[2025] UKUT 033 (AAC)

Article 8 of the AFCS Order provides:

Injury caused by service

8.—(1) Subject to articles 11 and 12, benefit is payable to or in respect of a member or former member by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005.

(2)

Where injury is partly caused by service, benefit is only payable if service is the predominant cause of the injury.

Article 2(1) provides that “‘predominant’ means more than 50%”.

Article 60 makes provision in relation to burden of proof as follows:-

Burden of proof

1.-(1) Subject to the provisions of this article, the burden of proving any issue is on the claimant.

(2)

Where paragraph (3) applies there is a presumption in favour of the claimant unless the Secretary of State proves to the contrary.

(3)

This paragraph applies where-

(a)

a contemporary official record relating to a material fact which is relevant to deciding a condition for payment of benefit under Part 2 is missing; and

(b)

there is other reliable evidence to determine the material fact.

(4)

For the purposes of paragraph (3)-

(a)

“a contemporary official record” means a record, including an electronic record, held by the Secretary of State for Defence or the Defence Council;

(b)

“a material fact” need not be a decisive fact for the purpose of determining a claim under Part 2;

(c)

a record is missing where it has been-

(i)

lost and cannot be found after a diligent search; or

(ii)

destroyed.

By Article 61, the standard of proof is the balance of probabilities.