Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant's appeal to the Upper Tribunal is dismissed. The decision of the London First-tier Tribunal dated 22 October 2009 involved no material error on a point of law and is not to be set aside under section 12(1) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

1. This case raises an important point of principle about the meaning and effect of article 10 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005, as amended ("the AFCS Order"). An oral hearing was held at the claimant's request on 15 March 2011. There had been some delay in the arranging of the date, because of the non-availability in different periods of people concerned. The claimant was as it turned out not able to attend the hearing, but was represented by Alastair Shaw of counsel, of Hogan Lovells International LLP, acting pro bono through an arrangement with the Royal British Legion (RBL). The Secretary of State for Defence was represented by David Blundell of counsel, instructed by the Treasury Solicitor. I am grateful to both representatives for their submissions at the hearing. I gave the opportunity for further written submissions within a short timescale on the question of how the case should be disposed of on one possible outcome of the legal arguments about causation. The representatives appear to have kept in substance to that timescale, but an unexplained combination of unfortunate glitches has meant that a copy of Mr Blundell’s reply (originally dated 5 April 2011) to Mr Shaw’s submissions dated 28 March 2011 only reached me today. In the end, on the view I have taken as to the legal outcome, I do not have to consider the difficult questions about the scope and nature of an appeal to the First-tier Tribunal against a decision like that in the present case that were the subject of those submissions.

 

The factual background

2. The facts are deceptively simple and were clearly and carefully set out by the tribunal in its decision. It noted that the claimant had served in the Army since 27 May 1981 and was at the time of its hearing a Warrant Officer 2 (SQMS). In July 2005 he was transferred to be part of a small British element at a multinational HQ Rapid Reaction Corps in Lille in France. The decision continued:

 

"[The claimant] was provided with accommodation where he was required to live near the Citadel in Lille where the HQ was based. Only French military personnel were permitted to park at the Citadel and therefore the only feasible way to travel from his accommodation was on foot. We find that the Citadel in Lille was his regular place of work.

At about 0716 on 17 January 2006 [the claimant] was the victim of a hit and run incident when on a pedestrian crossing whilst walking to work. He was in uniform which he had been authorised to wear by his Commanding Officer when walking to and from work. He was also wearing a high visibility Bergen. The weather was wet and dark and he considered the street lighting poor. The incident was investigated by a French Gendarme Major, who was the Provost Marshall at the HQ, but his enquiries were not conclusive as neither the driver nor the vehicle were ever traced.

We agree with and make as findings the replies as set out by Brigadier Hewitt on the reverse of page 15 of the response.

Initially [the claimant's] injuries were considered to be fairly minor (severe bruising to right arm and leg) but paralysis has occurred in his right arm for which he has had surgical interventions. He told us, and we accept, that he now has only 22% strength in the right arm.

He was downgraded to P7 at the date of the decision (7 April 2008). Neither the [Service Personnel and Veterans Agency] nor we have expressed any views about the appropriate descriptor. The hearing has been solely concerned with whether he is precluded from receiving benefit because of the provisions of Article 10.

We find that he was on duty at the time of the accident. He was wearing uniform and was on an authorised journey at the time of the accident. He told us, and we accept, that if an incident had happened on the way to work he would be expected to attend and assist provided he was in uniform. He asked his Colonel whether he was on duty and was told that the Colonel would regard himself as on duty when travelling to work in uniform. Understandably, [the claimant] considers that his position is no different."

 

3. The response of Brigadier Hewitt, the claimant's commanding officer at the time, was in reply to a letter dated 19 January 2008 asking specific questions. It included that the claimant was walking between his place of residence (a service hiring) and his normal place of duty at the time of the accident, that he was not travelling to a separate duty station and was not on detached duty, that he had not been called out for an emergency and was on an authorised duty in that he was expected each day to make his way from his service-provided residence to his service place of duty, the location of the accident being on the most direct and logical route.

 

4. The claim under the AFCS for injury to arm and leg was received on 27 December 2007. The decision that the claimant was not entitled to an award was notified in a letter dated 7 April 2008. The reason given was that, because he was travelling from his normal place of residence to his normal place of work, he was not covered by article 10 inclusions. That decision and the reason were maintained on review after the claimant had lodged an appeal.

 

The relevant legislation

5. From the outset article 7 of the AFCS Order has provided:

 

"7.--(1) Benefit is payable in accordance with this Order to or in respect of a member or former member of the forces by reason of an injury which is caused (wholly or partly) by service where the cause of the injury occurred on or after 6th April 2005.

 (2) Where injury is not wholly caused by service, benefit is only payable if service is the predominant cause of the injury."

