AB & Others v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lord Justice Lloyd,Lord Justice Ward |
| Judgment Date | 23 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1317,[2010] EWCA Civ 1317 |
| Docket Number | Case No: C1/2010/2755 and 2963,Case No: B3/2009/2205 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2011 |
[2010] EWCA Civ 1317
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MR JUSTICE FOSKETT
Before: Lady Justice Smith
Lord Justice Leveson
and
Sir Mark Waller
Case No: B3/2009/2205
HQ04X04168/HQ07X0397
Charles Gibson QC, Leigh-Ann Mulcahy QC, David Evans & Adam Heppinstall (instructed by The Treasury Solicitor) for the Appellant
Michael Kent QC, Catherine Foster, Mark James & Nadia Whittaker (instructed by Rosenblatt Solicitors) for the Respondents
Hearing dates: 7 —14 May 2010
| Introduction | Paragraph 2 |
| Factual Background | Paragraph 7 |
| The Tests | Paragraph 8 |
| Early interest in the possibility of harm to veterans | Paragraph 12 |
| The Pearce case | Paragraph 17 |
| The proceedings up to the hearing of the limitation issues | Paragraph 21 |
| Summary of the generic expert evidence | Paragraph 53 |
| The nuclear scientists | Paragraph 54 |
| The epidemiologists | Paragraph 59 |
| The radiobiologists | Paragraph 63 |
| The cytogeneticists | Paragraph 67 |
| Strike out and summary judgment | Paragraph 70 |
| The judge's approach to limitation | Paragraph 76 |
| Knowledge – generic issues | Paragraph 78 |
| The section 33 discretion – generic issues | Paragraph 94 |
| The broad merits test | Paragraph 112 |
| Radiation exposure and breach of duty | Paragraph 114 |
| Causation | Paragraph 122 |
| Conclusion in re the judge's approach to the section 33 issues | Paragraph 157 |
| The individual cases | Paragraph 158 |
| Roy Keith Ayres | Paragraph 159 |
| John Allen Brothers, deceased | Paragraph 179 |
| Kenneth McGinley | Paragraph 209 |
| Michael Richard Clark, deceased | Paragraph 217 |
| Andrew Dickson deceased | Paragraph 227 |
| Arthur Hart | Paragraph 244 |
| Christopher Edward Noone | Paragraph 259 |
| Eric Ogden, deceased | Paragraph 269 |
| Pita Rokoratu | Paragraph 286 |
| Bert Sinfield, deceased | Paragraph 299 |
| Conclusion | Paragraph 302 |
Lady Justice Smith:
This is the judgment of the Court.
Introduction
Between 1952 and 1958, the United Kingdom carried out a series of atmospheric tests of thermonuclear devices in the region of the Pacific Ocean. All three branches of the armed forces took part and, in all, some 22,000 servicemen were involved. In these actions, many of which were begun on 23 December 2004, a group of 1011 claimants comprising mainly former UK servicemen but including a few civilians and some Fijian and New Zealand servicemen, (and in some cases their executors, administrators or dependents) claim damages for the adverse consequences to health which have allegedly resulted from exposure to ionising radiation deriving from the tests.
In general terms, the claimants allege that the defendant, now the Ministry of Defence (MOD), exposed them to fallout from the bombs and to food and drink contaminated by radioactive material. They allege that they have suffered injury as a result, in most cases many years after the exposure. The MOD denies liability, alleging that all proper precautions were taken to protect service personnel from exposure to ionising radiation and that, in most cases, the actual exposure of the men was no more than the background radiation they would have experienced in the United Kingdom. Also, the MOD alleges that the claimants cannot demonstrate that the conditions they have suffered from or are still suffering from were caused by their exposure to ionising radiation.
The defendant also seeks to rely on the provisions of the Limitation Act 1980. We will set out the relevant provisions of this Act later in this judgment. Because limitation was bound to be an important issue in most if not all the individual claims, the parties agreed, at an early stage, that there should be a hearing at which the limitation issues would be decided in ten individual lead cases. That hearing took place before Foskett J in January and February 2009 and he gave judgment on 5 June 2009. He held that all ten claims could proceed. Five of the lead claimants had not had knowledge of their claims (within section 14 of the Act) until less than three years before they began proceedings; they were entitled to proceed with their claims as of right. The other five, the judge held, were prima facie statute-barred but he exercised his discretion under section 33 of the Act in each case so as to disapply section 11 and to allow the actions to proceed.
