NC (dec'd) by JC v Secretary of State for Defence

Ground 1 amounts to a composite assertion that the FTT erred in law through finding facts without the evidence enabling it to do so; through finding facts on the basis of extraneous information; and through wrongly and contrary to the principles of natural justice relying on its own knowledge for certain of its findings.

Judge Hemingway had this to say in respect of Ground 1 when granting permission to appeal:

Given that clear judicial steer, it was understandable that at the oral hearing of the appeal Mr Rawlinson primarily focussed his forensic fire on what he submitted was the FTT’s erroneous approach to making findings on the basis of its own knowledge and the use of its “collective knowledge” as applied to the fact-finding process. Mr Rawlinson highlighted several passages in the transcript of the FTT hearing in an attempt to make good this aspect of the first ground of appeal. In the next section I discuss the most significant of these passages.

Mr Rawlinson’s core submission, in effect, was that the FTT had put its own experience ahead of the Appellant’s evidence in circumstances where the Appellant’s evidence about conditions in Afghanistan properly outweighed the panel’s experience and knowledge, some of which was based on what had been seen on TV. This approach involved an error of law, he argued, as like was not being fairly compared with like – the evidential basis for the experience of the FTT panel, and in particular of the Judge, who had also served in Afghanistan, was not the same as the evidential basis for the Appellant’s experience. In this respect particular objection was taken to the following exchange, as recorded in the FTT hearing transcript (at p.49), which dealt with the type of clothing worn by service personnel in Afghanistan and their ability to seek shelter from the intense sunlight:

In the course of his oral submissions Mr Rawlinson acknowledged that it was perfectly proper for the Judge to set out her own experience when posted to Afghanistan and to invite the Appellant’s comments. However, he submitted that the FTT had both failed to analyse the partly overlapping but still substantially differing experiences of the Judge and the Appellant on their respective tours of duty and had also failed to give the Appellant a proper opportunity to comment on other matters on which the panel had relied in making its findings (e.g. social media and TV coverage). This submission is unpersuasive for two main reasons, both of which were identified by Mr Hays.

The first reason, and the starting point, is that a specialist tribunal such as the FTT in the WPAFCC is entitled to take into account its own experience in reaching findings of fact. There are, however, safeguards, as recognised by the Lands Tribunal in Arrowdell Ltd v Coniston Court (North) Hove Ltd [2007] RVR 39 at [23]:

Those requirements were set out in the context of the leasehold valuation tribunal, but they apply across the board to specialist tribunals and indeed are echoed in the war pensions case law. Thus, it follows that what the tribunal cannot do is to rely on its own specialist knowledge without putting the point to the affected party (Butterfield and Creasy v Secretary of State for Defence [2002] EWHC 2247 (Admin)). Likewise, the FTT cannot undertake its own research about an issue that is material to the outcome of the appeal without giving the parties the opportunity to comment (see Busmer v Secretary of State for Defence [2004] EWHC 29 (Admin)). The FTT in the present case was plainly alive to the importance of this principle, as illustrated by the following comment made by the Judge in the course of the FTT hearing (transcript at p.50):

The second reason is that it is important to distinguish between (a) what took place at the FTT hearing (in terms of the panel testing the evidence) and (b) what subsequently appeared in the FTT’s reasoned decision (in terms of the panel’s fact-finding). As Mr Hays submitted, it is only the latter that ultimately matters, whereas Mr Rawlinson’s submissions were principally directed towards the former. It can only be said that the FTT erred in law if its reasoned decision demonstrates that it improperly relied, in making its findings of fact, on its own undisclosed specialist experience and knowledge rather than on the evidence before it. The reality, however, was that the FTT broadly accepted the Appellant’s own evidence as to both service clothing and the ability to seek shelter in Afghanistan:

The fact of the matter is that these findings by the FTT broadly reflected the Appellant’s own evidence. For example, the Appellant agreed with the service member’s observation that “you wouldn’t be wearing [shorts] when you went out on the recces with the patrols”. Likewise, the Appellant himself acknowledged that “I would emphasise nobody would be foolish enough to go on patrol wearing shorts” (hearing transcript p.39). Thus, the FTT’s finding that “From our collective knowledge from such media exposure, descriptions from other appellants deployed to Afghanistan, and relevant personal experience we know that the threat was so great that troops on patrol did so in full combat dress” was in accord with the Appellant’s own evidence, so resort to the FTT’s wider knowledge cannot properly be characterised as unfair in any material way. Furthermore, the FTT’s acceptance that shorts were sometimes worn off-duty (contrary to the Judge’s comment that she had herself never seen anyone in shorts during her tour) fundamentally undermines the argument that the Judge (and by extension the panel) rejected the Appellant’s evidence on the basis of her own experience.

