[2024] UKUT 170 (AAC)

The steps to be taken in the application of the AFCS test

The analysis we have set out founds the conclusion that the correct approach to the issues of cause and predominant cause under the AFCS is:

First identify the potential process cause or causes (i.e. the events or processes operating on the body or mind that have caused the injury);

Secondly, discount potential process causes that are too remote or uncertain to be regarded as a relevant process cause;

Thirdly, categorise the relevant process cause or causes by deciding whether the circumstances in which each process cause operated were service or non-service causes. It is at this stage that a consideration of those circumstances comes into play and the old cases on the identification of a service cause applying the old attributability test provide guidance.

Fourthly, if all of the relevant process causes are not categorised as service causes, apply the predominancy test.

But in our view the width of the language permits a more sophisticated approach to deciding whether, as the Secretary of State put it, conceptually the service cause contributes more than one half of the causative stimulus for the injury claimed, and thus whether service is the predominant cause in a case where (after the categorisation process) the only competing causes are service and constitutional or other pre-existing weaknesses. In such a case the decision-maker generally should firstly consider whether, without the “service cause”, the injury would:

If the answer to the first question is that the injury would not have occurred at all in the absence of the service cause, we consider that this can and generally should found a conclusion that the service cause is the predominant cause of the relevant injury. It seems likely that a claimant in Mr Marshall’s position would succeed on this basis.

If however that is not the answer to the first question, the second question will generally found the answer to whether the service cause is the predominant cause of the relevant injury. Thus the second question is likely to be determinative in the present case if it is found that the claimant’s depression was caused both by service and by pre-existing domestic factors.

We consider that this approach fits with and promotes the underlying intention of the AFCS to pay compensation for an injury that has more than one process cause that under the categorisation exercise we have described fall to be taken into account as respectively service and non-service causes.

We repeat that this is not intended to be prescriptive guidance and that it may need to be modified or abandoned in some cases. For example, we acknowledge that timing issues could cause complications that warrant a departure from it.