Understanding cold injuries and the process of making a claim

Nia-Wyn Evans and Gurminder Sidhu from our specialist military lawyers recently delved into the topic of cold injuries in a video with Veteran Owned UK.

They explore the specialised work of the Hugh James cold injury military lawyers, shedding light on the causes, symptoms, and legal process surrounding cold injuries.

In this blog, they provide an overview of cold injuries, the role of negligence, the avenues for compensation, and funding a claim.

Cold Injuries: An Overview

The Hugh James Team’s Expertise

Hugh James boasts a dedicated team of cold injury military lawyers operating within a broader military specialist group, offering comprehensive legal services for current and former members of the British Armed Forces.

Types of Cold Injuries

Cold injuries encompass a range of conditions which predominantly affect extremities such as hands, feet, and sometimes ears. In modern terms, these injuries are commonly referred to as non-freezing cold injuries (NFCIs) and freezing cold injuries (FCIs). Conditions include, but are not limited to, frostbite, frostnip, chilblains (pernio), immersion foot, immersion hand, cold immersion syndrome, sensory neuropathy, and trench foot.

Misdiagnosis

Due to the lack of knowledge about cold injuries within the civilian population, they can often be misdiagnosed as conditions such as neurapraxia, raynaud’s phenomenon, pitted keratolysis, acrocyanosis, peripheral neuropathy, complex regional pain syndrome, reflex sympathetic dystrophy, and cold sensitivity.

Understanding Cold Injuries

Unfortunately, military personnel are inherently at a higher risk of cold injuries due to the nature of their service.

Studies also indicate that individuals of African Caribbean and black British descent are 30% more likely to experience cold injuries, particularly NFCIs.

Hugh James currently represents a cohort of serving personnel and former members of the British Armed Forces in respect of their cold injury claims, including clients from Commonwealth countries.

Non-Freezing Cold Injuries

An NFCI commonly occurs when the tissues in the extremities are subjected to temperatures from 0-15°C, including during immersion in cold water and exposure to strong winds.

Gurminder explains that:

“Military personnel, engaged in exercises and courses, are particularly susceptible due to the wet and cold conditions in the UK. Symptoms include numbness, pain, tingling, swelling, discoloration, and, in some cases, excessive sweating”.

Often symptoms become most apparent during rewarming, where there can be intense pain in the affected tissues.

Freezing Cold Injuries

FCIs are distinguishable from NFCIs. Whilst an NFCI may occur with tissue temperatures reaching into the mid-teens, the tissue temperature for an FCI to occur will likely be below freezing.

Symptoms can include frostnip, where there is loss of sensation and numbness that returns to normal after rewarming, and frostbite, where there is blistering and skin loss.

Coexisting Cold Injuries

It is possible to have coexisting cold injuries. For example, military personnel who have suffered an FCI may also suffer from an NFCI in the surrounding tissues with many of the same symptoms of both conditions.

Negligence and Cold Injuries

The Ministry of Defence’s Duty of Care

The duty of care owed by the Ministry of Defence (MoD) to its employees is just like any other employer.

Negligence in cold injury claims may arise from failures in providing adequate kit, insufficient training, and a lack of timely medical referrals.

Negligence can also involve a failure to provide training on identifying, treating, and reporting cold injuries. Lack of awareness among military personnel can lead to exacerbated injuries.

Bringing a Claim for Cold Injuries

Claims can be brought by current or former British Armed Forces members, including reservists.

Seeking legal advice promptly is crucial, dispelling the misconception that claims can only be made after leaving service.

Nia emphasises the urgency of seeking legal advice for time-sensitive claims:

“Individuals diagnosed with cold injuries during service should act promptly, even if previous compensation claims were unsuccessful through the War Pension or Armed Forces Compensation Schemes”.

Compensation

Compensation involves general damages for the injury and special damages for financial losses arising from the injury. Special damages cover loss of earnings, benefits, pension, and out-of-pocket expenses such as additional clothing costs, heating costs, and medication.

It is important to note the aim of compensation is to put the claimant back in the position they would have been in without the injury and not beyond this.

War Pension Scheme and Armed Forces Compensation Scheme

Claimants can simultaneously pursue claims under the War Pension Scheme (WPS) or the Armed Forces Compensation Scheme (AFCS), ensuring they receive the compensation they deserve.

Any compensation awarded through a successful WPS or AFCS is deducted from the civil claim meaning the claimant will not receive ‘double compensation’ for their cold injury.

Funding Your Claim

Hugh James utilises conditional fee agreements and after the event (ATE) insurance, commonly known as ‘no win, no fee’.

Claimants will pay nothing upfront, and fees are only incurred if the claim is successful, with a success fee and the ATE premium deducted from the damages.

The total deduction of the success fee and ATE premium will not exceed 25% of the damages awarded upon settlement.

Conditional Fee Agreement

The conditional fee agreement (CFA) is a legally binding contract between the claimant and Hugh James that outlines what is and what is not covered by the agreement, including the terms of our success fee and your cancellation rights.

As well as Hugh James’ responsibilities, the CFA outlines the claimant’s responsibilities, including reasonable co-operation, not to deliberately mislead, and to be honest.

Importantly, should the claimant breach a term in the CFA, they may be liable for costs incurred if their claim is unsuccessful.

ATE Insurance

The purpose of ATE insurance is to protect claimants, in conjunction with the CFA, against adverse costs and covers the opponent’s costs, as well as their own disbursements.

Should the claimant fail to meet the ATE insurance obligations, this will be considered a breach of policy and will lead to its cancellation. This means the claimant may be liable for any adverse costs.

Conclusion

Our military lawyers stress the importance of prompt action for individuals suspecting or diagnosed with cold injuries during military service.

Seeking specialised legal advice ensures timely claims and maximises compensation, putting claimants back in the position they would have been in but for the injury.