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Margaret Valentine and Another v. The Ministry of Defence [2010] CSOH 40


Proof:- On 31 January 2004, sapper Robert Thomson, a member of 35 Regiment, Royal Engineers, was killed during his fourth tour of Iraq when he was crushed by earth when it collapsed on him whilst he was recovering soil samples from a trench. Here his mother and brother sought damages from the Ministry of Defence at common law, that he died through the fault of the Ministry of Defence on account of their failure to provide a safe place of work and their failure to devise and institute a safe system of work for the task undertaken. It was contended by the pursuers that the United Kingdom standards applied on account of the declared policy of the Ministry of Defence to apply these standards to construction sites abroad where reasonably practicable. Reliance was placed upon United Kingdom statutory provisions, the application of which had not been extended to Iraq, in particular Regulation 3 of the Management of Health and Safety at Work Regulations 1999 and Regulation 12 of the Construction (Health, Safety and Welfare) Regulations 1996. Here the court considered how sapper Thomson came to be within the trench as it was not clear whether he had voluntarily entered it or fallen in. The court considered, on the evidence, that it was likely he fell in while preparing to undertake the next stage of the job following completion of the excavation. The court went on to consider what should have been done to prevent that from occurring and whether there was a breach of the Ministry's duty of care to the deceased at common law or the various regulations founded upon by the pursuers. The court also considered whether the deceased contributed to any material extent to the incident. In the event of liability being established quantum was agreed.