Better compensation for the armed forces in 2017?
The government's proposals on compensation for combat injuries are encouraging, but only if the potential problems are carefully considered first, explains Rhicha Kapila
The government recently launched a consultation on proposals to pay better compensation to injured soldiers and the families of those killed in a combat situation. This proposal aims to end lengthy court litigation against the Ministry of Defence over whether the department is protected by the common law principle of combat immunity.
Sir Michael Fallon said: ‘Our armed forces put their lives on the line to keep us safe. This new scheme will mean more generous payments to anyone injured – or the families of those who are killed – in combat. By making these changes we will put more money into compensation and remove the stress of lengthy legal action.’
‘As part of these reforms, the MoD will clarify in primary legislation that the common law principle of combat immunity should apply to deaths or injuries which occur in the course of combat situations,’ the department said in a statement.
Cases brought in recent years have included allegations of failing to provide proper equipment and incidents resulting from friendly fire. The Chilcot report found that Britain’s armed forces were sent to war in Iraq with serious equipment shortfalls when the conflict began. However, the majority of cases brought in the courts relate to negligence outside of combat, where the question of combat immunity does not arise.
Lord Hope, in the Supreme Court’s decision in Smith and others v Ministry of Defence  UKSC 41 (commonly known as the ‘Snatch Land Rover’ and ‘Challenger’ cases) made it perfectly clear that any decisions relating to the provisions of protective work equipment and training, and the adequacy of the same, will not be covered by the defence of combat immunity. The government’s new proposal is set to overturn this ruling.
The government’s proposals for reform are twofold:
First, former or serving personnel injured in the course of combat will be awarded compensation by the government equal to that which a court would have awarded if the MoD had acted negligently. In cases where a service person is killed in the course of combat, their family will instead receive compensation on the same basis; and
Second, the government’s position on combat immunity will be enshrined in primary legislation.
The consultation paper suggests that this would be a statutory scheme, set up under the Armed Forces (Pension and Compensation) Act 2004 (the same legislation that provides the powers for the existing Armed Forces Compensation Scheme). The extent and detail of the proposal is yet to be determined – however, any promise consistent with the Armed Forces Covenant to offer fair and better payouts to claimants must be welcomed.
That said, the proposal throws up several questions and concerns:
Who will ensure that these deserving claimants receive a fair amount of compensation, equal to that awarded by the courts? Any award made under this scheme must be sufficient to reflect potentially complex and difficult future care needs and treatment costs, especially for those with devastating lifelong injuries;
The number of appeals under the existing tariff-based Armed Forces Compensation Scheme remains high, with low payments awarded. Currently, the damages that I obtain for almost all of my clients who have been injured as a result of negligence are significantly higher than payments made under this scheme. This is not confidence-inspiring with regard to the new scheme. Even if damages are set to increase under the new proposal, compensation awarded in catastrophic injury claims often runs to hundreds of thousands of pounds, if not more. The government has a duty to claimants to ensure that these claims are arbitrated fairly;
If claims are rejected by the MoD under this proposed scheme, the claimant’s redress is by way of judicial review or by pursuing a claim for negligence in the courts. Who will represent these claimants, bearing in mind their disabilities and mental health? It will come as no surprise to learn that the MoD almost always resists liability and refuses to make reasonable payments until the conclusion of a lengthy fight when pursued in court; and
Under this new scheme, claimants will have the option to appeal to an independent tribunal if their award of compensation is insufficient. Who will advise and represent them and at what cost? Will those costs be recoverable from the MoD or will claimants have to fund them themselves, possibly from the compensation awarded to take care of their lifelong needs?
If the intention of the proposal is to reduce stressful litigation (and the consequent heavy costs burden associated with the issue of combat immunity), then these questions need to be carefully considered in 2017.
Rhicha Kapila is a partner and head of the military claims department at Bolt Burdon Kemp