The Secretary of State for Defence v CJP [2025] UKUT 289 (AAC)

“2. The Respondent served in the Royal Air Force from January 2008 to 29 May 2020. He was discharged at his request. He injured his hand on 6 November 202[0] whilst deemed no longer ‘in service’ but whilst he was serving a custodial sentence at the Military Corrective Training Centre (MCTC). So, the question for us to determine was whether the injury could be said to have been caused by service. ... 5. The Respondent served in the Royal Air Force from 23 January 2008 until 29 May 2020. He had completed his 12 years’ engagement and was still serving when he took premature voluntary release; he gave short notice and was discharged. He retains a Reserve liability for 6 years from the date his Regular service ended but has not been recalled and thinks it very unlikely that he will be. Prior to his discharge, court martial proceedings had started against him and on 15 October 2020 he was Court Martialled. He pleaded guilty to the charge of ‘fraud by abuse of position’ and was sentenced to an immediate custodial sentence. The extract from the sentencing remarks stated “We considered very carefully whether we could dispose of this matter other than by way of an immediate custodial sentence but unfortunately on the evidence presented to us we do not consider there to be sufficient grounds such as to justify a community disposal nor do we consider there to be a basis which could properly lead us to the conclusion that a suspended sentence would be appropriate in this case. We fully acknowledge the impact that custody will inevitably have upon you and we have taken on board what we have already described as very positive character references but having considered the matter with care we have concluded that this offence Is so serious that only an immediate custodial sentence can be justified And the least possible sentence we can impose, having regard to the seriousness of these offences, adopting a proportional approach and applying the principle of totality, is one of 27 months custody on each of charges one, two and three each to run concurrently with another. Taking into account Your guilty plea and giving you full credit for the same we reduce that to 18 months and because it is less than two years, we are going to direct the sentence will be served In MCTC Colchester ... As I stated, this sentence will be served in MCTC Colchester where, aside from being a benign environment than that that you would otherwise encounter in the civilian prison system, it has in place robust systems for dealing with those who suffer from mental health issues and overall we do consider that there is some limited scope here for rehabilitation, which is an important principle in sentencing. But the Board is firmly of the view that this would be best served by you being given the opportunity to effectively reboot and press the reset button Whilst under close supervision and with the support of the team in Colchester.”

“The principal function of MCTC is to detain personnel both male and female, of the three services and civilians subject to service discipline acts, in accordance with the service custody and service of relevant sentencing rules 2009. The MCTC can hold up to 284 service personnel who have been sentenced to periods of detention up to two years or those in safe custody. There are three categories of detainee: A Company – Service Personnel under Sentence (DUS) serving a sentence on completion of which they will remain in the Services … D company - Service Personnel under Sentence (DUS) serving a sentence on completion of which they will be discharged from the Services. Service Custody Platoon (SCP) - Safe Custody Personnel (SCP) • Whilst under investigation. • Awaiting trial • Awaiting transfer to HM Prison, having been sentences to imprisonment by Courts-Martial. • DUS undergoing periods of punishment (Close Confinement) as awarded by the Commandant (Comdt) MCTC. FUNCTIONS D Company To instruct and guide DUS in order that they develop their potential for self-sufficiency and responsible citizenship, by providing the appropriate rehabilitation training as directed by the I of ME (A) by: - Trade training courses - Project work in the local and wider community - Farm Husbandry - Resettlement - Literacy and numeracy remediation as required - Vocational training. 7. MCTC falls under the jurisdiction of the Provost Marshal (Army) in Army HQ and sits under the Field army. It is staffed by the military and all staff wear uniform. 8. The Respondent was allocated to D Company as a DUS – a detainee under sentence. It was accepted that, in accordance with the Armed Forces Act 2006, he was a Civilian Subject to Service Discipline (CSSD). That meant that whilst at MCTC he was subject to the full Armed Forces Discipline standards and sanctions. He had to obey orders and any infringement would be punished. In common with all DUS, his period of detention did not count towards a period of service so did not add on to his 12 years 4 months already served and was not treated as pensionable service. 9. Upon being sentenced on 15 October 2020, he was immediately detained, he was kept in a cell overnight at the Army Camp at Bulford where his Court Martial had taken place. He was required to report to MCTC in uniform and so had to wait whilst RAF Odiham, his former base, provided him with uniform and kit. He was taken to MCTC on 16 October where he started his sentence. The Final report from MCTC confirmed both those dates and noted his release date as 30 July 2021. He earned the maximum possible remission for very good conduct and attitude during his sentence. His details were recorded against his Service Number which he confirmed was the same as when he had been serving. 