MINISTRY OF DEFENCE
DC&L(F&S)CLAIMS ANNUAL REPORT
C&L(F&S)CLAIMS ANNUAL REPORT 1998/1999
Introduction by The Chief Claims Officer
Compensation Claims Handling In The Ministry Of
Policy and Procedures
Common Law Claims From Service Personnel
High Profile, Novel Or Contentious Cases/Groups Of
Cases Settled In Financial Year 1997/98
Clinical Negligence - Brain Damaged Child
Clinical Negligence - Member of the Public
Clinical Negligence – Army – Fatality
Legal challenge to Section 10 Crown
Proceedings Act 1947
Accident – Army – Training Exercise
Accident – Army – Leg Injuries
Accident – Army – Skiing
Accident – RAF – Aircraft Crash
Accident – Army – Car Crash
Accident – RN- Fall
Accident – Army – Fall
Accident – Army – Shooting
Accident – Army – Burns
Accident – Army – Crush Injury
Accident – Army – Facial Injuries
Accident – Army – Spinal Injuries
Accident – RN – Fall
Sex Discrimination & Harassment - RN
Sex Discrimination - RAF
Military Low Flying Aircraft – Farming Conversion
Maritime Claim against the MOD
Maritime Salvage Claim against the MOD
Maritime Salvage Claim by the MOD
Brief Summary Of Group Claims
Gulf War Illnesses – Intentions to Claim
Nuclear Test Veterans
Post Traumatic Stress Disorder
MOD Civilian Employees Employer’s Liability Claims
Third Party Motor Claims
Service Personnel Employer’s Liability Claims
Unlawful Imprisonment / Detention
Radiation Compensation Scheme
Clinical Negligence Claims
Military Low Flying Claims In England, Scotland And
Public Liability Claims
Public Liability Claims – Northern Ireland
Visiting Forces Claims
Service Personnel Employment Tribunal Claims
Claims Arising From Overseas Operations And
Area Claims Officers (ACO)
North West Europe
Spend on Behalf of Top Level Budget Holders
Insurance And Indemnities
Developments In Law And Practice
Civil Justice Changes
Counsel to Counsel Settlement Conferences
DC&L(F&S)Claims Staff, Programme And Operating
Costs – Financial Year 1999/1999
An Introduction To Legal Liability And Claims
Duty of Care
Breach of Duty of Care
Burden of Proof
‘Top Twenty’ (By Value) Cases Settled By
DC&L(F&S)Claims In Financial Year 1998/1999
‘Top Ten’ (By Value) MOD Civilian Employees
Employer’s Liability And Third Party Motor Claims
Cases Settled By Guardian Insurance In Financial Year
‘Top Ten’ (By Value) Service Personnel Employer’s
Liability Claims Settled By Royal and Sun Alliance In
Financial Year 1998/1999
Report Distribution List
DC&L(F&S)CLAIMS ANNUAL REPORT 1998/1999
INTRODUCTION BY THE CHIEF CLAIMS OFFICER
This is the second Claims Annual Report. In preparing the first report, we were careful to consult
widely to ensure that we covered the issues you would find interesting and informative. I was
delighted, therefore, that the first report was warmly commended by Ministers and senior officials,
who saw the report as a very important step to alert colleagues to the nature and costs of
It is fact that the negligent actions or omissions of Ministry of Defence employees will sometime in
the future personally affect others, perhaps because their property is damaged or, more seriously,
because they suffer a major injury or a member of their family is killed. It is very important,
therefore, that the Ministry of Defence has a well-trained and professional claims handling
organisation to ensure that, when compensation claims are submitted, they are considered on the
basis of whether or not the Ministry of Defence has a legal liability to pay compensation. Where a
thorough and objective assessment of the case proves that there is a legal liability to pay
compensation we do so. The amount of compensation awarded (quantum) is assessed in
accordance with the levels being awarded by the courts to ensure that it is fair both to the Claimant
and taxpayer. We seek to deal with claims quickly and fairly to minimise administrative and legal
costs and to avoid additional distress to the Claimants. We must remain alert to the fact that the
decisions made when handling claims affect the quality of Claimants lives and their perception of the
Ministry of Defence.
The need to become increasingly professional has never been greater, due to the upheaval in the
Civil Litigation process which was introduced on 26 April 1999. The New Civil Procedure Rules
will significantly change the way common law claims are handled, in an attempt to speed up, simplify
and make the whole process less expensive. The Rules, which include pre-action protocol, will
govern the conduct of litigation with an overriding objective to enable the court to deal with cases
justly in ways which are proportionate to the amount of money involved, the importance and
complexity of the case, and to the parties’ financial position. The courts will impose severe sanctions
against those who do not comply with the new Rules. Claims staff have undergone a high level of
specialist training to enable them to cope with these changes. It is, however, extremely important that
our colleagues throughout the Department become more focussed in playing their part in the
collection of evidence, disclosure of documents and providing assistance to my staff.
DC&L(F&S) Claims’ total expenditure for financial year 1998/1999 was about £76M compared to
about £70M in 1997/1998. The Branch was responsible, directly and indirectly, for approximately
8,000 new claims received in 1998/1999. Cases regularly attract Ministerial, Parliamentary and
media attention. (Indeed the first annual report received coverage in the national press).
I make no apology for repeating a statement made in the first report, that it is a fact that the money
spent in settling compensation claims results in no tangible defence output and that compensation is
only part of the total financial loss sustained by the Ministry of Defence. However, this is
overshadowed completely when a family is left without a loved one or an
individual suffers a catastrophic injury. It is therefore very important that all areas of the Ministry of
Defence have a better understanding and greater visibility of the work of DC&L(F&S)Claims. I am
particularly concerned that everyone should be made aware of the sort of activities or omissions that
give rise to claims, and what action can be taken to reduce the risks. Since the publication of the first
report, I have put in place a small team to help management areas to identify such risks and what
might be done to reduce the incidence of claims.
In common with the rest of the Department, DC&L(F&S), of which Claims forms part, has been
working towards gaining Investors in People accreditation. The project began in July 1997 and a
formal commitment to seek accreditation was made to the Central London Training and Enterprise
Council in February 1998. The Directorate’s Investors in People assessment was carried out on the
26 and 27 May 1999 and the Investors in People standard was awarded on 22 June 1999.
I would be glad to respond to any questions raised by this Report and to receive comments and
observations on how future reports might be improved.
Additional paper copies are available from the DC&L(F&)Claims Focal Point, Room 813,
Northumberland House, Northumberland Avenue, LONDON, WC2N 5BP (Telephone 0171 807
70049/56 or Fax 0171 807 70051). This Report can also bee-mailed via CHOTS or supplied on
J T R MITCHELL
Chief Claims Officer
COMPENSATION CLAIMS HANDLING IN THE MINISTRY OF DEFENCE
The Head of DC&L(F&S)Claims is the Chief Claims Officer, a Grade 7 civil service post.
The Chief Claims Officer reports to AUS (SP Pol) through D C&L(F&S). At the end of March
1999, the Branch comprised forty-one staff. In-year expenditure amounted to £76M. The staffing
position at the end of the year, 1998/1999 operating costs and programme costs are set out at
Annex A. It is important that staff at all levels within DC&L(F&S) Claims acquire the training, skills,
knowledge and experience needed to enable them to contribute effectively to the goals of the
Division. Claims staff, therefore, attend a series of specialist training seminars covering all aspects of
common law compensation issues. Responsibility
DC&L(F&S)Claims is primarily responsible for processing common law non-contractual
compensation claims against, and on behalf of, the Ministry of Defence. The Branch also has a
number of other important responsibilities such as providing claims policy advice, handling Service
personnel employment tribunal claims, handling claims against foreign forces based in the UK and
providing advice on insurance and indemnities. It also has a variety of secretariat tasks and during
the period of this report the Branch dealt with 120 Parliamentary Enquiries, 19 Parliamentary
Questions and 296 Official Action Letters. Further information on the various activities for which
the Branch is responsible is set out at Annex B.
Area Claims Officers and their staff are located in areas where there is a sizeable defence
presence - Northern Ireland, North West Europe, Cyprus, Bosnia and the Falkland Islands. Area
Claims Officers are accountable to their Command Secretary but have a professional responsibility
to the Chief Claims Officer.
Policy and Procedures
1.4 When compensation claims are submitted from Ministry of Defence civilian and Service
employees, former employees and members of the public, they are considered on the basis of
whether or not the Ministry of Defence has a legal liability to pay compensation. Where there is a
proven legal liability, compensation is paid. To deal with cases on any basis other than legal liability
requires difficult subjective judgements to be made that would undoubtedly lead to inconsistency and
1.5 The amount of compensation paid is determined by common law principles which, broadly,
take account, as appropriate, of the individual’s pain and suffering, degree of injury, property losses,
past and future financial losses, level of care required, etc. Levels of compensation including these
elements can vary greatly depending on an individual’s circumstances. Advice is sought where
necessary from Treasury Solicitor’s Department for cases brought in England and Wales; the Crown
Solicitor in Northern Ireland; and Robson
McLean, the Department’s legal advisers in Scotland. Junior and leading counsel are also consulted
on high profile or complex cases or where a point of law needs to be explored. The majority of
cases are settled amicably one way or the other and most payments of compensation are made
without Claimants having to take the Ministry of Defence to court. More detail on the legal process
is provided in Annex C.
In accordance with Treasury policy, the Ministry of Defence does not normally make ex-
gratia compensation payments in respect of occurrences within the UK. There are, however, a small
number of exceptions: i.e. low flying claims; claims from volunteers who are injured during research
work and for certain miscarriages of justice affecting Service personnel. Overseas, because of the
provisions of the NATO Status of Forces Agreement and other international agreements, the
Ministry of Defence is obliged to consider making ex-gratia payments following off duty torts. Such
claims arise from a wide variety of incidents ranging from minor criminal damage to rape and
murder. There is no legal obligation to make an ex-gratia payment. Each case is decided on its
merits, taking into account a number of factors including: the degree of infamy (the seriousness of the
offence), the conduct of the injured party, the practice of the host country in identical circumstances,
the degree of financial hardship to the Claimant as a result of the incident, the political implications -
locally and nationally - on relations with the host country, and the availability and/or financial ability
of the tortfeasor (wrong-doer) to make satisfactory restitution to the Claimant.
In addition to common law claims, DC&L(F&S)Claims also handle claims relating to
Employment Tribunal applications brought by current or former Service personnel. These claims
typically involve allegations of unfair dismissal, sexual/racial discrimination or sexual/racial
harassment. Whilst the single Service secretariat branches will initially receive and investigate
Employment Tribunal applications, they have no delegated financial authority and claims can only be
settled by obtaining the agreement of DC&L(F&S)Claims who hold funds centrally. Common Law Claims From Service Personnel
1.8 Prior to May 1987, Service personnel were prevented from pursuing claims for compensation
from the Ministry of Defence by Section 10 of The Crown Proceedings Act 1947. (Crown
Immunity prevented claims from being made prior to 1947). However, Section 10 was repealed by
The Crown Proceedings (Armed Forces) Act 1987. Since the change in the law, which was not
made retrospective, Service personnel, and the dependants of deceased Service personnel, who
suffer loss or injury (including illness) as a result of negligence by the Ministry of Defence have been
entitled to make common law claims for compensation.
Compensation in the form of a war pension and associated benefits are available to all
former members of HM Forces suffering an illness or injury attributable to their service. War
Pensions are administered and paid by the Department of Social Security’s War Pensions Agency
only to those who qualify after leaving the Armed Forces. War pensions are abated to take account
of any common law compensation paid for the same injury or illness.
HIGH PROFILE, NOVEL OR CONTENTIOUS CASES/GROUPS OF CASES SETTLED
IN FINANCIAL YEAR 1998/99
The nature of compensation claims is such that very often, and certainly for the more serious
cases, some considerable time can elapse between the event that gives rise to the claim and the
claim being settled. The ‘Top Ten’ cases by value settled by DC&L(F&S) in 1998/1999 are
summarised at Annex D. Outline details of some of the most high profile cases, or types of cases,
settled during the reporting period are given below.
