"does the evidence raise a reasonable doubt as to whether all the conditions have been fulfilled?"
“ being in parade formation several miles from the test site, facing away from the test site, and being able to feel the heat of the subsequent blast on the back of the neck" In his e-mail dated the3 December 2002 Mr Busmer repeated this event is part of his case: "Emphasis should be made to the heat from the radiation, after the explosion, to the back of my neck area, which was quite intense". 21. The Tribunal does not appear to have reached any conclusion in connection with this piece of evidence. Or, if it did, its conclusion is not apparent. In my judgment, it called for specific consideration. 23. The question which arises in connection with this evidence is whether, given the facts provided by the Appellant that he did travel over the Island, saw dead fish, may have swam in a lagoon, ate local food, drank water and had an open wound to his ankle which took a long time to heal, a reasonable doubt was raised as to whether his condition was related to exposure on the Island? It is not apparent from the Case Stated what conclusion was reached in connection with the various statements, including in particular the accounts given to the Brisbane hospital and to Ms Roff. 24. Further, the PAT do not appear to have approached this part of the case by asking whether the evidence raised a reasonable doubt. It dismissed its significance because "there is no evidence of the amount of any contact by the Appellant with those areas of the Island affected whether temporarily or on a long term basis by those measured amounts of radioactivity". Thus it appears to have concluded that the case for exposure to radiation from "dispersion radiation" depended upon the validity of a reading which supported its existence and further evidence that the Appellant had been in the vicinity of the recorded fallout. But this was not the Appellant's case. If this is the approach which was adopted, it amounted to a rejection of the Appellant's case which relied upon other facts with the inference that fallout had occurred. His case was that his activities on the Island and exposure to possible sources of contamination by various means raised a reasonable doubt in relation to the contention that he was not exposed to any radiation whilst on the Island. Or put another way, that on all the evidence reasonable doubt had been raised. 25. It may be open to the PAT to conclude that this evidence raised no reasonable doubt, but I am bound to say that in placing weight on "the absence of evidence of any contact by the Appellant" there is a risk that the PAT was looking to be "convinced" by the evidence rather than simply asking whether there was a reasonable doubt raised by the evidence which was before it. (my emphasis) Perhaps unsurprisingly this case has close overlaps with issues that arise in these appeals concerning exposure to radiation, measurements and hotspots. In it Newman J allowed the appeal and remitted the case to a differently constituted tribunal to consider on all the evidence whether a reasonable doubt had been raised. I am allowing these appeals on very similar grounds. 68. I now turn to consider two cases which were not before the FTT, namely Westcott (although it was cited in cases that were before the FTT) and Roche v Secretary of State for Defence (PA/6/20048 October 2004 ) a decision of Davis J. I was also referred to another decision of Davis J, Setter v Secretary of State for Defence (PA/6/200517 November 2005 ) and the parties were unclear whether this case was before the FTT. 69. In Westcott the claim was based on Article 5 and Drake J said: I read that as a clear answer to the question posed by the DHSS. The answer is: "Yes, Mr Wescott's orthopaedic pathology involving the knees and spine could be related to heavy parachute landings." But having taken those matters into account the report then sets out other considerations which, in the view of those giving the report, point very strongly indeed to the conclusion that Mr Wescott's condition was not related to any parachute landing and was, in fact, primary osteoarthritis particularly related to the fact that he suffered from considerable obesity. It appears that the Tribunal felt some doubt as to whether Mr Wescott fell in the manner he described, for they said in the sixth paragraph of their decision: "In our opinion even if Mr Wescott fell as he described and hurt his coccyx, this incident is not related to the same conditions." It is also clear from the passage that I have just read from the decision that the Tribunal did not find that Mr Wescott did not have the fall as he described. What it then did was to accept and agree with the opinions of the medical services division and say "We are satisfied that Mr Wescott has generalised osteoarthritis." They therefore concluded, basing themselves firmly on that decision, that the same conditions are not attributable to service. In reaching their decision the Tribunal, with that evidence, had a great deal of evidence which pointed and I would say pointed strongly against the appellant's claim that his osteoarthritis was attributable to the parachute fall. But there was also some evidence which did support his claim. The Tribunal could of course have made a finding that they expressly rejected the consultant orthopaedic surgeon's opinion as being, without any foundation, a wrong opinion that no reasonable specialist could have reached. They did not make that finding and it is not surprising, they had no reason to do so. In my judgment, there was therefore on the evidence before them, just as there was before the medical services department in their opinion, evidence which did raise a reasonable doubt in the appellant's favour. There was simply no material on which the Tribunal could find, as they did, that the evidence did not raise any reasonable doubt in favour of the appellant. I have had regard to decision which I have been referred to: Cadney v Minister of Pensions and National Insurance Volume 5, War Pensions Appeal Reports, 687, in which the nominated Judge (then Mr Justice Edmund Davies) held that it was entirely a matter for the Tribunal to decide whether the evidence placed before it is reliable or