Working for the armed forces, even in a civilian role, is something which comes with an accepted level of risk. Whether they are training, using dangerous equipment or actually engaging enemy forces on the battlefield, members of the British Army, Navy and Air Force are fully aware of the fact that they run the risk of being injured or even killed, and are willing to accept this risk due to their sense of duty.
What mustn’t be allowed to happen, however, is for this sense of duty to be abused by employers not taking all reasonable steps to keep their employees as free from harm as possible. In the heat of battle, when clashing directly with the enemy, armed forces personnel are right to accept a certain level of risk; what they don’t have to accept, however, is any injury or illness which arises as the result of negligence on the part of their employer, in the case the Ministry of Defence (MoD).
Although the rules around personal injury claims involving the military are slightly more complex than those in other walks of life, the basic underlying principle remains the same. Like any employer, the MoD has an obligation, under the Health and Safety at Work etc. Act 1974, to ensure that the environment in which their employees are working is as free from risk as possible.
Originally, under the auspices of the Crown Proceedings Act 1947, members of the armed forces had no right to launch a claim for negligence against the Crown, in the form of the MoD. This changed in May 1987, however, when members of the armed forces were placed in the same position as people working in other walks of life, which is to say that they are now allowed to pursue negligence claims if they feel that their employer has behaved in a negligent manner or breached established health and safety standards, and that this negligence has resulted in illness or injury. One anomaly of this change in the law is that members, or ex-members, of the armed forces who have gone on to develop an illness, such as asbestos-related breathing problems or hearing loss, which they feel was caused by negligence on the part of the MoD prior to 1987, can still not launch a claim for compensation.
The major exception to the general law applying to military negligence claims revolves around the concept of ‘combat immunity’. This states that there are no grounds for a negligence case if the person injured was injured whilst directly engaging the enemy or preparing to do so. As can be seen, however, the concept of combat immunity, and the scope covered by it, occupies something of a grey area. Its intention is clearly to provide maximum operational flexibility on the battlefield, but its application to other areas of military life – such as the provision of equipment which is fit for purpose – has run the risk of limiting the rights of military personnel to launch negligence cases.
In a recent case, Smith and others v Ministry of Defence , the Supreme Court considered the claims of the families of several service personnel who had been killed whilst on duty in Iraq. The judges found that the concept of combat immunity should not be extended to cover areas such as negligence during training and pre-deployment or around the provision of equipment and technology. Consequently, the families were free to continue pursuing their negligence claims.
The complex question of when a combat situation officially begins, and at what point the concept of immunity kicks in, is just one of the reasons why anyone injured whilst serving their country, who feels that they’ve been let down by their employers, should consider making a claim for compensation, and should do so via the expert advice of a personal injury lawyer. In simple terms, the duties of the MoD include the following:
The fact that there is a strict 3 year time limit on claims – meaning they have to be launched within 3 years of the incident which caused the injury – means that any claim should be launched as quickly as possible. In the case of a long term illness, such as noise induced hearing loss, the 3 year limit is counted from the date upon which the illness or condition is diagnosed and the link between it and the time spent in the military established.
The nature of a life in the military, and the sacrifice it so often involves, can sometimes leave people reluctant to pursue negligence claims against the MoD. There are two good reasons to do so, however; firstly, any compensation awarded will enable the injured party to get on with the rest of their life, whilst also protecting them from the long term financial ramifications of their injury, and secondly, safety standards across the board will be raised if examples of the MoD making mistakes are brought to public attention in this way. Thus a person claiming compensation from the MOD may be helping to save other people’s lives, as well as beginning to put their own back together.
The Armed Forces Compensation Scheme (AFCS) is operated by the MoD and, despite its name, should not be construed as a replacement for claiming compensation through the courts. Under the AFCS, a member of the armed forces who is injured, suffers an accident or becomes ill as a direct consequence of their service is entitled to a payment based upon the type and severity of their illness and a Guaranteed Income Protection (GIP) payment, which is intended to compensate for the effect any injury might have on their future earning capability. Unlike civil compensation claims, the award is not based upon the principle of demonstrating negligence on the part of the MoD, and also deals with combat based injuries.
The awards handed out under the AFCS are decided on the basis of a fixed tariff, and do not include an amount intended to compensate for expenses arising from the injury. Even if you have been awarded, or are in the process of applying for, an award under the AFCS, you are still perfectly entitled to launch a negligence claim, although any monies awarded will be adjusted to ensure that you are not, in effect, compensated twice for the same injury.
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