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Neutral Citation Number:	2015 UKUT 332 AAC
Reported Number:
File Number:	CAF 3624 2013
Appellant:	JM
Respondent:	Secretary of State for Defence (AFCS)
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	11/06/2015
Date Added:	22/06/2015
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	fair hearing
Secondary Category:	War pensions and armed forces compensation
Secondary Subcategory:	Armed Forces Compensation Scheme
Notes:	Reported as [2016] AACR 3. Practice and procedure – fair hearing Armed Forces Compensation Scheme – bullying – whether injuries caused or predominantly caused by service The appellant, a soldier, complained of a campaign of bullying against him by other members of his troop. The Army started a formal investigation but the appellant decided not to be interviewed about his allegations; initially he said that it would be too painful for him to do so but later that it was because of pressure from others. The investigation concluded that there was no evidence of bullying based upon the statements obtained from other members of the troop. Subsequently, the appellant was assaulted on two separate occasions; he was stabbed by an unidentified assailant in the dormitory and some six months later he was head butted by another soldier. The appellant was subsequently discharged from the Army, following which he made three claims under the Armed Forces Compensation Scheme (the AFCS). Two of the claims were for the injuries he received during the assaults and the third for depression caused by bullying. The Secretary of State rejected the appellant’s claims and he appealed against that decision. The papers before the First-tier Tribunal (F-tT) did not contain a detailed account of the appellant’s allegations and neither he, nor his representative, was asked to provide one or to explain why he contended that the assaults were part of the alleged bullying. The F-tT dismissed the appeal holding that the assaults were isolated incidents and that the depression was due to multiple factors including personal, domestic and marital problems. The claimant appealed to the Upper Tribunal with permission granted by the F-tT and the Chamber President directed that the appeal be heard by a three-judge panel. Held, allowing the appeal, that: 1. the F-tT acted unfairly and therefore erred in law by failing to ensure that it fully understood the case by giving the appellant an opportunity to particularise his allegations, to explain why he had withdrawn them and to establish the bases on which he was making his claim (paragraph 45); 2. the language of the statutory test under the AFCS identified “service” as the cause or predominant cause of an injury but “service” was an abstract concept whilst “injury” was caused by one or more events or processes acting on the body or mind and therefore, in identifying the abstract cause of an injury it was necessary to identify the events or processes (the “process cause or causes” of the injury) and then to ask whether it was, or they were, sufficiently linked to service to satisfy the test that the injury due to each process cause was caused by service (or that that process cause was a service cause) (paragraphs 81 to 82); 3. the principles in the old case law relating to “attributable to service” in the war pensions scheme remained relevant when considering whether a process cause was a service cause so as to satisfy the AFCS test that the injury be caused wholly or partly by service (paragraph 88); 4. in principle bullying needed to be approached, like an assault, with regard to the detailed circumstances of each case and whether bullying was to be categorised as a service cause of any injury that might result from it was a matter of judgment and so of reasoning from the findings of fact made in each case (paragraphs 104 to 107); 5. the correct approach to the issues of cause and predominant cause under the Scheme required the application of a staged process, namely: (1) identify the potential process cause or causes (ie the events or processes operating on the body or mind that have caused the injury); (2) discount potential process causes that are too remote or uncertain to be regarded as a relevant process cause; (3) categorise the relevant process cause or causes by deciding whether the circumstances in which each process cause operated were service or non-service causes; (4) if all of the relevant process causes are not categorised as service causes, apply the predominancy test (paragraph 118); 6. in a case where there was a service cause and a constitutional or other pre-existing weakness, the predominancy test generally required the decision-maker to consider whether, without the service cause, the injury would (a) have occurred at all, or (b) have been less than half as serious. If the injury would not have occurred at all in the absence of the service cause, then the decision-maker could and generally should conclude that the service cause was the predominant cause of the relevant injury. Otherwise, the second question will generally found the answer to whether the service cause is the predominant cause of the relevant injury (paragraphs 134 to 136). The panel set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with its directions.
Decision(s) to Download:	[2016] AACR 3ws.doc