As originally drafted, Ground 1 alleged that the FTT fell into error by utilising impermissible methods to find facts. This proposition was supported by three discrete sub-grounds, namely that the FTT made findings (i) on the basis of no evidence (‘the nil evidence issue’), (ii) on the basis of material that was not part of the case (‘the immaterial matters issue’), and (iii) on the basis of the Judge’s misunderstanding of her role (‘the controversial recollections issue’).

As to the first of these, the exemplar for the nil evidence issue appears to be the following passage at paragraph 14.3 of the FTT’s decision:

Objection was taken to this passage on the basis that “there is no evidence to support any of the above” (grounds of appeal at §34). This submission goes nowhere. This extract simply contains a description of the conditions at the main base, doubtless informed by the panel’s own knowledge. There is no suggestion it is in any way inaccurate or misleading. Moreover, it was not material to the way in which the case was actually decided. In the final analysis, as we shall see in relation to Ground 3, the FTT was not persuaded that the Appellant’s melanoma was caused by sun exposure after April 2005 – and the description of the MOB environment was not instrumental to that conclusion.

Secondly, the immaterial matters issue concerns a challenge to paragraph 14.5 of the FTT’s decision and in particular the reference to “our collective knowledge from such media exposure”. This objection has already been addressed in the preceding section of this judgment. The short answer is that the FTT was responding to an ambitious submission by counsel that the Appellant “was out in the heat and sun for 10-12 hours a day during his entire tour and that during this time he was wearing mainly shorts and T-shirts” (paragraph 14.4). The FTT’s finding that he would have been wearing full combat dress when out on patrol was, as we have seen, entirely consistent with the Appellant’s own evidence.

Thirdly, the controversial recollections issue turned on the Judge’s comment that while posted to Afghanistan she had not seen army personnel in shorts. This point is also subsumed in the discussion above and has no merit.

Finally, as regards Ground 1, Mr Rawlinson contended at the oral hearing that there were several contradictory findings in the FTT’s decision which amounted to errors of law. The following two examples will suffice to show why this submission lacked traction. First, the FTT found that the Appellant experienced sunburn during his 2004/05 tour of Afghanistan, despite much of the period being in the Afghan winter (paragraph 13.6). It was suggested that the panel took a contradictory approach in paragraph 14.7 dealing with his last 2017/18 tour. On any fair reading there is no inconsistency in terms of the effect of winter sun exposure; rather, the panel was pointing to the very different nature of the Appellant’s roles during these two respective periods. Secondly, Mr Rawlinson argued there was a contradiction between the fourth bullet point under ‘What we do not know’, relating to latency (paragraph 16.5), taken with the panel’s finding about latency at paragraph 18.7, and the positive finding of latency in paragraph 19. This critique is akin to counting the number of angels on the head of a pin and is addressed more fully below in the context of Ground 3.

Mr Rawlinson’s remaining submissions on Ground 1 in large part comprised a commentary on specific passages in the FTT hearing transcript. On closer analysis these observations typically amounted to a thinly disguised invitation to the Upper Tribunal to take a different view of the factual evidence and in particular to accord different weight to particular items of evidence as compared with the FTT’s approach. However, to do so would involve the Upper Tribunal impermissibly trespassing on the fact-finding function of the specialist first instance tribunal.

Ground 3 involves two discrete submissions. The first is the contention that the FTT misdirected itself in law in respect of the non-fault based nature of the AFCS. The second, in summary, is the argument that the FTT erred in law through misapplying JM v Secretary of State for Defence(AFCS) [2015] UKUT 332 (AAC); [2016] AACR 3 in the light of the circumstances obtaining in this case.

Judge Hemingway had this to say in respect of Ground 3 when granting permission to appeal (emphasis as in the original):

I do not read Judge Hemingway’s grant of permission to appeal as limiting Ground 3 to the JM point and so proceed accordingly.

The argument that the FTT overlooked the non-fault based nature of the AFCS represented a challenge to paragraph 17 of the FTT’s decision:

Counsel for the Appellant also drew attention to paragraph 18.3 of the FTT’s decision, namely the finding that “It was his responsibility to equip with and use sunscreen when necessary”. As such, so it was argued, the FTT was identifying an alleged failure on the part of the Appellant as being causative, and this finding was in complete disregard of the non-fault based nature of the AFCS.