Claim from Parents of Brain Damaged Child - Clinical Negligence
Baby X was born at the British Military Hospital in Hanover. His father was a serving
soldier stationed in West Germany. It was alleged that due to the negligence of the medical staff,
before and during the birth, Baby X suffered foetal hypoxia (irregular and/or lack of oxygen supply
to unborn child which can result in organ damage or death). As a result permanent brain damage
was caused and he now suffers from athetoid cerebal palsy (medical condition that manifests itself in
paralysis or involuntary writhing movements). It was claimed that had more appropriate action been
taken during the labour, possibly by means of a caesarean section being carried out, brain damage
would have been averted. On Counsel’s advice, the Department admitted liability in this case 5
years ago. Since that time both the Department and Claimant’s representatives have instructed
various experts to provide medical and care reports on Baby X, in an attempt properly to quantify
the claim by agreeing the extent of disability, the level of care needed and life expectancy. Once all
the relevant expert evidence was available a Counsel-to-Counsel settlement conference was held
where the Department agreed to pay £2.3M compensation. A very large part of the award will be
used for providing the correct level of expert care for Baby X.
Claim from Member of the Public - Clinical Negligence
Mr X had a long history of problems of the colon and rectum. He underwent an operation at
the Royal Naval Hospital, Haslar, which included a terminal colostomy (a surgical procedure to
provide for the establishment of an artificial opening in the colon). Mr X alleged that the surgeons
failed properly to advise him of the surgical procedures that they planned to carry out and the
possible risks involved. Had they done so, he claimed that he would not have consented to the
operation being performed. The Department took the decision to defend this case in view of the
statements made by the Surgeons involved in this matter that confirmed that the correct level of
advice had been given to Mr X.. The Judge, however, on the balance of probabilities found in
favour of Mr X and awarded him the sum of £24,369.55 compensation.
Claim from Serviceman’s Next of Kin - Clinical Negligence
The late Mr X consulted Service medical doctors over a period of five years on a number of
unrelated ailments. During the course of these consultations, he asked for advice concerning a mole
on his body. On each occasion the doctors assured him that it was benign.
However, after further consultation it was decided a biopsy should be carried out. The results
confirmed that Mr X was suffering from terminal malignant melanoma (cancerous skin tumour
caused by the pigmentation of cells in moles). His widow brought a claim for compensation citing
clinical negligence against the Department. On Counsel’s advice, the Department admitted liability in
A Counsel-to-Counsel settlement conference was held where the Department agreed to
pay £810,000 compensation which included a sum for loss of earnings, pension and promotion. Legal Challenge to the Crown Proceedings Act 1947
A former member of HM Forces initiated a claim for compensation against the Ministry of
Defence for the alleged failure to diagnose and treat a malignant carcinoma in his left eye. Between
September 1985 and early 1987 Mr X attended the British Military Hospital in Munster during
which time his developing condition was not diagnosed or treated. In April 1987 while on leave in
the UK, a private consultant made a correct diagnosis and Mr X subsequently underwent treatment.
The Ministry of Defence defended the claim on the basis of Section 10 of The Crown
Proceedings Act 1947, which prevents Service and ex-Service personnel from suing the Crown for
illness or injury sustained prior to May 1987. The case proceeded to trial in May 1998, when the
presiding Judge ruled in favour of the MOD and dismissed the action. Mr X was, however, given
leave to appeal. On 18 February 1999, his case went before the Court of Appeal, with his legal
representative arguing that Section 10 of The Crown Proceedings Act 1947 did not apply to
medical negligence cases. The three Judges who heard the case handed down judgement on18
March, when they ruled on a majority decision in favour of the Ministry of Defence.
If the Court of Appeal had ruled that Section 10 did not apply to medical negligence cases,
there would have been a considerable increase in claims from Service personnel arising from
incidents before 1987, particularly those relating to Post Traumatic Stress Disorder (e.g. Falklands
Island conflict). Accident – Army – Training Exercise
A former member of the Territorial Army twisted her ankle on a cattle grid during a training
exercise, tearing the tissues around her ankle bone and rupturing a nerve in her left foot, for which
she claimed damages from the Ministry of Defence. The Ministry of Defence denied liability for the
accident, and the case went to trial. The Judge dismissed the claim, saying that in the course of battle
nobody placed covers over obstacles such as cattle grids. The Claimant had already crossed the
grid on five previous occasions that day and simply failed to look where she was going when she
twisted her ankle. No compensation was awarded. Leg Injuries - Army
A former infantry soldier brought a claim for compensation against the Ministry of Defence
in respect to injuries to his lower legs allegedly sustained as a result of being made
to run in combat boots. The Claimant also alleged that the subsequent medical treatment which he
received was negligent. The Ministry of Defence denied liability for the injuries and the case
proceeded to trial. Although the Judge ruled in favour of the Claimant, the amount of compensation
he awarded (£5,025) was significantly less than the £400,000 being sought. This was because the
Ministry of Defence were found only liable for the pain and suffering caused by the delays in the
Claimant being seen by an orthopaedic specialist, and not for the leg injuries. Accident – Army – Skiing
While on a Nordic Skiing Survival Course in Norway, X was skiing down a slope when he
swerved to avoid another skier and hit a mound of snow. The anterior cruciate ligament in his right
knee snapped and he was subsequently medically discharged. X claimed damages from the
Ministry of Defence in respect of the accident principally on the basis that he was not fully trained for
such skiing. Following legal advice from Counsel, settlement of the claim for £315,000 was achieved
without the need for the case to proceed to Court. Accident – RAF – Aircraft Crash
Flt Lt X was severely injured when the aircraft that he was piloting crashed following an
engine failure. Flt Lt X was still in the aircraft when it hit the ground rendering him paraplegic. Flt Lt
X submitted a claim for damages against the Ministry of Defence claiming that the accident was due
to faulty maintenance procedures which caused one of the engine compressors to disintegrate
resulting in engine failure. Following a pre-trial Counsel to Counsel negotiation the case was settled
in July 1998 for approximately £1,500,000.
Accident – Army – Car Crash
Mr X, then a LCpl serving in Northern Ireland, was involved in a road traffic accident when
the vehicle in which he was travelling as a passenger left the road and crashed into a concrete bridge
support. Although Mr X sustained only minor physical injuries, the driver was seriously injured, and
two other passengers sustained fatal injuries. Mr X brought a claim for damages against the Ministry
of Defence claiming that following the accident he developed Post Traumatic Stress Disorder
(PTSD), which the Ministry of Defence negligently failed to diagnose or treat. Although the Ministry
of Defence initially defended the claim, the case was settled on legal advice from Counsel for
£100,000 on the basis that the Department did not have sufficient evidence successfully to refute the
Claimant’s allegations should the case go to trial. One other claim for compensation as a result of the
accident was made against the Ministry of Defence, from the mother of one of the dead passengers.
This was settled in June 1994. Accident - Royal Navy - Fall
Mr X then serving in the Royal Navy sustained serious back injuries following a fall down an
unguarded hatch on the helicopter flight deck of a war ship. Mr X’s claim for compensation was
settled in October 1998 on legal advice from Counsel for over £100,000.
Accident – Army - Fall
Mr X injured his back when he fell from a window ledge in Army accommodation while
cleaning windows, resulting in him being medically discharged. The claim was settled out of Court
for £35,000 on the basis that Mr X was not provided with the correct safety equipment. Accident – Army – Shooting
L/Cpl X was fatally wounded during a training exercise on an Army range in Germany. The
training involved a simulated battle scenario with live ammunition being used. Unfortunately, due to a
breakdown in communication, the strict timetable of firing was off course and L/Cpl X was hit in the
back, with the bullet penetrating his spine causing fatal injuries. He survived for some hours and the
damages included an element towards pain and suffering between the injury and the time of death.
The balance of the settlement related to Fatal Accident Act damages and incidental expenses on the
part of his Parents who brought the claim against the Ministry of Defence. Under the terms of the
Fatal Accidents Act 1976, compensation to cover bereavement is only awarded in two cases (i). to
a spouse, (ii) to the parents, if the deceased was a minor (under 18 years) and had never married.
Furthermore, although a widow or dependant children may receive a large award of compensation
calculated on past and future financial loss, a parent who was not financially dependant on the
deceased may have little entitlement, which is usually restricted to funeral expenses up to a maximum
of £7,500. Accident – Army - Burn
The Claimant was working in a kitchen and decided to clean a container on the vegetable
rack. The shelving became loose and the Claimant called for assistance. As they tried to secure the
shelf it collapsed causing boiling stock, which had been placed there earlier, to spill causing injury to
the Claimant. The Department accepted primary liability as another employee had inappropriately
placed the stock on the shelf. The Department, however, alleged a high proportion of contributory
negligence because the repairs to the shelving were attempted whilst the boiling stock was still
positioned on the shelve. The claim was settled out of court for approximately £2,900.
Accident – Army – Crush Injury
Mr X was assisting other members of his Platoon to push a faulty Warrior Armoured
Personnel Carrier from its garage to the parade ground. The Warrior rolled backwards when Mr X
and the other soldiers stopped pushing, crushing Mr X between the vehicle and a concrete pillar,
causing injuries to his chest. Mr X accepted a Payment into Court of approximately £8,500. Accident - Army - Facial Injury
Mr X sustained severe facial injuries, and subsequent medical discharge when a
battery exploded in his face whilst on military exercise. Although the Claimant was claiming
compensation for significant future loss of earnings, he was imprisoned for several years for a serious
criminal offence committed after the accident, thus reducing his future loss of earnings claim because
while in prison he was unable to work. The claim was settled for £29,000.
Accident - Army - Spinal Injuries
Mr X suffered major spinal injuries during a posting to Belize with his Unit. Solicitors acting
for Mr X claimed that their client had been assaulted by local youths. They claimed that the Ministry
of Defence should be held liable for failing to take steps to ensure the safety of employees, given that
they had earlier knowledge of an assault on Service personnel by locals. Investigations revealed that
Mr X and two of his colleagues had disobeyed standing orders by visiting an island off the coast of
Belize. Following an extensive drinking session there was an altercation with locals followed with
Mr X having to be restrained from offering further violence to local youths. Mr X, in a fit of rage,
then ran toward the beach and jumped into the ocean from a shallow jetty. Unfortunately, the depth
of water below the jetty was insufficient to break his fall and he sustained major spinal injuries. The
Ministry of Defence cannot be held liable in these circumstances as the individual was neither acting
in the course of his employment nor were his actions foreseeable or due to the negligence of his
employer. The claim was repudiated. Accident - RN - Fall
During an exercise on board a submarine Mr X, wearing bulky breathing equipment,
stepped back and fell through a hatch which had been left open. Initially he suffered bruising to head
and ribs, returning to work the following day. However, some days later he reported sick, and was
found to have suffered a pneumothorax (air in the pleural cavity). Although he recovered fully, having
suffered from this type of injury he was unable to continue serving on submarines and was
discharged from the RN. The claim was settled for £8,500
Sexual Discrimination and Harassment – RN
Wren X alleged that she suffered sexual discrimination and harassment by a named superior
officer soon after taking up her appointment on board a warship. Wren X was later discharged from
the Royal Navy on the grounds of being temperamentally unsuitable for Navy Service. She
subsequently took the Department to an Employment Tribunal who found in her favour. In addition,
the Tribunal accepted that had it not been for the treatment she received by the named officer, she
would not have left the Navy. The Department agreed to pay the applicant the sum of £75,000
compensation. The named officer, however, was found not guilty at court-martial of the charges on
which the Employment Tribunal case was based.
Sexual Discrimination - RAF
Senior Aircraftwoman X was discharged from the RAF on compassionate grounds. During
her RAF service she became pregnant and gave birth to a son. The domestic pressures of looking
after her son persuaded her to seek a compassionate discharge from the RAF and, after careful
consideration, her request was approved and she was notified of this decision in May 1996. In June
1996 she applied to withdraw her application for a compassionate discharge because her personal
circumstances had changed. The RAF rejected her request. She subsequently registered a complaint
at an Employment Tribunal alleging that the decision to discharge her from the RAF was based on
grounds which amounted to sexual discrimination. She claimed that due to a shortage of personnel
in her trade, Senior Aircraftmen were actively being encouraged to extend their periods of Service.
The Tribunal upheld the complaint of direct sexual discrimination in a 2 to 1 majority decision.
