A matter of trust
Against the background of a significant increase in injury and illness in the armed forces, Ahmed Al-Nahhas highlights the common features of military claims
I have been privileged to act for the armed forces community for the majority of my career, bringing claims in negligence for service personnel, veterans and their families against the Ministry of Defence (MoD).
There are a number of common features that arise in military claims. Lawyers who do not practice in this field might benefit from general guidance when called on to act for those who are in the armed forces.
Service personnel are, on the whole, widely travelled; driven; trustworthy; and able to see the funny side in almost any situation – and often the very worst of situations.
Not all of them would have served in combat, but most will have been pushed to the limits of their physical and mental endurance.
They will tell you that service is like being part of a family and that their service is an essential part of who they are. This may make it hard for them to contemplate bringing a claim against the MoD.
Service personnel are not employees in the legal sense, but the MoD owes them a duty of care that is analogous to that of an employer. They have limited rights in the employment tribunal. For example, they cannot bring a claim for breach of contract but they can make a claim for discrimination.
All service personnel are prohibited from speaking to journalists and or the media without authorisation from their chain of command. Their use of social media is also increasingly scrutinised.
As you might expect, service personnel are typically stoic and will tend not to complain about pain or their particular symptoms.
This may mean that their medical records do not show the complete picture of their health. Also, they will often present with a history of medical conditions ranging from musculoskeletal (very common) to psychological (less common but grossly under reported).
In my practice, for example, I will typically come across an injured service person who is in the process of being medically discharged.
They may find themselves moving from a life of being a supremely fit individual with a career path and a future, to a life of physical, psychological and financial uncertainty. This process can be very challenging for them and their loved ones.
The armed forces community is tight knit and, at least historically, has been inward looking. You will not be trusted and witness evidence will be hard to come by. Personnel who do continue to serve will be reluctant to say anything that might endanger their own careers.
This means developing your network within the armed forces community will be crucial to the enquiries you make on behalf of service personnel. Personnel normally serve under a lengthy term of engagement, or a commission in the case of an officer.
Careers can span more than twenty years. With service comes a plethora of benefits including subsidised accommodation, a decent salary and an excellent pension. You will often need experts to help quantify these losses.
Service personnel are entitled to statutory compensation for the injuries they have suffered as a result of service. Compensation may be secured by applying through the Armed Forces Compensation Scheme (AFCS) which is a no-fault government run scheme. These claims must be made within seven years of the injury.
Since 1987, personnel have also been entitled to make a claim in the civil courts for breaches of common law and or statutory duty.
For example, they can claim for failures to maintain a safe system of work and or equipment, as well as failures to properly carry out risk assessments where these lead to injury and loss. Such failures can occur in training and the MoD accepts that the latest figures for training accidents are rising. This is worrying.
Service personnel deserve our respect for the sacrifices that they make. Invest your time with them and you will find them to be among the most loyal and endearing of clients.
Ahmed Al-Nahhas is a partner and head of the military group at Bolt Burdon Kemp boltburdonkemp.co.uk
