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War veterans lose compensation battle

BMJ 2003; 326 doi: (Published 29 May 2003) Cite this as: BMJ 2003;326:1166
  1. Clare Dyer, legal correspondent
  1. BMJ

    British war veterans who say they have post-traumatic stress disorder are considering an appeal after losing a £100m ($164m; ‡138m) compensation claim against the Ministry of Defence in the High Court last week.

    Lawyers said only a few of the 2000 claimants would be able to go ahead with their claims after Mr Justice Owen rejected their arguments that the ministry had breached its duty of care in its system for dealing with service personnel with the disorder.

    The group action by soldiers who fought in the Falkland Islands, Northern Ireland, the Persian Gulf, and Bosnia accused the Ministry of Defence of failures in identifying vulnerable personnel, preparing them for the horrors of war, debriefing and treating them, and easing their path back into civilian life.

    The judge, who took more than five months to make his 700 page judgment after a six month trial, ruled that a large tranche of claimants—those who saw action before 15 May 1987—were barred from suing the ministry by crown immunity.

    He also ruled that under “combat immunity” soldiers owe one another no duty of care when engaged with the enemy in the course of combat. The immunity extends to all active operations against the enemy in which personnel are exposed to the threat of attack and includes peace keeping as well as planning and preparation for operations.

    In addition, he held that for personnel in combat the Ministry of Defence was not under the usual employer's duty to provide a safe system of work. A claim that the ministry should have provided psychological debriefing was abandoned after studies showed that such debriefing was of no value in treating post-traumatic stress disorder. One study showed that it could be positively harmful.

    The judge said the ministry had failed in its duty to the claimants in only three respects, two of which made no difference to the outcome. The only significant failure was in the services' system for notifying the NHS of service personnel's medical history between 1976 and 1992.

    But although there was no systematic failure, Mr Justice Owen said that in individual cases there had been a negligent failure to detect, diagnose, and treat a psychiatric disorder. Of the 15 lead cases—those selected to go forward to court as representative of the 2000—four fell into this category.

    However, lawyers said two of the four were barred by crown immunity. A spokesman for the claimants' solicitors said: “Only a fraction of the soldiers, sailors, and airmen we represent will be able to recover compensation.”

    Simon Wessely, professor of epidemiology and liaison psychiatry at the Institute of Psychiatry and director of the Gulf War Research Unit at King's College, London, who gave evidence for the Ministry of Defence, said after the judgment, “I would agree that we don't do as well as we can with psychologically damaged war veterans. But the army is not responsible. It is an NHS responsibility.”

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