Claims against the Ministry of Defence (MOD) - are they fighting fairly?
19/07/2004
I would like to thank you and your colleagues for the kindness shown to myself and my wife. I class myself as very fortunate to have met such kind and caring people.
Raymond, HertfordshireMilitary lawyer Lesley Casey asks the question 'Are the Ministry of Defence (MOD) fighting fairly?' addressing the recent clinical negligence case of A -v- Ministry of Defence and Another. This article was taken from the July edition of Personal Injury Compensation.
MOD not liable for clinical negligence in German Hospital
"The Army owes a duty of care to those it has recruited. Soldiers should be as well protected as possible for the task at hand and, where protection fails, cared for".
Army Doctrine Publication Vol 3
Logistics Medical Supplement April 2000
In considering this duty, one may ponder whether this duty is non-delegable, i.e. to ensure all reasonable care and skill is taken in the healthcare of Service personnel and their dependants, or delegable, in that the MOD is only subject to a duty to exercise reasonable care in selecting the provider and in so selecting a suitable provider discharges it's duty.
In child A -v- Ministry of Defence and Another, the Court of Appeal delivered their Judgment on 7th May 2004.
This was a case where child A's father was a serving Soldier in the British Army, who at the time of child A's birth, was stationed in Germany. Child A's mother and their two children lived with him there. Child A was born in a German hospital in June 1998. The German Obstetrician assisting the birth was negligent and caused child A severe brain damage, leaving child A with cerebral palsy.
Child A claimed that the negligence of the German Obstetrician constituted a breach of duty of care owed to him by the MOD.
It was alleged that the MOD owed child A a non-delegable duty to provide Obstetric treatment which would be delivered with reasonable care and skill. In the first instance it was held that no such duty was owed and the Claimant appealed.
Consider the position. The Claimant's mother had gone to live with her husband in Germany. The MOD provided her with primary healthcare and that led to the secondary treatment provided for her at the German Hospital. She had no other practical choice. Surely once in that situation the MOD were under a duty to protect her and her child? The MOD opened the door of the hospital for her. Is it not reasonable that they also had responsibility for the care she received there?
The Claimant submitted that British Servicemen and their dependents ought, as a matter of public policy, to be able to sue the MOD in England with respect to medical negligence suffered in a foreign hospital, rather than being constrained to bring proceedings in the foreign jurisdiction in question.
The Claimant sought to extend the law of negligence well beyond any previous decision of the English courts. The Claimant had to persuade the Court on policy grounds to expand the area of tortious liability as it stood within the current state of English law.
In his judgment, the Master of the Rolls stated that even if it was correct to hold that an NHS Trust owed a non-delegable duty to ensure that a Patient sent for treatment abroad received careful treatment, it would not follow that the same was true for the Ministry in this case.
The MOD was no longer in the business of treating patients in hospital in Germany. Its sole role was that of arranging such treatment to be provided by others.
In those circumstances his Lordship could see no justification for imposing a non-delegable duty on the MOD to ensure that due skill and care was exercised in those hospitals. He held that Germany was the appropriate forum and the German Hospital the appropriate Defendant. The appeal was dismissed.
How did this situation come into being? Only a couple of years earlier when the MOD ran it's own hospitals in Germany, had the same events happened under the care of an MOD employed Obstetrician, child A could have sued the MOD in this country and the whole process would have been a lot simpler for the parents and legal team.
However, in 1996 the MOD fundamentally changed the arrangements for the care in Germany of servicemen and their dependents who needed hospital treatment.
Before 1996 such treatment would have been provided in British Military Hospitals by Ministry employed staff. After 1996 the MOD distanced itself from the provision of secondary healthcare in Germany.
It closed down its hospitals and did not set out to arrange directly for the provision of secondary healthcare by German Hospitals.
Instead, it entered into a contract with Guys and St Thomas' NHS Hospital Trust, whereby the latter undertook the task. The MOD provided the funding. Thus the MOD had no direct contractual nexus with the German providers.
As we know, the general rule is that a Defendant is liable for the negligent act of a servant committed in the course of employment but not for a negligent act of an independent contractor.
