AB & Ors v Ministry of Defence [2009] EWHC 1225 (QB)

“Failed to monitor appropriately, accurately or at all, the Claimants’ exposure to ionising radiation immediately following the MOSAIC explosions themselves in that they failed to monitor for the presence of alpha and/or beta radiation in the form of loose contamination adequately or at all”

“For present purposes the Claimants allege they have suffered a variety of illnesses known to result from radiation exposure. Many illnesses, including certain forms of cancer, are radiogenic. In simple terms the process by which ionising radiation is understood to cause illness is the destruction or derangement of the molecular integrity of human chromosomes, strands or chains of tens of thousands of genes, by energy absorbed from ionising radiation. The M-FISH assay is one recently refined scientific technique which assists in the evaluation of this process and establishing the radiogenicity of an illness. The M-FISH assay involves “staining” or “painting” the human chromosomes different or multiple colours. Once coloured, the chromosomes are analysed in order to determine the frequency of relocations or movements of part of one chromosome (or groups of genes) onto a completely different chromosome. In an older population the normal frequency of translocations would be in the range of 1.1% to 1.7%. There is only one known biologically plausible source sufficient to cause elevated levels of translocations in human genetic material – exposure to ionising radiation. Thus the MFISH is a highly reliable and specific bio indicator of genetic damage caused by exposure to ionising radiation. The processes by which the chromosomal translocations demonstrated by the M-FISH assay cause serious human illnesses are understood, and within medical and scientific probability. As example, the movement of one piece of chromosome onto another chromosome may cause the function of a proto-oncogene – a gene which “tells” cells when to start to divide – to alter its function to that of an oncogene – a gene which “tells” cells to divide at an abnormally excessive rate. This is even more likely to occur when the proto-oncogene translocates to a site in proximity to an active gene process. Thus, illnesses like leukaemia, an excessive and uncontrolled multiplication of immature white blood, or blast cells, occur because the mechanism controlling the level of reproduction of white cells has become deranged by chromosomal damage resulting from exposure to ionising radiation. In much the same way adverse biological consequences and illnesses occur if a translocation results in damage to a tumour suppressor gene – a gene which “tells” cells when to stop dividing. In due course the Claimants will supply a detailed list of each Claimant and their particular radio-sensitive illnesses. However in order to place the Defendant on the best notice presently possible, a partial list of the illnesses which the Claimants will contend to have suffered as a result of their radiation exposure secondary to the Defendant’s tests are set out in Appendix 2. In any event, and in addition to Appendix 2, the Claimants contend, as set out in Paragraphs 6.3 and 7 of these Particulars of Claim, the following illnesses were accepted by the Defendant as early as 1948 as being injuries known to result from over exposure to ionising radiation, including internal exposure through ingestion of radioactive particles: Skin: Single exposure: Redness, blistering, baldness, ulceration, scarring, cancer. Repeated exposures: Redness, skin thickening, baldness, pigmentation, over-thickening, ulceration, cancer formation. Eyes: Lens opacities (cataracts), eye surface burns. Bone: Bones cells proper – Inflammation, cell death, sarcoma (bone cancer). Bone Marrow cells (blood forming) – Reduction of white cells or red cells in circulation, Failure to form new blood, Cancer or malignant overgrowth of blood. Lungs: Lungs and Bronchi – Fibrosis of lung, cancer of bronchial cells or lung. Genitals: Reproductive cells – temporary or permanent sterility or reduced fertility. Other Organs: Thyroid, Liver and Intestine – Cell scarring, loss of function, cell death, malignant (cancer) changes. Lymphoid tissues – Reduction of lymphoid cells in blood, overgrowth of lymph tissues in lymph glands, cancer of lymph glands. General tissues – Premature ageing. Atomic Bomb Injuries: Single rapid very high over-exposure: Radiation skin burns, acute radiation vomiting and sickness, haemorrhages, anaemia, sterility, prolonged wasting and death.”

“While it is likely that assuming no rainout and completely constant wind conditions, limited fall-out radiation would have fallen upwind of the point of the detonation after the explosion, this scenario would be dramatically altered if: (a) there was any precipitation/rainout of radiation shortly after the explosion; (b) if the explosion fireball came into contact with the water surface; and/or (c) if there was a variation in wind direction following the explosion, at for example different altitudes. Any of the sum of these three scenarios will give rise to significant, measurable fall-out radiation being deposited at the Christmas Island sites, which were all within 50 miles of the detonation points for the GRAPPLE X, Y and Z explosions.” explosions.”

“1 gray (Gy) = 100 rads (R) = 100 rems (r) = 1 Sievert (Sv) = 1,000 milliSieverts (mSv) = 1,000,000 microSieverts (microSv). 1 microSievert is 10–3 mSv. [According to Dr Lindahl,] 1 rad can be said to be equivalent to 6.7 mSv. However, the accepted conversion factors are that 10 mSv corresponds to 1 rad/roentgen/rep and that 10 mSv corresponds to 1 rem.”

“It is therefore most probable that induced genetic changes, mutation and chromosome changes alike, will be induced in man. Most genetic changes, spontaneous and induced, are more or less deleterious.”

“All quantitative experiments show that even the smallest doses of radiation produce a genetic effect, there being no threshold dose below which no genetic effect is induced.”

“The second group comprises the ionising radiations, and is formed by the remaining electromagnetic waves of short wave length (X- and gamma-rays) and atomic particulate emissions including neutron and beta- and alpha-particles. These ionising radiations are capable of causing not only excitation of molecules near or through which they may pass, and some heat or occasionally fluorescence production, but most characteristically, ionisation of many of those molecules. It is ionisation of the molecules of living tissues which renders these radiations dangerous to health, because of the changes which follow ionisation in the biochemistry, the function and finally the form of the living cell. The living cells thus affected may show paralysis; partial, complete or open-recoveries; erratic and malignant cell-multiplications; chromosome aberrations; or rapid cell death. The dosage largely dictates the effect, coupled with dosage-rate.”

“If [alpha particles] are liberated from radioactive substances deposited within the body, so that their range includes radiosensitive cell nuclei, their high relative biological efficiency can cause its full order of cell damage. If deposited on bronchial surface, in bone, liver, thyroid gland, or in the layers of the skin, alpha-emitting substances are therefore much to be respected; although on intact and normal skin they are harmless. The ranges of alpha- and beta-particles in air are relatively short by comparison with X-, gamma- and neutron-radiation, and they are stopped or largely stopped by quite thin barriers of inert material. Whereas gamma-rays and neutrons can form a radiation hazard at considerable distances from their source, alpha- and beta-particles can only form a hazard inside the body, or, in a case of beta-particles, within a few millimetres of the skin surface. Any medium which will transport alpha- or beta-emitters from outside to inside the body is therefore a danger; hence the great significance of inhaled radioactive dusts or aerosols, solutions of radioactive elements able to be absorbed through skin or intestinal tract wall, transmission of radioactive materials from fingers or chemical apparatus to the mouth, and radioactive substances contaminating skin injuries. In practice, most of the occupational hazards from the short-range particles lie in the possibility of their being absorbed within the body via the lungs, mouth, intestinal tract, broken or intact skin, or even the eyes.”

“A radioactive element inside the body is usually at its most dangerous when it remains fixed in one position, thus causing continued radiation to the same adjacent cells and consequent cumulatively high dosages.”

“Nowhere in our report have we been more conscious of the difficulties of the task which we have undertaken, and of the limitations of the knowledge at our disposal, than in considering the genetic effects of radiation. The established scientific evidence in this field provides but an insecure basis on which to frame answers to the many important questions that are now being asked. Consequently we have been forced to make many assumptions of questionable validity and our conclusions must be regarded as provisional and treated with a measure of reserve. An essential part of future studies will be the collection of more detailed vital statistics. Moreover, it must be realised that genetic studies inevitably tend to be slow and that sufficient knowledge on which to base firm conclusions will be accumulated only after many years of intensified fundamental research”

“There is as yet little direct information about the genetic effects of ionising radiations on man and, for reasons which we examine later, the few observations that have so far been made present many difficulties of interpretation.”

