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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ministry of Defence v AB & Ors  EWCA Civ 1317 (22 November 2010)
Cite as:  EWCA Civ 1317, (2011) 117 BMLR 101
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MR JUSTICE FOSKETT
HQ04X04168 / HQ07X0397
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEVESON
SIR MARK WALLER
| MINISTRY OF DEFENCE
|- and -
|AB and Ors
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Michael Kent QC, Catherine Foster, Mark James & Nadia Whittaker (instructed by Rosenblatt Solicitors) for the Respondents
Hearing dates : 7 - 14 May 2010
Crown Copyright ©
|Early interest in the possibility of harm to veterans
|The Pearce case
|The proceedings up to the hearing of the limitation issues
|Summary of the generic expert evidence
|The nuclear scientists
|Strike out and summary judgment
|The judge's approach to limitation
|Knowledge generic issues
|The section 33 discretion generic issues
|The broad merits test
|Radiation exposure and breach of duty
|Conclusion in re the judge's approach to the section 33 issues
|The individual cases
|Roy Keith Ayres
|John Allen Brothers, deceased
|Michael Richard Clark, deceased
|Andrew Dickson deceased
|Christopher Edward Noone
|Eric Ogden, deceased
|Bert Sinfield, deceased
Lady Justice Smith:
Early interest in the possibility of harm to veterans
"that there may well have been small hazards of leukaemia and multiple myeloma associated with participation in the programme, but their existence is certainly not proven and further research is desirable."
The Pearce case
The proceedings up to the hearing of the limitation issues
"On the balance of probability those exposed to increased doses of radiation are more likely to develop one or more of the conditions listed above later in life. The existence of a safe threshold is in my opinion immaterial to those witnessing above ground atomic bomb tests as the doses received would have exceeded any reasonable estimate of a safe dose."
(a) It is admitted that ionising radiation is capable of causing leukaemia (excluding chronic lymphatic leukaemia) and some other cancers and radiological burns in individuals exposed to high levels of ionising radiation. Save as so admitted, the Claimants are required to prove that exposure to ionising radiation is capable of causing the wide range of conditions alleged in the Master Particulars of Claim and/or the report of Professor Sikora.
(b) On the basis of the totality of the scientific evidence available and pending investigation of any individual cases, it is denied that the Claimants can establish to the required standard of proof that the Claimant Participants' individual conditions were in fact caused by exposure to ionising radiation as alleged or at all.
(c) In light of firstly, the existence of other possible exposures to ionising radiation apart from the tests (eg medical radiation, cosmic radiation, exposure to radon etc); secondly, the generally low levels of exposure as a result of the tests; and thirdly, the existence of other possible causes of the generally common health conditions or diseases which are the subject of the claims (particularly in old age), it is denied that the Claimants can establish to the required standard of proof that those conditions or diseases would not have been suffered but for their participation in the nuclear tests."
"(i) the claimants' knowledge of the existence of scientific evidence to demonstrate that their injury was attributable to the acts or omissions of the Defendant did not arise until after the commencement of proceedings and for that reason the claims are not statute barred".
And at (j) it was pleaded, somewhat delphically, that:
"In the event that the Defendant may allege that the instruction of solicitors in early 2002 and/or the issue of proceedings in 2004 indicates that such knowledge arose before the issue of the Rowland report, the Claimants will contend that these events are explicable not solely by reference to the existence of knowledge on the part of the Claimant but also by reference to the need for caution when dealing with events that occurred many years ago."
"The importance of the Rowland report is that it shows (on the balance of probabilities) that, despite the frequent and repeated denials of the Defendant, the New Zealand veterans (and, by extension, the British, Australian and Fijian veterans) were exposed to significant ionising radiation during the tests because of the higher frequencies of chromosomal translocations compared with a non-exposed but otherwise matched group. Further it was well-established (long before Dr Rowland's report) that ionising radiation can cause certain illnesses, including (but not limited to) cancers. It follows that, by exposing the participants to ionising radiation, the Defendant materially increased the risk of the participants suffering the illnesses from which they have actually suffered."
