ZZZ v Ministry of Defence: Why Basic Independence Can Understate Loss in Military Injury Claims

The Court of Appeal’s decision in ZZZ v The Ministry of Defence [2026] EWCA Civ 875 is principally a liability judgment. Yet for practitioners dealing with serious military injury, it also raises an important question about what comes afterwards. The claimant was an 18-year-old Rifleman with A Company, 5 Rifles, who suffered serious injuries, including a significant brain injury, after falling from a second-floor landing in his accommodation block at Bulford Army Base.

The Ministry of Defence appealed against the finding of full liability. The Court of Appeal dismissed the appeal, leaving the original decision, including the absence of any reduction for contributory negligence, intact. The legal findings are significant in their own right. But once liability is established in a case involving a young serviceperson, the focus eventually moves elsewhere: from how the injury occurred to what the injury has actually taken away. For military claimants, basic independence may only tell part of that story.

Service accommodation, employment and life off duty

The claimant was required to live in the barracks. The accident occurred while he was off duty, after a night out drinking with other soldiers and during an interaction on the landing which the trial judge characterised as drunken horseplay rather than a serious fight. The MoD argued, among other things, that the soldiers’ conduct had taken them outside the scope of their licence to occupy the premises and therefore outside the protection ordinarily afforded to lawful visitors under the Occupiers’ Liability Act 1957. That argument failed.

Once the requirement for the claimant to live in the barracks was established, the trial judge concluded that the MoD’s responsibilities extended to him while he was off duty but living there. The Court of Appeal upheld that conclusion. There is something particularly relevant to military claims in that finding. For many service personnel, work and private life do not occupy entirely separate environments. The employer may also provide the accommodation in which the individual sleeps, socialises and spends much of their non-working time. The factual realities of military life therefore mattered.

Alcohol, horseplay and contributory negligence

The claimant had been drinking and the events immediately before the accident were contested. The MoD sought a substantial reduction for contributory negligence, arguing that involvement in fighting or horseplay beside an open stairwell represented an obvious failure to take reasonable care. The Court of Appeal acknowledged that this was not an easy issue, but contributory negligence could not be decided simply by describing the incident at a high level of generality. It depended upon the facts that had actually been established at trial.

The trial judge had found that the other Rifleman had instigated the interaction, there was no serious intention to fight and the fall was accidental rather than malicious. Against those findings, the Court of Appeal was not prepared to substitute a finding of contributory negligence. The burden remained on the Defendant to establish it. That is one of the broader themes running through the judgment: the factual detail mattered more than the label attached to the behaviour.

“Drunk”, “fighting” or “horseplay” could not themselves resolve the legal questions.

Brain injury and an imperfect recollection

The evidence concerning how the fall occurred was complicated further by the claimant’s injuries. His accounts varied. Records referred at different times to falling backwards, having his legs pulled from underneath him, being lifted or thrown and feeling a strong push. The trial judge found that he was genuinely trying to assist the Court but was nevertheless unreliable in relation to significant events. His memory had been affected by the brain injury and also by the alcohol consumed before the accident. The Court of Appeal found no basis for disturbing that assessment.

There is an important distinction here for practitioners handling acquired brain injury: inconsistency does not necessarily equate to dishonesty.

That does not mean that inconsistent evidence should be disregarded, or that brain injury automatically explains every discrepancy. It does mean that reliability and credibility are not always the same question. Memory, sequencing, executive functioning and the ability to reconstruct an event can all become relevant to understanding why accounts differ. For solicitors, that makes the wider evidential picture particularly important: contemporaneous records, witness evidence, physical evidence and specialist opinion may together provide a more reliable reconstruction than the claimant’s recollection alone.

When expert evidence fills the evidential gap

The mechanics of the fall provide another interesting feature of ZZZ. The balustrade was approximately 900mm high. The claimant was 6ft 4in tall. Following the accident, work was undertaken to increase balustrade heights across the Army estate, at an overall cost of approximately £400,000. The Court noted that the cost of altering the individual balustrade would have been modest when set against the potential consequences of a fall. The claimant’s expert considered both the building and the mechanics of the fall. The MoD had instructed a separate falls specialist but did not serve that report, meaning the claimant’s expert evidence on fall mechanics was not contradicted by expert evidence in the same discipline. That evidence was that a man of the claimant’s height falling against a 900mm balustrade had a relatively high possibility of toppling over it, whereas a balustrade at approximately 1100mm would have materially reduced the risk. The trial judge accepted the evidence and the Court of Appeal upheld the finding on causation. Bailii

It is a useful illustration of what expert evidence can contribute when witness recollection cannot resolve the factual question. The expert did not decide what happened. That remained a matter for the Court. The expertise helped the Court understand whether the physical circumstances were consistent with the findings it was being asked to make. That distinction extends well beyond engineering or falls evidence.

What happens when the claim moves beyond liability?

ZZZ does not determine quantum. It does not tell us what this particular claimant’s future care, rehabilitation, equipment, accommodation or vocational needs will be. It is important not to read findings into the judgment that simply are not there, but the facts do highlight an issue that can become particularly significant in military injury cases: the difference between achieving everyday independence and recovering the function required for military life.

An individual may make an objectively good rehabilitation recovery. They may become independent in personal care, walk without assistance, prepare meals, drive and participate within the community. Those achievements matter. Yet none necessarily tells us whether the person could again satisfy the demands of the occupation they performed before injury. For military personnel, that gap can be substantial.

Independence is relative to the starting point

Activities of daily living give us important information about function, but they do not describe the whole person. Military occupations can require strength, endurance, balance, mobility across difficult terrain, sustained concentration, rapid decision-making, the handling of equipment and reliable performance in physically and cognitively demanding environments.

