The Crown Proceedings (Armed Forces) Act 1987 allowed servicemen and women to pursue civil claims for damages in the same way as other workers who are injured during the course of their employment where someone else is at fault.
Members of the Armed Forces are still a special case however, and this can affect the prospects of success in personal injury actions by service personnel:
- The Secretary of State has the power to revive Crown immunity when “necessary and expedient” (s10 of the 1987 Act). Presumably this would be in the event of full-scale war though it is notable that this power has not been exercised as yet with reference to the Iraq and Afghanistan wars.
- Service personnel do not have the status of employees and therefore they are not covered by some parts of the employment protection legislation that protects other workers.
- Service personnel cannot generally claim against the Ministry of Defence for injuries suffered in a combat situation even where those injuries result from the negligence of fellow combatants or officers. This is called “combat immunity”.
However, In the recent and important case of Smith v Ministry of Defence the Supreme Court (in what was no more than a majority verdict) rejected the MOD’s contention that combat immunity applies in any case where the injury was sustained in combat. In this case an artillery officer failed to recognise a British tank belonging to another regiment and ordered it to be shelled, injuring the Claimant in a friendly fire incident. Combat immunity prevented a claim being made on the basis of the officer’s negligence. However, it was held that MOD had failed to instruct the officer in tank recognition, during his training, and this omission occurred before hostilities, so combat immunity did not apply.
Since 6 April 2005, the Armed Forces and Reserve Forces Compensation Scheme provides a remedy for service personnel or their families when serious or fatal injuries are sustained in combat. The scheme operates a tariff system with a maximum award of £570.000. There is a time limit of seven years for making an application under the scheme. As a last resort, the Criminal Injuries Compensation (Overseas) Scheme provides compensation for service personnel who are victims of violence while overseas. But here the time limit is only two years after which a claim would be out of time.
For more information and guidance visit http://www.coles-law.co.uk/industrial-accidents-injury-and-diseases
Kevin Hughes - Personal Injury Solicitor