51茶馆

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Judicial Summary

The First-tier Tribunal erred in law in failing to give adequate reasons for rejecting the appellant鈥檚 case that he had been 鈥渙rdered鈥� to have the dental treatment that had been one of the causes of his myofascial/atypical facial pain. A conclusion that the appellant had not been given an enforceable order to have the treatment would in any event not be sufficient to determine whether the appellant鈥檚 consenting to the treatment was 鈥榗aused by service鈥� or not for the purposes of Article 8 of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (SI 2011/517) (鈥渢he AFCS Order鈥�). The assessment of whether or not something is 鈥榗aused by service鈥� is more nuanced than simply whether the thing that causes the injury is a result of someone following an enforceable order or not. In this case, it required, first, adequate findings of fact to be made about what happened between the appellant and his officer in advance of that appointment. Secondly, taking full account of the guidance in JM v Secretary of State for Defence (AFCS) [2015] UKUT 332 (AAC), [2016] AACR 3, the Tribunal needed to consider whether or not the appellant鈥檚 consenting to undergo the treatment in the light of whatever happened between him and his officer was 鈥渃aused by service鈥�.

The Tribunal also erred in law in perversely concluding that there was 鈥渘o evidence鈥� that the stress that had contributed to the appellant鈥檚 pain was work-related. There was ample evidence in principle as to that causal link. The Tribunal needed to consider that evidence and provide adequate reasons for the conclusions it reached on the issue in the light of the evidence. The Tribunal would need when making that assessment at the remitted hearing to apply the guidance in JM that the AFCS Order provides for a no-fault scheme and there is no 鈥渢hin skull鈥� exclusionary rule, so that stress may be 鈥渃aused by service鈥� even if there has been no breach of duty by the forces or the injury is not one that would be suffered by someone of ordinary fortitude.