Compensation of £80,000 was paid. Conversion from sheep to beef farming as a result of low flying activity
The Claimant’s farm lies very close to the runway of a Welsh RAF station. Under certain
weather conditions, aircraft have to approach the runway by flying directly over his farm. Due to the
condition and layout of his land, the Claimant had to bring his ewes in to lamb in a shed directly
under the flight path. The ewes, however, became distressed by the noise of the aircraft and often
aborted their lambs. The farmer had claimed his losses annually over a number of years. He
eventually claimed that sheep farming was no longer viable and that the Ministry of Defence should
pay for a conversion to beef farming, cattle being by nature less susceptible to aircraft noise. After
consideration of expert reports and legal advice, the Claimant was paid £185,000 towards the
conversion. Maritime Claim against MOD
In May 1995 HMS Illustrious struck a Maltese tug while in Valetta Harbour causing severe
damage to the vessel and an injury to one of its crew. As a result the Ministry was faced with two
separate compensation claims: one from the owners in respect of the damage to the tug and a
personal injury claim brought by the crewman. Causation was not in dispute but specialist Maltese
shipping surveyors had to be engaged to assist in investigating what was a complex property damage
claim. It was finally settled out of court for £515,000 plus costs in April 1998. In the case of the
personal injury claim the principle issue in contention was the extent to which the incident had
aggravated a pre-existing back injury. An out of court settlement of £100,000 plus costs was finally
reached in February 1999. Maritime Salvage Claim against MOD
In April 1998 HMS Cromer, while searching for the wreckage of a sunken fishing vessel off
the coast of Cornwall, was forced to abandon its Remote Control Mine Disposal System
(RCMDS). The RCMDS, a miniature submersible craft used to search the seabed, was
subsequently found on the surface by the crew of a Plymouth fishing vessel. It was then taken in tow
to Mevagissey, whereupon the owner of the vessel submitted a salvage claim against the Ministry.
The owner of the fishing vessel initially detained the RCMDS while attempting to negotiate a salvage
settlement with the Department. However, on the intervention of the Treasury Solicitor the craft was
returned to the Ministry. At this time a number of stories also appeared in the local and national
media referring to the RCMDS as the “Yellow Submarine”, a sobriquet which stuck. On the return
of the craft protracted negotiations commenced and a salvage settlement of £40,000 inclusive of
costs was finally agreed in March 1999.
Maritime Salvage Claim by MOD
The yacht "Ruth" was found abandoned and drifting in the Atlantic by HMS London in July
1997. The yacht, which had suffered only minor damage, was drifting close to the main shipping
lanes off the East Coast of America, and was considered to be an immediate hazard and in danger
of being sunk. It was decided to salvage the vessel and sail her to the nearest safe port, the US
Naval Base, Roosevelt Roads, in Puerto Rico. Once made ready and provisioned, the vessel was
manned by a volunteer crew of six personnel from HMS London and sailed in heavy seas to
Roosevelt Roads, arriving a week later. Subsequent negotiations with the US authorities failed to
reach an agreement on a berth for the yacht, which resulted in her being sailed, with a fresh crew
from HMS London, to Tortola in the British Virgin Islands. Having contacted the German owners of
the "Ruth", it unfortunately became necessary for the Ministry of Defence to threaten to arrest the
yacht in Tortola, in order to establish jurisdiction for the salvage claim. Fortunately the threat of
arrest was sufficient for English jurisdiction to be agreed, and after lengthy negotiations, an amicable
settlement of £25,000 inclusive of costs was finally reached in July 1998. After deduction of the
Department’s costs from the settlement award, the remainder has been divided between the Ministry
of Defence and the ship's company of HMS London, whose share amounts in total to approximately
£6,600. In due course those crewmembers that directly assisted in the salvage of the "Ruth” will
each receive shares from this fund.
BRIEF SUMMARY OF GROUP CLAIMS
Some particular incidents or events involving Ministry of Defence personnel have led to a
number of claims from those affected. The position on the major group claims, as at 31
March 1999, was as follows. Gulf War Illness – Intentions to Claim
The position concerning claims for compensation remains as set out in last year’s report –
the Department has not received any writs or claims of detail stating specific allegations of negligence
sufficient to start considering these claims. The Ministry of Defence has not accepted either cause or
negligence but has acknowledged less than satisfactory
handling of a number of matters, such as the failure to transfer details of vaccination to permanent
records, the way in which "informed consent" was implemented and the initial failure to provide
information about the use of organophosphates.
Once writs have been served or properly formulated claims submitted, DC&L(F&S) Claims
will be in a position to start dealing with the claims expeditiously. It is likely that each individual claim
for common law compensation will have to be considered on its merits, taking into account each
individual's symptoms, the suggested causation and the degree of sickness, disability or distress.
However, if possible we shall make clear in settling the first cases the line for dealing with the rest.
DC&L(F&S)Claims would, as always, hope to avoid cases proceeding to a court trial.
During the reporting year DC&L(F&S)Claims received 123 notifications from Gulf War
veterans, their families and civilians of an intention to claim compensation. The total number of such
notifications received as at 31 March 1999 is 1780 (this figure excludes 103 intentions to claim that
were subsequently withdrawn by the ‘Claimants’).
Under the provisions of the Limitation Act the general period in tort for bringing a
claim is six years from the date on which the cause of action accrued. In the case of personal injury
the relevant period is three years. In the case of Gulf War illness, however, it was agreed that the
Department would not seek to use the Limitation Act as a defence against any claims from Gulf War
veterans until such notice was given formally by the Department. This decision was made on the
basis that research was underway, that proper discovery of documents could not be achieved at that
time and that the Ministry of Defence’s Medical Assessment Programme was being put in place.
However, once Writs are served, Claimants' solicitors will be advised that the limitation period will
begin to run.
There is still no medical or scientific consensus on the subject of Gulf veterans' illnesses and
important research is underway. The Ministry of Defence is funding two major epidemiological
studies to look at the health of Gulf veterans and their families. One study aims to determine whether
Gulf veterans are experiencing greater ill-health than Service personnel who did not take part in the
conflict and to identify possible exposures and predisposing factors associated with any distinctive
pattern of symptoms which may be found. The other epidemiological study will examine the
reproductive health of Gulf veterans, their partners and the health of their children. In addition, three
other studies are in hand: a neuromuscular study; work on the possible adverse health effects of the
combination of medical countermeasures which were used in the Gulf to protect against the threat of
biological or chemical warfare agents and a literature review of world-wide research into Gulf
A further epidemiological study, looking at whether service in the Gulf is associated with
increased illness in UK veterans, is being funded by the US Department of Defense. This is being
carried out by a team at Kings College School of Medicine. This study involves Gulf veterans and
two control groups: one of non-Gulf personnel and another of personnel who have served in Bosnia.
Although this study is being carried out independently of the Ministry of Defence, the Department
co-operated with the King's team by providing essential data to the researchers. The results from
phase one of the study were published in The Lancet in January 1999.
The Gulf Veterans' Medical Assessment Programme (MAP), now based at St. Thomas’
Hospital, London, was established by the Ministry of Defence in July 1993 to examine UK Gulf
veterans concerned that their health had been adversely affected by service in the Gulf conflict. The
MAP is open to all Servicemen and women, and Ministry of Defence civilians who served in the
Gulf at any time between August 1990 and July 1991, or who believe that their health has suffered
as a direct result of the Gulf conflict. Individuals who worked for contractors providing direct
support to UK operations during the Gulf conflict may also apply, but the programme is not intended
to cover other UK citizens who may have been in the Gulf region at the time. The MAP has two
main purposes. First, to investigate patients' medical complaints and, so far as possible, to diagnose
what they are suffering from and recommend appropriate management, or provide reassurance if no
illness is found. Secondly, the MAP collates statistical information, which will be available in an
anonymised form as a resource for researchers; this may be useful in helping to determine whether
there are particular patterns of ill health associated with service in the Gulf. A paper entitled “Clinical
Findings for the First 1000 Gulf War Veterans in the Ministry of Defence’s Medical Assessment
Programme” was published in the British Medical Journal on 30 January 1999.
Further information on Gulf veterans’ illnesses issues is available from the Ministry of
Defence’s Gulf Veterans Illnesses Unit (Helpline number: 0171 218 4462); the Ministry of
Defence’s internal Chot
s web site at: ‘Personnel/Military/Veterans/Gulf Veterans Illnesses’ or on the
Internet at: http://www.mod.uk/ policy/gulfwar/index.htm. The postal address for enquiries is Gulf
Veterans Illness Unit, Room 8270, Ministry of Defence, Main Building, Whitehall, London SWIA
2HB. Asbestos-related Disease
Asbestos dust and fibre principally affects the lungs, although it can cause problems in other
organs too. Once asbestos dust or fibre is inhaled, a proportion may stay in the lungs for the rest of
the individual’s life. In time - between fifteen and forty plus years - the asbestos may cause disease.
The effect of asbestos-related disease ranges from asymptomatic illness to certain death. There is no
clear link between the level of exposure to asbestos dust and fibre and the likelihood of developing
disease. There is very little prospect of a cure being found for the diseases: the best sufferers can
hope for is help in alleviating their symptoms. Regrettably, in the past, some Ministry of Defence
employees were exposed to levels of asbestos higher than is permitted today. Unfortunately, the
numbers of present and former Ministry of Defence employees who have died as a result of an
asbestos disease, are currently suffering, or are yet to develop a disease, are not known. Generally,
however, RN personnel who served afloat in any capacity during the period from the end of the
second world war to the 1970s when regulations on the use of asbestos were introduced,
particularly those working in ships’ boiler rooms, are most likely to have been at risk. Ministry of
Defence civilians involved in ship refitting or repair in the same period are also likely to have been at
Since most Service personnel will have been exposed prior to 15 May 1987 (the date from
which they could receive compensation for Ministry of Defence negligence – see paragraph 1.8.)
they are not able to receive compensation. This position was confirmed in a Court of Appeal
judgement 1. (Leave to appeal to the House of Lords was not given.) They are however entitled to
war pensions and associated benefits from the War Pensions Agency. Civilian employees have,
since 1947, been able to sue the Ministry of Defence for common law compensation.
The number of former Ministry of Defence employees who have or will develop asbestos
related disease is unknown. However, during the period 1 April 1985 to mid June 1998, 2,488
common law compensation claims for asbestos-related disease were received from Ministry of
Defence or former Ministry of Defence civilian employees (approximately 200 a year). The
Department receives, on average, about 13 claims from former Service personnel a year for
Ronald Quinn -V- Ministry of Defence
For several years campaigners working on behalf of former Servicemen have argued that the
compensation Servicemen receive is less than their civilian counterparts with the same degree of
disability and that this is unfair. As a result, and following a meeting with interested MPs on 16 July
1997, the then Minister (Armed Forces) asked for advice on the issue. Specifically, he wished to
consider whether there is any unfairness in the amount of financial compensation paid to former
Service personnel when compared to civilians. Minister (Armed Forces) has received advice on this
issue from Claims officials, which is under consideration.
Nuclear Test Veterans
Ex-Service personnel who participated in the atmospheric nuclear tests in the late 50s/early
60s have been campaigning for some years for compensation, alleging that their health has been
damaged by exposure to ionising radiation. While it is acknowledged that some veterans are ill, and
some have died, there is no evidence of excess illness or mortality among the veterans as a group
which could be linked to their participation in the tests. This is borne out by independent studies into
the health of test veterans carried out by staff from the National Radiological Protection Board
(NRPB) and the Imperial Cancer Research Fund
which showed that for the British veterans as a group, their participation in the nuclear test
programme has not had a detectable effect on their expectation of life, or on their risk of developing
cancer or other fatal diseases.
The Ministry of Defence has agreed, however, to fund a further study by the NRPB into the
incidence of multiple myeloma in the veterans of the tests. The study will address the question of
multiple myeloma rates in the NRPB database which records some 22,000 veterans and a like
number of matched controls. This decision was in response to a recent analysis of the NRPB which
noted an increase in numbers of veterans and members of the study control population who are
developing this illness.
As reported in last year’s Claims Annual Report, in June 1998 the European Court of
Human Rights ruled in favour of the UK in the two test cases it heard on 26 November 1996.