"For the sake of completeness, the claim that any of the individual Lead Cases are doomed to fail because the Claimants are unable to establish causation is refuted. You are in receipt of cogent and compelling expert evidence in support of the claims and establishing causation."
It may be that the claimants had in mind the evidence of Professor Sikora, as they had not at that time abandoned their allegations of prompt exposure. However, if not, it appears that they must have been intending to assert that the evidence of Professors Mothersill and Parker (to the effect that exposure had increased the risk of injury) was 'cogent and compelling' evidence of causation.
"For the majority of the conditions complained of, I think it extremely unlikely that, until very recently, Claimants would have at any time been told that their conditions were potentially linked with radiation, or have received overt medical support from their treating doctors for their own belief that they were so linked."
"There are a minority of medical conditions complained of where a potential causal link has in the past been better established. Principally, these comprise some malignant (ie "cancerous") conditions and cataracts of the lens of the eye.
For these conditions, the link has been with radioactive exposure greater than that which has been generally regarded as having occurred in these Claimants."
"These Claimants could not have contemplated litigation, with a reasonable expectation of medical and scientific support for a causal link between the conditions of which complain and the atomic tests in which were involved, before about the present time."
It seems to us that this evidence will be relevant only to the section 33 question of whether the claimants had acted reasonably in delaying the commencement of proceedings until 2004. It does not appear to help on the issue of causation. Dr Moore-Gillon's opinion is couched in essentially negative terms. He does not say that medical support for a causal link will or should be forthcoming at the present time.
Summary of the generic expert evidence
The nuclear scientists
" have largely focussed on cancer, which has consistently been found to occur at increased levels following exposure to moderate and high levels of ionising radiation (i.e. generally well above 500 mSv, apart from leukaemia, which is associated with lower exposure levels)."
"It was well established (long before Dr Rowland's report) that ionising radiation can cause certain illnesses, including (but not limited to) cancers. It follows that, if, as Dr Rowland found, the veterans were exposed to ionising radiation, then this materially increased the risk of the veterans suffering the illnesses from which they have actually suffered."
Dr Mothersill considered each of the claimants and their various illnesses and, in each case, expressed the view that exposure to radiation had increased the risk of the occurrence of that illness. She did not attempt to quantify the extent of the increased risk.
"provides extremely strong evidence that the nuclear test veterans have a statistically significantly increased burden of chromosome aberrations, compared to the controls. The measured aberration rates in the matched control group were what one would expect for individuals of their age indicating that the methodology, precision and accuracy of the 2008 mFISH study was appropriate."
He added, however, that it did not necessarily follow that the increased levels of aberration were due to radiation exposure. There were other substances, to which these seamen might have been exposed, which could have produced a similar effect. (In that he agreed with Dr Lindahl.) He considered, however, that radiation was the most likely cause of the increased level of aberration and he expressly approved the estimates of exposure produced in the Rowland study. His view is that the excess chromosomal aberrations are a 'bio-marker' of past exposure to radiation. He notes that the study does not claim that the aberrations measured were the direct cause of any tumour. He, like Dr Lindahl, stressed that no claim is made in the Rowland study that the men with high levels of chromosomal damage have suffered any particular form or degree of ill health.
Strike out and summary judgment
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
In our view, this power is intended to be exercised on examination of the pleading itself, not after examination of the evidence supporting it. It is open to the court to raise the issue of strike out under this rule of its own motion. It should not be necessary and is not appropriate for evidence to be served in support of or opposition to an application to strike out under this rule. Moreover, provided that the party whose pleading is under attack has sufficient time to consider the arguments raised, it does not seem to us that the lack of a formal application need deter the court from making a decision.
The judge's approach to limitation
(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
(5) If the person injured dies before the expiration of the period mentioned in subsection (4) above, the period applicable as respects the cause of action surviving for the benefit of his estate by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 shall be three years from
(a) the date of death; or
(b) the date of the personal representative's knowledge; whichever is the later
(1) An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury (whether because of a time limit in this Act or in any other Act, or for any other reason
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action under the Fatal Accidents Act 1976, but no such action shall be brought after the expiration of three years from
(a) the date of death; or
(b) the date of knowledge of the person for whose benefit the action is brought; whichever is the later.