This submission is unpersuasive for three reasons.

First, the FTT was entitled to consider who bore the responsibility for the provision of sunscreen, not least because the issue had been raised at the hearing. This was ultimately an issue of fact, not law. If armed forces personnel bear that responsibility, then to the extent that injury was caused by lack of sunscreen it is hard to see how such injury could be said to have been caused by service. As Mr Hays observed in his skeleton argument (at §29), nobody could seriously suggest that rotten teeth caused by a soldier’s failure to use toothpaste would be an injury caused by service.

Secondly, and crucially in any event, it so happened that the issue of the responsibility for providing sunscreen turned out not to be determinative in any significant respect. It is not as though the FTT found that post-2005 sun exposure was causative but then ruled out that factor as a service cause on the basis that the Appellant had neglected to apply sunscreen. As the FTT had noted at paragraph 16.3, “Para 4.16 [of the UVR Synopsis] states that studies into the relationship between sunscreen and melanoma are inconsistent. The consensus is that properly applied they help to reduce solar damage but protection against melanoma is less certain.” This led to the FTT’s observation in paragraph 17 that “it is clear that there is no consensus about whether sunscreen is effective”. In short, the FTT’s conclusion was that it was not satisfied that post-2005 sun exposure was the cause of the melanoma, whether or not the extent of exposure might have been alleviated by sunscreen.

Thirdly, it is axiomatic that tribunals need not refer to well-known principles of law – they are assumed to know them unless their reasons demonstrate otherwise. As Burnett LJ (as he then was) remarked inEJA v Secretary of State for the Home Department [2017] EWCA Civ 10 (at [27]) “some principles are so firmly embedded in judicial thinking that they do not need to be recited”. By the same token, a principle as elementary as the no-fault basis of the AFCS (and indeed of its predecessor war pensions scheme) is part of the daily currency of a FTT sitting in the WPAFCC. One would need compelling evidence before making a finding that a tribunal had failed to observe such a fundamental tenet of the statutory scheme. No such warrant applies in the present case.

Mr Rawlinson and Ms Skander, in their oral and written submissions respectively, placed rather more emphasis on the second aspect of Ground 3, namely their critique of the way in which the FTT had interpreted JM v SSD and thereafter applied the causation test.

The appellant in JM was a soldier who made a claim under the AFCS for depression, allegedly caused by bullying while in service. The Secretary of State rejected the claim. A tribunal dismissed the soldier’s appeal, holding that his depression was caused by multiple factors including personal, domestic and marital problems. His further appeal to the Upper Tribunal was allowed by a strong three-judge panel (Charles J, UTJ Rowland and UTJ (Shelley) Lane and the case remitted for rehearing by a fresh FTT.

At paragraph 118 of its judgment in JM the Upper Tribunal set out the following four-staged process as the correct approach to issues of causation and predominant cause under the AFCS:

The Upper Tribunal in JM then provided further analysis of what was meant by the notion of a predominant cause before giving the following more ‘high level’ guidance (the reference to Mr Marshall is to Marshall v Minister of Pensions [1948] 1 KB 106):

For the avoidance of doubt I start from the premise that JM was correctly decided as to the application of the predominancy test in the context of the assessment of causation under the AFCS. Indeed, as JM is a decision of a three-judge panel it is binding on me as a single judge of this Chamber (Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC)) just as it is binding on the FTT.

The FTT cited paragraphs 134-136 of JM at paragraph 9 of its own decision as well as setting out paragraph 145 (which is in the form of a direction to the remitted tribunal, effectively in identical terms to paragraph 118 of the three-judge panel’s judgment). It therefore cannot seriously be suggested that it misdirected itself as to the law, and Mr Rawlinson did not suggest as much – rather, his submission was that the FTT had erred in the application of the relevant legal tests to the facts. The FTT then sought to apply that template to the circumstances of the present case in the final paragraph 19 of its own decision, which I replicate here for convenience:

It has to be said at the outset that the basis on which this third ground of appeal has been advanced by counsel on behalf of the Appellant has shifted somewhat over time.

First, the Appellant’s original grounds of appeal accepted that the approach to causation as set out in JM was correct, but sought to argue that the FTT had misdirected itself in the application of that test to the facts of the case. For example, it was argued that there was an inherent contradiction between the FTT’s finding that the IMEG report did not try to define a latency period (paragraph 18.7) and its conclusion a few sentences later that “sun exposure post April 2005 might have led to some form of melanoma, but not for many more years” (paragraph 19).