Cost of Clinical negligence to the MOD
It is an extremely interesting case which has provoked a lot of debate over the past few years. As an aside, you may be interested to note that in the latest Ministry of Defence Claims Annual Report, published in July 2003, of the top 20 quantum cases settled by the MOD in 2002/03, 8 of them involved Clinical Negligence. In the order they appear in the top 20 list they are as follows :-
2.Civilian Negligence during childbirth £3,600,000.00
5.Civilian - child Negligence at birth causing deafness£ 600,000.00
10.Army Clinical negligence resulting in damaged disc£ 400,000.00
11.ArmyDelay in diagnosing illness causing blindness £ 391,000.00
12.ArmyClinical negligence resulting in damaged nerves£ 364,000.00
17.ArmyClinical negligence during Haemangioma operation £ 252,000.00
19.ArmyClinical negligence resulting in hearing loss £ 235,000.00
20.NavyClinical Negligence treatment of fractured femur £ 229,000.00
When I first became involved in litigation against the Ministry of Defence there were numerous cases of clinical negligence which I became aware of. This was at a time when service personnel and their dependents were routinely provided with healthcare by the medical staff employed by the MOD in their own hospitals and medical centres.
In the same Annual Report it is pleasing to see the number of clinical negligence claims received by the MOD claims department has decreased over the past year. However, one can see the extremely high cost to the Treasury of successful clinical negligence actions.
2000/012001/022002/03
Number of claims received128142119
Number of claims settled795960
Compensation plus cost of claims settled (£ million)1199
One would be forgiven for thinking this is due to the Ministry of Defence ensuring service personnel are provided with higher standards of medical care by their treating clinicians. However, when one bears in mind over several years the MOD have closed down their Military Hospitals and ensured the clinical services they provide contractually have been dramatically reduced, one sees how child 'A', suffering cerebral palsy at birth as a result of the negligence of a German Obstetrician in a German Hospital, is an example of how the MOD appear to have sought to reduce their liability for clinical negligence and financial liability in compensation, internal investigations and solicitors costs. One queries whether they have ensured that they have no direct contractual duty regarding the medical care provided to service personnel and their dependents to reduce their financial liability?
One of the most disturbing photographic images I have ever seen in my whole experience as a personal injury Solicitor is that of a young woman, who during her military career, had been assessed as having far too large breasts appropriate for her employment within the MOD. An MOD surgeon had carried out a breast reduction upon her. The results were horrific and that woman remained scarred both physically and emotionally for life. She did of course receive significant compensation.
In the case of child A, I believe the Court of Appeal decision was correct having regard to all the facts. However, it raises serious issue for service personnel and their families who may be posted anywhere in the world in the service of their country. One would hope that should medical care standards be brought into question, and the possibility of a claim in negligence brought, the MOD will do all that they can to ensure that service personnel do not have to face the trauma and cost of litigating in a foreign jurisdiction bearing in mind they had no or little choice as to medical treatment in the first place.
Personal Injury claims generally
Turning to the field of personal injury, like any other employer, the MOD are responsible for the safety of their employees. Unlike many other employers however their staff are often placed in dangerous situations during their working day where one wrong move can mean severe injury or even death.
Until 1987, and the repeal of s.10 of the Crown Proceedings Act, service personnel were unable to sue the MOD for damages for negligence.
Whilst you cannot sue the MOD for injuries sustained in a combat situation with the enemy, the MOD are subject to the same duties that all employers have: to provide their employees with a safe system of work including supervision, training, equipment, competent colleagues etc.
Due to the inherently dangerous nature of the work service personnel are involved in, when things do go wrong there are often catastrophic consequences. This can involve aviation, parachuting, weapons, chemicals, equipment, buildings, vehicles, machinery, training exercises, mountaineering, sports instruction, medical treatment or drugs. There is a vast array of unique circumstances that are potentially hazardous if proper systems are not in place.
Unfortunately, the MOD continue to make mistakes and as a result of employers liability claims being brought successfully against the MOD, the damages which have been paid out by them, as set out in their recent Annual Claims report, continues to increase.
