Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant's appeal to the Upper Tribunal is disallowed. The decision of the Leeds First-tier Tribunal dated 27 July 2010 did not involve any errors on points of law and therefore stands.

 

 

REASONS FOR DECISION

 

1. The claimant’s service in the army in a Signals Regiment began on 2 December 1999. He was still in service when he made the claim under the Armed Forces Compensation Scheme (AFCS) on 27 April 2009, having then reached the rank of corporal. He is still in service. His claim was expressly made under the AFCS, which, in contrast to the scheme under the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (the SPO) and previous schemes, does not make it a condition of entitlement that the claim be made after service has terminated. For that reason, the claimant could not have made a successful claim under the SPO, although the majority of his service exposure to paints and other substances used in vehicle painting had occurred before 6 April 2005. The SPO applies to death or disablement due to service before 6 April 2005. The Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (the AFCS Order) applies, in disablement cases, to injuries caused (wholly or partly) by service where the cause of the injury occurred on or after 6 April 2005 (article 7(1)) or to injuries made worse by service on or after 6 April 2005 (article 8(1)). By virtue of article 34(4) of the SPO, where a claim for injury or death benefit under the AFCS Order has been refused, the Secretary of State for Defence may treat the claim as a claim under the SPO, but that power cannot be exercised when the AFCS claim was made during the claimant’s service (article 34(5)). I come back in paragraphs 24 to 27 below to some of the differences that there would be if the claimant’s service here terminated and he then made a claim under the SPO on the basis of exposure before 6 April 2005.

 

2. The claimant was given permission to appeal to the Upper Tribunal on 29 November 2010 by the President of the War Pensions and Armed Forces Chamber of the First-tier Tribunal. In his UT1 notice of appeal the claimant requested an oral hearing of the appeal. In his reply to the written submission dated 26 May 2011 on behalf of the Secretary of State he stated that he was awaiting a reply from the Prime Minister to a letter before saying whether he wanted an oral hearing. After waiting a while for anything more definite, I instructed the Upper Tribunal (AAC) office to write to the claimant to ask him if he was in a position to make a definite request one way or the other or, if not, to explain what difference any reply from the Prime Minister could make. The letter said that if there was no reply, I was minded to make a decision on the basis of the documents already on file. In his reply dated 23 August 2011 the claimant said that there was no point at the present in having an oral hearing, going on to make points about what he sees as the justice of his case, which I return to below. In those circumstances, and as the claimant has understandably not engaged with the particular point of law raised by the Chamber President when giving permission to appeal, I am satisfied that a decision can properly be made without an oral hearing.

 

3. The claimant was diagnosed with anaplastic T-cell lymphoma, a type of non-Hodgkin’s lymphoma, in December 2007, after he had first started to feel ill in October 2007 while on deployment in Afghanistan. He immediately started chemotherapy followed by radiotherapy and a bone marrow transplant, which seems to have had many good results, but not of course without some serious consequences. In his claim he referred to lung damage as a result of the treatments and numbness in the fingers and toes. In answer to the question about why he thought his illness was caused by service he wrote:

 

“There are several theories for my illness. Most doctors and experts say carcenogenics (ie paint etc) over the years in work have played a part.”

 

The claimant’s commanding officer, a major, wrote the following on 19 June 2009 in answer to a question from the Service Personnel & Veterans Agency about the kinds of paint that he had been exposed to during service and about how any exposure had occurred:

 

“[The claimant] has been subject to various paints etc mainly in the use of vehicle painting many of these are known to contain carcinogenic substances. He has worked with these paints over the last 12 years at his units. [The claimant] also spent 12 months at 3(UK) Div, Bulford, in accommodation that contained asbestos.”

 

Service medical records were also obtained.

 

4. The decision given on 2 September 2009 was that the claimant was not entitled to an award under the AFCS. That decision was based on the opinion of a medical adviser and the terms of the September 2008 Synopsis of Causation on Chronic Lymphoproliferative Disorders, the conclusion of which was summarised as being that the cause of non-Hodgkin’s lymphoma was not known and that possible occupational links were not supported by any consistent studies. There was said to be no firm biological evidence to support a link between any substances and lymphoproliferative disorders. As the cause of the claimant’s illness was not known, it was concluded that on the balance of probabilities his claimed condition was not wholly or partly due to service on or after 6 April 2005.