“The first description of a specific cancer-associated chromosome aberration was the so called Philadelphia chromosome in chronic myeloid leukaemia in 1960. This was the first consistent chromosomal change seen in a human cancer, and provided strong evidence that chromosome abnormalities have an important causative role in the initiation of carcinogenesis. With the introduction of improved chromosome imaging techniques, such as FISH, specific chromosome aberrations have been detected in very many tumour types, as tabulated in the now gigantic Mitelman database of all published cancer-associated chromosome aberrations. The database now contains more than 55,000 cases. These findings, together with the elucidation of many of the molecular-genetic consequences of the chromosome aberrations, have resulted in [the] original concept [put forward in 1914] now being very widely accepted. The role of stem cells in carcinogenesis has been considered since the early 80s, but cancer stem cells were not isolated till the late 1990s, initially for haematological malignancies, and then in the early 2000s for solid tumours such [as] breast and brain and others. Cancer stem cells are considered to be the initiators of many or most tumours, through the stem cell processes of self renewal and differentiation into multiple cell types. The widespread acceptance that mutated stem cells represent an initial event in carcinogenesis in general, and radiation carcinogenesis in particular, parallel the growing acceptance of the relevance of cancer stem cells. An influential experiment, for example, was the demonstration in 2001 that normal human adult breast stem cells could be blocked from differentiation, and then could be oncogenically transformed by a combination of ionising radiation and an oncogene.”

“There is independent evidence from large-scale epidemiological studies (in particular Japanese Atomic Bomb survivors, but also nuclear workers (Cardis et al. 2007)) that individuals exposed to radiation doses in this dose range have an increased lifetime risk of both cancer incidence and cancer mortality. For example, atomic bomb survivors exposed in 1945 in the dose range from 5 to 150 mSv (and followed up for many decades) show statistically-significant increased risks of both cancer incidence and cancer mortality (Preston et al. 2003, 2004, 2007). Atomic bomb survivors who received higher doses have proportionately higher lifetime cancer risks (Preston et al. 2003, 2004, 2007). In addition to the relevance of chromosome aberrations as biomarkers of past exposure to radiation, there is a well established mechanistic link between chromosome aberrations and cancer. In particular, the majority of all human cancers contain one or more of the same chromosomal aberrations in virtually all the tumour cells, implying that this/these chromosome aberrations must have been present in the original damaged cell(s) from which the tumour originated. This link between chromosome aberrations and cancer has been extensively catalogued, for example by Mitelman et al (1997, 2008). Finally, I will comment on the issue of the latency period between radiation exposure and the appearance of an associated cancer. A great deal is known about this issue, largely from the detailed follow-up studies of the Japanese atomic bomb survivors, whose cancer risk have been carefully monitored for more than half a century (Preston et al. 2003, 2007). What is well established from these studies is that, for solid tumours (as opposed to haematological cancers), the latency period is long, ranging from about 10 to at least 50 years. More precisely, the increased relative risk of cancer produced by radiation exposure is generally maintained throughout the lifetime of the exposed individual. Whilst a complete mechanistic understanding of radiation-induced cancer is not yet established, the reasons for this prolonged period of increased radiation-associated risk are qualitatively understood: radiation-induced cancers originate with radiation-induced damage to stem cells, which can be passed on to progeny stem cells when they divide. Thus the radiation-induced damage can remain latent in stem cells for many years until the damaged stem cell or one of its progeny starts to divide inappropriately as a result of the damage.”

“Cancer usually results from inactivation of tumour suppressor genes. There are probably 20-50 major such genes. Cancer can also occur by activation of smaller numbers of specific oncogenes. In both the cases of tumour suppressor genes and oncogenes, the critical alteration is malfunction in the cellular signal transduction processes that results in uncontrolled cellular proliferation. Single site mutations with alteration of a single residue is one cause of a specific rare transformation of a normal cell to a malignant cell. Alternatively, this can occur by chain breaks in DNA with perturbations or rearrangements locally of the DNA sequence. This is triggered by chain breaks in DNA…. Because ionising radiation can generate a track of reactive hydroxyl radicals, such radiation can damage DNA locally at multiple sites, including damage to both strands of DNA with a short region, and this may well result in a double strand break.”

“…Any disease could be caused by an exposure [to a low dose of ionising radiation] as ultimately our genes determine which proteins are expressed in ourselves and thus control our responses to disease situations. Genomic instability is turned on by extremely low doses of radiation and can be triggered in bystander cells as well. Bystander cells received signals from irradiated cells but do not experience the ionising tract. A further important fact is that genomic instability is a delayed effect of radiation which may not be immediately apparent. The LNT [Linear Non Threshold] model which is used by all radiation protection authorities predicts that any dose no matter how small has a finite probability of causing a cancer due to the ability of radiation to cause DNA damage. The finding of excess chromosome translocation frequencies in the veterans is consistent with this and also with the presence of genomic instability in these individuals. What genomic instability theory does is that it widens the spectrum of diseases inducible by radiation and the time over which these might appear.”

“It was well established (long before Dr Rowland’s report) that ionising radiation can cause certain illnesses, including (but not limited to) cancers. It follows that, if, as Dr Rowland found, the veterans were exposed to ionising radiation, then this materially increased the risk of the veterans suffering the illnesses from which they have actually suffered.”

“I start by considering what is the correct approach on a summary application of the nature of Mr. Richards's application at this early stage in the action when the pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care. The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out ….”

“All of these illnesses also occur when there is no known history of exposure to ionising radiation and in all cases there are known to be other identifiable risk factors, such as smoking. In the event that it is possible to identify more than one risk factor medical science is not able to say which of those risk factors as a matter of probability caused the development of the condition. All that can be said is that the condition has developed and that there are a number of risk factors each of which is likely to have played a material part in the causation of the ill-health.”

“Against that background where the condition complained of by the veterans is known to be radiogenic the Claimants will contend that causation is proved and will rely upon Bailey v. Ministry of Defence & Another [2008] EWCA Civ 883, (2008) LS Law Medical 481.”

“In my speech in the Bedfordshire case [1995] 2 AC 633, 740741 with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff's claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”

“Therefore unless it can be said (as did the Court of Appeal) that operational carelessness could not have caused the damage alleged in the present case it would be impossible to strike out any part of the claim. But causation is quintessentially a matter of fact and one would have thought that where there is a substantial doubt as to what is an operational decision there must equally be doubt as to the extent or nature of the damage capable of being caused by negligence in making such an operational decision.”

“In the present case each member of the Court of Appeal appears to have taken the view that the plaintiff would not be able to show that operational acts, even if negligently performed, either separately or cumulatively caused the condition of which the plaintiff complained. But causation is largely a question of fact. In the light of evidence of [certain identified experts] it would not be right to rule on an application to strike out that the matters complained of as injury could not have been caused either by particular events or by the accumulation of matters which are relied on in the statement of claim.”

“However, the issue of causation arises in a different way if, as I would hold, the plaintiff is entitled to allege negligence against the defendant in the exercise of its statutory discretion. If the plaintiff can succeed in establishing negligence on the part of the defendant … he may well face a very difficult task in seeking to establish that that negligence was a cause of the psychiatric injury in respect of which he claims. But causation is largely an issue of fact to be determined on the evidence, and having regard to the last sentence in the passage of the report of the plaintiff's psychologist which I have set out in an earlier part of this judgment, I consider that it would not be right to strike out the claim on the ground that the plaintiff had no real prospect of establishing causation.”

