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.