Tank commander wins fight against MoD
01/01/2000
A Court hearing in Manchester on 26th November 2003 heard how Stuart Osmundsen from South Wales, a Lance Corporal serving with the Kings Royal Hussars stationed in Bosnia suffered a traumatic amputation of his hand when it was caught in military machinery.
At 2pm on 4th November 1999 a horrific accident at the Mrkonjic Grad Bus Depot, Bosnia, changed Stuart's life forever and sent him into a long battle with the Army, whom he had trusted to look after him no matter what. Stuart's particular role was as a Challenger Tank Operator/Loader. After guiding his tank back into its hanger Stuart noticed that a Warrior recovery vehicle which had been used to lift engine decks off another tank with its crane, was parked in his bay.
As he needed to park the Challenger in the bay Stuart approached those operating the Warrior. As he was speaking, he rested his left hand on the hydraulic ram on the leg of the Warrior, much in the same way as someone would lean on a photocopier, a desk or another piece of equipment when talking with a colleague in an office environment.
Unbeknown to Stuart, whilst speaking with one of his colleagues working on the Warrior, another activated the hydraulic ram, trapping his hand. Although Stuart was caught by surprise at the moving equipment he tried to remove his hand quickly but it was already stuck.
There was nothing he could do. Stuart was screaming as his hand was being crushed, the ram continued to rise and his left hand was amputated. His severed hand was taken with him to hospital but it was too damaged to have been of any use so Stuart underwent a surgical amputation, debridement and stump closure.
Following the accident Stuart was told he was no longer fit to serve as a soldier and he was soon discharged from the Army on medical grounds. He received little help adjusting to his civilian life and in 2000 he and a friend had to travel to collect his fiancé's belongings from Germany as the army said they would be unable to help due to them not being married.
Lesley Casey a Military specialist and Stuart's solicitor said: "Stuart's situation is similar to a number of cases which I see daily. 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."
Stuart is still apprehensive as to what the future holds. At the time of the accident Stuart was doing extremely well in his army career. He had just been recommended for promotion to Corporal and was looking forward to attending a Tank Commanders Course as it was his goal within his regiment to become a Tank Commander.
His long term plan was to consider a transfer to the Army Air Corp and remain within the army for a period of at least 22years at which time his aim was to convert to becoming a civil pilot. In addition he was a keen sportsman having competed in skiing races for his regiment. "I feel that I am very fortunate that I have had the continued support of my fiance and close family, even after the tough decision to have to postpone our wedding in January 2000. I was in shock for some time, and have been trying to come to terms with the loss of my hand and the things I can no longer do. Every day I am is faced with the emotional and physical trauma of no longer being able to address many simple tasks on my own, from tying my own shoelaces or cooking to training for a future career. This has a detrimental effect on my confidence and general outlook on life. Everyday presents many challenges and the length of time to carry our daily tasks can be considerable. I still experience a lot of phantom pain and despite many methods of pharmaceutical and alternative relief none have had a positive effect."
The MoD fought the case hard and finally admitted breach of duty on 19th November 2003 - just days before Trial. However they disputed the level at which who was most to blame for the accident. The MoD alleged that the accident was mainly caused by Stuart deliberately placing his hand into the Warrior machinery and offered a 40/60% liability in the MoD's favour.
On the day of the Trial they offered 50/50 but would go no further. At Trial, Judgement was delivered in Stuarts favour on a 60/40% basis. In addition his solicitor Lesley Casey secured an immediate interim payment for Stuart of 30,000 as to date he had not received a penny in compensation. He has never received any apology and they only admitted breach of duty a few days before trial.
Lesley Casey says: "I am delighted at this result for Stuart, the interim payment will enable him to start to rebuild his life and get the rehabilitation and support he needs. Unfortunately this is typical of the fight, which is sometimes put up by the MoD. It is a disappointing and short term view based on saving money alone and not on helping the individual. Early intervention for rehabilitation provides a far better chance of an injured person making better and swifter improvements. This in turn can lower the overall costs of litigation. It would make sense for the MoD to take a practical look at those who are injured whilst in their service and provide a sensible rehabilitation route for all despite fault or blame."