Service personnel must be trained to deal with the most horrific of circumstances in the field of combat, but during peace time when training and equipment should be of the highest standard, why are there increasing numbers of service personnel injured or killed in the course of their day to day work?
There are also instances where service personnel may have a claim for compensation against civilians in respect of road traffic accidents and criminal assault anywhere in the world. The Criminal Injuries Compensation (Overseas) Scheme was introduced specifically for service personnel to ensure that should they be injured as a result of a crime of violence overseas they would receive compensation on a level with those injured as a result of a crime of violence in this country.
However, even within this scheme there are problems as there can sometimes be hair splitting distinctions as to where the act of violence was committed by an enemy where a state of war exists, so much so that a Sergeant who lost a leg as a result of a single round of ammunition fired at him from a Serbian tank whilst assisting with road construction in Bosnia, could not make a claim, but those injured by a round of ammunition, say in Northern Ireland, can.
Additionally, if you or a family member are driving a vehicle during a tour of duty and a foreign citizen causes a collision, or you or a family member are injured in a public place, you are faced with litigating in a foreign jurisdiction with the potential for many problems.
Therefore, as you see, the plight of the service man or woman or their family members, is not only compromised in the field of medical treatment should things go wrong.
Do service personnel really have access to justice?
As to whether service personnel are aware of their legal rights as to all of these issues, my experience is that they continue to be badly informed. Injured service personnel are disadvantaged in so many ways, particularly those in the lower ranks, who unfortunately are the ones who most regularly sustain the most serious injuries.
Many of my clients are male and are aged 18-25 when they sustain their injury. They are young men cut off in their prime and they have a distinct lack of knowledge and vulnerability which is evident. They join the military thinking that everything will be great and up until the point when they are injured it usually is. They are told what to do and when to do it. They are not used to paying their own bills, budgeting and certainly, whilst they may have been taught how to use a variety of deadly weapons, they may not have developed the necessary skills to become streetwise in civilian life and know if and when they should seek the advice of a civilian lawyer with expertise to take on the MOD, hospitals, foreign jurisdictions etc.
Closing Ranks
There is still a culture within the MOD, which resists claiming compensation, that you should accept your lot whatever the circumstances. I regularly come across cases where people have been misinformed by military personnel regarding their rights. In addition, they can be strung along for some time believing that they will receive a War Pension and that it will provide them with sufficient monies to obtain the suitable adapted accommodation, care and equipment that they will need for the rest of their lives. Others are told that they cannot make a claim for compensation until they actually leave the Armed Forces.
When someone is so seriously injured that they cannot perform their duties anymore, quite often they are medically discharged. The process of medical discharge and assessment of service personnel for a pension can often take anywhere between 12-24 months. Quite often it is only when someone is awarded a pension and finds themselves back in civilian life, out of the military in severely changed financial and social circumstances, and profoundly injured, they realise that they may have a claim but by this stage valuable time has been lost.
Tackling the MOD with Expertise
If litigation is contemplated against the MOD for employers liability or clinical negligence (albeit the latter much more rarely these days) you will be up against civilian insurers and solicitors who clearly take an objective stance of ensuring that the amount of compensation paid out by the Treasury is kept as low as possible. They will therefore defend a case vigorously and a client must ensure their solicitor has the necessary skills and experience to match them.
We are truly dealing with a David and Goliath situation here. It is difficult to litigate against the MOD as the accident circumstances can often be unique. The MOD is not usually forthcoming with information and will certainly not hand it to you on a plate. To deal with these claims, you must be equipped to know what information to request from the MOD to put pressure on them to fight for a Claimant's rights.
In employers liability claims, persuading the MOD to allow you to examine a piece of machinery or equipment, visit the site of the accident when it could have taken place anywhere in the world, provide disclosure of documentation and have an expert witness at your side is something the MOD are often reluctant to co-operate with. They clearly don't want civilian lawyers asking questions about technical details of data, ballistics, jets, tanks and training exercises as they are issues they would rather not have in the public domain, for obvious reasons.