 

5. The claimant asked for a reconsideration, saying, among other things, that it was well-documented that he was made to use carcinogenic substances in his work and that no-one could say that those products were or were not the cause of his cancer. After that was rejected, for the same reasons as before, the claimant appealed. He submitted that there was more chance of the army having caused his cancer than not, as he handled cancer-causing materials in the last 12 years, as confirmed by his commanding officer. He also submitted that he had read many case studies showing that this could be a cause of his condition. He asked for full case-notes from Dr Munro at the Department of Haematology, York Hospital, to be obtained. That was done. Although they give a very full picture of the course of his treatment, they contain nothing, as far as I can see, suggesting any evidence or opinion about the cause of the claimant’s illness.

 

6. The claimant attended the hearing on 27 July 2010 without any representative. I have the benefit of copies in the papers before me of records of proceedings kept by the tribunal judge and, I think, the service member of the tribunal. They show that the claimant referred in particular to the effects of benzene (not benzine, as it was spelled in both those documents), which as far as I can see had not been specifically mentioned before. He suggested that benzene was in 90% of the products used by the army (presumably in relation to his sort of duties) and, in particular, in camouflage paint and paint solvents. In answer to a question about his duties, he explained that as a systems communication technician he would look after his own vehicle, including painting it and polishing it. Spray-painting would often be done in an enclosed space, protected from public view. The claimant said that he was not provided with gloves, masks or goggles, but bought his own goggles. He further submitted that there had been many studies showing that benzene caused cancer. He produced a print-out of the Wikipedia entry on benzene. This was copied for the tribunal, who plainly took it into account, and should have been kept with the tribunal papers. Unfortunately, I cannot find any copy in the documents sent to the Upper Tribunal (AAC) by the First-tier Tribunal administration. However, I have been able to consult the Wikipedia entry on the internet and I am satisfied after identifying some of the passages quoted in the tribunal’s statement of reasons, that I have been able to see what was put before the tribunal.

 

7. The tribunal disallowed the appeal. Its reasons, after accepting the exposure mentioned in the report of 19 June 2009 from the claimant’s commanding officer, were as follows:

 

“(d) As part of his case today the appellant has put forward an extract (entitled `[Benzene]’) from the Internet encyclopaedia `Wikipedia’. This extract refers to the possible adverse health effects from vapours from products such as `glues, paints, furniture wax and detergents…’ although the sentence goes on to add that many of these substances have been modified or reformulated since the late 1970s to eliminate or reduce the benzene content. The extract also refers to the possibility of `long-term exposure to excessive levels of Benzene in the air’ being linked to leukaemia and other blood cancers. However, we note that the appellant’s diagnosed condition is not a leukaemia-type cancer, but rather a lymphoma. We find that the extract under the title `Benzene’ provides little, if any, support for the appellant’s case.

 

 (e) We have considered the evidence of the `Synopsis of Causation’ entitled ` Chronic Lymphoproliferative Disorders’ (dated September 2008). This document is detailed and, in our judgment, authoritative. It is based on numerous peer-reviewed medical research papers. We accept [it] as representing the up-to-date medical consensus relating to the appellant’s condition.

 

As to the aetiology of the condition Section 3 deals firstly with the relevance of inherited susceptibility and immunodeficiency due to [past] medical history. These have little immediate relevance to the appellant’s case. The Section headed `occupational links’ is, however, significant. As to occupations involving contact with herbicides, pesticides and solvents there is `no firm biological evidence … to support causal links between such substances and lymphoproliferative disorders’. As far as the petrochemical industry is concerned we are informed that `at least four studies have shown a statistical excess of NHL (Non-Hodgkins Lymphoma) within the petrochemical industry. However, two cohort studies were negative, indicating that the risk is likely to be weak or of uncertain significance’. Finally, there is reference to workers in other industries (ie aside from agriculture and petrochemicals). Such studies as have been carried out to produce little support for the suggestion of any connection between NHL and working in the other industries mentioned.

