Injury Benefits - The Tariff

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Chapter 18

Injury Benefits – The Tariff

THE STRUCTURE OF THE TARIFF
18.1 Unlike the War Pensions Scheme, compensation for injury under the Armed Forces Compensation Scheme is determined by the severity of an injury and its effects, and not by the degree of a claimant’s disablement. The Scheme ranks injuries according to their seriousness using a 15-level tariff,¹with the most serious injuries at level 1 and the least serious at level 15.

18.2 The tariff contains nine tables, each covering a different type of injury; for example, Table 1 covers burns and Table 2 covers injury, wounds and scarring. Table 3 covers mental disorders and Table 4 covers physical disorders – illnesses and infectious diseases. Within each table, particular injuries and the effects of such injuries are described by means of descriptors, each of which is assigned a tariff level; for example Table 2, Item 5 is ‘Complex injury to chest, with complications, causing permanent significant functional limitation or restriction’, and is a level 6 descriptor.

18.3 The tables also contain notes; for example, Table 3 (Mental disorders), Note 1 defines functional limitation or restriction as ‘severe’ where the claimant is ‘unable to undertake work appropriate to experience, qualifications and skills at the time of onset of the illness and over time able to work only in less demanding jobs’. In Secretary of State for Defence v MJ (AFCS),²Judge Rowland set aside a tribunal’s decision because it was not clear whether the tribunal had regard to the notes to the table, rather than relying solely on dictionary definitions.

¹AFCS 2011, Sch 3.

²[2014] UKUT 0094 (AAC).

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156 War Pensions and Armed Forces Compensation – Law and Practice

THE OVERALL APPROACH TO THE TARIFF
18.4 The Court of Appeal gave guidance on the overall approach to be taken in applying the tariff in the leading case of Secretary of State for Defence v Duncan and McWilliams³(decided under the 2005 Scheme).

18.5 Corporal Duncan sustained a high velocity gunshot wound as a result of a bullet entering his inner thigh, passing through the underlying muscle and tissue structures and fracturing the femur before being carried across and out of the leg, causing an exit wound. An intramedullary nail was inserted into the leg to stabilise the fracture, but Corporal Duncan needed 11 surgical procedures and there was calcification of the muscles with the result that 6 months after the injury he had reduced rotation of the left hip and his range of movements of both hip and knee was reduced. He needed crutches to help him when walking and his left leg was a little shorter than his right. At the time of the tribunal hearing, he was still experiencing significant pain and had suffered serious mental anguish.

18.6 Marine McWilliams sustained a supracondylar fracture of the right femur during training, which was also fixed with an intramedullary nail. He stated that scarring on his thigh caused him some embarrassment. The tribunal found that he had some trouble with his knee which could give way when he was walking, that running was limited and that he got pain in his left lower leg after 10 minutes walking, that he could not wear combat boots and used trainers only, that he had been told that a further operation was likely and that he would never recover his former level of fitness.

18.7 The Court of Appeal decided that the Upper Tribunal had been wrong in holding that injuries resulting from proper and appropriate medical treatment could be said to exacerbate an injury or involve the creation of a separate injury, and in holding that Table 4 (Physical disorders – illnesses and infectious diseases) could be applied to functional limitations or restrictions resulting from physical injury.

18.8 Elias LJ laid down the following general principles:

(i) The Upper Tribunal was correct in holding that the starting point for all descriptors was the claimant’s condition at the date of the decision on the claim (and not the claimant’s condition at the date when the injury was sustained) (at [47] to [55]).

(ii) The object of the exercise in choosing the relevant descriptor or descriptors is to find the appropriate descriptor or descriptors which

³[2009] EWCA Civ 1043, [2009] All ER (D) 121 (Oct).

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most fully and fairly reflect the various features of the injury or illness, as the case may be. This requires a careful analysis of the facts and then a consideration of which descriptor is most appropriate (at [58]).
(iii) If no descriptor fully reflects the scope of the injury, the remedy is to make a temporary award⁴(at [56]).

(iv) It may be legitimate to cross-refer to other parts of the Scheme in some situations, for example, to decide which of two possible competing descriptors is more appropriate (at [58]). However, it is not legitimate to distort the application of the Scheme by identifying an inappropriate comparator on the basis that, looking at the compensation paid for other injuries, the most appropriate descriptor results in inadequate compensation (at [59]).

(v) In some cases, there will be difficulty in deciding whether related injuries should be considered as a single complex injury or two distinct injuries. It is ultimately a question of fact to determine which most fairly captures the essence of the injury, but it would be perfectly proper to have regard to the potential levels of compensation which would result and to compare them with similar sums awarded for other injuries in the same or other tables, provided it would not involve undue distortion (at [60]).

INTERPRETING THE TARIFF
18.9 In Secretary of State for Defence v Duncan and McWilliams,⁵the Court of Appeal also considered the meaning of some specific terms used in the tariff. It held that:

(i) The definition of ‘complex injury’ in the notes to Table 2 of the 2005 Scheme⁶was a clear definition and that it was a question of fact whether or not the injury affected all or most of the identified structures. In the case of Corporal Duncan, the injury was clearly ‘complex’ in the terms of the definition (at [79]).

(ii) The question of whether or not a ‘complex’ injury is limited to the initiating injury will depend on whether the original injury and any subsequent injuries which are to be attributed to service can be treated as a single injury or as two distinct injuries. If they are treated as a single injury, there is no reason why the second injury could not in an

⁴Under AFCS 2011, art 26 (see para 19.24).

⁵[2009] EWCA Civ 1043, [2009] All ER (D) 121 (Oct).

⁶The corresponding definition in...