David v Honeywell Normalair -Garrett Ltd. [2006] EWHC 351 (QB)

Case No 04/TLQ/0189

[2006] EWHC 351 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 2 March 2006

Before

MR JUSTICE WALKER

Between

RICHARD DAVIDClaimant

HONEYWELL NORMALAIR –GARRETT LIMITEDDefendant

The Claimant appeared in person for in person

Mr William Evans and Mr Ali R. Sinai (instructed by Vizards Wyeth) for Defendant

Hearing dates for trial of liability:

6, 7, 8, 9 December 2004,

4, 5, 10, 17, 18, 26, 27 October 2005,

14, 17, 25 November 2005

Judgment

Table of Contents:

Introduction 1 History of the Proceedings 7 Review of the material lodged by the parties.49 Experts and Impartiality 50 (a) Presence or Absence of DU in the Claimant 51 xxxOpinions Expressed by Dr Durakovic 52 xxxOpinions of Professor Schmitz-Feuerhake 62 xxxInference from the Claimant’s Medical Condition 66 (b) Presence or absence of DU at the claimant’s workplace 72 (c) The use of DU by Westland 78 (d) Exposure to metal dust in the claimant’s work 79 (e) Res ipsa loquitur 81 (f) Application of Regulations and the Common Law to the Evidence 83 (g) The Claimant’s Illness 92 (h) Causation 93 (i) The Effect of the Previous Claim 95 Conclusion 102

Mr Justice Walker :

Introduction

[1]The defendant, Honeywell Normalair-Garrett Limited, was formerly known as Normalair-Garrett Limited. It changed its name after Honeywell Inc. acquired a controlling interest in 1999.

[2]The Claimant, Mr Richard David, was born on 1 September 1954. He was thus 30 years old on 18 February 1985 when he started work assembling components for defence equipment at the defendant’s factory in Yeovil. He moved to the repairs department in October 1985, and from there to the coil winding shop in January 1989. His contract of employment came to an end on 31 January 1997.

[3]During the period of his employment the claimant’s medical condition deteriorated, to the point where in July 1995 he ceased work all together. On 16 December 1998 he issued proceedings against the defendant claiming that his medical symptoms at that time, which I shall call “the 1998 Symptoms”, were caused when the defendant exposed him to substances hazardous to health, in particular solvents. The claimant and defendant compromised those proceedings in April 2000 by an agreement (“the Compromise Agreement”) under which the defendant, without admitting breach of duty, liability or causation, paid the claimant £10,000 and the claimant agreed that the defendant “be discharged from all further liability arising out of or in any way connected with this claim.” The Compromise Agreement was embodied in a court order dated 7 April 2000 (“the 2000 Order”).

[4]The proceedings now before the court are fresh proceedings begun by a claim form issued on 5 February 2003. In amended particulars of claim dated 30 September 2004 it is said that during the course of his employment the claimant was exposed to depleted uranium (sometimes referred to as “DU”) in breach of the defendant’s statutory and common law duty of care. As a result it is said that, as at 30 September 2004, he has suffered numerous injuries, which I shall call “the 2004 Injuries”, along with loss and expenses. Among the 2004 Injuries pleaded in the amended particulars of claim is a diagnosis of the claimant as suffering from Gitelman’s syndrome.

[5]The defendant in its re-amended defence dated 30 June 2005 admits that the claimant suffers from Gitelman’s syndrome. It does not admit any others of the 2004 Injuries. The re-amended defence denies that the defendant exposed the claimant to depleted uranium, and if there was such exposure denies any breach of statutory or common law duty. If there was a breach of duty, it denies this caused the 2004 Injuries. It relies on each of the Compromise Agreement and the 2000 Order as barring the claim in various ways. The re-amended defence also asserts that the passage of time before issue of the claim form means that the claim is statute barred, but this is no longer relied upon by the defendant.

[6]No case on quantum has been put forward by the claimant, nor has he put forward any evidence which would enable an assessment of damages. I accordingly ordered on 22 November 2005 that in the first instance there should be a trial of issues of liability only. That trial has now taken place before me. Both parties have treated it as concerned with all issues other than quantum. This judgment sets out my findings on those issues. As the trial has taken an unusual course, I shall first describe the history of the proceedings.

History of the Proceedings

[7]The defendant has been represented by solicitors, Messers Vizards Wyeth and junior counsel, Mr William Evans. For the latter part of the trial Mr Evans was assisted by a second junior counsel Mr Sinai. The claimant initially acted in person. He secured legal representation prior to the drafting of the amended particulars of claim. At a time when it was expected - at least by the defendant and by the court - that the claimant would continue to be legally represented, the case was set down for trial with an estimate of ten days.

[8]Unfortunately, shortly before the pre-trial review on 22 November 2004, the claimant lost his legal representation. He had just over a fortnight in which to prepare a trial involving complex issues of fact, expert evidence and law. Preliminary matters and the claimant’s opening occupied the first day and most of the second day of the trial, 6 and 7 December 2004. On the afternoon of the second day evidence was taken from one of the claimant’s witnesses of fact, Mr Raymond Bristow. At the start of the third day, Wednesday 8 December, the claimant told me that he wished to add to his amended particulars of claim and to supplement his expert evidence, and Mr Evans told me that the defendant objected to these proposals. I directed that these proposals be set out in writing for consideration.

[9]In the meantime, the parties were content to proceed with evidence, and the claimant gave his evidence in chief by reference to his written statements. He was then cross-examined until the short adjournment. The cross-examination proceeded no further, however. The reason was that the afternoon was taken up with argument about the material which had now been reduced to writing. On the proposed additions to the amended particulars of claim the defendant agreed that the things the claimant wished to say did not require any permission from the court. However, on the proposals concerning expert evidence the parties were unable to reach an agreement. Further submissions were heard on the fourth day, Thursday 9 December, with the claimant applying for an adjournment to enable him to put his proposed expert material in order.

[10]By this stage I had very serious concerns about the timetable, even if the claimant’s application were refused. It seemed to me that we were likely to have to adjourn in any event, for it would not be possible to complete the evidence in the time available in the remainder of the legal term. An advantage of adjourning immediately rather than at the end of the legal term was that there would be active case management so that arrangements were made for consideration of proposed additional evidence in orderly way. Mr Evans took instructions. After doing so he told me that the result was great unhappiness on the defendant’s side. Great efforts, he said, had been made on the defendant’s side to achieve a hearing and enormous latitude had been given to the claimant. The allegation against the defendant was very serious, and through the claimant it had been given considerable publicity. The defendant was anxious to clear its name as soon as possible. The situation was not of its making, and the defendant, suggested Mr Evans, had the right that it be brought to a conclusion as soon as practicable. Having said that, Mr Evans conceded that if the trial continued at the current pace it could not be said that it would finish before the end of term. Accordingly his instructions were that if the court considered an adjournment inevitable, he would say no more in opposition. If that was the court’s conclusion the adjournment ought to be immediate.

[11]In those circumstances I adjourned the trial and made arrangements for a hearing to consider further directions on 17 December 2004. At that hearing among other things I made orders which required that all further evidence on which the claimant relied was to be served by 28 January 2005, and was to comply with the provisions of part 35 of CPR. I also directed that the defendant was to serve questions for one of the claimant’s expert witnesses, Dr Durakovic by 12 January 2005, and that these questions were to be answered by 28 January 2005.

[12]The matter then came back before me on 11 February 2005, on which date a case management conference was held. Certain matters were agreed; other matters however were more contentious, and it was clear that the proposed expert evidence which the claimant wished to rely upon, additional to that which had been prepared for the original trial, called for further re-thinking. I ordered that the claimant should have permission to rely upon certain additional statements, together with accompanying documents, and additional evidence from or relating to Mr Bristow. I also made orders for the disclosure of documents relating to the testing of the claimant’s urine, and a statement describing instructions and information provided to him and action taken by him in relation to such testing. I then directed that any further material from the claimant must be served on the defendant’s solicitor by 23 March and that the matter should come back before me on 8 April 2005.

[13]At a case management conference on 8 April 2005 the claimant, who had previously been assisted by Ms Caroline D’Hesse Rogers as McKenzie friend, asked that Ms Jo Wilding be permitted to act as his McKenzie friend on that occasion and to address the court on his behalf as advocate. I concluded that the illness suffered by the claimant was such as to constitute exceptional circumstances within section 27(2)(c) of the Courts and Legal Services Act 1990. Accordingly I made an order permitting Ms Wilding to act as advocate for the purposes of that day. Various matters arose which I summarise as follows:(1) Four aspects of the claimant’s expert evidence were dealt with initially. On 12 November 2004 the court had given permission to the claimant to rely on the oral expert evidence of Dr Durakovic and Dr Busby. By agreement, I gave permission to rely upon further evidence of Dr Busby in specific reports and accompanying documents prepared after the adjournment of the trial in December. In part this material relied upon information which had not been disclosed by the claimant, and I therefore ordered that this information be supplied within 14 days. Also by agreement I ordered that the claimant have permission to rely upon further evidence of Dr Durakovic and permission to rely upon evidence of Dr Inge Schmitz-Feuerhake, both of whom were to give oral evidence. The fourth matter concerned a document produced by Leuren Moret and Marion Fulk. At one stage it had seemed that the claimant wished to rely upon this material as expert evidence. There was no application to adduce any opinion by them as expert evidence. I was told that Dr Busby made reference to their work, but did so in exactly the same way as he made reference to the work of published authors. I accordingly made no order in relation to these two individuals.

(2) In relation to the amended defence, it was agreed that the defendant should prepare certain re-amendments that it proposed along with witness statements or reports relevant to those amendments, and that any question of permission in relation to this material should be dealt with later.

(3) The defendant had found some samples of coils and proposed that a metallurgist be jointly instructed in cooperation with the claimant. I indicated that the claimant should decide whether he wished to take this course, or whether he wished his own metallurgist to inspect the coils and be present at whatever exercises were conducted by the metallurgist identified by the defendant. If he failed to take either of these courses, then the defendant would no doubt take such steps as it thought appropriate, and when the results emerged it would be for the claimant to consider whether he opposed reliance upon those results by the defendant.

(4) The defendant proposed to approach Professor Randall Parrish, who had earlier had an involvement in the case on behalf of the claimant. I indicated that if the defendant obtained a witness statement from him, then it must be disclosed to the claimant if the defendant wished to rely upon it.

(5) The defendant sought medical notes and records relating to the claimant and held in the United States of America. I indicated that it should write to the claimant setting out the form of authority needed to enable it to gain access to such notes and records. If, having considered the matter, the claimant was unwilling to grant such authority, then the defendant would be able to raise this on a subsequent occasion.

(6) The material prepared for the trial had included a short statement from Professor Hooper dealing with certain matters of fact. Mr Evans told me that the defendant did not propose to cross-examine him on those matters, its case being that they were not relevant to any issue. A proposal by the claimant that Professor Hooper should give additional evidence of an expert nature was one of the matters which led to the adjournment of the trial in December. When I saw the material that was proposed to be adduced by Professor Hooper in December, and again at the case management conference in February, I raised among other things my concern that I could not identify what it was about Professor Hooper’s own expertise that was said to be relevant to issues in this case. I was told by Ms Wilding on behalf of the claimant that Professor Hooper’s actual expertise is in biological mechanisms. I could not identify any issue in the case as to any particular biological mechanism on which Professor Hooper had any relevant expertise. On that ground I refused permission for a proposed report of Professor Hooper. I added that I had severe reservations about the independence of Professor Hooper. He had chosen to use his proposed expert report as an occasion when he could advocate on behalf of the claimant. That was not the role of an expert at all.

(7) The claimant proposed that he be entitled to rely upon a statement from Mr Buckland describing individuals who, he said, had worked at the defendant’s premises, had died on particular dates, and had been suffering from particular illnesses. This appeared to be linked with the question identified earlier concerning information which Dr Busby had relied upon. I indicated that any dispute between the parties as to the information put forward by Mr Buckland should be resolved once Dr Busby had furnished the information which I had ordered.

