“Minor” Military NFCI: Proper compensation at lastOctober 22, 2014
When I took the case of the victim of a military non-freezing cold injury (NFCI) to trial at the High Court this year I was determined that my client should be compensated for the full effects of the condition. In some ways these appeared mild, but when I looked in more detail at the big picture – above all his earnings – it became clear that his chain of command’s mistakes would cost him a great deal of money.
My client is John Billett, a former Lance Corporal in the Army. He suffered a cold injury on a promotional course and his claim was against the Ministry of Defence.
We believed that the chain of command on the promotional course was responsible for exposing him to severe cold, and then failing to take action when his injury started to develop. He was not the only soldier who suffered a cold injury during that particular exercise. I recently settled the case of another Lance Corporal whose career was brought to an end by negligence on the same occasion.
Of course, it was a tough exercise. It was intended to be testing and the men and women who participated expected to be challenged, but the MoD’s own guidelines make it clear that NFCI should be avoidable. It is a serious waste of manpower, apart from anything else.
After some discussion, the MoD did accept that they were 75% responsible for Mr Billett’s cold injury. But they were not willing to agree the amount of compensation that they should pay, and the case went to a trial at the Royal Courts of Justice, for the amount to be decided by a judge.
Judgment: a minor cold injury
After hearing arguments on both sides, the judge found that Mr Billett had suffered a minor cold injury to both his feet, and agreed that this continued to affect his life in a number of important ways. He awarded Mr Billett a total of £127,956.45. This sum included compensation for the pain he has suffered (£12,500.00) and for his loss of earning capacity (£99,062.92).
The Judgment in the case can be found here.
A major effect on earnings
This may at first glance seem a high figure for loss of earnings for a “minor” injury, but we strongly believe it is the right one. The judge took into account many of our arguments, and agreed that the injury had enough of an effect on Mr Billett’s day-to-day life to put him at a real disadvantage over the years to come. This disadvantage added up to that he was in fact disabled, as defined by the law, so that if he did lose his job he would have difficulty finding a new one. It could be expressed in money terms, year on year, and when the judge did the calculations they showed just how bad the potential loss of earnings could be.
The expert evidence we assembled was key to the judge’s decision. We had arranged for Mr Billett to be assessed by specialist cold injury and employment experts whose reports were clear, helpful and supportive of the claim.
This is a ground-breaking case because it stresses how important it is to pay attention to the details of an injury and in particular the impact it has on daily life. People who have suffered what some might think are relatively minor injuries still have the right to recover substantial compensation where these result in a condition which:
- has lasted or is expected to last for more than a year, or is likely to get worse with time;
- limits a person’s ability to carry out normal day-to-day activities; and
- affects either the kind or amount of paid work they can do.
This is particularly relevant to military personnel. A member of the armed services could have been trained to do a very specific job, and this may well be a useful asset after discharge from the forces – but only if they can do everything their new employer needs them to do. If an injury, even a ‘minor’ one, deprives them of just one aspect of that skill set, it could mean the difference between a secure job for life and a real risk of unemployment.
Non-freezing cold injury: a classic example
Cold injury claims have historically been under compensated, and I believe this is in part due to a lack of understanding of their full effect.
These types of injuries often affect the hands and feet, and in the worst cases can result in very serious motor and sensory problems. Sufferers can be left with little or no feeling in the part of their body that has been injured and have difficulty holding and manipulating objects, as well as problems sensing temperature. However, even when the injuries start out less severe, they can get much worse if the soldier is exposed to cold again, so, once diagnosed, he or she often has to avoid all outdoor work in cold temperature.
Even relatively mild cold injuries can spell disaster for a life in the military if the result is that a soldier can no longer handle equipment or weapons, or train outside. It is tragic to see so many promising careers ending with a medical discharge, simply because outdoor activities were poorly managed. Finding work in the civilian world can be very challenging, because there are many jobs which are unsuitable for people who experience increased pain and sensitivity in cold and wet weather. This means there can be a large claim for loss of future earnings, depending on the circumstances of the case.
In the Military Team at Bolt Burdon Kemp we arrange for our clients to undergo early assessment by healthcare specialists, who, in addition to recommending treatment, can suggest various adaptations to the home to help sufferers from cold injury return to more active lives. These adaptations should be investigated, quantified, and added to the damages claimed. In addition, where there is a claim for loss of earning capacity, the report of a specialist employment consultant is often key to securing the sort of damages that service personnel deserve.
Anyone who has suffered a cold injury and is concerned should contact our dedicated team.
More information about cold and heat injuries can be found on our website.
I am a Senior Solicitor at Bolt Burdon Kemp specialising in Military claims. If you think you may have a claim, contact me free of charge and in confidence on 020 7288 4818 or on firstname.lastname@example.org for specialist legal advice. Alternatively, you can complete this form and one of the solicitors in the Military team will contact you. You can find out more about the team here.