“ … I am persuaded … that there is no real prospect of the claim succeeding unless and until the law is developed, or corrected, by the House of Lords. In my judgment however, such a possibility would not normally justify a case proceeding to, nor provide a compelling reason for trial. However settled the law may appear to be, one of its strengths is that the possibility of development, or change, remains. In my view, even for the purposes of CPR 24.2, we must apply the law as it is, not as it may possibly one day become …. I do not believe that this approach means that the development of the law is likely to be stultified. If for example, there were a significant conflict in the authorities, or if the law could reasonably be described as uncertain, or perhaps also, if there were a substantial body of academic or judicial opinion that the law as currently understood produced injustice and should be considered by the House of Lords, but simultaneously the essential facts were heavily in dispute, considerations such as these might provide a compelling reason for trial. Although the House of Lords in Barrett v Enfield LBC … has recently emphasised that the law should be developed on the basis of established rather than assumed facts, in this case, as I have explained, many of the essential facts are not in reality in dispute.”

“The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. Are these such cases? A and B owed C a duty to protect C against a risk of a particular and very serious kind. They failed to perform that duty. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. If the mechanical application of generally accepted rules leads to such a result, there must be room to question the appropriateness of such an approach in such a case.”

“It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise.”

“I need hardly add that considerable restraint is called for in any relaxation of the threshold "but for" test of causal connection. The principle applied on these appeals is emphatically not intended to lead to such a relaxation whenever a plaintiff has difficulty, perhaps understandable difficulty, in discharging the burden of proof resting on him. Unless closely confined in its application this principle could become a source of injustice to defendants. There must be good reason for departing from the normal threshold "but for" test. The reason must be sufficiently weighty to justify depriving the defendant of the protection this test normally and rightly affords him, and it must be plain and obvious that this is so. Policy questions will loom large when a court has to decide whether the difficulties of proof confronting the plaintiff justify taking this exceptional course. It is impossible to be more specific.”

“The question is how narrowly the principle developed in McGhee's case and applied in this case should be confined. In my opinion, caution is advisable. Wilsher's case shows the dangers of over-generalisation. In Rutherford v Owens-Illinois Inc … the Supreme Court of California, in a valuable and lucid judgment, said that in cases of asbestos-related cancer, the causal requirements of the tort were satisfied by proving that exposure to a particular product was a substantial factor contributing to the "plaintiff's or [descendant's] risk of developing cancer": see p 32. That is precisely the rule your Lordships are being invited to apply in this case. The Californian Supreme Court stated the principle specifically in relation to asbestos-related cancer cases. No doubt it could also apply in other cases which were thought to have sufficient common features, but that was left for decision on a case-bycase basis. Likewise I would suggest that the rule now laid down by the House should be limited to cases which have the five features I have described. That does not mean that the principle is not capable of development and application in new situations….”

“It is now necessary to distinguish between mesothelioma and asbestosis. Both diseases are caused by exposure to dust, but mesothelioma has been described, because of its aetiology, as an indivisible disease, whereas asbestosis has been described as a divisible, or cumulative, disease. This distinction is very important in this case. Mesothelioma arises when one of the mesothelial cells in the pleura is damaged and undergoes malignant transformation. A tumour then develops from that single malignant mesothelial cell. The precise mechanics of the disease are still not known, but it is received medical opinion that at least 90% of cases of mesothelioma result from exposure to asbestos …. … It was … common ground on these appeals that it could not be said whether a single fibre of asbestos was more or less likely to have caused the disease, alternatively whether more than one fibre was more or less likely to have caused the disease. In the latter event, it could not be shown that it was more likely than not that those fibres came from more than one source. In other words, none of these scenarios could be proved on the balance of probabilities. Similarly, it could not be proved on the balance of probabilities that any one man’s mesothelioma was caused cumulatively by exposure to asbestos dust in more than one employment. … Mesothelioma is therefore an all or nothing disease. It is thus different from asbestosis (or pneumoconiosis) which are cumulative diseases. Mesothelioma is triggered off on a single unidentifiable occasion when one or more asbestos fibres initiate the process which leads ultimately, many years later, to the diagnosis of the disease. Asbestosis is different. There is a minimum dose of asbestos below which there is no risk that asbestosis will develop. Above that minimum dose the severity of the condition, if it does develop, increases in relation to the total dose of asbestos inhaled.”

“It seems to me that Mr Feeny’s argument raises, in a theoretical way, a particularly difficult aspect of the law on causation. In my view, the law on causation is uncertain in a number of respects. For example, does the principle in Bonnington apply only to ‘divisible’ conditions, where the various exposures contribute to the severity of the disease or does it also apply to cases in which the various exposures contribute only to the risk that the disease will develop? Another uncertainty is the extent of the mesothelioma exception. It is not limited to mesothelioma; indeed [it] has its origins in McGhee v NCB [1973] 1 WLR 1. In Gregg v Scott, the House of Lords held that it did not extend to a case in which the negligence of a doctor (in failing timeously to diagnose the claimant’s cancer) had increased the risk that the claimant would die prematurely but the increase was not such as to make it probable that that would be so. In Barker v Corus (UK)PLC [2006] UKHL 20, Lord Hoffman reviewed the opinions of each member of the Appellate Committee in Fairchild and concluded at paragraph 24: “It is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way. It may have been different in some causally irrelevant respect … but the mechanism must have been the same. So, for example, I do not think that the exception applies when the claimant suffers lung cancer which may have been caused by exposure to asbestos or some other carcinogenic matter but may also have been caused by smoking and it cannot be proved which is more likely to have been the causative agent”

“There are certain constituents of fall-out, of which strontium 90 is the most important, which retain their radio-activity for long periods, and which are deposited on the ground over a very wide area where they may contaminate drinking water and crops. If strontium 90 enters the body it concentrates in bone and may cause cancer.”

“(a) The present and foreseeable hazards from external radiation due to fall-out from the test explosions of nuclear weapons, fired at the present rate and in the present proportion of the different kinds, are negligible. (b) Account must be taken, however, of the internal radiation from the radioactive strontium which is beginning to accumulate in bone. At its present level, no detectable increase in the incidence of ill-effects is to be expected. Nevertheless, recognising all the inadequacy of our present knowledge, we cannot ignore the possibility that, if the rate of firing increases and particularly if greater numbers of thermonuclear weapons are used, we could within the lifetime of some now living, be approaching levels at which ill-effects might be produced in a small number of the population.”

“It will be evident to any reader of this report that, at the present time, there are many large and serious gaps in our knowledge of the medical and biological effects of ionising radiation. If the potentialities for good are to be exploited with competence and safety, it is necessary that these gaps should be filled. Much research on many broad fronts will be required. Given the necessary facilities, there is no reason to doubt that the information can be obtained; and we attach the greatest importance to the recommendations for future work that we have been invited to submit for the consideration of the Medical Research Council.”

“The Association is established for the relief of persons suffering from disability attributed to the effects of exposure to radioactivity particularly dealing with nuclear weapons tests, and their families and other persons suffering from similar disabilities, with a view to obtaining legal medical education, and other charitable aid, and advice to enable such persons to overcome their special differences, to live as normal a life as possible. To conduct or promote research into the causes, effects, and treatment of such disablement and to claim financial assistance, benefits and compensation as they may be entitled to.”

“The servicemen present at the nuclear test explosions constitute a uniquely large sample of healthy young men who were at risk of exposure to ionising radiation and among whom there now appears to be evidence of radiation related effects. To examine as fully as possible their subsequent medical histories, access to a complete nominal roll of the total group of exposed persons is required, together with full disclosure of what is known about radiation exposure for men on duty during these tests. We urge that an independent academic body be asked to conduct a full investigation into the morbidity, mortality, and perhaps genetic effects in these men, and given the means to do so.”

“The next Labour Government, as a matter of urgency and priority, will set up a full judicial inquiry on the lines set out in your letter and we will also consult with your Association on the terms of reference of the inquiry.”

“You should also claim even if you think you ought to get compensation. One reason for this is that for a pension you only need to show a reasonable possibility that your health was damaged during the Tests, but for compensation, as things stand, you have to prove negligence, which is a different ball game. Even if you feel you may one day get compensation, you should still go ahead and claim a pension, and not ask for it to be deferred. Compensation still has a long way to go, and if and when it happens there may have to be cash adjustments to allow for any pension you may then have; but all this is in the future, the best advice is to go ahead with a pension claim anyway.”

