[2024] UKUT 170 (AAC)

13 The evidence relating to the Appellant’s sun exposure

Pre 2005

Whilst a child, Mr C’s parents were posted by the RAF to Melbourne, Australia for 2 years. During that time Mr C was at boarding school in England and travelled to Australia for school holidays. He has very clear memories of the recognised need to use copious sun protection from the dangerous Australian sun.

In 1988 Mr C joined the regular Army for Officer training, and on commissioning, served in the Life Guards. In 1988, as an officer cadet aged 20, he deployed to BATUS in Canada on a 10 week training exercise. His statement (P 58 of the Response) records that the temperatures were over 30 deg, he was outside a lot of the time and got ‘over exposed to the sun and did have reddening of my skin, arms, legs and face’. In his oral evidence, he diluted this statement to some extent, explaining that he spent a lot of the time inside armoured vehicles so sun exposure was episodic. Nevertheless there is a clear history of sunburn and as a very junior officer, he would have had little control over his role.

Again, after commissioning and as a Lt. he returned to BATUS in the summer of 1991 as part of a similar exercise and in similar conditions. He again recalls sunburn.

In 1994 Mr C was deployed to Bosnia for 7 months, again in high temperatures (although reducing from November onwards), in sunny weather. Although operating extensively outdoors, he told us that again he spent a lot of the time in armoured vehicles.

In 1996 Mr C deployed to South Carolina USA on exercise with the US military for 10 weeks. He states, at Para 15 of his statement that he spent on average 12-14 hours a day in the sun, on the beach and the sea, and suffered sunburn. In his oral evidence he explained that they were living tactically outside most of the time and recalled being sunburned.

In October 1997 Mr C left the regular army, rejoining in November 2003. In the intervening period he pursued a career in publishing. He took holidays in the UK, particularly hill walking and cycling, and joined the Army Reserve in 2002. He confirmed that even when outside in the UK, he used sunscreen and carried spare bottles with him.

On re-joining the regular Army in August 2004 as a captain aged 36, he deployed to Afghanistan from October 2004 to April 2005 in a role supporting civil aid work. Although much of the time was over the Afghan winter, he was also exposed to the sun and suffered sunburn: in his statement, he explains ‘Again during this tour a significant number of soldiers suffered from sunburn, me included’.

Post April 2005

In February 2006 he took part in Exercise GRAND PRIX in one of the usual training areas in Kenya, for 10 weeks. This consists mainly of open grassland peppered with small trees, and Mr C explained that they spent a lot of the time out on the ground in a light infantry role, but lay down in the shade during the midday sun.

From October 2007 to January 2008 Mr C was posted to Oman as the Army Liaison Officer with the RAF. His primary role was flying with the aircraft to co-ordinate communication with troops on the ground which took up 2-3 days a week. The remainder of the time he was generally helping out around the base as required. He recalls suffering from sunburn from working outside and we accept that in this non-operational theatre he would have had the flexibility to wear service issued shorts and T-shirts or long sleeved shirts rolled up to the elbow. However, there would have been no imperative to work outside during the heat of the day, and there was ample available shelter from the sun.

From March to November 2009 Mr C deployed to Afghanistan as a Major working in the Planning Cell at Task Force Helmand (TFH) in Lashkar Gah. This role in planning future operations requires considerable co-ordination with other co-located disciplines including Intelligence, Personnel, current operations, Logistics communications, etc to pull the plan together. His role was based in the Main Operating Base (MOB), a large community with a mix of former Afghan buildings, rigid tents and shipping containers housing TFH personnel, a large canteen, small gym, chapel and shop, together with a helicopter landing site, all surrounded by a perimeter wall.

We accept Mr C’s evidence that as part of his role, he would travel out to the Forward Operating Bases (a smaller and more rudimentary replica of the MOB) in order to liaise with the troops on regular patrol, to better understand the situation on the ground. We also accept that on occasions, he would go out on patrol with the troops, sometimes from Patrol Bases, an even more rudimentary replica of a FOB. However, what we do not accept is, as his Counsel encouraged us to find, that he was out in the heat and sun for 10-12 hours a day during his entire tour and that during this time he was wearing mainly shorts and T-shirts.

