Time Limits for Military Injury Claims

Can I Still Claim if My Injury Happened Years Ago?

If you suffered an injury during military service several years ago, do not assume that it is automatically too late to make a military injury claim. Time limits are important, but the position is not always as simple as counting three years from the day you were injured.

Different rules can apply depending on the type of claim, when you first knew that your condition was significant and potentially linked to someone else’s acts or omissions, and whether you are considering a civil claim or one of the statutory Armed Forces compensation schemes.

What is the time limit for a military injury claim?

For a civil personal injury claim in England and Wales, the usual limitation period is three years. Under section 11 of the Limitation Act 1980, this generally runs from the date the cause of action accrued or, if later, the injured person’s “date of knowledge”.

That distinction can be important in historic military injury cases.

For example, a veteran may have been exposed to excessive noise during service many years ago but only later become aware of significant hearing problems and their possible connection with that exposure. The relevant limitation analysis may therefore involve more than simply identifying when the exposure took place.

The same can apply to conditions whose significance or cause only becomes apparent later.

Date of knowledge is a legal test, however, and should not be assumed simply from the date of a diagnosis.

What if more than three years have already passed?

A claim that appears to be outside the normal three-year period should not simply be written off.

The Limitation Act contains provisions under which the court can, in an appropriate personal injury case, allow an action to proceed notwithstanding expiry of the normal limitation period. Whether the court will do so is highly fact-specific.

The court must consider all the circumstances, including the length of and reasons for the delay, whether the delay has affected the quality of the available evidence, the conduct of the defendant, the claimant’s circumstances and whether the claimant acted reasonably and promptly once they appreciated that they might have a claim. An important point is whether a fair trial is possible. Evidence will be needed to resolve any issues of prejudice.

That makes early specialist advice particularly important. Evidence becomes harder to obtain as time passes. Witnesses may be difficult to trace and memories can fade. Ison Harrison’s military injury claims service likewise recommends seeking advice as soon as possible for these reasons.

A solicitor considering an older claim may need to establish:

• exactly when and where the injury or exposure occurred;
• when symptoms first developed;
• what you knew about the injury and its possible cause, and when;
• what medical advice you received;
• whether relevant service, training and medical records remain available; and
• whether any particular limitation rules apply to the circumstances of the claim.

A claim that appears to be outside the normal three year limitation period should not automatically be written off.

In short, being outside three years does not necessarily answer the question, but it can create a significant legal hurdle.

Civil claims and the Armed Forces Compensation Scheme are different

One common source of confusion is that a civil military injury claim and a claim under the Armed Forces Compensation Scheme (AFCS) are separate routes.

The AFCS is a no-fault scheme covering injury, illness or death caused by service on or after 6 April 2005. A person does not have to establish negligence to receive an AFCS award, and an AFCS application does not remove the right to pursue a civil claim where an injury is alleged to have resulted from negligence.

The AFCS normally requires an application within seven years of the injury or illness, although different provisions can apply, including for late-onset illness.

If your disablement arose from service before 6 April 2005, the War Pension Scheme (WPS) may instead be relevant if you are no longer serving. Importantly for historic cases, the Government states that there is no time limit for making a WPS claim, although an award is only paid from the date of the claim.

These scheme deadlines should not be confused with the limitation rules governing a civil personal injury action.

What should I do about an injury from years ago?

If you are concerned about an historic injury, take advice promptly rather than trying to decide for yourself that you are out of time.

It helps to gather what you already have, such as:

1. details of your service and the unit or posting concerned;
2. the approximate date and circumstances of the accident, incident or harmful exposure;
3. service and civilian medical records available to you;
4. correspondence concerning medical downgrading or discharge;
5. details of witnesses, where known; and
6. any previous AFCS or WPS applications and decisions.

Do not worry if your records are incomplete. A specialist solicitor can assess what evidence may need to be obtained.

Speak to specialist military injury solicitors

Ison Harrison’s specialist military injury lawyers act for serving personnel and veterans in claims involving matters including training accidents, non-freezing cold injuries, hearing loss, road traffic accidents, parachute and aviation accidents, and poor medical treatment. The firm’s military claims practice represents clients across England and Wales.

If your injury happened years ago, the most important step is to seek advice now. A specialist can examine the dates, your knowledge of the condition and the appropriate route to compensation rather than assuming that a historic injury is automatically out of time.

For a free, confidential consultation, contact Ison Harrison’s military injury claims team on 0113 224 7837 or email [email protected].

This article provides general information about the law in England and Wales and is not a substitute for legal advice about your individual circumstances.