“Mr. Pearce’s lymphoma is a type of cancer that is known to be produced by radiation exposure, although it is not as commonly observed in excess from such exposure as some other types of cancer. Moreover the onset of this cancer 20 years after his service on Christmas Island would be consistent with the timing of a cancer resulting from radiation exposure. Nevertheless because there is so little indication that Mr. Pearce received a radiation dose that could have affected significantly his probability of developing lymphoma, I do not believe that there is a medical basis for connecting his cancer with radiation received during his stay on Christmas Island.”

“... NRPB have been funding and co-ordinating a study on the possible relationship between the presence of eye cataracts in UK Test Veteran volunteers and the frequency of stable chromosomal aberrations (translocations) in their blood cells. The principal aim was to determine whether volunteers with posterior-subcapsular cataract (PSC), which is known to be inducible by radiation, had levels of chromosome translocations that were elevated sufficiently to suggest that unrecorded high doses of radiation were responsible for their specific eye disorder. ”

“The hypothesis to be tested in the study was whether the presence of posterior-subcapsular cataract in test veterans might be associated with unrecorded high doses (greater than around 1.3 Gy) of radiation. A chromosomal technique believed to be capable of assessing, in blood cells, historical radiation doses of this magnitude was employed in the methodology.”

“A few days before Christmas, John Spellar, a Junior Defence Minister, wrote to me agreeing with my findings that the rate of death from multiple myeloma has accelerated since 1990. But the Government has still not accepted that the radiation received during the tests is the cause. So I have brought together a multi-disciplinary team of researchers from the Universities of Dundee and St Andrews to establish whether or not these servicemen suffered radiation injury. We plan to make use of recently developed radiobiological tests, which work all the better the longer ago the exposure occurred. The project, we estimate, will need at least £250,000.”

“I am well aware that other lawyers have tried to get compensation for you and that they have failed. So why is it worth my even considering investigating your claims? Two matters have changed since the last attempt was made. The first is that Sue Rabbit Roff has published a further report, which takes the scientific evidence forwards significantly, and further helpful evidence has emerged about the Ministry of Defence’s attitude to the troops at the time of the tests. The second is that the attitude of the Ministry of Defence towards claims for events which happened a long time ago seems to have softened. Nevertheless, there would be formidable problems involved in bringing claims to court, and there is no point in playing them down.”

“The nature of the injuries alleged is that in 1966, some eight years after his service on Christmas Island, the plaintiff suffered a rash which became a severe skin condition in 1970. By 1978 the plaintiff was suffering from a soft tissue tumour and lymphoma. By 1981, as a result of treatment of the plaintiff's condition, his thyroid gland had been rendered inoperative.”

“It is well nigh impossible to try to reconstruct in a comprehensive and accurate form what happened thirty years ago through the medium of oral evidence unaided in the main by the contemporary documents. This is what this Commission has attempted to do throughout most of its sittings in Australia. Many of those involved in the tests who could be found were now elderly or in late middle age. Some key witnesses could not be found at all or were too infirm or too far away from the proceedings to be able to give evidence. Without the assistance of records to refresh their memories, many could not remember the events of so long ago with accuracy or detail. There were those who did claim to remember matters of importance, sometimes at second or third hand and often well publicized in the newspaper, radio and television reports of the proceedings. Where the evidence of these witnesses could be checked they were often shown to be wrong in their recollection on later and less well-publicized days, when the relevant documents had been found.”

“In the course of the Inquiry many detailed allegations have been made against the UK and Australian authorities, particularly in connection with the enforcement of standards of safety at and after the tests and in connection with the security of the Ranges. The UK has attempted to investigate some of the more lurid allegations, which have attracted particular attention. These are dealt with in the appropriate sections of this Submission. As will appear, when it has been possible to check them against records of the time or through the evidence of others, these allegations have, in the main, been shown to be unfounded. But, in general, it is impossible to investigate and produce evidence so as to refute or confirm, as appropriate, each of these allegations. Most of them relate to matters over 20 or 30 years ago, and could not properly be tested now in individual civil proceedings. The Commission is certainly not equipped to make findings on them.”

“We can confirm that the basis for the Legal Services Commission’s recent decision to cancel public funding for this litigation is primarily centred around a cost/benefit analysis. In essence, the Legal Services Commission stated that the legal merit of the case was insufficient to justify the case being pursued at the public expense. Further, the cost benefit ratio of the case, in the view of the Legal Service Commission was insufficient to justify continued public funding and that if there was such continued funding, the Legal Services Commission felt that it was unlikely that we would be in a position to serve proceedings within the agreed stayed period of 4 months.”

“On balance it is concluded that there may well have been small hazards of leukaemia and multiple myeloma associated with participation in the programme, but their existence is certainly not proven, and further research is desirable. The only carcinogenic agent that has been shown to cause an increased incidence of both these diseases is ionising radiation, but there is no specific evidence that the test participants who developed these diseases were exposed to unusual amounts.”

“It should be noted … that any new evidence relating to the incidence of leukaemia in the participants will be of limited value as the risk of leukaemia following exposure to ionising radiation diminishes appreciably more than 10 years after the exposure has occurred, unless any of the exposure was due to the ingestion or inhalation of long lived radionuclides. This qualification does not apply to the risk of multiple myeloma nor, in all probability, to the risk of many other cancers.”

“The data in this study point to an accelerated rate of death for the UK nuclear veterans at precisely the moment the NRPB studies terminated, and the UK Ministry of Defence acknowledged in late 1998 that the finding in relation to multiple myeloma alone compels a re-analysis and updating of the NRPB studies. But radiobiological tests are now available which can detect evidence of past radiation exposure. It is a major recommendation of this study that research henceforth proceed beyond the epidemiological to the clinical and pathological levels. Then at least medical science can learn from this 40-year-old tragedy with its cast of thousands.”

“During the last few years, there have been reports of raised numbers of multiple myeloma among test participants, based on records for just over 2000 British servicemen in the British Nuclear Test Veterans Association (BNTVA) (Rabbitt Roff, 1999 A, B). In order to make a comparison between myeloma rates among the test participants and controls, and between these groups and national rates, MOD commissioned NRPB in 1999 to conduct a new analysis.”

“It is concluded that the overall levels of mortality and cancer incidence in UK Nuclear Weapons Test participants have continued to be similar to those in a matched control group, and for overall mortality to be lower than expected from national rates. There was no evidence of an increased risk of multiple myeloma among test participants in recent years. The suggestion in the first analysis of this study of a raised risk of myeloma has not been confirmed in longer periods of followup and is likely to have been a chance finding. Analysis of sub- groups with greater potential for exposure provided little evidence of increased risks, although the numbers of men involved were smaller and the statistical power was therefore less. In common with earlier analysis, there is some evidence of a raised risk of leukaemia among test participants relative to controls, particularly when focusing on leukaemia other than [chronic lymphatic leukaemia]. This could be a chance finding, in view of low leukaemia rates among the controls and the generally small radiation doses recorded for test participants. However, the possibility that test participation caused a small absolute risk of leukaemia other than [chronic lymphatic leukaemia] among men cannot be ruled out; the evidence for any increase risk appears to have been greatest in the early years after the tests, but a small risk may have persisted in more recent years.”

“This document contains in confidence a summary provisional listing of names and relevant associated data, obtained from available UK information sources which were accessible to and reviewed by AWRE staff up to 26th April 1982, for persons who the information indicates were or may have been citizens of the UK and civilians taking part in programmes of UK overseas field experiments, associated with UK defence (nuclear weapons) research and development projects, carried out in Australia, in the Pacific Ocean zone or elsewhere. The listing is not claimed to be free from errors, incorrect assertions or omissions and the attribution or non-attribution of UK citizenship or employer to a particular name may not, in some circumstances, be correct: the information available was sparse, of varied quality, and often ambiguous or indeterminate. This document and any entry of information or lack of entry or of information therein, is not and does not constitute and may not be construed or implied to be a formal summary record, a mandatory record or other record of individual doses of or exposures to ionising radiations.”

