The Ministry of Defence (MoD) has successfully appealed against a court ruling to allow ex-servicemen to claim damages for injuries allegedly suffered in nuclear tests during the 1950s.
A group of 1011 claimants, predominantly former UK servicemen, allege that the MoD failed to protect them from exposure to fallout from nuclear bombs, which were detonated as part of a series of atmospheric tests in the Pacific Ocean region between 1952 and 1958.
The claimants, who also allege exposure to radioactive material through contaminated food and drink, believe that they have suffered adverse effects to their health as a result, but the MoD denies liability on the grounds that all proper precautions were taken to protect the servicemen from radiation exposure.
In a judgement published yesterday (22 November), the Court of Appeal ruled that nine of the ten lead claimants had failed to launch their action within the legal timeframe, as outlined in the Limitation Act 1980. The judges also said there was no evidence supporting the claimants’ argument that their injuries had been caused by radiation exposure. As a result, they have been refused the right to pursue their claims, while the remaining 1002 claimants will have to pass the limitation test before they can proceed to trial.
The possibility that British servicemen might have suffered ill health as a result of radiation exposure during the nuclear tests came to public attention in the early 1980s, following a BBC television news programme. The then Government responded by commissioning a health survey of the men involved in the tests – about 22,000 in total – to be conducted by the National Radiological Protection Board (NRPB).
The report, issued in 1988, found no evidence of excess mortality among the participants. It concluded “that there may well have been small hazards of leukaemia and multiple myeloma associated with participation in the programme, but their existence is certainly not proven, and further research is desirable”.
However, the survey’s methodology and conclusions are contested by the claimants. In addition, research undertaken for the British Nuclear Test Veterans Association investigated the incidence of multiple myeloma among British and New Zealand test veterans and concluded that there was a marked increase in the incidence of the disease. It also found an increased rate of male infertility and a high rate of spina bifida in children of veterans.
Announcing their decision, the judges said: “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.”
The court pointed out that servicemen who have been exposed to radiation that might have caused them injury are entitled to a war pension. The judges explained: “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.”
Following the court’s decision, minister for defence personnel, welfare and veterans, Andrew Robathan, said: “The MoD welcomes the Court of Appeal judgment that granted the MoD’s limitation appeal in all these cases. While I have tremendous sympathy with anyone who is ill, the Court accepted arguments that the general merits of the claims were extremely weak and said that the claimants had produced no evidence to link illnesses with attendance at the nuclear tests.
“We recognise the invaluable contribution of all service personnel who took part in the nuclear testing programme. We are grateful to them for the part they played in ensuring UK security.”
The solicitors firm representing the claimants is considering an appeal to the Supreme Court to overturn the decision.
