DN v The Secretary of State for Defence
[2024] UKUT 238 (AAC)
NC (dec'd) by JC v Secretary of State for Defence
6 June 2024
[2024] UKUT 170 (AAC)
Upper Tribunal
A soldier's claim for compensation due to melanoma was rejected. The judges carefully reviewed the evidence of sun exposure during his service and found that he hadn't proven his service was the main reason he got sick, even though sun exposure during his service may have been a factor. The judges also found that he had not met the required standard of proof.
Key Facts
- •Colonel C (deceased) appealed a First-tier Tribunal (FTT) decision dismissing his Armed Forces Compensation Scheme (AFCS) claim for melanoma.
- •The claim was for compensation for melanoma allegedly caused predominantly by service after April 6, 2005.
- •Colonel C had served in the armed forces in multiple locations with varying degrees of sun exposure before and after April 6, 2005.
- •Medical experts could not definitively link the melanoma to service after April 6, 2005.
- •The FTT considered the evidence of sun exposure, Colonel C's age, the latency period of melanoma, and the fact that UVR exposure is not the sole causative factor.
- •The Upper Tribunal considered two grounds of appeal: the FTT's use of its own knowledge and the FTT's application of the causation test from *JM v Secretary of State for Defence*.
Legal Principles
AFCS is a no-fault scheme; the burden of proof is on the claimant to show, on the balance of probabilities, that service is the predominant cause (more than 50%) of the injury.
Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517)
In AFCS causation cases, a four-stage process should be followed: (i) identify potential causes; (ii) discount remote or uncertain causes; (iii) categorise causes as service or non-service; (iv) if there are non-service causes, apply the predominancy test.
*JM v Secretary of State for Defence (AFCS)* [2015] UKUT 332 (AAC)
Appellate courts should show deference to specialist tribunals' fact-finding, only intervening where findings are plainly wrong, based on a fundamental misunderstanding of evidence, or outside the bounds of reasonable disagreement.
*Clin v Walter Lilly & Co Ltd* [2021] EWCA Civ 136 and *Secretary of State for the Home Department v AH (Sudan)* [2007] UKHL 49
A specialist tribunal may use its own knowledge and experience to test evidence, but it must base its decision on evidence before it, not undisclosed knowledge, and provide adequate reasons.
*Arrowdell Ltd v Coniston Court (North) Hove Ltd* [2007] RVR 39, *Butterfield and Creasy v Secretary of State for Defence* [2002] EWHC 2247 (Admin), and *Busmer v Secretary of State for Defence* [2004] EWHC 29 (Admin)
Outcomes
The Upper Tribunal dismissed the appeal.
The FTT did not err in law. Its findings were supported by the evidence, and its application of the *JM* test was correct. The FTT considered the evidence as a whole, including the absence of a clear latency period and the multifactorial nature of melanoma causation. The appellant failed to meet the burden of proof to show service was the predominant cause of the melanoma.