“A most important consideration [is] that the measurement of dose by the gamma-detecting instruments gives an erroneous picture of the true hazard present. The normal measuring instruments such as those used for Civil Defence purposes even when supplied with a so called “Beta window”, merely gives an indication of hard beta radiation. This reading is not indicative of the total dose. … It is unfortunate that much credence has been given to the belief that protective clothing is a complete shield for beta particles. Our results indicate that when the dose over the fallout area of an explosion is considered unusually heavy clothing … would be required to lower the dose due to beta particles to values comparable with that due to gamma rays. … The significance of this is that when reclamation or inspection is to be carried out over a target area after 100 days and if personnel are allowed access to the active area for a period commensurate with the maximum permissible dose, they will receive a severe over exposure to beta radiation.”

“The Ministry of Defence … has always believed that only a small proportion of the UK participants could have been exposed specifically to ionising radiations by virtue of the participation and that those who were exposed received only a small radiation dose.”

“The Government's view is that exposure to radiation from the tests had not been shown to be the cause [of certain illnesses suffered by veterans]. Firstly, very few were exposed to radiation at all in excess of natural background. Secondly, the exposures of those who did receive measurable excess (with a few known exceptions) were small. Thirdly, the risks associated with these exposures are known to be very low indeed.”

“FISH … is a mature biophysical technique in which different chromosomes are “painted” different colours, and can be visualised using microscopy. Painting individual chromosomes allows chromosome breaks and subsequent inter-chromosomal rearrangements to be visualised; for example seeing two colours (as opposed to one) within a single chromosome is incontrovertible evidence of chromosome breakage followed by an inter-chromosomal rearrangement. The number of these colour junctions can then be related to the radiation dose that produced them. Standard FISH methodologies, as used since the 1980s, typically involves measurements of only three chromosomes in each examined cell, and uses that information to extrapolate the damage to all the other chromosomes in each cell. Thus, typically, only effects in about 25% of the genome are actually measured with standard FISH, which means that the effects in the other chromosomes have to be estimated (essentially guesstimated) or extrapolated, in order to produce a dose estimate. By contrast, multicoloured … FISH … analyses all the chromosomes in each cell. The result is both improved statistical power and elimination of the need to extrapolate/guesstimate the damage to all the other chromosomes that are not measured with standard FISH.”

“Despite its only recent introduction, multicolour FISH karyotyping has changed cytogenetics significantly.”

“As you know, we analyse chromosomes from patients exposed to therapeutic radiation as well as those exposed occupationally whilst working at Rosyth or other industrial complexes using ionising radiations, and so it is routine for us to do a chromosome analysis on blood samples referred to us by consultants who look after people who have been exposed to radiation …. At the time of the Christmas Island publicity there seemed a possibility that the MRC would be asked to investigate individuals who had been exposed during the Atom bomb tests and so I instructed my staff not to analyse slides from blood cultures from patients who were so exposed. It seemed at the time that we might well be involved in undertaking a blind analysis on random slides taken from exposed and control populations, but in the event the NRPB were asked by the Ministry of Defence to undertake an epidemiological survey of the exposed population. Since the [MRC] were not going to be involved [I authorised the analysis of the slides we had] …. I had thought that it was highly unlikely that we would find any chromosome abnormalities, but it turns out that one of these patients in fact has quite a high degree of chromosome damage present in his blood cells. … You will see from the letter relating to patient [A] that he has a not inconsiderable amount of chromosome damage present in his blood cells which would not be inconsistent with having received radiation exposure 20 or more years ago.”

“… I am afraid that I have to tell you that the level of detection used in this mutation system is not nearly as good as the level of detection using direct assays of chromosome damage in human white blood cells from the Atomic bomb survivors. As it stands, therefore, the red cell mutation assay can detect increased mutation frequencies in people exposed to very high doses of radiation up to many years after their exposure, but I am afraid is not sensitive enough to pick up mutations in people exposed at much lower dose levels. The most sensitive assay that we have at the moment is the chromosome aberration assay in human white cells and this can only detect levels of exposure of 10-20 rads if blood samples are taken shortly after exposure. In the case of nuclear test veterans, since exposures were usually well below the level of 10 rads, and samples can only be taken many years after exposure, there is no chance that one can detect any increased aberration frequencies in these individuals which could be directly related to any previous radiation exposure of that sort.”

“The significantly higher translocation frequencies in the group of veterans compared to the controls suggests that this may be a consequence of their participation in Operation GRAPPLE …. However, since statistical association is not necessarily proof of a cause or relation, possible confounders need to be considered.”

“Our analysis of potential confounding factors leads us to the view that this highly elevated frequency [i.e. total chromosome translocations] is most likely attributable to radiation exposure. Further clarification might be attained by a similar study on British and Fijian participants in Operation GRAPPLE.”

“Measured excess chromosome aberrations are used … as biomarkers of past exposure to radiation. Thus the link from the Rowland results to conclusions about human health has two steps: A. 1. The excess chromosome aberrations measured by Rowland … provide evidence that the individuals have, in the past, been exposed to ionising radiation, over and above natural background …. 2. There is independent evidence from large-scale epidemiological studies (in particular Japanese Atomic Bomb survivors, but also nuclear workers (Cardis et al. 2007)) that individuals exposed to radiation doses in this dose range have an increased lifetime risk of both cancer incidence and cancer mortality. For example, atomic bomb survivors exposed in 1945 in the dose range from 5 to 150 mSv (and followed up for many decades) show statistically-significant increased risks of both cancer incidence and cancer mortality (Preston et al. 2003, 2004, 2007). Atomic bomb survivors who received higher doses have proportionately higher lifetime cancer risks (Preston et al. 2003, 2004, 2007). B. In addition to the relevance of chromosome aberrations as biomarkers of past exposure to radiation, there is a well established mechanistic link between chromosome aberrations and cancer. In particular, the majority of all human cancers contain one or more of the same chromosomal aberrations in virtually all the tumour cells, implying that this/these chromosome aberrations must have been present in the original damaged cell(s) from which the tumour originated. This link between chromosome aberrations and cancer has been extensively catalogued …. It is important to emphasise here that there is no claim that the actual chromosome aberrations measured by Rowland and colleagues are themselves likely to be the originator(s) of a tumour – they are not, as they are measured in human lymphocytes, as opposed to stem cells which are likely to be the parental cells for a malignancy. Rather the chromosomal aberrations measured by Rowland and colleagues are biomarkers of past radiation exposure ….”

“…it is important to note that the overwhelming majority of Claimant Participants received a zero dose. In fact none received a recorded dose of 200 mSv or above. Indeed on analysis of the current cohort totalling 1010 Claimants, only five Claimant Participants received over 30 mSv, the specified lower integrated dose limit for the tests, one of whom received 130 mSv. This was the highest dose received by any Claimant Participant.”

"It is too early yet to give a view on this. The evidence contained in the New Zealand study has yet to be peerreviewed and published in the main scientific literature. We shall also wish to make our own evaluation. Until this process is complete, it will not be possible to take an informed view on whether the study has implications for the claims by nuclear test veterans for additional compensation. Indeed, the authors are at pains to stress that their study, which is about chromosomal changes, makes no claims on the health status of the veterans. I would like to add that the Government is open to new evidence and will give very careful consideration to the study, its implications for the health of UK test veterans and our responsibilities towards them. Once the Government has formed a considered view on the New Zealand study, the Veterans Minister will write to the BNTVA on the conclusion reached."

"Turning to the Rowland cytogenetic study of a small group of New Zealand test veterans, I was pleased that everyone in the meeting was generally in agreement with me. There is no point replicating this piece of research in the UK. The Rowland Report is already on the table and any new work is not anticipated to tell us anything further about any possible link between participation in nuclear tests and subsequent ill health."

