AB and others v Ministry of Defence; [2009] EWHC 1225 (QB); [2009] WLR (D) 174

LIMITATION OF ACTION — Personal injuries — Date of knowledge of victim — Claims for compensation for injury, disability or death in consequence of exposure to ionising radiation relating to nuclear tests carried out by the British Government in the 1950s — Date when claimants would reasonably have considered injury sufficiently serious to justify instituting proceedings — Whether first significant injury in time necessarily fixing date of knowledge — State of knowledge required — Whether claims to be struck out — Whether statute-barred — Whether discretion to override time limit to be exercised — Limitation Act 1980, ss 12, 14, 33

AB and others v Ministry of Defence

[2009] EWHC 1225 (QB); [2009] WLR (D) 174

QBD: Foskett J: 5 June 2009

In relation to a group action the issue as to when a claimant had “knowledge” for the purposes of ss 12 and 14 of the Limitation Act 1980 was primarily one of fact The state of the claimant’s belief was to be considered, as also whether he thought it necessary to refer his belief to experts, medical or legal, or others. In relation to words used by a witness when being asked about his state of mind at a particular time in the past, his actions (or inactions) at the time about which he was being asked might require the words used or accepted in evidence to be viewed with circumspection.

Foskett J so held when determining preliminary issues in ten lead cases within a group action brought on 23 December 2004 (or, in some cases, later dates) by 1,011 claimants (or in some cases the dependants or estates of deceased persons) against the Ministry of Defence for compensation for injury, disability or death in consequence of exposure to ionising radiation as a result of their presence near, or involvement in the aftermath of, nuclear tests carried out by the British Government in the 1950s.

FOSKETT J said that preliminary issues related to contentions by the defendant that the claims were statute-barred under the Limitation Act 1980, subject to exercise of the discretion under s 33 to permit them to proceed, or should be struck out as having no reasonable prospect of success. Since stage factual matters had not been tested by reference to a full analysis of the evidence, the current task necessarily involving making a number of assumptions about what might be established at a future trial. Analysis of the background history, including the underlying science relating to nuclear physics and to essential cytogenetics, and several broad areas of the evidence, concluded with the report in 2006 of a study which relied on a technique which had not been available until the late 1990s and which represented the first occasion on which there was credible scientific evidence that exposure to radiation levels above background levels had caused the kind of chromosomal aberrations that evidence the mechanism for at least some of the injuries or conditions of which complaint was made. None of the claims should be struck out as "doomed to fail" on the issue of causation largely because causation was essentially a matter of fact, the nature of the injury or condition in question was an issue of fact, and the facts (dependent upon both the lay and expert evidence) were as yet a long way from being established. Moreover, until the facts had been established it was not possible to know which approach to the test for causation was applicable to each individual case. There might be difficulties of proving causation, but that was not a sufficient basis for the draconian measure of striking out the claims at this stage. In relation to a claim involving multiple injuries, and to the reference in s 14(1)(a) Limitation Act 1980 to “the injury in question”, the defendant’s submission that the first significant injury in time was necessarily the relevant one for the purpose of fixing the date of knowledge could not be accepted. KR v Bryn Alyn Community Holdings Ltd [2003] 1 QB 1441 did not lay down a universal proposition of law to that effect. It was an issue of fact to be resolved in each individual case. The correct approach to the question under s 14(1)(b) of the Act, as to when a person first had knowledge that the significant injury in question was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty, had been considered in several previous authorities, notably Halford v Brookes [1991] 1 WLR 443, Spargo v North Essex District Health Authority [1997] 8 Med LR 125 and Sniezek v Bundy (Letchworth) Ltd [2000] PIQR P213. While knowledge did not denote certainty, suspicion, particularly if vague and unsupported, would not normally suffice. The state of the claimant’s belief was to be considered, as also whether he thought it necessary to refer his belief to experts, medical or legal, or others. The issue was primarily one of fact for each case, and, in relation to words used by a witness when being asked about his state of mind at a particular time in the past, his actions (or inactions) at the time about which he is being asked might require the words used or accepted in evidence to be viewed with circumspection. The preferred view was that until the 2006 report there could have been no “knowledge” within s 14, but the established authorities precluded that view and each case was therefore to be considered in accordance with the guidance set out in those authorities. In relation to the discretion under s 33 it could not be accepted that there was now no reasonable prospect of a fair trial. The voluminous documentation created at or about the time of the tests, and reference to any statements or accounts that those involved have given subsequently, would suffice, and the cogency of the evidence would not be substantially diminished by reason of the deaths of many people who would otherwise have given evidence. Further, the reasonably well-informed and fair-minded layman would consider that the claims should go ahead to trial, and the overall justice of the situation supported that view. On application of the relevant principles to the ten lead cases it was concluded that the state of knowledge at material dates was such that five of the cases were statute-barred by reference to the primary limitation perid, but in relation to those cases (and, had it been necessary, to the other five cases) the discretion under s 33 should be exercised to allow the claims to proceed to trial.

Appearances: Benjamin Browne QC, Catherine Foster and Mark James (Rosenblatts) for the claimants; Charles Gibson QC, Leigh-Ann Mulcahy QC and Adam Heppinstall (Treasury Solicitor) for the defendant.

Reported by: Philip Ridd, Solicitor.