whether the evidence, being reliable, is such as to create such a reasonable doubt as falls within Article 5, and it is not for the nominated judge to reopen these questions. I give full weight to that decision which I would respectfully say is completely right. But it is the duty of the nominated Judge to see whether there was any material on which the Tribunal could properly reach the decision it did, and for the reasons I have given I find in this case that the Tribunal erred in that they had no material on which they could reject this claim as one in which there was no reasonable doubt raised in favour of the claimant. I think they fell into an understandable trap here and relied almost exclusively upon the medical division's report without realising that that report itself did not reject the appellant's claim on the basis that there was no reasonable doubt in favour of the claimant at all. As I have indicated, the evidence in this case, on the balance of probabilities, points against the appellant's claim. It may be that many would therefore consider this appellant to be fortunate to be entitled to a pension in all the circumstances of this case. But it is not a case of being sympathetic and saying that he is fortunate: he is entitled on the law as it stands, which does weight matters heavily in his favour. For the reasons I have given I hold that this appeal succeeds. So this case provides another example of the adoption of an approach by reference to the existence of possibilities that create a doubt and a confirmation of the low standard of proof set by the Article 41(5) test. 70. In Roche the claim was based on Article 5, Davis J refers to Dickinson, Edwards, Busmer and Westcott and said: 21. Some argument was addressed to me as the meaning and effect of article 5 of the 1983 Order. As I see it, a number of points are clear enough. (1) First, article 5 (2), by its terms, cast the burden on the applicant in such cases. That indeed was so held by Ormerod J in the case of Dickinson v Minister of Pensions[1953] QB 226 . (2) Second, the use of the word "reliable" in article 5(4) cannot be taken, in my view, to be mere surplusage. I respectfully agree, all the same, with the observations of McCowan LJ in the case of R v Department of Social Security ex parte Edwards (unreported,10 July 1992 ) that such word is not intended to convey the meaning “convincing"; rather, it was designed to emphasise that the evidence adduced was not fanciful or worthless. All courts and tribunals have experience of evidence, sometimes even in the form of a witness statement, which, on examination, or perhaps in the light of a quantity of wholly compelling other evidence, is shown to be completely worthless. Article 5(4), as it seems to me, is so worded as to allow for that. 47. But the essence of Mr Pilbrow’s complaint is to be found set out in the second and third points. Mr Pilbrow frankly accepted that the totality of the evidence no doubt showed a probability, even a strong probability, but (sic) a causal link was not shown. But that is not the test under Article 5. In essence, what Mr Pilbrow says is that on the approach that this particular Pensions Appeal Tribunal chose to adopt (that is to say by placing prime emphasis on Prof Hay’s written evidence) it simply was not entitled to reach its finding of fact, or to reach the conclusions as to law. In that regard Mr Pilbrow accepted that if that finding and that conclusion was a finding and conclusion properly open to the Pensions Appeal Tribunal, then, as he put it, his appeal was "dead in the water". 50. Accordingly, goes on Mr Lewis's argument, reading the answers of Prof Hay as a whole, and taking the evidence as a whole (as he stressed, and rightly in my view, one must) and reading also the Pension Appeal Tribunal's decision as a whole, the Tribunal was justified in concluding that no reasonable doubt was shown. 51. I do not agree. As it seems to me, it is precisely because one must read the evidence as a whole that the position on the approach adopted by the Pensions Appeal Tribunal, focusing, as it did, in particular on the evidence of Professor Hay in the Tribunal's determination, that the position is not so clear as Mr Lewis would have it. 56. First, the generalised evidence contained in the various studies and reports, which the Tribunal expressly did not reject as unreliable, lend some support, at least potentially, to Mr Roche’s case, at least with regard to mustard gas; and at all events those reports were not inconsistent with Mr Roche’s case. 57. Secondly, there are various references in the decision of the Pensions Appeal Tribunal itself which perhaps indicate that on occasions the Tribunal may have been engaging in a balancing exercise. For example, it refers to the "significant probative weight" which is attached to Professor Hay’s report. It said that it "preferred" that evidence to the other evidence. It said, by way of example, that the "compelling weight" of the evidence was that Mr Roche had not received dosages likely to have long-term effects. It had referred to the evidence of Professor Hay to the effect that he deemed it "unlikely" that mustard gas was a cause. These points perhaps would not in themselves suffice to invalidate the decision of the Tribunal. But they do seem to me to lend at least some further support for the view that, quite simply, the wrong answer may have been reached given the approach that needed to be applied under article 5 (4). In that regard I would reiterate the point raised by reference to paragraph 5 of the conclusions: if the recording of the evidence was that mustard gas was "unlikely" to be a cause, then that would seem to give rise to an acceptance that there was a possibility that it was the cause. It may be, as Mr Lewis said, that that particular answer is to be read in the answer previously given in paragraph 3 of the findings of fact. But, again, as it seems to me, there is some doubt as to that; and in any event my fundamental reason for allowing this appeal is that, on the approach adopted by the Pensions Appeal Tribunal, with a particular emphasis on the answers of Professor Hay, it simply was not entitled to reach the finding of fact set out in paragraph 3 or the finding in paragraph 4 of its conclusions, as it did. This case has an overlap with the approach taken and the decision made by Newman J in Busmer . It again emphasises the need to look at the impact of possibilities in light of the reliable evidence taken as a whole and on that approach to determine whether in light of all that evidence a reasonable doubt has been raised. It also provides important guidance to the effect that evidence that is not fanciful or worthless is not to be categorised as unreliable and an approach that makes what are expressed as findings based on a balancing exercise or preferring one expert’s evidence to another is incorrect. 