict contractual

obligations that require contractors to dispose

of sewage sludge correctly whilst on

expeditionary operations, sludge is frequently

discharged untreated onto land or into rivers;

regrettably, I have observed this in Bosnia-

Herzegovina in 1996, 1997 and 2000, in

Macedonia in 1998 and 1999, and in Iraq in

2004, and this has been seen by others in

Kosovo in 1999. In its current form, this

approach is untenable, not only because it

creates a significant human health and

environmental hazard, but also because it

contravenes the duty of care requirements of

both the UK Environmental Protection Act and

the MoD Waste Management Guidelines. In

future, perhaps sludge disposal equipment

should be included in all expeditionary military

camp systems.

People can be litigious, especially when

large amounts of money in damages are

potentially available. Despite the MoD

simplifying its position by deciding that it will

apply UK standards where reasonably

practicable and additionally to complying

with any relevant host nation standards, it

would be interesting to investigate its likely

position if faced with litigation.

Generally, a country has jurisdiction over the

activities of the organisations functioning

within it, unless an organisation has a special

status, such as diplomatic immunity or through

a Memorandum of Understanding, as would

typically occur on expeditionary military

operations. Therefore an organisation should

comply with local legislation and standards

unless agreed otherwise. However, according

to Leigh Hay & Co a party could bring a claim

for damages due to negligence to any court

and it would be for the court to decide if it

had jurisdiction. If it could be shown that UK

courts should accept jurisdiction over an

organisation when functioning outside the UK,

then a UK court could consider the case. A

UK court would then apply an accepted UK

standard of duty of care when determining

any award.

Claims of this type seek to hold the parent

UK organisation, in my case the MoD,

responsible for the injuries caused, rather than

any in-country subsidiary or military formation.

Claims may be brought in this way because

the subsidiary is no longer in existence or has

no assets, so a claimant would have no other

means of redress. There must also be a

genuine argument that the parent

organisation was in control of the overall

function of the subsidiary and could

reasonably be said to be responsible. The

claims adopt ordinary principles of

negligence, which are founded on the

principle that you owe a duty of care not to

harm your neighbour.

So what is negligence? The general

principle of negligence was established in the

case of Donoghue v Stevenson in 1932, in that

‘you must take reasonable care to avoid acts

or omissions, which you can reasonably

foresee would be likely to injure your

neighbour’. Typically an action for negligence

WEM February 2005 5

WEM Feb 2005 27/1/05 5:57 pm Page 7

depends on three criteria: a duty of care is

owed to the plaintiff; the defendant is in

breach of that duty of care; and, foreseeable

damage has resulted as a consequence of

that breach.

These claims follow the common law rule

that an organisation is sued in its home base

‘as of right’. However, in the UK there is a legal

doctrine known as ‘forum non conveniens’

that allows a party sued in the UK to argue

that the claim should be ‘stayed’ and so

brought in an alternative country. This is often

used tactically to either delay a claim or to

prevent it occurring at all. A decision on

whether to stay a claim would be based on

whether the alternative country has a fair

judiciary where claimants would receive

justice, whether funding is available to

conduct the case locally and on the location

of the witnesses. Many other European

countries do not recognise this doctrine and

in future with greater European integration,

Leigh Day & Co believes that it may no longer

be possible for UK courts to stay claims.

Recent cases, such as Cape Plc 2000 (a

precedent setting negligence case by 3000

South African miners suffering asbestosis

against 25 British mining companies that the

UK Law Lords ruled could be heard in the UK

with British Legal Aid), the Kenyan Massai

(where the MoD settled a £4.5 million

negligence claim for injuries caused by

ordnance left on military ranges in Kenya

which was settled out of court) and the

Bangladesh BGS Arsenic Case demonstrate

that UK organisations face the prospect of

being pursued in UK courts for damages for

negligence if they cause death, injury or

damage when operating overseas. If an

individual could prove that they were injured

by your actions, or the actions of those

working under contract for you, through the

release of inappropriately treated sewage

effluent into the environment they could have

a claim against you. Injuries could include

diseases such as an increased incidence in

parasitic worm infestation, or perhaps

someone might show that their environmental

interests had been damaged, such as by the

loss of livelihood through a reduction in fish

stocks due to sewage pollution, and so bring a

claim. However,‘fortunately’ for the MoD,

environmental claims for negligence are more

difficult to win in UK courts than personal

injury claims.

So, could they sue us?In the view of Martin Day of Leigh Day & Co a

claim for negligence when conducting

humanitarian relief, and consequently peace

support operations,‘would be unlikely but not

impossible’. Protection comes from adopting

a pragmatic policy of applying UK standards

where reasonably practicable, of complying

with relevant host nation standards and most

importantly of enforcing those standards.

If a private contractor employed by the

British Forces in Iraq was dumping sewage

sludge illegally and caused injury to health or

environmental damage, then the MoD could,

it seems, be sued for negligence in a UK court

by an Iraqi using British Legal Aid. The MoD’s

defence might be based on showing that

British Forces were trying to enforce standards

through initiatives such as the warning notice

served by my 5th Field Squadron. However,

other than the Kenyan Massai Case, I have yet

to find a pollution-based claim that has been

successful; all to date appear to have been

stayed (which may soon no longer be

possible) or have failed on a legal technicality.

Perhaps what is really saving us in the MoD, is

that the Iraqis like the Bosnian, Kosvoas and

Macedonians before them, have yet to realise

that they could sue us; it might be most

interesting and potentially quite expensive,

when realisation dawns.

The British Army is not alone in operating in

potential litigious environments. Military

peace support operations are not particularly

different to humanitarian relief operations, and

so the risk of litigation following actions that

leave health hazards or environmental

damage, however good the overall intentions,

could easily be faced by any UK humanitarian

relief agency. The case against BGS should

make us all aware of our responsibilities and

ensure that we do not endanger others by our

actions.

*Major Matthew Walton-Knight BEng MSc

CEng EurIng MICE MCIWEM RE has just

completed his two year tour as Commander

of the 5th Field Squadron Royal Engineers - a

160 man military construction company.

After deploying to Bosnia-Herzegovina,

Bradford (providing the fire and rescue

service to the City during the Fire Brigade’s

strike), Canada, Kenya and South Africa, he

took his Squadron to Iraq in April 2004, which

is where this article was first written. In Iraq,

among its general construction

responsibilities, his Squadron was the military

lead on progressing the development of

Southern Iraq’s water supply and sewage

disposal infrastructures. In August 2004, Major

Walton-Knight handed over command of

the 5th Field Squadron and moved to

Northern Ireland where he now commands

the 535th Specialist Team Royal Engineers -

a 40 man multi-disciplinary engineering

consultancy. As he leaves the Army next

year, all offers of employment are

appreciated; he can be contacted at

25engreg-streoc@defence.mod.uk.

6 Februar y 2005 WEM

WEM Feb 2005 27/1/05 5:57 pm Page 8