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When AFCS Is Not Enough - Think About A Civil Claim

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:

  1. Lower back pain
  2. Noise induced hearing loss
  3. 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.

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)

Key Contact

Simon Harrington