Understanding the Burden of Proof: AFCS Claims vs. Civil Personal Injury Claims

When advising clients on compensation for injuries sustained during military service, it is essential to understand the differences between claims under the Armed Forces Compensation Scheme (AFCS) and civil personal injury claims.

The Armed Forces Compensation Scheme (AFCS): Burden of Proof

A key distinction lies in the burden of proof and the legal test applied to establish entitlement to compensation.

The AFCS is a statutory, no-fault scheme providing compensation to serving and former members of the UK Armed Forces for injury, illness, or death caused by service on or after 6 April 2005.

Key Points:

• Standard of Proof: The burden is on the claimant to show, on the balance of probabilities, that the injury, illness, or death was caused by service.
• Causation Test: The claimant must demonstrate that service was a material cause of the injury or illness. There is no requirement to prove fault or negligence on the part of the Ministry of Defence (MOD) or any other party.
• No-Fault Principle: Compensation is payable regardless of whether the MOD or another party was negligent.

Example:

A soldier develops hearing loss (NIHL) after exposure to gunfire during training. To succeed under the AFCS, the claimant must show that the hearing loss was caused by service, not that the MOD failed to provide adequate hearing protection.  That having been said, the AFCS tariff scheme is infamously problematic for such claimants.  See the section on our website. 

Civil personal injury claims are brought under the law of tort (usually negligence) and may be pursued against the MOD or other parties.

Key Points:

• Standard of Proof: The claimant must prove, on the balance of probabilities, that the injury was caused by the defendant’s breach of duty (i.e., negligence).
• Causation Test: The claimant must establish that the defendant owed a duty of care, breached that duty, and that the breach caused the injury.
• Requirement to Prove Fault: Unlike the AFCS, the claimant must show that the injury resulted from the defendant’s failure to take reasonable care.

Example:

A service member is injured due to defective equipment supplied by the MOD. To succeed in a civil claim, the claimant must prove that the MOD was negligent in providing or maintaining the equipment, and that this negligence caused the injury.

AFCS                                                                ​​​​​​               

• No requirement to prove fault or negligence  ​                   
• Injury must be caused by service ​​                                   
• Statutory, no-fault scheme ​​​                                              
• Causation: Was service a material cause?              ​           

-vs-

Civil Personal Injury Claim

• Must prove negligence (fault)
• Injury must be caused by breach of duty (negligence)
• Common law claim in tort
• Causation: Did negligence cause the injury?

Conclusion

The distinction between AFCS and civil personal injury claims is fundamental. Under the AFCS, the focus is on whether the injury was caused by service, with no need to prove fault. In contrast, civil claims require proof of negligence and a direct causal link between the breach of duty and the injury. Understanding these differences is crucial when advising clients on their options for seeking compensation.

Grant Evatt

22/07/2025