Many service personnel are unaware that they can bring a civil claim in negligence
as well as an Armed Forces Compensation Scheme (AFCS) claim. Simon Harrington,
a Partner in our Cambridge office, highlights classes of injury which commonly
result in significantly higher civil awards that would be paid under the AFCS.
The AFCS will provide of a lump sum award to reflect pain and
suffering. The lump sum will be taken from a tariff and will not
necessarily consider the impact that injury has on the specific
individual. However in most cases the tariff award is broadly
comparable to the lump sum a Court may award for the same
injury in a civil action.
Where an injury meets the criteria of an award at tariff of 11 or
above, the claimant will receive a Guaranteed Income Payment
(GIP) in addition to the lump sum. Put simply, the GIP is a
further annual payment (a bit like a pension) which is intended
to reflect the impact those injuries are likely to have on your
future earning capacity.
Injuries which result in awards of tariff 12 or below do not
attract a GIP. As such, injuries at this level will only result in a
one off lump sum award under the AFCS.
Since the introduction of PAP10 your Chain of Command
have been able to use the RECU process to apply for your
Medical Discharge if you are permanently downgraded. In this
context a “permanent” downgrade is awarded for a condition
which persists in restricting your employment for more than
12 months. Where that injury results in major restrictions on
your employability, the grading will be P7 and your Chain of
Command will almost certainly instigate the RECU process,
resulting in your Medical Discharge.
Many of the injuries which end up with Medical Discharge
under the RECU Process are found at tariff levels 15-12.
Common examples are:
-
Lower back pain
- Noise induced hearing loss
- Non-Freezing Cold Injury (NFCI)
A Medical Discharge will usually result in a significant loss
of earnings, pension and in service benefits. Whilst soldiers
discharged under the RECU Process will almost always be
able to find work as civilians, such work rarely comes with
comparable promotion prospects, service benefits or pension
entitlement to that which they enjoyed in service. In most
cases the losses stemming from RECU Discharge will usually
be in the region of £100,000. The AFCS does not recognise
this loss in such cases.
Unlike the AFCS, the courts in England and Wales will consider
each and every case on its own facts. That means that, if an
injury results in financial loss, the court will recognise that loss
when calculating damages, regardless of the severity of the
initial injury. As a result, civil claims for damages will often
vastly exceed awards made under the AFCS.
Irwin Mitchell Solicitors deal with these claims on a day to day
basis. They have specialist teams dedicated to both NFCI and
noise induced hearing loss claims. Their experience in such
matters is unparalleled.
By way of example, the following is a typical, but fictional,
comparison of AFCS awards and Civil Damages in NFCI cases.
Lance Corporal ‘A’ was graded P7 Medically Non-Deployable
for an NFCI sustained to his feet and discharged in accordance
with the RECU process. He had served for six years and upon
discharge found work as a lorry driver. Uninjured, he had
intended to complete a full 24-year engagement.
AFCS
Lump sum £6,000
Civil Claim
Pain and Suffering £15,000
Handicap on labour market £30,000
Loss of congenial employment £5,000
Loss of earnings £50,000
Loss of pension £50,000
Loss of Service benefits £20,000
Cost of heating, clothing etc £10,000
Total £180,000
In cases where an injury results in medical discharge but no
GIP is awarded under the AFCS, there is likely to be a huge
difference between the award made by the AFCS and that you
would reasonably expect by way of civil claim. In such cases, it
is vital that you seek help from the solicitors who specialise in
this area and who are able to advise you as to the respective
merits of the various options available to you.
Irwin Mitchell have specialised in this type of claim since
the abolition of Crown Immunity in the 1980s and, with
specialist teams in four separate offices, are able to provide
specialist advice and assistance from whichever office is most
geographically convenient to you. Initial consultation and
advice is free of charge.
Autumn 2016 (PDF)
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