Mr Justice Foskett (Part One)

High Court Of Justice - Queens Bench Division

Benjamin Browne QC and Catherine Foster & Mark James (instructed by Rosenblatt Solicitors) for the Claimants

Charles Gibson QC and Leigh-Ann Mulcahy QC, David Evans & Adam Heppinstall (instructed by Treasury Solicitors) for the Defendants

Full details of the Judgment.

Case No: TLQ/08/0023

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/06/2009

This blog investigates the hearings that took place in 2009 and the outcomes, arguments and the detailed investigation into whether the people who wanted to claim that they have suffered injury, disability or death in consequence of their exposure to ionising radiation as a a result of their presence near, or involvement in the aftermath of, nuclear tests carried out by the British Government. Extracts of the report using Justice Fosketts words form part of this blog.

The majority of those who seek to make a claim in these proceedings, or on behalf of whom a claim is made, are former servicemen from each of the three major British services, but there are a few civilian Claimants and a number of Fijian and New Zealand servicemen who form part of the group. Many of the British Claimants were young men undergoing National Service at the time.

The Ministry of Defence contends that it is now too late for any such claims to be advanced, relying upon the Limitation Act 1980 in support of the argument that any opportunity to bring a claim of this kind was in many cases lost years ago.

This case does not deal with the claims for compensation in their own right. Subject to the question of the extent to which it is relevant and appropriate for the Court at this stage to make an assessment of the strengths or otherwise of the claims sought to be advanced, the merits of the individual claims do not arise for consideration. If, in due course, the ultimate outcome of the present proceedings is that the claims may continue, the full merits of the cases on each side will be determined at a future trial.

A 215 page document was produced by Mr Justice Foskett, in great detail, giving views on both arguments.

The framework for consideration of the issues arising in the case is solely the legal framework of the law of limitation as it applies to the personal injuries claims sought to be made arising from the material events. The events concerned are unique and unprecedented in British history and the issues arising from those events very different in many respects from those arising in a normal personal injuries claim. Those considerations may play a part in the analysis of the issues. However, the essential starting point is that there is no unique law that applies to this case: the law is that which Parliament and the higher courts have laid down in relation to limitation issues in all personal injuries claims.

By the time of The Times’ report the scale of the immediate physical and human devastation would not have been known. The article reported a lengthy statement composed by Winston Churchill, recently replaced by Clement Atlee as Prime Minister, and issued by Mr Atlee from 10, Downing Street, revealing the secret co-operation on the project over the previous four years between Britain and the US. The statement concluded with these words:

“This revelation of the secrets of nature, long mercifully withheld from man,

should arouse the most solemn reflections in the mind and conscience

of every human being capable of comprehension.

We must indeed pray that these awful agencies will be made to conduce to

peace among the nations, and that instead of wreaking

measureless havoc upon the entire globe they may become

a perennial fountain of world prosperity.”

Mr Crossley’s Generic Witness Statement is agreed as conveying fairly the scale of the operations involved:

“The scale of the tests was huge. There were 21 detonations over 6 years or so.

Well over 20,000 individuals attended the tests overall.

The tests were planned as military operations and they represented the largest

military undertaking since the Second World War and the entire

venture was unprecedented. The development of nuclear weapons

was in its infancy, and this meant that those who planned and implemented

the tests were working in a wholly new area of operations, setting their own

rules and standards and not simply following custom and practice or regulatory

guidelines as would normally be the case. This was as true for the earlier tests

as it was for the later ones, when thermonuclear devices were tested for the

first time. It would not be an overstatement to say that a “Task Force” was

necessary to carry out this undertaking; at GRAPPLE for example, a fleet of

Royal Navy and Royal Fleet Auxiliary ships, a fleet of many different types of

aircraft, (bombers, reconnaissance, rescue, transport), hundreds of thousands

of tons of supplies and equipment, and of course, thousands of military and

civilian personnel from several nations. Much had to be transported 7,500 miles

to Christmas Island, although some supplies were sourced from Australia,

(Perth in Northern Australia was about 1,500 miles away). The engineering

undertaking at each of the test sites was enormous too: the preparation work

alone took more than 2 years. A wharf and port had to be built together with

roads, two 6,000 foot runways, recording stations, a water processing plant

and accommodation, sanitation and recreational facilities for four thousand

men (at the peak); and all had to be built from nothing.”