(8) It had been envisaged that the trial might resume in the summer term. As indicated above, however, there was substantial further material yet to be assembled. Bearing in mind that the claimant did not have legal representation, it seemed to me unlikely that this material could be assembled and assimilated in time to enable a hearing during the summer term. With a view to resumption of the trial in the autumn term, I directed that any further evidence which either side proposed to rely upon at the trial, or any amendment to a statement of case intended to be made for the trial, was to be disclosed to the other side by 20 May. I also ordered that there be a further case management conference in the fortnight beginning 7 June at which, with the benefit of details of witness availability, arrangements should be made to fix a date for the trial, and that there should be a pre-trial review, whose date would also be fixed at the case management conference. I emphasised that if there were to be any further factual or expert evidence not covered by the arrangements now made, there would have to be a very compelling reason indeed for the court to allow such material to be adduced.

[14]The next case management conference duly took place on 8 June 2005. The venue was the Cardiff Civil Justice Centre. The claimant acted in person, and was assisted by Ms Caroline D’Hesse Rogers as McKenzie friend. Mr Evans appeared for the defendant. In summary:(1) It was agreed that the trial should resume at the start of October and was estimated to last a further 4 to 6 weeks.

(2) It was agreed that the claimant be permitted to rely upon a further witness statement of his own, and upon a statement of Mr John Harvey dated 18 May 2005.

(3) It was agreed that the defendant should be permitted to rely upon the factual evidence of further witnesses, including the following : (a) Mr Clive Millar, the defendant’s quality assurance manager, who described searches for further documents, the identification of the sample components and their connection to the claimant. (b) Mr David Overd, the defendant’s engineering design manager for air systems, who had produced a second statement dealing with the function of solenoids, the identity of the samples found and their connection to the claimant. (c) Mr Richard Bartin, the defendant’s manufacturing engineering manager, dealing with the use of scrap materials to make tools and jigs. (d) Mr Michael Parker, health and safety manager for the defendant, dealing with a search for evidence about repairing parts from aircraft flown at high altitude.

(4) By agreement, the defendant was permitted to rely upon five further expert reports: (a) Report of Professor Randall Parrish of the Department of Geology of the University of Leicester, a specialist in uranium isotope analysis and mass spectrometry, dated 18 May 2005, dealing with the testing of urine for depleted uranium. (b) A further report of Dr Crane, specialist in occupational medicine and former senior occupational health physician at the Defence Evaluation and Research Agency, dated 19 May 2005, dealing with various matters arising. (c) Report of Professor John Newton, Honorary Professor of Public Health and Epidemiology in the University of Manchester, 19 May 2005, dealing with epidemiological techniques and Dr Busby’s contentions about the incidence of cancer. (d) Report of Simon Clark from Sandberg Consulting Engineers, dated 20 May 2005 and dealing with metallurgical examination of samples provided by the defendant. (e) A further report from Dr Cooke, to be prepared on receipt of medical reports relating to the testing carried out on the claimant in the USA in January 2005.

(5) Permission was given to the defendant for a re-amended defence subject to an undertaking as to the provision of particulars.

(6) The parties were to seek to agree arrangements for testing of urine samples taken from the claimant in 1999 and 2000.

(7) An application was made by the claimant for disclosure of documents or information from the defendant’s personnel department pertaining to the period 1988 to 1998, giving the names and dates of birth of workers in the workshop where the claimant worked, together with details of any cancer diagnosis over the same period as known to the personnel department. I refused this application. The basis for the application was that this material was sought by Dr Busby. What Dr Busby said was that in an ideal world one would have this additional information, but the information already provided enabled him to draw conclusions. It seemed to me that an order of the kind proposed should only be made if there were compelling reasons for it. As Dr Busby said he could proceed without it, the proposed order was not needed. In addition, compliance with such an order would require a huge amount of work, the information would be unlikely to give a complete picture, and even if it gave a complete picture would be likely to be of little value. It was also too late to make such a wide ranging request if the trial date were to be kept. Allied to this application were requests by the claimant that I should make orders requiring the South West Cancer Intelligence Agency to disclose various information. That agency was not before the court and thus it would have been inappropriate to make such orders. In any event, I indicated that this proposal would be inappropriate for the same reasons as had led me to refuse the application for disclosure.

(8) In a supplementary statement dated 2 June 2005 Dr Busby discussed three matters. The first was new information produced by the defendant, which led Dr Busby to think that the defendant had cleaned parts from aircrafts which flew in the Stratosphere and were heavily contaminated with radioactive dust from nuclear weapons fall out. The second concerned the re-suspension of radioactive dust. The third dealt with the affinity of uranium to DNA and the consequence of this for genetic damage and health. I was asked by the claimant to permit Dr Busby to lodge a full supplementary statement dealing with these matters by 30 July 2005. It seemed to me that the proposal to delay provision of such a report until 30 July 2005 was impractical if the trial date were to be kept. I had previously indicated that new material could not be relied upon without there being good reason to do so. The claimant had made no attempt to explain why this material emerged so late. I therefore refused the application, leaving open the possibility that the claimant might make an urgent application to adduce this material if he considered that he was able to show a sufficiently compelling reason.

(9) I directed that a pre-trial review be fixed to take place during the last fortnight in July.

[15]Having considered what I had said about the application to rely upon further evidence from Dr Busby, the claimant lodged further statements from himself and Dr Busby in support of a contention that there were compelling reasons to allow an application for further evidence from Dr Busby. This application was dealt with at a further hearing at the Cardiff Civil Justice Centre on 8 July 2005. The claimant acted in person, and was assisted by Ms Caroline D’Hesse Rogers as McKenzie friend. Mr Evans appeared for the defendant. In summary:(1) It became clear that the material which Dr Busby wished to adduce concerning re-suspension of radioactive dust and the binding of uranium to DNA and its consequences did not involve any suggestion of a new route of exposure of the claimant to radioactive material, nor did it require any revision to the amended particulars of claim. The defendant accepted that it could deal with this material in time for the resumption of the trial of October. Accordingly, I gave permission for the claimant to rely on those parts of Dr Busby’s report dated 25 June 2005 which dealt with these topics, namely parts 3 and 4.

(2) However, parts 1 and 2 of that report, which developed the suggestion first advanced on 2 June 2005 that the claimant had been exposed not to depleted uranium but to stratospheric fallout from the testing of nuclear weapons, were in an entirely different category. I was concerned about delay - especially as Dr Busby had written a book on the topic of nuclear weapons fallout in 1995, and these points could have been advanced at the start of the year when time was set aside for the claimant to get his expert evidence in order. There was no adequate explanation for the delay, and the making of a new case at this stage would put the resumption of the trial in October in real jeopardy. Second, the basis for putting forward the proposed new case was hopelessly unparticularised. Sweeping assertions were made in proposed re-amended particulars of claim and by Dr Busby. They simply did not give the necessary factual basis to show that there was any sort of case which could be made on behalf of the claimant. There were no proper particulars of how the alleged dust was created, the degree to which it was radioactive, and how, when and where the claimant was exposed to it. The proposed new case was so vague and unparticularised that it would be impossible to deal with at trial. For these reasons I refused to allow parts 1 and 2 of the report to be put in evidence and I refused permission to re-amend the particulars of claim.

[16]At a pre-trial review held in London on 22 July 2005 the claimant was assisted Ms D’Hesse Rogers as McKenzie friend and Mr Evans appeared on behalf of the defendant. A timetable for oral evidence and submissions, spanning the period from 4 October 2005 to 23 November 2005, was agreed.

[17]In accordance with these arrangements the trial resumed on 4 October 2005. On this occasion the claimant was assisted by Mr Richard Crump as McKenzie friend. Mr Evans and Mr Sinai appeared for the defendant. At the outset, the claimant made an application that parts 1 and 2 of the statements of Dr Busy dated 25 June 2005 be admitted in evidence, not withstanding my decision of 8 July 2005 to the contrary. He suggested that there was additional material which the defendant should disclose to him. He also applied to call the evidence of a clinical geneticist, an application which was unsupported by any proposed report because no such person was available until 11 October. None of these matters has been raised in advance with the defendant or with the court. The claimant sought to explain by saying that he had serious cognitive problems, and difficulties in communicating. He accepted that the application for further evidence from Dr Busby simply repeated points he had made unsuccessfully on 8 July 2005, and that the application for disclosure was allied to this. He wished to call a clinical geneticist to tell the court about what triggered his symptoms. After consideration of objections by the defendant, I refused all three applications. So far as additional evidence from Dr Busby, and the additional disclosure, were concerned, I could identify no change in circumstances since 8 July, and no reason to change the view that I reached then. If the claimant had wished to challenge that view, the appropriate course would have been for him to have sought permission to appeal. As to the suggested evidence of a clinical geneticist, without the benefit of a report it seemed to me impossible to grant such a late application. The remainder of 4 October was spent dealing with other preliminary matters.

[18]The trial accordingly resumed on 5 October 2005 with the claimant attending in person, assisted by Mr Richard Crump as his McKenzie friend. Mr Evans and Mr Sinai again appeared for the defendant. However at the start of the proceedings the claimant made a statement which caused me very great concern. I shall put it in his own words:

“I am cracking up, I want to call it a day. I could not find anywhere to sleep last night.”

At this point Mr Evans informed me that the claimant had said that he wanted to discontinue the proceedings. It seemed to me that the claimant needed time to get medical help. I therefore adjourned the hearing until 2.pm. on Monday 10 October 2005.

[19]On 7 October 2005 the claimant wrote to the court, stating, among other things:

“I feel that I must tell you that the last few days have been very harrowing for me, my illnesses unbeknown to me have manifested in mental impairment which under even slightly stressful situations renders me incapable of rational thoughts, arguments, or being able to take care of myself. I have in fact been in a state of anguish, only today feeling able to turn on this computer. I have seen a GP…[who] is not my GP…I cannot see my GP Dr Bastin until Monday, which is the day we are meeting,…and feel quite desperately ill…I have never had suicidal tendencies, but am sure that I would not be alive after more than a couple of weeks, and in practical terms I would be homeless in any case. I am not prepared to withdraw my claim as to do so would make my entire story and reason for my lost life a total fabrication, which it is not. I would like you to make an order closing the trial on humane grounds…”

[20]In accordance with this letter the claimant did not attend the hearing on 10 October 2005. At that hearing I heard submissions by Mr Evans, and concluded that I should adjourn the matter to 17 October 2005. This would give the claimant time to consider his position having seen Dr Bastin. It would also enable the defendant to consider the steps it might wish to take to bring the proceedings to an end, assuming that the claimant did not depart from the stance adopted in the letter of 7 October 2005.

[21]The claimant wrote a further letter to the court on 14 October 2005. This letter included the following:

“After careful consideration for both my physical and mental health this case does need to close, I have a nurse visiting me every day and I do feel physically ill. A trip to London on Monday is most inadvisable…Dr Bastin…had …taken matters out of my hands and alerted the mental health crisis team from Exeter, they were out within an hour assessing me and prescribe strong medication. They have attended every day…as I live alone. There will be visits from a psychiatrist, but they feel I must actually close the book on this issue and I agree, having frightened myself last week in London, not realising just what an effect this has had on me. I will attempt to get an early telephone appointment with Dr Bastin in order for him to advise you that the trial must close before the meeting which I am supposed to attend, but at the moment [it is] totally impossible for me to leave my flat. I have conceded that I will withdraw my claim, in order to close the trial, but I do not retract my allegations…I do not see that Mr Evans’ suggestion of a way forward [namely, for the court to treat the claimant’s case as having been presented and the defendant’s evidence to be heard] could allow me a fair hearing… the fact is that I do have to stand back now, so the only option is to agree to…judgment for the defence, I do not accept any of the other items [i.e. proposals by the defendant for orders in relation to cost] as it is not my or anyone else’s fault that my health failed at the crucial point. No expert witness refused to attend trial. All stand by their reports, which were very carefully scientifically considered specifically to my case!”