 

 (f) In our view, the whole of the evidence shows that the appellant’s service occupation involved exposure to substances such as paints and petrol. However, the evidence before us indicates that the aetiology of the appellant’s condition is essentially unknown. The onus of proof is upon the appellant to satisfy the Tribunal on the balance of probabilities that the appellant’s condition is causally linked to service. That onus remains undischarged. The question of the condition being made worse by service indicates to us that the issue of worsening does not arise.

 

 (g) Since the appellant has failed to show that the claimed condition was either predominantly caused or made worse by service, this Appeal must be dismissed.”

 

8. The claimant applied for permission to appeal on the grounds that (a) although he had had evidence with him on 27 July 2010 showing the links from his cancer to the army, he was told that he needed to have supplied that at an earlier date, and was only allowed to put in one document; and (b) his commanding officer’s report that he had worked with cancer related substances should have been treated as conclusive that his cancer was the army’s fault.

 

9. When giving permission to appeal, the Chamber President said that he would not review the tribunal’s decision, because he was not at that stage satisfied that it was necessarily erroneous in law, but gave permission for the following reason:

 

“Given the evidence (albeit somewhat inconclusive) at paragraph 3.4.1 of the synopsis of causation that contact with solvents increases the risk of anaplastic T-cell lymphoma, it is arguable that the tribunal ought to have applied the approach taken by the House of Lords in McGhee v National Coal Board [1973] 1 WLR 10 in order to decide whether [the claimant] had established on the balance of probabilities that there was a causal connection between his injury and service.”

 

10. The written submission dated 26 May 2011 on behalf of the Secretary of State for Defence set out a summary of the effect of the decision in McGhee, but did not, with respect, specifically grapple with the point raised by the Chamber President when submitting that the state of the evidence was such that a causative link between certain solvents and petrochemicals and NHL had not been shown on the balance of probabilities. The claimant has continued to maintain his case that his commanding officer’s evidence was conclusive.

 

Discussion

11. I have no doubt that, leaving aside the Chamber President’s point, the decision of the tribunal of 27 July 2010 was one that it was fully entitled to reach on the evidence and was clearly and adequately explained.

 

12. In relation to the commanding officer’s evidence in his reply of 19 June 2009, the tribunal entirely accepted that that established that the claimant had been exposed in the course of his service both after and before 6 April 2005 paints and other materials that contained carcinogenic substances. However, there are severe limitations on how far that evidence could in itself take the claimant’s case and in my judgment the tribunal was right not to regard it as in any way affecting its analysis of the state of the medical consensus about possible causes of lymphoproliferative disorders set out in the synopsis of causation. First, the word “carcinogenic” is very general in scope. Cancer covers a very wide range of different types of disease, with different causes and with very different states of current scientific knowledge about causative factors. Thus, merely establishing that one of the substances to which the claimant was exposed in service had a known causative link with one particular type of cancer would not help the claimant’s case unless the link was with the particular disease that he developed, anaplastic T-cell lymphoma. Second, the word “carcinogenic” is often used very loosely, especially in newspapers and other media and in popular discussion. It is often used when the evidence or research about some substance has gone no further than suggesting an association with an increased incidence of some kind of cancer, rather than establishing any scientific basis for a causal connection. Third, the commanding officer carefully limited his evidence to the area about which he would have had personal knowledge and expertise – the kind of substances to which the claimant would have been exposed in his service. He said nothing about whether he thought that that exposure could or did have any influence on the development of anaplastic T-cell lymphoma in the claimant. Thus in my judgment the commanding officer’s evidence could not possibly have been regarded even as support for the claimant having been exposed in service to a substance with any association with the particular disease developed by the claimant, let alone for any of those substances having been a cause of the development of that disease.

