Ministry of Defence Failing Soldiers Over Non-Freezing Cold Injuries

Compensation claims rising for non-freezing cold injuries as soldiers told to ignore their symptoms and ‘man up’, with ethnic minorities being particularly let down by MoD’s negligence.Claims for debilitating cold injuries from servicemen in the British army have risen significantly, research from solicitors Bolt Burdon Kemp reveals.
In 2015/2016, the government paid out £1.49 million to servicemen for non-freezing cold injuries under the Armed Forces Compensation Scheme – a 20% rise on the previous year.
Since 2006, 1,235 armed forces personnel have received compensation from the government for this injury. Last year saw a 16.7% rise in the total number of service personnel awarded compensation by the government, and over the last ten years, claims have risen by 1650%.

Wet, cold climate
Non-freezing cold injuries (NFCIs) were a major cause of casualties during the Falklands War, which began 35 years ago and occur when people are exposed to cold and wet conditions for a prolonged length of time. When they first landed in 1982, British soldiers had to wade through boggy wetland causing cold injuries. A survey of Armed Forces personnel who served in the war found that 64% of soldiers in infantry units had experienced symptoms of NFCIs.[1]

Lasting impact
Similar to ‘trench foot’ from World War I, the condition affects the hands and feet, and sometimes the genitals. NFCIs can cause chronic pain, numbness and swelling and affect a person’s ability to use their hands and feet. For soldiers, the injuries have a lasting impact on their careers and family life. Soldiers are most often medically downgraded or discharged from duty as they can no longer take part in outdoor activities. Many go on to develop depression and anxiety.

Easily preventable
The MoD has its own guidance on how to reduce cold injuries during outdoor exercises, this includes simple steps such as providing the right cold weather equipment, referring those with symptoms to a medical officer and cancelling exercises when risks are increased. But instead of following the guidance, soldiers have reported being told to ignore the problem and ‘man up.’

Ethnic minorities particularly affected
Soldiers of black descent are 30% more likely to suffer cold injuries than their Caucasian counter-parts. Data obtained from a Freedom of Information request shows that Black servicemen suffered 40.1% of recorded cold injuries in the army, in 2014.[2] This statistic is particularly alarming, considering servicemen of African descent only make up 0.1% of UK forces staff.[3] Abdoulie Jallow is a 28 year old Gambian ex-serviceman who suffered cold injuries during routine military training courses. Jallow was injured in 2012 by the freezing conditions he slept in one night on a combat exercise in North Yorkshire. He didn’t receive a cold weather kit, usually provided to Commonwealth soldiers, until after the exercise.
Jallow recalls: “During the exercise, my legs and hands went numb. I told the Platoon Sergeant but wasn’t taken out of the exercise.  I later complained again and was eventually sent to the doctors.”
Jacob Anum, a 39 year old Ghanian, claimed compensation after receiving injuries while on duty in Germany and Canada. Anum performed well in the Army and applied for promotion, despite his injury.
However, as a result of his injury, he was downgraded and subsequently medically discharged.
Despite his successful claim against the MoD, Anum still feels betrayed by his former employers:
“It can’t fix the pain that I’m going through now, all the benefit and entitlements that I used to get from the Army. I lost my career and the organisation that I worked so hard to be part of. How can that be fair treatment?”

Inadequate compensation
The MoD provides compensation through the Armed Forces Compensation Scheme, but payouts are usually small (on average, 85.5% less than with civic claims⁴) and don’t address the long-term implications of the condition.
Ahmed Al-Nahhas, partner and solicitor at Bolt Burdon Kemp says the MoD are failing servicemen and women across the UK:
“The extraordinary amount of claims for NFCIs shows that the MoD are not doing enough to prevent entirely avoidable injuries for hundreds of our brave armed forces every year. Our clients have reported a devastating impact on their lives, including chronic pain, depression, anxiety and loss of earnings. When reporting symptoms, they have been dismissed and told to ‘man up’.”

Bolt Burdon Kemp have created a simple flowchart to help former armed forces employees understand the key steps in both an AFCS and civil claim process.

What are the common reasons for soldiers to avoid legal action?

They don’t understand their rights and they feel loyal to the Service. They don’t want to be seen as a complainer or perceived as weak. Nevertheless, we advise them to consider their legal rights in the context of what they are going to lose and whether their loss could have been reasonably avoided. i.e. it wasn’t their fault.

What advice would you offer those wanting to take legal action but are unsure?

Take advice and then make a decision. You don’t have to oblige yourself. If you don’t; take advice or act quickly, you may lose out.

How difficult is it to claim against the Ministry of Defence?

This depends on the case as they are like any other defendant. I commonly use the phrase “short arms and long pockets” when describing their approach to litigation, and they are often very stubborn. The Courts will try and level the playing field given the size and resources of the Defendant, so it definitely helps to have a specialist on side.

Why do you think ethnic minorities are particularly affected in this matter?

Because they are genetically pre-disposed to NFCI and because they are worried that if they complain they will lose their careers and have to return home (i.e. abroad). I generally advise them to take action early on and make sure their injuries are assessed by specialists.

What do you think the MoD can do to prevent ethnic minorities from being targeted/ mistreated? They can make sure that their line management are well trained and that complaints are taken seriously. Injured soldiers should not be regarded as malingerers. They should be encouraged to rehabilitate and treated like an asset. By training their management and improving attitudes, from the top down, the can better prevent such cases.

There is often demeaning stigma towards the notion of bullying and mental distress, what more could be done by solicitors to ensure clients receive the best outcome post army career?

I would advise them to get specialist treatment. Early treatment tends to result in a better recovery and prognosis. Clients should also get advice from specialist employment and occupational health experts, so that options for future work is considered carefully in the light of available skills and limitations, physical or mental. Psychiatric illness can be as disabling as losing a limb.

If the trauma or injury has been caused by a third party – perhaps another servicemen/woman, how difficult can this make the case?

This depends on the circumstances but sometimes it can make the litigation easier. It depends if the injury was caused in the course of service. Usually in the services, bullying occurs form the top down; when line managers are able to exert control and influence on those who are less able. Sometimes it happens laterally, when colleagues bully a victim because of perceived differences, or sometimes for no discernible reason at all. Service life can be stressful and combined with a hierarchical structure there is often scope for abuse.

What is the best course of action to take?

Sue the MoD as being vicariously liable for the actions of its agents. In many cases, you can avoid having to proceed against the individuals concerned, so long as you can prove the bullying/harassment that occurred and the circumstances (i.e. were related to duties/service).

Can you explain how these cases are challenging, for you and your client, and what you do to ensure the best outcome is received?

All litigation is challenging and risky. The extent of the risk depends on various factors, including the facts of the case, available evidence, state of the law and behaviour of the parties. Ultimately, it is a process of problem solving and this is always made easier when you are being represented by someone experienced, not only in the litigation process, but who has experience of dealing with the particular Defendant; in other words, you want someone who can anticipate what the Defendant might do in certain situations. Service personnel understand this concept well: “know your enemy”.

The prospects of securing a valuable settlement increases when you are being represented by someone who understands their client i.e. someone who only acts for service personnel and understands the ethos of the services, and the particulars losses of earnings, benefits and pension that may be involved in a claim, as well as potentially lucrative post military careers that sometimes come into play. Service personnel understand this concept well: “know yourself”.