Recent developments in Military Claims

June 15, 2020

By Christopher Barnes

1. In Desmond James Doherty (as Executor of the Estate of Bridget McGuigan Gallagher, Deceased) v Ministry of Defence [2020] NICA 9 the Northern Ireland Court of Appeal considered the availability of aggravated damages in a claim arising out of the death of one of those killed in the Bloody Sunday massacre. The judgment is of interest in the ongoing debate as to whether a separate award of aggravated damages is appropriate in cases of tortious assault.
2. In Wayne Bass v Ministry of Defence [2020] EWHC 36 (QB) the High Court rejected the Claimant’s appeal against HHJ Baucher’s rejection of the first Q-fever case to be litigated to trial. Amongst other points, the territorial application of the Management of Health and Safety at Work Regulations 1999 was considered, with the court finding that there was no application to work activities outside the UK.
3. In TPKN v Ministry of Defence [2019] EWHC 1488 (QB) the Court allowed the Claimant’s appeal against the striking out of part of her claim and summary judgment that had been entered. Whilst serving in the Royal Navy in Gibraltar she had been raped by an Army Private (T) following a social night out. At first instance the court had found that the Defendant would not be vicariously liable for T’s actions and had entered summary judgment in the claim for misfeasance in public office [on the part of T]. While the appeal was successful, the substantive issues appear either to have been settled or the claim is yet to reach trial.
4. In Allen Campbell v Ministry of Defence [2019] EWHC 2121 (QB) the Court considered, again, the question of whether the usual consequences of Part 36 should apply, the Claimant having accepted a Part 36 Offer 13 months late. The Claimant argued that the offer had been made at such a time that his future losses could not be quantified, as it was not then known whether he would be commissioned and promoted. Those arguments were rejected with the Court noting that there had to be something to take the case out of the norm, and the burden on the Claimant was a formidable obstacle, otherwise the Part 36 scheme would be rendered redundant.
5. In Inglis v Ministry of Defence [2019] EWHC 1153 (QB) the Court assessed damages payable to a Royal Marine who had suffered noise induced hearing loss as a result of his service. It is a rare example of such an assessment being made by the courts, and is notable for the adoption by the Court of the Ogden 7 methodology rather than a “traditional” lump sum to reflect loss of earning capacity.
6. Away from the courts, the new Veterans UK website has come into criticism for its failure to alert servicemen to the availability of a civil claim for damages and the potential advantages of such a claim over a claim under the Armed Forces Compensation Scheme.
7. Finally, the latest annual report of the Service Complaints’ Ombudsman’s makes for dismaying reading. 93% of service personnel responding to the annual survey indicated that they had experienced bullying, harassment and discrimination in the previous 12 months but had chosen not to make a complaint, in the belief that nothing would be done or that it would harm their career. Of those making complaints, women and those of Black, Asian and ethnically diverse background were disproportionately likely to bring a complaint and disproportionately likely to complain of bullying, harassment and discrimination. The average timescale to resolve complaints relating to sexual behaviour was 6 months, far worse than the 2 months average in the private sector. Joint Service Publication 763 (which covers bullying and harassment) is due to be updated and may, hopefully, lead to an improvement in the position.