71. In Setter the claim was based on Article 5. As in Busmer and these appeals it related to service on Christmas Island. In Setter Davis J dismissed the appeal concluding that: 49. It seems to me, therefore, overall, that the Pension Tribunal reached a conclusion it was entitled to reach and no error of law or unfairness is shown. Mr Stilitz did say that if one takes, together, the various criticisms made that there was here, as he put it, residual unease. He submitted that inadvertently the tribunal may have reverted, and wrongly reverted, to the balance of probabilities test. But, in my view, there is nothing to support that. On more than one occasion the tribunal referred to the reasonable doubt test. In my view the tribunal reached the conclusion it was entitled to reach by reference to findings of fact it was entitled to make and therefore this appeal fails . Earlier Davis J at paragraphs 12 and 13 noted that the standard of proof in pension cases under the SPO is much lower than that which ordinarily occurs in a court of law by reference to proof on the balance of probabilities, and that point had been explored in a number of cases (and he referred to Westcott, Edwards and Busmer ) . Later he recorded that a copy of the full report of a Dr Woodruff was not before the tribunal and said: 33. There was a great deal of material which the tribunal was entitled to accept, and did accept, as supporting, and wholly supporting, the case of the Ministry of Defence. All that the tribunal, in effect, had was an assertion of Dr Woodruff to the contrary. Indeed, it is very hard to understand how Dr Woodruff, an oncologist, can claim to state that Mr Setter had almost certainly been "heavily exposed to radiation during his year on Christmas Island". That is a matter of primary fact which needs to be assessed by reference to the evidence by those involved . It is simply wholly unexplained by Dr Woodruff how it was he was he was able to reach such a conclusion. 34. It seems to me, given that this is, in effect, a bare assertion in the form put before the tribunal, the tribunal was entitled to reject it in the way that it did, having regard to all the other evidence before it, as not being reliable evidence. I therefore think that this ground of attack is not made out. 35. However, Mr Stilitz then went on to attack the way the Tribunal dealt with other aspects of the claim. He, in particular, attacked the Tribunal's approach with regard to exposure to DDT. At the hearing Mr Prescott had said to the tribunal that Mr Setter has been exposed to aerial spraying of DDT from aircraft on a very frequent basis throughout his service on the island. Mr Prescott was in a very good position to give evidence on that because he himself had been on the island at that time. However the tribunal said this, having referred to Mr Prescott’s submission: "This statement is not corroborated and we do not find it credible that this occurred to the extent and frequency claimed." 36. I have to say that I cannot understand how the tribunal felt able to say that. There is nothing to indicate that Mr Prescott would have been trying to give anything other than truthful and accurate evidence. There was no reason to reject it out of hand as not credible. On the contrary, not only was that evidence credible, it did in fact have support from a number of other materials, which I need not specify , which were before the tribunal, including a statement from a particular pilot involved at the time. It seems to me that there is simply no basis for the tribunal making that particular finding. 37. However, matters do not end there because the tribunal went on immediately thereafter in the determination to say this: "A reasonable doubt is not raised in our minds on the totality of the evidence that any exposure to these chemicals that may have occurred had aetiological significance in the fatal process of this individual." 38. It seems to me that there the tribunal was saying that, in any event, aetiology was not, even on the reasonable doubt test, established. It seems to me that the tribunal was certainly entitled to take that view. It is to be noted that they did so by reference to any exposure that may have occurred. So they were not here simply relying on their rejection of Mr Prescott's evidence . (my emphasis) In this case Davis J refers to the tribunal making findings of primary fact but does not expressly deal with the basis upon which it is to do so. However, it is implicit in paragraph 49 that he accepted that a balance of probabilities approach would be incorrect and in my view his approach to the exposure issue is instructive because it shows that he concluded that the tribunal could reject the evidence of Dr Woodruff as bare assertion but they erred in making the credibility finding that they did. In my view taken together this shows that when he refers to the making of findings of fact or primary fact he is not sanctioning an approach that this should be done on a balance of probabilities standard. My conclusions on the Article 41(5) test based on those authorities 72. I repeat that in accordance with existing authority (see Secretary of State for Social Security v Bennett and ors17 October 1997 (unreported) applying Royston v Minister of Pensions[1948] 1 All ER 778 ; and Secretary of State for Defence v Rusling[2003] EWHC 1359 at para 23, it was agreed before the FTT and me that under Article 41 the burden of proof was on the Appellants to prove military service and disablement or death, and that the standard of proof in respect of those two issues was the balance of probabilities. I agree with that earlier authority and approach. 