10. The Final Report recorded [94] “[the Respondent] is already discharged from HM Forces and was sentenced to 18 Months detention at Court Martial for three charges of fraud by abuse of position. Upon admission to MCTC he received instructions on the establishment and orders for all categories of detainees. He was placed in D Company, for those discharged from the Service post detention. During his employment in D Company, he was subject to daily kit inspections, offered full welfare and medical support, access to MCTC farm as well as the Education Centre. 11. He was required to wear his uniform at all times. He was told on his first day at MCTC that he was required to follow standing orders. He described being in uniform and being ordered to do something by someone else in uniform which was exactly the same as his experience whilst in service. He understood that as a civilian subject to service discipline (CSSD), he, alongside all those serving sentences at MCTC, were subject to military discipline. Any infringement was subject to the full range of Service disciplinary sanctions – he told us that any transgression would start with a penalty at the lowest end with being ‘red penned’ and being unable to earn remission for that week up to the potential for a further Court Martial. 12. For the first few weeks of his sentence, he was given a period to settle in an could not earn remission but then he described his treatment as the same as being back in basic training. He described his daily routine as having daily bed and kit inspections exactly as would have been the case whilst serving. He was required to present in uniform with his kit and bed presented as it was when he was in the RAF. At 8 am the Duty Sergeant would come to carry out an inspection and they would all have to come to attention. 13. The Respondent’s Electronic Service Medical Records (EMIS) continued to be completed post his discharge and appear to be unbroken. There are two entries for 26 May 2020, 3 days before discharge, which noted that he was about to leave service and then entries for June, July and August which noted some follow up contact about his mental health issues. When he transferred to MCTC he underwent a new patient screen at the Medical Reception Station (MRS) at Colchester on 19 October 2020 recorded on his EMIS by the Lieutenant Corporal he saw. It was noted that he was ‘already a civilian’ and needed his fitness for duties reviewing. 14. Whilst at MCTC the Respondent was on what was called a ‘light duty chit’ which meant that because of various medical issues he was excused certain duties; for the majority of his time there he was not required to march and did not do group Physical training but did his own routine in the gym. He would be given occasional details to move equipment/furniture, to sweep up and to clean and he would volunteer for extra jobs as he was keen to earn points for remission and did not want to be seen as a shirker. 15. The injury which is the subject of the appeal occurred on Friday 6 November 2020. On Fridays his work usually finished at lunchtime. They had been on parade and were instructed that 4 or 5 DUS were required to move tables and chairs from the table tennis room to an empty bedroom. He along with 3 or 4 others were marched to the room and under supervision of an Orderly were directed to move the tables and chairs. He moved a table and then came back to move a stack of chairs, as he reached down to pick them up, he misjudged the depth and his little finger and ring finger on his left hand impacted on the metal frame of one of the chairs. He described feeling as if he had ‘crunched’ his left hand and being in immediate and excruciating pain. 16. As the incident happened on a Friday afternoon, medical cover was relatively light as the GP does not routinely attend MCTC Medical Centre on Friday afternoons and he was not considered to be in need of emergency treatment. He took painkillers over the weekend and then went to see the doctor at the Medical Centre first thing on the Monday morning, 9 November. He was marked as fit for limited duties for 14 days. He was sent to hospital for an Xray, accompanied by 2 members of uniformed staff and was, in effect, guarded whilst there. It was diagnosed as a soft tissue injury. He was seen again the next day by the doctor at the medical centre and the EMIS entry noted that his left 4th and 5th fingers were strapped. By 19 [November] he was advised that even with the hand injury he could go to the gym and do bike/trainer work and low impact cardiovascular activity. 17. The Respondent made a claim for another injury, his Achilles tendon, which he said occurred during his time at MCTC. We did not have the EMIS records for that injury as it apparently occurred in May 2021 but in a decision dated 3 September 2021 the Secretary of State accepted that ‘on the balance of probabilities that the pain in (your) left calcaneal bursa was wholly caused by service.’ He was made an award at Table 9 item 35A, Level 15 on the AFCS Tariff. The Medical Adviser’s reasons are not complete in the version with which we have been provided as the Respondent supplied them to the Tribunal on the last occasion and, somewhat surprisingly, Veterans UK have chosen not to provide the complete paperwork from that decision. But from this we see that the facts established by the Secretary of State are all taken from the EMIS and refer to entries from 18 May 2021 to 21 July 2021, the period whilst the Respondent was still serving his sentence at MCTC. 18. The decision maker sought verbal medical advice and mentions only the extracts from the EMIS records as showing that although he was thought at an early stage to have Achilles tendonitis on examination the main pain was from the calcaneal bursa. The Medical Adviser considered it to be an overuse type injury and that is the award that is made ‘Overuse injury of foot or heel which has not required operative treatment.’ 