An e-mail from the claimant on the morning of 17 October 2005 repeated certain of these points.

[22]In the light of this correspondence the hearing on 17 October 2005 took place in the absence of the claimant. Mr Evans advanced three propositions:(1) The claimant had conceded that there should be judgment, on the footing that the claimant discontinued the proceedings. However, that approach was coupled with a refusal to accept liability for costs, and in the absence of a court order otherwise, a claimant who discontinues is liable for costs under CPR 38.6. It followed that the communications which the claimant had sent to the court could not constitute a notice of discontinuance.

(2) The defendant having concluded that it would be inappropriate to elect not to call evidence, the only course was for the court to continue with the case and hear the defendant’s evidence. This would be on the footing that Mr Evans would, in the defendant’s closing submission, refer to all those parts of the claimant’s evidence which the claimant would wish the court to consider and all the arguments which the claimant would wish to advance.

(3) It would be inappropriate to adjourn the proceedings further. The claimant had not suggested any further adjournment, and a further adjournment might not be in his best interest. Given the history of events set out earlier in this judgment, I concluded that I agreed with each of those propositions and that it would be appropriate to proceed in the manner suggested by the defendant. The remainder of 17 October 2005 was accordingly taken up with the oral evidence of four witnesses called by the defendant and with the formal introduction into evidence of the statements of eight witnesses whom the claimant had indicated that he did not wish to cross-examine.

[23]Dr Raymond Granville Crane was the first witness called by the defendant on 17 October 2005. He is a fellow of the Faculty of Occupation Medicine of the Royal College of Physicians. Among other posts held, he has been the lead occupational physician in the inspection by the Health and Safety Executive of atomic weapons establishments, and has been the senior occupational health physician at the Defence Evaluation and Research Agency, where he was responsible for the health surveillance of a substantial group of workers potentially exposed to DU. In his oral evidence he verified reports which he had prepared as follows:(1) His first report (C/185) was dated 25 October 2004. This included the following: (a) The claimant had reported that the defendant used as core material for the coils a heavy metal alloy. Mr Giles, managing director of the defendant from 1980 until2001, had stated that this alloy was known as Radiometal 4550. There was no significant epidemiological evidence that fibrosing alveolitis (one of the 1998 Symptoms) could develop to the constituents of this alloy. The nickel content could give rise to a allergic lung disease such as asthma, but there was no suggestion that the claimant had asthma. (b) He understood that heavy metal containing tungsten was not used in the defendant’s factory but was used in the adjacent factory belonging to Westland. Tungsten would have the propensity to cause a fibrosing alveolitis where it is associated with cobalt. The condition would only occur in circumstances of heavy daily exposure for a period of months to years and not in response to incidental exposure. The metal used by Westland could not itself be the source of fibrosis due to the lack of cobalt, but the tools used to machine relevant work pieces would be more than likely to contain cobalt. (c) DU is only weakly radioactive and predominantly produces alpha particles. These are only able to penetrate tissue superficially to a depth of about 30 micron. Whilst these particles are radiologically damaging they are unable to penetrate into human tissues through skin, the outer layer of the skin being dead. Where the material is absorbed internally there is more potential for cellular of genetic damage. (d) The potential health effects of uranium and DU arise out of its radioactivity and toxicity. In May 2001 a Royal Society report, The Health Hazards of Depleted Uranium Munitions, Part I (“RS 2001”) had found no direct evidence that low level inhaled or ingested uranium caused cancer in humans. (e) Studies from workers occupationally exposed to uranium had shown toxicity to the kidney in some employees. This had also been observed in soldiers in retained DU shrapnel. (f) DU oxidised readily, especially when heated. The weights used by Westland were reported to have been plated with nickel and painted. This would protect the weight and importantly prevent and dehiscence of the material. Any surface damage would be quickly covered in an oxide covering which would prevent further degradation. (g) In order for a coil to perform its function it is necessary that the coil should be capable of being magnetised. A core made of uranium would fail to function as it would not have properties enabling it to be magnetised. (h) In March 2002 the Royal Society published The Health Hazards of Depleted Uranium Munitions, Part II (“RS report 2002”). This showed that when measuring uranium in urine naturally occurring uranium had a U238/U235 ratio of 138 whereas DU had a ratio of about 490. The tests relied upon by Dr Durakovic had identified a ratio in the claimant’s urine of 147.0. This was more consistent with naturally occurring uranium than with DU. The small increase above 138 could be due to the low level of DU in the environment, or to difficulties in measurement. Any excess radiation dose that the claimant had experienced from DU intake was likely to be small compared with the daily dose from natural sources of radiation including that from environmental DU. (i) Tests on the claimant’s blood had been conducted on his behalf by Dr Hoffman in order to assess chromosome damage in circulating lymphocytes. The level of dicentric aberrations of 0.005 identified by Dr Hoffman could be consistent with background radiation. The suggestion by Dr Hoffman that a controlled population study in Bremen had a dicentric ratio of 0.0005 was questionable. Further, the confidence intervals at low dicentric counts were wide. (j) Known exposure of the claimant to radiation in the form of two CT scans, a fine section CT scan, chest and other X-rays would suggest that he had received a dose of about 20 milliSieverts in total. In addition there may have been further exposure to radiation through dental X-rays and naturally occurring radon found in the geographic area where the claimant lived. (k) Dr Busby’s interpretation of the claimant’s test results was based upon a report by the European Committee on Radiation Risk in 2003, The Health Effects of Ionising Radiation Exposure at Low Doses for Radiation Protection Purposes (“ECRR 2003”). This alleged that the International Commission on Radiological Protection had underestimated health risks from internal emitter radionuclide. However, the ECRR was sponsored by an anti-radiation action group, and its methodology for estimating radiation dose had been vigorously criticised, in particular by the National Radiological Protection Board (“NRPB”). (l) Gitelman’s syndrome is an autosomal recessive renal disorder characterised by disordered potassium magnesium and calcium handling. A number of different mutations exists which give rise to the syndrome. In the claimant’s case two mutations, W172 and S555L were detected. The W172 mutation had been previously reported. The S555L mutation had not previously been mentioned in the literature. Compound mutations are frequent in this condition and about 90 mutation variations exist. Many individuals with the syndrome are diagnosed when young and with significant symptomatology. Dr Crane was unaware of any epidemiological evidence to suggest that Gitelman’s syndrome was caused by radiation. It was typified by many different gene mutations, often compound mutations. (m) Pulmonary fibrosis could be related to radiation exposure. The dose required would be in excess of the order of 8 Gray. There was no indication from the witness statements that there could have been day after day releases from the Westland site or DU oxide that would have selectively affected the claimant with this order of radiation dose. (n) Taking the results of the urine analysis and the chromosome aberration studies together would tend to suggest that the claimant had not been significantly exposed to DU beyond that emanating from the environment.

(2) His second report dated 19 May 2005 (C1/305).

(3) His third report dated 9 September 2005 (C1/320).

(4) His fourth report dated 22 September 2005 (C1/332A).

[24]Dr Roger Anthony Cooke was the second witness called by the defendant on 17 October 2005. Dr Cooke is a Consultant and, among other qualifications is an elected fellow of the Faculty of Occupational Medicine of the Royal College of Physicians. He verified his reports as follows:(1) His first report dated 15 January 2004 (C/151), prepared after conducting a medical examination of the claimant on 28 November 2003. In the concluding section of this report Dr Cooke said that the claimant complained of a range of diverse symptoms which appeared to be compatible with him suffering from Gitelman’s syndrome. He presented as being both anxious and obsessional in respect of his health. On the basis of a single consultation it was not possible to state whether this resulted from the symptoms, was a partial cause of the symptoms or both. However, the claimant had previously been described (in 1989) as being an anxious, obsessional individual. There was evidence of him previously attributing blame to his employers for medical problems, raising the possibility that he is an individual who has a psychological need for such attribution, although the alternative that the employers were indeed to blame could not be overlooked. It was Dr Cooke’s opinion that the combination of late onset of symptoms associated with Gitelman’s syndrome with such a personality accounted for the claimant’s current state of ill health. The non-specific nature of the symptoms, combined with their onset in adult life, might have resulted in understandable difficulty in acceptance of them resulting in the claimant’s search for another cause. It was Dr Cooke’s opinion that this was substantially more likely to be the background to the reported symptoms than an as yet undefined exposure to a material which had not, to date, been shown to produce such effects.

(2) His second report dated 9 September 2005 (C1/424).

[25]Professor Randall Richardson Parrish was the third witness called by the defendant on 17 October 2005. Professor Parrish is professor of isotope geology at the University of Leicester and head of the NERC Isotope Geosciences Laboratories he is, and has been since 1998 the head of Isotope Geoscience for the British Geological Survey. His expertise involves the measurement of the concentration and full isotope composition of uranium in minerals, waters, environmental material, and human urine using chemical separation methods, isotope dilution and advanced maths spectrometry. He verified the following material:(1) A letter he had written to the claimant’s then solicitors on 28 February 2005 (C1/214). This dealt with measurement of uranium in the claimant’s urine from a sample taken in approximately late November 2004. DU contaminated urine would have a ratio of U238/U235 greater than 137.88. However the claimant’s samples showed no deviations from natural uranium in any of the isotopes measured. The concentration of uranium in his urine was squarely with the range of the normal population. As to whether the claimant may have been contaminated in the past, any amount of uranium that might be contained in our bodies through contamination would, in time, be gradually passed out through processes such as bone remodelling, and dissolution of uranium oxide particles via inhalation, although this was likely to take years. Results described by Dr Durakovic lacked a concentration measurement of uranium, lacked identification of uncertainties, and were difficult to reconcile with Professor Parrish’s result. Professor Parrish had measured at the request of Dr Durakovic other urine samples that by his method tested positive for DU and found essentially only natural uranium, and Professor Parrish had developed scepticism for the accuracy of his measurements. While it was possible that all traces of DU had been flushed from the claimant in the approximately 4 to 5 years between the two tests, there was little if any evidence to suggest that this would be expected in normal biological processes. It would depend on the total amount of DU in the claimant’s body, which could not be estimated on the basis of Dr Durakovic’s test since he did not report concentration. Data on veterans and others known to have been exposed to DU indicated that with a significant quantifiable inhalation exposure, it was possible still to detect the DU signal in urine after more than 20 years. People who may have had exposure in the last ten years, but who failed to show any DU signal in their urine were likely to have had a much smaller exposure.

(2) His report dated 18 May 2005 prepared for the defendant (C1/217). Among other things, the report concluded that results of isotopes analysis from the Memorial University of Newfoundland (MUN) were not like to be consistently reliable. This and other matters seriously undermined confidence in the July 1999 measurement by MUN of 147 for the ratio of U238/U235 in the claimant’s urine. The issue of contamination of the claimant with DU could be resolved by an analysis, using capable laboratories, of existing urine samples from the claimant dated July 1999, spring 2000 and November 2004.

(3) His letter dated 11 September 2005 to the defendant’s solicitors (C1/302). This reported Professor Parrish’s analysis of the July 1999 and April 2000 urine samples of the claimant. They had been split into two aliquots, one of which had been tested by Professor Parrish and the other of which had been sent to Dr Gerdes of the University of Frankfurt. Analysis of the aliquots retained by Professor Parrish showed that the concentration of uranium was well within the normal range, that there was no detectable U236, which occurred in most samples of depleted uranium or enriched uranium, and that allowing for uncertainty margins the U238/U235 ratio overlapped the natural value. The U234/U238 value fell within the range observed in drinking waters and natural values for soluble uranium. There was no evidence for anything other than natural uranium in the samples.

