Black Ex-Soldier Ties Cold Injury to Ethnicity in Civil Claim

Non-freezing cold injuries (NFCI) develop when the body’s core temperature falls below its natural level for a significant length of time, causing blood vessels to constrict, reducing blood flow to the extremities and starving those areas of oxygen and nutrients. This can bring about nerve and blood vessel damage.

Back in October of 2020 (here), we reported that a former Royal Marine was suing the Ministry of Defence (MoD), to the extent of £100,000, in respect of NFCI sustained during military survival exercises, in Norway.

In this article, we report on another NFCI claim, picked up by The Daily Mail, which is being brought by a former frontline chef of the 1st Battalion, The Grenadier Guards.[i]

40-year-old, Randy Constable, is seeking £70,000 in damages, ensuing his early discharge from the armed forces on medical grounds in 2014, after 7-and-a-half years of military service. He considers that he ‘lost his army career’ through no fault of his own.

It is alleged, in High Court filings, that the Army Medical Board’s decision was made because he was suffering with ‘chronic pain in his extremities’ (hands and feet), which began while serving in ‘Operation Herrick’, between 2 October 2009 and 2 March 2010.

For the duration of his winter tour of Afghanistan, it is submitted that Mr. Constable cooked in a ‘makeshift shelter kitchen’, where the ‘prevailing temperature’ was cold enough to cause NFCI and did exactly that.

He goes on to make accusations of negligence, on the part of his employer, averring that he ‘had no access to warm accommodation for re-warming’ and that the kit he was issued with was ‘inadequate for the conditions’, not least because he was black.

N.B. Those with African and Afro-Caribbean heritage have been shown to be more susceptible to NFCI compared to their Caucasian counterparts [perhaps as significant as 30-times more likely to contract this type of injury – see Burgess and Macfarlane (2009)[ii]], though there is no widely accepted consensus expert opinion on the extent to which ethnicity increases vulnerability to cold – see edition 257 of BC Disease News (here) for our latest literature review on this topic.

Of course, these attestations will only be tested in a court of law if Mr. Constable is permitted to bring his claim out of time, i.e. is granted judicial discretion, under s.33 of the Limitation Act 1980, to disapply the default 3-year limitation period for personal injuries.

Whilst the Government refused to comment on Mr. Constable’s case when prompted for comment, its Defence makes clear that no admissions of liability have been made and denies that the Afghan tour was a dangerous place for deployment. Rather, that it was ‘appropriate’ for the claimant to participate, as ‘there was no medical factor affecting his Medical Employment Standard’ to ‘contra-indicate’ deployment.

The Defence goes on to state as follows:

No admissions are made as to the description of the makeshift “shelter kitchen” referred to, nor as to the prevailing temperature within it, and the claimant is required to prove the matter.

No admissions are made as to the claimant’s alleged symptoms of cold exposure during the deployment to Afghanistan’.

Ultimately, the MoD contends that the ex-soldier did not lose his career for the reasons claimed, but was instead ‘medically discharged due to a range of health conditions irrespective of his alleged non-freezing cold injury’.

Maintaining that the health and wellbeing of its employees is always a priority, the public body assures that ‘the correctly worn issued Army Basic Kit is suitable and sufficient personal protective equipment’ for dealing with cold conditions, with its standard of personnel safety being further compounded by the provision of training.

Should this litigation reach trial, it will be interesting to analyse the level of importance attributed to Mr. Constable’s ethnicity, upon the court’s assessment of liability.

In the recent case of Carew v Ministry of Defence,[iii] the claimant suffered substantial NFCI and was and risk of developing ‘intractable chronic pain’ without ‘continuing aggressive management’. The MoD failed to supply protective ‘Lowa boots’, but His Honour Judge Tindal reasoned that ‘the mere fact of ethnic heritage’ was not enough to establish breach of duty. Such a finding could only be made if there was ‘direct evidence in relation to the precise circumstances, the risk assessments, what other equipment was provided, what the nature of exercises were and so on’.

 

[i] Rory Tingle, ‘Army chef, 40, left with chronic pain in hands and feet from cooking on the freezing Afghanistan frontline sues MoD for £70,000 over claims he wasn't given protection from the cold’ 16 (16 December 2020 Daily Mail) <https://www.dailymail.co.uk/news/article-9058675/Army-chef-40-left-chronic-pain-says-MoD-left-cold.html> accessed 28 January 2021.

Gavin Havery, ‘North East army chef Randy Constable suing MOD for £70,000 for making him work in a cold kitchen’ (17 December 2020 Northern Echo) ‘North East army chef Randy Constable suing MOD for £70,000 for making him work in a cold kitchen’ <https://www.thenorthernecho.co.uk/news/18952155.randy-constable-sue-mod-freezing-camp-conditions/> accessed 28 January 2021.

[ii] Burgess JE and Macfarlane F., ‘Retrospective Analysis of the Ethnic Origins of Male British Army Soldiers with Peripheral Cold Weather Injury’ Journal of the Royal Army Medical Corps 2009; 155:11-15 <https://jramc.bmj.com/content/155/1/11> accessed 7 January 2018.

[iii] (Birmingham County Court, 14 June 2019).