As a nation we are currently remembering those who fought for this country during the First World War and in particular those who died or were seriously injured whilst doing so.  The 4th August 2014 marked 100 hundred years since we entered the Great War but the general sense of reflection has sparked a media interest in how we as a nation honour those who have placed their lives on the line for our country and continue to do so.

The BBC has paid particular heed to the military convenant which was formally codified in 2000 and imposes a customary duty of care on the part of the state to take care of soldiers and their families for life in exchange for the sacrifices made.  The risk of injury as a soldier is obvious as are the devastating consequences should injuries be sustained. 

Many people will be of the attitude that a soldier goes into the Army with their eyes wide open and should not expect help, in the form of compensation, should the worse happen.  Indeed, prior to 1987 soldiers could not sue the Crown for compensation.   After the enactment of Crown Proceedings Act 1987 the Ministry of Defence was to be treated, in the main, as any other employer and therefore liable for negligent acts of the military.  However, it is still extremely difficult if not impossible to successfully claim compensation for injuries sustained during active combat due to the principle of ‘combat immunity’

If, for example, a soldier has been injured in a road traffic accident, helicopter accident, training accident etc and it is the fault of the military, a soldier can pursue a claim directly against the MoD just like any other civilian can against their employer.  They also have special military schemes, such as the Armed Forces Compensation Scheme, which replaced the War Pension scheme in 2005, designed to deal with these types of claims.  However, these schemes have come under increasing attack due to the delays involved in getting the Board of Inquiry to even look at a claim let alone make an award, see Sima Kotecha’s report for the BBC.  The awards made under the schemes are also generally less generous than if pursued as a civil claim, although the two are not mutually exclusive. Monies received through the Armed Forces Compensation Scheme would be in addition to any award paid out as a result of a civil action. 

If the injury is sustained whilst fighting the enemy or preparing to fight the enemy then generally the right to claim compensation against the MoD is suspended.  However, there may be one chink in the armour.  As a result of the case of Multiple Claimants v Ministry of Defence (Admin Ct) [2003] EWHC 1134 (QB) it was thought that claims involving the lack of provision of adequate and/or suitable equipment resulting in injury during combat fell within the ‘combat immunity’ and therefore a claim was precluded.  This appears to still remain good law as far as suing under tort law.  However, the case of Al-Skeini v United Kingdom (2011) 53 EHRR 18 and subsequent similar cases offer some hope that there may be a way to use the Human Rights Act 1998 and the European Convention of Human Rights, Article 1, as a basis for being awarded compensation as a remedy for injury sustained during combat.  This may of course be headed off by the UK repealing the Human Rights Act which the current government has been reported as working towards.

However, one remains hopeful that in this time of reflection favour is garnered for awarding our soldiers the true value of their sacrifice, whether in direct combat or not, and that our efforts are not just limited to remembrance but to active and ongoing support.