Where before now there has been a blank refusal to pay any damages to veterans and serving personnel, several critical issues have been compromised on condition that you agree to come under a ‘Matrix,’ which is explained below. Whilst it has no relevance to the Hollywood movie, there is science and maths involved. If you can prove that you have service caused hearing loss and agree to apply certain discounting factors to the monetary value of your claim, you will recover damages for your injury and any consequent financial losses.
The issues which have been compromised are:
In every personal injury claim, and military claims are no exception, you ordinarily have only 3 years to either settle a claim or issue court proceedings. This is called ‘Limitation’. Although a court does have the discretion to allow a Claimant to pursue a claim outside this 3-year limitation period, the discretion is only exercised in very limited circumstances. The 3-year period starts either on the date of the incident when the injuries are suffered or, the date when it became apparent to the Claimant that they had suffered a significant injury and that it was the fault of another; we call this their ‘date of knowledge’. The MOD always raises this as a defence and it can end the case right away.
This is not now an issue and means that all veterans who saw service before and after May 1987, regardless of the number of years which have passed since they began living with hearing loss, can claim damages.
Combat and Crown immunity is a huge problem. In actual fact, it was not until May 1987 that you could pursue a claim against the MOD (the Crown[1]). If you were injured, negligently or otherwise before that date, you had zero cause of action.
Furthermore, the MOD defends a negligence claim if the damage resulted from combat i.e. engagement with the enemy[2]. There is no exact science and it has always proven problematic. For example, even if you could get over this hurdle and prove a breach of duty (negligence), you had to apportion how much damage was caused in the preparation for combat (live fire training exercises) and how much damage was done actually fighting the enemy. Lastly, the Overseas Operations Act[3] which came into force in June 2021, created a 6-year limitation stop-gap for all potential military claims occurring overseas. The result? More hurt for Claimant’s.
These issues are now stripped away. This is quite a compromise for veterans.
Legally, you have had to prove that the MOD owed you a duty of care and secondly that they breached that duty of care and are therefore negligent. The burden is upon you to prove that you have been exposed to acoustic trauma from small arms fire and platoon weapon systems, grenades, anti-tank and anti-aircraft weapons, artillery and naval gunfire, mortars, loud engines (i.e. tanks), aircraft…
You have also needed to prove that you were either not supplied with suitable hearing protection and/or the protection was not fit for purpose. In a more complex case, you have had to obtain supportive independent expert evidence from acoustic engineers.
Under the matrix scheme, proving a breach of duty is gone. It has been agreed that a Claimant to whom the Matrix applies shall, for the purposes of medical causation (proof of damage), be taken to have ‘sustained sufficient noise exposure during their military service as to be capable of causing noise-induced hearing loss’. What this means is that if you accept that your case is subject to the conditions of the Matrix agreement, you do not need to prove when, where and how often you were exposed to noise, nor whether or not you were adequately protected against damage.
Again, this is quite a compromise but with a note of caution. It still remains incumbent upon you to prove that you are suffering from military noise-induced hearing loss, hence independent medical evidence is still required.
The MOD (and this applies equally to Veterans UK with AFCS claims) will commonly blame a Claimant for some or all of their damage and loss, called Contributory Negligence.
No longer is this an issue.
What are the Discounting Factors?
If you can prove that you have service caused hearing loss, by agreeing to accept the Matrix compromises on Crown immunity, limitation, breach of duty, contributory negligence, combat immunity and apportionment, you must also agree to apply the following factors to your claim for damages:
This is applicable only to those with some service up to and including 14th May 1987. For example, this will cover all who served in the Falklands in 1982 and Operation Banner (NI). To qualify under the Matrix, they must have continued to serve after 14th May 1987. Each Claimant’s claim for damages and interest shall be discounted by a percentage factor calculated via the following equation (to one decimal place):
The Crown Immunity Discount Factor is in addition to, and not instead of, the Table 1 Discount Factor explained below.
ii. Table 1 Discount Factor
The appropriate band in which you fall into is determined by your ‘effective date’ of service. The effective date is your date of discharge from regular military service to which one year is added (called ‘D+1’). There are similar rules for Reservists.
This is the Table:
|
Band |
Effective Date |
Discount % |
|
1 |
Up to 31 December 1999 |
30 |
|
2 |
1 January 2000 to 31 December 2004 |
25 |
|
3 |
1 January 2005 to 31 December 2009 |
20 |
|
4 |
1 January 2010 to 31 December 2014 |
18 |
|
5 |
1 January 2015 to 31 December 2019 |
15 |
|
6 |
From 1 January 2020 onwards |
10 |
As explained above, where a Claimant’s claim is subject to a Crown Immunity Discount Factor and a Table 1 Discount Factor, the two Discount Factors are applied successively.
Summary
The matrix will work well for some, but not so for everyone. For example, for those who have left service since January 2020 or, who are still in service, if they accept to come under the Matrix, their claim will be subject to a discount factor of only 10%. That is a very good outcome for those individuals.
The combined discount factor for those who saw service before and after 14th May 1987 will be more complex than those who did not. But, to even have the opportunity to claim damages so many years after the event should be seen as a huge win for veterans.
Neither the War Pension scheme nor the Armed Forces Compensation Scheme provides any, nor any adequate, compensation for deserving individuals. Even if Veterans UK accepts that someone has suffered service caused hearing loss, a claim will be rejected when it does not meet the high threshold set by each of these schemes. This should therefore be seen as an unprecedented and generous move by the MOD. Finally, after years of pressure, a policy decision has been made to compensate our injured troops and veterans for their service caused noise induced hearing loss.
A military noise induced hearing loss claim, should you qualify, must be made through a regulated law firm. If you suffer with debilitating hearing loss which has been caused by your military service, and this article is of interest, we would be pleased to hear from you.
17th July 2024
Grant Evatt
Solicitor with Alma Law – Andover
Veteran of 29 Commando Regiment RA
E: contact@almalaw.co.uk
DD: 01264 355477
This material is intended to provide only general information and it should not form the basis of legal advice concerning your rights or obligations on any particular issue.
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[1] Historically, under section 10 of the Crown Proceedings Act 1947, military personnel were prevented from bringing claims against the Crown for personal injury or death caused by other members of the British Armed Forces. The Crown Proceedings (Armed Forces) Act 1987, coming into force on 10th May 1987, reversed that immunity. It does not work retrospectively
[2] This includes all those involved in indirect artillery/naval gunfire fire missions
[3] Overseas Operations (Service Personnel and Veterans) Act 2021
Just #AskForGrant - he is a Law Society accredited personal injury solicitor who has specialised in claims for over 20 years. He's approachable, down to earth and you can rely on him to get you the compensation you need to get on with your life.
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