Why claims against the MOD are soaring

There has been a significant surge in claims brought by service personnel (and former service personnel) against the Ministry of Defence (MOD) in recent times. Indeed, the MOD appears to be one of the most frequently seen defendants in personal injury claims at present.

In FY 2023/24, there were 14,323 employer’s liability claims brought against the MOD. This is a steep rise on the 2,000 - 5,000 or so EL claims seen in each of the previous four years. A large number of these are noise induced hearing loss claims.

The quantum section below is also relevant to ‘non-military’ cases (such as a road traffic accident) involving service personnel – especially if a loss of career is the result.

The Fundamentals of a Claim

Personal Injury claims against MOD follow the same path as any other – is there breach of a duty; does causation follow; and, if so, quantum. However, there are some features which need to be considered that may not be present in civilian claims.

Duty of Care

Strictly, the relationship between service personnel (SP) and MOD is not that of employer/ employee. Rather, it is considered to be a form of service to the Crown.

Section 48(3) Health and Safety at Work etc Act 1974 specifically sets out that persons ‘in the service of the Crown’ should be treated as employees for regulations made under the Act.

Although this provision may not directly apply in post-Six pack common law personal injury claims, the author’s experience is that MOD will admit that a relationship akin to that of employer/ employee exists.

Context

Notwithstanding the above, it is worth considering the general relationship between MOD and an individual SP, the extent and context of which is very different from a typical employer/ employee relationship.

Routinely, SP will not only complete their daily duties for the MOD but also live on MOD establishments, or in MOD-owned Quarters.

Changes of role  or location are frequent, with individual roles within the Armed Forces typically lasting about 2 years.

In addition, exercises and operations can take SP around the world conducting all manner of roles.

As to the general organisation – clearly the military has a very clear rank structure, and responsibility up and down the chain of command should be easy to ascertain.

Further, whereas an employee in a civilian role may be contractually obliged to follow directions from his/ her employer, SP ordered to undertake tasks will face sanctions under military law for failing to do so.

Whether an issue is handled on a Tri-Service or Single-Service basis can affect personnel processes relevant to PI claims, including training, duties and promotion.

SP are typically younger and physically screened, which affects fitness standards and medical discharge risk. Service personnel are a medically pre-screened cohort, with even modest conditions often barring entry. This means they generally begin service healthier than average, which is relevant when assessing causation and the impact of injury.  Of course, over time, members of the Armed Forces are liable to pick up the same constitutional conditions, injuries and ailments as for any member of the general public. But the starting point is that (other than for the injury/ accident which forms the personal injury claim) SP are likely to be generally healthier than the average across the wider population.

Military cases also often have voluminous levels of disclosure – though at present this may be after a long wait given the current levels of claims MOD are dealing with.

It can also be difficult to decipher some of the documentation to those not used to ‘military-speak’. For instance, MOD disclosure often uses abbreviations, rank identifiers and terminology unfamiliar to civilian practitioners, which can add a layer of interpretation to early case assessment.

Two Exceptions

Owing to historic Crown Immunity, any claim (or part of a claim) which pre-dates 15 May 1987 will not be recoverable. Unlikely to be relevant to an ‘accident’ claim, but not uncommon in an occupational disease case.

Likewise, Combat Immunity may apply to actions taken on operations themselves. The breadth of such exception is a factual matter in the case at hand. Training for operations, even in theatre, is unlikely to fall within such an exception.

The Standard of Care

So where does that leave the standard of care?

Broadly, it would be the same as in any other employer’s liability case: “An employer owes an employee a duty of care to safeguard his health and safety in the context
of his employment”.

Given the unique nature of service, the context may be difficult to assess for those not familiar with the military.

A starting point for assessment of military cases may be JSP 375.

JSPs are Joint Service Publications (‘Joint’ - so apply to all 3 Services). JSP 375 deals with ‘Management of Health and Safety in Defence’ and is an open-source document (so not subject to any document classification/ restrictions).

In addition, the military has numerous processes and procedures for many aspects of its work, again many of which are open-source. Many of these have been reviewed and republished over the years. There are other JSPs (for example, JSP 539 deals with Heat Illness and Cold Injuries), and ‘Pamphlets’ dealing with individual weapon systems and range safety (‘Pam 21’ being the starting point for any case involving military firing ranges), to name but a few.

Accordingly, often the first place to look in terms of breach of duty may be the Defendant’s own documentation, as set out among these documents, and others. Of course, these should form part of standard disclosure.

It is often the case that MOD sets a high bar in its own documentation, which is not achieved in practice.

A remark attributed to Field Marshal Erwin Rommel, the German ‘Desert Fox’ of the Second World War North Africa Campaign (though its origins are disputed), may remain relevant today: “The British write some of the best doctrine in the world; it is fortunate their officers do not read it.”

However, in many cases breach of duty (or lack of it) will be clear.