19. The Respondent made a claim for his left hand/arm injury on 18 January 2022. He described the injury as occurring on 6 November 2020 when he was ‘asked to move furniture within MCTC during sentence there.’ In the further information section he set out the details of how the injury occurred which are consistent with his oral evidence to the Tribunal. 20. On 24 February 2022 the Secretary of State made a decision to reject the claim and stated, ‘after looking at all of the appropriate evidence you are not entitled to compensation under the Scheme as your injury/illness is not due to Service.’ The reasons for the Decision were stated as ‘You have claimed for an injury to your left arm/hand which you state occurred on 6 November 2020 whilst moving furniture during your sentence at MCTC Colchester. CAPS record confirms you were discharged from the Army on 29 May 2020. Electronic service medical records confirm your injury occurred in November 2020. The injury to your hand occurred after you were discharged from the Army (sic) whilst incarcerated at MCTC. The Secretary of State does not accept on the balance of probabilities that service wholly or partly caused the injury to your left hand.’ 21. The Respondent appealed that decision by an appeal form received at Veterans UK on 9 March 2022. He stated on his appeal that firstly he had had a successful claim for his Achilles dated 3 September 2021 and was unclear as to why the claim for his hand had been treated differently, Secondly, he stated that ‘MCTC is a fully uniformed service establishment and I myself was in uniform for the entirety of my time there. If the service isn’t responsible for this injury, then who is? There weren’t any civilian staff members dictating to me to move furniture around and everything else for that matter.’ 22. There was a reconsideration decision made on 19 May 2023 which maintained the original decision. The reasons for that were given as follows: ‘We are unable to revise the existing decision which rejected impact injury left hand/arm as not caused by service on or after 6th April 2005. Your initial claim attributed your impact injury left hand/arm to moving furniture on 6 November 2020 whilst under sentence at MCTC. All documents and electronic records available to us state that you were discharged from service on 29 May 2020 ... MCTC also confirmed that you were in D Company 9 those to be released to civilian life post sentence), you were classified as a CSSD (a civilian subject to service discipline and were bound by the Armed Forces Act 2006. The reason for your discharge is consistently recorded as PVR/own request. An individual has to be a member of the forces at the time of the injury in order to be eligible for an injury award Article 8 of AFCS provides that benefits are payable to a member/former member by reason of an injury caused (wholly or partly) by service. Article 2 defines “service” as “service as a member of the forces” and “forces” as the “armed forces and reserve forces”

“Breaches of discipline 43. A detainee commits a breach of discipline under these Rules if he— ... (n) without reasonable excuse fails to perform a task or negligently performs any such task ... ... Company commander’s punishments 49(1) If he finds a charge under rule 43 proved, a company commander with delegated powers may, subject to paragraph (2), impose one or both of the following punishments— (a) admonition; (b) extra military instruction not exceeding three periods of forty-five minutes each. (2) If the person charged is a civilian subject to service discipline, he may not impose extra military instruction as a punishment. (3) If more than one charge is found at the same hearing to have been proved, punishments under this rule may be ordered to run consecutively. Commandant’s punishments 50(1) If he finds a charge under rule 45 proved, the commandant may, subject to paragraphs (2) to (4), impose one or more of the following punishments— (a) admonition; (b) cellular confinement for a period not exceeding ten days; (c) extra military instruction. (2) The commandant may not impose cellular confinement along with any other punishment. (3) If the person charged is a civilian subject to service discipline, he may not impose extra military instruction as a punishment. (4) If more than one charge is found at the same hearing to have been proved, punishments under this rule may be ordered to run consecutively, but the total period of cellular confinement shall not exceed ten days”

“26. For the Secretary of State, Ms Gibson relied on the reasoning given for the decision and for upholding the decision at the post appeal reconsideration stage set out at paragraphs 21 and 23 above. In essence, a very simple proposition is advanced by the SSD that the injury has to occur in service for it to be service caused and the Respondent was not in service at the time of the injury, he was a civilian. 27. In respect of the 3/9/21 decision which gave him an AFCS award for the overuse injury which also occurred post service and whilst he was at MCTC, Ms Gibson could only say that she ‘surmised’ that was a mistake because only verbal advice was given by the Medical adviser who had not seen the first hand evidence and the decision maker had simply relied on the EMIS records being continuous. She confirmed that decision would be revisited but was awaiting the outcome of this appeal. 28. On behalf of the Respondent, Mr Evans pointed to the award for the overuse injury as confirmation that Article 8 was satisfied. He argued that the Respondent was still subject to the Armed Forces Act and having been recalled and court martialled and sentenced to custody at MCTC he was part of the Field Army Adjutant General Corps. Service provided the setting, he was on military land, he had to wear uniform and was subject to service discipline and the injury was therefore service related.”

