MoD wins bulk of N-test damages appeal

The Ministry of Defence today won the bulk of its appeal against a court ruling which allowed Britain's atomic test veterans to claim damages.

In June 2009 High Court judge Mr Justice Foskett ruled that 10 test cases out of 1,011 claims could proceed to full trial.

The servicemen blame their ill-health, including cancer, skin defects and fertility problems, on involvement in Britain's nuclear tests on the Australian mainland, Monte Bello islands and Christmas Island between 1952 and 1958.

The MoD, while acknowledging its "debt of gratitude", denies negligence and fought the cases on the preliminary point that they were all launched outside the legal time limit.

Today Lady Justice Smith, Lord Justice Leveson and Sir Mark Waller ruled that nine out of the 10 cases were statute-barred, while the tenth, that of the late Bert Sinfield, was entitled to proceed to trial.

The judges said that they had declined to exercise their discretion in the veterans' favour because they had no evidence by which they could hope to prove that their illnesses had probably been caused by radiation exposure.

It is likely that the veterans will attempt to take their case on to the Supreme Court.

Solicitor Neil Sampson, for the veterans, said after the ruling: "The court has decided that one lead claimant can proceed to trial but nine cannot.

"We are digesting the full judgment and anticipate making an application to the Supreme Court to overturn today's decision.

"This is so that the nine claimants who the court has said are time barred can proceed together with any others in the claimant group who may fall within the same categories as those the court has barred."

He added: "There are 1,002 veterans who can proceed to trial in any event."

The Court of Appeal went on to dismiss the MoD's appeal against Mr Justice Foskett's refusal to strike out the claims or give summary judgment in its favour.

Lady Justice Smith said: "We recognise that these decisions will come as a great disappointment to the claimants and their advisers.

"We readily acknowledge the strength of feeling and conviction held by many of the claimants that they have been damaged by the Ministry of Defence in the service of their country.

"The problem is that the common law of this country requires that, before damages can be awarded, a claimant must prove not only that the defendant has breached its duty of care but also that that breach of duty has, on the balance of probabilities, caused the injury of which the claimant complains. These can be heavy burdens to discharge.

She added: "We have no doubt that it will appear that the law is hard on people like these claimants who have given service to their country and may have suffered harm as a result.

"No doubt partly with this background in mind, Parliament has provided that servicemen who have been exposed to radiation which might have caused them injury will be entitled to a war pension.

"Of course, a war pension is not as financially beneficial as common law damages but it is some compensation.

"Of particular importance on this issue, on an application for a war pension, the burden of proving causation is reversed; thus, the MoD has to exclude the possibility that the applicant has been harmed by radiation.

"We cannot say that any of these claimants who have, so far, not been awarded pensions will succeed in their attempts to do so but their chances of success must be far greater with the MoD having to prove the absence of causation than they ever were while the claimants had to establish it."

The appeal judges said that all the claimants' illnesses were conditions which were very common in the population as a whole and particularly among elderly people of their age group, and there were many other potential causes.

Accordingly, their prospects of success were so poor that it would not be equitable to allow the actions to proceed to trial, which would be extremely costly in terms of money and resources.

Lady Justice Smith said that, in 1985, veteran Melvyn Pearce won a significant victory in the House of Lords, when it was established that the MoD could not rely on the immunity of the Crown from being sued.

But, within a few months, he abandoned his claim because his advisers recognised that they could not prove that his cancer had probably been caused by radiation exposure.

The judge said that the abandonment of that case comprised a warning to those who came after to the effect that causation was a potentially difficult issue which would have to be addressed if any such action was to have a prospect of success.

"It may be that it is not yet possible for a doctor to say that a condition such as cancer has probably been caused by radiation, as opposed to any of the other possible causes, but until such evidence is available, claimants will face the difficulty which caused Mr Pearce to abandon his claim."