Legal duty of care proposals put our military at a disadvantage

Proposals from Ministry of Defence (MoD) to scrap the legal duty of care it owes to service personnel have been met with criticism during the current consultation process.  Under the plans injured personnel, or the families of those killed, will no longer be able to sue the MoD for negligence; instead the claim would be assessed internally by a MoD appointed assessor who would also decide the level of compensation award.    Dan Thompson, Personal Injury Partner, here reviews the reasons behind the plans and what it would mean for future claims should the proposals be implemented.

Combat immunity

The MoD are already protected in that no active duty injury or death, i.e. one arising on the battlefield, can result in a claim in Court against them.  This is more commonly known as ‘combat immunity’.  As a result currently claims for negligence can only be brought for injuries or fatalities off the battlefield or in the situation that faulty equipment, such as army vehicles or protective clothing with proven defects, was used. 

“These proposals seek to stop any claims going to Court, and extend the definition of combat immunity to include injuries or fatalities caused in any way,” explains Dan.  “By removing the process of going through the courts and using a MoD assessor, the plans also remove the public scrutiny that comes from a claim of this kind.  Whether these proposals are as a result of Sir John Chilcot’s Iraq inquiry report, which identified numerous MoD failings in planning and preparations for the Iraq war, is currently unclear.”

The specific proposals from the MoD include the following:

• Abolishing the legal duty of care it owes to service personnel and stopping legal claims for negligence against the MoD in the courts
• A “no fault” compensation scheme for injured service personnel and families of those killed
• Assessors to be appointed by the MoD to value injuries and loss based on expert reports they commission
• A presumption that there will be no paid legal representation for service personnel when losses and compensation are assessed.

Better compensation

The MoD has justified their proposals as they state they will lead to better compensation, with more focus being put onto the injured party or family of the deceased by removing ‘the stress of lengthy legal action’, as explained by Sir Michael Fallon, Defence Secretary.

The MoD has stressed that that assessors will be independent, experienced and legally qualified, and awards will be ‘equal to what a court would have awarded if it had found the government to have been negligent’.

Legal duty of care

Talking about the proposals, Dan commented, “While I concede that the proposals could lead to a swifter resolution of these claims, the proposals remove the right of the claimant to have legal representation during, what is for any personal injury claim, a complex and emotional process, and one that requires legal understanding and experience.  An injured serviceman or servicewoman in this situation is unlikely to know how much compensation is enough, or how to calculate their loss of earnings for life and future care needs, and the fact that the MOD would be judging how much compensation to give an injured person is completely unheard of in standard personal injury law.”

Dan concludes, “The fact is that the MoD are already protected by combat immunity. If these new proposals were bought in then it puts MoD staff behind every other employee in the country, where they are owed a duty of care by their employer, which a court can test.  These proposals would take away that right for the men and women that put their lives on the line for our country.”

The proposals are under consultation for another week before further announcements are expected.

If you have any questions about claiming compensation following an injury, you can contact Dan or the Personal Injury team on 0800 91 92 30 or email injuryteam@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.