[2024] UKUT 170 (AAC)

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.