 

In article 2(1) "service" is defined as:

 

"service as a member of the forces, except as provided in article 10;"

 

6. As amended with effect from 26 July 2006, article 10, headed "Injury and death - inclusions", provides:

 

"10.--(1) Benefit is payable in accordance with the Order to or in respect of a person by reason of an injury sustained or worsened or death occurring, while participating in--

 (a) [approved sporting activities];

 (b) [approved activities for maintaining physical standards];

 (c) [approved adventure courses and expeditions].

 (2) [approval by the Secretary of State].

 (3) [exclusion of social events and free time from paragraph (1)].

 (4) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained, or worsened, or a death occurring--

 (a) while travelling from his home or his place of work to the place where an activity referred to in paragraph (1) is to happen or while travelling back again;

 (b) where one of the circumstances specified in paragraph (5) applies and where service is the predominant cause of the injury, or the worsening of the injury or death.

 (5) The circumstances referred to in paragraph (4)(b) are where the member of the forces--

 (a) is travelling from his home or his regular place of work to a place of work which is not his regular place of work or while travelling back again except where the travel is during a period of leave;

 (b) is travelling from a place of work which is not his regular place of work to another place of work which is not his regular place of work;

 (c) is changing from one regular place of work to another and is travelling from his home or what was his regular place of work to a place of work outside the United Kingdom which is to become his regular place of work or is travelling from what was his regular place of work outside the United Kingdom to his home or to a place of work which is to become his regular place of work; or

 (d) is required to reside in accommodation provided by the Ministry of Defence for families of members of the forces at a distance of over 50 miles from his regular place of work and is travelling by a reasonably direct route from that accommodation to that place of work or while travelling back again.

 (6) Benefit is payable in accordance with this Order to or in respect of a person by reason of an injury sustained, or worsened, or a death occurring--

 (a) as a result of acts of terrorism or other warlike activities in each case directed towards him as a member of the forces as such; or

 (b) while called out to and travelling to an emergency but only where service is the predominant case of the injury, the worsening of the injury, or death.

 (7) This article does not apply unless the cause of the injury, the worsening of the injury, or the cause of the death, occurred on or after 6th April 2005.

 (8) [definition for paragraph (1)(b)]."

 

7. Some parts of article 11, headed "Injury and death - exclusions" have also been referred to, in particular paragraph (b)(iv):

 

"11. No benefit is payable under this Order to or in respect of a person by reason of--

 ...

 (b) an illness or any associated condition caused by an illness which is--

 ...

(iv) an exogenous infection except where the infection is a zoonosis, or is endemic to a tropical or a subtropical region and the person infected has been exposed to the infection in the course of his service or where, in a temperate region, there has been an outbreak of the infection in service accommodation or a workplace,"

 

The tribunal's decision

8. The argument for the claimant made to the tribunal by his representative from the RBL appears to have been first that service provided the setting or circumstances in which the injury to the claimant occurred, so that it was a contributory factor and that a factor of service was a predominant cause of the injury within article 7(2). It was argued second that article 10 was irrelevant as it provided only a list of inclusions and could not remove an entitlement established under article 7(2).

 

9. The tribunal dismissed the claimant's appeal. It concluded that none of the four circumstances set out in article 10(5) applied and that:

 

"We disagree with [the RBL representative]. In a claim involving travelling it is not sufficient to show merely that service was the predominant cause of the injury. It is also necessary to satisfy the test in Article 10(5).

We find that it is sufficient for the lay decision maker to reject the claim on the basis that it does not fall within Article 10(5). Our responsibility as a Tribunal is to decide whether the decision was rightly made on that ground. We find that it was.

Since the lay decision maker did not consider whether service was the predominant cause of the injury and we have concluded that it was not necessary to do so in order to make a decision in this claim we make no findings about this."

 

The appeal to the Upper Tribunal

10. The claimant now appeals against the tribunal's decision with the permission of the President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal.

 

Is article 10 a complete and exhaustive code for travelling cases?

11. In his written skeleton argument Mr Shaw for the claimant submitted that article 10 should not be the starting point in travelling cases, as had been submitted for the Secretary of State in his written reply. He pointed first to the manifold circumstances in which the obvious carrying out of the duties of service would involve travel, such as in a tank or lorry or some other service vehicle or aircraft on an exercise or in combat or simply moving on foot. It could not possibly be suggested that article 10(4) and (5) prevented an injury sustained in such circumstances from qualifying for compensation under the AFCS. He submitted that those provisions only had an (inclusive) application when a person was not already working, but otherwise if the person was already on duty they had no application and it was the test of causation under article 7 that was decisive. I come back to that test below and to Mr Shaw's submission that the tribunal's finding of fact that the claimant was on duty when knocked down was unassailable in law and decisive that the injury was predominantly caused by service.

