Water & Environment Magazine Feb 2005

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Information about Water & Environment Magazine Feb 2005

Published on March 16, 2016

Author: MatthewWaltonKnight

Source: slideshare.net

1. 6 Februar y 2005 WEM WEM February 2005 1 WEMWater & Environment Magazine February 2005 Volume 10 Number 2 Is the MoD getting itself into deep water? Inside: Could they really sue us for doing that? Squeaky green A big splash Walk in the park Up on the roof Drugs on tap WEM Feb 2005 27/1/05 5:56 pm Page 1

2. COULD THEY REALLY SUE US FOR DOING THAT? WEM Feb 2005 27/1/05 5:57 pm Page 4

3. It is hot, 50o C 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 UK Ministry of Defence (MoD) for the health hazard or the environmental damage resulting from illegally dumped British Army sewage sludge? He poses the question having watched illegally dumped sludge flow into channels from which he knew children drank. WEM Feb 2005 27/1/05 5:57 pm Page 5

4. 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

5. 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

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