(1) in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identify of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which
(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(2) The court shall not under this section disapply section 12(1) except where the reason why the person injured could no longer maintain an action was because of the time limit in section 11 [or subsection (4) of section 11A].
If, for example, the person injured could at his death no longer maintain an action under the Fatal Accidents Act 1976 because of the time limit in Article 29 in Schedule 1 to the Carriage by Air Act 1961, the court has no power to direct that section 12(1) shall not apply.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(4) In a case where the person injured died when, because of section 11 [or subsection (4) of section 11A], he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased.
(5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit.
(6) A direction by the court disapplying the provisions of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976.
Knowledge - generic issues
"(1) The knowledge required to satisfy section 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) "Attributable" in this context means "capable of being attributed to", in the sense of being a real possibility;
(3) A plaintiff has the requisite knowledge when [he] knows enough to make it reasonable for [him] to begin to investigate whether or not [he] has a case against the defendant. Another way of putting this is to say that [he] will have such knowledge if [he] so firmly believes that [his] condition is capable of being attributed to an act or omission which [he] can identify (in broad terms) that [he] goes to a solicitor to seek advice about making a claim for compensation;
(4) On the other hand [he] will not have the requisite knowledge if [he] thinks [he] knows the acts or omissions [he] should investigate but in fact is barking up the wrong tree; or if [his] knowledge of what the defendant did or did not do is so vague or general that [he] cannot fairly be expected to know what [he] should investigate; or if [his] state of mind is such that [he] thinks [his] condition is capable of being attributed to the act or omission alleged to constitute negligence, but [he] is not sure about this, and would need to check with an expert before [he] could be properly said to know that it was."
"(i) That the injury of which he complains is capable of being caused by radiation and by more than just background radiation, the existence of which we must all be taken to appreciate.
(ii) That there is some credible evidence that he was exposed to ionising radiation in consequence of his time at the tests which was at a level above the ordinary background level."
We find the syntax of (i) above slightly confusing but think that what the judge meant was that the claimant must know that the injury of which he complains is capable of being caused by the higher level of radiation to which he thinks he has been exposed by the defendant as opposed to being capable of being caused merely by the background levels of radiation to which we are all exposed. The judge then expressed the view that, in the context of this case, that would mean that the claimant would need to appreciate that exposure to a level of ionising radiation above background level could be caused by inhalation or ingestion of radionuclides from fallout well after the detonation had taken place. He was of the view that a claimant's belief that he had been exposed to prompt radiation would have been a significant misconception and would not be sufficient to give knowledge of attributability. In short, the judge was saying that it would not be enough for the claimant to know that he had been exposed to radiation during his attendance at the tests and to know that such exposure was capable of causing his injury; he had to know that his exposure had been above background level and that it had occurred due to exposure to fallout. He said that, if he was right about that, none of the claimants would have had the necessary knowledge until they learned of the outcome of the Rowland study. Only then would they have known that there was credible scientific evidence that they had been exposed to radiation above background levels. Before that there was, he said, only suspicion that they had suffered such exposure. However, having expressed this rather robust view, the judge indicated that he had to accept that, on the authorities, the threshold of appreciation of attributability was not quite as high as he had suggested. He did not then explain where he thought the threshold ought to be set.
" the court should look at the way the Plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based."
Lord Hoffmann stressed that it was not necessary for the claimant to know that that the matters that he was complaining about amounted to negligence or breach of duty. On both these points, his remarks were expressly approved by the House of Lords in Haward v Fawcetts  UKHL 9.
"By these provisions, Parliament sought to identify the knowledge a claimant needs to possess before it is fair and reasonable that time should run against him. That is their purpose. .. The claimant is to have a reasonable period, set by Parliament at three years, in which to start proceedings after he has the knowledge he reasonably needs for that purpose"
And at paragraph 9:
"Thus, as to the degree of certainty required, Lord Donaldson of Lymington MR gave valuable guidance in Halford v Brookes  1 WLR 428,443. He noted that knowledge does not mean knowing for certain and beyond the possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence: "Suspicion, particularly if it is vague and unsupported will indeed not be enough but reasonable belief will normally suffice". In other words, the claimant must know enough for it to be reasonable to begin to investigate further."
