Armed Forces Compensation Scheme 2011 – article 11 – meaning of hazardous environment
The claimant, a soldier, sustained injuries after he went to sit on a wall, lost his balance and fell whilst waiting for a bus to take him to a training destination in Israel. His claim for benefit under the Armed Forces Compensation Scheme (AFCS) was rejected, initially on the basis that his injuries had not been caused by service and on review that the exclusion in article 11(3) of the AFCS, for injuries sustained by slipping, tripping and falling applied, and as the activity was not of a hazardous nature or in a hazardous environment the exceptions in article 11(4) were not engaged. The First-tier Tribunal (F-tT) upheld the claimant’s appeal holding, amongst other things, that the exceptions in article 11(4) did apply as the claimant had been engaged in a sensitive service activity within Israel which was therefore a hazardous environment, given the nature of the operation. The Secretary of State for Defence appealed against that decision arguing that the F-tT had erred in law in deciding that the whole of Israel was a hazardous environment and also by failing to give reasons for its conclusion that the claimant’s injuries were caused by service in accordance with article 8 of the AFCS.
Held, allowing the appeal, that:
the underlying purpose and intention of the AFCS as a whole was to establish an entitlement to benefit based on a service cause, as opposed to breach of duty or fault, and the exceptions in article 11(4) to the general exclusion of slipping, tripping and falling accidents were intended to capture “non-routine” activities: JM v Secretary of State for Defence (AFCS)  UKUT 332 (AAC);  AACR 3 (paragraph 33);
the F-tT erred in interpreting article 11(4)(b) so as to conclude that the whole of Israel was a hazardous environment for the claimant. The environment in which the respondent came to be injured could not, on any sensible interpretation of the 2011 AFCS, be classified as “hazardous”, there being nothing about the activity of a soldier waiting for a bus more likely to lead to a slip, trip or fall than if a civilian had been participating in the same activity in ordinary, or non-service, circumstances (paragraph 34);
the F-tT failed to support with adequate reasoning its conclusion that the respondent’s injuries were predominantly caused by service. It should have followed the steps set out in JM before considering whether the exclusions in article 11(3) and 11(4) applied in this case (paragraph 38);
the test under article 8(1) and (2) was not whether the claimant was in service or was on duty at the time of his fall but whether his injury was caused and predominantly caused by service. The claimant failed to satisfy that test because at the time of the accident he was doing something necessary for him to carry out his job but he was not yet doing it. The fact that he was in Israel on a training exercise as a member of the Armed Forces could not be regarded as anything other than the setting for what occurred – not the cause of his injury (paragraph 44 to 45);
even if the claimant’s injuries had been caused by service, his claim for benefit would still have failed because none of the exclusions in article 11(4) applied: he was not engaged in an activity of a hazardous nature, in a hazardous environment or actually taking part in training (paragraphs 46 to 47).
The judge set aside the decision of the F-tT and re-made it to the effect that the claimant’s appeal against the decision of the Secretary of State for Defence was dismissed