(4) A record (C1/304) signed by, among others, Professor Parrish and the claimant, of the splitting of the samples into aliquots.

[26]Mr Alan Edward Lucas was the fourth witness called by the defendant on the 17 October 2005. Mr Lucas verified his first witness statement (C/85) in which he recorded that for many years he worked in the coil winding assembly section at the defendant’s factory, and that when in 1989 the claimant came to work in that section he was asked to take the claimant under his wing. Data sheets were available for materials used and there had been no suggestion that DU was used in the production of coils. Mr Lucas was surprised by a suggestion that the claimant had been involved in the development work of coils associated with a bid to obtain work in connection with the Euro fighter programme. He was fairly certain that he would have had at least some awareness or knowledge of the claimant working on development projects. Mr Lucas also verified his second witness statement (C/88) which described the manner of working in the coil room. The core would arrive in a machined state ready for assembly. Any nickel plating or ceramic spraying would have been done in the machine shop before reaching the coil room. The core might need to be insulated with insulating tape and bakelite washers for the flanges. This would be covered in a work sheet. The winding process was automatic after the machine had been set, and on completion the core would be insulated on the outside surface with fibre glass tape, impregnated with varnish and quell in an oven. No machining would be undertaking on a coil assembly.

[27]The fifth witness called by the defendant on 17 October 2005 was Professor John Norman Newton, Consultant epidemiologist and honorary Professor of public health and epidemiology in the University of Manchester. He verified his report (C1/333). Professor Newton commented on section 15 of Dr Busby’s report, which presented two separate sets of data: an analysis of cancer death rates in seven wards in Somerset and an analysis of the expected number of deaths from cancer in the claimant’s work mates compared with actual reported deaths. Professor Newton’s comments included the following:(1) Dr Busby’s spatial epidemiology based on use of small-area statistics to identify locally raised rates of disease or “clusters” had problems including: (a) There was no clearly stated prior hypothesis being tested. (b) It was hardly surprising that when multiple comparisons were made some of the rates were above average: it was to be expected that approximately half would be above average and half below. One did not know how many other wards were examined and for which no data were presented. Statistical techniques which allowed for multiple comparisons had not been used by Dr Busby. (c) If the prior hypothesis had been that exposure to DU at the defendant’s premises was causing increased rates of cancer in the local area, relevant WHO guidance indicated that rates of male lung cancer could be expected to be raised. In Dr Busby’s data male lung cancer rates were noticeably raised only in one of the seven wards, and were below average in five of them. The ward with a raised rate was not that said to be “adjacent to the site” where the claimant worked. In the latter ward the standardised mortality ratio for lung cancer was less that the national average.

(2) It was not clear what interpretation Dr Busy drew from these data other than that he believed that they signified real increased risks for cancer in the area concerned.

(3) Professor Newton interpreted these data as representing an entirely unremarkable pattern of variation commonly observed in small area statistics of this form.

(4) A previous analysis by Dr Busby of electoral ward rates of cancer in a similar area was described by the Committee on Medical Aspects of Radiation in the Environment (“COMARE”) as “deeply flawed”.

(5) There was a lack of clinical information to validate the reported diagnosis of cancer among the claimant’s workmates or the sites of such cancers – for example cancer in the liver most often occurred as a secondary cancer spread from primary sites elsewhere. Dr Busby seemed to have assumed that references to cancer of the liver were primary liver cancers.

(6) In calculating a rate of occurrence, the denominator chosen by Dr Busby was likely to be substantially too low: (a) Mr Buckland referred to five definite deaths from cancer in a 24 year period, not a 10 year period as assumed by Dr Busby. (b) Dr Busby wrongly assumed that the same men worked at the factory continuously, whereas the denominator should be the number of men who had ever worked at the factory since 1980, no matter how short their association with it.

(7) Again there was a problem of post hoc analysis: there had been no prior definition of sampling frames, nor had they been defined on the basis of any objective method independent of the distribution of the observed case.

(8) There had been no allowance for confounding to take account of the possibility that there were other factors that the men who worked for the defendant had in common and that may have increased their risk of cancer above the national average.

(9) Dr Busby himself acknowledged that the number of reported cases remained small.

(10) Data presented by Dr Busby did not constitute evidence of locally raised mortality rates in the areas that he indicated, and certainly did not provide evidence of exposure to DU as a likely cause of the claimant’s illness. The assumptions he made and the conclusions he drew were highly speculative and were not supported by the data he presented.

[28]The final matter dealt with at the hearing on 17 October 2005 was that the defendant put in evidence witness statements of eight individuals who were current or former employees of the defendant or of Honeywell Aerospace, Yeovil. These were Messrs:(1) Stevens (C/1),

(2) Giles (C/10),

(3) Hand (C/133),

(4) Overd (C/135 and C1/63),

(5) Pilbeam (C/137 & 142),

(6) Miller (C1/1),

(7) Bartin (C1/66)

(8) Parker (C1/68).

[29]The hearing continued on Tuesday 18 October with no attendance by the claimant. The defendant called five further witnesses to give oral evidence.

[30]Mr John Francis Coyne was the first witness called by the defendant on 18 October 2005. He verified his statement (C/6), which explained that between 1980 and 1991 he was Superintendent in charge of numerous workshops at the defendant’s factory including the coil assembly shop. Accordingly, when the claimant moved to the coil winding assembly department in 1989 he would have been under Mr Coyne’s overall control, although he would have been directly responsible to a departmental foreman. Mr Coyne did not remember the claimant in person. Mr Coyne stated that the core of the coil, known as a “coil former”, was made of various metals, the main requirement being that it have magnetic properties in order to operate the solenoid switch. If any need for machining arose the particular piece would go back to the machine shop. Data sheets for all material used were always available and if any particular precautions or procedures were needed when working on a particular material then this would be brought to the attention of all concerned and such procedures would have been enforced. Mr Coyne understood that the core of the coil was made from what he termed “Swedish iron”, which he understood to be a totally harmless and innocuous material. Mr Coyne said he would be surprised if the claimant had been used on developmental coil work in connection with the European fighter programme, for any such work would have been directed to Alan Lucas who was far more experienced. Equally he would be surprised if someone in the claimant’s position as a general fitter would have liaised directly with Westland.

[31]Mr Barry Kevin Tucker was the second witness called by the defendant on 18 October 2005. He verified his statement (C/95) which explained that he was a chartered engineer employed by Westland Helicopters since 1974, taking on responsibility for health and safety issues in 1990/1991. Westland’s records showed that in 1965 DU had been used for the first time as the material for balance weights for rotor blades. The DU was supplied by British Nuclear Fuels Limited, and arrived machined and ready for use. Its use was strictly controlled. The weights were plated with a coating of nickel and painted and staff using the material were under strict instructions not to machine, file or damage the protective nickel coating. There was no reason why any dust should be produced from the DU weights. A scheme of work for the use of DU as balance weights at the Yeovil Plant had been approved by HM Factory Inspectorate in 1974. The blades were tested on a tower rig which was close to one of the staff car parks which may have been used on occasions by the claimant. However the tower rig was a restricted area with only authorised blade testing staff having access through a controlled physical barrier. The claimant would therefore not be able to touch the tower rig or to touch any blade on that rig. From 1977 the use of DU at Yeovil ended, and if old blades came in for refurbishment which might involve the substitution of DU weights with weights made of a replacement alloy, this procedure would have been undertaken at the company’s plant at Weston-Super-Mare and not at Yeovil. As the claimant had started work on the adjacent site occupied by the defendant’s premises only in 1985 he simply could not have been exposed to any DU on the Westland site. His work as a semi-skilled fitter at the defendant would not have required any legitimate contact with the blade manufacturing operations in Westland Helicopters.

[32]Mr Michael John Tuck was the third witness called by the defendant on 18 October 2005. He verified his witness statement (C/122), which explained that he had been the defendant’s Airworthiness and Configuration Manager in 2000, when a detailed investigation was conducted at the request of the Health and Safety Executive into the possibility that the claimant may have been exposed to DU during the course of his employment at the Yeovil Plant. A database was produced of parts that had been manufactured by the claimant, and the materials used in such manufacture were checked against specification documents which described the composition of relevant materials and processes. The investigations which Mr Tuck conducted did not reveal either the presence, or any connection with usage, of DU.

[33]Mr Anthony Colin Johnson was the fourth witness called by the defendant on 18 October 2005. In 1985 he had been Supervisor (Methods Engineer Technical) and between 1994 and 1999 he had been Superintendent of that department. During his career with the company he had at no time been aware of DU being used as a material in any production process with which he had been involved.

[34]Mr Simon Christopher Clarke was the fifth witness called by the defendant on 18 October 2005. Mr Clarke verified his report (C1/345), which explained that he had been a partner in Sandberg Consulting Engineers since 1997, has held the status of chartered engineer since 1984, and has been a Fellow of the Institute of Non-Destructive Testing since 1998. Mr Clarke produced as exhibits sections of coil samples which had been provided to him by the defendant. His report explained that he had taken the samples to Stanger Material Science (“SMS”) for detailed EDAX analysis. This involved the use of a Scanning Electron Microscope with an attachment for Energy Dispersive Analysis by X-ray. Such analysis would not differentiate between different isotopes of uranium. The purpose of the analysis was to determine what the individual components in the coil were manufactured from and to find out whether there were any components that may have been manufactured from uranium or from alloys containing uranium. The results clearly showed that none of the coils contained uranium components, nor did they show evidence of uranium present as contamination in the areas examined. As to alloys containing uranium, the detection limit was approximately one percent. If there were an alloy containing more than one percent uranium it would show up on the trace of the EDAX spectrum. None had done so.

[35]Following the conclusion of Mr Clarke’s evidence, Mr Evans on behalf of the defendant stated that the evidence for the defendant was complete.

[36]The hearing resumed on 26 October 2005 without attendance by the claimant. In the intervening period Mr Evans and Mr Sinai had prepared a written document entitled “Defendant’s Closing Submission”. I shall refer to this document as “DCS”. During the remainder of the hearing Mr Evans took me through the detail of this document, which runs to 112 pages. In this judgment I shall deal with such matters of detail as appear to me to be relevant when I come to my examination of the areas of dispute. For the present I am concerned only with the history of the proceedings, and for that purpose it suffices, for the most part, to give an overview of the detailed material that I was taken through.

[37]The first part of DCS was concerned with the claimant’s case. The first section in this part sought to divide the claimant’s case into a logical structure and provide relevant references in the evidence he had produced, allocated to the following general areas:(1) Employment history and work carried out;

(2) Materials used in the work of the claimant;

(3) Proximity to Westland and the use of DU;

(4) Opportunities for exposure to dust;

(5) Evidence of DU in the Claimant’s body;

(6) Medical complaints;

(7) Causation;

(8) Dying colleagues.

[38]In the remainder of the first part the DCS went through the claimant’s documents, his medical evidence, and the evidence of Dr Durakovic, Professor Schmitz-Feuerhake, and Dr Busby. This part of DCS concluded with an overview of the claimant’s case as follows:(1) The claimant relies upon the evidence of DU in his urine and the results of the chromosome analysis to establish that he has been exposed to DU.

(2) He relies upon Dr Busby to establish that his exposure to DU is such that it cannot have come from the [non-work] environment.

(3) He concludes therefore that he must have been exposed at work with the defendant. He has chosen the defendant, rather than any previous employer apparently because his ill health commenced during that employment and the defendant is in the arms and aviation business.

(4) He explains the absence of any record of DU having been used at any time by the defendant by relying on evidence that Honeywell uses DU in some business activity in the USA and those producing DU have a corporate connection with Honeywell. This means that it was brought on to the defendant’s premises and used by it as a result of a conspiracy between the corporations involved and the authorities. He also relies upon the use by Westland of DU, which caused his exposure to DU dust.