 

13. In relation to the evidence about benzene, the tribunal’s approach cannot be faulted in law. Even on the assumption that the claimant would have been exposed after 6 April 2005 to some substances which still contained benzene, the Wikipedia entry did not support any association or causal relationship between exposure to benzene and the particular disease developed by the claimant. The claimant has not provided copies of the other documents that he says he was not allowed to put in on 27 July 2010 or said what they contained. In those circumstances it cannot be said that there was any breach of the principles of natural justice and of a fair hearing in the tribunal proceeding to make a decision on the evidence it had. In addition, it seems to me that the claimant would have put in what he thought the most helpful of the documents, yet the Wikipedia entry did not in fact help him. And since the tribunal accepted that in evidence and took it into account I cannot see why it would have refused to allow in other documents from the claimant if they had been relevant.

 

14. Accordingly, the tribunal was left with the evidence of the synopsis of causation. It concluded that that showed that the aetiology (ie the causative process) of the disease developed by the claimant was essentially unknown. On that basis, the only possible decision was that the claimant’s appeal had to be disallowed. Article 50 of the AFCS Order provides that the “burden of proving any issue under this Order shall lie on the claimant”. Article 51 provides:

 

“The standard of proof applicable in any decision which is required to be made under this Order shall be the balance of probabilities.”

 

Thus, as the First-tier Tribunal recognised, to succeed the claimant had to show that it was more probable than not that service on or after 6 April 2005 was the predominant cause of the condition in question. If the aetiology of the condition is unknown, that burden cannot be discharged. Those provisions on the onus and burden of proof mark one of the major differences between the AFCS Order and the SPO. I return to the SPO in paragraphs 24 to 27 below.

 

15. Finally, I must come to the point raised by the Chamber President, which was in essence to ask whether any general principles about the nature of causation to be derived from the case of McGhee, a case of a claim for damages for personal injury at common law, and subsequent cases could take the present case out of the category of a disease of unknown aetiology. I conclude that they do not.

 

16. What happened in McGhee was that a workman developed dermatitis after being sent to empty out some brick kilns. He sued his employers, who conceded that the disease was attributable to effect of brick dust on his skin. But there was no negligence or breach of duty on the part of the employers in ordering him to empty the brick kilns, only in failing to provide him with adequate washing facilities. The courts below decided that the workman’s action failed because he had not shown on the balance of probabilities that the breach of duty had caused or materially contributed to his injury. He might have developed dermatitis simply from the exposure to dust while working, even if he had been able to wash thoroughly at the end of his shift instead of having to cycle home caked with dust and sweat. The House of Lords differed and held, according to the headnote in the Weekly Law Reports, that:

 

“though the medical evidence for the workman could not establish that, had he been able to wash immediately in showers provided by his employers, he would not have  contracted the disease, yet, in the absence of complete medical knowledge of all the material factors relating to the disease, there was no substantial difference between materially increasing the risk of injury and making a material contribution to the injury and, accordingly, the workman was entitled to recover damages from his employers in respect of their admitted breach of duty for an injury within the risk which they had created.”

 

17. One can therefore see why the Chamber President considered that there was an issue to be debated when paragraph 3.4.1 of the synopsis of causation, albeit under the heading “Agriculture” reported that:

 

“Various occupations related to agriculture have been associated with an increased risk of lymphoproliferative disease leading to suggestions that contact with herbicides, pesticides and solvents could be important determinants of risk.”

 

Although paragraph 3.4.2 also reported studies showing a statistical excess of NHL in the petrochemical industry, other studies there were negative and, in relation to agriculture, it was stated that various studies had not been consistent and there was no firm biological evidence to support a causal link. Thus, even if it could be presumed that some substance to which the claimant here had been exposed in service was within the categories covered by agriculture and the petrochemical industry, the evidence of an increased risk was slight. But an argument could possibly be raised on McGhee and needs to be considered.

 

18. In my judgment that argument does not work, for a number of reasons. First, the situation here seems to me not to be analogous to that in McGhee, as explained in a later House of Lords case, Wilsher v Essex Area Health Authority [1988] AC 1074. There there had been negligence in attaching a device to monitor the amount of oxygen being provided to a premature baby in a special care unit. The baby later developed retrolental fibroplasia (RLF), seriously damaging his sight. There was evidence that that could be caused by excess oxygen in the early days after birth, but also evidence that it could be caused by several other conditions that the baby was suffering from. A passage from the judgment of Browne-Wilkinson V-C in the Court of Appeal that was approved by the House of Lords included the following:

 

“In the McGhee case there was no doubt that the [workman’s] dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on [his] skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.

