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The Claimant, Marcus McNulty, was born on 15th July 1980 and was a Private in the Army when he was catastrophically injured during the course of his service with the King Regiment on 4th September 2002 aged 22 years.
He was engaged in exercise "Iron Anvil" at the British Army Training Unit, Suffield, Canada. He was driving a Wolf Land Rover and was at the rear of a company packet driving alone as the convoy moved west. The exercise was a night exercise.
Having arrived at the assigned position the Claimant was instructed by a Sergeant to move the land rover onto a parallel track as the Claimant's vehicle had been experiencing difficulties both in keeping up with the Warrior vehicles in front and negotiating the tracks left by them.
Having reached a check point the Claimant was directed to continue along the parallel track. That track veered in an easterly direction so that the Claimant lost sight of and became separated from the convoy.
Following a number of radio transmissions between the Claimant and his Sergeant and Major the Claimant was instructed to turn around and travel back along the track to join up with the rest of the convoy. He was ordered not to use headlights as this would highlight his position to the "enemy". He became lost, he did not have a GPS or any other device or assistance to enable him to regain position. He had been left behind by the remainder of the convoy. He attempted to follow the orders he had been given. Without night vision and in addition the land rover windscreen wipers failing the Claimant had to constantly stop to wipe mud and debris from the front windscreen.
During his attempts to find his way and rejoin the convoy as instructed the Claimant felt the front wheels of the land rover begin to lose grip and veer towards the left hand edge of the track. The Claimant could not regain control of the vehicle and it overturned causing him catastrophic injury.
The Claimant suffered a fracture dislocation of T5 and T6 managed by open reduction internal fixation from T2 to T9. He now has T4 motor and sensory complete paraplegia. A right sided pneumothorax and minor rib fractures and a minor head injury from which he recovered completely. The Claimant was left with substantial pain at the level of his injury and required refusion of the spine. He developed severe infection in his right testis which resolved but only with destruction of the testis. His right hand was prone to shaking. He lacks abdominal and paraspinal muscle control so that his truncal balance is poor. He suffers severe spasms. He lacks sensation from the control of his bladder, bowels and sexual organs. His overall risk of syrinx formation is 15%. He required care and attention, specialist treatment, adapted housing, appropriate aids and equipment, physiotherapy and other therapies, fertility treatment and regular follow-up reviews provided on a private basis. It was inferred that the Claimant may manage some employment, possibly until his mid-40s but even if he does he will be grossly disadvantaged on the open labour market. His life expectancy was reduced to age 75 and these were catastrophic injuries of the utmost severity.
During the course of the case and after Judgment had been entered the Claimant requested an interim payment of £459,187.14 to facilitate the purchase and adaptation of a property suitable for the Claimant's accommodation needs. The Claimant will be wheelchair bound and will require life long care.
The Claimant's preliminary schedule of loss, at the time of the interim payment application, indicated the Claimant's value of his case as it was currently quantifiable in the sum of £920,410.
Following the Claimant's discharge from hospital in February 2003 the Claimant had returned to his parents home which was a three bedroomed detached property. Upon initial discharge from hospital he was sleeping in the dining room and being carried upstairs for a bath. The family eventually converted the garage to provide a bedroom and ensuite shower room for the Claimant which had assisted but purely on a temporary basis. The property remained unsuitable accommodation for the Claimant's needs.
The request for an interim payment was refused by the Defendants and an application was made for an interim payment in the Manchester District Registry. It was argued that the sum sought was a more than reasonable proportion of the likely amount of the final Judgment, consideration was given as to whether an award of the sum sought would cause unfair prejudice "level playing field argument". The Claimant's right to utilise interim payment for purchase of a suitably adapted accommodation was discussed, an assessment of housing needs was undertaken by the Local Authority, Bolton MBC, and it was evident that no ground floor suitable accommodation would be made available by the Local Authority. It was also argued that it was self evident that suitable accommodation would provide increased dignity for the Claimant and greatly benefit his ongoing rehabilitation. The interim payment is the Claimant's money and if he spends it on improving his housing position that is a matter for him.
The Defendants argued there should be a Periodical Payment Order which would prevent the Claimant obtaining a substantial interim payment. The Claimant argued that a PPO was not meant to prevent a Claimant from using an interim payment for perfectly reasonable needs.