(5) His ill health was caused by his exposure to DU because Dr Busby calculates that the effect of the DU in his body is far greater than generally thought to be the case and his symptoms are all the same as Gulf War veterans have experienced, and they have also been exposed to DU.

(6) He should be allowed to claim for these symptoms despite the previous proceedings and settlement, but giving credit for the money received, because his exposure to DU was not known at the time of the settlement, he did not know that the symptoms could have been caused by radiation and he was badly advised.

[39]Part 2 of DCS concerned the defendant’s evidence. Mr Evans began taking me through this part on the afternoon of 26 October 2005. On the following day, Thursday 27 October 2005, the claimant attended the hearing. Mr Evans resumed taking me through the second part of DCS. This comprised a summary of factual and expert witness evidence for the defendant. When taking me through the evidence of Mr Clarke, Mr Evans referred to certain of the EDAX analyses prepared by SMS, on which it seemed that the analysis showed a small trace of uranium. Mr Evans submitted that Mr Clarke had not regarded this as a finding of the presence of uranium. I asked whether Mr Clarke said this explicitly, and Mr Evans acknowledged that there was no express statement to that effect. In those circumstances I invited Mr Evans to seek Mr Clarke’s comments on the references to uranium in these analyses.

[40]Mr Evans then turned to the third part of DCS which was concerned with the law. The remainder of 27 October 2005 was taken up with the first section of this part of the DCS, involving an examination of regulatory and statutory provisions. At this stage Mr Evans was about half way through his submissions, and it was clear that another two days would be needed for them to be completed. It was arranged that the hearing should therefore continue on Monday 14 and Thursday 17 November 2005 for this purpose, a gap between the two dates being scheduled so that the claimant would have time to assimilate what had been said on 14 November before the hearing resumed on 17 November. E-mails had been sent by the claimant on 21 and 26 October 2005 setting out a number of contentions, and I asked that the defendant prepare a table identifying where points made in those e-mails could be found in the section of DCS dealing with the claimant’s case.

[41]On 31 October 2005, however, the claimant e-mailed to say that he wished to withdraw/amend the recently submitted material. He also said that his GP considered it most unwise for him to come to the trial again. This was confirmed in a letter from Dr Bastin dated 1 November, which added that although the claimant was not able to make court appearances he was perfectly capable of giving written submissions. In accordance with these indications the claimant did not attend the resumed hearing on 14 November 2005; however he sent an e-mail on 2 November 2005 enclosing an article in The Times about Trooper Daniel Martin’s claim for Gulf War Syndrome, and an e-mail of 8 November 2005 enclosing a document entitled “Claimant’s request for judgment”.

[42]Mr Evans began the hearing on 14 November 2005 by taking me through a supplementary report which had been prepared by Mr Clarke (C1/423A). There were however some aspects of the supplementary report on which Mr Evans needed to make inquiries. He therefore moved on to resume taking me through part 3 of DCS.

[43]At the start of the afternoon session on 14 November 2005 Mr Evans, with my permission, re-called Mr Clarke. In his oral evidence Mr Clarke explained the answer to the point that had been troubling me. On the graphs produced by SMS the horizontal axis set out particular energy levels, measured in thousand electron volts. The vertical axis showed the number of pulses for each relevant energy level. The EDAX facility worked by analysing the wavelength of the emissions of radiation when a small piece of the material under scrutiny was bombarded with an electron beam. The energy from the beam excited electrons in atoms of the target material sufficiently to cause them to move to a higher energy orbit. As the electrons returned to their original orbits, a very small amount of energy in the form of radiation was emitted. The wavelength of this radiation will be dependent upon the difference in energy between the two electron orbits. Depending on the energy of the electron beam and the material being targeted, electrons in different orbits may be affected giving rise to a pattern of emissions. The graphs consistently showed very many readings of a very low number of pulses at different energy levels. These were not significant: they were either radiation which happened to be there, or were readings which were false because they had arisen during the amplification process. Readings which were derived from the presence of particular elements involved peaks that were very much higher. There were no such peaks for uranium.

[44]Earlier that day an e-mail had been received from the claimant enclosing, among other things, a document entitled “Claimant’s Closing submission.” I shall refer to this document as “CCS”. The e-mail also enclosed notes by Dr Busby dated 5 and 10 November 2005. Dr Busby suggested that the computer had automatically labelled “weak peaks”, and that the sensitivity had been adjusted on the graphs so that weak signals within the background noise were too low to be seen by the eye – but had nevertheless been resolved by the computer. Mr Clarke disagreed. He explained that the references to uranium appeared on the graphs because he had asked SMS to prepare graphs which indicated the place where one would expect to see a peak if uranium were indeed present. If the machine had identified a reading as indicating the presence of uranium then the SMS report would have said this. On the contrary, the SMS report stated expressly:

“No evidence of uranium was detected in the samples analysed…”

[45]The hearing continued on 17 November 2005 in the absence of the claimant. Mr Evans completed dealing with part 3 of DCS, and turned to the fourth part of DCS which dealt with the defendant’s case. The first three sections of this part of DCS comprised comments on the factual witnesses for the claimant, the documents relied on by the claimant, and the expert witnesses for he claimant. To the extent that I need to address these comments, I shall do so when I examine the areas of dispute later in this judgment.

[46]It was not possible for Mr Evans to complete taking me through the remainder of DCS on 17 November 2005, and the hearing accordingly resumed on Friday 25 November 2005 for that purpose. In the meantime the claimant was advised by the court that once the defendant’s submissions had concluded both parties would be sent my electronic notes of the defendant’s oral submissions, and the claimant would be asked to indicate whether he wished to add to or replace the submissions that he had communicated to the court. At the start of the hearing on 25 November 2005, in the absence of the claimant, Mr Evans completed taking me through the first three sections of the fourth part of DCS. He then turned to the remainder of that part. This involved an examination of nine relevant areas of dispute, which I shall analyse below. These were as follows:(a) Presence or absence of DU in the claimant.

(b) Presence or absence of DU at the claimant’s place of work.

(d) Opportunities for exposure to metal dust in the claimant’s work.

(e) Res Ipsa Loquitur

(f) Application of the regulations and common law to the evidence.

(g) The claimant’s illness.

(h) Causation

(i) The effect of the previous claim.

[47]Mr Evans then turned to the conclusion set out in the DCS. There were four routes by which the claimant said he could show exposure to DU. The first and second relied upon suggested evidence of DU in the claimant’s work rooms or at other locations on the defendant’s premises. Neither of these had been made good. The third was through use of DU at Westland – which had not been made good, and even if it had been made good would not give rise to legal liability on the part of the defendant. The fourth route was by relying on the presumption of Res Ipsa Loquitur, in the form of an assertion that there was DU in the claimant’s body and that it could only have arisen through exposure at the work place. This foundered because there was no satisfactory evidence of DU being present in the claimant’s body. Those conclusions were a sufficient answer to the claim. Nevertheless, Mr Evans added that if exposure to DU were proven, the mere fact of the exposure would not give rise to liability. The defendant suggested that any exposure would be minimal and that sufficient procedures were in place to raise the inference that there was no breach of duty on the part of the defendant. There was no evidence that the defendant was aware of DU on the premises. It was unreasonable to expect the defendant to be aware of any such presence. In those circumstances neither a common law claim nor a claim under relevant statutes and regulations could be sustained. Further, the only reliable evidence was that the claimant suffers from fibrosing alveolitis producing no current disability and Gitelman’s syndrome. There was no evidence that either condition could be caused by the exposure alleged by the claimant. There was ample evidence of causes which did not involve exposure to any substance. The only possible conclusion was that his ill health was not caused by ionising radiation. There being no evidence of exposure to any ionising radiation at work the cause must be elsewhere, both in absolute and material contribution terms. Mr Evans continued by saying that the symptoms of which the claimant now complained were all the same as the symptoms claimed in the previous proceedings. An actual diagnosis of Gitelman’s syndrome was not necessary for the previous claim to encompass the consequences of that disease. In the circumstances all of the symptoms were included in the previous compromise and the claimant was estopped from claiming further damages for any of them.

[48]The hearing on 25 November 2005 was thus the conclusion of oral argument. On 30 November 2005 both parties were sent by the court my electronic notes of the defendant’s oral submissions. I directed that any final submissions which the claimant wished to produce should be lodged by Friday 16 December 2005. If those submissions raised new points the defendant would be entitled to respond, but strictly limited to such new points, by 21 December 2005. There were then further communications from the parties as follows:(1) An e-mail raising queries about a document concerning hospital visits and X-ray examinations was sent by the claimant on 5 December 2005 and received a response from Mr Evans the same day.

(2) An e-mail from the claimant dated 8 December 2005 responded to the defendant’s criticisms of the ECRR and Dr Busby.

(3) An e-mail from the claimant dated 15 December 2005 enclosed a note from Professor Schmitz-Feuerhake responding to criticisms of her.

(4) On 16 December 2005 the claimant submitted a document entitled, “Adoptions of Claimant’s Submissions”. This document made a number of points in answer to the defendant’s closing submissions. I will deal with those points as appropriate when I examine the areas of dispute later in this judgment.

(5) Also on 16 December the claimant e-mailed a document prepared by Dr Busby and a recent report by the Institut de Radioprotection et de Sûreté Nucléaire (“IRSN”) entitled “Health consequences of chronic internal contamination by radionuclides.”

(6) On 16 December 2005 Mr Evans asked for an extension of time to respond on new points until 10 January 2006, and on 19 December 2005 I granted such an extension subject to any objections by the claimant. In an e-mail later that day the claimant did not object, but made various comments on the merits of his case.

(7) On 6 January 2006 Mr Evans lodged a document entitled “Defendant’s Reply to the claimant’s closing on the new evidence introduced.” Mr Evans added that he had sent the claimant a copy with a covering e-mail pointing out that there was no permission for any further submissions from him. The defendant’s position was that any further submissions from him should not be read and in the interests of finality the defendant did not seek to make any further submissions in any event.

(8) Notwithstanding the covering e-mail from Mr Evans, on 10 January 2006 the claimant e-mailed a reply to Mr Evans’ document of 6 January 2006 and on 1 February 2006 the claimant sent an e-mail confirming earlier statements that his body set off airport security alarms. Review of the material lodged by the parties.

[49]In order to prepare this judgment I have reviewed all the material lodged by the parties. As a result of the review, I have concluded that the defendant has accurately identified relevant areas of dispute. It is convenient to analyse them in the order set out at paragraph 46 above.

Experts and Impartiality

[50]In his submissions on behalf of the defendant Mr Evans made severe personal criticisms of particular experts who had prepared reports for the claimant. Among other things, it was said that certain individuals were not impartial. I have not heard those individuals in their defence. In these circumstances I do not think it right to express any view as to the merits of those personal criticisms. Accordingly in my examination of areas of dispute I do not refer to those criticisms, nor to the claimant’s answers (including but not limited to paragraphs 154 to 174 of CCS).

(a) Presence or Absence of DU in the Claimant

[51]It is an essential element of the case advanced in the amended particulars of the claim that the claimant has, or has had, DU in his body. Three ways in which this might be proved call for consideration:(1) Opinions expressed by Dr Durakovic.

(2) Opinions expressed by Professor Schmitz-Feuerhake.

(3) Inferences on the claimant’s medical condition.

Opinions Expressed by Dr Durakovic

[52]I accept that Dr Durakovic is expert in his field. He is a medical doctor and scientist and has worked in the field of nuclear medicine for more than 30 years. Among other posts, he has been Chief of the Nuclear Sciences Division in the Department of Radiation Sciences of the Armed Forces Radiobiology Research Institute at Bethesda, Maryland, and a Principal Investigator Radiological Officer for the United States government. (1). Dr Parrish’s tests showed that a urine sample taken from the claimant in 2004 contained no DU. (2). There were serious inadequacies (summarised at paragraph 25 above) in Dr Durakovic’s report and the methods used by him and MUN. (3). On the question whether the negative finding might be explained by lapse of time since 1995, when on the claimant’s case he was last exposed to DU, data available to Professor Parrish indicated that no significant quantifiable inhalation exposure had occurred in the last 10 years.