 

12. At the oral hearing Mr Shaw expanded his submissions to include some points of construction of the AFCS Order. He stressed that the heading of article 10 referred merely to inclusions and that there were no provisions stating expressly that it was to be exhaustive or to constitute a complete code. In view of the difficulties in identifying the scope of article 10 on travelling, if the Secretary of State was right the interaction with article 7 would not be compatible with the principle of simplicity put forward, for example, in Section 2 of the March 2001 Joint Compensation Review Consultation Document. And if the Secretary of State was correct, there would, he said, be a large and unfair gap in the scheme through the exclusion of compensation for service members injured as a result of their work as such.

 

13. The case to the contrary was set out as follows in Mr Blundell's skeleton argument for the Secretary of State, after he had relied on Elias LJ having said in paragraph 8 of Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043, [2010] AACR 5 that article 10 "defines certain activities which will be deemed to have occurred while the person is in service". The skeleton continued:

 

"20. Article 10 thus deems certain activities to have occurred during service. The `deeming' effect of article 10(5) is necessary because of the test of service being the `predominant cause of injury' in article 10(4) which must then be applied. Article 10(5) thus deems the activities in question to have occurred in service; article 10(4) applies a test of predominant causation by service to them. Without the deeming the reference to `service' in subparagraph (4) would make no sense.

 

 21. This reading of article 10 is further supported by the terms of the definition of `service' in article 2(1), which defines `service' to mean `service as a member of the forces, except as provided in article 10' (emphasis added). Thus the activities in article 10 must fall outside the scope of article 7 because they are only brought within the definition of `service' by the effect of article 10. Were it not for article 10, such activities would not amount to `service' at all and so could not fall within article 7.

 

...

 24. Thus the effect of article 10 is to bring within the scope of eligibility for payment of benefit activities which would not otherwise qualify under [article] 7. This means that article 10 has to be the starting point, not article 7. That is the usual effect of a deeming provision. In the case of the AFCS, the statutory deeming will occur only where the qualifications in the relevant part of article 10 (here, subparagraph (5)) have been met. It is for this reason that `service' is defined in article 2(1) as meaning `service as a member of the forces, except as provided in article 10'.

 

 25. Where those requirements are met, there is no need to look back to article 7. Article 10 contains the complete code for determining the payment of benefit in these circumstances. That this is so is evident from a structural comparison of articles 7 and 10. ...

 

...

 27. The structure of the provisions is identical. They both begin by stating that benefit shall be payable in accordance with the AFCS [Order] in particular cases. This is followed by a specification of the cases which the provision covers. Article 7 covers injuries caused by service; article 10(4) and (5) cover certain limited types of travel activity. There is then a requirement in both provisions that where the injury is not wholly caused by service or travel respectively, that service or travel must have been the predominant cause.

 

 28. Accordingly, article 10 contains a complete code for determining whether the injury in question creates an entitlement to benefit. It mirrors the structure of article 7 but extends its scope to include activities which would not normally be considered to be part of service. It extends the scope of article 7 in that it includes certain activities which, on a reading of article 7 alone, would not do so. ...

 

 29. Precisely because it mirrors the structure of article 7, including the test of predominant cause, there is no need to look back to article 7 from article 10. Article 10(5) contains the same test of causation as article 7 and so referring back to article 7 is not necessary. The word `inclusions' in the heading to article 10 thus refers to `inclusions' in the scheme of entitlement to benefit within the AFCS as a whole. It does not specifically refer to inclusion within article 7. The scheme of entitlement to benefit in the AFCS has at its core the notion that only injury or death caused predominantly by service creates an entitlement to benefit; without the inclusion in that scheme created by article 10, sporting activities and travel between home and the place of work or different places of work would not create any entitlement."

 

14. Mr Blundell maintained that position in essence at the oral hearing in submitting that the tribunal had not gone wrong in law. He accepted that article 10 did not use the classic language of deeming, by providing that a person was to be treated as in service in certain circumstances, but submitted that the combination of the exception to the definition of service in article 2(1) and the heading to article 10 had, in the context of the AFCS Order as a whole, to have that effect. Mr Blundell did, however, qualify or clarify what was being put forward in paragraph 27 of the skeleton argument. He submitted that, despite the deeming effect just identified, paragraph (4)(b) of article 10 (like paragraphs (1) on sporting activities etc and (6) on terrorism etc and emergencies) required the asking of the question of whether service not as expanded by article 10 was the predominant cause of the injury. The question then arose of how article 10 could provide any practical assistance to anyone if, even though the circumstances fell within an identified category, the claimant was subject to exactly the same test as under article 7. Mr Blundell's answer was that the question had to be asked, even if it would result in a very narrow scope of application for article 10, but that the question of whether service had an effect on the claimant's location at the time in question could be relevant.