“1(1) Section 2 (1) of the Limitation Act 1939 (which, in the case of certain actions, imposes a time-limit of three years for bringing the action) shall not afford any defence to an action to which this section applies, in so far as the action relates to any cause of action in respect of which - … (b) the requirements of subsection (3) of this section are fulfilled … (3) The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which - (a)either was after the end of the three-year period … or was not earlier than 12 months before the end of that period, and (b) in either case, was a date not earlier than 12 months before the date on which the action was brought. subsection (3) of this section are fulfilled … 489. 7(3) In this Part of this Act any reference to the material facts relating to a cause of action is a reference to any one or more of the following, that is to say - (a) the fact that personal injuries resulted from the negligence, nuisance or breach of duty constituting that cause of action; (b) the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty; (c) the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable. (4). For the purposes of this Part of this Act any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice with respect to them, would have regarded at that time as determining … that … an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action. … (5). … for the purposes of this Part of this Act a fact shall, at any time, be taken to be outside the knowledge (actual or constructive) of a person if, but only if, - (a). he did not then know the fact; (b). in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and (c). in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances. (8). In this section appropriate advice, in relation to any fact or circumstances, means the advice of competent persons qualified … to advise on the medical, legal and other aspects of that fact or those circumstances, as the case may be.”

“The committee did not, however, confine itself to "diseases," but to all "slow manifestation" cases, thus embracing cases where a definite accident known to have occurred leads years later to wholly unsuspected consequences. Its report concluded (paragraph 34): "that the law ought to be amended so that, in personal injury cases, a plaintiff should not be defeated by the expiry of the limitation period, if he satisfies the court that: (a) the first occasion on which he discovered or could reasonably have been expected to discover the existence of his injury, or the cause to which it was attributable, was such that it was not reasonably practicable for him to start proceedings in time; and (b) he has in fact started proceedings within a certain period (which we consider should be 12 months) after such occasion."”

“(1) first, and perhaps foremost, most personal injury claims depend on the proof by the testimony of eye witnesses of fairly simple facts, running down actions being obvious examples. If a claim could be freely brought after the lapse of an undefined period of years, then the evidence on neither side would be likely to be reliable and injustice might be done; (2) in spite of the fact that it is normally in the interest of a plaintiff who has a strong case to start proceedings promptly, all experience shows that plaintiffs do not start proceedings promptly unless there is a sanction for failing to do so. We have no doubt that in many cases it is consciousness that time is running against the plaintiff which makes him, and his legal advisers, press on with his claim without undue delay. We think it is in the public interest that meritorious claims should, where this is practicable, be settled at an early date and, if they cannot be settled, should come on for trial while the evidence is still fresh. If the sanction of limitation were removed, the incentive to “get on with it” would be very much weaker; (3) in the great majority of personal injury claims, the plaintiff’s ability to recover the damages due to him depends in the last resort on the defendant’s being insured. The evidence we have received from insurance interests is to the effect that open-ended liability might make some risks uninsurable and this would be to the interest of nobody; (4) a stale claim, even if hopeless, has a considerable nuisance value; there is a real need to protect potential defendants against such actions.”

“…we have taken as our object the selection of a date of knowledge which would represent as fair a balance as is practicable in this field between the conflicting interests of the plaintiff and the defendant: the interest of the plaintiff being to recover damages, it may be for grievous and disabling injuries, which but for the defence of limitation are due to him; and the interest of the defendant being that he should not have to contest the claim after a long interval of time during which potential witnesses on his behalf may have died or disappeared and when it may be very difficult for him to check the accuracy of the plaintiffs assertion; and, in addition, that, so far as possible, there should be a fixed period of time after the lapse of which he or his insurers are entitled to close their books on any particular occurrence. This last interest of the defendant can, however, be secured only by an arbitrary long stop period which, for the reasons already given, we have rejected as a possible solution to the problem; it would not be secured by any of the three possible dates of knowledge [considered].”

“We turn, therefore, to the third possible date of knowledge, namely the date when the plaintiff has knowledge, actual or constructive, both of his injured condition and of its having been caused by acts or omissions of the defendant. We are satisfied that this is a date capable of precise definition and not presenting any particular difficulties of proof; we are further satisfied that, in the great majority of personal injury cases (which are apt to be overlooked in the publicity inevitably attaching to exceptional cases), its selection would not involve hardship to prospective plaintiffs; but we recognise that there is likely to be a small number of cases, potentially involving very serious injuries, in which it could do so. The question then arises whether, although we have rejected discretion as a general solution to the problem of limitation in personal injury cases, there should not be vested in the courts a residual discretion, which would cover all such cases, to extend the time where, on a consideration of all the circumstances, including the respective hardships actually involved to the plaintiff if time is not extended, and to the defendant if it is, it is considered equitable to do so. The virtue of such provision is that it would enable the courts to do what the existing law does not permit, namely to investigate the actual hardships arising on each side, in the circumstances of each particular case, and to try to strike a fair balance between them. By contrast, the major defect, as we see it, of excluding any field of discretion would be that the court could not take into account the existence, or absence, of the actual hardship. For example, the defendant’s only witness as to the relevant facts may have died before the first, or may have survived until after the last, of the possible selected dates and it is therefore as likely as not that a court which has no discretion will either have to give the defendant protection against a possible event which has not happened, or to deny him protection against one that has. Equally, where the plaintiff has allowed time to run out because he has received defective advice, the court would be unable to take into account the fact that any hardship he might otherwise have suffered would be mitigated (or even eliminated) by his right to claim damages for negligence from his advisers.”

“The division of cells in human tissue is important for understanding how mesothelioma occurs. Each cell in the body contains all the genetic information necessary for the construction and functioning of the entire body. This information is contained in the form of DNA, a molecule consisting of two intertwining strands. The different structure and function of the various types of cell in the body occurs because in each cell only some of the genes contained in the DNA are active and in different cells different genes are active. The coded information in a DNA molecule is in the form of about 3,000,000,000 “base pairs”

“These cases have established a pattern at first instance to the effect that actionable injury does not occur on exposure or on initial bodily changes happening at that time but only at a much later date; whether that is when a malignant tumour is first created or when identifiable symptoms first occur does not matter for the purposes of this case. I would hold that these earlier cases were correctly decided and that injury cannot be equated to the “insult” received by the body when exposure first occurs.”

“This test is not in my judgment hard to apply. It involves ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it. In the case of an insidious disease or a delayed result of a surgical mishap, this knowledge may come well after the suffering of the disease or the performance of the surgery. But more usually the claimant knows that he has suffered personal injury as soon or almost as soon as he does so.”

“34 I respectfully think that the notion of the test being partly objective and partly subjective is somewhat confusing. Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally "subjective" in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed "objective" knowledge under section 14(3). But the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would "reasonably" have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. 35 It follows that I cannot accept that one must consider whether someone "with [the] plaintiff's intelligence" would have been reasonable if he did not regard the injury as sufficiently serious. That seems to me to destroy the effect of the word "reasonably". Judges should not have to grapple with the notion of the reasonable unintelligent person. Once you have ascertained what the claimant knew and what he should be treated as having known, the actual claimant drops out of the picture. Section 14(2) is, after all, simply a standard of the seriousness of the injury and nothing more. Standards are in their nature impersonal and do not vary with the person to whom they are applied.”

“…if the judge correctly found in the case of any claimant that he or she had the requisite knowledge within three years after majority, that knowledge would operate to bar not only the claim for damages for the immediate injuries caused by the abuse, but also the long term psychiatric injury of which he or she first acquired knowledge much later.”

“(1) The knowledge required to satisfy section 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable; (2) “Attributable” in this context means “capable of being attributed to”, in the sense of being a real possibility; (3) A plaintiff has the requisite knowledge when [he] knows enough to make it reasonable for [him] to begin to investigate whether or not [he] has a case against the defendant. Another way of putting this is to say that [he] will have such knowledge if [he] so firmly believes that [his] condition is capable of being attributed to an act or omission which [he] can identify (in broad terms) that [he] goes to a solicitor to seek advice about making a claim for compensation; (4) On the other hand [he] will not have the requisite knowledge if [he] thinks [he] knows the acts or omissions [he] should investigate but in fact is barking up the wrong tree: or if [his] knowledge of what the defendant did or did not do is so vague or general that [he] cannot fairly be expected to know what [he] should investigate; or if [his] state of mind is such that [he] thinks [his] condition is capable of being attributed to the act or omission alleged to constitute negligence, but [he] is not sure about this, and would need to check with an expert before [he] could be properly said to know that it was.”