It was ordered that the Defendants pay the sum of £459,187.14 to the Claimant's Solicitors by way of interim payment for the purpose of purchasing and the adaptation of a property. Costs were allowed at £15,919.69. The costs of the interim payment application went to detailed assessment with the costs of the detailed assessment paid by the Defendants to the Claimant of £4,087.35 plus interest at £700.00 for the interim application.
In an attempt to narrow down issues legal representatives met on 11th September 2006 and general damages were agreed at £150,000, past losses in the sum of £160,000 including interest. The main areas of dispute between the parties were in terms of future care and whether this would be provided by the Claimant's family or professionals and the involvement of a case manager, the equipment the Claimant required, the reasonableness of the property which the Claimant had purchased and the adaptations that had been undertaken as a result of his disabilities, the need for assistive technology, the Claimant's career prospects but for the accident and his residual earning capacity. There were also continuing issues regarding the appropriateness of the interim payments and to which heads of damage, if any, they should apply. The parties also differed with regard to the Claimant's life expectancy. Mr. Gardner, Consultant Spinal Surgeon instructed by the Claimant was of the opinion the Claimant's life expectancy had been reduced to 75 years whereas the Defendants expert, Mr. Cowen, Consultant in Neurological Rehabilitation, was of the opinion his life expectancy had been reduced to 70 to 71 years.
A Counsel to Counsel settlement conference took place on 11th September 2006 and negotiations broke down with no settlement being reached, each party walked away.
Directions were given for the matter to be listed for trial. The case was fixed for trial between 13th to 19th November 2007. The Claimant's Schedule of Loss to trial was as follows:-
| Pain, suffering and loss of amenity | £150,000 | |
| Interest | £6,150 | |
| PAST LOSSES | ||
| Loss of Earnings | 66,684 | |
| Credit for monies received | 12,015 | |
| Total Past Losses | 54,569 | |
| Past Care | 53,026 | |
| Claimant gave credit for Housecroft deduction of 20% | 10,605 | 42,421 |
| Costs associated with Claimant's hospitalisation and care | 4,910 | |
| Private operation to remove Spinal Fixator | 8,500 | |
| Housing - Conversion of Parents home | 17,800 | |
| Equipment | 5,408 | |
| Transport | 23,768 | |
| Additional Expenses | 10,640 | |
| Physiotherapy | 1,140 | |
| Leisure | 3,400 | |
| Travel to World Cup/Bolton Wanders Season Ticket & Travel | 1,500 | |
| Personal Injury Trust | 646 | |
| Interest 1.5% Special Investment Account Rate 12.07% | 21,181 | |
| TOTAL PAST LOSSES | 195,142 | |
| FUTURE LOSSES | ||
| Earnings | 450,000 | |
| Pension | 164,292 | |
| Care | 972,803 | |
| Wheelchairs | 184,181 | |
| Hoists/Slings | 20,720 | |
| Occupational Therapy Equipment | 101,384 | |
| Increased cost of laundry etc | 120,431 | |
| Chiropody | 4,450 | |
| Occupational Therapist | 11,455 | |
| Physiotherapy | 36,702 | |
| Physiotherapy Equipment | 19,878 | |
| Medical Treatment | 187,292 | |
| Accommodation | 432,100 | |
| Travel | 237,300 | |
| Holidays | 139,050 | |
| Leisure | 47,277 | |
| IT Costs | 100,844 | |
| TOTAL | 3,583,097 | |
The Claimant gave credit for payments received in the total sum of £470,000.00 plus interest at 12.049%
TOTAL £3,100,048.00
Negotiations were reopened between the Claimant and Defendant Solicitors over the course of four months in an attempt to settle. Negotiated settlement was eventually achieved between the Claimant and Defendant Solicitors at £2.4million on a lump sum basis with credit given for interim payments and £18,980.39 in respect of CRU.
Settlement £2,400,000.00
Solicitors for the Claimant: Hilary Meredith, Hilary Meredith Solicitors, Wilmslow.
