Pearce v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Elwyn-Jones,Lord Lowry,Lord Brandon of Oakbrook,Lord Goff of Chieveley |
| Judgment Date | 28 April 1988 |
| Judgment citation (vLex) | [1988] UKHL J0428-2 |
| Date | 28 April 1988 |
| Court | House of Lords |
[1988] UKHL J0428-2
Lord Bridge of Harwich
Lord Elwyn-Jones
Lord Lowry
Lord Brandon of Oakbrook
Lord Goff of Chieveley
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brandon of Oakbrook. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brandon of Oakbrook. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brandon of Oakbrook. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
On 7 June 1985 the respondent as plaintiff began an action against the first and second appellants as defendants in the Queen's Bench Division of the High Court in which he claimed damages for personal injuries. On 24 March 1986, following the service of pleadings, an order was made for the trial of a preliminary point of law. That point of law was whether, on the facts pleaded in the statement of claim, section 10 of the Crown Proceedings Act 1947 provided the first and second defendants with a complete defence to the action.
The preliminary point of law was tried by Caulfield J., who in a reserved judgment given on 17 December 1986 decided it in favour of the plaintiff, holding that section 10 of the Crown Proceedings Act 1947 did not provide the first and second defendants with a complete defence to the action. The defendants appealed to the Court of Appeal, which by a majority (O'Connor and Ralph Gibson L.JJ., Neill L.J. dissenting) on 31 July 1987 affirmed the decision of Caulfield J. but on a ground different from the grounds relied on by him. The defendants now bring a further appeal with the leave of the Court of Appeal to your Lordships' House.
The facts pleaded in the statement of claim can be summarised as follows. From December 1957 to October 1958 the plaintiff, then serving as a lance-corporal in the Royal Engineers, was required to perform duties on Christmas Island in the Pacific Ocean where tests on nuclear weapons were being carried out by the United Kingdom Atomic Energy Authority ("U.K.A.E.A.") for Her Majesty's Government. While the plaintiff was performing those duties he was exposed to dangerous amounts of radiation. That exposure occurred by reason of the negligence of U.K.A.E.A. its servants or agents, which included failure to devise effective protective measures against radiation and to require the plaintiff to act in accordance with them. In consequence of his exposure to dangerous amounts of radiation the plaintiff had since 1966 suffered from serious illnesses which were continuing.
These facts must, for the purpose of deciding the preliminary point of law, be assumed to be correct. On the basis of them the plaintiff claimed that U.K.A.E.A. had incurred a liability to him for damages; that such liability had been transferred from U.K.A.E.A. to the first defendant by the Atomic Energy Authority (Weapons Group) Act 1973; and that the plaintiff was therefore entitled to enforce it against the first defendant. Further or alternatively the plaintiff claimed that he was entitled to enforce the transferred liability against the second defendant, the Ministry of Defence, on the ground that the latter was, under section 17(3) of the Act of 1947, the appropriate authorised government department to be sued in respect of it.
My Lords, U.K.A.E.A. was brought into being by the Atomic Energy Authority Act 1954 to take over the functions which had previously been exercised first by the Minister of Supply, and later by the Lord President of the Council, under the Atomic Energy Act 1946 and the Radioactive Substances Act 1948.
By the Atomic Energy Authority Act 1971 parts of U.K.A.E.A.'s undertaking were transferred to British Nuclear Fuels Ltd. and The Radiochemical Centre Ltd. (now Amersham International Plc). That part of U.K.A.E.A.'s undertaking which comprised the Weapons Group remained with them.
By the Act of 1973 there were transferred to the first defendant, the Secretary of State, the activities previously carried on by the Weapons Group of U.K.A.E.A. This transfer of activities was accompanied by a transfer of property, rights, liabilities and obligations.
My Lords, three questions were raised for decision in the courts below. These are: (1) Are the first and second defendants entitled to rely on section 10 of the Act of 1947 as a defence to the action? (2) If so, does section 10 provide them with an effective defence? (3) If so, can the first defendant be sued independently of the Crown so as to preclude him from relying on such defence?
Caulfield J. held that, while question (1) should be answered in the affirmative, question (2) should be answered in the negative. He further held that question (3) should also be answered in the affirmative. He accordingly decided the preliminary point of law in favour of the plaintiff on two separate but concurrent grounds. The Court of Appeal held by a majority that question (1) should be answered in the negative. They further held unanimously that question (2) should be answered in the affirmative and question (3) in the negative. The Court of Appeal accordingly upheld the decision of Caulfield J., but, as I indicated earlier, on a ground different from the grounds relied on by him.
The answer to question (1) necessarily depends on the true meaning and effect of the provisions of the Act of 1973, by which liabilities previously incurred by U.K.A.E.A. in connection with the operations of its Weapons Group were transferred to the first defendant. On the assumption that the facts pleaded in the statement of claim are correct, these liabilities must be taken to include a liability in damages to the plaintiff in respect of his personal injuries. It is further to be observed that, if that liability had remained with U.K.A.E.A. and the plaintiff had sought to enforce it directly against them, they would not themselves have been able to rely on any defence under section 10 of the Act of 1947. This is because section 6(5) of the Act of 1954 provided:
"It is hereby declared that, save as otherwise expressly provided in this Act, the Authority are not to be treated for the purposes of the enactments and rules of law relating to the privileges of the Crown as a body exercising functions on behalf of the Crown …"
The qualification of this provision by the words "save as otherwise expressly provided in this Act" is not material in the context of the present case.
The provisions of the Act of 1973, by which liabilities previously incurred by U.K.A.E.A. in connection with the operations of its Weapons Group were transferred to the first defendant, are contained in sections 1(2) and 4(2) of that Act. Section 1(2) provided, so far as material:
"On the appointed day there shall be transferred to the Secretary of State for Defence by virtue of this Act and without further assurance - (b)… all such property, rights, liabilities and obligations as immediately before the appointed day belonged to or were incumbent upon the Authority and appertained to the Weapons Group."
Section 4(2) provided:
"Where any right, liability or obligation is transferred to the Secretary of State by virtue of this Act, he and all other persons shall, on and after the appointed day, have the same rights, powers and remedies (and in particular, the same rights as to the taking or resisting of legal proceedings) for ascertaining, perfecting or enforcing that right, liability or obligation as they would have had if it had at all times been a right, liability or obligation of the Secretary of State; and any legal proceedings by or against the Authority which relate to any property, right, liability or obligation transferred to the Secretary of State by virtue of this Act, and are pending immediately before the appointed day, may be continued on and after that day by or against the Secretary...
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