73. When one first considers the Article 41(5) test it does not fit easily with established standards of proof and it might be thought to create a reverse burden on the Secretary of State to establish beyond reasonable doubt that the conditions are not satisfied. However, the authorities establish that this is not the case and that the burden is on the claimant to satisfy the test and thus the standard it sets. 74. That standard requires the claimant to establish upon reliable evidence that a reasonable doubt exists whether the conditions set out in Article 41(1) are fulfilled. If he succeeds in doing that the benefit of that reasonable doubt is to be given to the claimant. In short, the claimant has to establish a reasonable doubt on reliable evidence that the conditions are fulfilled. 75. Understandably, the cases on Article 41(5) have not sought to redefine a reasonable doubt. Rather they have equated it to the level of doubt that will found a not guilty verdict by a jury. 76. In my view, in line with what was said in Greer , Judd, Connolly and Howard, (see paragraphs 60 to 64 above) and confirmed by the later cases referred to above (see paragraphs 65 to 71), to establish a reasonable doubt a claimant will have to establish on reliable evidence possibilities that give rise to it. 77. In Hunt it was pointed out that this unusual standard was applied pursuant to a policy aimed at ensuring that no valid claim is likely to be rejected (and a parallel was made to the position in criminal law relating to the conviction of the innocent). 78. The authorities on Article 41(5) have made clear (see in particular Dickinson and Greer ) that when one gets to the application of Article 41(5) test the civil standard is not relevant as a trigger or otherwise to the raising of a reasonable doubt on reliable evidence that the conditions set by Article 41(1) are met and so the claimant is entitled to a war pension. This has been made clear by reference to (a) the reasonable doubt standard, and (b) what is meant by reliable evidence. The answer or guidance given by those who have thought that the word “reliable” adds something is related to what amounts to a reasonable doubt as that expression is used in criminal law, is that the evidence must not be fanciful or worthless (see Edwards and Roche). 79. That description of what is reliable evidence links it to the standard set by the Article 41(5) test and in my view adds little to it. Rather it confirms that the test is founded on the establishment of possibilities based on evidence that cannot be rejected as being fanciful or worthless and it therefore provides a direct linkage between the quality and nature of the evidence that can be relied on and the criminal “reasonable doubt” standard. The general approach to fact finding and decision making in the application of a statutory test or standard of proof and its application to the Article 41(5) test by analogy 80. As shown earlier (a) in Busmer Newman J refers to a case based on facts that found an inference, (b) in Setter Davis J refers to findings of fact the tribunal is entitled to make and (c) in Roche he refers to the assessment of a witness statement and points out that courts and tribunals have experience of finding that, on examination, evidence that appears reliable on its face is in the light of other evidence worthless and so not reliable. 81. But none of the authorities I was shown on the Article 41(5) test address in any detail how the Secretary of State and then the FTT should go about determining whether the claimant had satisfied the Article 41(5) test and thereby how the decision reached on it should be explained. Rather, these cases primarily address the meaning, nature and effect of the test as opposed to its actual application. So the assertion of the FTT that the law is well established by the earlier authorities does not cover the approach to be taken to the application of the test and thus the reasoning process to determine whether the criterion it sets has been satisfied. 82. It therefore appears that there is an important gap in the authorities concerning the approach to be taken to the application of the unusual, if not unique, standard set by the Article 41(5) test – “a reasonable doubt based on reliable evidence”
“only if the FTT is sure that the disease(s) in question did not arise as a result of exposure to ionising radiation during service, that the appellant’s claim will not succeed.” 119. The Secretary of State submitted that the rejection of this submission was correct because it wrongly sought to impose a burden on the Secretary of State and so was not apposite to Article 41 (although it might be to Article 40). 120. Particularly having regard to the common ground before the FTT as to who had the burden, I do not accept that that explanation can be read into that submission, or that it is a natural reading of that submission. Rather, in my view, the natural reading of the submission is one that accords with the common ground before the FTT and me that in Article 41(5) “reasonable doubt” was being used to convey the same degree of doubt as that referred to in the criminal standard of proof. In my view, if the FTT were rejecting that they erred in law. 121. It is unfortunate that apart from saying that they do not agree with the submission made and that the law is well established and binding on them the FTT do not say why they were rejecting it. Although not advanced before me I think that possible explanations for their rejection of the submission could be that: i) the cases indicate that the test should not be rewritten, or ii) this is a civil case and elements of the fact finding can be based on conclusions based on the civil standard and then carried forward as “facts” on a binary system, which as I have indicated would be an error of law. Both of these possibilities are speculation. 