AB & Others v Ministry of Defence

JurisdictionEngland & Wales
JudgeLord Justice Kitchin,Lord Justice Lloyd,Lord Justice Ward
Judgment Date23 November 2011
Neutral Citation[2011] EWCA Civ 1317,[2010] EWCA Civ 1317
Docket NumberCase No: C1/2010/2755 and 2963,Case No: B3/2009/2205
CourtCourt of Appeal (Civil Division)
Date23 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

Between
Ministry of Defence
Appellant
and
AB and Ors
Respondents

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

Lady Justice Smith:

1

This is the judgment of the Court.

Introduction

2

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.

3

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.

4

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.

5

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.

6

This is the MOD's appeal from all aspects of that judgment, brought with permission of Foskett J.

Factual Background

7

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

8

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.

9

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.

10

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.

11

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

12

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.

13

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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