A dangerous line of work

Aggrieved servicemen and women are now taking the Armed Forces to court. But where does duty end and liability begin?
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The Independent Online

The Armed Forces have come under fire from their own servicemen and women, who are increasingly using the courts to settle their grievances.

The Armed Forces have come under fire from their own servicemen and women, who are increasingly using the courts to settle their grievances.

Most recently, claims have been made by troops deployed last summer to Sierra Leone. They allege that they were exposed to an unreasonable risk of contracting malaria. These cases might not be as simple as some seem to think. Liability may turn on more than just when anti-malaria drugs were administered.

It is now clear that the Ministry of Defence (MoD), which ultimately defends claims against the Armed Forces, cannot rely on Crown immunity. Accordingly, the MoD may have to shoulder liability for injuries suffered by soldiers involved in actions in the Gulf, Bosnia and Sierra Leone.

So far, this has meant a commitment of medical rather than special financial help. In time, there may be pay-outs. These should not be misconstrued as a blanket precedent for accountability towards all casualties. However harsh, there is no legal basis for automatic compensation beyond the existing regime of state war pensions and miscellaneous disability allowances.

But by what criteria should these personal-injury claims be judged? It is surely obvious that soldiers assume an enhanced degree of danger and anxiety in the modus vivendi associated with their chosen line of work. Anthony Raymer, a former infantry major who retired in 1990, says that in return for the Queen's shilling, professional soldiers assume personal risk. This is one of the "exigencies of the service". It can not, therefore, be a foregone conclusion that there will always be redress.

The difficulty with Gulf war diseases, which include Gulf War Syndrome, is that no scientific link has been proven between the potential catalysts - organophosphate pesticides, inoculations - and episodes during the conflict. Nevertheless, incidences of disease here and in the US, where 90,000 of the 700,000 Gulf personnel have sought medical assistance, suggest some connection.

No-fault compensation for service casualties and their families is already provided by Armed Forces and DSS war pension schemes. Some 1,285 Gulf veterans have applied for the latter. These might be seen as modest compared with some awards to civilians injured in the course of their employment. The value of full tax-free war disablement pensions is currently £107.20 per week. With additional allowances, severely disabled veterans could receive approximately £20,000 per annum tax-free.

Modern war is increasingly sophisticated. Biological warfare is a frightening prospect. It was a fear of anthrax that prompted the mass vaccination of troops. Martin Bell, the MP for Tatton and former war correspondent, says that reporters, like soldiers, were attached to military units. They were offered but "were not forced to take" antidotes, unlike the forces who were obliged to take them. He was under no illusions as to the dangers of battle, as he was billeted with spearhead troops. Nevertheless, he stresses that this was his choice.

The disease-carrying insects that are prevalent in desert regions meant that the ground and the tents had to be doused in insecticides. The effects of toxic weapons and countermeasures were unknown, but does this make this pre-emptive action negligent? Unless the government at the time acted recklessly, it is hard to see how it could be liable for any subsequent ill-health.

The Sierra Leone malaria cases raise other issues. Should troops be despatched overseas in emergencies when there may not be time to take full medical precautions? Perhaps not always unless risks are spelt out. Major Raynor points out that it is understood that specialist troops are deployed at a moment's notice.

As for reporters, Mr Bell says that the BBC ensures that staff receive "normal" inoculations. Nowadays, those covering conflict zones also undergo a "hazardous environments" course and are issued with flak jackets. Nevertheless, he knew that if he was badly hurt he would be dependent upon grace and favour payments from the BBC. The widow of one colleague killed in Cyprus, for example, received £200,000.

Those serving abroad should also consider the implications of a recent case concerning compensation for victims of violence in the theatre of war. Many servicemen may believe there is automatic recompense in these circumstances. In 1979, the MoD introduced the Criminal Injuries Compensation (Overseas) Scheme. An internal circular explained that this ex-gratia regime covers those stationed abroad and dependents who are victims of violence. It was intended to be analogous to the domestic CICB. An MoD spokesperson says that since 1990, 720 claims have been paid.

However, injury or death caused by an enemy where a state of war existed or a warlike situation was declared to exist precludes recovery. In December 1994, Parliament announced in relation to Bosnian peacekeeping operations that payments would not be made for "war operations or military activity by warring factions".

Sergeant Walker, of the UN peacekeeping force, was severely injured when his accommodation block was deliberately shelled by a Serbian tank.

His role did not involve military activity. The attack constituted a criminal offence under the Convention on the Safety of United Nations and Associated Personnel (1994) and the United Nations Personnel Act 1997. After a protracted legal fight against the MoD, the House of Lords rejected his compensation claim last year.

Although Sergeant Walker equated his situation to soldiers in Northern Ireland who have made successful claims, the House held that "there is a distinction... between war operations and military activity by warring factions on the one hand, and support for the police forces dealing with terrorism on the other". Accordingly, because the role of his force was different to troops in Ireland, he was denied compensation.