Personal Injury During Employment

Toby Payne Maynard V Ministry Of Defence (2004)

Out of Court Settlement August 2004

The claimant, a 31-year-old man, received £15,000 for the cold sensitivity injury sustained during his army deployment to Norway in January 1997. The claimant suffered from a sense of intense cold and discoloration in his hands and feet when exposed to low temperatures.

Claimant: Male 25 years old at date of accident; 31 years old at of settlement.
Employers' Liability: In June 1996, the claimant began his employment in the army with the defendant. In January 1997, he was deployed to Norway with his unit and at the time was recovering from an ankle injury, which he had sustained in December 1996. The claimant's injuries were not thought to be serious, although he was specifically restricted to base camp duties only and was forbidden from skiing.

During the claimant's deployment, he received one video presentation on training in Arctic conditions, which he did not finish watching because he was ordered to report to the guardroom for duty. The claimant was assigned to an artillery gun detachment and ordered to participate in the unit's annual dry and live gunnery training.

The claimant was not provided with appropriate protective clothing, in particular overboots, and only wore contact gloves when manoeuvring a gun. The claimant received no instruction in the use of provided protective clothing and how to prevent the onset of cold weather associated injuries.

The claimant sustained injury during his employment and brought an action against the defendant alleging that it: (i) allowed gunnery exercises to be carried out in Norway without providing compulsory Arctic warfare training; (ii) failed to provide appropriate protective clothing for the gunnery exercises; (iii) failed to carry out any assessment regarding the general suitability of protective clothing in Norway; (iv) failed to provide adequate information and/or instruction and/or training in relation to the risks of extreme cold temperatures whilst carrying out gunnery exercises; (v) exposed the claimant to a foreseeable risk of injury; and (vi) failed to ensure that the claimant was reasonably safe whilst undergoing the gunnery training.

It was not clear whether the claimant's injuries were due to the initial exposure to extreme cold conditions in Norway in 1997 or whether his condition developed on a cumulative basis from 1997 onwards.

Injuries:The claimant developed cumulative progressive cold injury.
Effects:It was alleged that the claimant consequently sustained non-freezing cold injuries to his hands and feet, which led to the development of cumulative progressive cold injury.

As a consequence of the claimant's deployment in Norway, he suffered from symptoms in his hands and feet, which were aggravated in subsequent deployments overseas. In 2001, the claimant's hands and feet became extremely painful and in December 2001, the defendant referred him to a specialist in environmental medicine, survival and thermal medicine. The claimant was diagnosed with progressive cumulative minor cold injuries to his hands and feet. He was medically downgraded until he left the army in June 2002, although he was not medically discharged.

The claimant suffered from a sense of intense cold and discoloration in his hands and feet when exposed to low temperatures.

Prognosis: The claimant's sensitivity to cold temperatures was likely to be permanent and it was unlikely that any drug treatment would substantially alter his condition.
Out of Court Settlement: £15,000 total damages.

Background to damages: The case was settled on a global basis and the following breakdown was estimated by the claimant's solicitors:

Pain, suffering and loss of amenity: £10,000;
Handicap on the labour market: £5,000;
No special damages were pleaded.

It was contended if the cause of the claimant's condition was the exposure in 1997, then the defendant would raise a limitation defence, which had expired in 2000. If it were cumulative, then the primary limitation period would be extended for that period of cumulative exposure. It was also felt that as the claimant did not fully understand the nature of his condition until 2001 when he was diagnosed with cumulative cold weather injuries, it was arguable that there was a "date of knowledge" point pursuant to s.14 Limitation Act 1980.

Upon filing its defence, the defendant disputed that it was negligent and reserved its position to specifically plead limitation as defence to the action and to plead contributory negligence. The claimant believed that there would be a strong likelihood of a s.33 Limitation Act 1980 discretion being exercised in his favour.