 

15. Mr Blundell defined the scope of application of article 10(4)(b) and (5) as covering travel to and from a place of work, so that such travel that did not fall within one of the categories in paragraph (5) could not attract payment of benefit for an injury sustained while doing so. He accepted that there would be grey areas and difficulties, for instance, in defining when a claimant had reached a place of work, so that the ordinary test in article 7 took over. By defining the scope in that way, the sorts of travel mentioned by Mr Shaw while on exercise or in combat would not be caught by the preclusive effect of article 10, but again Mr Blundell recognised that there would be difficulties in identifying when a person was travelling as part of his or work rather than to or from it. I pressed him on a number of examples, some less well-chosen than others. One instance was if the claimant had had to have some heavy equipment or books at his apartment in Lille and had been carrying them to the Citadelle when at exactly the same location and time he had strained a muscle or tripped because of the weight of the load and injured himself in falling. Mr Blundell's reaction was that that would fall outside the normal travel to work situation (possibly by treating the apartment as a temporary place of work), so that article 10 would not apply at all and benefit could potentially be awarded. A further example was more difficult. If the claimant had been attacked by someone with an irrational hostility to military uniforms or British uniforms (or, I now add, he had gone to the aid of a British hit and run victim who had appealed to him for help on seeing his uniform and been injured by another car), would entitlement to benefit be excluded just because he was on the way to work at the time? Mr Blundell again thought not, but did I think struggle to explain why, apart from suggesting the possibility of the application of article 10(6)(a) on terrorism etc if the uniform had been targeted.

 

16. I do not accept the Secretary of State's submissions on this issue. 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.

 

17. The starting point is the definition of service in article 2(1). It is important that that definition is in general terms, not limited to service on or after 6 April 2005. The condition as to the date comes in in the separate provision in articles 7, 8 and 9 in relation to the cause of the injury, worsening or death. I come back below to why there therefore needs to be an additional provision in article 10(7). Then there is a potential expansion or contraction of the ordinary meaning of service (depending on what article 10 provides). Given the heading "inclusions" to article 10, it must prima facie operate as an expansion of the ordinary meaning. I do not object to the use of the word "deeming" to describe the practical effect of that, but stress that too much weight must not be given to the particular words used by Elias LJ in paragraph 8 of Duncan and McWilliams when doing no more than setting out a general introductory description of the AFCS structure. But it is important to note that a deeming provision or one with similar effect can and often does operate not only where the circumstances would definitely not have fallen within some condition, but also where it is thought desirable to provide some more hard-edged criteria for identifying satisfaction of a general condition. The mere use of positive deeming language ("shall be treated as X if A and B", rather than "shall be treated as X if and only if A and B") does not mean that the general condition cannot be satisfied if a case falls outside the deeming. For a recent example in the social security context see Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 699, [2010] AACR 42, [2011] PTSR 289.

 

18. I can also clear away here Mr Blundell's second thoughts at the oral hearing about the effect of the condition in article 10(4)(b) that service is the predominant cause of the injury, worsening or death (paragraph 14 above). In my judgment those second thoughts cannot be right and his first thoughts as expressed in the written skeleton argument were correct. That follows from the context of the expansion of the article 2(1) definition of "service" and the general effect of article 10. If the meaning of service has been expanded, then when there is a reference to service it must be to that extended meaning, ie including the circumstances specified in article 10. If that were not the case, article 10 would not add anything to articles 7, 8 and 9, because the test of predominant causation by service in its unexpanded meaning would remain. It could not bring into qualification for benefit cases that would not already qualify under those articles. Article 10 would then only serve the function, if Mr Blundell is right in general, of excluding from qualification for benefit cases within its general field of application (eg travel to and from work). Such a result could not possibly have been intended to follow from a provision headed "inclusions".

 

19. Therefore, in the ordinary use of language one would not expect article 10 either to carve out an area from the ordinary meaning of "service" or to prevent entitlement arising in certain circumstances even though article 7, 8 or 9 would otherwise apply unless there were clear words to produce that result. Articles 7, 8 and 9 are not expressly made subject to article 10. That perhaps does not take one much further forward, as they are not expressly made subject to article 11 (exclusions) either, although that must by implication be the result. One must then consider the words of article 10 to see if they indicate that they are to have an exhaustive effect within their field of application.