(McGinley and Egan -v- UK and LCB -v- UK). However, the British Nuclear Test Veterans
association have subsequently succeeded in persuading the European Commission of Human
Rights to revisit the judgement in the case of McGinley and Egan on the grounds of alleged new
evidence. The Government is contesting this and a decision by the European Court of Human
Rights is awaited. Post Traumatic Stress Disorder
The Department’s position concerning stress is that we acknowledge that some members of
the Armed Forces may, during the course of their careers, be subjected to traumatic experiences
and may suffer stress as a result. This does not necessarily mean that the Ministry of Defence has
been negligent or that the individual will receive compensation. The Department does, however,
have a duty to ensure that Service personnel receive proper treatment and where we fail in this
respect, and the individual suffers some loss or damage as a result, then that individual may be
entitled to compensation. This is often referred to as the failure to recognise, diagnose and treat
Last year 54 new PTSD cases were received, mainly relating to service during the Falkland
Island conflict, the Gulf war, Bosnia and Northern Ireland. In one such case involving a former
Falklands veteran, which proceeded to court in late 1998, the Judge found for the Ministry of
Defence on all counts. The court accepted a defence based on Section 10 of the Crown
Proceedings Act; rejected the Claimant’s case that the Ministry of Defence had failed to implement
any proper system for detecting and treating PTSD; and was surprised that the Claimant never once
complained to any medical officer of any symptoms of PTSD whilst in the Army.
MOD CIVILIAN EMPLOYEES EMPLOYER’S LIABILITY CLAIMS
Since 1982, the Ministry of Defence has contracted out the handling of its civilian employees
employer's liability claims. Following a competitive tender exercise in 1997, which for the first time
excluded an insurance element in the contract on value for money grounds, the contact was awarded
to Guardian Insurance Services (UK) Limited.
Civilian Ministry of Defence employees injured in the course of their official duties may be
able to claim compensation. Details on how to submit a claim are contained in Volume 16, Section
7 of the Ministry of Defence Personnel Manual. The main types of claims received in the last three
years from current or former Ministry of Defence civilian staff are listed in the Table below.
Civilian Employees Employer’s Liability Claims Received Type
Number of claims received
In each financial year
Noise Induced Hearing Loss
Vibration White Finger
THIRD PARTY MOTOR CLAIMS
Since 1982, the Ministry of Defence has contracted out the handling of third party motor
claims against the Department. Following a competitive tender exercise in 1997 the contract was
awarded to Guardian Insurance Services (UK) Limited. Details were published in DCI GEN 1/98.
The majority of motor accidents involving Ministry of Defence vehicles occur within the UK,
although Guardian do handle around 40 third party claims each year from UK based vehicles
travelling in mainland Europe. The number of third-party claims received by Guardian and their value
is shown in the Table below.
Third-Party Motor Claims
Claims arising from non-UK based vehicles overseas are handled by the appropriate Area
Claims Officers (ACO) or DC&L(F&S)Claims where no ACO exists in that geographical area. In
addition, DC&L(F&S) Claims handle third party claims involving Visiting Forces in the UK. Any
personal injury element of such claims are handled in exactly the same way as other injury claims,
and damage claims are settled on production of a bill or an expert’s assessment. In certain cases
loss of use and depreciation will also be paid. DC&L(F&S)Claims does not pay for damage to
Ministry of Defence owned or hired vehicles as this is the responsibility of the unit involved.
Statistics for motor claims (excluding claims handled by Guardian Insurance Services (UK)
Ltd) for the last three years are shown in the Table below. The upward trend reported last year
appears to have levelled off.
Motor Claims (excluding claims handled by Guardian Insurance Services (UK) Ltd)
1996/1997 1997/1998 1998/1999
No of motor claims received
Total costs (excluding in-house administration)
The figures for compensation payments made in respect of hire cars which were ‘written off’
are included in the table above, but when extracted are as follows:
Vehicles written off
Cost incurred (excluding in-house admin costs)
The number of claims in these categories being received should be taken in the context of
the total number of hires (150,000) and miles driven (approximately 45 million) last year.
SERVICE PERSONNEL EMPLOYER’S LIABILITY CLAIMS
During financial year 1998/1999, Royal Sun Alliance (RSA), (who, since 1 July 1996, have
been contracted to handle new claims from Service personnel for personal injury), received 738
claims. Over the same period they settled 132 claims for £866,195.04 and a further 165 claims
were either repudiated or withdrawn. Also during financial year 1998/1999, 280 employer’s liability
claims from Service personnel received before 1 July 1996 and handled ‘in-house’ by DC&L(F&S)
Claims were settled at approximately £26,000,000 inclusive of legal costs. The number and value
of cases settled by RSA may appear low but this is because of the time it takes for claims, especially
major ones, to be investigated before they are resolved one way or another.
Service Personnel Employer’s Liability Claims Received
Number of Service personnel claims
received (includes personal injury,
medical negligence etc Bullying
The number of claims from Service personnel alleging personal injury as a result of bullying
(physical or mental) is relatively small. At present there are about 38 active bullying/abuse related
claims which includes 7 claims received during financial year 1998/1999. These cases are being
investigated by RSA
Unlawful Imprisonment / Detention
The importance of units adhering to the correct procedures during the arrest and/or
imprisonment of Service personnel pursuant to The Armed Forces Act 1966 is underlined by
the number of claims received from Service personnel alleging unlawful imprisonment/detention.
During 1998/1999 13 such claims were received, with a total potential financial liability of
approximately £200,000. A typical example is the failure in the arrest/imprisonment process which
generally relates to administrative errors, such as the failure to charge the prisoner; to complete the
charge sheet, or to complete, as appropriate, the 8, 40, 56 and 72 day delay report. Simple
administrative errors can cost the Department dearly.
RADIATION COMPENSATION SCHEME
The Ministry of Defence’s policy on compensation for past and present radiation workers
(both civilian and military) is to be a member of the nuclear industry’s Compensation Scheme for
Radiation Linked Diseases, which the Ministry of Defence joined in 1994. This is a no fault scheme
where there is no requirement for Claimants to prove negligence on the part of the Department in
order to receive compensation. The Scheme was set up and is run jointly by the participating
employers and Trade Unions and does not affect a Claimant’s right to seek legal redress. The
Scheme provides for the assessment of a case, on an agreed technical basis, in order to determine
the probability that a cancer contracted by a worker could have been caused by occupational
The amount of compensation payable in a successful case is determined by negotiation
between the solicitors representing the parties, based upon the same guidelines as would apply if the
case had proceeded to Court. However, the Scheme provides for payments to be made for lower
levels of causation probability than would be allowed by the Courts. In addition, the Scheme
provides a “full” payment at a level of 50% causation probability and lesser payments down to a
level of 20% causation probability. In this way the assessment of a case recognises that even below
the balance of probability there is a chance that exposure to occupational ionising radiation played a
role in the disease.
During financial year 1998/1999, the Scheme received 35 enquiries from former Ministry of
Defence employees (military and civilian) who believe their illness is associated with exposure to
occupational ionising radiation. Over the same period one claim from a former civilian employee
was settled. (Since 1994 four Ministry of Defence cases have been settled under the Scheme).
CLINICAL NEGLIGENCE CLAIMS
Lord Justice Woolf stated during his review of the Civil Justice system that the number of
complaints and claims against hospitals, GPs, dentists and private healthcare providers continues to
grow as patients become more prepared to question the treatment they are given, to seek
explanations of what happened, and secure appropriate redress. Patients may require further
treatment, an apology and assurances about future action or simply financial compensation. These
trends are unlikely to change. The Patients Charter encourages patients to have high expectations.
Service personnel, their dependants and members of the public who receive medical treatment from
Service sources have the same high expectations.
In deciding whether a defendant’s medical care fell within an acceptable standard, the
courts rely upon the test laid down in the case of Bolam -v- Friern Hospital Management committee
(1957), namely that a doctor is not negligent if he/she acts in accordance with a practice accepted at
the time by a responsible body of medical opinion even though other doctors adopt a different
practice. The “Bolam Test” remains central to the issues on liability and causation in clinical
By their very nature clinical negligence claims can take a long time to settle. In many cases
the Claimant will not wish to agree settlement until the full extent of their disablement is known. In
some particularly complicated cases the Claimant may have instructed a number of experts in
different disciplines to prepare reports on their behalf. Similarly, the Ministry of Defence may also
wish to instruct experts to prepare reports on its behalf. This process can often take a long time as
experts may not be readily available, especially those who specialise in rare areas of medicine.
One of the Civil Justice reforms recommended by Lord Justice Woolf will encourage
economy in the use of experts and a less adversarial expert culture. For example, there may be
scope in some cases for experts to be instructed jointly. Sharing expert evidence may also be
appropriate on issues relating to the value of a claim.
During financial year 1998/99 a Claims section dedicated to the handling of clinical
negligence claims was formed and a significant number of clinical negligence claims were either
settled or repudiated. Two claims were settled for sums exceeding £1M and one claim for a sum
exceeding £2M. 255 new claims were received during this period and the number of active clinical
negligence cases at the end of financial year 1998/99 was 399. The comparative figure at the end of
financial year 1997/1998 was 530 active cases. Details covering the past four years are shown in
the following table.
Number of Clinical Negligence claims
Number of Clinical Negligence claims
Compensation plus cost of claims settled
( excluding in house staff costs )
Maritime Claims by and against the Ministry of Defence result mainly from collisions, oil
spillage, gunnery/missile firing incidents, damage to static property, wash damage, fishing gear
damage and the salvage and recovery of RN property. Maritime law is complex and much of the
legislation dealing with the law of the sea was enacted more than ninety years ago.
Flag Officer Scotland, Northern England and Northern Ireland (FOSNNI) and Flag Officer
Sea Training (FOST) have delegated authority to settle claims of up to £8,000 per fishing gear
claim, £5,000 per collision claim and £1,000 per oil spillage claim. Salvage
The Ministry of Defence provides assistance to ships in distress in UK waters and regularly
helps in other parts of the world. If as the result of the assistance given by a Ministry of Defence
owned ship or aircraft a vessel is salved, the Ministry of Defence is entitled to claim salvage based
on the value of the ship and its cargo. Part of the amount in salvage is paid to the crew of the
assisting ship or aircraft in accordance with the Merchant Shipping Act 1864. It is Ministry of
Defence policy not to claim salvage when life saving has been the main aim of the assistance given.
Maritime/Salvage statistics for the last three years are shown in the Table below.
The increase in claims received last year is as a result of one pollution incident. This has led
to 135 claims which are still active. The increase in expenditure is due to the Maltese tug case
referred to earlier in Section 2.
Maritime claims settled by FOST and FOSNNI
Number of FOSNNI claims settled
Compensation paid by FOSNNI
Number of FOST claims settled
Compensation paid by FOST
Total compensation paid
Maritime Recoveries and Salvage
Total recovered (excludes “Albanian Gold”)
In October 1946 two British warships were badly damaged by mines laid in the Corfu
channel by Albanian Forces. The vessels’ crews suffered significant loss of life and injuries.
Subsequently the International Court of Justice ruled that Albania should pay compensation to
Britain. The Albania government refused, however, and Britain consequently retained a large
quantity of gold belonging to Albania, which had been sent to the Bank of England for safe keeping
at the outbreak of the Second World War. After negotiation between the British and Albanian
governments, the matter has been amicably resolved by the release of the gold in return for a
compensation payment to Britain of £1.24M. This sum was paid into the DC&L(F&S) Claims
Maritime Recoveries account towards the end of 1998/1999.
MILITARY LOW FLYING CLAIMS IN ENGLAND, SCOTLAND AND WALES
Military low flying activities sometimes result in claims for compensation from members of
the public. Claims are most often received for injured livestock and/or property damage but
sometimes for personal injury. Although many of the claims are for relatively small amounts, military
low flying is controversial in some areas of the country. Although investigated on the basis of legal
liability, DC&L(F&S)Claims handles military low flying claims on an ex-gratia basis. This is founded
on the premise that the Royal Prerogative gives an absolute right for all military flying activity and,
therefore, an injured party has no legal rights of redress for compensation. This approach was set
out in a Lords Written Answer by Lord Drumalbyn on 22 November 1971 (Official Report Column
"… No remedies exist in law against any military aircraft flying by virtue of the Royal Prerogative for
the purpose of the defence of the Realm or of training or of maintaining the efficiency of the Armed
Forces of the Crown. The ... Ministry of Defence will, however, pay compensation on an ex gratia
basis if satisfied that the damage has been caused by a military aircraft."
