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Armed Forces Compensation Scheme & Personal Injury Claims For Armed Forces Personnel

There are almost 200,000 UK armed services personnel, which means that the MOD is a major employer, and like any employer has a duty and responsibility to its personnel. There is also the possibility of injury arising from other 3rd parties, just the same as for all members of the public, such as road traffic accidents, medical negligence or public liability claims.

Personal injury claims brought on behalf of armed forces personnel bring a number of complexities, both in relation to legal liability and quantification of loss, particularly in cases of significant injury which either impair or end a military career.

By virtue of the principle of Crown Immunity, claims could not be brought against the MOD by serving personnel until the principle was repealed in 1987. The present position is that no claim can be brought by a member of the armed forces in respect of tort(s) arising during service prior to February 1987. Cases previously defeated by Crown Immunity are now likely to be fewer in number as there are unlikely to be many remaining armed forces personnel who were in service before February 1987.

In cases against the MOD it is important to determine whether the situation gives rise to a duty of care on the part of the MOD and if so, whether that duty has been breached, however it should be noted that each case will turn upon its own facts and an assessment of same by a solicitor and or counsel.

From April 2005, service personnel who have sustained injury whilst on duty have been able to claim compensation through the Armed Forces Compensation Scheme (AFCS). This is a ‘no fault’ scheme and therefore the injured person does not have to prove liability on the part of the MOD., though it is advisable to seek legal advice as to whether the circumstances of the accident are outside the scope of the AFCS.

Claims made through the AFCS must be brought within 7 years of the date of incident, compared to the 3 year time limit for bringing a civil claim through the courts. The AFCS does not prevent a civil claim being brought against the MOD alongside the AFCS claim, however it should be noted that AFCS compensation awards can be offset against any compensation paid to the injured person in a civil claim against the MOD arising from the same incident.

It should be noted that AFCS awards are based upon a set tariff and may not adequately compensate a claimant for all aspects of their injuries and losses, which would be properly assessed in the preparation of a civil claim brought through the courts.

Should an accident have an adverse effect upon a military career, the value of these claims can be significant and therefore require a solicitor with understanding of military career structure, remuneration and pension schemes, though the detail of quantification is generally the subject of expert evidence.

The expert will have to assess and provide an opinion as to the claimant’s career prospects but for the occurrence of the accident. The Claimant’s service and medical records will therefore be crucial in such cases.

The assessment of a claimant’s career prospects is dependent upon: intended length of service; periodic physical and mental fitness assessments (referred to as PULHEEMS assessments); disciplinary record; records of appraisal.

If the claimant’s military career prospects are curtailed or ended entirely, awards of damages for loss of earnings and pension can be significant, particularly to a claimant who is invested in a long term career up to full 24 year engagement and who may also be considered a strong promotion candidate.

Armed Forces pensions are, in general terms, linked to that member’s earnings and therefore loss of pension claims can be substantial. There are a number of pension schemes dependent upon the date of enlistment, some of which are based upon final salary, however the more recent schemes provide pensions and lump sums based upon earnings throughout their career. The various schemes and the basis of calculation highlight the importance of expert evidence in these cases.

Other allowances or benefits may also increase the value of the loss of earnings claim, such things may include: accommodation; overseas operational allowances, campaign continuity payments for long assignments.

It is therefore crucial that members of the armed services seek expert legal advice at an early stage if they have suffered personal injuries, either caused by the MOD or a third party, in order that careful preparation of the case may be undertaken.

With a specialist personal injury and medical negligence team combined accessible in our office in Catterick Garrison or Darlington, if you have suffered an personal injury and want to seek further advice, contact your nearest office today or email enquiries@clarkwillis.co.uk and we will call you to discuss your circumstances.

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