United Kingdom
Causation, Evidence, Burden of Proof, Precaution, Contract, Damages, Standing
In the present case the Judge had to determine preliminary issues in ten lead cases within a group action brought on 23 December 2004 (or, in some cases, later dates) by 1,011 claimants (or in some cases the dependants or estates of deceased persons) against the Ministry of Defence for compensation for injury, disability or death in consequence of exposure to ionising radiation as a result of their presence near, or involvement in the aftermath of, nuclear tests carried out by the British Government in the 1950s. Analysis of the background history, including the underlying science relating to nuclear physics and to essential cytogenetics, and several broad areas of the evidence, concluded with the report in 2006 of a study which relied on a technique which had not been available until the late 1990s and which represented the first occasion on which there was credible scientific evidence that exposure to radiation levels above background levels had caused the kind of chromosomal aberrations that evidence the mechanism for at least some of the injuries or conditions of which complaint was made. None of the claims should be struck out as "doomed to fail" on the issue of causation largely because causation was essentially a matter of fact, the nature of the injury or condition in question was an issue of fact, and the facts (dependent upon both the lay and expert evidence) were as yet a long way from being established. Moreover, until the facts had been established it was not possible to know which approach to the test for causation was applicable to each individual case. There might be difficulties of proving causation, but that was not a sufficient basis for striking out the claims at this stage. While knowledge did not denote certainty, suspicion, particularly if vague and unsupported, would not normally suffice. The state of the claimant’s belief was to be considered, as also whether he thought it necessary to refer his belief to experts, medical or legal, or others. The issue was primarily one of fact for each case, and, in relation to words used by a witness when being asked about his state of mind at a particular time in the past, his actions (or inactions) at the time about which he is being asked might require the words used or accepted in evidence to be viewed with circumspection. The preferred view was that until the 2006 report there could have been no “knowledge” within s 14, but the established authorities precluded that view and each case was therefore to be considered in accordance with the guidance set out in those authorities. In relation to the discretion under s 33 it could not be accepted that there was now no reasonable prospect of a fair trial. The voluminous documentation created at or about the time of the tests, and reference to any statements or accounts that those involved have given subsequently, would suffice, and the cogency of the evidence would not be substantially diminished by reason of the deaths of many people who would otherwise have given evidence. On application of the relevant principles to the ten lead cases it was concluded that the state of knowledge at material dates was such that five of the cases were statute-barred by reference to the primary limitation period, but in relation to those cases (and, had it been necessary, to the other five cases) the discretion under s 33 should be exercised to allow the claims to proceed to trial. The broad nature of the limitation issues was that a claimant had three years from the commencement of the period specified in the Limitation Act 1980 in which to institute proceedings, and similar rules applied to dependants and personal representatives. The start of the period depended on when relevant knowledge had been acquired. His Lordship’s preferred view was that, until the Rowland Report, there could be no “knowledge” within section 14, but the established authorities precluded that view, and each case was therefore to be considered in accordance with the guidance set out in those authorities. In relation to the discretion under section 33, his Lordship was unable to accept the defendant’s submission that there was now no reasonable prospect of a fair trial.