Personal injury
Limitation of action - Period of limitation - Personal injury claim
AB and others v Ministry of Defence: SC (Justices of the Supreme Court, Lords Phillips (president), Walker, Brown, Mance, Kerr, Wilson, Lady Hale): 14 March 2012
Between October 1952 and September 1958, the respondent Ministry of Defence (MoD) carried out experimental explosions in the atmosphere of a total of 21 thermonuclear devices (the tests).
The operation took place in the South Pacific and involved approximately 22,000 soldiers, sailors and airmen. From those servicemen were drawn the majority of the 1,011 claimants (the veterans), most of whom commenced a group action on 23 December 2004 but a minority of whom had joined the action by claim forms issued on various dates between 16 November 2007 and 29 September 2008. Each claim alleged breach of duty on the part of the MoD in exposing the veteran to radiation that had caused illness, disability or death.
There was an issue in many of the individual cases as to whether the claim was time-barred under the provisions of the Limitation Act 1980. Section 11 and 14 of the act together provided that the limitation period within which a claimant had to bring a claim in respect of personal injuries that he had suffered was three years from the date when the cause of action accrued or, if later, the date when he acquired ‘knowledge’ that he had sustained an injury that had been ‘attributable’ to the ‘act or omission’ which he alleged constituted breach of duty on the part of the defendant (knowledge of attributability).
In July 2007, the senior master ordered that the limitation question be tried as a preliminary issue in respect of 10 individual lead cases. In determining that issue, the High Court judge considered introducing an objective element into the test of knowledge, namely that no veteran could acquire the knowledge that started limitation running until there was accessible to him scientific evidence that demonstrated the possibility that his injury had been caused by exposure to ionising radiation (the preferred approach).
That evidence had been provided for the first time in July 2007, when a report by Dr Rowland (Rowland report) had been privately presented to them. All claims had been brought within three years of the publication of that report and most of them, including all of the lead claims, had been brought before it was published.
However, he found that the case law did not support the preferred approach but rather that the ‘knowledge’ referred to in sections 11 and 14 could be equated with subjective belief. Each veteran had acquired the relevant knowledge at that moment in time when he had formed the subjective belief that his injury had been ‘attributable to’ exposure to radiation (the subjective test). The judge held that five of the 10 claims had been commenced more than three years after the date when the relevant knowledge had been acquired. In respect of those claims he exercised his discretion under section 33 of the act in favour of the veterans, so that the claims were permitted to proceed.
He held that the other five claims had been started within three years of acquiring the relevant knowledge, so that they were in time. The MoD appealed against the judge’s decision in respect of nine of the lead cases. The Court of Appeal also applied the subjective test but held that, in the case of each of the nine claimants (the appellants), knowledge had been acquired more than three years before proceedings were commenced. Further, it held that the judge had erred in principle in the exercise of his discretion under section 33 of the act. The court held that none of the nine claims should be permitted to proceed on the basis that none of them had a realistic prospect of success. The appellants appealed.
The principal issue that fell to be determined was the meaning of the word ‘knowledge’ in sections 11(4) and 14(1) of the act. The appellants submitted, inter alia, that no veteran had acquired knowledge until the Rowland findings had been published. A further issue arose as to whether the Court of Appeal had erred in declining to exercise its discretion under section 33 of the act. In support of the latter issue, the appellants submitted that the Court of Appeal had wrongly elevated the issue of causation to be the determining factor under that section. The appeals would be dismissed (Lord Phillips, Lady Hale and Lord Kerr dissenting).
The knowledge of attributability as specified in section 14(1) of the act was predicated upon the assumption that the claimant had a valid cause of action and thus would be able to establish, among other things, even in the teeth of opposition from the defendant, not just attributability (which meant that there was a real possibility that the act or omission caused the injury), but rather that his act or omission actually caused the injury in the legally requisite sense. It was a legal impossibility for a claimant to lack knowledge of attributability for the purpose of section 14(1) at a time after the date of issue of his claim. By that date he had in law to have had knowledge of it. The inquiry mandated by section 14(1) was retrospective, namely whether the claimant first had knowledge of it (and of the other specified facts) within or outside the period of three years prior to the date of issue.
A claimant was likely to have acquired knowledge of the facts specified in section 14 when he first came reasonably to believe them. It was an established principle that before it was to amount to knowledge for the purposes of section 14(1) of the act, the belief had to be held ‘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’. The focus was upon the moment when it was reasonable for the claimant to embark on such an investigation. Once the requisite knowledge had arisen, the difficulty of actually establishing the claim conferred no right thereunder to a further, open-ended extension of the time within which the action had to be brought [2]-[4], [11]-[13], [25].
It was heretical that a claimant could escape the conventional requirement to assert his cause of action for personal injuries within three years of its accrual by establishing that, even after his claim was brought, he had remained in a state of ignorance entirely inconsistent with it. Parliament could not have intended that persons with a belief that they had suffered personal injuries thorough the fault of a government department or local authority, or any other public-sector or private-sector body, but with no real prospect of proving legal liability on the balance of probability, would be able to keep their claims on ice for an indefinite period in the hope that one day the right evidence might turn up (see [6], [67] of the judgment).
In the instant case, the Court of Appeal had been correct to conclude that all nine of the appellants had had the requisite knowledge before the period of three years relevant to them. On the evidence, before the relevant period, each had reasonably believed that the injury had been able to be attributed to the nuclear tests conducted by the respondent between 1956 and 1958. Further, the appellants had held those reasonable beliefs with sufficient confidence to have made it reasonable for them to begin to investigate whether they had valid claims against the respondent. It had been common knowledge at least from the 1980s that exposure to fallout radiation could cause leukaemia, many other forms of cancer, infertility and other serious injuries. It had also been well known that many of the 22,000 service personnel who had taken part in the nuclear tests had been exposed to fallout radiation which, while relatively low, had been above the normal background radiation to which all living creatures were exposed (see [25], [63] of the judgment).
(2) It was a fair reading of the Court of Appeal’s judgment upon the issue of causation that it had regarded the difficulties which confronted the appellants in establishing that their injuries had been caused by the tests as determinative against the exercise of the power under section 33 of the act. However, the court had carefully weighed all the other relevant factors. The fact was that the appellants’ claims had no real prospect of success.
It would have been absurd for the Court of Appeal to have exercised the discretion to disapply section 11 of the act so as to allow the appellants to proceed in circumstances in which the next stage of the litigation would have been likely to have been their failure to resist entry against them of summary judgment pursuant to Civil Procedure Rule 24.2(a)(i) (see [26], [27] of the judgment).
Decision of Court of Appeal, Civil Division [2010] All ER (D) 252 (Nov) affirmed.
James Dingemans QC, Catherine Foster, Nadia Whittaker and Mark James (instructed by Rosenblatt Solicitors) for the appellants; Charles Gibson QC, Leigh-Ann Mulcahy QC, David Evans and Adam Heppinstall (instructed by the Treasury Solicitor) for the MoD.