"Stuart was discharged and then left to pick up the pieces himself. He was in no state to do this - the army does everything for you and then you are suddenly left alone. I see this all to often. 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. You need to be used to dealing with these kinds of claims to know what kind of information to request from the MoD and to put pressure on them to fight for your client's rights."
Stuart added: "I was a very happy and content soldier and bar for the accident I would still be serving in the Army now. I feel very let down by the MoD who, once I was discharged, didn't want to know. Despite this fight I had the right legal team with me and I wanted to show other soldiers who may find themselves in similar situations in the future, that they should get a specialist lawyer onboard at the earliest stage as time is of the essence, and that you can take the MoD to court and you can win. My thanks will be forever with my solicitor Lesley Casey and Counsel Paul Kilcoyne."
Following the accident The Regimental Board of Inquiry (the Board of Inquiry is the MoD's internal fact finding expedition. Its primary aim is to investigate how a serious accident happened and hopefully prevent similar incidents from occurring in the future) made some significant recommendations for the future protection of anyone who would come into contact with a Warrior such as applying warning signs stating 'Danger Hydraulic Ram in operation'; implementing an exclusion zone around the equipment whilst it is in use; the opening on the leg to be fitted with a mesh, which would prevent objects being placed in the leg during operation.
NOTES
1. Contact for interview Please contact the media management department of Alexander Harris for further comment, interviews and photographs. 0161 925 5555
2. A further complication as we were coming to trial it became clear that Stuart's legal expense insurance limit might be exceeded and clearly he needed to be protected. No After The Event Insurer was prepared to offer an insurance premium. The case was inherently complex and entering into a CFA was extremely risky, but Alexander Harris wanted to protect Stuart should he lose. Alexander Harris, who are known for fighting for individuals against institutions and who are national specialists in catastrophic injury had the utmost faith in the case and so agreed to enter into a CFA on Stuart's behalf.
3. Case facts Stuart Osmundsen dob: 27/07/1975 Lives in South Wales - Llantrisant Trial 25 - 26 November 2003 The MoD disputed the claim but admitted breach of duty days before Trial hence Trial on liability only Judgment given for the claimant contributory negligence 40% Defendant ordered to pay the claimants costs and to provide an Interim payment of 30,000 for Stuart Stuart's Solicitor: Lesley Casey, Alexander Harris Stuart's Counsel: Paul Kilcoyne, 1 Temple Gardens
4. Lesley Casey Lesley is a Partner at health law firm specialists Alexander Harris who have offices in the North West, the West Midlands and Central London. She specialises exclusively in catastrophic and military injury. Lesley is the Secretary to the Association of Personal Injury Lawyers Military Special Interest Group. Further information on military law, cases, Lesley Casey and Alexander Harris can be found on the award winning website www.alexanderharris.co.uk
5. Suing the MoD Like any other employer the Ministry of Defence (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, Service Personnel were unable to sue the MoD for damages for negligence. Since that time a number of cases have been brought before the Courts and Partner Lesley Casey has developed expertise in dealing with a multiplicity of varying accident circumstances and injuries involving the Military. 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 training, equipment and competent colleagues. Lesley's cases include accidents as a result of aviation, parachuting, weapons, chemicals, equipment, fires/explosions, buildings, vehicles, machinery, training exercises, mountaineering, sports instruction. Our clinical negligence and product liability teams also work on a number of injuries from medical treatment or drugs. Investigating any military claim is clearly not going to be straightforward. You will have seen from the vast array of accident circumstances that specialist knowledge of how to handle MoD claims as well as catastrophic injury is necessary.
6. Liability Investigations Liability investigations look primarily at who is to blame for an accident. In some cases such as Stuart's an individual may be partly to blame for the accident. In these circumstances we enter into negotiations with the MoD to apportion blame. This is done by way of a percentage and at the end of the case it is reflected in the amount of compensation which is paid out. For example if you were 25% at fault for your accident and the MoD were 75% at fault in a case worth in total 1million you would receive 750,000. Pushing the MoD to allow us 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 our 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 ballistics, jets, tanks and training exercises as they are issues they would rather not have in the public domain, for obvious reasons. As to whether service personnel are aware of their legal rights, our experience is that they continue to be badly informed. Injured servicemen 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.
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