It is also important to ensure, and you can only do this if you are instructed early enough, that you represent your client at the Board of Inquiry, which is the MOD's internal fact finding expedition as to how a serious accident happened. You also need to access reports from other branches and enquiries which may have taken place to ascertain as much as you can to assist your client's case.
Access to Information
During Gulf War II and its aftermath, the MOD have received much media coverage where our servicemen have been injured by "friendly fire", and also from lack of suitable equipment by way of body armour and armoured vehicles and as a result of being caught in ambush situations.
One recent case in which I am instructed by the widow and parents of a TA Military policeman who was killed in an ambush in Basra. He died leaving his widow and a young family.
Unfortunately, despite much correspondence with the Prime Minister and the Secretary of State for Defence, the family are still without knowledge of how this TA Military Policeman died. They were assured by Mr Blair that a Board of Inquiry would be convened to identify any lessons from the circumstances surrounding the death and provide a much clearer understanding of what actually happened.
I have been instructed to represent the family at the Board of Inquiry but unfortunately we have now found out that a Board of Inquiry will not be convened. We await the reason why.
Therefore at the present time, until the Inquest takes place we have no idea as to the full circumstances surrounding the death and indeed, how this Military Policeman actually died.
Many months after the war actually was declared over on 1st May 2003, there are a number of stories haven't hit the headlines involving "friendly fire" incidents between our own Armed Forces where servicemen with Infantry Training in the use of weapons have negligently discharged their weapons causing injury to fellow servicemen. There are no claims for compensation that can be brought. One man came to see me for advice showing me his thigh, which had a large piece of flesh and muscle missing, having been shot by a TA soldier who hadn't been trained properly with the use of his rifle.
This continues to highlight in my view the lack of information provided to those injured or killed whilst in the service of the Ministry of Defence, and lack of support and proper compensation or pension or otherwise when things go wrong.
A positive step forward
It all looks rather gloomy but things are changing in a positive way to assist those who have a civil claim against the Crown. Since Crown Immunity was removed in 1987, the MOD have enjoyed special procedures where the Crown is the Claimant or Defendant in the Civil Courts. The procedures reflected the "special position" of the Crown in Litigation and conferred advantages not available to ordinary litigants.
Lord Falconer considered that some of the special procedures could no longer be justified and proposed they should be revoked subject to approval by Parliament. The proposal, if adopted would place the Crown on a more equal footing with those who made claims against the Crown or defend claims made by the Crown. He considered that the proposed changes represented a significant improvement for Litigants, which are consistent with the aims of the Civil Justice Reforms of unifying and simplifying procedures with the potential for reducing delay and costs.
The Civil Procedure Rule Committee and members of The Government Legal Service gave assistance and produced a draft which was the basis for a consultation exercise. I was involved in reviewing the consultation paper produced by the Department of Constitutional Affairs.
Examples of the Crown's special privileges include the following :-
1.The Crown has the power to decide the venue for a case, rather than it being the matter for the Court to decide.
2.Summary Judgment against the Crown is not permitted.
3.Default Judgment against the Crown is not permitted.
4.The rules of enforcement do not apply on the basis that "the Crown can be expected to comply with a Court Order", the presumption being that the Crown "is unlikely not to have the resources to do so". However there is a need for the ability to enforce a Court Order on government funded institution, regardless of this presumption.
5.In addition "no person shall be individually liable under any order for payment by the Crown". Clearly there should be somebody held personally responsible for payment of an Order against the Crown to ensure prompt payment or action upon a Court Order is provided.
Conclusion
Hopefully the review of these procedures will ensure that the Crown is placed on a more equal footing with those who make claims against the Crown or defend claims against the Crown as clearly a "levelling of the playing field" is long overdue, both in the civil arena and other arenas which are touched upon in this article.
However, for those who find themselves, or a family member injured as a result of medical treatment provided by a hospital not run by the MOD but who were "introduced" to the services of that hospital by the MOD, those injured abroad in road traffic accidents or as a result of public liability, they are likely to find themselves without easily accessible justice and the possibility of litigating anywhere in the world with the inherent complications and complexities of liability, causation and quantum.
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