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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principle of Crown Immunity, claims could not be brought against the MOD by serving personnel until the principle was repealed in 1987.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.

Accidents at Work – Employers legal obligations remain during Covid-19

The Covid-19 outbreak has brought unprecedented challenges to our lives, both at home and at work.

Many industries have shutdown operations and/or furloughed their staff whilst lockdown is in place, whereas a great many other businesses remain operational and have increased recruitment to cope with increased demand. Retail and FMCG (Fast Moving Consumer Goods) production are good examples of businesses which have seen increases in profit and headcount during this crisis.

The fact that there is an ongoing public health emergency does not override the legal obligations placed upon in respect of employee safety. Employers continue to be placed under a number of statutory duties, including:-

  • Ensure the safety of the workplace and equipment within it.
  • Produce an assessment of the risk(s) posed to the health and safety of employees and make employees aware of those risk and how they should be reduced or avoided.
  • Provide appropriate lifting aids to eliminate the need for manual handling, if possible.
  • Implement measures to reduce the amount of manual handling carried out by employees
  • Provide PPE where required
  • Provide training and comprehensible instructions in respect of the work required and any potential risk to the employee’s health and safety
  • Provide suitable access equipment and safety measures where the work is carried out at height
  • Implement suitable safety measures to reduce risk to employees dealing with hazardous substances
  • Keep records of accidents occurring within the workplace
  • Report accidents to the HSE where the same meets the reporting criteria.

 

There is perhaps a temptation on the part of employers to put temporary employees to work as soon as possible, without providing the level of training, work equipment or PPE given to a permanent employee, however the law precludes this and requires the same standard of care be given to temporary employees as their permanent counterparts.

Furthermore, an employee who has not received proper training and instruction can be a danger to their colleagues and a potential liability to their employer. Would you allow an employee to use a piece of equipment such as a baler or fork lift truck if they have not been properly trained to use it?

It is also in the national interest for employers to ensure that they meet their legal obligations to take care of key workers in order to ensure that increased demand for their goods and/or services can be met and secondly, to reduce further potential strain upon the NHS caused by injuries to employees requiring treatment.

Whilst on the one hand, it is positive that businesses are recruiting to meet demand and help with the extraordinary national effort to overcome the current crisis, however it must also be remembered that key workers should be looked after and treated with the standards of care set out by the law.