 

20. The first difficulty is to determine just what the field of application is of article 10(4) and (5) in particular. It requires some work of interpretation and implication even to confine it to situations of travel to and from work. Then Mr Blundell's struggles when examples were put to him to differentiate such cases from others where entitlement should be allowed on the ordinary article 7 test demonstrate that that is by no means an easily identifiable category. Not all of his solutions would work. For instance, if the claimant's apartment in Lille were treated as a not regular place of work or even as a regular place of work in particular circumstances, the journey from there to the Citadelle would not have fallen within any of the categories within article 10(5).  It would then require giving a highly sophisticated and complicated meaning to travel to and from work as the general field of application of article 10(4) and (5) to find a way to exclude the carrying of equipment or books example mentioned in paragraph 15 above or, say, a diversion on orders from the claimant's normal morning route to meet a visiting officer at the Lille Eurostar/TGV station. In my view it would be highly undesirable, if article 10 were to have the preclusive effect given to it by the First-tier Tribunal, for the field of application of that effect to be so loosely identified. One need only refer to the dreadful convolutions into which the courts have got in trying to lay down principles within the social security industrial injuries scheme for identifying when a claimant is in the course of employment in travelling cases, leading to differences in outcome in particular cases that seem to have no rational basis. It would therefore need the clearest of words to produce that result when it would be so much simpler if article 7 just retained a residual role if the claimant was not able to get within one of the article 10(5) categories.

 

21. The second difficulty is that in my judgment the provisions in article 10 said by Mr Blundell to demonstrate that it operates in a preclusive way as well as an inclusive way do not have that effect. I agree that the article does operate as a complete code, but do not agree that that has the consequences put forward for the Secretary of State. That operation is a necessary consequence of the drafting technique adopted and therefore does not carry any further implications. As already noted, paragraphs (1), (4) and (6) of article 10 do not use the classic language of deeming circumstances to fall within article 7, 8 or 9, but simply declare that benefit is payable in the circumstances prescribed. Those paragraphs contain no condition about the date of occurrence of the cause of the injury. Thus, the specific provision in article 10(7) is necessary to restrict the inclusive effect of article 10 to injuries etc caused on or after 6 April 2005. Similarly, paragraphs (1), (4) and (6) need to contain an express condition restricting the inclusive effect to cases where service (in its expanded meaning) is the predominant cause, because there would not otherwise be anything requiring that link. Article 10 in that sense provides a complete code for the cases which it brings within the scope of benefit, because it is has to. But in those circumstances I can see no implication that it was intended to provide a complete code for any wider category of cases, such as “travelling” or “travelling to or from work”, in the sense of excluding such cases from the scope of benefit unless the conditions of paragraph (1), (4) or (6) were met.

 

22. The words of article 10 accordingly fall a long way short of a clear indication that it was intended to be anything more than an inclusive provision for the cases prescribed, leaving cases falling outside that prescription to be decided according to the ordinary tests in article 7, 8 or 9. It may therefore be right in practice to make article 10 the starting point in a travelling case, because if one of its tests is satisfied the article may provide a straightforward answer that the claimant qualifies under the AFCS, subject to the further determination that an injury within the Tables in Schedule 4 or within the terms of article 20 has been sustained. But article 10 can be no more than a starting point in a case where one of its tests is not satisfied. In that circumstance, it is necessary to go on and consider the relevant ordinary test. Accordingly, the tribunal of 22 October 2009 erred in law in dismissing the claimant’s appeal for the reason it did.

 

23. I add a few words here about the decision of Mr Commissioner Jacobs, as he then was, in CAF/2150/2007 and CAF/2151/2007, set aside by consent in the Court of Appeal on 3 October 2008, when the decisions of the Pensions Appeal Tribunals were restored. There was no discussion of that at the oral hearing of 15 March 2011, although it had featured in written submissions. The decision of the Court of Appeal, having been given by consent, was binding on the parties to the case before it, but the reasons attached to the consent order cannot be regarded as carrying any authoritative weight in any other cases (Commissioner’s decision R(FC) 1/97). And in any event, as has been pointed out by Mr Blundell, the reason why the Secretary of State consented to the allowance of the widows’ appeals was doubt about the meaning of article 10(5)(a) as it was originally enacted (under which  it was considered arguable that travel to and from work outside the United Kingdom was covered). By the time of the claim in the present case, but after the date of the incident, the AFCS Order had been amended by the substitution of new forms of article 10(4) and (5) which did not contain the previous ambiguity. No challenge has been made to the application of the general principle that the legislation to be applied should be that in force at the date of the claim under consideration. I agree with the parties that, since Mr Commissioner Jacobs’ decision was set aside by the Court of Appeal, it cannot be regarded as carrying any authoritative weight in any other cases either. However, the decision is still publicly available and his reasoning can be considered in other cases on its merits by way of comparison or instruction. I am comforted by the fact that Mr Commissioner Jacobs reached the same conclusion on the inclusive and not exhaustive nature of article 10, although our processes of reasoning differ slightly at some points.

 

Could the claimant have succeeded under article 7?