 

In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (eg excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. … There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. …

 

The position, to my mind, is wholly different from that in the [McGhee] case, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis.”

 

The House of Lords therefore held that the trial judge had been wrong to rely on McGhee to avoid having to determine the issue of causation on the evidence. It also remarked that McGhee should not be regarded as laying down any new principle of law, merely as an example of a robust and pragmatic approach to what could inferred from the primary facts to reach the conclusion that the workman had proved causation.

 

19. That last explanation of McGhee was rejected by the House of Lords in Fairchild and others v Glenhaven Funeral Services Ltd [2002] UKHL 22 [2003] 1 AC 32, where the decisions in McGhee and in Wilsher were subjected to the most detailed and exhaustive analysis, along with many other authorities from the common law world and from other parts of Europe. It was accepted that McGhee had extended the law. The decision was in essence that the exception to normal principles covered the circumstances in Fairchild, where the plaintiff contracted mesothelioma after working for a number of employers who had exposed him in breach of a legal duty to asbestos dust and where it was impossible to know during which employment a fibre of asbestos had started off the disease process, so as to impose liability on any one or more of the employers who had been in breach of duty. However, without adding the dozens of pages to the present decision that would be taken up by a full discussion of all the speeches in Fairchild, it is plain that all of their Lordships considered that the exception to the normal rule about proof of causation that had been opened up by McGhee had to be kept within carefully defined bounds. For instance, Lord Bingham made it a condition of imposing liability on the one employer against whom each plaintiff had taken action that any cause of his mesothelioma other than inhaling asbestos dust at work could effectively be discounted. There was also a general acceptance of the importance of the context that the defendants had been in breach of a duty specifically intended to protect employees from the risk of developing disease and to create a civil right to compensation for an injury relevantly connected to the breach. There was an acceptance of the correctness of the decision in Wilsher. The only one of their Lordships who cast doubt on the reasoning of Browne-Wilkinson V-C was Lord Hoffmann, who acknowledged in the later case of Barker v Corus (UK) Ltd [2006] UKHL, [2006] 2 AC 572 that he had been wrong to do so, adding this helpful explanation at [24]:

 

“If the distinction between Fairchild and Wilsher does not lie in the fact that in the latter case a number of very different causative agents were in play, I think it would be hard to tell from my Fairchild opinion what I thought the distinction was. In my opinion it is an essential condition for the operation of the exception [in McGhee] that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way. It may have been different in some causally irrelevant respect, as in Lord Rodger's example of the different kinds of dust, but the mechanism by which it caused the damage, whatever it was, must have been the same. So, for example, I do not think that the exception applies when the claimant suffers lung cancer which may have been caused by exposure to asbestos or some other carcinogenic matter but may also have been caused by smoking and it cannot be proved which is more likely to have been the causative agent.”

 

20. The circumstances in the present case seem to me to be much more closely analogous to those in Wilsher than to those in McGhee. There is no evidence currently to implicate exposure to any particular substance, either in service or out of service, as opposed to the effects of some past infection or an inherited susceptibility or simply the luck of the draw, as a cause of the disease in the claimant’s case. Thus, just as in Wilsher, there is no basis for any inference on the basis of an increase in risk that service made a material contribution to the development of the claimant’s anaplastic T-cell lymphoma. To use Lord Hoffmann’s words in Barker, there are many other potential causative agents, apart from service, that would operate in a different way from exposure to the substances relied on by the claimant. There is therefore no room for an exception from normal principles on the proof of causation.