"There is, however, in this case a contention of a more general nature, which is that the delay which resulted from the defective boilers did not in any legal sense cause the diversion of the vessel. It is said that the relation of cause and effect cannot be postulated here between the unseaworthiness and the restraints of princes or the delay. As to such a contention it may be said at once that all the judges below have rejected it ... If a man is too late to catch a train, because his car broke down on the way to the station, we should all naturally say, that he lost the train because of the car breaking down. We recognise that the two things or events are causally connected. Causation is a mental concept, generally based on inference or induction from uniformity of sequence as between two events that there is a causal connection between them ... The common law however is not concerned with philosophic speculation, but is only concerned with ordinary everyday life and thoughts and expressions, and would not hesitate to think and say that, because it caused the delay, unseaworthiness caused the Admiralty order diverting the vessel. I think the common law would be right in picking out unseaworthiness from the whole complex of circumstances as the dominant cause." (ii). Quinn v. Burch Bros. (Builders) Ltd. [1966] 2 QB 370. In that case the claimant had a contract with the defendant to carry out plastering work. The claimant asked the defendant for a step ladder, which, in breach of their contractual duty, they did not supply. Instead, the claimant used a trestle table, upon which he slipped and injured his ankle. The issue was whether the defendant had caused the injury by breaching its contractual obligation to supply the claimant with the proper equipment. Danckwerts LJ expressed his reasoning at p. 391, in four propositions, of which the third and fourth were: "(3) The cause of the plaintiff’s accident was the choice by the plaintiff to use the unsuitable equipment. (4) The failure of the defendants to provide the equipment required may have been the occasion of the accident but was not the cause of the accident."

“98. The war pensions cases show that not all injuries suffered by a serviceman when he is on duty are caused or sufficiently linked to – and so attributable to – service. On the other hand, the case law also shows that some injuries suffered when the serviceman is off duty are so attributable and so are categorised as a service cause. Examples of the earlier cases are: i) Horsfall,where Tucker J considered that “attributable to” service has a different meaning to “in the course of” service. This led him to uphold a decision that a fatal heart attack that occurred during a squash game being played for his own amusement on Air Ministry property by an officer formerly responsible for service squash was not attributable to war service. The judge considered that the Pensions Appeal Tribunal had not misdirected itself in holding that the scope of the words “by service” or “attributable to service” embraced“only acts or conditions or events performed or undergone owing to and in compliance with the general or special obligations of service, together with all acts and conditions or events necessarily or reasonably incidental to these obligations as distinct from acts and conditions or events normally incidental to civil life”

"The words used are ‘attributable to,’ and I think they have a different significance from ‘in the course of’” and also stated unsurprisingly that it must often be extremely difficult to put a particular case on one side or other of the dividing line. ii) Marshall,where Denning J said: “The essential justification for a finding of attributability is that war service should be one of the causes of the disease. As I explained in Chennell's case, however, it must be a cause as distinct from being part of the circumstances in or on which the cause operates. Cases often occur when the disease would have arisen in any event, war service or no war service. In such cases it is not attributable to war service. They can be best illustrated by a metaphor. If a rope is weak and on that account breaks when it is carrying a normal or less than normal load, the cause of the break is not the load but the weakness of the rope. If, however, the rope is weak and breaks when carrying an abnormal load when it might have stood a normal load, there are two causes, one the weakness of the rope and the other the abnormally heavy load.”Denning J then distinguished the circumstances in which a cause operates from the event or stressor itself. He said: “The schizophrenia cases afford a good illustration. If schizophrenia arises in war service without any special stress or strain, it is not attributable to war service; but if there is severe war stress or strain immediately preceding the onset of symptoms, then it is. There are parallels in workmen's compensation cases, such as death in an epileptic fit in normal conditions – Lander' s case (1933) 102 LJ (KB) 768 – and in abnormal conditions – Wicks v. Dowell & Co., Ltd [1905] 2 KB 225) and Wilson v. Chatterton [1946] KB 360, 363.” iii) Wedderspoon v Minister of Pensions [1947] KB 562, (1947) 1 WPA 347, where Denning J held that a naval surgeon who had administered to himself an overdose of a drug had done so in his personal capacity. He said: “The cases show that when the cause of the death or disablement lies in the man’s own personal or domestic sphere, and the war service does no more than provide the circumstances