In June 1994, a procedure was introduced in consultation with various farming unions and
landowners' associations for processing claims relating to death or injury of livestock. Meetings
between DC&L(F&S) Claims and the National Farmers Union greatly assist in keeping both sides
informed of developments and improve the procedures. Under this procedure farmers should report
the incident promptly, provide veterinary evidence and a fully quantified claim.
Unfortunately, this is a category of work which requires careful monitoring to identify
potentially fraudulent claims. In March 1998, a Claimant alleged that while he was riding his motor
cycle on the motorway, 2 Hercules aircraft passed overhead causing him to look up suddenly,
thereby injuring his neck. He claimed that he had taken a number of days off work as a result, but
on investigation this proved to be entirely false. In July 1998 he was convicted of attempted fraud,
sentenced to Community Service and ordered to pay costs.
In an effort to improve public relations, RNAS, AAC and RAF Station Commanders have
been given delegated authority to settle straightforward claims up to £200 if a Claimant lives within
two miles of the airfield. In addition, the Chief Claims Officer has given Regional Community
Relations Officers (RCROs) the authority to recommend fast track settlements for simple claims up
to a value of £250.
Low flying claims statistics for England, Scotland and Wales
Number of military low flying claims settled
Low flying claims expenditure
The number of low flying claims received remains fairly constant. The increase in the overall
value of compensation paid last year can be attributed in part to one claim alone (£185,000) which
is referred to in Section 2 of this report. Interestingly, many of the new claims received, although
relatively low in value, were complex and there is a continuing tendency for Claimants to claim for
losses that can only remotely be connected to low flying.
The Defence Estates organisation (DE) has delegated authority to settle property damage
claims arising from military air crashes in the UK within delegated financial authority of up to
£50,000 per claim. DE personnel perform valuable work in the aftermath of an air crash and have
the expertise to assess many different types of damage from forestry to buildings.
Air Crash claims settled by DE
PUBLIC LIABILITY CLAIMS
Public liability claims are submitted by third parties. The majority of claims are for personal
injury or the loss of, or damage to, property. Most personal injury claims are from members of the
public or contractors injured on Ministry of Defence property but can also be from individuals
participating in ‘Keeping the Army in the Public Eye’, ‘Executive Stretch’, and other recruiting
activities which are not covered by insurance.
Property claims usually result from damage to private belongings on Ministry of Defence
land or in married quarters, often because of a lack of maintenance resulting in buildings being
flooded, moth infestation, falling roof tiles, falling trees, drain covers collapsing, etc. Some of the
more expensive claims result from negligence on Ministry of Defence property resulting in flood or
pollution to adjoining private property.
Public Liability (PL) Claims
Number of PL claims received
Number of PL claims settled
Compensation plus cost of claims settled
(excluding in house staff costs)
After paying compensation of some £5.163M in 1997/1998 to the families of those killed in
the 1994 Chinook helicopter crash at the Mull of Kintyre, compensation payments have now
returned to the levels previously experienced. Public Liability Claims - Northern Ireland
For security reasons, DC&L (F&S) Claims handle all Northern Ireland public liability claims
of a political and/or sensitive nature. Claims mainly result from the on duty contact which military
personnel have with members of the public. The majority of claims are for assault, baton round
injuries, harassment, shootings and wrongful arrest. Some claims are very high profile, such as the
shooting of alleged terrorists by the Security Forces. Compensation payments are usually subject to
a Terms Endorsed clause whereby each side agrees not to disclose specific details once settlement
has been reached. Examples of claims settled in 1998/1999 are: £750 paid to a man unlawfully
detained by the Security Forces; £3,500 paid to a woman struck by a plastic baton round, and
£2,500 paid to a man assaulted by the Security Forces.
Public Liability Claims arising in Northern Ireland
Number of claims received
Number of claims settled
Compensation plus cost of claims settled (excluding in £326,000
house staff costs)
The number of claims received in 1998/1999 continues to show a sharp fall and is most
certainly due to the cease fire, which in turn led to less military activity in support of the RUC.
Visiting Forces Claims
DC&L(F&S)Claims handles third party claims by and against Visiting Forces based in or
visiting the United Kingdom under the provisions of Article VIII Paragraph 5 of NATO SOFA and
Section 9 of the Visiting Forces Act 1952. Such claims could be on behalf of any
of the states who are signatories to the two agreements, but primarily involve the USA, Holland,
Belgium and Germany. Claims are investigated and handled in exactly the same way as if British
Forces were involved and, if satisfied that the Visiting Force is liable, the Ministry of Defence pays
compensation on their behalf. In the case of NATO countries, the Sending State is billed for 75%
of the amount paid, the United Kingdom paying the other 25%. The vast majority of Visiting Forces
cases result from road traffic accidents.
Visiting Forces Claims
1996/1997 1997/1998 1998/1999
Number of visiting forces claims received
Number of visiting forces claims settled
Compensation plus cost of claims settled (excluding in £318,000
house staff costs)
While the number of claims received and settled remains fairly constant, the level of
compensation paid has shown a modest decrease.
SERVICE PERSONNEL EMPLOYMENT TRIBUNAL CLAIMS
In addition to common law claims, DC&L(F&S)Claims also handles claims relating to
Employment Tribunal applications brought by current or former Service personnel As from 3 August
1998, Industrial Tribunals have been referred to as Employment Tribunals (ETs) and although these
are independent judicial bodies their procedures are quite unlike those of other Courts. They are
intended to be relatively simple and informal: lawyers are not always involved as some applicants,
and respondents, choose to represent themselves. Claims brought typically involve allegations of
unfair dismissal, sexual/racial discrimination or sexual/racial harassment. Whilst the single Service
secretariat branches will initially receive and investigate Employment Tribunal applications, they have
no delegated financial authority to settle them and claims can only be settled by obtaining the
agreement of DC&L(F&S)Claims who hold funds centrally. ET applications made by the
Department’s civilian employees are handled and settled by the appropriate Civilian Personnel
Management Authority. There is no DC&L(F&S)Claims involvement with such claims.
The composition of an Employment Tribunal consists of a legally qualified Chairman (always
called a “Chairman”, whether male or female) plus two other lay members, one of whom will be
from an employers organisation and the other from an employees organisation - normally a Trades
Service personnel have the right to submit complaints to ETs under the Sex Discrimination
Act 1975 (& 1986), the Race Relations Act 1976 and the Equal Pay Act 1970. However, the
regulations, which came into force on 1 October 1997, require personnel first to have made a
complaint on the same matter under the Service redress procedures and for that complaint not to
have been withdrawn.
In recognition of the requirement for complaints to be submitted first under the internal
redress procedures, the time limit for a Service complainant to refer his/her case to an ET on all
eligible matters is six months, instead of the normal three months.
During 1998/1999, four new claims were received which involved equal pay, redundancy or
pension matters. No claims were settled during the year but six claims were repudiated, withdrawn
by the applicants or struck out by the ET.
During 1998/1999, 31 new claims were received alleging sexual discrimination (compared
to 138 in 1997/1998). Four of these claims also involved allegations of sexual harassment. Fourteen
sexual discrimination cases were settled during the year at a cost of £425,000 (compared to 16 at a
cost of £271,000 in 1997/1998) and 36 cases were repudiated, withdrawn by the applicants or
struck out by the ET.
During 1998/1999, four new claims were received alleging sexual harassment (compared to
11 in 1997/1998). Five sexual harassment cases were settled during the year at a cost of £144,000
(compared to 5 cases at a cost of £173,614 in 1997/1998) and two cases were repudiated,
withdrawn by the applicants or struck out by the ET. Please also note the section on “Homosexuals”
below, in view of the Tribunal’s decision on 9 December 1998 to allow their Originating
Applications to be amended to now include allegations of sexual harassment.
During 1998/1999, 16 new claims were received alleging racial discrimination compared to
14 in 1997/1998, of which three also involve allegations of racial harassment. Two racial
discrimination cases were settled during the year at a cost of £6,000 and four cases were
repudiated, withdrawn by the applicants or struck out by the ET.
During 1998/1999 three claims were received alleging racial harassment. No racial
harassment cases were settled during the year and one case was withdrawn by the applicant prior to
an ET hearing. Pregnant Servicewomen
12.10 The handful of pregnancy dismissal cases outstanding at the beginning of 1998/99 were all
successfully settled during the course of the year at a cost of £520,063. All 5,038 claims received
have now been settled in full at a total cost of £60,279,782 No further payments will be made.
12.11 The Ministry of Defence received a total of six new claims in 1998/1999 - making a total of
86 claims received - from men and women who allege that they were dismissed from the Armed
Services solely on the grounds of their homosexuality. All these cases were stayed by the Tribunal
pending the determination by the European Court of Justice ( ECJ ) of the questions referred to it by
the Divisional Court in the lead case of ex-RN rating Perkins.
12.12 On 13 July 1998 in the High Court Mr Justice Lightman withdrew the reference to the ECJ
in Perkins on the basis that the ECJ in Grant -v- South West Trains Ltd had sufficiently answered
the question when it ruled that the Equal Treatment Directive does not afford protection against
discrimination on the grounds of sexual orientation. As a result of this 18 applicants either withdrew
their applications or had their applications struck out by Employment Tribunals.
12.13 A further Employment Tribunal hearing took place on 9 December 1998 to hear the
Ministry of Defence’s arguments that, in view of the decision in Perkins, the remaining applications
should also be struck out. The solicitors acting for a number of the remaining applicants, whilst now
conceding the dismissals themselves can no longer be argued as unlawful, argued that the manner of
their clients’ dismissals, and in particular the investigations into their sexuality prior to dismissal,
amounted to unlawful sexual harassment. The Tribunal’s decision was that all remaining applicants
should be permitted to amend their Originating Applications to now include an allegation of sexual
harassment, and 58 have now done so. The sexual harassment claims relate to their treatment
during the investigations conducted by the military police in order to establish the applicants’ sexual
orientation. Therefore, even if the applicants succeed in establishing that sexual harassment has taken
place their claims will be for compensation for injury to feelings rather than claims based on the loss
of their Service careers.
12.14 The present position is that the solicitors acting for the majority of the applicants have, on the
instructions of the Tribunal, been granted discovery of various Ministry of Defence documents
relating to the applicants’ dismissals. The solicitors will now seek to identify “lead cases”, which
they can then take back to the Tribunal for the purposes of obtaining a preliminary ruling.
CLAIMS ARISING FROM OVERSEAS OPERATIONS AND EXERCISES
Operational claims arise from the deployment of troops to such theatres as the former
Yugoslavia, the Gulf, Namibia or from overseas training exercises such as Purple Star and Ulan
Eagle. The full range of claims can result from such operations but experience has shown that the
vast majority result from road traffic accidents and property damage. Combat related claims and
those for wear and tear to roads are routinely rejected. If the operation is carried out under NATO
SOFA or a Memorandum of Understanding, we are obliged to consider ex-gratia claims resulting
from the off duty activities of Service personnel. On large scale or long term operations and
exercises it is likely that a claims officer will be deployed within the Civil Secretariat.
AREA CLAIMS OFFICERS (ACO)
ACO Northern Ireland
The majority of compensation claims handled by ACO Northern Ireland in 1998/1999
related to military helicopter activity and most often concerned the loss of livestock and alleged
damage to property. Other main heads of claim include damage to property, such as cut fences,
broken farm gates, etc., caused by military personnel on operational duty; and personal injury claims
from third parties. ACO Northern Ireland does not handle politically sensitive claims such as
shooting, assault, wrongful arrest or personal injury resulting from the actions of military personnel on
ACO Northern Ireland
Number of claims received
Number of claims settled
Number of claims repudiated/not pursued
ACO North West Europe
ACO NWE at JHQ Rheindahlen is responsible for handling claims by and against the
Ministry of Defence in Germany, Norway, Denmark, Holland, Belgium, Luxembourg, France,
Austria and Switzerland. ACO NWE also acts as agent for the Danish Government and all the
Ministry of Defence sponsored organisations located in North West Europe. The organisation
handles three major areas of claims work: traffic accidents; training and manoeuvre; and
miscellaneous. Claims are processed in accordance with Article VIII(5) of the NATO Status of
Forces Agreement and Article 41 of the Supplementary Agreement. Claims are dealt with by the
appointed agency in each of the countries in accordance with the laws and regulations of that
country and in close liaison with the ACO NWE staff.