“In this context "knowledge" clearly does not mean "know for certain and beyond possibility of contradiction." It does, however, mean "know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence." Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.”

“… The decision [in Davis] does, however, appear to regard as arguable the contention that, if a claimant is shown to have had knowledge, as we understand the meaning of that word in this context, that his injury is attributable to the act or omission of the defendant, the subsequent obtaining of expert advice for the purpose of legal proceedings which says that the injury is not so attributable, could retrospectively cause him never to have had such knowledge. We do not accept that that contention is arguable. It seems to us to be in conflict with the words of the statute. … The answer to the problem, we think, is to be found in the way in which the court should, on the facts, approach and decide the question whether and when a claimant's state of mind amounted to knowledge for the purpose of sections 11 and 14 of the Act. As we have said above, whether a claimant has knowledge depends both upon the information he has received and upon what he makes of it. If it appears that a claimant, while believing that his injury is attributable to the act or omission of the defendant, realises that his belief requires expert confirmation before he acquires such a degree of certainty of belief as amounts to knowledge, then he will not have knowledge until that confirmation is obtained. Frequently, as it seems to us, it will be safe for the court to proceed upon the basis that a claimant did realise that he required confirmation if he acted in a manner consistent with that state of mind even if he is, as he may frequently be, unable to recall with any degree of precision what his state of mind was. Conclusions as to a claimant's state of mind will, we think, usually be more securely based upon inference from conduct in the known circumstances than from a claimant's later assertion as to how he now recalls his then state of mind as between, for example, belief or knowledge. We add that we have difficulty in perceiving how in any case where a claimant has sought advice and taken proceedings, it can rightly be held that the claimant had not then had relevant knowledge.”

“It seems to me likely that the court was seeking to reflect this earlier passage when it came to the first sentence of paragraph 5 of the subsequent summary. And yet, when one reaches paragraph 5, what previously had been merely a “belief” has become “a firm belief”, and the earlier “expert confirmation” has become “reassurance or confirmation from experts, medical or legal, or others”.”

“… by 1988 he was complaining of severe symptoms. He went to see his GP, complaining of his symptoms in April 1989, by which time he had suffered from throat symptoms for five years and they had continued for a year since he had stopped working in dusty conditions. He had always attributed his throat symptoms to his work alone, and I would fix his firm belief amounting to knowledge of significant injury, combined with the pre-existing knowledge of attribution of throat symptoms, at April 1989.”

“If Mr Ali did not know whether his deafness resulted from exposure to noise at work, or the natural ageing process, I find it difficult to see how he could be fixed with the necessary degree of knowledge that he had suffered an injury which was attributable to the act or omission of the defendants. He needed to “check” with, or obtain “reassurance or confirmation” from a medical expert.”

“Conclusions as to a claimant's state of mind will, we think, usually be more securely based upon inference from conduct in the known circumstances than from a claimant's later assertion as to how he now recalls his then state of mind as between, for example, belief or knowledge.”

“32 In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant's action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in subsection (3).”

“… a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations - see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay. Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier …. It is not to be supposed that the exercise of the court’s section 33 discretion will invariably replicate that position.”

“This subsection is not intended to place a fetter on the discretion given by subsection (1), this much is made plain by the opening words “the court shall have regard to all the circumstances of the case,” but to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and which must be taken into consideration by the judge.”

“The Court considers that, in these circumstances, where a procedure was provided for the disclosure of documents which the applicants failed to utilise, it cannot be said that the State prevented the applicants from gaining access to, or falsely denied the existence of, any relevant evidence, or that the applicants were thereby denied effective access to or a fair hearing before the PAT.”

“The Commission considers the observations of the Government … in response to a claim question in relation to the whereabouts and date of release of the radiation level records to be reluctant and lacking in candour. The question as to when the records were released into the public domain was effectively responded to by noting that the AWE report was released in late1993. However, the AWE report is a summary report and does not constitute or contain the original radiation level records. In light of this conclusion as to the Government’s conduct in the context of this application and in view of the matters outlined above under the heading “Relevant Background”… the Commission considers that there is a “coexistence of sufficiently strong, clear and concordant inferences” allowing it to establish that radiation level records were created, are stored at the AWE Aldermaston and have not yet been released as yet into the public domain…”

“A claimant’s position is different. He has a substantive right, his cause of action, but he cannot proceed with it because of the operation of section 11. He has therefore been prejudiced by the loss of the right to enforce his cause of action. That prejudice is greatly reduced if he has a good claim over against his solicitor. In a case where the defendant has suffered some forensic or procedural prejudice, which will diminish his ability to defend himself, it will be relevant to consider that the claimant has another remedy. But the fact that the claimant has a claim over will not necessarily mean that the direction [to disapply the time limit] should be refused. It might still be fair and just that the defendant remains in the frame. It is the defendant who has, ex hypothesi, committed the tort and …it is his insurer who has received the premiums in respect of the relevant risk. So the fact that the claimant will not suffer financially in the end is relevant but not determinative.”

“The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why …. A claim that the claimant's dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant's majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant.”

“… where, as here, the limitation issue is tried and determined before the merits of the claim the court cannot and should not attempt to determine the merits on affidavit evidence. All that can be done and should be done is for the judge to take an overall view of the prospects of success; a judge who is experienced in this sort of litigation should have no difficulty in doing so.”

“… at no stage were test participants or other humans used as test subjects for the purpose of discovering the biological effects of radiation, radioactive residue and fall-out products … No human beings were ever used, or considered for use, as targets, test-subjects or “guinea-pigs” in any of the tests.”

“It is starkly suggested by the Claimants that those in political and military power in the UK at the time of these tests deliberately exposed the Claimants to doses of radiation which they knew would cause them harm in order to experiment upon them as “Guinea pigs”

“Of the contamination deposited, the majority is “loose” in the sense that it can easily be inhaled as dust, or ingested via the hands and mouth. This can be a serious hazard even though the quantity is minute, far too little to show an appreciable gamma dose-rate externally. For this type of contamination there is neither adequate detection equipment nor doctrine as to acceptable risks in service.”

“… the gradual production of previously classified documents together with the development of knowledge of the effects of fall-out, the extent to which it is apt to be ingested and the risks consequent upon such ingestion now afford the opportunity for nuclear physicists to reach a view as to whether there was probably potentially dangerous exposure”

“…no effort has been spared in the organisation of the tests to ensure the safety of personnel involved, and to obviate danger to persons and property. The arrangements made to this end will be continued throughout the operation.”

“As a loyal serviceman John would not ever want to hear anything said against the Royal Air Force and he also had the view that he could not say very much anyway about his service as a result of being bound by the Official Secrets Act. John was a very loyal man and very quiet and considerate.”

“I have always believed that John’s cancers were caused by his RAF Service in 1956/57, when he was flying through atomic clouds, collecting radiation samples, at the Monte Bello Islands, Maralinga and Christmas Island. I have recently obtained a copy of his Radiation Dosage Chart. I have asked for clarification of the dates shown, as they do not co-relate with the dates of the atomic flights shown in John’s Flying Log Book. He flew six more missions after the last date recorded.…”

“Whether his exposure to radiation in the late 1950s contributed to his malignancy developing in 1990s is highly problematic. We know that exposure to ionising radiation does increase one’s risk to the development of malignancy, at least on population studies and there is usually a latent period of a decade or more. We also know that smoking is strongly associated with the development of malignancy in the lung and upper aerodigestive tract such as the oesophagus. It might be presumed that his exposure could have increased his risk and it is possible that risk was magnified by his smoking. However we know that the development of malignancy is a very complicated process and in particular oesophageal malignancy is also associated with diet in some cultures.”