The relevant Particulars of Negligence are set out in the Master Particulars of Claim (the ‘Global Particulars of Negligence’) served on 29 December 2006. Under the sub-heading of “Ill effects of radiation exposure” the following allegations of negligence are made against the Defendant “in the design, planning and execution of the Atomic Bomb testing programme generally or in total by the Defendant through its predecessors, its employees, agents and servants”. It is said that it -

• Knew or should have known the testing programme exposed the Claimants to ionising radiation in levels, both one-off and/or cumulative, sufficient to cause damage to health including both external exposure to ionising radiation as well as internal exposure through inhalation and/or ingestion of ionising radioactive particles and material;

• Failed to take reasonable care for the health and safety of the Claimants who were likely to be exposed to dangerous, unnecessary and unwarranted exposure to ionising radiation including both external exposure to ionising radiation as well as internal exposure through inhalation and/or ingestion of ionising radioactive particles and material;

• Failed appropriately to consider the health and safety of the Claimants in the design and/or execution and/or aftermath of the tests;

• Failed to consider, account for or allow for the effects of multiple, combined or accumulated radiation dose exposures to the Claimants in the planning and execution and aftermath of the tests including both external exposure to ionising radiation as well as internal exposure through inhalation and/or ingestion of ionising radioactive particles and material ….

Under the sub-heading of “Protection from radiation exposure” the following allegations are made. It is said that it -

• Allowed the Claimants to enter into the zone of radiation fall-out or radiation contamination until such time as it was ascertained that the Claimants would not be exposed to harmful levels of ionising radiation;

• Failed to provide any adequate protective equipment to shield the Claimants from the damaging effects of the ionising radiation including both external exposure to ionising radiation as well as internal exposure through inhalation and/or ingestion of ionising radioactive particles and material;

• Failed to provide any adequate protective clothing to shield the Claimants from the damaging effects of the ionising radiation including both external exposure to ionising radiation as well as internal exposure through inhalation and/or ingestion of ionising radioactive particles and material;

• Failed to prohibit or take reasonable measures to prevent servicemen from swimming or bathing in water which they or ought to have known would be contaminated with radioactive fall-out;

• Failed to prohibit or take reasonable measures to prevent servicemen from consuming seafood which they or ought to have known would be contaminated with radioactive fall-out;

• Failed to take reasonable care for the health and safety of the Claimants in protecting them from dangerous, unnecessary and unwarranted exposure to ionising radiation, including both external exposure to ionising radiation as well as internal exposure through inhalation and/or ingestion of ionising radioactive particles and material;

• Failed to protect the health and safety of the Claimants in the design and/or execution and/or aftermath of the tests including, but not limited to adequate or appropriate decontamination;

• Failed to protect the health and safety of the Claimants in the design and/or execution and/or aftermath of the tests including, but not limited to appropriate or adequate consideration of weather patterns, prognostications and conditions before during and after the detonations to which the Claimants were exposed.

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 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 M-FISH 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.

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.”

There are three specific allegations in the Master Particulars of Claim. It is alleged that -

1. The tests, trials, experiments and clean-up operations … were planned and conducted with either disregard for the physical consequences upon the Claimants, or with the stated intent of exposing the Claimants to the potentially devastating consequences of ionising radiation.

2. The tests relevant to this action involved atmospheric, surface and low level explosions of atomic and thermonuclear devices in remote regions of Australia, Australasia and/or the South Pacific. While each test had its own stated purpose, type of atomic or thermonuclear device, possible range of yield and methodology, all had one common theme: the exposure of humans to potentially hazardous levels of ionising radiation.

3. It was the purpose of many of the tests to examine the human limits or thresholds of the biological harm caused by ionising radiation. In short, the individual Claimants were themselves subjects of hazardous and terrible experiments.