The section 33 discretion - generic issues
"618. Whatever view is taken of the strengths and weaknesses of an individual's claim to a favourable exercise of the section 33 discretion, it does seem to me that one needs to have regard to the overall justice of the situation in this case and indeed the perception of what is just. It would be the ultimate slap in the face for those veterans who genuinely believe on apparently reasonable grounds that they have a case only to be told after all these years that for some reason their case cannot proceed whilst others can. If a proper exercise of the discretion results in that consequence then, of course, it must be; but it would, in my judgment, be a very regrettable consequence.
619. Avoiding an apparent injustice such as this would, in my view, constitute a weighty factor."
The broad merits test
Radiation exposure and breach of duty
"I would hold that the lack at this stage of individual medical reports in each individual case supporting a causation approach is not fatal to success on the limitation issue. There is, in my view, sufficient material available at this stage to support the (adequately) pleaded case."
"In my opinion, it is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way. It may have been different in some causally irrelevant respect but the mechanism by which it caused the damage, whatever it was, must have been the same. So for example I do not think that the exception applies when the claimant suffers lung cancer which may have been caused by exposure to asbestos or some other carcinogenic matter but may also have been caused by smoking and it cannot be proved which is more likely to have been the causative agent.
Conclusion in respect of the judge's approach to the section 33 issues
The individual cases
Roy Keith Ayres
John Allen Brothers deceased
"Q: But in your mind, the cancer had caused by ---
A: No, no, I was just asking
Q: So you weren't sure, but you knew it was capable of having been caused by radiation?
A: Well yes. But John had been protected. He understood that he had been protected totally. ---- So it was justit did not apply to him."
The judge did not refer to this passage in his judgment although we consider it to be of some importance.
"I have always believed that that John's cancers were caused by his RAF service in 1956/7, when he was flying through atomic clouds, collecting radiation samples at the Monte Bello Islands, Maralinga and Christmas Island. I have recently obtained a copy of his Radiation Dosage Chart. ."
We will discuss the significance of the words 'I have always believed' in that paragraph in due course.
"The Defendant's argument is that she had raised in her own mind (and indeed directly with her husband) the question of whether the tests could have had anything to do with the cancer that he developed. However, as it seems to me, her husband's adamant view that it was nothing to do with that would have to be conclusive on the issue unless there was clear evidence that she did not accept it and had been looking into the matter with vigour prior to his death. I have absolutely no doubt that, entirely reasonably, the whole focus of her life and that of her husband after the diagnosis in 1997 was to address the treatment he needed rather than to spent time questioning how it all came about. . There is nothing in the contemporaneous medical records to suggest that either she or Mr Brothers raised the question of the tests with any other doctors. The only basis upon which it could be suggested that Mrs Brothers was herself convinced of a connection between his presence at the tests and the cancer was the sentence in her letter, commencing with the words "I have always believed". Those words were, of course, used nearly two years after her husband had died and at a time when she had taken some preliminary steps to start investigating. She says that she was over-emphasising the strength of her feeling to ensure that the recipients of the letters took notice. I am inclined to accept that. There is really no material prior to that letter that suggests that she had formed any such clear and unambiguous belief before his death. It may be that the true reading of that letter is that by the time she wrote it she had come to believe in the connection between his presence at the test an his death but anything prior that was in my judgment nothing more than a generalised suspicion."
Michael Richard Clark, deceased
Andrew Dickson, deceased
"believed that his health problems might have been caused by radiation exposure during his time on Christmas Island. He was of this view from the mid 1980s and as his health continued to deteriorate he wondered whether this was part of the continuation of a pattern of radiation related ill health".
The judge emphasised the words 'might' and 'wondered'.
Christopher Edward Noone
Eric Ogden deceased
Bert Sinfield deceased