in which the cause operated, it is not attributable to war service.” iv) Monaghan v Minister of Pensions (1947) 1 WPA 971, where Denning J similarly concluded, in a case where a serviceman on active service died as a result of inhaling his own vomit after drinking, with other servicemen, raw spirit abandoned by the enemy, that although war service gave the opportunity for the drinking the real cause of the death was entirely the personal action of the serviceman. v) Gaffney v Minister of Pensions (1952) 5 WPA 97, where Ormerod J concluded that a soldier’s claim based on epilepsy caused as a result of injuries to his head when he was attacked, probably on his way back to barracks after a night off, was not attributable to service because he was “on his own business”. He followed Horsfall and rejected the argument that the Royal Warrant applied because the attack would not have happened if the victim had not been in service because he would not otherwise have been in the place where the attack took place. vi) Giles v Minister of Pensions and National Insurance (1955) 5 WPA 445, where the appellant was on a day’s leave but wearing his uniform, as he was under a duty to do, when, while sitting by a clump of trees, he was shot in the back by a wad of blank cartridge fired by a cadet on an exercise. Although the Minister conceded the appeal, his counsel invited Ormerod J to expand on what he said in Gaffney. Ormerod J said: “I held in that case that the man was on leave and whatever had happened to him happened while he was in his own personal sphere of action, and that, I think, followed the decisions of Lord Justice Denning and Lord Justice Tucker (as he then was).That, of course is clearly the established rule and a rule which must prevail, but there may be circumstances – and each case, of course, depends upon its own circumstances – when it may be right to say that what happened to the man did not happen entirely ‘within his own personal sphere’, but happened to him for some reason due to the compulsion of his service, and, under those circumstances, it appears to me, as, indeed it has appeared to the Ministry in this case, that he should be entitled to a pension. It is impossible to lay down any rule as to where that line should be drawn because, quite clearly, each case must depend upon its own facts, but in this case, the Appellant was compelled to wear uniform, and, because he was wearing uniform at that particular time although he was on leave, it is highly probable that he was singled out by the cadets or one of them as the target. The cadet was probably under the impression that he was one of the opposing band concerned in the exercise. Therefore I am satisfied that this appeal should be allowed and that the Ministry have acted properly in conceding it, not because it is an injury which occurred to a man when he was ‘within his own personal sphere’, but because it was an accident which occurred due, in part at least, to the compulsions of his service.” vii) Richards v Minister of Pensions and National Insurance (1956) 5 WPA 631, where Ormerod J again approached the issue by considering whether on the whole of the facts the appellant was engaged on some personal enterprise unconnected with any duty or compulsion of service. He thereupon dismissed an appeal where the claimant was injured by putting his fist through a window after a fight with Private “A” in the latter’s hut arising out of an argument between them following a dance. The exact way in which he so injured his hand and wrist after the incident in the hut was not established but Ormerod J concluded that: “… it is quite impossible to disassociate it in any way from that incident; and, clearly, for the Appellant to go into the hut, as he did, where he had no authority to be at all, for no other reason than to attack Private "

“While it forms no part of my ratio decidendi I should deal briefly with one interesting point raised before me. If there was or might be substance in the appellant's later evidence, that is to say that if he was the subject of a revenge attack by someone he amongst others had reported for dereliction of duty, and who had subsequently been demoted, was the injury attributable to service? My provisional view, subject to argument in any case in which the point is more immediately at issue, is that it was. The attack was allegedly made on him as a result of what he had done, properly on his own account, as a soldier. In Mr Methuen’s phrase: “An injury suffered by a soldier because he is a soldier or because of what he did as a soldier is attributable to service". See Giles v The Ministry of Pensions and National Insurance.” 99. The principle (or per Ormerod J in Giles the established rule) to be derived from these cases is that a claim must fail where the injury was sustained while the claimant was engaged on some personal enterprise unconnected with any duty or compulsion of service; or (as Denning J put it in Monaghan) service only gave the opportunity, or provided the setting, for the injury to occur. 