122. Conclusion on this ground. It supports the view that the FTT erred in law. 123. The next ground is that the FTT misapplied Edwards. As to that it is unfortunate that the FTT failed: i) to record the differences between the parties as to how the passage they cite from Edwards should be applied and do not set out how they have applied it, and so how they have approached hypotheses, ii) to provide any explanation of their use of the formula “there is insufficient reliable evidence to raise a reasonable doubt”, by reference to hypotheses or other evidence, and iii) to provide any explanation or identification of the evidence advanced by the appellants that they thought was reliable or why although it is reliable it is not enough or sufficient to raise possibilities that found a reasonable doubt. 124. Conclusion on the second ground. It also supports the view that the FTT erred in law. 125. The third common ground is that FTT erred in law in their approach to Article 41(5) test if what they say in paragraph 493 of the Decision reflects their approach to it namely: “As is apparent from what we have said in relation to individual claimed appeals a claimant has to show both that he was exposed to ionising radiation and that such exposure led to his claimed condition or (in a widow’s appeal) were causally linked to a cause of death”
"Possibly over-reacting to the . finally successful outcome of a very dicey operation [i.e. GX] and to the problem itself the TFC [i.e. himself] boiled with fury as he reviewed the quite unnecessary risks and difficulties which had been imposed on the Task Force" (Oulton, p396). GY — Height, Location, Yield and Meteorology 102. As to yield, the agreed gist (D143 p4 no.002342) indicated a yield of some 3.1 Megatons . The agreed gist also recorded: 102.1 Very significant transformation of U238 to other Uranium isotopes, which would decay eventually to Pu239, thus adding to the alpha activity in the debris (para 8). 104. In oral evidence, Mr Johnston summed it up as (T 6 Feb 152:16 et seq): "
“I just don’t think it is possible to say with any degree of certainty which is the more probable”
“If you put 10 sticky papers out on an island and you happen to get the maximum concentration on one of them the chances are – it would be easier to win the lottery than get that. There’s going to be huge range of concentrations and that almost certainly wasn’t the highest deposition on the island. I mean, it would be impossible for that to help. “ 181. To my mind that plainly accords with common sense and is obviously right. Dr Nicholson also confirmed in oral evidence that deposition is not uniform, hotspots could be caused by aerodynamic effects or by rain and that hotspots could be on a small medium or large scale. He referred to radioactivity deposited by rain in various parts of England following Chernobyl. 182. The FTT record at paragraphs 109 and 110, and conclude at paragraph 122: 109 The principal source of alpha radiation from these tests would have been the Plutonium 239 isotope (Pu239), which has a very long half-life of some 25,000 years (T 4 Feb 13:3) In the order of tens to one hundred kgs of Pu239 would be generated by a nuclear detonation of the size of GY (Regan T 4 Feb 53:9 et seq); the vast majority of it would have been vaporised in the fireball, entered the stratosphere and, in due course, contributed to the global fallout. Professor Regan believed that Mr Johnston's estimates of Pu239 deposition were far too low (T 4 Feb 84:24). 110 Professor Regan stated (T4 Feb 55.15 et seq) "You can't say that alpha is not there if you have not got the right equipment to find and measure it" He tended to agree with Mr Johnston that it was unlikely that Pu239 would be deposited alone (it was more likely to be co-deposited with gamma/beta emitters and thus be detected) but soil sampling for alpha particles did not take place at the time. 122. Sticky paper and Ground Survey. As part of the Pacific-wide programme, there was one monitoring station for ground deposition at the JOC (Clare B4/24 para 10). Additionally, as part of the local programme, sticky paper collectors were deployed for GY and GZ1 to 4 and radiological surveys using portable monitors were carried out (B4/24 para 11). In oral evidence, Mr Johnston confirmed that sticky paper strips were not part of the safety management system (T 6 Feb 84:17); they were point records of area deposition and "you don 't attempt to radiograph it to see if there is a hot particle "(T6 Feb 218:8). As already stated (para 109) Professor Regan felt that it was completely possible that there were 'hotter' spots than ones recorded by the small number of recording stations. The possibility is obvious to us but there is no evidence that there were. We do not consider that any inference can be made about 'hotter spots' in excess of the highest levels recorded at the relevant time. The only inference that we can reasonably make is that there were other 'hot spots' at these levels. We specifically refer to this, where relevant, in relation to each appellant. No local deposition monitoring took place for GX (B4/24 para 26). There were 10 monitoring locations for GY and a further eight for the GZ series (see sketch map at p206V). For GY, sticky paper trays were laid out immediately after the shock wave had passed (agreed gist D/43 ps4-5). 183. I agree with the Appellants that this inference is illogical. Accordingly, it is unsurprising that I was told by counsel that no one asserted to the FTT that the highest reading would be likely to equate to or indicate the highest hotspot, if there were any. 184. As explained in paragraphs 173 to 175 above, this inference and the findings based on it form a fundamental step in the FTT’s finding that in the case of six claimants (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby) there was insufficient reliable evidence on their exposure to radiation from the relevant atomic tests (and thus to radiation above background) to raise a reasonable doubt under the Article 41(5) test with the result that the FTT concluded that their disablement or death were not attributable to service. 185. Also, it cannot be said that there was no evidence that there were no hotter spots because there was expert evidence to that effect and, as the FTT correctly record, the possibility that there were such hotspots was obvious. I add that this finding on hotspots and the reasoning behind it are similar to those on exposure of the tribunal in Busmer and which Newman J found amounted to an error of law. 186. Disagreement between the experts on hotspots including alpha radiation. As indicated by paragraphs 109 and 110 of the Decision (cited above) a number of issues concerning the deposition of alpha radiation from Pu239 were not agreed by Mr Johnston and Professor Regan and these included the existence of hotspots of alpha radiation together with beta and gamma radiation (or alone). 