News and insights from our Personal Injury team
Time and tide (and the MOD) wait for no man
- AuthorTim Edwards
The Personal Injury department at Roythornes is renowned for successfully handling claims brought against the MOD, and so we are often contacted by both serving and retired members of HM Forces. The enquiries are usually about a possible claim arising out of injuries suffered whilst in service. Unfortunately, in all too many instances, the potential claimant is under the misconception that such claims can only be pursued once they have left the service. This is not the case, but time is of the essence.
The MOD owes a duty of care to all serving members and, in circumstances where someone is injured (and if the injury was caused by the MOD’s breach of duty, i.e. negligence), then a claim for compensation can be pursued. But there are time constraints.
Court proceedings for a negligence claim must begin no later than the third anniversary of the date when the accident occurred (and therefore injuries sustained). For example: if an injury is sustained on 1 January 2020, then that claim must be pursued through a court no later than 1 January 2023. In some circumstances, however, the three-year time period could begin from a later date – when an individual first had knowledge of the existence of a claim, rather than on the day the injuries were actually sustained.
Any attempt to pursue a claim after the expiry of the third anniversary is likely to be met by what is known as a “limitation defence”, i.e. a defence stating that the claim is brought out of time. In those circumstances, most claims will then fail.
If you have suffered an injury whilst serving in HM Forces and feel you may have a claim against the MOD, it is crucial not to delay seeking legal advice at the earliest opportunity.
Non-fault claims can also be pursued under either the Armed Forces Compensation Scheme 2011 (AFCS) or the War Pension Scheme.
Thus, if negligence cannot be attributed to the MOD but an injury is sustained whilst in service on or after 6 April 2005, then a serving or retired member can seek compensation. Claims under the AFCS usually have a time limit of seven years, so the time pressure to bring such a claim is not as great.
If a non-fault injury is sustained whilst in service prior to 6 April 2005, then the claim is brought under the War Pension Scheme but can only be instigated once an individual has left service. With the passage of time, most non-fault claims will now arise under the AFCS and therefore the seven-year time bar will operate whether an individual is still a serving member of HM Forces or has left service.