Secondly, however, the Appellant’s skeleton argument then raised the possibility (at §16) that JM had no application in the case of a ‘long-tail’ condition (“It is difficult to conceive of how the application of a predominancy test would apply to an ‘all or nothing’ (and hence indivisible) condition”). On this basis, the Appellant’s “primary case” was then put rather differently – namely “if JM is found not to be applicable”. By analogy with Holmes v Poeton Holdings Ltd [2023] EWCA Civ 1377; [2024] 2 WLR 1029, it was argued that the AFCS causation test should be whether service has made a “material contribution in fact” to the outcome. Failing that, and as it was put, “even if” JM remained good law, the Appellant’s case in the alternative was that his appeal should have succeeded by reference to factors such as genetic susceptibility and current medical knowledge.

Thirdly, and finally, Mr Rawlinson’s oral submissions at the Upper Tribunal hearing involved a further change of tack. He reverted to the position that the approach to causation as set out in JM was correct and accordingly eschewed any suggestion that the common law test of a “material contribution in fact” was sufficient to meet the predominancy test. In concluding, he argued that the application of the four-fold staged process in paragraph 118 of JM only admitted of two possible outcomes. The first was to accept that there was nothing to do but throw one’s hands in the air as a long-tail cancer case would never satisfy the predominancy test. The second was to acknowledge that the predominancy test was satisfied in this case by reliance on the majority of periods of intense sun exposure having taken place in the post-2005 period. Mr Rawlinson averred that the latter was both the correct and the just approach.

As I understood them, Mr Rawlinson’s submissions necessarily proceeded on the following basis. As to the first element of the four-stage test in paragraph 118(i), both pre-2005 UVR exposure in service and post-2005 UVR exposure in service were potential process causes. As to paragraph 118(ii), there were no other possible process causes in play as intense exposure to the sun during service (at whatever date) was the only operative process cause (childhood exposure having by now been discounted). As to paragraph 118(iii), this likewise posed no problem as there was no relevant non-service cause. As to paragraph 118(iv), Mr Rawlinson submitted that here the FTT had misapplied the predominancy test. Thus, as it had been framed in the grounds of appeal, it was argued that “the evidence demonstrated that the overwhelming balance of the exposure post-dated 2005” (at §69). This comes perilously close to a perversity challenge.

In support of the proposition that the overwhelming balance of the Appellant’s UVR exposure post-dated 2005, Mr Rawlinson provided (at the Upper Tribunal oral hearing) a document entitled ‘Tables of Exposure’. This sought to tabulate the respective periods of sun exposure during the Appellant’s first and second periods of service. It purported to show 14 months of UVR exposure in the 1988-1997 period and 32 months of sun exposure in the second period of service (namely after 2004). Quite properly Mr Rawlinson acknowledged that this was not a document that had been agreed by Mr Hays, but, in any event, he argued that it was simply collating the evidence as it was before the FTT and presenting it in a compendious manner. For present purposes I leave to one side the facts that (i) no formal application was made to admit this document in the Upper Tribunal; (ii) the Respondent has not agreed it (and so Mr Hays has not made submissions on it); and (iii) self-evidently it was not put before the FTT, at least in the present form.

The reality, however, is that on closer scrutiny the document does not prove what it seeks to assert. In particular, the second period of the Appellant’s service is not congruent with post-2005 service, as the first entry for the second period (6 months in Afghanistan, October 2004-April 2005) properly counts as pre-AFCS service. Furthermore, the last entry for the second period of service (10 months in Afghanistan, September 2017-June 2018) cannot realistically be included as relevant causative sun exposure, given both (a) the FTT’s factual finding about this period (“This winter deployment was primarily office based indoors”: paragraph 14.7) and (b) what is known about latency (an issue to which I also return below). It follows that providing an aggregate duration of sun exposure of 14 months (for the first period of service) and 32 months (covering the second period of service) is of no relevance and is potentially misleading. The self-same data can be more accurately recategorized respectively as 20 months’ exposure (being the original 14 months + 6 months from 2004/05) for pre-April 2005 service and 16 months’ exposure (32 – 16 (6 + 10)) for post-April 2005 AFCS service. Looked at in this more nuanced way, the evidential case for post-April 2005 exposure as being predominant in comparison to the pre-April 2005 exposure is not at all obvious.