187. As recorded, on hotspots Professor Regan’s evidence was that it was completely possible that there were significantly hotter spots of alpha radiation than indicated by the recorded measurements of beta and gamma radiation. The debate between Professor Regan and Mr Johnston on this (and other matters) extended over a number of reports that were written before and after they signed an agreed gist of classified material on respectively 21 July and2 August 2011 . 188. In a report dated24 November 2011 , Mr Johnston stated that he became aware that it might be possible using only unclassified material (his emphasis) to produce an approximate estimate of the quantity of alpha-emitting Pu239 co-deposited with the measured depositions of fission product activity on Christmas Island and provided such an estimate and a description of his methodology. He acknowledged that the result was an approximation but stated that as it was so low that there would have to be an error factor of around 100,000 or more before it indicated a radiologically significant hazard. Part of his methodology was to take the highest recorded readings, and to this extent it had an overlap with the inference and approach of the FTT, but his methodology was also based on design data, the performance data and the radiochemical post shot analysis for each test. He stated that the most accurate way to arrive at an estimate of Pu239 in measured disposition of fallout would be to use classified details of device construction and performance and that although he and Professor Regan had viewed much that material they were unable to use it in presenting unclassified evidence to the tribunal. (I pause to comment that this is an express recognition that relevant material was being withheld from the decision making process). 189. Professor Regan commented on this analysis in a report dated20 September 2012 . He pointed out that it was based on reasonable “back of the envelope” estimates for the internal dose associated deposition of Pu239 from the weapons test but that Mr Johnston’s analysis was based on two overarching assumptions: (a) the measured fallout depositions in the inhabited areas of the island are indicative of the fallout on the entire island (including regions that were not measured), and (b) an estimate of the plutonium and uranium content of the detected debris. He did not dispute Mr Johnston’s numerical analysis but did disagree in particular with assumption (a) (which has an overlap with the approach taken by the FTT) and stated that in his view this was “loading the dice” to get the smallest number for the possible dose experienced by any veteran stationed on Christmas Island. He pointed out that the measured recordings show deviations of factors of 100,000 and that from this, and using estimates of the amount of Pu239 released by the weapon, he asserted that it did not seem unreasonable to him that similar additional factors of 100,000 or more could also be generated for other localised depositions which were not measured. In short, he advanced a reasoned view that stated that a premise of Mr Johnston’s approach was unsound and introduced the possibility of an error of the size Mr Johnston accepted would be significant. 190. Professor Regan also suggested and advanced an alternative “back of the envelope” approach based on the total amount of Pu239 material produced by Grapple Y and what he described as a most extreme assumption that it was distributed homogenously around the entire surface of the earth. That approach supported the existence of activity from Pu239 many orders of magnitude higher than those suggested by Mr Johnston. 191. I acknowledge that this brief account does not do justice to the rival contentions and that each side have a number of points to make on them that I have not mentioned. But for my purposes a fuller account is not necessary because this truncated account demonstrates the existence of dispute between experts giving evidence within their fields of expertise on this important issue. 192. So the position was that there was competing evidence from those experts on hotspots and the amount of the deposition of Pu239 and thus of exposure to alpha radiation. 193. How did the FTT (i) approach and resolve the disputes, (ii) approach the general agreement expressed between the meteorological experts and as a result (iii) reach their conclusions on the level of exposure in inhabited areas? 194. Albeit that the conclusion reached in respect of forward areas indicates an approach and conclusion based on the establishment of a reasonable doubt and thus of possibilities to found it, in my view it is apparent that in reaching their conclusion in respect of inhabited areas in the cases of (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby) the FTT erred in law by applying an approach to the competing expert and other evidence relating to the factors (ingredients or micro facts) to be taken into account concerning hotspots and exposure to alpha radiation that resolved the conflicts between the expert evidence: i) by applying the normal civil standard or one approaching it and, in any event, by taking an approach that did not address whether there were possibilities based on reliable expert evidence that should be carried forward, and further or alternatively one that ii) treated the expert evidence advanced on behalf of the claimants as hypotheses that should be left out of account. 195. The FTT took an approach that is aligned with or has an overlap with that of Mr Johnston on the existence and impact of hotspots in respect of inhabited areas and it is founded on their illogical conclusion on the existence of the hotspots higher than recorded levels in those areas. To my mind a clear inference from the reasoning behind that illogical conclusion is that the FTT regarded the expert evidence as to the existence of possible hotspots as only hypothesis and so thought that it could not be reliable evidence and that the only reliable evidence was to be found in the readings that were taken. In my view, that is wrong in law even if the standard was the balance of probabilities. To my mind, it is plainly wrong when the standard is the establishment of a reasonable doubt by reliable evidence and so of possibilities to found that doubt, when as the FTT themselves say, the possibility of there being higher hotspots than this recorded is obvious. 