EXERCISING THE RIGHT TO MAKE A MILITARY ACCIDENT CLAIM
Since the Crown Proceedings (Armed Forces) Act 1987, serving members of the military may be able to pursue a military accident claim against the Crown for personal injury or accident provided;
- the military accident was sustained whilst in the Armed Forces in the UK or overseas
- the military accident occurred at work or on manoeuvres
- the military accident was not your fault
Such military accident claims can be pursued whether or not the affected individual is still serving in the Armed Forces - but the claim must be issued in Court within three years of the date of the accident. This means that all the supporting documentation and evidence must be prepared within that three year period; therefore it is important to start pursuing the claim immediately after the accident, so that there's as much time as possible to prepare the case. What's more, commencing a claim right away will make collecting evidence much easier, since memories of the event will be clearer and more detailed.
In view of the recent development that military personnel fear for their careers if they sue the MOD, Squaddie Claim has now had confirmation from Baroness Taylor, on behalf of the Government that;
"The military careers of Armed Forces personnel who claim under the Armed Forces Compensation Scheme or through the Courts should not suffer as a result of that claim."
This is in response to Squaddie Claim's Parlimentary question in the House of Lords on 3rd December 2009.
Military Accidents Historically
Members of the armed forces in the past were denied the right to claim for compensation if they suffered a military injury. This all changed on the 15th May 1987, when Parliament agreed to place the Army, Navy and RAF in the same position as civilians, in that, if they had an accident at work they could claim.
I understand the logic behind this was the number of asbestos claims as a result of the Second World War from HM dockyards. Civilians and military alike worked side by side refitting ships. The boilers lagged in asbestos caused injuries which did not surface for many years. Although civilians could make a claim the military could not and Parliament recognised an injustice here. It could not have been envisaged at the time the extent to the change in the law. Now members of the Armed Forces who have suffered any military injury during their service are able to make a personal injury claim against the Ministry of Defence and there are a number of possible options to you;-
- A negligence claim
- Armed Forces Compensation Claim.
- Both the above
- Criminal Injuries Overseas Scheme
Military Accidents Negligence Claim
To be able to claim, the military injury must have occurred in the last 3 years and as a result of someone else's fault. To prove fault is a legal test and has to amount to someone being negligent.
Whilst generally you cannot sue the Ministry of Defence for military injuries sustained in a direct combat situation, the Ministry of Defence like all employers have a responsibility to protect their employees, this includes providing you with appropriate equipment which is in good working order, providing suitable training and supervision and a safe place and system of work.
Due the activities undertaken by the military, military accidents and military injuries can be sustained in many situations for example whilst on manoeuvres, during training exercises, as a result of a road traffic accident and taking part in sports and PT.
The military accident compensation you will receive will reflect your pain and suffering as result of the military injury and the emotional loss for being unable to continue in the armed forces.
On top of this if your career is affected by the military injury you can recover damages for both past and future loss of earnings, pension loss, delay or loss of promotion plus associated benefits. For example if you are unable to deploy on operational detachments as a result of your military injury then a claim can be made for any allowances you are no longer entitled to such as LSSA. Many injuries have long term effects and military accident compensation can be obtained to ensure that your needs are catered for in the future. For instance you may need ongoing medical treatment, care and assistance, adapted housing and other aids and equipment and damages can be recovered for these eventualities.
Armed Forces Compensation Scheme (AFCS)
In addition to a civil claim for compensation you may be able to make a claim under the non fault Armed Forces Compensation Scheme (AFCS) which covers all regular and reserve personnel whose military injury, ill health or death was caused by service on or after the 6th April 2005.
Unlike a negligence claim, an award may still be made via the Armed Forces Compensation Scheme if your military injury was caused during a combat situation.
A military accidents claim can be made whilst you are still serving and must be made within 7 years of the accident occurring and does not prevent you from bringing a civil claim at the same time.
If an application under the scheme is successful you will be paid a lump sum for your injury and depending on your injury you may qualify for a guaranteed income payment for life in a similar way to receiving a pension.
Some potential claimants are automatically entered into this scheme, if you are a widow/widower whose spouse has died in service or if you are medically discharged.
In these cases in particular you need to check if you also have a negligence claim as awards may be higher. If you have received multiple injuries as well the award under the AFCS is capped and you need to take advice.
Criminal Injuries Compensation (Overseas) Scheme (CICO)
This scheme was specifically introduced to compensate military personnel if you are posted overseas and are the victim of a crime of violence you may be entitled to compensation under the Criminal Injuries Compensation (Overseas) Scheme (CICO).
It ensures that you will receive compensation in the same way as those injured as a result of a crime of violence in this country. An application must be made as soon as possible and counter-signed by your Commanding Officer within two years of the date of the incident.
It is a common misconception that you cannot bring a claim for compensation against the Ministry of Defence whilst you are still serving, this is incorrect. As stated above there are strict time limits for bringing a Criminal Injuries claim and it is important to take specialist legal advice as soon as possible after the injury is sustained. Not only to protect your right to claim but to also ensure that important evidence is not lost or destroyed, to prevent witnesses from becoming untraceable and memories fading. If you have suffered an injury in the last 3 years and would like advice please contact Squaddie Claim for a free initial consultation or apply for an AFCS form or CIC(O)S application, on;- 0333 363 4562 or at firstname.lastname@example.org.