In principle there is no difference between
the Ministry of Defence (including the Armed Services) and any
other civilian employer. All employers owe a duty of care to their
employees and are responsible for their health and safety whilst at
work. With some important exceptions, this duty applies to serving
military personnel stationed overseas. Injured servicemen and
women are, in principle, able to bring claims against the MoD
whether they are serving or not, providing the injury or illness
was caused by the negligence of the MoD.
How long is my claim valid for?
Generally, claims must be submitted
within three years of the date of injury. Service
personnel (as opposed to civilian employees) injured before 15 May
1987 are unable to bring claims against the MoD as until that date
the law provided the government with a blanket ‘immunity against
suit’. This blanket immunity was effectively removed when the
Crown Proceedings Act 1987 came into force.
Combat immunity
Not all injured service personnel will succeed
with civil claims against the MoD where there has been negligence
or breach of statutory duty. There are still categories of
cases where, as a matter of public policy, Courts will be very
reluctant to hold the MoD liable for a soldier’s injury even where
negligence can be proved.
One general rule is that servicemen and women
injured whilst fighting in a war zone will not be able to bring a
civil claim against their employer. This is known as ‘combat
immunity’. When you appreciate live weapons being
fired in close-range combat scenarios, it is understandable
why the law understands this. In such difficult and extreme
conditions it is simply not reasonable to expect the MoD to be able
to maintain the same standards in relation to health and safety as
civilian employers in the UK. However, the realities of warfare in
the 21st century are that military operations, including
direct action against an enemy, take place over vast
distances. It is also very unlikely that all service personnel
deployed in a warzone at the same time will be directly engaged in
operations against the enemy. The line between simply being in a
war zone and being engaged in active operations can be a difficult
one to draw.
The law of negligence treats service personnel
engaged in direct combat with an enemy differently from those
carrying out other activities within a war zone. For the MoD
to be able to rely on the principle of ‘combat immunity’ there must
be a sufficient connection between the act of negligence giving
rise to the injury and the military context in which the accident
occurs.
For example, the MoD will almost certainly be
held liable in the case of a transport driver who negligently
collides with another vehicle on a road whilst transporting
soldiers from an airport to a base, even within a war
zone. The soldiers injured on the bus would be able to bring a
claim against the MoD because there is clearly no connection
between the cause of the accident (the driver’s negligence) and the
reason for the soldiers’ presence in the warzone.
In practice it is often difficult to determine
in advance whether the MoD will be able to successfully rely on the
principle of combat immunity in defence of a particular claim.
These cases are said to be very ‘facts specific’. Lawyers can
look at the decisions in previous cases for guidance on the issue.
Here are two of the leading cases in this area:-