24. It must then be asked whether, if the tribunal had not made the error of law about article 10, it would nevertheless have been compelled to dismiss the claimant’s appeal. Mr Shaw of course submitted that, on the contrary, once the tribunal had made the unassailable finding of fact that the claimant had been on duty when he was knocked down, it had to follow that service was the predominant cause of the resulting injuries. I have some doubt whether the evidence before the tribunal did in fact support that finding (a report of what the claimant’s Colonel considered the case does not seem to me to have anything near decisive weight) and exactly what the tribunal thought was entailed by the finding. But I have decided that I do not need to pursue those matters in detail because I tend to agree with Mr Blundell for the Secretary of State that the focus under the AFCS Order must be on the test in terms of causation by service, rather than on the concept of being on or off duty, which does not expressly appear in the Order.

 

25. There is some assistance to be gained from considering the time-honoured formula of “personal injury by accident arising out of and in the course of employment”, dating from the Workmen’s Compensation Act 1897 and still current in the Social Security Contributions and Benefits Act 1992 in relation to industrial injuries disablement benefit. To be entitled to disablement benefit the claimant must not merely be in the course of employment at the time of the accident, but the accident must also arise from employment. The test under the AFCS Order of service being the predominant cause of injury corresponds to the “arising out of employment” part of that formula (although creating a considerably higher hurdle), but there is no equivalent of “in the course of employment”. That leaves a great deal of work to be done by the test of causation, and without the assistance of the many presumptions and rules within the industrial injuries legislation about when an accident is to be treated as arising out of employment. There is also the very significant condition that it is not enough, as it for disablement benefit, that service is a cause, of a substantial non-trivial kind; it must be the predominant cause. In the industrial injuries context, as mentioned above, there have been great problems raised by travel, some of which have been dealt with by specific legislative rules. For the moment, I merely note the acceptance in this context (as in others, such as income tax law and the rules as to vicarious liability for the acts of employees) of a fundamental distinction between travel to and from work and travel as part of work.

 

26. In my judgment, in the circumstances of the present case, the claimant could not be regarded as doing his job as member of the armed forces while walking from his apartment in Lille to the Citadelle. He was doing something which was necessary for him to carry out that job, but he was not yet doing it. I do not have to decide at what point before entering his office or work-building that would change. I suspect that it might be said to be at the point at which he entered an area where he was entitled to be only as a member of the armed forces and not as a member of the general public. However, the precise identification may not always matter because not everything that happens to a person while doing their service job can be accepted as caused by service, let alone as having service as the predominant cause. And some things that happen while the person is not doing their service job can be accepted as being caused by service. It does not affect my conclusions so far that the claimant was under a duty, in a sense, to get to the Citadelle to do his job (as are all employees) or regarded himself as (or even was in fact) on duty when doing so or when wearing his uniform or whether he was subject to military discipline. He was still not doing his job.

 

27. The injury on the journey to work being a manifestation of a risk run by the general public using the streets of Lille, that injury could not properly be regarded as caused by his service, let alone being predominantly caused by service. Nor was the nature of that risk in any way restricted to Lille as compared with any other place, including within the United Kingdom, where he might have been posted and had to live in non-service accommodation. I think that his RBL representative at the hearing on 28 October 2009 had it right when she said that service provided the setting for the incident. Where she went wrong was in the submission that that meant that service was the predominant cause. It is of course true that the claimant would not have been where he was on the pedestrian crossing in Lille if he had not been serving in the armed forces at the time. However, that factor cannot be differentiated from the great morass of other background factors in the absence of which he would not have been where he was at the particular time. Such factors cannot as a matter of common sense and common experience be regarded as a cause of the claimant’s injury. They merely form part of the background setting.

 

28. There may of course in other circumstances be factors that mean that service is a cause, and potentially the predominant cause, of an injury suffered while a person is travelling to and from work. The examples mentioned above of a person being targeted because of their uniform or of carrying service equipment that is linked to the occurrence of the incident might qualify. It would be wrong in the present decision to seek to set out any more defined principles by which such circumstances can be identified. Each case must be considered on its merits. I do add this word of caution, linked to the hypothetical example of the claimant here having been ordered to divert from his normal morning route to meet a visiting officer at the Lille Eurostar/TGV station and, say, being knocked down on the same pedestrian crossing at the same time on the way to the Citadelle. In such circumstances, service might be regarded as differentiated from the overall background setting so as to be at least a cause, but the incident would still have been a manifestation of a risk run by the general public using the streets of Lille. There would then be a serious question to be answered whether service could be determined to be the predominant cause. I come back to the identification of predominant cause in paragraph 31 below when discussing some of the authorities relied on by Mr Shaw.

