SV v Secretary of State Defence (AFCS)

Factual and Procedural Background

The claimant, born in 1987, entered service with the Royal Marines in 2008 and sustained serious injuries during a swimming incident off a beach in Gran Canaria in January 2010. The injuries included fractures and incomplete tetraplegia. The claimant had been ordered to participate in an adventurous training expedition, during which the accident occurred. The First-tier Tribunal (Liskeard) decided in June 2012 that the claimant's injury was not caused by service, rejecting the claim for benefits under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (AFCS Order 2005). The claimant appealed to the Upper Tribunal, which found errors of law in the First-tier Tribunal's decision and set it aside, remitting the case for reconsideration.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law by focusing solely on whether the claimant was on or off duty at the time of injury rather than applying the correct test of causation under the AFCS Order 2005.
2. The interpretation and application of article 7(2) of the AFCS Order 2005 regarding when injury is caused wholly or predominantly by service.
3. The meaning and effect of article 10(1) and (3) concerning injuries sustained during adventurous training courses or expeditions and the exclusion of free time or social events.
4. Whether the claimant's injury occurred during free time under article 10(3), thus excluding entitlement, or whether service was the predominant cause under article 7.
5. The proper exercise of the Upper Tribunal's powers under section 12 of the Tribunals, Courts and Enforcement Act 2007 in relation to setting aside or remaking the First-tier Tribunal's decision.

Arguments of the Parties

Appellant's Arguments

• The First-tier Tribunal erred by concentrating on the on duty/off duty distinction rather than the statutory test of causation under article 7 of the AFCS Order 2005.
• The claimant was ordered to participate in the adventurous training and the injury did not occur during free time as defined in article 10(3).
• There was material before the tribunal to conclude that the injury was caused and predominantly caused by service.
• New evidence, including witness statements, was available that could shed further light on the issues of causation and free time.
• The Upper Tribunal should set aside the First-tier Tribunal's decision and remit the case for reconsideration rather than uphold flawed reasoning.

Respondent's Arguments

• The First-tier Tribunal erred in law by focusing on duty status but this error was not material because the injury was not caused or predominantly caused by service.
• The injury occurred during free time associated with the adventurous training expedition as per article 10(3), excluding entitlement under article 10.
• The risk of injury was a risk run by the general public at the beach and thus not attributable to service.
• The Upper Tribunal should exercise discretion under section 12(2)(a) of the 2007 Act not to set aside the First-tier Tribunal's decision.
• The claimant would suffer no disadvantage from the First-tier Tribunal's decision standing as the proper legal basis for no entitlement would be clarified in the Upper Tribunal's decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
EW v Secretary of State for Defence (AFCS) [2011] UKUT 186 (AAC), [2012] AACR 3	The fundamental test under the AFCS Order 2005 is whether injury was caused and predominantly caused by service, not merely whether the claimant was on duty.	Used to correct the First-tier Tribunal's narrow focus on duty status and to clarify that article 10 provides inclusions within the meaning of service but does not exclude claims outside its scope if causation under article 7 is established.
R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982	Errors of law must be material to affect the outcome; immaterial errors do not justify setting aside decisions.	Considered in discussing whether the errors identified were material and whether the Upper Tribunal should set aside the First-tier Tribunal’s decision.
Secretary of State for Defence v Rusling [2003] EWHC 1359 (QB)	An appeal must be confined to the ground on which the decision was made and notified to the claimant.	Applied to establish the special context of appeals under section 5A of the Pensions Appeal Tribunals Act 1943 and the scope of the Upper Tribunal’s discretion under section 12 of the 2007 Act.
BB v South London & Maudsley NHS Trust & MoJ [2009] UKUT 157 (AAC)	Where a new hearing has been arranged, setting aside a flawed decision may not provide practical benefit and discretion may be exercised not to do so.	Referenced in considering whether it was appropriate to set aside the First-tier Tribunal’s decision in the present case.
Hampshire County Council v JP (SEN) [2009] UKUT 239 (AAC), [2010] AACR 15	Discretion to not set aside flawed decisions can be exercised where circumstances have changed making setting aside unnecessary.	Used to illustrate the exercise of discretion but distinguished from the present case where the decision is once and for all.
KF and others v Birmingham and Solihull Mental Health Foundation Trust and another [2010] UKUT 185 (AAC), [2011] AACR 3	Not setting aside flawed decisions may be justified when relevant orders have been executed and practical benefit is absent.	Considered in the context of the practical effects of setting aside or not setting aside tribunal decisions.

Court's Reasoning and Analysis

The Upper Tribunal identified multiple errors of law by the First-tier Tribunal, primarily its overly narrow focus on whether the claimant was on or off duty at the time of injury rather than applying the statutory test of causation under article 7(2) of the AFCS Order 2005. The tribunal failed to properly consider the legal effect of article 10, which includes certain adventurous training activities as service, and the exclusion of free time under article 10(3). The tribunal also did not adequately explain how it linked duty status to the statutory provisions.

The Upper Tribunal emphasized that the test of causation requires injury to be caused, or predominantly caused (more than 50%), by service, not simply that the claimant was on duty or performing a service job at the time. The tribunal’s failure to assess the evidence against this test, including relevant factors such as the claimant’s need to maintain physical fitness and hygiene and the context of the expedition, constituted a material error.

The Secretary of State’s argument that the injury was the manifestation of a risk run by the general public was rejected as an overbroad interpretation of precedent, which requires case-by-case consideration. The Upper Tribunal also considered the statutory framework governing appeals and the discretion under section 12 of the Tribunals, Courts and Enforcement Act 2007, concluding that the errors were material and that the decision should be set aside and remitted for reconsideration.

The Court declined to give detailed directions on the precise application of the predominant cause test, recognizing the complexity and the need for fact-specific assessment by the new tribunal. It also noted the availability of new evidence and the potential for further evidence in related civil proceedings, underscoring the need for a fresh hearing.

Holding and Implications

The Upper Tribunal held that the First-tier Tribunal's decision of 15 June 2012 involved errors on points of law and accordingly set aside that decision.

The case was remitted to a new First-tier Tribunal within the War Pensions and Armed Forces Compensation Chamber for a complete rehearing. The new tribunal is directed to apply the correct legal framework concerning the test of causation under article 7 and the interpretation of article 10, including the exclusion of free time under article 10(3). The new tribunal is not bound by any previous findings or conclusions and must consider all evidence afresh, including new evidence made available since the original hearing.

No new precedent was established by this decision beyond clarifying the application of existing statutory provisions and appellate principles. The direct effect is to allow the claimant a renewed opportunity to have the claim properly considered under the correct legal test.