Be all that as it may, it is not the Upper Tribunal’s role to review and redecide the facts where the right of appeal is confined to an error of law jurisdiction. As rehearsed above, the FTT here made detailed findings of fact as to the Appellant’s UVR exposure both before and after April 2005 in the section of its decision headed ‘The evidence relating to the Appellant’s sun exposure’ (which actually contains a combination of a narrative of some of the key evidence together with the FTT’s factual findings) – see paragraph 24 above. Those findings amply supported the FTT’s overarching and determinative findings of fact as neatly summarised at paragraphs 18.1 and 18.2 of its decision:

All this notwithstanding, the outcome of the application of the causation test cannot be determined by a somewhat arid arithmetical exercise of counting the respective numbers of years and months of UVR exposure both pre- and post-April 2005 (and even putting to one side the obvious point that the intensity of exposure at any given time and at any given location will vary according to both geographic and climatological factors). Instead, the assessment of causation is a complex multi-factorial exercise, taking into account ‘What we do know’ (paragraph 16.6) and bearing in mind ‘What we don’t know’ (paragraph 16.5). The question of latency is part of this wider process of multi-factorial assessment. In this context two principal submissions were made on behalf of the Appellant as regards the FTT’s approach to latency.

The first, as outlined above, was the submission that there was a contradiction between the FTT’s finding that the medical evidence did not “define a latency period” (paragraph 18.7) and its conclusion just several sentences later that sun exposure in the Appellant’s AFCS service “might have led to some form of melanoma, but not for many more years” (paragraph 19). This argument goes nowhere. In stating that the medical evidence did not “define a latency period”, the FTT was simply observing that the medical evidence did not specify a set number of years (or a range of years) for latency. Rather, the UVR Synopsis stated in more guarded terms that “‘childhood sunburns … have been linked to melanoma in later life’ implying a long latency period” (paragraph 16.5, 4^th bullet point). This understanding was reinforced by the acknowledgement that exposure as a child or young adult “is a potent risk factor” (‘What we do know’, paragraph 16.6, 1^st bullet point). In short, the FTT was recognising that a trigger event may occur in youth or early adulthood but not manifest itself until much later in life and indeed it noted that “Mr C’s age profile is consistent with a ‘peak incidence in the fifth decade’” (‘What we do know’, paragraph 16.6, 3^rd bullet point). It follows that there is no inconsistency between the FTT finding there is no defined (in the sense of definitively specified) latency period and its conclusion that e.g. the mole first identified in 2013 was unlikely to be attributable to (relatively recent) exposure to UVR after April 2005.

The second main submission on latency was that the FTT had failed to define what it meant by the “basic injurious process” (paragraph 16) and failed to distinguish between what Mr Rawlinson referred to as latency type 1 and latency type 2. By latency type 1, he meant the time lag after the exposure to the harmful agent and the period during which no changes to the body took place. By latency type 2 he referred to the later period that elapsed after the affected cells begin to mutate and the cancer spreads. There are at least two reasons why this submission is unpersuasive. The first is that this was not how the case was run before the FTT, so the tribunal can hardly be properly criticised for failing to make this distinction. The second is that on any fair reading of the FTT’s decision as a whole it is perfectly clear what it meant by the “basic injurious process”. It was referring to the entirety of the period from the time of the relevant causative exposure to the time that the melanoma manifested itself, namely, as the FTT put it, “the timeline between exposure and onset” (paragraph 16.5, 3^rd bullet point), in other words the latency period as that term is commonly understood.

I therefore conclude that the FTT did not err in law in its approach either to the issue of latency nor to the application of the JM predominancy test.

I agree with Mr Hays’s submission that the final paragraph of the FTT’s decision is telling:

In summary, the FTT was postulating that even if there had been no pre-2005 sun exposure then the Appellant would not necessarily have succeeded in an AFCS claim. This passage, and a fair reading of the decision as a whole, confirms that the FTT was influenced in reaching its conclusion as to causation by three factors in particular. The first was that the Appellant’s age was important – in particular, the exposure during AFCS service took place when he was in his late 30s (or older) and not when he was a young adult. The second was the significance of latency, with diagnosis in the fifth decade of life being the period of peak incidence. The third was that UVR is by no means the only factor in causing melanoma. Strictly speaking, and given the finding that post-2005 exposure was not causative, the FTT did not need to delve into the predominancy test – the Appellant’s case (and, of course, the burden of proof was on him) fell at the first hurdle in paragraph 118 of the decision in JM.

For all the reasons above, I dismiss this appeal as neither of the two grounds of appeal on which permission was granted is made out.