• Someone who can walk independently may still be unable to walk the distances, at the speed or under the load their previous role required.
• Someone capable of concentrating during a clinical assessment may struggle to sustain that performance throughout a demanding working day.
• And somebody who manages successfully at home may still experience difficulties when the environment becomes unpredictable, pressured or unfamiliar.

This is where the pre-injury baseline becomes particularly important. The meaningful comparison is not always between disability and basic independence. It may be between current capacity and the person’s former occupational, social and recreational life.

Brain injury can make the difference less visible

That distinction can become still more important following brain injury. Physical recovery is comparatively easy to observe. Some cognitive consequences are not. Fatigue, reduced cognitive endurance, memory impairment, difficulties with planning and organisation, reduced initiation and changes in emotional regulation may have limited effect upon a short assessment while having considerable consequences across a full working day or week. For an Occupational Therapy expert, the question therefore extends beyond whether an activity can be completed once.

Can it be performed reliably, repeatedly and sustainably within the circumstances in which the person actually needs to perform it?

That is a useful distinction for other expert disciplines too. A clinical finding describes impairment. Functional evidence can help establish what that impairment means when translated into ordinary life. Clinical recovery is not necessarily occupational recovery. This is perhaps the most useful broader point prompted by ZZZ.

A claimant can have made substantial clinical progress while still having experienced profound occupational loss. That distinction influences more than employment. Serious military injury can affect sport, recreation, identity, social relationships, independence, transport and the individual’s anticipated future trajectory. Understanding that impact requires some knowledge of the life that existed before the accident.

For solicitors preparing the evidential picture, apparently ordinary details can consequently become important: the claimant’s actual military role and its physical demands, training and fitness expectations, activities undertaken outside work, sporting interests, driving and transport, accommodation, family responsibilities and the level of independence previously enjoyed. Those details give clinical experts something against which current function can meaningfully be assessed.

The move from specialist rehabilitation into ordinary life

There is another aspect of serious military injury worth considering. A person may initially receive intensive, highly structured specialist rehabilitation. Eventually, rehabilitation has to function outside that environment.

• Equipment has to work in an actual home.
• Strategies have to survive an ordinary week.
• Fatigue has to be managed alongside appointments, family life and employment.
• Mobility needs to translate into community participation.
• If return to service is no longer possible, attention may move towards vocational redirection rather than simply physical recovery.
• It is here that a functional assessment can add something different to diagnosis alone.

An Occupational Therapist may be considering the interaction between the injury and care, equipment, accommodation, transport, work, leisure, community access and the sustainability of independence across time. The different components rarely operate entirely separately. Pain may affect sleep. Poor sleep can affect cognition and participation. Mobility difficulties may restrict work and recreation. Accommodation can either enable independence or create unnecessary reliance on care. Understanding those interactions can be as important as identifying the individual impairment.

A useful point for expert evidence more broadly

ZZZ also offers food for thought beyond Occupational Therapy. Expert evidence is strongest when the question being answered is clearly understood.

• At the liability stage in ZZZ, the falls evidence assisted with a tightly defined question: whether the height of the balustrade materially affected the likelihood of the claimant going over it.
• At the quantum stage of a serious injury claim, different disciplines will answer different questions.
• The neurologist or neuropsychologist may explain the nature and consequences of the brain injury.
• The employment expert may consider labour-market consequences.
• The OT may translate impairment into function, environment, equipment, care and participation.
• The care expert may consider the reasonable structure and cost of support.

The value lies not in asking each discipline to address everything, but in allowing the evidence to build a coherent picture without unnecessary overlap. For a claimant with complex military injuries, that distinction can become particularly important because several apparently separate losses may stem from the same functional limitation.

Where the Harrison perspective comes from

Our interest in ZZZ is informed by Harrison Occupational Therapist and Expert Witness Michaela McCann’s clinical background.

Michaela spent several years as a Senior Occupational Therapist at the Defence Medical Rehabilitation Centre, working directly with military personnel following spinal cord injury, multiple limb loss, peripheral nerve injury and complex orthopaedic trauma, frequently alongside secondary brain injury, PTSD and other psychological presentations. Her wider practice spans specialist spinal, neurological and community rehabilitation, and her Expert Witness work includes functional capacity, rehabilitation, care, equipment, accommodation, transport, vocational rehabilitation and participation. That experience is relevant not because ZZZ determines any of those quantum issues,it does not, but because it illustrates the particular baseline from which some military injury claims begin.

The individual may have been young, highly active and working within an environment where physical and cognitive capacity were fundamental to both employment and everyday life. A later description of that claimant as “independent” can therefore be entirely accurate while still saying remarkably little about the scale of what has been lost.

Reading ZZZ beyond the liability judgment

The immediate legal significance of ZZZ v Ministry of Defence lies in the Court of Appeal’s treatment of occupiers’ liability, factual findings, causation and contributory negligence. The Court dismissed all six grounds of the MoD’s appeal and left the finding of full liability intact. For those dealing with the consequences of serious injury, however, the circumstances also provide a useful reminder about the next stage of the evidential process.

Recovery needs a benchmark. In military claims, basic functional independence may be an important milestone without being an adequate measure of the loss. The more revealing question is how current function compares with the actual physical, cognitive, vocational and personal demands of the life that existed before injury.

• For solicitors, that can influence the evidence gathered and the experts ultimately instructed.
• For Occupational Therapists and other experts, it is a reminder that an assessment becomes most useful when clinical findings are connected to what the person actually needs to be able to do.
• And for everyone involved in the claim, it keeps the focus where it belongs: not simply on the diagnosis or whether an activity can technically be achieved, but on the consequences of injury across the person’s real life.

Case: ZZZ v The Ministry of Defence [2026] EWCA Civ 875, Court of Appeal (Civil Division), 8 July 2026

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