196. The evidence of all of the experts on and relating to hotspots and so ingestion of alpha radiation was at least in part based on hypothesis or reasoning based on readings, evidence (e.g. that of Mr Pasquini) and the scientific knowledge, expertise and experience of those witnesses. All of whom had the relevant qualifications, experience and impartiality to give expert evidence. 197. The approach of the FTT of making findings in respect of disputed expert evidence and so, as they indicate, to resolve those disputes by accepting or effectively accepting part of Mr Johnston’s evidence and rejecting the other expert evidence (including meteorological evidence on rain out that was largely agreed and parts of Mr Johnston’s evidence in respect of forward areas) is not consistent with an approach that asks and answers the questions whether the expert evidence advanced by the appellants (a) is or is not reliable, and (b) raises possibilities that do or could found a reasonable doubt. Accordingly, it does not accord with a correct application of the Article 41(5) test. 198. Such possibilities were and are based on, amongst other things, the LNT (no exposure is safe), fallout/rainout, the existence of a source of alpha radiation Pu239, the long term effect of ingestion of any alpha radiation, the obvious possibility of hotspots higher than those recorded for beta and gamma radiation, and the existence of fallout of alpha radiation with them. 199. I acknowledge that it is possible that a correct approach in law to the application of the Article 41(5) test could found a conclusion that the appeals of the six claimants (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby) who were not in forward areas should be dismissed on exposure grounds and that the exposure issues in those appeals was argued by the Secretary of State on different grounds to those expressed and relied on by the FTT. But, if contrary to my reading and analysis of the Decision, the FTT did correctly apply that test I am satisfied that on a generous reading of the Decision the FTT have failed to adequately explain how they have reached their decisions on a correct application of the Article 41(5) test and so have erred in law. Pausing there 200. The support given by the above analysis of the conclusion on the exposure of six of the appellants (Abdale, Beeton, Hatton, Lovatt, Pritchard, Selby) is not directly applicable to (a) the three of the appellants who were not on Christmas Island at the time of the tests (Hughes, Shaw and Smith), (b) the three appellants that the FTT concluded had established a reasonable doubt that they had suffered sufficient exposure (based on a different analysis essentially by reference to film badge readings and the ingestion of small amounts of alpha radiation in forward areas) but who failed on grounds relating to their condition (Battersby, Butler and Sinfield) and (c) the additional grounds for dismissing the appeals of Hatton, Pritchard, Selby and Shaw by reference to their conditions. 201. However, in my view this analysis of the conclusion of the FTT on exposure of appellants in inhabited areas, together with the grounds of appeal based on the FTT’s discussion of, or references to, the legal approach they were applying: i) go to the heart of the application of the determinative test in all of the appeals (the Article 41(5) test), and ii) so demonstrate that the FTT made a fundamental and so material error of law in all of the appeals when applying that test. 202. Indeed it was only in the case of Mr Hughes that oral argument was directed to the point that as he had left Christmas Island in September 1957 (and so before the first test there in November 1957) there was no material error in his case. I acknowledge that this presents him with an additional difficulty but in my view the fundamental error of law made by the FTT in the application of the Article 41(5) test that I have identified also relates to the way in which he put his appeal on exposure namely that the contamination came from aircraft sent into radioactive clouds after the detonations at Malden Island (Grapple 1, 2 and 3) 700m kilometres to the south returning to Christmas Island and contaminated material falling from or being cleaned off such aircraft (and water from the cleaning contaminating the water supply). Further, and in any event, this basis for his claim was not addressed by the FTT and so they have failed to give adequate reasons in respect of it. 203. The other two (Shaw and Smith) were on Christmas Island after the tests and the approach of the FTT to exposure in inhabited areas is also relevant to them because of the very long half-life of alpha radiation and the undisputed evidence concerning how they might have ingested contaminated material (e.g. eating, drinking, swimming, from others and in Mr Smith’s case, who was a barber, by inhaling small pieces of hair). 204. With the exceptions of: i) the fairness point relating to the finding by reference to Royston that Mr Butler did not suffer from Immune System Dysfunction, and ii) the conclusion in respect of Mr Shaw that his cataract was not caused by UV exposure; as to which I agree the FTT erred in law by their failure to address his case that on the reasonable doubt test that the cause was radiation the other conclusions of the FTT on condition relating to radiogenicity were all governed by the Article 41(5) test. 205. In my view, the FTT’s fundamental errors in the application of the Article 41(5) test in the context of exposure also found the conclusion that they made the same errors when applying that test to issues relating to the radiogenicity of a condition. 206. Indeed I was not pressed in oral argument to find that if, as the Appellants argued, the FTT were found to have erred in law in their application of the Article 41(5) test to exposure, that they nonetheless applied it correctly when they reached conclusions on radiogenicity. 