Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 395 (AAC)

Fecha: 05-Sep-2024

The First-tier Tribunal’s decision

The First-tier Tribunal’s decision

20.

The Tribunal allowed the claimant’s appeal on the basis that his left knee injury was predominantly caused by service within the meaning of Article 8 of the AFCS (the “FtT Decision”). The FtT Decision is set out in the decision notice signed on 10 January (the “FtT Decision Notice”), as supplemented by the full written reasons issued on 22 February 2023 (“Full Reasons”).

21.

The Tribunal’s route to the FtT Decision was somewhat involved. It made the following findings:

the injury to the claimant’s right knee in 2011 (some years before the charity Fixture) was a “service cause”, but while the right knee injury was a “substantial” cause of the left ACL injury it was not the “predominant” cause;

the medical advice given to the claimant on or around 24 July 2014 was “given by service medical officers” and was a service cause (see §10.2 of the FtT Decision Notice);

the medical advice given to the claimant on or around 24 July 2014 led the claimant to believe that he was “given the green light to play the game”, and the claimant would not have returned to playing rugby in the Fixture had he been advised not to play by the medical team (see §11.2 of the FtT Decision Notice);

the claimant’s decision to play in the Fixture was a non-service cause (see §10.2 of the FtT Decision Notice);

the playing of the Fixture (during which the left ACL injury was sustained) was a non-service cause (see §10.3 of the FtT Decision Notice); and

the claimant sustained the left ACL injury “when side stepping in the course of the game” and was “not caused by any collision, hard tackle or other trauma” (see §11.2 of the FtT Decision Notice).

22.

The Tribunal said it “could not usefully distinguish the causal weight of the decision to play the charity match from that of actually playing the game, since they amount to the same thing” and so it proceeded to make a “composite assessment” of both. It decided that “deciding to play and playing the game” was a “major factor” contributing to the left knee ACL injury on 27 July 2014 about half of which was due to the medical advice ([Service Cause]) and half was due to [the claimant] wanting to play ([Non-Service Cause])” (see §11.2 of the FtT Decision Notice).

23.

Ultimately, the Tribunal decided that “it was more likely than not that the contribution to causation of the previous right knee injury and the medical advice, taken together, was more than 50% of the cause of the left knee injury”, so service causes preponderated and the claimant’s appeal should be allowed (see §11.3 of the FtT Decision Notice).

24.

In its Full Reasons the Tribunal referred to Article 11 of the AFCS and said:

“… we thought it likely the [Secretary of State for Defence] was right not to rely on it. It was within the knowledge and experience of the Tribunal that rugby had been approved by the Defence Council as being a sport which enhances the fitness, initiative and endurance of members of the forces. Further, as explained above, the Service physiotherapists had sanctioned [the claimant]’s return to rugby training and the service medical officer had been consulted on 24 July 2014 about the charitable rugby match on 27 July 2014. Accordingly, the Tribunal thought it likely the exception under Article 11(6) would have applied to any exclusion that might have been advanced by the [Secretary of State for Defence] under Article 11(5).”