The MoD (The Defendant) Response to these claims was:

In the first place, it will be said with vigour that no-one was sent to the tests as a “guinea pig”. It will be contended that all reasonable precautions against the consequences of ionising radiation were taken in accordance with the accepted standards of the day, many of those standards being internationally recognised and promulgated.

It will be contended that very few men (effectively only a handful of the 20,000 or so who took part) were exposed to radiation levels above the normal background level and that any illnesses or disabilities complained of by those veterans who seek to claim in this litigation have not arisen as a result of any excessive radiation exposure. Attention will be drawn to the large number of those who attended the tests who have not suggested that they have suffered in consequence.

The Defendant will contend that the scientific basis for the Claimants’ case is flawed and that the medical cases in support of the various injuries and conditions complained of is insubstantial. It will be suggested that such conditions or illnesses as they may establish arose, or are as equally likely to have arisen, naturally and by processes other than exposure to ionising radiation at the time of the tests.

Various 'experts' were involved to make observations

The positions of Dr Lilley and Dr Regan on the significance of observers being upwind of the point of detonation after the explosion. Dr Lilley has said that they would not “have received a measurable dose from exposure to fall-out if they remained upwind of the point of detonation after the explosions.” He said this in relation to GRAPPLE 1-3, ANTLER 2 and 3 and GRAPPLE X and Y. Dr Regan challenges the conclusionsin relation to GRAPPLE 1-3 and ANTLER 2 and 3. In respect of GRAPPLE X, Y and Z he has said this:

“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.”

Dr Regan’s reference to ‘rainout’ is a reference to rain clouds being formed by or around the particles from the nuclear explosion. The condensation when the air cools causes rain which, of course, may itself carry and be affected by radioactive materials.

At its most simple, what is suggested is that within the radioactive material created in, or released as part of, the detonation of a bomb are materials with long half-lives. This means that the material remains radioactive for many years and will, as part of the process of decay emit alpha and/or beta and/or gamma radiation.

It is accepted that alpha and beta particles arising from ingested or inhaled material can be very dangerous because of their effect upon internal organs. Of the products that may form part of fall-out that can result, over time, in the emission of alpha particles are, in particular, certain Uranium and Plutonium isotopes (some of which may derive from unexploded material ) and Polonium-210. (It will be alleged that Plutonium was one of the fissile materials used in many, if not all, of the bombs.)

Beta radiation emitters include Strontium-90 and Caesium-137, each of which also emits gamma rays. Gamma rays are emitted by, for example, a radioactive isotope of Sodium created by the take-up of seawater and soil if that should occur as part of an explosion.

In a paper presented to the ‘Committee on the Medical and Biological Applications of Nuclear Physics’ entitled ‘Genetic Effects of Irradiation with reference to Man’, D.G. Catcheside (an eminent geneticist later to become Professor Catcheside, FRS) said that all organisms (e.g. viruses, bacteria, fungi and others) investigated following exposure to ionising radiation and ultraviolet light “show genetic effects”.

He said this:

“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.”

He also said this:

“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 following year E. F. Edson, who was the Principal Medical Officer at the Ministry of Supply, presented a paper to the Society of Engineering Industry part of which was entitled ‘The hazards from radiations and radioactive substances’. He drew a distinction between long-wave electromagnetic radiation (e.g. ultraviolet, infra red and radio waves) and ionising radiation and said of the latter the following:

“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.”

164. The paper goes on to describe the types of ionising radiation referred to in paragraphs 123-127 above and to the particular danger that alpha particles give rise. Mr Edson says this:

“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.”

Mr Edson goes on to identify the substances which are most likely to cause damage in the way indicated because of their characteristics. He identifies them as “Radium, Plutonium, Strontium, Cobalt and a very great many other elements and isotopes resulting from neutron bombardment and fission processes….”

He added this:

“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.”

The paper goes on to identify various injuries known to have arisen from over-exposure to uncontrolled ionising radiation in man and lists skin conditions (e.g. redness, blistering, ulceration and scarring); eye conditions (cataracts, eye surface burns), bone cancer, blood cancer, lung cancer and fibrosis, temporary or permanent sterility or reduced fertility, thyroid cancer, liver cancer, intestinal cancer, cancer of the lymph glands and premature ageing.

Part 2 next week.