207. However, in my judgment a consideration of the approach taken to the issues relating to radiogenicity confirms that the FTT erred in law in their application of the Article 41(5) test to the conclusions they reached on this in respect of all of the appellants to whom such a conclusion is relevant. 208. I shall deal with this more shortly, again by taking examples. Again the FTT were faced with competing views from experts and save in the case of Professor Parker (an epidemiologist) and Professor Mothershill (a radiobiologist) the FTT found that all of their evidence was within their area of expertise and so should be given weight. They record (at paragraph 88) that when they find that Professor Parker and Professor Mothershill gave evidence outside their areas of expertise they have said so. 209. They do this in respect of what they describe as their generic approach to immune dysfunction and modification of inflammatory response (paragraphs 307 to 319) on the basis that as they are not medically qualified and so could not give an opinion on causal link on the way to reaching the conclusion at paragraph 319, with my emphasis, that: 319. The Tribunal therefore finds that there is reliable evidence to show that ionising radiation can have a long term effect on immune and inflammatory responses in humans, but that there is no reliable scientific evidence that establishes a causal link between these effects and the development of specific diseases. This area of science is still at the hypothesis stage. The opinions of Professor Mothersill and Professor Parker on such a causal link are outwith their expertise, and the Tribunal attaches no weight to these opinions. 210. The Secretary of State drew my attention to passages in the judgments of the Supreme court in Sienkiewicz v Grief (UK) Ltd[2011] 2 AC 229 (at paragraphs 80, 93, 163, 164 and 192). However I agree with the HL appellants that in this case (as was accepted in the parts of the Decision dealing with for example carcinoma of the bladder (Mr Smith and Mr Williams at paragraphs 238 to 250), transitional cell carcinoma of the bladder (Mr Abdale) and chronic lymphatic leukaemia – CLL (Mr Battersby) and whether those conditions or diseases are radiogenic) epidemiological and radiobiological evidence can provide reliable evidence linking a condition to a possible cause and thus a possibility. 211. Further it seems to me, as submitted by the HL appellants, that the relevant parts of Professor Parker’s evidence were in part based on her area of expertise, namely epidemiology and not wholly on the condition being an inflammatory one, as submitted by the Secretary of State. 212. More importantly than the points made in the last two paragraphs, I agree with the HL appellants that although this approach of the FTT on causation might fit with the Secretary of State’s argument that before the standard of proof set by the Article 41(5) test was engaged the Appellants also had to prove on the balance of probabilities that ionising radiation has caused an injurious or pathological process that has led to the relevant disablement or death, which I agree was not accepted by the FTT: i) it does not fit with a proper approach to and application of the Article 41(5) test as this is not dependant on “establishing” the causal link referred to, and ii) an approach which simply asserts that a body of evidence is at the hypothesis or hypothetical stage does not properly apply Edwards . 213. I also agree with the HL appellants that paragraphs 172 and 494 of the Decision where the FTT (with my emphasis) state: 172. The Tribunal heard written and oral evidence from Professor Mothersill to the effect that NTE operating at low levels of ionising radiation exposure, typically below the threshold of epidemiological detection, may alter the dose response relationship from a linear one. In other words, NTE may be relatively more potent at low doses, in effect posing a greater health risk than the LNT model would suggest. The actual shape of this response curve however remains unknown, and is the subject of ongoing research. 494 We recognise that advances in scientific knowledge may over the years lead to an acceptance that conditions other than those now accepted as being radiogenic may also be so regarded . However, the practical problem is going to be that relatively rare medical conditions require larger epidemiological studies. provide support for the view that the FTT misapplied Edwards and the Article 41(5) test by failing to look at the underlying theory or hypotheses founded on fact, research and reasoning all of which have a part to play in determining whether research founds a possibility that should be carried forward in the decision making process (see paragraphs 112 and 113 above). 214. Also the FTT’s approach to non-hodgkin’s lymphoma (at paragraphs 282 to 291) supports the conclusions that the FTT were approaching disputes between experts by considering who they preferred as is done in civil litigation, where the standard is the balance of probabilities, rather than by considering whether the expert evidence (within the relevant expertise of the witness) that they reject nonetheless raises a reasonable doubt and thus possibilities that need to be carried forward in the decision making process and misapplied Edwards. 215. This is because on this issue: i) the FTT had evidence from a range of experts namely (a) Professor Parker, (b) Dr Berney (a consultant haematologist who treated Mr Sinfield), (c) Professor Kaldor (professor of epidemiology) and (d) Professor Rowland (professor of molecular biosciences). Professor Parker relied on evidence from RERF Report Number 8-08, which found “positive associations between lymphoma mortality and radiation dose” and “protracted induction and latency period for radiation-induced lymphoma mortality”
“When Mr Sinfield mentioned that he had been involved in the Christmas Island atomic tests, both myself and my colleague, Dr Virchis, felt that exposure to radiation at that time was highly likely to have contributed to the development of this aggressive and unusual type of lymphoma which makes up 3% of cases of NHL in adults”