This was an exceptionally kinetic time for UK troops in Helmand with considerable casualties and deaths. It attracted significant media attention with many reports in the press and documentaries from the front line from reporters embedded with units. From our collective knowledge from such media exposure, descriptions from other appellants deployed to Afghanistan, and relevant personal experience we know that the threat was so great that troops on patrol did so in full combat dress, with body armour, and with legs and arms fully covered. We also accept that in periods of ‘downtime’ soldiers would wear their issued shorts and t-shirts, but had the flexibility to shelter in the shade and only exercise in the cooler/less sunny times of the day which would also protect from the dangers of heat exhaustion.

Mr C returned to Afghanistan from May to August 2010 in a role with Joint Force Logistics with a similar pattern of work as in the previous year. As a senior Major, he would not ordinarily be expected to routinely patrol on the ground.

His final tour of Afghanistan was from October 2017 to May 2018 based in Kabul and in the rank of Lieutenant Colonel. This winter deployment was primarily office based indoors.

What we don’t know

What degree of sunburn is required (e.g. from slightly pink to severe peeling/blisters) to be implicated

How protective is a ‘gentle tan’ as in careful exposure during a Mediterranean beach holiday.

Is only one exposure enough to cause a danger

What is the timeline between exposure and onset; the latency period. BCC’s are said to emerge in older age (see Para 4.7 of the UVR Synopsis), but CMM describe the ‘working age population’. We note Para 4.11 above of the UVR Synopsis which states that ‘childhood sunburns …have been linked to melanoma in later life’ implying a long latency period.

What were the degrees of Mr C’s sunburn, what areas of his body, and how often he ‘re-burned’ during his tours.

What we do know

Exposure as a child/young adult is a potent risk factor

Intermittent or short sharp episodes of burning is a significant risk factor.

Mr C’s age profile is consistent with a ‘peak incidence in the fifth decade’.

18 Our findings

Mr C suffered multiple episodes of sun exposure of short duration and unknown intensity from early adulthood until around 2017. All of this was in a military, not civilian setting.

When out on patrol in Afghanistan, Mr C would be substantially covered up and protected against the sun. Sun exposure during his other post 2005 tours would have been of shorter duration and intensity.

It was his responsibility to equip with and use sunscreen when necessary.

Mr C has had possibly 3 moles, the first being discovered in 2013 on his inner thigh. A further mole appears on his left back the following year and which he describes as having had ‘for years’. He also had a mole on his right calf.

We accept that CMM may arise on areas of skin not previously exposed to the sun.

None of his treating consultants have sought to differentiate a causal link between pre and post 2005 sun exposure. They have all used cautious language which does not meet the burden and standard of proof.

Nor do the Synopses or the IMEG report try to define a latency period which would identify which episodes of sunburn relate to the onset of any skin cancers other than vague ‘in older age’ for BCC’s and ‘in the working age population’ in the case of CMM. This is unsurprising given the current level of medical thinking.

Applying the Law

We have largely followed the guidelines helpfully set out in JM vs SoS and quoted at Para 9 above but with the fundamental distinction that this is not only a question of whether service was the predominant cause, but whether service after 6^th April 2005 was the predominant cause.

We have first considered whether, without a ‘service cause’ the injury would have occurred at all. We conclude that sun exposure post April 2005 might have led to some form of melanoma, but not for many more years. The first mole was noticed by Mr C in 2013, only 8 years post the start of AFCS service, and there is no evidence at all that such a short latency period (even up to malignancy in 2018) would be causative. This is presumably why the IMEG report concludes at Para 14 that in general, none of these circumstances is likely to be met due to service after 6 April 2005 and so most cases of NMSC and CMM claimed under AFCS will be liable to rejection. However, each case will be considered on its facts. (NMSC stands for non-melanoma skin cancers). Clearly as time goes on, this conclusion will carry less weight as the period between exposure and onset becomes more stretched.

The second question is (applying the test in JM above) whether without the ‘service cause’ the injury would have been less than half as serious. In our view, the basic injurious process started pre 2005. It would be wholly speculative, unsupported by the medical evidence and certainly not meet the standard of proof or the predominancy test for us to conclude that the onset of Mr C’s CMM would have been less than half as serious if he had not had post 2005 sun exposure. In the specific case of CMM it is difficult to envisage what ‘half as serious’ might look like, and the Medical Opinions to which we have referred above do not even discuss such a concept. JM was a case about mental health conditions where it is somewhat easier to tease out the effects of service and non-service factors.

We have also noted the IMEG conclusion that each case should be considered on its facts. Had there been no pre 2005 sun exposure at all (not only in service), and Mr C were very much younger then there might be an argument for a service cause but bearing in mind the medical evidence that UVR is not the only factor. On the evidence in this appeal, this is not such a special case.