NC (dec'd) by JC v Secretary of State for Defence

On an appeal confined to error of law, an appellate tribunal must respect a specialist tribunal’s primary role as fact-finder. It should not reweigh evidence or interfere with evaluative findings merely because it might have reached a different conclusion. A specialist tribunal may use its expertise and experience, provided it decides the case on the evidence, gives parties an opportunity to comment on material matters, and gives adequate reasons.

Under the Armed Forces Compensation Scheme, causation requires identification and categorisation of relevant process causes before applying the predominant-cause test. The assessment is multi-factorial. It cannot be resolved by simply counting periods of exposure. The appeal was dismissed because the First-tier Tribunal had not erred in law.

The late Colonel C claimed compensation under the Armed Forces Compensation Scheme for malignant melanoma, alleging that it was predominantly caused by ultraviolet exposure during service after 6 April 2005. Veterans UK rejected the claim, and the First-tier Tribunal dismissed his appeal.

The First-tier Tribunal found that pre-2005 exposure formed part of the basic injurious process, that post-2005 exposure was generally shorter and less intense, and that the medical evidence did not establish the necessary causation or predominance. Permission to appeal was granted on alleged errors concerning fact-finding and the application of the causation test. The central questions were whether the First-tier Tribunal had improperly relied on its own knowledge and whether it had misapplied the statutory test and JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC).

1. Appeal dismissed. The First-tier Tribunal’s decision was not made in error of law.
2. On appellate review, the Upper Tribunal must recognise the First-tier Tribunal as the primary fact-finder, give appropriate weight to its specialist expertise, and avoid redeciding factual or evaluative issues. Intervention is justified only for an identifiable error, a conclusion unsupported by the evidence, or a finding outside the range of reasonable disagreement. The adequacy of reasons is assessed from the decision as a whole and with restraint.
3. A specialist tribunal may use its own knowledge and experience to test evidence. It must nevertheless decide on the evidence before it, avoid relying on undisclosed material, give parties a fair opportunity to comment on material matters, and explain its conclusions. The First-tier Tribunal’s findings about clothing, shelter and sun exposure in Afghanistan were substantially consistent with the Appellant’s own evidence.
4. Article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 requires service to be the predominant cause where an injury is partly caused by service. The four-stage approach in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC) requires the decision-maker to identify potential process causes, exclude causes that are too remote or uncertain, classify the relevant causes as service or non-service causes, and then apply the predominancy test.
5. The further guidance in JM permits consideration of whether, without the service cause, the injury would have occurred at all or would have been less than half as serious. That guidance is not prescriptive and may require modification in an appropriate case. Causation is a complex, multi-factorial assessment involving medical evidence, latency, age, intensity and timing; an arithmetical comparison of months of exposure is insufficient.
6. The First-tier Tribunal did not disregard the no-fault nature of the Scheme. Its discussion of responsibility for sunscreen was a factual issue and was not determinative. The claim failed because the evidence did not establish that post-2005 service exposure caused the melanoma or was its predominant cause.

• First-tier Tribunal (WPAFCC): dismissed the substantive appeal in a decision issued on 4 January 2021. The First-tier Tribunal later issued a statement of reasons on 4 March 2021.
• Upper Tribunal: permission was granted on Grounds 1 and 3 but refused on the recusal ground. The appeal was dismissed on 6 June 2024.