Counsel for Claimant: Mr. W. Braithwaite QC and Mr. W. Waldron (now QC) Exchange Chambers, Liverpool
Solicitors for MOD: Mike Brown, Berrymans Lace Mawer, Liverpool
Counsel for Defendant: Mr. J. Rowley QC, Manchester
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£3.6 million - the highest payment ever awarded against the Ministry of Defence
$7 million - recovered on behalf of British Soldiers injured in a US bus crash
DM 4.5 million - for a brain-injured German student
£1.7 million - for a soldier who became a paraplegic following an accident
The Claimant suffered injuries during the course of his service with the Royal Air Force.
The accident occurred whilst the Claimant, a Squadron Leader, was deployed on a training exercise in Goose Bay, Canada in August 2003. Following a low level familiarisation sortie, the Claimant was required to carry out a paired formation landing with a second Tornado F3 on the runway at Goose Bay.
The surface of the runway was contaminated with standing water. As the Claimant selected thrust reverse upon touchdown, his aircraft began to yaw and tracked to the left. The yaw rate increased rapidly resulting in the loss of control of the aircraft. The Claimant ejected from the aircraft, sustaining severe injuries in the course of a heavy parachute landing. The parachute landing was excessively heavy due to insufficient retardation of fall speed provided by the parachute.
Hilary Meredith Solicitors obtained a copy of the Board of Inquiry into the incident and it came to light that following an earlier accident in 1995, it was known that the runway at Goose Bay had poor drainage which was known to provide low co-efficients of friction and poor braking action, particularly when wet. This information had not been passed onto the Claimant.
It was also recommended that the parachute the Claimant had be taken out of service and replaced with a different model which, if had been used by the Claimant, would have reduced his injuries.
As a result of the accident, the Claimant suffered serious injuries to his left foot including an avulsion fracture at the base of the third metatarsal - phalangeal joint, fracture of the second and third metatarsal, dislocation at the base of the forth and fifth metatarsal and fracture dislocation of the talo-navicular joint. As a result of his injuries, the Claimant underwent surgery.
Unfortunately, the Claimant's symptoms deteriorated and X-rays revealed post traumatic osteoarthritis in the affected foot. There was a risk of him requiring further surgery in the future.
As a result of his injuries and ongoing symptoms, the Claimant was medically downgraded and no longer authorised to fly.
It was the Claimant's case that, but for the accident, he would have remained in the RAF until normal retirement age of 55 and during the remainder of his service would have been promoted to wing commander. Failing such a promotion, he would have sought redeployment as a professional aviator. Following retirement at 55, he intended to work for a further 5 years as a commercial airline pilot as he had done previously in his career.
The Claimant sought compensation as a result of his injuries, loss of flying career, loss of earnings as a result of loss of promotion, restriction on his ability to undertake any form of employment involving flying, prolonged standing/walking, walking on uneven surfaces, climbing and heavy lifting and consequent effect on his pension.
Court proceedings were issued in this case a result of the Ministry of Defence's failure to accept responsibility for the accident. Following the issue of Court proceedings, the Ministry of Defence did accept liability and the matter was listed for a trial on the issue of damages in May 2008.
A meeting took place prior to the trial between Hilary Meredith Solicitors and the Ministry of Defence to try and agree compensation but this proved unsuccessful. However following further negotiations and five days before trial, the parties were able to agree compensation in the sum of £180,000.
The Claimant suffered injuries during the course of his service as a Trooper in the First Queens Dragoon Guards on an exercise in Germany in 2004. The exercise was a tactical exercise and the Claimant was required to patrol in a light armoured tank. During the course of the exercise, the Claimant's vehicle was "taken out" by enemy fire, as a result of which he had to leave the vehicle and go to a second tank situated 20 metres away. He was instructed to go behind that tank and to "put down fire". Whilst the Claimant was positioned behind the tank, it reversed trapping his right foot and then driving over his legs and upper body.
As a result of the accident, the Claimant suffered a sprain of the right wrist and injury to the right knee. He was also diagnosed with post traumatic stress disorder.
The Claimant was medically discharged from the army as it was considered that the Claimant's symptoms of post traumatic stress disorder prevented him from returning to a military environment and that he also had a chronic physical injury which would have a significant impact on his military service and trade and that he would only be fit for administrative duties.
The Ministry of Defence admitted liability for the accident and the matter was listed for trial on the issue of damages in April 2009.