 

21. The second reason why the McGhee argument does not work is that the legal context is significantly different. As emerges from the discussion above, at common law all the plaintiff has to do is to prove, on the balance of probabilities, that a breach of duty by the defendant made a material contribution to his or her injury. It is not a barrier to that being proved if there were other causes of the injury or even if some other cause or causes were more potent than the defendant’s breach of duty, providing that the breach made at least a material contribution in causal terms. The test under the AFCS Order is much stricter. Article 7(2) provides:

 

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

 

Similar provision is made in articles 8 and 9 about cases involving worsening of non-service injuries and death. Even if (which I have rejected above) there could be some inference on an analogy with McGhee in the absence of positive evidence that service was one of the causes of the claimant’s disease, that would fall a long way short showing that it was more likely than not that service was the predominant cause. Further, as I said in paragraph 35 of EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC), to be reported as [2012] AACR 3:

 

“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 [imposing civil liability], but looking at the meaning of causation as part of the rule as to entitlement to and responsibility for the payment of compensation.”

 

One of the special factors emphasised in Fairchild is therefore not present here.

 

22. Accordingly, the tribunal of 27 July 2010 did not go wrong in law in any way in failing to consider the point raised by the Chamber President.

 

Conclusion

23. The upshot of the discussion above is that the decision of the tribunal of 27 July 2010 involved no error on a point of law and that the claimant’s appeal against the decision must be dismissed.

 

Postscript

24. It may be relevant for the future to note that the approach to diseases of unknown aetiology under the SPO can be radically different from that discussed above.

 

25. If a claim for a pension in relation to disablement due to service before 6 April 2005 were to be made within seven years of the claimant’s service terminating or he was medically discharged (so that a claim would not be necessary), then he would have the benefit of the particularly favourable onus of proof in article 40 of the SPO. Under that article, provided that the person concerned has not become entitled to benefit under the AFCS Order for the same injury, there is under article 40(3) no onus on the claimant to prove that he fulfils the condition that the disablement is due to an injury which is either attributable to or aggravated by service and is to be given the benefit of any reasonable doubt. Further, where an injury that led to the person’s discharge or death was not noted in a report of a medical examination on commencing service, those conditions are to be taken as fulfilled unless the evidence shows that they are not (article 40(4)). Those provisions, where they apply, have been accepted as placing on the Secretary of State for Defence the onus of proving beyond reasonable doubt that the injury was not attributable to or aggravated by service. Thus, if the aetiology of a disease is unknown or little known, it may well be the case that the Secretary of State cannot discharge that onus and that an award under the SPO must be made.

 

26. The position was stated authoritatively by Edmund Davies J in Coe v Minister of Pensions and National Insurance [1967] 1 QB 238 in laying down these general rules (I have omitted the cases referred to and up-dated the references to what was at the time a Royal Warrant):

 

“Rule 1. If the medical evidence before the tribunal is simply to the effect that nothing is known about the cause of the disease, the presumption of entitlement in the applicant’s favour created by article [40(3) and/or (4) of the SPO] is not rebutted and an application for a pension on the ground of attributability must succeed … .

Rule 2. But if there is evidence before the tribunal to the effect that, although its aetiology is unknown, the disease is one which arises and progresses independently of service factors and the tribunal is convinced thereby and accordingly refuses a pension, this court will not interfere … .

Rule 3. On the other hand, it will not suffice to rebut the presumption in the applicant’s favour to adduce evidence merely to the effect that `in the light of modern medical knowledge it cannot be accepted that service factors are associated in any way with the onset of the disease or that any circumstances of service hastened its course’. For evidence of that nature does not establish that service factors played no part, but merely declines to accept the positive assertion that service factors played a part in causing the disease. In such circumstances there would have to be an award on the basis of attributability … .”

 

The judge made some further helpful comments, especially about his rule 2 and need for the evidence in the Minister’s favour to be very clear and cogent, but I shall not set them all out.

 

27. I stress that I am certainly not saying that any claim that the claimant here might in the future make or be treated as making under the SPO would be bound to succeed. That would have to depend on a careful analysis on behalf of the Secretary of State of the evidence then available and, if the case went to appeal, by a First-tier Tribunal. There is also the new factor that under the SPO the connection must be to service before 6 April 2005 and the claimant here did not start to feel ill until October 2007, although of course the majority of his service

exposure to the substances he considered caused his disease was prior to that date. I merely draw attention to the significant difference in the applicable legal provisions from those under the AFCS.

 

 

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal  

 

Date: 19 October 2011