If you are injured whilst serving in the Armed Forces, there is more than one route to receiving compensation.
The Armed Forces Compensation Scheme is a no-fault scheme available to serving personnel and veterans. A claim for compensation may also be made through the Civil Courts.
Armed Forces Compensation Scheme (AFCS)
If your injury was suffered as a result of service, you will be entitled to claim under the AFCS. It is not necessary to show that someone was at fault. If you are injured participating in sport, for example, you will be entitled to claim. The Scheme covers all regular and reserve forces who suffered injury or death caused by service after 6 April 2005. You can claim whilst still in service. Claims must be made within 7 years of your injury or 7 years from diagnosis.
If your application under the Scheme is successful, you may receive a lump sum for your injury and you may receive a Guaranteed Income Payment. Compensation is awarded on a tariff basis depending on the type of injury, severity and how long the injury lasts. Awards under the Scheme are capped. It is important to seek legal advice, especially if you have suffered more than one injury.
Unlike a civil claim for compensation, an AFCS award can be made for injuries suffered in combat.
In some instances of late onset illness and spanning injuries a claim under the War Pension scheme may be appropriate.
Civil claim for compensation
This is a claim pursued through the courts although in most cases it is not necessary to issue Court proceedings or attend the Court.
A claim through the Courts must be made within 3 years of your injury.
To be successful, it is necessary to show that someone was at fault. Your lawyer will advise whether there is enough evidence to prove this. Any claim will be against the Ministry of Defence and not the individuals who may have been involved in your accident.
Compensation is often higher than through AFCS. This is because the Court will take account of individual circumstances and not simply apply a tariff. There may also be financial losses that cannot be recovered under the AFCS but can under a Civil claim such as future loss of earnings.
The MOD have a shield from liability known as combat immunity, this means that decisions made in the heat of battle or under fire for example are protected from liability for negligence. However, this does not include decisions made higher up the chain in respect of procurement or training. If you’re in any doubt whether the cause of your injury falls under combat immunity seek legal advice as soon as possible.
We recommend that you seek legal advice as soon as possible; each case is different and based on its own merits and requires specialist injury and military knowledge to provide you with the best possible chances of success.
Claiming for both AFCS and civil compensation
It is possible and often appropriate to make a claim for both types of compensation. However, time limits to each type of compensation are different so do not wait for the outcome of an AFCS claim or appeal before talking to a lawyer. The 3 year time limit to making a civil claim will expire before the 7 year time limit for an AFCS claim.
Members of the Armed Forces are often told they cannot claim Civil compensation or cannot seek the advice of a lawyer. This is not correct. Everyone is entitled to seek legal advice at any time. In addition, it is often beneficial to seek specialist legal advice before making a War Pension or AFCS claim. This will ensure that the claim form is accurate and detailed and so reduce the risk of an unsuccessful claim and subsequent lengthy appeal.
Wolferstans Solicitors have experience in military injury claims against the MOD, are members of Forces Law and attend APIL Military conferences on an annual basis.