“Following a series of articles in the press in 1982 about the potential effects of the Christmas Island explosions on those exposed to them, the applicant came to attribute his history of illness to his service on the island and sought an increase in his pension to reflect this.”

"In 1982 applicant's attention was drawn for the first time, by means of a magazine article, to the realization that his prolonged and continuing debilitating illnesses and infertility were caused by his deliberate and unprotected exposure by The United Kingdom in 1958 to the five nuclear air detonations in close proximity to Christmas Island. 744. By 1982 more information regarding the serious health problems of ex-servicemen, who like applicant had been exposed to ionising radiation on Christmas Island in 1958 began to circulate in newspapers, magazines and the public media."

“During April 1958 to September 1958 applicant and hundreds of young men of similar age whose military units had also been assigned to Christmas Island, were deliberately exposed to ionising radiation for the purposes of the atomic and nuclear research program which was being carried out by The United Kingdom at that time to study inter alia the effects of ionising radiation on unprotected military equipment, stores and servicemen.”

“The applicants [referring to Mr McGinley and Mr Egan] maintained that the purpose of the line-up procedure … had been deliberately to expose the servicemen stationed on and in the vicinity of Christmas Island to radiation for experimental purposes.”

“… but we have got documentation now to prove that both the British government and the American government did deliberately use us as their guinea pigs.” deliberately use us as their guinea pigs.”

“I was campaigning for British servicemen. … I was putting my head on the block on many occasions, making statements which were, I would say, a bit over-exaggerated. I have got to admit that. Because at the end of the day, I was trying to get more servicemen to come forward to join this association, to determine if servicemen may have been affected. That was my job, to stand up for these servicemen. Someone had to have a strong voice and I believed that was exactly what I was doing.”

“I believe you have got the scientific proof now, and my justifiable claim is that I suffer from infertility as a result of my participation into the tests.”

“One vivid recollection after one detonation was a fierce thunderstorm which was followed by torrential rain and it lasted for six weeks. It rained so heavily that we were floating our cigarettes around to each other inside our tents. … Since returning from Christmas Island I have suffered from constant tiredness, my finger nails are swollen and almost balloon shaped, my toe nails have virtually rotted away, I have suffered from skin cancer on my legs and other various types of skin disorders including dermatitis. I have now been diagnosed as having terminal cancer, ie of the lungs, lymph gland, and a rare form of bone cancer and have been given six months to live.”

“1. From soundly-founded information currently available and reviewed, the following well-substantiated facts are provided as answers to the DSS questions: (a) Ex-Spr Clark is said by the DSS to have been posted to Christmas Island for the period from 25 November 1957 until returning to the UK on 30 October 1958. If this is correct, he was therefore present at Operations GRAPPLE Y and GRAPPLE Z conducted by the UK Ministry of Supply at Christmas Island in the periods April and August – September 1958. (b) At the moments of detonation on 28 April, 22 August, 2, 11 and 23 September 1958 Ex-Spr Clark would have been upwind or cross-wind, and at [a] distance of [at least] 35 kilometres from the points of the five detonations for Operations GRAPPLE Y and GRAPPLE Z. The DSS state that Ex-Spr Clark was attached to 51 Port Squadron, but we have no information on Ex-Spr Clark’s duties. (c) Ex-Spr Clark was not exposed to any levels sensibly different from ZERO in the areas in which he carried out his duties, either from initial ionising radiations or from radiations arising from early-local residual radioactive material (fall-out). (d) There would have been no requirement, nor need, for a Serviceman with the duties carried out by Ex-Spr Clark to have been issued with a personal film-badge dosimeter, consequently no such issue was ever made. The assessed maximum effective dose that might credibly have been received by Ex-Spr Clark consequent upon his participation in Operations GRAPPLE Y and GRAPPLE Z was not distinguishable from ZERO. Radiological Safety Regulations Christmas Island were issued for Operations GRAPPLE Y and GRAPPLE Z by the Director AWRE, on behalf of the Director General Atomic Weapons Ministry of Supply, which were implemented by the RAF Air Officer Commanding Task Force GRAPPLE and were made known to all personnel. They included instructions on potential radiological hazards, safety precautions and the issue and wearing of film badges where necessary. They were enforced in accord with normal military disciplinary procedures. 2. The recent (1988) Report by the National Radiological Protection Board, “Mortality and Cancer Incidence in UK Participants in the UK Atmospheric Nuclear Tests and Experimental Programmes” (NRPB – R214), shows that for participants, each of total mortality, total cancer mortality and incidence, solid controls, is less than the National average for a comparable set of adult males in England and Wales, and that for other cancers does not sensibly differ from that National average; there is no shortening of life expectancy. It showed that there was no correlation between radiation exposure and cancer mortality and incidence, nor indeed other causes of death. Conclusion Ex-Spr Clark’s exposure to ionising radiations resulting from the UK atmospheric nuclear weapon test programme, Operations GRAPPLE Y and GRAPPLE Z did not sensibly exceed ZERO. That such zero levels of ionising radiations and other nuclear test effects in the Pacific area did not cause, nor contribute significantly to, the lung cancer which he now has is beyond any doubt.”

“It has become apparent from recent studies of atomic bomb survivors, occupationally exposed workers and other groups exposed to ionising radiation that the risk of a number of noncancer outcomes is increased with exposure to ionising radiation. These outcomes include heart disease. Further recent understanding of non-targeted (bystander effects), proposes a mechanism by which ionising radiation exposure results in a number of chronic inflammatory conditions, including heart disease. Of importance in these effects are that they may not be dose dependent and there is enormous inter-individual variation in the manifestation of these effects.”

"During the 1956 atomic bomb tests at Monte Bello I was an engineering mechanic on board HMS Diana and was actually on the upper deck when the ship sailed through the radioactive atomic cloud. Prior to Royal Navy discharge I had no health problems. Since discharge I have suffered from severe skin problems and unsightly body lumps, approximately 100 such lumps."

“[Mr Hart] could not have been in the open on the upper deck whilst HMS Diana traversed the radioactive cloud, as he states. … [Mr Hart’s] exposure to ionising radiations resulting from the UK Atmospheric Nuclear Weapon Test programme, Operation MOSAIC, did not significantly exceed ZERO. It is beyond any doubt that such trivial levels of ionising radiations and other effects from the nuclear tests off Western Australia did not cause, nor contribute to, the multiple lipoma which is not a radiation related disease, and which he now has.”

" … Chris Noone was one of the RAF personnel 32 miles from the atom bomb blasts on Christmas Island. He was told to stand with his back to the blast and was given no protective clothing. Yesterday he said he had a number of tumours removed from his back as a result and still has a radiation illness."

“Loss of teeth, skin problems and memory loss are all documented effects of exposure to ionising radiation.”

“I note that he has had vitiligo, but I doubt if this is in any way related to his chronic urticaria. He has worked on Christmas Island and he wonders whether he was affected by nuclear fallout and I think this weighs heavily on his mind.”

“My children, grandchildren and I have no effective means of obtaining compensation for the illnesses and conditions which we suffer from.”

“1968 Tiredness, lethargy and unable to cope with others. Developed lipomatosis in skin of trunk, upper limbs and abdomen. 1975 sizeable ones surgically removed. Examination – Premature aging. BP 160/90. Heart shows mitral valve regurgitation. Scores of variable sizes of lipomatous lesions in trunk, abdomen and both arms. Blood tests (1997) showed mild anaemia with aplasia and borderline leucopaemia. It is my view that the above findings are likely to be linked to exposure and hazards of nuclear bomb tests in 1958. The changes are likely to be permanent and irreversible.”

“I am determined to address the ongoing concerns of nuclear test veterans and their families. To that end, I am extremely pleased to announce that we will be undertaking a project to investigate the particular health needs of the nuclear test veterans and their descendants. This work will enable us to ensure that this group are getting the best care possible and identify where any improvements can be made.”