It was the Claimant's case that, but for the accident, he would have remained in the army for the full 22 year term during which he would have been promoted and progressed to the rank of Warrant Officer. The Claimant relied upon his family history of service within the Forces in support of his claim.
The Claimant therefore claimed compensation as a result of his injuries, the loss of his army career, loss of earnings and benefits and allowances that he would have been entitled to had he remained in service and loss of pension.
The parties attended mediation but were unable to agree a settlement. However following further negotiations and two days before trial, the parties were able to agree compensation in the sum of £175,000.
Judgment was handed down in the Newcastle County Court on the 10th August 2009 in this matter. The case concerned a young solider who was discharged from the Army on medical grounds following sustaining a loss of hearing and tinnitus to his left ear only, after being exposed to gun fire and thunder flashes in a training exercise.
The Claimant longed to follow in his Father's footsteps and serve for his Country. At the age of 15 he signed up for the Army Air Corps (AAC) and was enlisted in December 2003, joining for duty in January 2004.
In November 2004, the Claimant was taking part in a training exercise. He was wearing ear defenders and was told to remove them, whilst he and his colleague manoeuvred to another point where there would be new ear defenders available. The Claimant duly did as he was told, but on reaching the next point there were no defenders available. He asked the Sergeant for the defenders, but then thunder flashes started to be discharged and the Claimant and his colleague returned fire. Immediately after the exercise the Claimant was aware of a loss of hearing in his left ear and a ringing. This was reported and he was taken to the sick bay.
The Claimant remained in the AAC for a further 2½ years, during which time he was on restricted duties and further had to wear double ear protection if exposed to further noise. In April 2007, following successive medical boards the Claimant, was discharged from the Army on medical grounds due to his hearing disability. He was also advised that he would not be able to pursue any career in the uniformed services.
The Claimant was not eligible for compensation under the Armed Forces Compensation Scheme (AFCS), as the deafness had to be bilateral and further the total loss over frequencies 1, 2 and 3KHz (the frequencies where speech is heard) had to be over 75dB. The Claimant therefore sought to be compensated for his losses through the civil Courts.
Liability was admitted in the early stages of Court proceedings and subsequently the Claimant was offered £2000.00, this was rejected as this award was not sufficient for general damages alone.
Further evidence was gathered and the Claimant maintained that he intended to be in the Army for 22 years and attain the position of Warrant Officer 1.
At trial the Judge found that the Claimant would have attained the full 22 years service. He found that the Claimant was a determined and proactive young man, who after being dealt this blow to his life plans decided to go to college and study film and television production. The Claimant is due to start University in a course in media production. However it was acknowledged by the Judge that whilst the Claimant may achieve this new dream, it may not be as financially rewarding as a career in the Army and thus the Claimant was awarded damages for future loss of earnings and future loss of pension. The Claimant also recovered an award for being disadvantaged on the open labour market and also loss of congenial employment, that essentially being an award for the loss of losing his dream employment.
What this case demonstrates are the inadequacies of the AFCS. This scheme was developed to compensate injured soldiers for their losses, whether the injury was incurred in the theatre of war, or through the negligence of another. However no account is given for other losses that may be incurred, which can be recovered in a civil action.
For a solider who is severely injured in action the maximum level under the AFCS is £570,000.00. This however is rarely awarded and was only increased following the tiresome campaigning of families of severely injured soldiers. However is this enough to cover care costs for the rest of a life? A 19 year old requiring care will have demands of up to £2million for the remainder of their life. Add to this adaptations and alterations to their home as well as compensation for their injuries.
Whilst some may say that injuries are to be expected in the theatre of war, one must remember that the MOD is an employer and that the same standard of a care applies to all service personnel. Comparisons may also be drawn between the present case and that of someone who is visually more disabled, however what one must remember is that Mr Bradlaugh has lost the opportunity to pursue his dream and therefore may never earn in the region of what he may have had done had he been able to remain in the Army.
Clearly the AFCS scheme needs a further shake up and the way in which monies are awarded needs to be reviewed. Injured soldiers need to be aware that the AFCS scheme is essentially not a compensation scheme, but is merely a pension enhancement scheme. We feel that the public and soldiers alike ought to be more aware of this and therefore invite the Ministry of Defence to consider renaming the scheme to something more befitting of a lump sum pension enhancement scheme.
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