 

29. I have reached those conclusions by a general consideration of the terms of the AFCS Order and of the meaning ordinarily to be given to the words “cause” and “predominant cause” in the light of the submissions made. They are in my judgment supported by the authorities cited by Mr Shaw in support of the claimant’s case, including one decided under a predecessor to the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006. Article 6(2) and (3) of the AFCS Order provides that its rules are to be construed without reference to any other scheme applicable to the armed forces, except where expressly mentioned. I agree with Mr Blundell that this means that whatever might be the proper approach or the actual approach in practice under the 2006 Service Pensions Order and its predecessors to incidents occurring while a service member is travelling to or from work cannot be relevant to the proper approach under the AFCS Order. However, I do not agree with him that this prevents reference to cases before the nominated judge or the Pensions Appeal Commissioners or the Upper Tribunal under that legislation for assistance on the general meaning of concepts such as causation.

 

30. One case mentioned by Mr Shaw was Minister of Pensions v Chennell [1947] 1 KB 250, a well-known decision of Denning J on appeal from a Pensions Appeal Tribunal (PAT). The case arose under the Personal Injuries (Emergency Provisions) Act 1939 and its scheme for making payments to civilians for war injuries. The scheme therefore does not fall within the scope of article 6(2) of the AFCS Order because it was not, I think, applicable to the armed forces. A boy had picked up an unexploded bomb dropped by an enemy aircraft two days before. When he tampered with it in the road it exploded, injuring the claimant, a girl who happened also to be in the road at the time. The PAT decided that that was a “war injury”, ie a physical injury caused by the discharge of the bomb by the enemy. Denning J dismissed the Minister’s appeal. He began by noting that the best approach was to start with the injury and to ask what were the causes of it, rather than to start with the discharge and ask what its consequences were. The discharge did not need to be the cause of the injury in the sense of being the sole or effective and predominant cause; it only had to be a cause. At page 254 he made the important observation that it had to be recognised that causes are different from the circumstances in or on which they operate, the line between the two depending on the facts of each case. He then gave four illustrations. The first was where the discharge etc was the immediate or precipitating cause of the injury, when the test was met even though there was some other antecedent or precipitating cause, as where a bomb fell on someone who had disobeyed instructions to take shelter or where an accident in service caused a hernia only because of an inherent weakness. The second and third were where some other cause intervened between the discharge and injury. That would not prevent the discharge remaining a cause, even if it involved a negligent or wrongful act by a third party, unless the discharge were so remote as not to be a cause at all. Denning J gave examples of the test being satisfied. The fourth category was where “the intervening or extraneous event is so powerful a cause that the dropping of the bomb ceases to a cause at all but is only part of the circumstances in or on which the cause operates”, where there would not be a war injury. The examples at page 256 included the following:

 

“[W]hen, whilst a soldier is on service, his wife goes off with another man and in consequence the soldier is reduced to a chronic anxiety state. The disease is then attributable not to war service but to the wife’s personality and conduct: (W v Minister of Pensions [1946] 2 All ER 501). It may be that if the soldier had not been separated from his wife by war service, she would not have been unfaithful and he would not have suffered, but that does not mean that the war service is a `cause’ of the disease, and that is so, even though on an average wives are more likely to be unfaithful when they are separated from their husbands than when they are not. Persons may be more likely to be involved in an accident in a London street than in a country road, but the cause of an injury in any particular case is not the visit to London but the negligence of someone or other.”

 

31. What Mr Shaw sought to draw from Chennell in the claimant’s favour was I think in the end limited to the submission that it would be simplistic to regard the causative effect of service in putting the claimant on the pedestrian crossing in Lille as overtaken by an intervening event of such power (ie the negligent and irresponsible actions of the French driver) as to put the case into Denning J’s fourth category. I do not agree. The line between service being merely part of the circumstances or being a cause of injury can be a very fine one and ultimately a matter of impression, as is shown by the many other decisions of the nominated judges on the Service Pensions Order and its predecessors that I shall not cite individually. The statement of the outcome by the authority responsible for the decision may therefore appear simplistic on the surface, but that in no way diminishes the validity of the general principle. Under the AFCS Order the difficulty is likely to be transferred to the line between service being merely one of several causes of the injury and it being the predominant cause. Where I do agree with Mr Shaw is in the proposition that in identifying the predominant cause it would be wrong to look only at the immediate or precipitating cause. As he pointed out, to do that in a rigid way would exclude from the scope of compensation what might be thought to be the archetype of a service injury – being shot by the enemy on active service. That deliberate and targeted act of the enemy cannot possibly in this context be regarded as the predominant cause of the resulting injury so as to exclude service as the predominant cause. Thus a somewhat more sophisticated approach must be taken, though its working out must await future cases where the point is material to the outcome.