In addition, at the hearing, and without issuing an application, the MOD invited the judge to strike out the claims under CPR 3.4 as showing no reasonable cause of action or to dismiss them summarily under CPR 24.2 on the ground that they have no reasonable prospects of success. The judge declined to do so in any of the ten lead cases.
This is the MOD's appeal from all aspects of that judgment, brought with permission of Foskett J.
Factual Background
We do not propose to set out the historical, factual or scientific background to the case in great detail. We commend the relevant passages of the judgment of Foskett J [2009] EWHC 1225 (QB) which appear to us to be thorough and accurate. We propose to explain only that which is essential to the decisions we have to make.
The tests
It has been known since the early 20 th century that exposure to ionising radiation is potentially harmful. It has also been known that such radiation can be beneficial; for example radiotherapy is a recognised form of treatment for some forms of cancer. Following the detonation of bombs on Hiroshima and Nagasaki in 1945, the catastrophic effects of large doses of radiation came to be understood. In the ensuing years, the effects of lower levels of radiation caused by fallout have been studied. By the early 1950s, the generally accepted view was that there was no completely safe threshold for radiation exposure. There were, however, threshold limits indicating that which was thought to be acceptable.
In the period between October 1952 and September 1958, the British Government carried out 21 atmospheric nuclear tests. Some involved fission bombs and some fusion bombs. Some were exploded high above the Pacific Ocean; others were exploded at or a little above ground level. All of them will have given rise to radioactive fallout and also, at the time, to what is known as the ‘prompt radiation’ effect. The latter is very dangerous to those within its range. Initially, the claimants alleged that they had been exposed to prompt radiation but, at the start of the hearing before Foskett J, that allegation was abandoned because it was accepted that all the claimants had been too far away from any explosion to be so affected. So these cases are now concerned only with the effects of radioactive fallout. The type of bomb and the manner of its detonation will affect the amount of fallout which will result. These differences would be important in the assessment of each individual's radiation exposure. For present purposes, however, the differences are not of significance. We will assume that all the tests gave rise to some fallout.
Likewise, the times, dates and positions of the individual tests are not of central importance to the present appeal. It is, however, necessary to appreciate that the claimants were potentially exposed to fallout in different places and for different periods of time. Some tests (Operation Hurricane comprising one test in October 1952 and Operation Mosaic comprising two tests in May and June 1956) took place on the Montebello Islands, a group of uninhabited islands off the North West coast of Australia. Operation Buffalo (comprising 4 tests in September and October 1956) took place at Maralinga on the Australian mainland. The Operation Grapple X, Y and Z tests took place near Christmas Island, an atoll in the Pacific Ocean.
The claimants, many of whom were national servicemen, carried out a wide variety of different functions and were deployed in the various test areas for differing periods of time. We will briefly describe the work of each when dealing with the ten lead cases.
Early interest in the possibility of harm to veterans
In medical and scientific circles it has been known since the 1940s that exposure to ionising radiation is capable of causing many forms of cancer although the risk was generally associated with fairly high levels of exposure. Until the 1980s, there was very little public awareness of the association between radiation and cancers and in particular of the possibility that British servicemen might have suffered ill effects as the result of such exposure during the nuclear tests. However, public interest in this possibility was aroused following a series of items on the BBC television news programme ‘Nationwide’ broadcast in December 1982 and early 1983. These ventilated the possibility that test participants were suffering unusual levels of ill health of various forms. This interest appears to have stemmed from publicity in Scotland generated by concerns raised in the Daily Record by Mr Kenneth McGinley who is now one of the lead claimants. Mr McGinley publicly claimed that he was one of a number of test veterans who had suffered ill health as the result of exposure to radiation.
Soon after this publicity, a group of veterans, all of whom had served in the Pacific during the tests, formed the British Nuclear Test Veterans Association (BNTVA). Mr McGinley was their Chairman. Their objectives were to gather information about their exposure and its likely effects, to press for...
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