Settlements are negotiated by the host nation (if a NATO partner) which bills the UK for
75% of the total paid. It is in the interest of the Host Nation to keep costs as low as possible as they
pay the other 25%.
Outside his usual geographical region, ACO NWE handles claims arising from British
Forces training activity in Poland where some 90% of the total £350,000 exercise damage
expenditure is committed.
ACO NWE deals with many claims involving personal injury, which can involve substantial
sums of money. Where Service personnel are killed or injured in Germany through the negligence of
a third party it is possible for the Ministry of Defence to recover its losses (medical costs,
evacuation, repatriation of the body, loss of service, etc.) and much of ACO NWE’s recovery work
involves this type of claim.
ACO North West Europe
Number of claims received
Number of claims closed
Last year was relatively quiet in terms of claims received for ACO NWE. This reflects
reduced troop and vehicle numbers in theatre and the rundown of the RAF presence in Germany. ACO Cyprus
Two Claims staff are responsible for claims by and against the Ministry of Defence within
the geographical area of Cyprus and its territorial waters. A similar range of claims are handled to
those received by ACO North West Europe but, in addition to NATO SOFA, the Cyprus Treaty
of Establishment also applies. Advice and assistance is provided by DC&L(F&S) Claims when
requested and those claims where proceedings have been issued in the UK, or those likely to
exceed £50,000, are transferred to DC&L(F&S) Claims to handle.
Number of claims received
Number of claims closed
ACO Bosnia is based in The Metal Factory, Banja Luka and deals with all claims by and
against the UK contingent of SFOR and has authority to settle third party claims up to £75,000. He
has recently assumed claims responsibility for Operations UPMINSTER and AGRICOLA in
Macedonia. Most claims result from traffic accidents, but there is also a large number of property
damage and personal injury claims. Claimants frequently visit the office to negotiate their claims and
to receive cash payments. The ACO travels a great deal, inspecting property damage and meeting
Claimants. He also represents the UK at Claims Commission Hearings in Croatia, Bosnia &
Herzegovina and Republic Srpska.
Number of claims received
Number of claims closed
Claims Officer Falkland Islands
In the Falkland Islands, the Claims Officer has authority to handle property damage claims
up to a value of £5,000. Claims are handled in accordance with local law which is, in fact, identical
to English law. As can be seen from the Table below, in financial year 1998/1999, very few claims
were received and settled. It should be noted, however, that the Claims officer is also responsible
for other areas of work including lands, contracts, repayment matters and finance.
Claims Officer Falkland Islands
Number of claims received
Number of claims settled
SPEND ON BEHALF OF TOP LEVEL BUDGET HOLDERS
Work is under way to replace the present Claims management information system
(TAURUS) which is limited in its capabilities. For example, it cannot link individual claims to a Top
Level Budget (TLB) area in which the incident occurred. A requirements analysis for a replacement
database has been prepared but further work will be necessary in order to implement a replacement
Where the Ministry of Defence sustains loss or damage to equipment which has been
caused by a third party, DC&L(F&S)Claims seeks to recover those losses from the third party. The
main causes for taking action against third parties are where Ministry of Defence static property has
been damaged by fire, negligence of a contractor, traffic accidents overseas; damage to Visiting
Forces vehicles and static property in the UK. A contract is in place with Willis Corroon Ltd to
handle these claims in the UK. Recovery claims world- wide, except where there is an Area Claims
Officer, are handled by DC&L(F&S) Claims. Additionally, DC&L(F&S)Claims will take over the
responsibility for a claim when Willis Corroon have failed to recover and decide if legal action to
recover is appropriate.
The number of recoveries processed by DC&L(F&S)Claims in each of the last three
financial years is shown in the following Table:
No of claims notified
No of successful recoveries
In addition, Willis Corroon, received approximately 500 recovery actions arising from RTAs
in the UK in the last year and recovered approximately £475,000.
INSURANCE AND INDEMNITIES
Treasury guidelines generally discourage public bodies from insuring risks unless it can be
shown that the potential cost of claims paid, together with the cost of handling such claims, will
exceed the cost of purchasing insurance. As the cost of premiums compared to the amounts paid in
compensation would normally favour insurance companies, the Ministry of Defence self-insures its
DC&L(F&S)Claims takes the policy lead on all Ministry of Defence non-contractual
insurance issues and encourages units and establishments to transfer risks arising from non-core
activities away from the Department.
Willis Corroon (Aerospace) Ltd provide insurance which is self-financing for four specific
non-core aviation risks:
Military aircraft attendance at air displays
Civil use of military airfields
Search and rescue training with civilian organisations
Fare paying passengers on military aircraft Indemnities
DC&L(F&S)Claims is responsible for all non-contractual indemnity matters, ranging from
issuing indemnities to land owners who are letting the Armed Forces use their land for exercises to
commenting on different clauses within DE licences, indemnity provisions within MOUs and other
The Ministry of Defence always seeks an indemnity against claims arising from activities or
events that are not considered to be core business, or when activities or events do not further the
interests of the Department. The Ministry of Defence must seek indemnity in such instances as there
is no provision in the Defence Estimates to meet claims which are not Defence related. Indemnities
must be backed by insurance or a guarantee for those companies/organisations that self-insure. The
only exceptions to the requirement for indemnity are when the Ministry of Defence is dealing with
other Government Departments. This is because of the principle of indivisibility of the Crown.
DC&L(F&S)Claims issued approximately one hundred indemnities in 1998/1999 and
commented on approximately one hundred other indemnity related issues.
Indemnities that arise from the Department’s contractual business are the responsibility of
the appropriate Contracts Branch, with policy guidance provided by the Procurement Executive
DEVELOPMENTS IN LAW AND PRACTICE
Civil Justice Reforms
“April is the cruellest month”
T S Eliot
The greatest upheaval ever in the Civil Litigation process occurred when the New Civil
Procedure Rules were introduced on 26 April 1999. The Rules which replace the existing High
Court and County Court Rules, will significantly change the way common law claims are handled, in
an attempt to speed up, simplify and make the whole process less expensive. The Rules, which
include pre-action protocols, will govern the conduct of litigation and will encourage the appointment
of a single expert to provide an independent opinion.
The overriding objective of the rules is to enable the court to deal with cases justly in ways
which are proportionate to the amount of money involved, the importance and complexity of the
case, and to the parties’ financial position.
• Litigation will be avoided wherever possible
• Litigation will be less adversarial and more co-operative
• Litigation will be less complex
• The timescale of litigation will be shorter and more certain
• Parties will be on a more equal footing
• There will be clear lines of judicial and administrative responsibility for the civil justice system
• The structure of the courts and the deployment of judges will be designed to meet the needs of
• Judges will be employed effectively so that they can manage litigation in accordance with the new
rules and protocols
• The civil courts system will be responsive to the needs of litigants
The Courts will begin to take a pro-active approach to case management. In addition, they
will encourage the parties to co-operate and consider adopting other methods of settlement such as
alternative dispute resolution. The Courts will decide the order in which issues are to be resolved
and fix timetables to control the progress of the case.
Proportionality will play an important part in the new system and the courts will consider
whether the potential benefit of taking a particular step justifies the cost. Experts
In the majority of cases a single expert will be instructed and evidence, assuming the case
proceeds to court, will normally be in the form of a written report. The Defendant and Claimant
may submit written questions to the expert and both sides will see the expert’s response. If the
parties to an action cannot agree upon an expert witness they may instruct their own choice of
expert but, if the court decided that either party has acted unreasonably, they will not be able to
recover the costs of obtaining the expert report. Pre Action Protocol
Lord Woolf in his final ‘Access to Justice’ report of July 1996 recommended the
development of pre-action protocols: “To build on and increase the benefits of early but informed
settlement that genuinely satisfy both parties to dispute.” The Rt. Hon the Lord Irvine of Lairg the
Lord Chancellor strengthened this message in the Foreword of the New Civil Procedures Rules
when he stated “We must not forget, however, that we should see litigation as the last resort and not
the first resort in the attempt to settle the dispute”.
The first two pre-action protocols (primarily designed for cases with a value of less than
£15,000), on personal injury cases and clinical negligence have now been published. Another, on
the instruction of experts will follow and will explain in more detail how experts must write their
reports. Eventually all types of litigation will be categorised and, if appropriate, pre-action protocols
The aims of the pre-action protocol are to promote more pre-action contact between the
parties, better exchange of information, better pre-action investigation and thereby to put the parties
in a position to settle cases fairly and early, reducing the need for litigation.
If defendants are unable to comply with the pre-action protocols the courts will have the
power to impose sanctions due to non-compliance when proceedings are commenced. Sanctions
will likely include a refusal to grant further extensions of time for serving a defence or evidence and
costs penalties. Fast-Track and Multi-Track
18.10 Personal injury claims will be assigned to either a fast-track or multi-track.
18.11 Fast-track cases will be limited to a value up to £15,000 and will proceed to a hearing
18.12 There will be an automatic timetable for compliance with the various stages of the litigation.
The hearings are designed to be relatively short and in the majority of fast-track cases written
evidence only from a single expert will be accepted.
18.13 Multi-track cases will generally involve claims with a value in excess of £15,000 or which
feature complex issues. Case management by the courts will play an important part in setting the
timescales for certain stages of the case and defendants may possibly be required to attend a case
conference before a judge, when decisions will be made as to the future conduct of the claim.
18.14 The personal injury pre-action protocol (primarily designed for cases with a value of less
than £15,000) sets out the following stages:
Letter of claim
18.15 The letter of claim will contain a clear summary of the facts on which the claim is based,
including allegations of negligence, and will include details of any injuries suffered or financial losses
incurred. Defendant’s reply
18.16 The defendant should acknowledge within 21 calendar days of the date of posting of the
letter of claim in Personal Injury cases and 14 calendar days in Clinical Negligence cases. Claim investigation
18.17 The defendant will have a maximum of three months from the date of acknowledgement of
the claim to investigate. No later than at the end of that period the defendant must inform the
Claimant or their legal representative whether liability is admitted in full, denied or there is a partial
admission. If the defendant denies liability they should enclose with the letter of reply documents
which are material to the issues between the parties, and which would be likely to be ordered to be
disclosed by the court. If a defendant is unable to comply with the requirements of the pre-action
protocol, the Claimant will be able to issue proceedings at the end of the three-month period.
18.18 If the defendant makes a proper denial of liability giving the detailed explanation and
documents required under the protocol, many cases will proceed no further. In such cases it will be
for the Claimant to make a decision whether to proceed with the case.
18.19 Defendants will no longer be able to delay making a decision as to whether to settle or fight
and they will no longer be able to make a simple blanket denial of liability without giving reasons. Proceedings
18.20 There will be a strict timetable for dealing with the Defence. In the majority of cases the time
limit will be 28 days after proceedings are served. One extension of time may be granted, although in
circumstances where the defendant has failed to comply with the pre-action protocol, it is very
unlikely that any extension will be given.
18.21 The Defence must also fulfil new requirements under the rules. The new requirements are as
• the Defence must state which facts are admitted;
• the Defence must state which facts are denied and provide supporting documentary evidence;
• the Defence must state the defendant’s own version of events; and
• the Defence must identify which facts the defendant is unable to admit or deny and which the
Claimant is required to prove.
Statement of Truth
18.22 Under the new rules a statement of truth must verify the Defence. The form of the statement
is as follows:
“The defendant believes that the facts stated in this defence are true.”
18.23 The statement is not sworn, but must be signed by:
• a senior officer of the company, corporation or organisation;
• a partner in control of a business; or
• a legal representative.
18.24 The person signing the statement of truth must identify his or her office or position in the
organisation. It follows that the person signing must have authority to sign on behalf of the
organisation. If a legal representative signs, he or she is deemed to have explained the
consequences to the defendant and the penalties are the same as if the defendant had signed.
18.25 A person who signs without honest belief in the truth of the Defence is guilty of contempt of
court. In an extreme case this could result in a fine or even a prison sentence for the person who
approved the contents of the Defence and authorised its signature.
18.26 It follows that in future solicitors will always ask the defendant to either sign the Defence or
to approve the contents of the Defence before signing on the defendant’s behalf.
18.27 If the Defence is not signed the court will strike it out and the defendant will lose his or her
opportunity to defend the claim.
