[2025] UKUT 289 (AAC)

the panel did not accept that the principles of liability in other areas of law (such as negligence and employment law) were of assistance in determining whether the test set by the AFCS was satisfied. That did not mean that changing views on what would be a fair and just result, having regard to the underlying purposes of the AFCS, were not relevant in difficult or borderline cases, but analogies with employment (or other) law were not necessary to introduce that approach to determining what, having regard to those purposes, the cause or predominant cause of an injury was.

The panel in JM was simply not considering the case of a claimant who had been discharged from the armed forces, and thus from service, months before sustaining the injury which was the cause of his claim.

In NJ a member of the forces was deployed as head ski coach at the Army Medical Services Ski Championships, representing the Royal Dental Corps. While she was coaching from the side of the piste, a civilian skier on a parallel piste lost control and collided with her, causing injuries. The issue was whether benefit was payable to her under the AFCS, which turned on the issue of whether there was a service cause for her injuries. Upper Tribunal Judge Poole QC decided that the Tribunal below erred in law in (i) failing to give adequate reasons, due to inconsistency between the decision notice and the statement of reasons and (ii) applying the law to the facts found by it. The decision was remade to the effect that the injuries were caused by service. Again, this was not the case of a claimant who had been discharged from the armed forces, and thus from service, months before sustaining the injury which was the cause of his claim. On the contrary, when she was injured the appellant was on duty and acting in the course of her service as a coach at the Army Medical Services Ski Championships.

Similarly, I am satisfied that there is nothing in the decisions of Upper Tribunal Judge Mesher in EW or SV which militates against the conclusion which I have reached. In EW the claimant was serving as a member of the forces as a warrant officer in the Army who was injured whilst walking to his regular place of work at the Citadelle in Lille from his normal residence in the city. He was knocked down on a pedestrian crossing by a hit and run driver who was never traced. Judge Mesher held at [24-29] that there was a fundamental distinction between travel to and from work and travel as part of work and in the circumstances of the case before him the claimant could not be regarded as doing his job as a member of the armed forces whilst walking from his apartment in Lille to the Citadelle, as he was doing something which was necessary for him to carry out that job, but he was not yet doing it. The injury, being a manifestation of a risk run by the general public using the streets of Lille, could not properly be regarded as caused by the claimant’s service.

In SV the claimant entered service with the Royal Marines and was still in service at the time of the hearing. The incident giving rise to the AFCS claim occurred when he was swimming off a beach in Gran Canaria. After wading into the water, he did a shallow dive and made direct impact with a sandbank just below the surface, of which he had been unaware, suffering very serious life-changing injuries. There was broad agreement as to the ways in which the Tribunal had erred in law and the matter was remitted for rehearing. (A subsequent appeal to the Court of Appeal was allowed because the claimant’s civil claim for compensation failed and he no longer contended in the light of that judgment that his injuries were caused wholly or partly by his service in the Royal Marines, with the result that the outcome of the further appeal was now only of academic interest to him.)

In both cases of the cases before Judge Mesher the claimant was still serving as a member of the forces when the injury occurred, in contrast to this case where the claimant had ceased to be a member of the forces some months before he sustained the injury. It is in that context that one must read the remarks of Judge Mesher in EW at [16] and SV at [12]. He was not considering the case of a serviceman who was discharged from service in May and was not injured until November.

When in EW at [16] Judge Mesher said that

“In my view the key lies in the essential test of entitlement being in terms of causation by service, with service being the predominant cause. The test is not whether the claimant was to be regarded as in service (whatever that might mean) at the time of the incident causing the injury or as on or off duty,”

he was dealing with the Secretary of State’s submissions about Articles 7 (now 8) and 10 of AFCS, not Article 2, and what he said in full was that

“The interaction of articles 7 and 10 is far from easy to work out. In my view the key lies in the essential test of entitlement being in terms of causation by service, with service being the predominant cause. The test is not whether the claimant was to be regarded as in service (whatever that might mean) at the time of the incident causing the injury or as on or off duty. Then that must be related to the particular drafting technique adopted in article 10.”

He then went on to add at [17]

“The starting point is the definition of service in article 2(1),”

thus recognising the essential starting point for eligibility under the AFCS, namely that under article 2 “service” means service as a member of the forces.

Similarly, when he said in SV at [12]

“the fundamental test under the AFCS Order 2005 was not whether the claimant was in service or was on duty at the time of the incident in question but whether the injury was caused and predominantly caused by service,”

he was saying no more than he had said in the previous case and the actual context of his remarks was that

“The President of the War Pensions and Armed Forces Compensation Chamber, Judge Stubbs, gave the claimant permission to appeal to the Upper Tribunal on the ground that it was arguable that the tribunal of 15 June 2012 had erred in law in approaching the case on the basis that the sole issue was whether the claimant was on or off duty at the time of the accident. He also drew attention to my decision in EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC), now reported as [2012] AACR 3. There I held that the fundamental test under the AFCS Order 2005 was not whether a claimant was in service or was on duty at the time of the incident in question, but whether the injury was caused and predominantly caused by service. I also held that article 10 provided only for inclusions within the meaning of service, so that if the circumstances of a case concerned with travel or with sports or adventurous training courses or expeditions fell outside the terms of article 10, the claimant could nevertheless still succeed under the general test of causation in article 7.”

I am therefore satisfied that the Tribunal in this case was wrong to conclude as it did at the end of paragraph 34 of its decision that

“That [sc. The decisions of Judge Mesher] envisages the possibility that a claimant might not be in service at the time of the injury which is precisely the situation here.”

Properly understood, the decisions in EW and SV were not dealing with the position of someone who had ceased to be a member of the forces before he had sustained the injury in question and they are not authority for any such proposition as advanced by the Respondent or as accepted by the Tribunal.