For a lawyer whose instincts are good as to breach of duty in a civilian context, these instincts are likely to be good in the military context.

If injury results from, for example: a lack of (or poor) equipment; a lack of training; being exposed to risks without suitable precautions being taken; or the direct fault of others within the MOD, then it is likely that a claimant would be able to establish breach of duty against MOD, as would be the case in a civilian context.

Causation

Causation from breach of duty to injury is in no significant way different from any other personal injury case.

However, what may be present in a military case is ‘causation’ documentation from: MOD’s own treating medical clinicians; documentation from Medical Boards (if an individual was discharged from service as a result of injury, or was being considered for the same); and any documentation from an Armed Forces Compensation Scheme application if such a claim has been made in advance, or in parallel.

Damages

A particular feature of military cases is that what may be a relatively modest injury, with relatively modest effects, can have much more far-reaching consequences than a similar injury in a civilian context.

Continued service in the military requires individuals to meet strict medical standards (both physical and psychological). Annual fitness tests are required, although the standard of these vary depending on the individual military unit involved.

If a SP’s career has been cut-short as a result of injury, then the value of the claim will likely rise significantly. So a relatively modest injury can result in what turns out to be a claim with a significant value.

In Barry v MOD [2023] EWHC 459 (KB), a Royal Marine with noise induced hearing loss caused during his service, who was medically discharged as a result of the NIHL, was awarded a total of £713,716 with PSLA comprising only £27,500 of this.

Heads of Loss

Pain, Suffering and Loss of Amenity

Pain, suffering and loss of amenity is considered in the same way as for any personal injury case, although weight needs to be given to the fact that these are often highly physically active individuals for whom injury has a greater impact than in many cases. It is often the case, as above, that these are relatively young people when they sustain their injury.

Loss of Congenial Employment

For cases where injury results in termination of service, which would usually be by way of a military medical assessment board, claimants will be able to claim for the loss of their congenial career. SP often consider their military career as more of a vocation than a ‘job’ and which is much more all-consuming than it would be for the majority of civilian jobs, including for the reasons set out above.

Loss of Earnings and Pension

As above, for cases involving loss of career there is typically a significant claim for loss of earnings and associated pension. Routinely, this would comfortably result in a six-figure award for these heads alone (in Barry these combined amounted to a little over £600,000).

Allowances and Loss of Service Benefits

SP are given additional allowances for serving away from a SP’s own base/ home, or on operations, amongst a number of other allowances – some of which are unique to individual units or specialists. Account will be taken of the fact that SP receive free medical and dental care, together with access to sporting and fitness facilities within military bases. Accommodation and victualling is provided at a modest cost to the individual (or likely for no charge at all when away from home base).

Expert Employment Evidence

Assessment of special damages in military cases involving loss of career is almost always assisted by reports from employment experts.

These experts would usually be retired military officers with knowledge (during their career and subsequently) of the promotion system and other personnel aspects of service.

A key feature of any assessment is trying to establish how a claimant’s career would have developed, save for the injury. This, of course, takes into account a claimant’s own aspirations and whether he or she wished to serve a full career or not.

An important part of assessment of career prospects is consideration of annual assessment reports known as OJARs (officers) and SJARs (other ranks). Everyone in the Armed Forces has a First and Second (and occasionally Third) Reporting Officer who drafts reports on an annual basis commenting on an individual’s current performance and potential for promotion. These are then used at the thorough promotion board process to select those suitable for promotion.

Drawing on the author's experience with both preparing and reviewing annual reports, significant time and attention are devoted to ensuring these documents are thoroughly completed due to their importance for individuals and the organisation.

Employment professionals will also take into account statistics maintained by the Ministry of Defence regarding average length of service and promotion rates, categorized by individual regiments and specialisations. While some approximation is inherent in this method, since each case must be evaluated based on its unique circumstances, these general data points provide valuable guidance when mapping out an individual’s probable career trajectory.

When considered alongside an individual's OJARs/SJARs, it is possible to determine whether a specific Service Person's (SP) career has followed the typical progression for their branch, or whether their rate of promotion and career advancement has been above or below the average.

Assessment and Calculations

The underlying principle is consistent with cases involving shortened careers: a thorough evaluation is conducted of the financial circumstances the individual would have experienced had the accident not occurred. This assessment considers potential promotions, anticipated salary progression, projected length of service, and any additional benefits associated with continued employment.

From this, any residual earnings and benefits are deducted. For the reasons set out above, it is fair to say that this can be more technical/ detailed than in comparable civilian cases. 

However, at the same time, as very clear rates of pay and statistics as to careers are maintained, resulting calculations can be made of a greater degree of precision than is often the case in civilian cases.

Conclusion

Personal injury claims involving SP have some unique features. The overall principles of claims against MOD are, of course, the same as those involving civilians. As above though, the context can be quite different. However, claimants in military claims are routinely very impressive individuals, with an interesting background and who are straightforward to deal with.