22 September 2020 | Comment | Article by Simon Ellis

The Overseas Operations Bill: potential devastating consequences for thousands of injured UK service men and women

The long-awaited Bill to end the ‘vexatious’ prosecutions of soldiers is getting its second reading in the House of Commons.

This is welcome news for many, including thousands of Iraq war veterans who have remained under investigation several years after the invasion of Iraq in 2003.

But something else has been shoehorned into the Overseas Operations Bill which I find surprising and extremely worrying – and it isn’t being talked about.

 

New law could have devastating consequences for military veterans 

If it goes ahead as planned, the new laws will have devastating consequences for thousands of veterans who have been injured during military service – not by weapons, but by the failings of the Ministry of Defence (MoD).

Over the years, my firm has acted for more than 3,500 service personnel whose injuries have been caused, or worsened, by the failures in Whitehall, rather than on the battlefield. This includes cases of military deafness, post-traumatic stress disorder and injuries brought about by inadequate or faulty equipment. Many times, the MoD has admitted liability.

But it seems as though the government is writing itself a waiver to these claims. The Bill, which is working its way through Parliament, introduces a time limitation. Claims for injury resulting from overseas action will need to be brought within six years of the incident, or within 12 months of knowledge of that injury, whichever is later.

This is terrible news for thousands of veterans whose injuries are often overlooked, ignored, or take years to surface: military deafness is a perfect example.

By its very nature, noise induced hearing loss is something that other people often notice before the injured person themselves. They may turn the TV volume up to hear it properly, annoying those around them. They may start to shy away from large social gatherings because they can’t follow the small talk.  

I’ve dealt with countless clients who had regular hearing tests while serving in the military and were given a clean bill of health, in circumstances where a civilian audiologist would have had serious cause for concern.

Another example is post-traumatic stress disorder (PTSD).

One of the symptoms of PTSD is avoidance. Sufferers often refuse advice and support, despite repeated pleas from loved ones to seek help. It can be a very long and arduous road to diagnosis.

In situations like these, it’s impossible to assign a specific date to when someone first became aware of their symptoms. It means the arbitrary six-year period set out in the Bill will often pass before conditions like hearing loss or PTSD are identified.

 

New Bill is a barrier to justice for military personnel 

The Bill risks placing military personnel in a much less favourable position than others. No similar restriction, to bring a civil claim, applies to any other group in society.

How can this be fair?

People know what they sign up for when they join the forces.

They know their work is dangerous. They accept the risk of injury and death as part and parcel of what they do.

But if the injury is entirely preventable and caused by poor employer decisions, that’s an entirely different matter. None of my clients signed up for that.

I see too many clients in their 30s and 40s who need hearing aids – all because they weren’t given proper hearing protection or training.

The devastating effects on their mental health, career, family life and finances are heartbreaking. I’ve written about it before.

Compensation doesn’t give them their hearing back but it does mean they won’t be financially worse off and can get state-of-the-art hearing aids to engage more fully in life without the isolating effects of deafness.

My clients can apply for an award under the Armed Forces Compensation Scheme. But this frequently lets them down.  Many of my clients were medically discharged with hearing loss but were rejected, under the Scheme, because their hearing wasn’t sufficiently damaged to allow them to claim.  

Their only current viable route is compensation and the UK Government is shutting it down. If the Bill receives Royal Assent, this will be a dangerous and effect of the legislation.

 

Let the courts decide

Under current legislation, the court has the power to give a balanced and independent view on a case, which includes determining whether it is served out of time. It performs this role for every group of society.

It’s right and proper that our veterans should also have access to an independent judiciary to assess the reasons for not bringing a claim sooner - and to assess whether it should be able to proceed, or not. It should be up to the courts to decide.

No other organisation or body in the UK is in the position to give itself a waiver on claims against it in the way the UK Government seeks to do - and it should be seen as a worrying development.

In my mind, the Overseas Operations Bill, as it’s presently drawn up, mashes together two un-related issues messily: limiting the prosecution of veterans and limiting the ability of veterans to prosecute the MoD.

This needs to be urgently addressed so that those who risk their lives for our freedom and liberty are not put in a worse position than everyone else in our society. They deserve better.

 

About the Author:

Simon Ellis is a Partner at Hugh James and is Head of the firm’s Military Department. He specialises in advising current and former members of the armed forces suffering with various conditions, with particular emphasis on hearing lossnon-freezing cold injury and PTSD.  He currently leads a department of more than 40, handling over 3,500 claims on behalf of current and former military personnel from all over the UK. 

Simon is recognised as a leader in this field and has written for the national press and academic publications on military litigation. He is regularly instructed in unusual and/or difficult claims that other lawyers are not prepared to undertake.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

Business news, knowledge and insight