18.28 Bearing in mind the tight time schedules, the Department will need to be in a position to deal
with the Defence quickly. In the case of Claims against the Ministry of Defence the appropriate
person to sign the Statement of Truth or verify the Defence will be the Chief Claims Officer. Disclosure
18.29 The new Civil Procedure Rules specify the type of documents which the defendant must
disclose and set time limits for doing so. Many of these documents will have been disclosed under
the pre-action protocol: i.e. within the initial three-month period for investigation.
18.30 Under the new rule, standard documents to be disclosed include:
• all documents which could adversely affect the case;
• all documents which could adversely affect the other side’s case; and
• all documents which could support the other party’s case.
18.31 A defendant is required to make a reasonable search for documents depending on:
• the significance of the document;
• the number of documents;
• the complexity of the case; and
• the ease and expense of retrieval.
18.32 The list of documents which is sent to the other side will include a disclosure statement
containing the following information:
• the identity of the person making the statement;
• the extent of the search that has been made to trace documents;
• why the person signing the statement is the appropriate person;
• confirmation that he or she understands the duty to disclose; and
• confirmation that that duty has been carried out to the best of his or her ability.
18.33 There will clearly be an onus on the defendant to make sure that the documents can be
obtained quickly and that they are up-to-date. The person who signs the disclosure statement or
who authorises the solicitor to sign it on the defendant’s behalf, must understand his or her duty and
have the appropriate authority within the organisation.
18.34 The implementation of the reforms will involve a massive change in working practices.
Claims officials have already undertaken additional training to ensure they comply with the new rules.
Units and Establishments will also need to be aware of how the new protocols and rules operate.
18.35 Accidents must be reported promptly and accurately with improvements made to document
handling and availability.
18.36 Claims officials will have to work closely with and remind Units and Establishments of their
duties to co-operate in supplying information and assisting in defence of claims.
18.37 Witnesses must be identified and made available for interview early in the claims process.
Similarly, defendants will need to be able to identify and find relevant documents.
18.38 The courts will not be sympathetic to the Department arguing that there has been insufficient
time to investigate a claim.
Counsel to Counsel Settlement Conferences
18.39 In cases where liability is not an issue, counsel to counsel settlement conferences are an
innovative and financially attractive way of settling cases without going to trial or settling at the court
room door. A round table consultation is arranged with the Department represented by counsel, the
Chief Claims Officer or Senior Claims Officer and Treasury Solicitor. This method of negotiated
settlement has had a significant effect on the way claims are handled due to the Claimant and
defendant showing an element of goodwill combined with a realistic approach. This has
demonstrated that it is possible to agree a settlement without recourse to the courts. An added
benefit is that the Claimant does not need to undergo the trauma of a court case to secure
compensation for an injury or loss caused by the Department’s negligence.
18.40 In 1998/1999, for example, 14 such conferences were held and compensation totalling
£11.3M was agreed against claims totalling £17.5M. Had these cases run to court, the legal costs
payable by the Ministry of Defence would have been significantly higher. It is estimated that savings
in legal costs of at least £500K were achieved.
18.41 Legal Aid for personal injury claims is to be abolished in October 1999. After that time the
majority of personal injury claims are likely to be the subject of a conditional fee whereby a
Claimant’s solicitor can uplift his normal charging rate by 100% if successful (providing the success
fee does not exceed more than 25% of the total compensation).
18.42 Conditional fees will cause a problem for Claims officials in trying to estimate the legal costs
element of settling a claim. One method of overcoming this problem will be to ask the Claimant’s
solicitor to clarify the basis of funding the costs together with an indication of the success fee agreed.
However, as the Rules stand, solicitors are not obliged to provide this information to the Defendant
and to do so might give an indication of the strength of their client’s case. In many cases, therefore,
the level of the success fee will not be know until after the case has settled.
DC&L(F&S)CLAIMS STAFF, PROGRAMME AND OPERATING COSTS -
FINANCIAL YEAR 1998/1999
£75,199,653 (compensation, legal costs, experts’ fees,
DC&L(F&S) average staffing as at 31 March 1999
Chief Claims Officer
Senior Claims Officer
IIP Implementation for the Division
Indemnities, Insurance, civilian staff employer’s liability claims and
third party motor.
Directorate Budget Manager and Management Planner
Branch Finance and Information Technology
DC&L(F&S)Claims is primarily responsible for processing common-law, non-contractual
compensation claims against and on behalf of the Ministry of Defence at home and abroad. They
are not responsible for contractual, quasi-contractual, sales or estates matters.
DC&L(F&S)Claims is split into four sections as follows: Claims 1
Responsible for the Budget management and financial planning for DC&L(F&S) and the
financial management of C&L(F&S)Claims.
Information technology systems
Responsible for the C&L(F&S)Claims information technology (IT) systems (CHOTS,
TAURUS, CHASP, CHAD).
Responsible for non-contractual insurance (principally non-core aviation risks), including
liaison with Ministry of Defence’s insurance brokers, indemnities and the claims aspects of
MOD Civilian employees employer's liability and third party motor claims
Policy relating to Ministry of Defence civilian employees employer's liability claims and Third
party motor claims handled on behalf of the Ministry of Defence by Guardian Insurance
Services (UK) Ltd.
Preparation of a Risk Management strategy to identify the circumstances which give rise to
claims for compensation and devise ways of reducing the causes of incidents.
Risk management statistics.
Regulational claims policy
Regulational claims are claims from employees for loss of or damage to personal property in
the course of their employment. Claims 1 is responsible for the claims handling policy.
Service personnel employer's liability claims
Responsible for the handling of Service personnel and ex-Service personnel employer's liability
claims received before 1 July 1996 and managing the contract with Royal and Sun Alliance who
have dealt with this type of claim post 1 July 1996.
Section 10 claims
Claims from members of the Armed Forces barred by Section 10 of the Crown Proceedings Act
Claims for compensation due to illness alleged to have been caused by exposure to radiation.
Gulf War illness
Potential claims for alleged Gulf War illness
Post Traumatic Stress Disorder
Claims from Service and ex-Service personnel alleging failure of the MOD to recognise, diagnose
and treat their PTSD
Miscellaneous claims from Service and ex-Service personnel including defective enlistment, false
prosecution, unlawful detention.
Public liability claims
Public liability claims, including personal injury, and property damage.
Claims against visiting forces in the UK (under Section 9 of the Visiting Forces Act 1952).
Claims relating to military low flying in England, Scotland and Wales.
Northern Ireland claims
Politically sensitive claims from members of the public arising from the activities of the Armed Forces
in Northern Ireland. These range from unlawful detention to shootings.
Maritime claims including accidents, salvage, collisions and damage to fishing gear (excluding
maritime claims involving damage to property abroad).
Privately owned vehicle damage claims and hired vehicle loss of use and write off claims.
Claims policy relating to overseas operations and advice to Area Claims Officers in Northern
Ireland and overseas. Ex-gratia payments
Responsible for ex-gratia payments, including the DERA/INM no-fault compensation schemes.
Criminal injuries compensation
Responsible for criminal injuries compensation claims from MOD Civil Servants’ dependants’ based
Recovery of MOD's uninsured financial losses.
Responsible for co-ordinating the MOD's response to claims put to Industrial Tribunals by current
and former Service personnel. Clinical Negligence
Responsible for all claims for compensation where MOD is deemed responsible for medical
Claims co-ordination and Focal Point (i.e. Registry functions).
ANNEX C AN INTRODUCTION TO LEGAL LIABILITY AND CLAIMS SETTLEMENT
As part of DC&L(F&S)’s commitment to improve the level of legal awareness within the
Ministry of Defence, this Annex is intended to provide an introduction to the concept of legal liability
and common law claims settlement. It should not be relied upon as being definitive legal advice. Tort of Negligence
Common law compensation claims made against the Ministry of Defence are usually
considered in accordance with the Department’s legal liability. The area of the law concerned is
known as 'tort' and within this we are usually concerned with the tort of negligence. The tort of
negligence is the breach of a legal duty to take care which results in damage, undesired by the
Defendant (in our case usually the Ministry of Defence), to the Claimant. Thus there must be:
a. A legal duty of care on the part of the Defendant towards the Claimant to exercise care in his
conduct towards the Claimant;
b. a breach of that duty by the Defendant;
c. consequential damage/loss to the Claimant which is reasonably foreseeable.
It is important to note that common law cases are decided on the balance of probabilities,
whereas criminal law cases are tried and prosecutions made where the circumstances are beyond all
When dealing with claims, DC&L(F&S)Claims staff consider whether there has been a
negligent act or omission on the part of the Ministry of Defence which has resulted in injury, loss or
damage to the Claimant. They take legal advice where necessary and must do so if the value of the
claim is likely to be more than £10,000. The Ministry of Defence must be prepared to take a case
to court if a negotiated settlement cannot be reached or when there is an unresolved issue on liability. Employer’s Liability
As an employer, the Ministry of Defence may be legally liable for someone’s loss on the
basis of Common Law negligence. Alternatively, the Ministry of Defence may be vicariously liable to
the injured employee or member of the public where the injury was caused by the negligence of
another employee who was acting in the course of his employment. For example, the Ministry of
Defence may be vicariously liable for the driver of a Ministry of Defence vehicle who negligently
caused a road accident whilst on duty.
Duty of Care
Lord Atkin stated that a duty of care could be defined as follows:
"You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then,
in law is my neighbour? The answer seems to be - persons who are so
closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question."
Breach of Duty of Care
The test for deciding whether there has been a breach of duty is as follows:
Negligence is the omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and reasonable man
would not do.
This is commonly referred to as the objective, ‘reasonable man’ test.
Burden of Proof
The burden of proof is on Claimant: i.e. they have to show that there were specific acts or
omissions on the part of the Defendant which qualify as negligent conduct. Sometimes, however,
the circumstances are such that the Court will be prepared to draw an inference of negligence
against the Defendant from the very facts: i.e. the facts speak for themselves. It is then for the
Defendant to prove that he has not been negligent. The Claimant will have established negligence if
he shows that he is owed a duty of care and that there has been a breach of that duty of care. The
Claimant must have suffered damage as a result of the incident or accident complained of. Contributory Negligence
Where a Claimant has sustained injuries or loss as a result of their own action or inaction as
well as that of the Ministry of Defence, then a portion of the blame will be attributed to the Claimant
resulting in a reduction of damages: i.e. the amount of compensation paid. This principle is
governed by the Law Reform (Contributory Negligence) Act 1945. Legal Advice
Legal advice is obtained by DC&L(F&S)Claims from the Ministry of Defence's Legal
Adviser (LA) and his staff if advice of a general legal nature is needed or on an aspect peculiar to the
Ministry of Defence. However, for compensation cases being brought by solicitors in England and
Wales, legal advice is obtained from Treasury Solicitor. In
Northern Ireland advice is provided by the Crown Solicitor. Service Level Agreements cover the
responsibilities of the Treasury Solicitor and Crown Solicitor to the Ministry of Defence and vice
versa. In cases being heard in Scotland, advice is provided by Robson McLean Solicitors under
contract to the Ministry of Defence.
“Perfect compensation is hardly possible”
Justice Field circa 1879
Justice Field’s observation holds good today because the award of damages is designed to
put the Claimant into the position he was in immediately before the tort was committed. This is an
artificial concept particularly in a personal injury or clinical negligence case because, for example, no
amount of money will replace a lost limb.
Personal injury damages are not chargeable gains (under S51 of the Taxation of Chargeable
Gains Act 1992) and therefore the damages themselves are not subject to tax (however, the returns
from the investment of those damages are subject to tax).
Special Damages are damages that are capable of precise mathematical calculation. In
practice, special damages are normally awarded in regard to pre-trial financial losses such as loss of
earnings and private medical expense. Special damages must be pleaded and proved.
General damages are those which are not capable of precise mathematical calculation, for
example, damages for pain suffering and loss of amenity and post-trial financial losses. Although it
can never be said that there could be an upper limit, because each case turns on its own facts
(Mustart -v- Post Office) there are guidelines and case law that provides a good indication of the
level likely to be awarded.
Loss of Earnings from accident to trial.