[53]If the claimant were to continue to rely on Dr Durakovic it was plainly vital to identify material which would undermine Professor Parrish’s views on these three matters. That task was made more difficult when in May 2005 Professor Parrish produced his report amplifying the points made in the letter of 28 February 2005, and when on 11 September 2005 Professor Parrish reported the result of tests on the July 1999 and April 2000 samples (see paragraph 25 above).

[54]What, if any, answers can be identified on behalf of the claimant? Here, as in other respects, I shall – as requested by the claimant in his e-mail of 31 October 2005 and his document of 16 December 2005 – ignore points made in the claimant’s submissions of 21 and 26 October 2005.

[55]Paragraphs 41 to 45 of CCS state as follows:

“41. Testing carried out by Pat Horan for Dr Durakovic demonstrated presence of 13.07 picogrammes per gramme (ng/l) of Uranium in a 24 hour excretion of 1920 picogrammes. (trial fileB p67, para 3). This is a significant amount and above the normative level. I understand that it is impossible to make a mistake in measuring overall levels of uranium, I maintain that there is a reason for discrepancy in measured Uranium levels which does not compromise the level found by Pat Horan. Either the samples were tampered with or there is a straightforward but hitherto unexamined chemical reaction between Uranium and the plastic container resulting in the adsorption of Uranium onto the plastic. The very real problem of containers and adsorption is appreciated by the Depleted Uranium Oversight Board (DUOB). There also appears to be a similar problem with urine samples from Gulf War Veterans tested by Pat Horan for Gulf War Veterans and the (supposedly) same samples tested again a few years later at another laboratory. The questions of valid assay procedure have not yet been satisfactorily resolved by the DUOB. The Uranium contamination in my sample as measured by Pat Horan must have come from somewhere. 42. So many years have passed during which Uranium has been excreted from my body that it would now require a very invasive bone biopsy to test for Uranium/Depleted Uranium which Dr Durakovic could arrange but I am not willing to undergo such an operation or certainly pay the hospital fee for needing a long stay in Pennsylvania. 43. The urine samples recently tested by Dr Parrish and Axel Gerdes unknown to me had been confiscated by the DoD along with veteran’s Urine samples from Memorial University Newfoundland, UMRC did not send them to the UK there was no chain of custody. Mr Evan’s made much of the chain of custody of samples sent to UMRC by the NGVFA for peer review testing when questioning Ray Bristow, I don’t see how he can expect me or anyone to believe that should samples fall into Government hands that no chain of custody is needed? 44. Professor Parrish has been unable to detect any depleted uranium in any samples, indeed the MoD testing which cost millions of pounds to be set up is not being taken up by Gulf war 2 veterans as the NGVFA does not recommend veterans be tested because the geological test is not looking for U236, This is not my allegation, but taken directly from the page 2 of the NGVFA July 2005 newsletter Oasis times. 45. I never knew that urine samples treated with nitric acid which degrades genetic material cannot be proven to have come from any person i.e DNA testing cannot detect whose urine is whose even though the labels were in my hand writing is no guarantee that the urine was what was sent by me to UMRC in 1999-2000.”

[56]These points were not put to Professor Parrish. To the extent that they may tend to conflict with his views, there is no sufficient foundation for them in the evidence adduced by the claimant. They do not lead me to doubt Professors Parrish’s evidence in any material respect.

[57]In paragraph 46 of CCS the claimant identifies a specific type of spectrometer used by MUN, and asserts that this was not the TIMS system criticised by Professor Parrish. In fact, however, the reference given by the claimant (which is to a document at G/9), while it identifies the particular piece of equipment, does not contain any information as to whether this piece of equipment is of the TIMS type. There is accordingly no foundation for this contention on the part of the claimant.

[58]The claimant in paragraphs 65 to 69 responds to the defendant’s criticisms of certain documents on this aspect of the case. I do not find it necessary to have regard to these criticisms, and accordingly I do not need to deal with the claimant’s answers.

[59]Paragraphs 95 and 175 of CCS stated as follows:

“95. Professor Parrish the urine samples confiscated from UMRC were not collected or returned under a chain of custody. I am not qualified to comment on the procedures or methodology of Dr Durakovic or Memorial University Newfoundland, other than say that I am increasingly aware that Dr Durakovic is genuinely extremely qualified, so too was Patricia Horan. He has not refused to testify on oath, had bought his ticket, he does have problems with telephone calls or reducing things to writing as the US authorities have been doing their best to nullify his peer approved DU in urine results, clearly the DoD MoD would have a lot to lose if Dr Durakovics work is officially recognised and US war veterans are paid compensation. … “175. Urine tests show me to have levels of Uranium above normal in my body and also that DU is present. The main mystery is why the original overall level of Uranium found when Pat Horan tested my urine (13.07 picogrammes per gramme (ng/l) of Uranium in a 24 hour excretion of 1920 picogrammes. (trial fileB p67, para 3).) has fallen so significantly in the tests done by Professor Parrish and Axle Gerdes (trial file C1, p302/303) Professor Parrish demonstatedUranium concentrations of 3.21ng/l and 1.72ng/l. , A. Gerdes demonstrated 3.3ng/l and 1.8ng/l (trial file B, p298/300). This can only be either because of incompetence by Pat Horan which is impossible, adsorption onto the walls of the container, or because the samples were switched, this same problem has occurred with all the NGVFA samples initially tested by Pat Horan and later tested by Professor Parrish. Professor Parrish himself has expressed astonishment that the overall levels that he found are so different from those of Pat Horan and he has no explanation for it. It is an astonishing situation the samples used by Pat Horan in Canada just mysteriously appeared in the custody of the MoD with NO chain of custody.”

Again, these points were not put to Professor Parrish. To the extent that they may tend to conflict with his views, there was no sufficient foundation for them in the evidence adduced by the claimant. They do not lead me to doubt Professor Parrish’s evidence in any material respect.

[60]Subsequent communications from the claimant add nothing, in this regard, to material previously submitted.

[61]In these circumstances, even if I had not had the benefit of oral evidence from Professor Parrish, I would have found that the opinions expressed by Professor Parrish were likely to be correct and that those expressed by Dr Durakovic could not be held to be likely to be held to be correct. The fact that Professor Parish gave oral evidence and that Dr Durakovic did not simply reinforces that conclusion.

Opinions of Professor Schmitz-Feuerhake

[62]An initial, and fundamental, point to note about Professor Schmitz-Feuerhake’s reports is that they do not focus on DU. Her contentions related to the exposure of the claimant to ionising radiation. The matters that she describes do not enable her to say whether the claimant has been exposed to DU or to any other particular form of ionising radiation. For that reason alone, the opinions of Professor Schmitz-Feuerhake do not demonstrate the presence or absence of DU in the claimant’s body. It might be suggested that if the claimant was exposed to ionising radiation, DU is the only realistic contender as the cause for such exposure. I can see no basis for such a suggestion. Further, in his submissions, the claimant has sought to expand his case so that it extends beyond a claim based solely on DU. I do not consider that this course is open to him, following the rulings which I made in June and July 2005. Nevertheless, as a matter of completeness it seems to me desirable to examine what has been said by Professor Schmitz-Feuerhake.

[63]Professor Schmitz-Feuerhake’s reports deal with the chromosome aberration analysis carried out in lymphocytes of the claimant by Dr Hoffmann of the Bremen Institute for Prevention Research, Social Medicine and Epidemiology. This analysis found five dicentric chromosomes in one thousand cells. It is said that this shows a ten fold highly significant elevation compared to normal values in unexposed adults. It is Professor Schmitz-Feuerhake’s view that this elevated rate is only explicable by a continuous incorporation of long living radioisotopes.

[64]Dr Crane’s first report had suggested that the claimant’s level of dicentric aberrations of 0.005 could be consistent with background radiation (see paragraph 23 (1) (i) above). Professor Schmitz-Feuerhake suggests that Dr Crane has misunderstood relevant data. However, Dr Crane in his second report establishes that one of the principal papers cited by Professor Schmitz-Feuerhake identifies as the zero dose control a sample with a mean rate of 0.0017. This in turn is subject to a wide confidence interval of 95%, which means that the zero dose rate could be as high as 0.00387 on the basis of this paper alone.

[65]It was also suggested in Dr Crane’s first report that known medical investigations of the claimant would have led to exposure to radiation in total of 20 milliSieverts (see paragraph 23 (1) (j) above). On the footing that the claimant has not been exposed to radiation since 1995, Professor Schmitz-Feuerhake asserts that the rate of 0.005 indicates exposure to a dose of at least 150 milliSieverts. It seems to me that this reasoning may not have a sound foundation, for it is common ground that since 1995 the claimant had been exposed to medical doses of radiation. Putting that on one side, however, Dr Crane in his second report notes that Professor Schmitz-Feuerhake herself has estimated that natural annual radiation will produce annual lymphocyte doses of the order of 4 milliSieverts per year. Failure to take account of this in the Bremen data means that Dr Crane considers it right to reduce his previous estimate of the dose of radiation corresponding to the Bremen measurement of 0.005 to a range of 10 to 73 milliSieverts. When one factors in the underestimate of the zero dose level, the dose estimate is reduced further to a range of 2.5 to 18.25 milliSieverts, which is consistent with the medical doses of radiation the claimant has received. These points in Dr Crane’s second report are not addressed in the CCS other than by remarks commenting on Professor Schmitz-Feuerhake’s expertise. For present purposes I accept that Professor Schmitz-Feuerhake is an expert in her field. She holds a doctorate in Physics from the University Hannover. From 1966 to 1973 she worked as a physicist in the Medical Academy of Hannover in the Institute of Nuclear Medicine and as the manager of a nuclear research reactor. Her research was on dosimetry and diagnostic applications of radioactive nuclides. From 1973 to 2000 she was Professor of Experimental Physics at the University of Bremen, where her research field were radiation dosimetry, radiation risk and health physics. However, there has been no answer by Professor Schmitz-Feuerhake to the points I have identified above. In those circumstances I conclude that Dr Crane is likely to be correct when he says that the Breman study does not show any exposure of the claimant to radiation greater than that arising from known medical investigations. For the same reasons I conclude that Professor Schmitz-Feuerhake’s view – that the Bremen study shows exceptional exposure to ionising radiation – is unlikely to be correct.

Inference from the Claimant’s Medical Condition

[66]The remaining question is whether the claimant can show that DU is or has been in his body by reference to his medical symptoms. The hurdle that he has to overcome is to show that his medical symptoms point to the probability of DU contamination. If, however, the symptoms described could arise without the claimant having been contaminated by DU then he is unlikely to overcome this hurdle.

[67]The view put forward in Dr Cooke’s first report was that the claimant’s current state of ill heath is accounted for by the combination of late onset of symptoms associated with Gitelman’s syndrome and an anxious, obsessional personality (see paragraph 24 above). In his second report Dr Cooke dealt with various contrary suggestions. His comments included the following:(1) Dr Durakovic suggested that renal studies of the claimant showed incomplete/delayed emptying of the collecting system. However, Dr Cooke noted that some of the results of these studies depended upon operator definition of the area over which the counts were taken, which introduced a potentially significant source of operator error.

(2) Dr Moret had provided a list entitled “Known illness inflicted by internalisation of depleted uranium particles.” Dr Cooke challenged whether or not there was sound epidemiological evidence to support all of the conditions listed. More generally, each of those conditions could occur in individuals who had not been exposed to DU.

