Claimant Vs Ministry of Defence – Case Report

Background

Briefly, the Claimant was employed as a marine engineer in the Royal Navy.  The Claimant was deployed on HMS Portland to the Falkland Islands in 2005.  Whilst in the Falklands fresh supplies of oil were delivered, unusually, in standard oil drums of approximately 200 litres, and therefore had to be pumped on board manually using a make-shift pump rather than piped on board as would have been normally the case.

This task required the Claimant to roll the oil drums from the flight deck to mid-ship and pump oil into the ship’s storage tanks.  The Claimant was working alongside another colleague and the task took over 12 hours, in sub-zero temperatures.

The Claimant was not issued with any cold weather clothing or gloves.  The system of work adopted included a 30 minute break after each oil drum had been rolled and pumped however the Claimant was unable to re-warm during this period or at any other stage throughout the task.  Despite complaints to his immediate superior, he was required to continue with the task at hand.

Upon completion, the Claimant was suffering with severe pain in his hands and feet which had turned ‘black and blue’.  The numbness continued in his feet with a pins and needles sensation for some time afterwards.

The Claimant continued with normal duties, largely consisting of work in the engine room, and he was not exposed to any further periods of extreme cold weather.  Despite complaints to the medical officers of continued numbness, no treatment was offered and the Claimant was reassured.

Following completion of his tour of duty, the Claimant resumed duties to the shore establishment, HMS Drake, where he sought further medical attention in March 2009.  He was referred for a specialist opinion and in around July 2009 it was suggested he was suffering with non-freezing cold injury.  The Claimant’s condition deteriorated and he was later medically discharged from service in September 2011.

Issues of the Case

We received instructions from the Claimant in June 2011 and upon initial review of the papers there appeared to be a number of complexities.

1.Expiry of primary limitation period and whether date of knowledge could be relied upon

2. Identification of relevant legal jurisdiction

3. Identification of relevant law applicable given jurisdiction and incident on board HM Royal Navy ship

1. Limitation

After obtaining advice from Counsel, Mr John Parr, 2 issues arose in respect of limitation.

1. Whether the standard 3 year limitation period applies

2. If the standard 3 year period applies, when the date should start to run

It was established that the standard 3 year period for personal injury claims is applicable in this matter as there are only 2 occasions where the 2 year limitation period prescribed for certain shipping claims is applicable.

Those 2 instances are firstly in respect of claims brought under the Athens Convention, which applies to the carriage of passengers and their luggage by sea, which pursuant to Article 16 of the Convention limits personal injury claims to 2 years from the date of disembarkment.  The Claimant was not a passenger on board the ship under the Convention and therefore this is not applicable.

Secondly, a 2 year limitation period for shipping claims applies in instances where a ship has caused loss or damage, by the fault of that ship, to another ship, its cargo or freight or any other property on board or for damages for loss of life or personal injury to any persons on board another ship, under section 190 of the Merchant Shipping Act 1995.  As this is not applicable to the Claimant either the standard 3 year limitation period must apply.

Given that the Claimant was not clinically diagnosed and/or did not recognise he had suffered significant injury until around 2009, it is likely that the 3 year limitation period will run from this date.  Indeed, the Claimant at this time was not aware of the ramifications of his injury until he was medically discharged from service in 2011 and until that point he expected to continue with his career in the Royal Navy.

Should the Defendant allege that limitation has already expired, on the facts of the case, it appears the Claimant will be justified in arguing the section 33 exclusion of the standard 3 year limitation period under the Limitation Act 1980.

2. Jurisdiction

The issue as to which jurisdiction the Claimant’s claim fell into was considered.  However, although the incident occurred in the Falklands, the Claimant was on board a Royal Navy vessel and therefore subject to the Military Discipline Act.  Consequently the claim can be dealt with in the England and Wales Jurisdiction.

3. Applicable Law

It was identified that the Workplace (Health, Safety and Welfare) Regulations 1992, the Manual Handling Operations Regulations 1992 do not apply to sea-going ships.  Further, the Management of Health and Safety at Work Regulations 1999, whilst expressly stating do not apply to sea-going ships, do apply to ships belonging to Her Majesty’s Navy.

The applicability of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 was initially considered however it has been noted that under section 308(4) of the Merchant Shipping Act 1995 such Regulations do not apply to Royal Navy Ships.

The Claimant principally will rely on the fact that a suitable and sufficient risk assessment was not undertaken in relation to the task he was required to complete in accordance with Regulation 3 of the Management of Health and Safety at Work Regulations 1999.

Further, the MOD does owe the Claimant a common law duty of care, even if no strict liability.

Current Status

Liability was denied by the defendants and the claimant subsequently issued Court proceedings and the parties were able to reach agreement in relation to liability. Currently the matter proceeds in relation to quantum.

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