 

32. Marshall v Minister of Pensions [1948] 1 KB 106 was for present purposes merely an application of the same principles as in Chennell to a claim for a war service injury. The difference between attribution and aggravation discussed there is not relevant here. Mr Shaw referred in particular to this passage of Denning J’s judgment at page 109:

 

“The task of the Minister and of the tribunal is to ascertain what are the causes of the arising of the disease [in that case a hernia], not to assess their relative potency. If one of the causes is war service the disease is attributable to war service, even though there may be other causes and, it may be, more powerful causes, operating, and to which it is also attributable.”

 

However, that in my judgment merely points up one of the definitive differences between the Service Pensions Order and the AFCS Order. Under the latter it is precisely the task to assess the relative potency of causes in order to decide whether service is the predominant cause.

 

33. Mr Shaw relied perhaps most strongly on the decision of the House of Lords in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 and in particular on the speech of Lord Hoffmann. The question before the House of Lords was whether the company had been rightly convicted of causing polluting matter (diesel oil) to enter controlled waters contrary to section 85(1) of the Water Resources Act 1991 when an unlocked outlet tap to its diesel tank was opened by a person unknown. It is difficult to summarise Lord Hoffmann’s characteristically penetrating speech. I do not find it necessary to refer to all the passages cited by Mr Shaw, as they do not in my view help him. The most important general statement was at page 31E:

 

“[O]ne cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose or scope of the rule. Does the rule impose a duty which requires one to guard against, or makes one responsible for, the deliberate acts of third persons? If so, it will be correct to say, when loss is caused by the act of such a third person, that it was caused by the breach of duty.”

 

As a matter of statutory construction it was then held that section 85(1) imposed a strict liability, covering liability for certain deliberate acts of third parties and natural events. It was in that context that Lord Hoffmann made the statement particularly relied on by Mr Shaw, as summarised at page 36B:

 

“If the defendant did something which produced a situation in which polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party or a natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the defendant’s acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary, it will be open to the justices to hold that the defendant did not cause the pollution.”

 

34. What Mr Shaw said was that the Ministry of Defence, with a responsibility for the claimant’s welfare and wellbeing, had done something that produced a situation in which he could have been injured on busy city roads in the dark and the wet by posting him to Lille in circumstances in which he had no service accommodation and no service transport to and from work. What happened was then a normal fact of life and a long way from something extraordinary.

 

35. That of course is in a sense undeniable, but it does not show in the context of the AFCS Order that service was a cause of the claimant’s injury. That context is not the same as that being considered by Lord Hoffmann. Although the AFCS operates on a strict liability basis in the sense that entitlement to compensation does not depend on the injury having been intended or foreseen by the Ministry of Defence, neither does it depend on any breach of duty. There is simply a public law entitlement to compensation when the terms of the ASCS Order are met. The injury having been predominantly caused by service is one of those tests. One is not then looking at a question of causation for the purpose of attributing responsibility under some rule, but looking at the meaning of causation as part of the rule as to entitlement to and responsibility for the payment of compensation. There is not the special factor that led Lord Hoffmann to his particular analysis. As he put it at page 32C in relation to the facts of National Rivers Authority v Yorkshire Water Services Ltd [1995] 1 AC 444 (third party discharged solvent into a sewer which then passed through the defendant’s sewage works and into a river), those facts were:

 

“a striking example of a case in which, in the context of a rule which did not apply strict liability, it would have been said that the defendant’s operation of the sewage plant did not cause the pollution but merely provided the occasion for pollution to be caused by the third party who discharged the [solvent].”

 

36. Perhaps another way of expressing much the same point is that Mr Shaw’s approach was, in the terms used by Denning J in Chennell, to start with the claimant’s service and ask what its consequences were, rather than, as is preferable, to start with the claimant’s injury and ask what the causes of it were and what was the predominant cause.

 

37. Accordingly, I conclude that, in the different context of the AFCS Order, the Empress Car case provides no indication that the fact that hit and run accidents on pedestrian crossings in poor visibility can be said to be in general a normal and familiar fact of life, not something abnormal and extraordinary, makes service a cause of the claimant’s injury. Even if it did have that effect, it would not have helped the claimant to show that service was the predominant cause. Lord Hoffmann, just like Denning J in the cases discussed above, was concerned only with whether a particular person or factor counted as one amongst possibly many causes of injury or damage. He was not concerned with the identification of the predominant cause.

 

Conclusion

38. For those reasons, the only possible result in law on the (essentially undisputed) facts found by the tribunal of 28 October 2009 was that service was not the predominant cause of the claimant’s injury so as to satisfy the condition of entitlement in article 7 of the AFCS Order.  Whether the analysis is that the tribunal’s error of law in the interpretation of article 10 was

therefore not material to the result or that it does not justify the exercise of the discretion under section 12(1) of the Tribunals, Courts and Enforcement Act 2007 to set aside its decision involving an error of law, the claimant’s appeal must be dismissed.

 

 

 

 

 

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal

 

Date:  12 May 2011