(3) The claimant has suggested that if his symptoms arose from Gitelman’s syndrome, he or other members of his family would have demonstrated systematic evidence before the condition was actually identified in him. However, there was genetic evidence of the syndrome in the claimant’s father and brother. A basic knowledge of genetics indicated that a recessive gene of this kind may give rise to an associated health trait which is relatively mild or suppressed, which would explain absence of symptoms in family members carrying the gene, and also the late appearance of symptoms.

(4) Having reviewed other medical evidence in the case, Dr Cooke concluded that there was nothing to suggest that consideration was required of any condition other than Gitelman’s syndrome or fibrosing alveolitis to explain the symptoms that form the basis of the current claim by the claimant.

[68]Turning to examine answers which might be advanced by the claimant to these points, paragraphs 12 and 13 of CCS refer to the problems with his respiratory system and the severe nature of his illnesses. These references are far too general to offer any answer to Dr Cooke’s points. Paragraphs 49 to 64 describe a serious of medical complaints. In parts this account is open to the objection that new matters are raised which had not previously been advanced for consideration by Dr Cooke. Quite apart from that, however, there is simply no basis advanced for ascribing DU contamination as the likely cause for the symptoms.

[69]At paragraph 65 of CCS the claimant repeats the point about Gitelman’s syndrome that are dealt with in Dr Cooke’s second report. He does not specifically address Dr Cooke’s answers to those points. He says that he has never heard of any patient with Gitelman’s syndrome suffering as much pain in the wrist and fingers as well as in the lower leg and feet, as he does. This comment does not constitute expert evidence, and even if it did would be of little value in the absence of the ability to cross-examine the person advancing the opinion. Moreover, it does not point to DU as a likely cause of the symptom.

[70]At paragraph 97 of CCS the claimant says that the radiographer involved in the renal study would need to be qualified under worldwide procedures. It seems to me that this does not remove the possibility of operator error identified by Dr Cooke. The claimant adds in relation to Dr Cooke’s comment about Gitelman’s syndrome that Dr Cooke is not a clinical geneticist or an expert in urology. The claimant refers to a Dr Beaman as having said that causation from depleted uranium/(ordinary) uranium cannot be ruled out. Again, there has been no opportunity to cross-examine the author of this opinion, but in any event the opinion does not point to DU as a likely cause. At paragraphs 113 to 128 of CCS the claimant describes further symptoms, along with the history of the diagnosis and treatment of fibrosing alveolitis. Again, the points that he makes are not points which give rise to any basis for thinking that the likely cause of the problems is DU. The same is true of further points made at paragraph 192 and 196 of CCS.

[71]I do not think that the reports of Dr Busby can assist the claimant in this regard. First, Dr Busby was not called to give evidence. Second, Dr Busby’s primary concern has been to identify a means by which relatively small quantities of DU might have a more serious effect than previously thought. Even if his theories in that regard were sound – a point on which I express no view – they do not show that there is or has been DU in the claimant’s body. Nor, for the reasons given by Dr Cooke, can anything of value for present purposes be derived from Dr Busby’s work with Gulf War veterans.

(b) Presence or absence of DU at the claimant’s workplace

[72]When the defendant located samples of relevant coils, it very properly made arrangements for those samples to be tested. As described at paragraph 39 above, at one stage it appeared that the EDAX reports identified the presence of uranium. The claimant relies on this at paragraphs 29-31 of CCS. I am satisfied, however, that for the reasons given in oral evidence by Mr Clark there was no identification of uranium in those samples.

[73]At an early stage of the proceedings on 6 December 2004 the claimant said that the defendant could not prove absence of DU from his work place. He recognised, however, that the burden of proof lay not on the defendant but on him. He said he met that burden of proof by showing that his illness was caused by DU, and that the most likely place for him to have been exposed to DU was at work. This chain of reasoning remained fundamental to the claimant’s case throughout the proceedings, for he had no positive evidence to show that the defendant had, whether knowingly or unknowingly, used DU in any way. The evidence before me discloses no basis for thinking that the defendant or others in the Honeywell group have concealed relevant evidence or that there was any conspiracy with the authorities. There was a contention however, that exposure at his work place to DU may have risen from the use of DU by Westland on its adjacent site. I shall return to those contentions when I examine area (c) below.

[74]The short answer to this chain of reasoning is that its fundamental premise is unsound. For the reasons given in my discussion of Area (a) above, he has not been able to demonstrate that there is, or has been, any DU in his body, and has been unable to demonstrate that his illness must have been caused by exposure to DU. That being so, he has no basis on which to assert that the defendant used DU in his workplace.

[75]The defendant said at DCS paragraph 365 that it had produced the evidence of a number of persons who would be expected to know if DU had been used and none had any experience of it. It had also produced the result of a comprehensive study of all the materials actually handled by the claimant which came as close as is possible to proving a negative. In my views those contentions are made good by the evidence that I have described at paragraphs 30 to 33 above. However, for the reasons I have give, it is not necessary for the defendant to rely upon this evidence.

[76]Here, too, I do not think that things said by Dr Busby can assist the claimant. In particular, on his epidemiological analysis, no answer to Professor Newton’s criticisms has been put forward. In these circumstances I consider that Dr Busby’s assertions, in so far as founded on his epidemiological analyses, are unlikely to be correct.

[77]As explained above (see paragraphs 14 and 15), in June and July 2005 the claimant attempted to widen his case so as to assert that he had been exposed to uranium arising as stratospheric fall out from the testing of nuclear weapons, and I refused to allow this because of the lateness and vagueness of the assertions. In CCS and the materials which had accompanied it, the claimant said that he had been cleaning contaminated filters from Royal Royce valves in 1985 to 1986. If he were to advance such a contention the claimant needed permission to re-amend his particulars of claim. He did not seek such permission. Had he sought it, I would have refused it for essentially the same reasons that led me to refuse the proposed amendments in June and July 2005. Accordingly, I disregard this material. Before leaving this aspect, however, I note that in paragraph 77 of CCS the claimant contends that to prevent him relying on this material is “splitting hairs.” This comment cannot be accepted. Justice requires that if a claimant is to broaden his claim at a very late stage to allege exposure to a different substance and via a different route, the claimant must produce proper particulars demonstrating a logical basis for contending that there was significant exposure to that different substance and evidence as to the amount involved, why it is said to be significant and how it is said to have contaminated the claimant. The claimant’s contentions on this aspect are far too vague to meet these requirements.

(c) The use of DU by Westland

[78]At paragraph 368 of DSC the defendant said it had credible and unchallenged evidence that the DU balance weights were delivered and handled in a condition which would not release any DU dust. In any event, there were no DU balance weights on the Westland site after early 1977, 8 years before the claimant started work for the defendant. I consider that the evidence of Mr Tucker makes good these assertions. At paragraph 84 of CCS the claimant accepted what was said by Mr Tucker (see paragraph 31 above). However, it was asserted that the claimant could rely upon the evidence of Mr John Mathew, who had worked for Westland and in a witness statement made allegations about the way in which DU was handled. The short answer is that Mr Mathew was not called to give oral evidence, and there was no application to rely upon his written statement. Paragraphs 108 and 109 of CCS explain how close the Westland premises were to the claimant’s place of work. I accept that the Westland premises were very close. In the absence, however, of evidence of mishandling of DU at Westland at any relevant time, this does not advance the claimant’s case. Paragraphs 182 to 184 of CCS seek to rely upon the expiry of Westland’s Ionising Radiations Regulations certificate in 1981. As the evidence before me establishes that Westland ceased the use of DU in 1977 this point does not assist the claimant.

(d) Exposure to metal dust in the claimant’s work

[79]Given my conclusions that the claimant has not demonstrated presence of DU in his body, use of DU by the defendant, or use of DU after 1977 by Westland, there is no need to go into the question whether there were opportunities for exposure to metal dust in the claimant’s work. It simply does not arise. I shall accordingly deal with this aspect of the case only briefly.

[80]The claimant’s case in this regard in founded upon his own evidence, and upon what he claimed was said by Mr Fearn, Mr Bush, and Dr Gatti. On this aspect, submissions are advanced at paragraphs 27 to 28, 37 to 40, 106 and 107, 110 to 112, 136 to 139, 140, and 185 to 189 of CCS, while paragraphs 80 to 92 of CCS comment on the defendant’s witness evidence. In this regard, in my view it is necessary to distinguish the question of inhalation of dust generally from the question whether activities in the coil assembly shop involved the generation of dust from the coil formers. The nature of the work carried out generally by the defendant involved the generation of metal dust. The coil formers themselves were the subject of machining in the machine shop, and accordingly dust from the coil formers is likely to have been generated in that shop. As to the generation of dust from coil formers in the coil assembly shop, however, I have no acceptable evidence that this was the case. The claimant’s account of what occurred had not been the subject of cross-examination. Mr Fearn and Mr Bush had not given oral evidence, and in any event their statements do not describe activities which would have given rise to the generation of dust from the coil formers in the coil assembly shop. By contrast, as rightly noted at paragraph 371 of DCS, the defendant has adduced considerable and credible evidence that dust from the coil formers was probably not generated in the coil assembly shop.

(e) Res ipsa loquitur

[81]As correctly noted at paragraph 241 of DCS, there may be cases where negligence is established because the facts speak for themselves: where an injury does not ordinarily occur without negligence, it is legitimate to infer that there was negligence. The defendant adds that this principle is wholly inappropriate in a case like the present. I agree. For the reasons given earlier, in my view the injuries described by the claimant are predominantly those already known to be associated with Gitelman’s syndrome. That syndrome is a genetic disorder, and the current state of medical knowledge does not give rise to any inference that this disorder is to be attributed to conditions in the work place, let alone to negligence in the work place. In so far as the claimant’s symptoms have not to date been reported as associated with Gitelman’s syndrome, there is nothing about them which points to an origin in the workplace or to negligence in the workplace.

[82]It follows from my rejection of res ipsa loquitur that the claimant carries the burden of proving breach of duty on the part of the defendant. (f). Application of Regulations and the Common Law to the Evidence

[83]I turn to the question whether the claimant has shown breach of duty on the part of the defendant. This, too, is an area of the case which – in consequence of my findings under head (a) above - simply does not arise. Having failed to establish the presence of DU in his body, and having failed to show the presence of DU in the workplace, there is no basis for any suggestion that a breach of duty on the part of the defendant could be responsible for the claimant’s illness. Accordingly, I shall deal with this aspect of the case only briefly.

[84]The structure adopted at paragraphs 206 to 236 of DCS is to examine, first, the common law duty of care, and, second, various statutes and regulation in turn. I shall proceed in the same way.

[85]The common law of negligence can be relied upon by a claimant where a defendant has broken a common law duty of care and this has caused damage to the claimant. In the present case I proceed on the basis that either under the general law of tort or as an implied term in the contract of employment the defendant was under a duty to take reasonable care to prevent exposure of the claimant to contamination by any material to such an extent as would damage his health. Precisely what precautions are required must depend upon the nature and potential quantity of the material in question. The evidence before me discloses no reason why the defendant should have been aware of any risk that materials used on its site might contain DU. Nor does the evidence before me disclose any reason why the defendant should have been aware that DU had been used by Westland on their adjacent site. In those circumstances there is no basis for any suggestion that the defendant’s failure to take steps which might be needed in relation to DU involved any breach of duty to the claimant.

[86]The Management of Health Safety at Work Regulations 1992 applied to the claimant’s employment from 1 January 1993 onwards. Regulation 3 imposes a requirement to make a risk assessment, regulation 4 imposes a requirement to have an appropriate health and safety regime, and regulation 11 requires the provision of adequate health and safety training. There was in fact no risk assessment in relation to DU by the defendant, nor did it put in place a health and safety regime appropriate for DU, nor did it provide health and safety training concerning DU. In my view, this involved no breach of the regulations, for in the absence of any reason to think that DU was or might be on the defendant’s premises there was no obligation upon it under the regulations to make a risk assessment in relation to DU, to have a health and safety regime appropriate to DU, or to provide health and safety training concerning DU.

