In April 2005, just prior to the introduction of the Armed Forces Compensation Scheme (AFCS), Geraldine McCool and Paul Harrington were part of a delegation from the Royal British Legion Solicitors Group who were invited to discuss the AFCS with the MoD in Whitehall. We are often reminded of that meeting and in particular our view that the word “compensation” in the title of the Scheme could leave Service Personnel to think that the AFCS replaced their right to bring legal claims against the MoD.
Since 2005, we have had conversations with potential clients that confirm our concerns. This is troubling because the delegation presented real case studies showing many military clients with serious injuries or family members in fatal claims were considerably better off in terms of recoverable compensation through civil claims pursued at Court; leading us to the view that in many cases civil claims should be pursued in addition to AFCS. For example, a Soldier with non-freezing cold injury receives £10,800 under AFCS whilst our average settlement figure through the legal process is £77,000.
Military hearing loss specialists, David Johnston-Keay and Nick Woods explain the difference between AFCS claims and legal claims for noise induced hearing loss.
“As most members of the Forces will be aware, in 2005 the Armed Forces Compensation Scheme (AFCS) came into force Under the Scheme, current and former members of the Armed Forces can pursue claims for compensation for a number of injuries and illnesses, one of which is noise induced hearing loss. However, although pursuing a claim under the AFCS does not require a Claimant to establish negligence on the part of the Armed Forces, succeeding with a claim is often a challenging task. As of 31 March 2014, a total of 53,490 claims had been registered under the AFCS (for all injuries and illnesses). However, of the 44,710 claims that had been cleared by that date, only 56% of them succeeded.
Insofar as hearing loss is concerned, even if a Claimant was to succeed with a claim under the AFCS, the amount of compensation which they may receive simply may not be enough to help them in their day-to-day life. In many cases, a significant hearing loss can cause a member of the Armed Forces to become permanently non-deployable, if not medically discharged, and so this can have a huge impact on their career prospects. Unless a Claimant is suffering with an average hearing loss of over 50dB, the average award under the AFCS is just £6,000. To put this into perspective, the average hearing loss across the speech frequencies for an 80 year old man is somewhere between 26dB and 31dB. In addition, awards under the AFCS are based on a Claimant’s hearing loss averaged over the frequencies of 1, 2 and 3kHz. However, exposure to gunfire or explosions will often produce significant hearing losses in additional frequencies as well. As such, although upon first glance it may appear to be, it is clear that the AFCS may not always be the best route to securing compensation.”