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Ministry of Defence v AB and others: Awaiting appeal in the Supreme Court

Whether the Court of Appeal (1) applied the wrong legal test for knowledge in section 14 of the Limitation Act 1980, and (2) adopted the wrong legal approach to the exercise of discretion under section 33 of the Act.

This case should make headlines when the appeal is heard. It also raises interesting legal questions, namely what is the proper test for knowledge in s14 of the Limitation Act; what is the proper approach to exercise of discretion under s33?

Claims arise from UK atmospheric nuclear tests carried out at Christmas Island and elsewhere in the Pacific between 1952 and 1958. 1,011 personnel engaged in the tests claim for adverse reactions to ionising radiation released during testing. Liability is denied. The MoD has raised a limitation argument. Ten test cases were separated out with limitation to be run as a preliminary issue.

At first instance, Foskett J applying the section 14 test held that 5 cases were not statute barred. In the remaining 5 he exercised his discretion in claimants' favour. The MoD appealed. The CA overruled Foskett J in all cases save one (which claimant unhappily had died before the appeal).

As for section 14, unarguably all claimants knew that they had participated in the nuclear testing. Knowledge of its possible adverse effects developed gradually from the 1950s but on many occasions the MoD when challenged asserted that the levels of exposure during testing were not sufficient to give rise to a foreseeable risk of harm. Only in about 2007 did most claimants have access to studies suggesting that this was untrue. Claimants' arguments were that the section 14 requirement of knowledge includes not only knowledge that there may be a causative link between the act complained of and the injury but also that there is some reasonable evidential foundation for that link. In these radiation sickness cases they asserted that adequate evidence to argue that there was a link had become available only with recent authoritative reports and analyses.

This argument was rejected by the CA. It held that a claimant has the requisite section 14 knowledge when it has become reasonable for him to set about investigating whether his injury was caused by the matter under complaint. Several of the test cases raised slightly differing issues. For example, some claimants had held a strong belief for many years that their condition was caused by radiation sickness but had not brought proceedings for lack of evidence to prove causation. The CA postulated whether a mistaken belief in causation set the stop watch running and concluded that it could.

The CA agreed that the section 33 discretion ordinarily applies in a section 14 case only to the period that has elapsed after knowledge was acquired - but the whole of the delay since the original event may be material if it is concluded that a fair trial is no longer possible. It also took issue with some of Foskett J's reasoning on exercise of discretion in individual cases.

As a result the whole of these areas are for review in the Supreme Court. Whilst nuclear sickness claims involve unusual features, what is likely to be a wholesale reform of the section 14 and section 33 tests may have far reaching consequences in many species of PI claim.

Colin Challenger / 1st Dec 2012


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