100. The approach taken in the cases under the war pensions instruments: i) shows that the attributability test was construed and applied as a causation test, ii) demonstrates that a cause is distinct from the circumstances in or on which the cause operates. Cases often occur where the injury or disease would have arisen in any event, service or no service. In such cases it is not attributable to service unless caused by some special or particular characteristic, stress or strain attributable to service. iii) recognises that in some cases it will be very hard to draw the line between when an injury is sufficiently caused by or linked to service to be “attributable” to it and so a “service cause” and when it is not, iv) does not espouse a rule that a “one off incident” will not satisfy a causation test for payment, (and as we have mentioned this is recognized in the Secretary of State’s statement of policy), v) demonstrates, as accepted before us, that the approach advanced by the Secretary of State before the F-tT in this case (see paragraph 67) is too narrow and is accordingly wrong, vi) whether a serviceman is on duty may be relevant but is not determinative, and vii) recognises that injuries caused by assaults, whether by civilians or by other servicemen, may be due to service or may not: it all depends on the circumstances. viii) However, because the test under the war pensions instruments did not include the concept of predominant cause, these cases do not address how a decision-maker should determine whether an injury (or death) was caused wholly or partly by service or what the predominant cause is. 102. Importantly they also confirm that there is no short cut to deciding the question whether an injury was caused by service by way of a simple formula that can be adopted in place of the statutory language. On the other hand, an appellate court or tribunal will not interfere with a finding of the F-tT that an injury was caused by service if it has applied the proper test and the F-tT has not in any other respect erred in law by, for instance, acting unfairly. These are points we made at [52]–[64].”

“118. The analysis we have set out founds the conclusion that the correct approach to the issues of cause and predominant cause under the AFCS is: i) First identify the potential process cause or causes (ie the events or processes operating on the body or mind that have caused the injury); ii) Secondly, discount potential process causes that are too remote or uncertain to be regarded as a relevant process cause; iii) Thirdly, categorise the relevant process cause or causes by deciding whether the circumstances in which each process cause operated were service or non-service causes. It is at this stage that a consideration of those circumstances comes into play and the old cases on the identification of a service cause applying the old attributability test provide guidance. iv) Fourthly, if all of the relevant process causes are not categorised as service causes, apply the predominancy test.”

“32. Considering the first stage of the JM test what are the potential process causes of the events or processes which caused the injury? The immediate cause of the impact injury was the moving of the chairs at MCTC. That was an action carried out under instruction and was followed because the Respondent was acting under orders and was subject to service discipline. Moving up the chain of events – he was at MCTC because he was sentenced by Court Martial to serve his sentence there. His offence had been committed whilst he was in service and related to abuse of his position as a serving member of the Armed Forces. He was not tried or sentenced by the civilian criminal courts and he was only sentenced to serve his sentence at a military correctional institution by virtue of his service. 33. We do not consider that any of those potential causes are too remote or uncertain to warrant disregarding them as relevant causes. So, we then have to consider whether the circumstances in which each operated were service or non-service causes. He was following an order to move furniture and that in our view, is properly categorised as by virtue of a compulsion of service. 34. We consider that there is an unbroken chain of causation which leads from his service to his offence committed in service, to his sentencing by Court Martial to his being in the setting of MCTC all of which could only occur because he was in service, to his being compelled to follow an order to move furniture which caused the injury. If he had been detained in custody whilst still in service, so in A Company rather than D Company, we would have no hesitation in concluding that the injury was service caused ... 35. So, if the only distinction is that he had left service at the date of the injury, does that mean the injury is not caused by service? Applying the words of Article 8 there is no temporal limit placed on the injury – it does not have to occur in service but rather be caused by service. [It then set out Judge Mesher’s remarks in EW and SV with which I have dealt aboveand continued] That envisages the possibility that a claimant might not be in service at the time of the injury which is precisely the situation here. 36. NJ tells us we can rely on the traditional ‘but for’ test and it follows from our conclusion above that we are satisfied that, without service, this injury would not have occurred. Had it not been for his service the Respondent would not have been at MCTC and would not have been obliged to follow the order to move the furniture and would not have injured his hand. There was a specific service compulsion/obligation, service not only provided the context and setting but the cause and given that every link in the chain of causation is service related we conclude that all the causes we have identified are service causes. 37. We have not identified any non-service causes and so do not have to consider applying the predominancy test – this injury was caused by service and the appeal succeeds.”