How can I make a claim for compensation due to an injury suffered as part of my employment in the military?
Ministry of Defence
All persons who are part of the military in England and Wales are employed by the Ministry of Defence.
The Ministry of Defence is like any other employer and therefore has a responsibility to protect its employees from injury or illness at work wherever this is possible.
In most cases the Ministry of Defence is subject to the same regulations that protect employees, contractors and visitors and must be sure to provide a safe workplace, well maintained and suitable equipment with sufficient training and instruction to use that equipment along with sufficient protective wear as required for certain forms of equipment.
Crown Proceedings Act 1987
Prior to the Crown Proceedings Act 1987 members of the armed forces were unable to sue the military for injury caused due to the negligent acts of the military. Following the enactment of the Crown Proceedings Act 1987 it is now possible to pursue a negligence claim against the Ministry of Defence in much the same way as against any other employer.
As many members of the armed forces have been negligently exposed to asbestos causing them severe illness – this is a claim which many soldiers have made. However, due to the symptoms of asbestos related injuries happening a long time after the initial exposure it is important to note that a claim cannot be made for asbestos exposure prior to 1987.
What are the types of accident that are likely to affect military personnel?
The types of accidents that are likely to affect military personnel are as follows:
- Equipment failures
- Firing range injuries
- Road accidents
- Helicopter accidents
- Parachuting accidents
- Accidental discharge
- Sporting injuries
- Accidents involving explosives
- Training exercises
- Mountain climbing
- Naval accidents
- Accidents involving hazardous chemicals
- Criminal injuries
- Cold weather injuries
- Negligent discharge of weapons
- Injuries Sustained Outside of Conflict
Most injuries which will occur to personnel of the armed forces will occur outside of conflict.
What happens if the injury was sustained during active conflict?
If an injury was sustained during an active conflict it will be extremely difficult to bring a successful civil claim due to the principle of combat immunity. Combat immunity is likely to apply when enemy forces – or insurgents – are engaged and where service personnel are under attack or are preparing for attack.
What if the injury sustained is not related to combat?
The law concerning medical injuries suffered in war zones is extremely complex meaning that each case should be assessed on an individual basis. Injuries that occur in a war zone but that are not related to combat, or the preparation for combat in any way may be able to bring a successful claim for negligence. If this is to be the case the compensation claim will be processed in the normal way.
Can I bring a claim for clinical negligence against the medical provision provided by the armed forces?
- If you suffer an injury during your time with the armed services regardless of whether this is sustained in combat or not then it is likely that you will be provided with medical treatment by the medical staff provided by the Ministry of Defence. These medical staff should provide the same level of treatment as any other medical establishment – they are therefore subject to the same duty of care as any other medical professional.
- Therefore a claim for clinical negligence can be brought if the level of care you receive is below acceptable standards and you suffer harm as a result.
- The procedure for bringing the claim against the Ministry of Defence is however different than against a normal medical professional so it is likely that you will need to seek expert legal advice in this area.
What are requirements in bringing a personal injury claim against the Ministry of Defence?
In each case medical evidence will be required. As is often the case in relation to a claim being brought due to exposure to a particular substance then expert medical evidence may be required to prove that the disease has occurred as a consequence of exposure.
- You must ensure that you bring your claim immediately to ensure that the time limits on your claim have not expired.
- Claims in negligence against the Ministry of Defence are subject to the standard 3 year time limitation period for personal injury claims.
- Claims which are brought under the Armed Forces Compensation Scheme have a limit of 5 years. This occurs either from the date of the accident or the date medical advice was sought in relation to a condition not caused by a particular incident – for example continual exposure to a particular substance.
Cases heard on an individual basis
Each military case will have to be heard on an individual basis as some injuries may occur in a war zone which has nothing to do with engaging with the enemy or preparing to do so.
Board of Inquiry
In the event of a serious injury, unnatural death or any other occurrence that is considered to require investigation occurs to a member of the armed forces a Board of inquiry (BOI) or Regimental Inquiry will be made.
This is a statutory form of service which is carried out in accordance with the Queens Regulations.
Who is the inquiry open to?
The inquiry will not be open to members of the press or the public.
What is the purpose of the inquiry?
The BOI is not a court and is not there to attach blame for the incident, with the main purpose being to establish exactly what happened and why so that future instances can be prevented.
Armed Forces Compensation Scheme
What is the Armed Forces Compensation Scheme?
- For cases where an injury occurred of an illness started after April 2005 there may be the possibility to pursue the claim through the no fault Armed Forces Compensation Scheme.
- There is no need to prove that anyone was at fault and compensation will be paid under the scheme according to how severe the injury or illness sustained.
- The scheme covers war like incidents and terrorism with compensation being awarded on a fixed tariff.
Do I have to wait until I am discharged from the armed forces to make a claim under this scheme?
Applicants do not have to wait until they are discharged from the armed forces to make a claim under this scheme.
If I am claiming under this scheme can I still make a claim in the civil courts for negligence?
Claiming under the scheme does not prevent an injured person bringing a claim in the courts. In certain cases the compensation which could be obtained through a civil action would be greater than that through the Armed Forces Compensation Scheme.
War Pension Scheme
If the injury was suffered or the illness started before April 2005 then compensation will be able to be claimed through the War Pensions Scheme. However, you will only be eligible for compensation through this scheme once you have been discharged from the armed forces.