Helping armed forces personnel following incidents abroad - whether on-duty or off-duty

Having the privilege of representing a member of our Armed Forces is something that must be treated with the upmost importance. Bringing a claim following an off-duty incident abroad requires specialist and experienced lawyers, who are experts in relation to issues of cross-border litigation, as well as factors specifically related to the armed forces, such as medical discharge, downgrading and the potential loss of military benefits.

At Irwin Mitchell we have a large team which represents British citizens who have suffered serious injuries overseas and a dedicated Military team which only represent injured Armed Forces personnel.

What to do following an incident

When a member of the Armed Forces is injured while on duty, a claim can usually be brought against the Ministry of Defence in England, despite the accident happening abroad. The situation is vastly different with an off-duty incident and an injured person faces a number of immediate issues.

Initially an injured person must seek medical attention abroad. Medical standards differ massively depending on the country you are in and, depending where you are injured, it may not be possible to attend a military hospital initially. 

From our experience there are often language barriers which mean that receiving treatment abroad is particularly worrying. There is also the possibility of having to liaise with a foreign police force, with the same language issues. There is then the issue of repatriation, which is fortunately often arranged by the Military.

Once home it is then vital that appropriate medical care is accessed and rehabilitation is commenced as soon as possible. This is vitally important for an injured member of the Armed Forces, as they have much higher physical demands than a civilian and therefore require treatment similar to what would be expected of an athlete following injury.

Bringing a claim

An injured person then has to look to bring a claim to seek justice for their injuries. These can often be life-changing and have a massive impact on their military career, their earnings and their pension. 

Doing this following an incident overseas is particularly daunting as many people don't know where to start. It can be easy to leave potential litigation to one side as the family adapts to and deals with ongoing medical treatment and rehabilitation, potentially having to relocate either temporarily or permanently and while the injured person battles to maximise his or her recovery and return to work as soon as possible.

There are unique issues which arise in such cases and the legal landscape has changed dramatically post-Brexit which require careful and early consideration.

The three primary issues

The defendant – who should I bring the claim against?

This will differ depending on the type of incident and where it happened. Fortunately, in most countries there is mandatory insurance, although there are sometimes caps on that insurance and in some cases, no insurance at all. 

Foreign police or criminal court involvement is usually of great assistance in identifying a responsible party. This information can be accessed with the assistance of our network of foreign lawyers.

Jurisdiction – if you are injured abroad and wish to pursue a personal injury claim, where can you pursue that claim?

Initially it is of primary importance to establish whether the incident occurs on duty or off duty, as this impacts who the case should be pursued against, and where the case can be pursued. Sometimes this is not clear cut, such as when an incident occurs during ‘extra-curricular' activities, such as while undertaking a sport as part of a military team. 

If off-duty, it's often the default position that a claim must be pursued in the country where the incident happened. 

However, in some instances, despite the incident occurring overseas, it may be possible to bring your claim in England or Wales. This is beneficial in several respects, such as convenience and control – you don't need to travel abroad to attend court, depositions or medical expert appointments and we control the case, rather than a foreign lawyer. 

You are also able to rely on our procedural rules – which allow you to obtain the evidence necessary to prove your case and maximise your damages, while the evidence you are able to rely upon is often restricted overseas. You are also able to rely on our costs rules, which is if you win your case you are able to recover costs from the defendant. This is often not the case overseas.

Jurisdictional rules are highly technical and you need an expert in the field in order for you to navigate through these issues.  It's of vital importance that early advice is sought to weigh up the options available as to jurisdiction.

Applicable law – as you have been injured abroad, which law applies to your case?

It's almost always the case that the law of where the incident occurs applies to your case. It's our experience that the law can vary massively between different countries, even those in Europe. Wherever you are able to pursue your case, it is vital that your legal team is able to advise you as to which law applies to your case and to work collaboratively with a foreign lawyer to apply that law and defeat any arguments to the contrary.

Advice should be obtained as soon as possible, as the period in which you must bring your claim - the limitation period - will be governed by the “applicable law” and varies from country to country. The limitation period can be as short as six months in some jurisdictions.

In some instances, it is of benefit to apply foreign law over English law due to the damages levels recoverable. For instance, many countries provide much better damages levels in the event of a fatality than English law. Advice from a lawyer who is experienced in conflict of laws issues is essential to a case involving injury overseas.

Conclusion

We understand that facing the prospect of bringing a claim following an incident abroad which has left you severely injured can be intimidating therefore it's vital to have an experienced lawyer who can assist both in relation to the niche issues of international personal injury, but also those that arise when a member of our Armed Forces is injured abroad whilst off-duty.

Find out more about Irwin Mitchell's expertise in supporting members of the Armed Forces following an injury at our dedicated military injuries section.