Oh dear. The legal profession is having a bad run of luck with the MOD, which has announced plans to remove the right of soldiers to sue it for negligence. Instead it will return to paying compensation on a no-fault basis.
While the lawyers complain vociferously about infringement of rights, a quick study of history and the facts means that, for once, the MOD has got it right. Before the repeal of the Crown Immunity all soldiers got fixed rates of compensation for injuries; £x for a leg, £y for a finger etc. The compensation was produced quickly, with no real fuss and no protracted legal wrangling. And no legal costs.
Since the repeal of Crown Immunity soldiers have had to sue the MOD, which has defended itself vigorously. Net results include a delay to injured servicemen receiving compensation of an average of 2 years, a loss of faith in the MOD’s commitment to servicemen, much stress and, of course, significant legal costs accrued by both the MOD and the claimant. Proving negligence on the battlefield is challenging at best due to the nature of combat and the effects of adrenaline, fear and stress on decision making and memories. No negligence, no award.
Thus the severely injured serviceman undergoing rehabilitation has the additional worry that he may receive little or nothing to equip him for his new life. Worse, the junior commander making split second decisions (and combat happens at pace) will worry that in addition to the trauma of having one or more of the servicemen under his command receive life changing wounds he (or she) may later be in the dock, demonstrating that the decision was not negligent.
This change removes both those problems. There are two significant, but easily solved, concerns. The first is on setting the level of compensation. Given the large number of awards made since the invasion of Iraq setting baselines should not be difficult. The second is the impartiality of the assessor, who will inevitably in some way be an MOD employee. Again, with no need to consider fault it should be pretty straightforward; “Rifleman Tommy Atkins set out on patrol at 9 am with all his limbs intact. At 11:30 am, following a firefight, what was left of him was airlifted to a hospital which noted that he had lost one leg, one arm and an eye.” Straightforward. The compensation could be agreed before Rifleman Atkins was discharged. Of course, if subsequent injuries were identified additional compensation could be paid.
Finding an assessor would not be hard. Should anyone lean on the assessor a quick phone call to the papers would solve it. Better yet, without the need to pay lawyers there would be more money available for injured servicemen.
The human rights legal industry is starting to become beyond parody; the Law Society would be making better use of its time to identify other Shiner like charlatans, (I very much doubt Phil is the only bad apple in the profession) and develop procedures to prevent them recurring. The MOD has this right.