Damages awarded in respect of loss of earnings from accident to trial will be special
damages. The Claimant is entitled to damages equivalent to his net earnings lost during the period of
absence from work, i.e. gross earnings less Income tax, National Insurance Contributions, and
compulsory pension payments. However, it may be that a particular Claimant's earnings are subject
to variable factors such as bonuses or overtime. In such cases the amount of these extras is added to
Loss of Earnings post-trial (i.e. future loss of earnings)
Damages for loss of earnings after the trial will be general damages. Under this head a
lump sum is awarded which is arrived at by means of a 'multiplicand' and 'multiplier
system'. The system allows for the contingencies for life; and the accelerated receipt of a sum which
is available for investment. No allowance is made for inflation.
The multiplicand is the Claimant’s net annual earnings that he would have been receiving at
the date of the trial. No increase is allowed for inflation but allowance may be made for likely
increased earning capacity as a result, for example, of the acquisition of greater skills or promotion.
Conversely, a likely decrease in earning capacity may be taken into account.
The multiplier is based on the period of likely loss. This will depend on the facts of the case,
e.g. in the case of a male Claimant who will never work again the period of loss will normally extend
until his likely retirement age (normally 65). The period of loss is then converted into a multiplier by
the use of actuarial tables. The conversion assumes a rate of return on investment of the damages of
3% net per annum.
If the Claimant receives a pension this cannot be set against the claim for loss of earnings.
However, if there is a separate claim for loss of pension rights, for example, since the Claimant is
unable to work he will receive less pension in the future, any pension he does not receive may be
offset against the claim for loss of pension rights.
The Claimant may claim for the reasonable cost of private medical care actually incurred.
The availability of free National Health Service treatment is ignored. However, the Claimant cannot
be treated free under the National Health Service system and then claim what it would have cost to
have the treatment done privately. Future private medical care may also be claimed (if long term, on
a multiplicand and multiplier system) provided that it is reasonably likely to be incurred. However,
only the cost of the medical care may be claimed; the Claimant cannot claim for the 'hotel' element in
the expenses, for example, the proportion of the fees that relate to the provision of meals heating and
lighting. Medical expenses incurred pre-trial are claimed as special damages; post trial as general
Loss of Earning Capacity
The purpose of an award for loss of earning capacity is to compensate the Claimant for any
disadvantage he may experience on the open labour market by reason of some permanent disability
caused by the accident in question. Such an award will be appropriate for example where the
Claimant returns to his former employment but because of the permanent effects of his injury, is a
more likely candidate for redundancy and will find difficulty in finding suitable alternative
employment. This head of damage is often referred to as Smith -v- Manchester
Other pecuniary losses
The Claimant may claim for other losses reasonably incurred. Such losses may include for
costs of medication and prescription charges;
provision of special medical equipment such as
adaptation of the home (e.g. ramp access for a wheelchair), purchase of a vehicle to help
cope with their disability. The Claimant may claim for the costs of the adaptation but will
have to give credit for any enhanced value of the home as a result of the adaptation;
alternative accommodation to cope with the Claimant’s disability. If the Claimant buys
alternative (and normally more expensive) property to a certain extent the Claimant has
acquired an investment i.e. a valuable item that could eventually be sold. Therefore the
Claimant cannot simply claim all the amount of capital he has spent but rather only a
proportion of the capital.
The two most common items of non-pecuniary loss are and Suffering and Loss of Amenity.
The award of damages under this head is designed to compensate the Claimant for the pain and
suffering attributable to:
the injury; and
consequential surgery; and
mental and physical suffering.
The award will cover both past and future suffering.
Loss of Amenity
Technically, loss of amenity is a separate head from 'pain and suffering' but usually one sum
is awarded for 'pain suffering and loss of amenity' without distinguishing between the two heads.
The award for loss of amenity is designed to compensate the Claimant for loss of faculty or
pleasure in life over and above the pain and suffering of the injury. For example a Claimant formerly
was an active sportsman who has suffered a disabling injury such that he can no longer pursue his
sport. Although his pain and suffering may be the same as any other person with that disability, his
loss of amenity may be greater than another person who did not formerly lead an active life and
hence the total award for pain and suffering and loss of amenity may be greater.
The Limitation Act 1980 sets out the time limits within which certain claims must be made.
The normal rule is that a Claimant has 6 years except in personal injury cases from the date of the
cause of action accrued (i.e. from the date of the commission of the tort), in which to present his
claim. In negligence cases, since negligence is only actionable on proof of damage, the action in
negligence accrues only when some damage occurs.
Section 11 of the Act provides that in personal injury claims the normal rule is within 3 years
of the date on which the cause of action accrued (i.e. date of accident) or 3 years from when the
Claimant knew, or might reasonably be expected to have known, certain specified facts. Good
examples of the latter are deafness and asbestosis where the effect does not immediately follow the
cause, as opposed for example to a broken leg. There are, however, circumstances where the
Courts will allow an action to be brought even though the 3-year period has elapsed. These are:
a. a material fact relating to the cause of action was at all times outside the
knowledge of the Claimant until a date falling outside the 3 year limitation
Period, or a date not earlier than 12 months before the end of that period;
b. the action is commenced within 3 years of the Claimant becoming aware of
material facts relating to the cause of action;
c. the leave of the Court is obtained either before or after the commencement
‘TOP TWENTY’ CASES (BY VALUE) SETTLED BY DC&L(F&S)CLAIMS IN
FINANCIAL YEAR 1998/1999
TYPE OF INJURY/LOSS
Negligent treatment before and during the birth £2,417,000.00
resulting in brain damage.
Royal Air Force
Ejected from Harrier aircraft which crashed £1,513,331.70
resulting in partial paralysis and medical
Brain damaged during a training exercise.
Personal Injuries and Psychological Trauma after £1,281,488.20
Lynx Helicopter crash.
Negligent treatment before and during the birth £1,159,457.40
resulting in brain damage.
Helicopter crash in Omagh. Resulting in leg £909,335.63
amputation, blindness and deafness.
Paraplegic. Crushed between two Scimitar Track £960,816.73
Clinical negligence. Failure to detect cancer.
Traumatic amputation of leg during a boating £690,163.90
Royal Air Force
Fatality. Hercules crash.
Negligent handling of premature birth resulting in £640,000.00
Royal Air Force
Fatality. Lynx helicopter crash in Germany.
Traumatic leg injury in boating accident.
Damage to a tug in Malta.
Close impact of a mortar shell during training £500,775.00
exercise resulting in multiple injuries.
Shot in the groin by another soldier during £457,083.38
Aircraft crash. Crush fracture to first lumbar £451,494.80
Multiple injuries after being crushed by falling £412.138.26
girders at training camp.
Leg amputated after accident in Northern Ireland. £411,456.25
Knee injury sustained during skiing accident.
‘TOP TEN’ (BY VALUE) MOD CIVILIAN EMPLOYEES EMPLOYER’S LIABILITY
AND THIRD PARTY MOTOR CLAIMS CASES SETTLED BY GUARDIAN
INSURANCE IN FINANCIAL YEAR 1998/1999
An engineer was removing samples of explosive material from a warhead, which
caused an explosion to occur. The Claimant sustained major burns to his body, both
legs, both upper arms and his right lower arm; loss of his left lower arm and his right
eye; damage to his left eye, multiple fractures to his right hand, fractures to his left
shoulder, fractured right cheekbone and damage to his left eardrum. The Claimant
remains extensively disfigured and has permanent and severe disabilities that will
prevent him from returning to his pre-accident employment. Despite this the Claimant
returned to work in a modified capacity.
In November 1994, a MOD vehicle turned into the path of an oncoming third party
vehicle resulting in a serious accident. The Claimant was in intensive care and on life
support following the accident. The Claimant sustained a severe head injury and
fractured skull, which caused brain damage leading to emotional and behavioural
difficulties, damage to his right optic nerve and his hearing. The Claimant also
sustained a major chest injury in which he fractured 5 ribs and a collapsed lung. The
Claimant lost his hearing on the right side and has mild hearing loss on the left side,
which will be permanent. Following considerable rehabilitation the Claimant has mild
loss of control of his right arm and leg. Future loss of earnings was claimed, as the
Claimant’s ability to work remains restricted.
The Claimant, employed as a Seaman with the Royal Fleet Auxiliary, was the coxswain £215,170
of a vessel being used to transfer personnel to a submarine. Due to the condition of the
weather/water, the vessel dipped and rose as it came alongside the submarine and the
Claimant’s leg became trapped between the vessel and the fin of the submarine. The
Claimant sustained a fractured leg, which became infected and required a skin graft
which left a permanent scar. The Claimant was not considered fit enough to return to
work at sea and was therefore medically retired. The Claimant subsequently found
alternative employment, however, there was still a substantial claim for partial future
loss of earnings.
A rivet boy and then a driller employed at Portsmouth Dockyard from 1949 to 1966
was exposed to asbestos during the course of his employment and subsequently
contracted pleural plaques, pleural thickening and asbestosis.
A stores officer employed at RAF Carlisle slipped and fell backwards whilst
descending some steps. The Claimant sustained injury to his back and also developed
psychiatric problems. The Claimant was medically retired due to “chronic anxiety,
depressive neurosis and chronic spinal nerve root pain.”
A welder employed at Portsmouth Dockyard from 1957 to 1963 was exposed to
asbestos during the course of his employment and subsequently contracted
A coppersmith employed at Chatham Dockyard from 1958 to 1983 was exposed to
asbestos during the course of his employment and subsequently contracted
A fitter employed at Rosyth Dockyard from 1955 to 1987 was exposed to asbestos
during the course of his employment and subsequently contracted mesothelioma.
A MOD vehicle was in the process of turning around on a main road, intending to use
a farm track to reverse into. As the MOD vehicle was in the process of reversing it
was hit by a third party vehicle, which had not seen it. Claims were received from the
driver and 3 passengers.
A shipwright employed at Portsmouth Dockyard from 1957 to 1962 was exposed to
asbestos during the course of his employment and subsequently contracted
‘TOP TEN’ (BY VALUE) SERVICE PERSONNEL EMPLOYER’S LIABILITY CLAIMS
SETTLED BY ROYAL AND SUN ALLIANCE IN FINANCIAL YEAR 1998/1999
TYPE OF INJURY/LOSS
Fatality following RTA
Back injury as a result of carrying another person over 100 £85,052
Fell from building during training exercise, sustaining internal £49,711
Fell into uncovered inspection pit resulting in soft tissue £34,534
Whilst demonstrating safety harness, the rope broke £29,832
resulting in back injury
Loss of sight in right eye when battery exploded in face
Soft tissue injury to ankle following RTA
RTA resulting in multiple fracture to left arm and hand
Slipped in shower resulting in non-displaced wedge fracture £11,000
to T4 vertebrae
Severe bruising and back pain following RTA
Note: Royal and Sun Alliance took over responsibility
for Service personnel employer’s liability claims from 1
July 1996. Because serious personal injury claims take
many months to settle only the more straightforward
cases were settled in 1998/1999.
C&L(F&S)CLAIMS ANNUAL REPORT 1998/1999
APS/Secretary of State
CS HQ BF Cyprus
CS HQ BFFI
Sec Met O
Chief Safety & Environmental Officer
Ship Safety Management Office, MOD(PE)
Chief of Fleet Support
CinC Naval Home Command
D SEF (Pol) (ESTC)
Health & Safety Executive
DGTS SE (Pol)
Area Claims Officer NI
Area Claims Officer Northwest Europe
Area Claims Officer Cyprus
Surgeon General (2 copies)
Claims Officer Bosnia
DCDS ( C )
CE/Army Training and Recruiting Agency
CE/Defence Animal Centre
CE/Defence Bills Agency
Principal Finance Officer
CE/Defence Dental Agency
CE/Defence Housing Executive
D SP Pol(Pens)
CE/Duke of York’s Royal Military School
CE/Medical Supplies Agency
CE/Military Survey Defence Agency
Robson McLean WS (2 copies)
Treasury Solicitor (5 copies)
Crown Solicitor (3 copies)
CE/Naval Recruiting and Training Agency
CE/Pay and Personal Agency
Equal Opportunities Team
AMD 11 (2 copies)
CE/Ships Support Agency
Med Org 2(RAF)
SO1 Prev Med UKSC(G)
Command Sec CINCFLEET
Hd NP Sec
Command Sec AG
Command Sec HQLAND
APC Secretariat (2 copies)
Hd QMG Sec
Chief Press Officer (10 copies)
Royal British Legion (3 copies)
Association of Personal Injury Lawyers
Cmd Sec RAF Personnel and Training Cmd
Hd of Sec(AS)
House of Lords Library
House of Commons Library