Thompsons Solicitors, the most experienced personal injury firm in the UK, summarise the types of compensation military personnel are entitled to following a personal injury. More information can be found at www.thompsons.law.co.uk or by clicking on the link to submit a claim form online.

Compensation for Injured Armed Forces Personnel

There is a great deal of confusion these days about the ability of members of the Armed Forces to pursue claims for compensation.

There are two types of “compensation” that need to be understood.

Firstly there are the “ordinary” negligence claims that can be made at civil law, ultimately by reference to the courts system in the UK. The other is the specific compensation that is available to the members of the Armed Forces under the Armed Forces Compensation Scheme [AFCS]

In terms of the civil law claims, our Armed Forces Personnel are very largely in much in the same position as other members of Society. The position many years ago was that they could not sue their employer, the Ministry of Defence. But that all changed in 1987 when, broadly speaking, they were put on the same footing as any other civilian worker.

The major exception is in times of war or conflict. That’s why we are hearing so much about the “compensation” soldiers are getting who have been injured in Afghanistan.

It is perhaps a matter of common sense that the ordinary rules of negligence applicable to the relationship between employer and employee and the provisions of the Health and Safety at Work Act 1974 and all its subordinate legislation, cannot realistically apply when members of our Armed Forces are engaging the enemy in times of war or conflict. That means that invariably when members of our Armed Forces are injured as a result of war or conflict, they cannot sue the MOD in negligence in our courts in the ordinary way, even if serious mistakes have been made by the MoD.

This is what the lawyers describe as the principle of “combat immunity”.

It is important that those members of the Armed Forces, wherever they are injured, seek expert legal advice as on occasions the injuries they have sustained, in places like Afghanistan, in reality have absolutely nothing to do with the conflict as such. And, where there is negligence, a proper civil claim can and should be made.

For example, where a soldier negligently fires his weapon back inside an accommodation facility injuring his colleague, that injured soldier can pursue a civil claim against the MoD for the negligent act of his fellow soldier and recover full damages at civil law for his injuries and losses.

However, putting to one side for one moment thoughts of pursuing negligence cases, the Armed Forces Compensation Scheme [AFCS] which was brought in in 2005, does provide financial redress and remedy for injured service personnel.

AFCS is relevant for our armed forces personnel in times of peace and in times of war. It covers both.

AFCS is a no fault scheme and, unlike its predecessor, the War Disablement Pension Scheme [War Pension], members of our Armed Forces can make applications under the scheme whilst they are still serving. The Armed Forces Compensation Scheme is in many ways a very considerable improvement upon the War Pensions system it replaced, despite the recent criticisms of it in the media.

The system is tariff based and, in respect of the part of a claim that deals with pain suffering and loss of amenity, the AFCS award attempts to reflect the amount of the award that would be made available to a civilian victim at common law in a non military situation in the UK.

So, a civilian car passenger in the UK, be they a student, a nurse, a house-husband or other, sustaining a “simple” leg break in a road traffic accident might receive compensation for that injury in the range of £5,750 to £9,000.

A soldier, who sustained the same injury jumping down from an Armoured Personnel Carrier in Afghanistan to escape an attack by the Taliban, can expect to receive the same level of compensation for the same injury under the AFCS.

The same applies to the more serious cases. Cases of complete paralysis warrant awards of several hundreds of thousands of pounds.

The difficulty is that where there are multiple injuries, the full value of all of those several injuries are not fully recoverable under the AFCS whereas, the civilian in the UK car accident, can be compensated for all the injuries, subject to some allowance where two or more of the injuries genuinely overlap.

The other major difference, and the most important difference, is in how things like future care costs, accommodation and future loss of earnings are dealt with.

In simple terms, for the more serious injuries under the AFCS, a victim will receive a Guaranteed Income Payment or “GIP” which is a crude mathematical formula that attempts to recognise the future impact of the injury in terms on ongoing expense or loss.

In a civil claim, all those types of future losses and expenses are properly calculated and capable of being recovered in full. This difference between what is recoverable in a successful civil claim as compared with a payment out under AFCS can, in cases of those severely injured, run into several hundreds of thousands of pounds and even more in the cases of utmost severity.

Where a member of the Armed Forces is able to establish negligence and where the principal of combat immunity does not apply, (i.e. injuries being sustained in conflict) then in those circumstances, they are able to sue for the full value of the claim.

Damages [or “compensation”] at common law can be significantly higher than an award obtained under the AFCS.

Under the civil law, if liability is admitted or proved, not only will that injured person be able to recover damages for his or her injury, he or she will also be able to recover damages for any impact that such injuries may have had in other financial terms to include the disruption to their career progression or the termination of their service, and then their post discharge future loss of earning capacity, which can often be very significant indeed, and their care needs.

One of the major misunderstandings amongst Armed Forces Personnel is that the AFCS represents their only form of redress. That may be true in certain circumstances where there is no actionable case in negligence, but failure to investigate the possibility of a civil claim, which can be made in addition to an application under the AFCS, can often be very costly indeed.

A serviceman or servicewoman can do both. They can make an application under the AFCS and still sue under the civil law as well.

They will need expert legal advice to decide which route to take. They cannot be compensated twice so if a civil claim is successful, credit will have to be given for any award made under the AFCS. However in many cases the civil award can be significantly higher which makes pursing a civil claim very worthwhile.

There are time limits that apply to both the AFCS scheme and to the civil law claims.

Under the Armed Forces Compensation Scheme, claimants have five years from the happening of an accident in which to submit an application to the Services Personnel & Veterans Agency.

For ordinary claims under the civil law, the ordinary rules of limitation apply. This means that a Claimant will either have to resolve his or her claim for compensation in three years of the accident happening, failing which they must start off Court proceedings to prevent the claim from becoming statute-barred i.e. out of time.

It is essential therefore that injured personnel should seek early expert legal advice to ensure that they receive their full entitlements at Law.

Submit a claim form now, text CLAIM and your name to 82010 or call free on 08000 224 224 to speak to an advisor. Thompsons Solicitors are experts in claims for military personnel and the most experienced personal injury law firm in the UK.

Information provided by Andrew McDonald, Military Claims Coordinator at Thompsons Solicitors

2^nd September 2009

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