A £3.7 million non-freezing cold injury (NFCI) claim, which has the potential to be the highest value military injury claim to-date, is now in doubt due to alleged ‘fundamental dishonesty’, the Daily Mail reports.[i]
Mr. Brian Muyepa enlisted in the Royal Regiment of the Artillery as a 19-year-old gunner, in 2007. He joined the 40th Regiment (the Lowland Gunners) and the 47th Regiment (the Tactical Uncrewed Aerial Systems Regiment) thereafter.
In March 2016, he undertook a promotional training exercise in Sennybridge, Wales, which involved time spent in a ‘cold water-filled tunnel’.
Following this exercise, he alleges that he was left in sopping boots for a period of over 5.5-hours, which caused his hands and feet to swell, tingle and hurt.
He was later diagnosed with ‘trench foot’ which he attributes to being exposed to wet working conditions. ‘Trench foot’ is a type of NFCI, colloquially named after a disabling condition commonly observed in First World War soldiers on front-line trenches, which is characterised by pain in the extremities and over-sensitivity to cold.
Post-diagnosis, it was recommended that Mr. Muyepa be protected from future exposure to cold, but in early 2017, he spent the majority of his time outdoors on Salisbury Plain, England, working on vehicles and his condition worsened.
Suffering with ‘very severe’ cold sensitivity in his feet, this led to his eventual discharge from the British Army on medical grounds, in January 2018 – the year in which he commenced his compensation claim.
In his pleadings, he avers that his injuries affect him to the extent that he endures pain in his extremities ‘most of the time’. It is purported that he can only walk a maximum distance of 100m with the aid of a walking stick and, after struggling to raise himself from a seated position, he can only stand for a maximum time of 10-minutes, unable to assist his wife with housework.
The Ministry of Defence (MoD) conceded liability in negligence, but new evidence has since come to light, which has, according to the defendant, tainted Mr. Muyepa’s legal action as a ‘compensation scam’.
The Government came across a Facebook video, posted on his wife’s profile, which captures Mr. Muyepa’s attendance at a barbecue, in August 2018, wherein he can be seen dancing and holding a plate. Another social media post conveys him performing as a DJ at a sports hall party. What is more, covert surveillance footage, recovered over the course of 9-days, displays him leaving his house on one-third of the days. On one such day, over the course of 1.5-hours, he was spotted taking his children to school and going shopping at Lidl and Home Bargains. At Lidl, he was filmed unloading items onto the checkout one-handed, whilst his other hand gripped his walking aid to steady his body.
Cross-reference these observations against appointments with his doctor, e.g. one which took place on 16 March 2020, in which he was asked to stand with his eyes open and feet together and lift his walking stick ¼ inch from the floor. On that particular occasion, he fell backwards in a way that was ‘dramatic’ and did not resemble a natural fall.
The MoD is concerned that the claimant was being ‘fundamentally dishonest’ in the way that he has ‘overegged and exaggerated’ his claim, to the extent that the ‘extremely high’ level of damages claimed, including over £1.7 million for future care costs, are comparable with personal injury actions regarding paraplegia.
As such, the MoD recently made an application seeking permission to rely on the new video and surveillance evidence at the forthcoming trial (1-month away).
At the hearing, before Mr. Justice Auerbach, defendant counsel submitted that 32-year-old Mr. Muyepa was clearly capable of ‘behaving in a manifestly different way to the way he presented himself to the doctor’. The evidence illustrates that he is ‘much more mobile’ in his own environment, when he does not think he is being watched.
Whereas, claimant counsel, who criticised the application as an attempted ‘ambush’, described the MoD’s evidence as ‘weak’, since it is ‘broadly consistent’ with Mr. Muyepa’s acknowledgment that his symptoms vary in intensity. It was said to be unsurprising that a NFCI sufferer would ‘feel better on a sunny day after a few drinks’ and notice an ‘alleviation of symptoms’ by taking painkillers. In any event, his dancing movements were not ‘vigorous’.
Despite the claimant’s protestations, Auerbach J ordered that the new evidence be included in the trial, resulting in a delay to the trial timetable. His decision was guided by a ‘real risk of unfairness [to the defendant]’, were he not to admit the new material:
‘It is at least arguable this material could potentially have an appreciable impact on the final quantum of the award that the court makes’.
[i] Faith Ridler, ‘Soldier who claims 'trench foot' and debilitating 'over-sensitivity to the cold' left him unable to walk in £3.7m compensation claim was filmed DANCING at a barbecue’ (12 May 2021 Daily Mail) <https://www.dailymail.co.uk/news/article-9570043/Ex-soldier-32-suing-3-7m-getting-trench-foot-accused-compensation-scam.html> accessed 19 May 2021.