[87]The Control of Substances Hazardous to Health Regulations 1988 applied to the claimant’s employment form 1 October 1989 onwards, with amendments in 1990, 1991 and 1992, until they were replaced by the 1994 regulations which applied to the claimant’s employment from 16 January 1995 until the end of that employment. “I shall refer to these regulations generally as the COSHH Regulations.” As noted in paragraph 214 of DCS, these regulations are not intended to deal with the problem of exposure to ionising radiation: that is governed by the Ionising Radiations Regulations 1985. I shall deal with those separately. So far as the COSHH Regulations are concerned, they identified long term and short term exposure limits for uranium (see DCS paragraph 220.3). If it had been the case that the claimant was exposed to uranium in a manner exceeding the relevant limits, then questions would arise as to whether the defendant was in breach of regulation 6 in relation to risk assessments, regulation 7 in relation to prevention or control of exposure and the provision of personal protective equipment, regulation 11 concerning health surveillance and regulation 12 requiring the provision of information to employees. As noted earlier, the evidence before me discloses no reason for the defendant to believe that DU was on its premises. It follows that the defendant’s failure to identify DU in any risk assessment involves no breach of regulation 6. Whether, on the hypothesis that DU was present in the workplace, there was a breach of any other regulations may depend upon the precise amount and circumstances of exposure. As I have concluded on the basis of the evidence before me that the claimant was not exposed to DU, I do not consider that any useful purpose would be served by speculating as to the circumstances in which these provisions would be broken.

[88]The Personal Protective Equipment at Work Regulations 1992 are relied upon in paragraph 11 (7) of the amended particulars of claim. However, by regulation 3 they do not apply to cases were the Ionising Radiations Regulations 1999 and the COSHH Regulations apply. They are accordingly of no relevance to the present case.

[89]The Ionising Radiations Regulations 1985 came into force on 1 January 1986, and would have been applicable if the claimant had from 1 January 1986 onwards done any work for the defendant involving the production, processing, handling, use, holding, storage, moving, transport or disposal of any radioactive substance. DU would have been such a substance. Here it seems to me that the question whether any relevant regulation was broken must involve an assessment of the amount and circumstances of exposure. That being so, I do not consider that there is any useful purpose in attempting to examine the matter on a hypothetical basis.

[90]The Factories Act 1961 requires effective and suitable provision for securing and maintaining by circulation of fresh air the adequate ventilation of the room and for rendering harmless so far as practicable all such fumes dust and other impurities generated in the course of any process or work carried out which may be injurious to health. This applied to the claimant’s employment until 1 January 1993. The defendant at paragraph 235 of DCS says that the claimant must prove that the ventilation of the room was such that improving it would in fact reduce his exposure to dust. In order to do that there must be sufficient evidence to be able to determine the character and quantity of dust to which the claimant was actually exposed and the frequency of such exposure, but the claimant has no evidence for this. I agree. It follows that the claimant has not proven any breach of Section 4.

[91]Under the Occupiers Liability Act 1957 the defendant owed the claimant as a visitor the common duty of care imposed by section 2. For present purposes there is no material difference between that duty of care and the common law duty of care discussed at paragraph 86 above, and for the reasons given in that paragraph I conclude that it can not assist the claimant.

(g) The Claimant’s Illness

[92]It is said at paragraph 374 of DCS that the claimant complained of symptoms including fatigue within a few weeks of starting work with the defendant in 1985. The assertion is made by the defendant in this regard that the claimant “may well have been experiencing” the start of noticeable symptoms from Gitelman’s syndrome. That is certainly possible, but no evidence is identified by the defendant which could enable me to conclude that it was probable.

(h) Causation

[93]At paragraph 375 of DCS it is said, no doubt correctly, that exposure to something after 1989 could not have caused an illness which first manifested in early 1985. This proposition would only assist the claimant if taken in conjunction with the proposition discussed in the preceding paragraph. For the reasons there given, I do not have the necessary evidence to sustain this contention on the part of the defendant.

[94]The contention advanced by the defendant in paragraph 376 of DCS is that the claimant’s symptoms can be explained by Gitelman’s syndrome and fibrosis alveolitis. For the reasons given above, I agree. I also agree that the medical evidence does not enable me to conclude that Gitelman’s syndrome is attributable to DU. I am invited by paragraph 377 of DCS to make a finding at to the cause of the claimant’s fibrosing alveolitis. As his claim for fibrosing alveolitis has been compromised, I do not consider it necessary to make any finding as to the cause and I do not propose to do so.

(i) The Effect of the Previous Claim

[95]The previous claim was began by writ issued on 16 December 1998. It was indorsed with a statement as follows:

“Caused Plaintiff physical, emotional, pain and stress over a 10 year period. Knowingly inducing a chronic debilitating systemic disease affecting primarily the lungs, by long term, high volume chemical poisoning and one recorded accidental poisoning. Claiming damages in lieu of pain, suffering, mental trauma, lose of future employment, loss of any future security for plaintiff’s wife and family because of industrial disease diagnosed precludes any form of life insurance as life expectancy unknown.”

[96]Particulars of claim settled by counsel described the claimant’s work as having involved use of a solvent named GenKlene, acetone, meythyl ethyl ketone and Stionol, with the creation of an acrid fume containing phosgene. In relation to the period after January 1989, the particulars of claim referred to glues including epoxy resins and superglue Loctite, acetone, toluene and Xylene, soldering fume and rosin type fluxed soda. All these substances were said to be hazardous to health, and it was asserted that the claimant’s exposure to them and to fumes during the course of his employment caused personal injury and consequential loss and damage. The personal injuries were described as:

“Sore throat and enflamed nose; fatigue and cloudy vision, breathlessness; chronic solvent toxicity; fibrosing alveolitis. The prognosis is uncertain. In addition the claimant intimates a claim for possible disturbance of higher mental function.”

[97]The consent order made on 7 April 2000 read as follows:

“…all further proceedings in this action be stayed save for the purpose of carrying the terms below into effect and that there be liberty to apply for that purpose and generally. 1. The claimant accepts the sum of £10,000 in full and final satisfaction of this claim… … 4. … the defendant be discharged from all further liability arising out of or in any way connected with this claim.”

[98]It can be inferred from paragraph 50 of the claimant’s statement in these proceedings that on 6 February 1999 he learnt of DU. Thereafter:(1) On 22 July 1999 the claimant signed an allocation questionnaire in which (E/39e) he listed Dr Durakovic as an expert whose evidence he thought he would use, adding that a report was awaited and that he was the world expert on depleted uranium (nuclear chemical) poisoning issues.

(2) In paragraph 379 of DCS it is asserted that on 17 September 1999 the claimant told the District Judge that the defendant had exposed its workers to radioactive poisoning, that Somerset Health Authority were concerned over the mortality rate in the Yeovil area, and that he would be producing a report from Professor Durakovic who was the world’s lead expert on depleted uranium poisoning. This assertion was based on a file note by Mr Wiggs of the defendant’s solicitors. As Mr Wiggs did not give evidence, however, and the claimant has not acknowledged the accuracy of this document, I do not think it right to take it into account.

(3) At paragraph 198 of CCS the claimant explains that he received a telephone call in late February 2000 from the National Gulf Veterans Association telling him that his tests had proven positive to DU. The claimant adds: “But it was a few weeks after the arrangements for settling the previous claim had been made.”

(4) In a supplemental statement for the present proceedings the claimant said that on 15 March 2000 he learnt that the tests for DU were positive. He explains at paragraph 199 of CCS that 15 March was the date on the document produced by the Uranium Medical Research Centre, which he collected at the National Gulf Veterans Association annual general meeting in late March 2000.

[99]The first question which arises is whether by the compromise of the first proceedings the claimant has discharged the defendant from all further liability asserted in the present proceedings. I consider that paragraph 4 of the terms recorded in the order of 7 April 2000 has had that affect. It discharged the defendant from all further liability “arising out of or in any way connected with this claim.” The reference to “this claim” is to a claim in which the claimant, some 8 months earlier, had said that he intended to call Dr Durakovic who was an expert on DU. I regard that as sufficient to show that when the claimant accepted payment of £10,000 in satisfaction of his claim, this included satisfaction of the claim in relation to DU. If that is not the case, however, the claimant’s reference to Dr Durakovic in the allocation questionnaire makes it plain that DU was “connected with this claim” and it follows that it is not open to him to advance the present proceedings, which are founded on the assertion that he was exposed to DU.

[100]In those circumstances the second question under this head does not arise for decision. It concerns whether principles of abuse of process bar the present claim. For completeness, I add that in my view those principles do bar this claim. At paragraph 200 of CCS the claimant says that he should not be barred because he did not have the evidence which he wanted to rely upon because medical investigations were still ongoing for other symptoms and conditions. This explanation seems to me to bring the matter squarely with the principles identified by the House of Lords in Johnson v Gore Wood & Co

[2002] 2AC1

. The symptoms described by the claimant in the first proceedings and those now relied upon are substantially similar. The claimant had good reason, on his own account, to think that those symptoms had been caused by DU. By the time of the compromise the Civil Procedure Rules 1998 were in force, with the expressed statement in rule 1.1 that the overriding objective of enabling the court to deal with case justly included the saving of expense. Even before those rule, however, it was well established that the court should (in accordance with section 49 (2) of the Supreme Court 1981) seek to secure that as far as possible all matters in dispute between the parties are completely and finally determined, and that multiplicity of legal proceedings should be avoided. It was entirely contrary to those principles for the claimant on the one hand to compromise the first proceedings at a time when he believed that he had grounds for asserting that symptoms complained of were caused by exposure to DU, and on the other hand to institute fresh proceedings alleging exposure to DU.

[101]For those reasons, even if I had concluded that the claimant otherwise had a valid claim against the defendant, I would have held that any such claim was barred by the compromise reached in the first proceedings.

Conclusion

[102]In paragraphs 98 and 99 of DCS the claimant asserts that the law does not protect anyone with regard to exposure to ionising radiation, with rule skewed toward making any case impossible to prove, and adds that one of his main reasons for taking this case to court was for judge to attempt to fathom out whether any of the laws or regulations protect anybody are workable, or have any real value at all. Nothing that the claimant has put before me leads me to doubt the protection afforded by the law or the workability and value of the relevant regulations. The claimant’s problem lies elsewhere in the lack of sound evidence that DU has anything to do with his problems.

[103]At paragraph 219 of CCS the claimant had said that I could either believe him, or that I could believe the defendant’s counsel. That comment completely misunderstands the nature of the case. As regards the illnesses that he suffers, I am quite prepared to believe the claimant. This case, however, is not a contest where one side or the other is lying. My conclusion that the claimant’s case fails does not involve any aspersion upon his honesty.

[104]I do not view the course of the trial in this case, as described at the start of this judgement, with satisfaction. The claimant undoubtedly suffers from a debilitated illness. He had a firm opinion from Dr Durakovic that DU was in his body, and he had ground to believe at that time that DU may have been the cause of his illness. It is regrettable that, after much hard work in preparing for the resumed trial, he has found himself unable to conduct it. As against that, however, it must be recognised that since at least March 2005 the claimant was aware from Professor Parrish’s letter of 28 February 2005 that Professor Parrish, a leading expert instructed by the claimant’s own solicitors, refuted the presence of DU in the claimant’s body and regarded Dr Durakovic’s views as untenable in all material respects. Between receipt of Professor Parrish’s letter and the resumption of the trial in October 2005 the claimant had 6 month in which to identify any answer to Professor Parrish’s criticisms. Investigations during that period identified even more weakness in the claimant’s case. It must also be recognised that the defendant, and its senior management, have over a period of years had hanging over them a charge that they allowed a highly dangerous material to contaminate one of their workers. For the reasons I have given, after examining all that can reasonably be said on behalf of the claimant, I conclude that on the basis of the evidence before me the charge made by the claimant against the defendant is unjustified.