Ministry of Defence v AB & Ors

Knowledge for personal injury limitation purposes arises when a claimant knows of a significant injury and of a real possibility that it is attributable to the acts or omissions complained of. Conclusive evidence, expert support and objectively reasonable belief are unnecessary. A sufficiently strong subjective belief will suffice where it makes further investigation reasonably expected.

When exercising the discretion under section 33 of the Limitation Act 1980, the court must assess all the circumstances objectively. These include delay, evidential prejudice and the broad merits. A desire for a trial or a perceived public injustice carries no material weight. Proof that a tort materially increased the risk of an indivisible disease does not establish causation outside the narrow Fairchild exception.

Former servicemen and representatives alleged that exposure to radioactive fallout during British atmospheric nuclear tests caused cancers and other illnesses. Foskett J held that five lead claims were brought within the limitation period and disapplied the limitation period under section 33 of the Limitation Act 1980 in the other five. He also refused to strike out the claims or give summary judgment to the Ministry of Defence: [2009] EWHC 1225 (QB).

The Ministry appealed in relation to limitation, the section 33 discretion, strike-out and summary judgment. The principal issues were the degree of knowledge required under section 14, the proper assessment under section 33, and the effect of the claimants’ substantial difficulties in proving causation.

1. Disposition. The Ministry’s appeal succeeded in every lead case except Mrs Sinfield’s. The other nine lead claims were statute-barred, and the court declined to disapply the limitation periods. The appeals concerning strike-out and summary judgment were dismissed.

2. Knowledge. Section 14(1)(b) of the Limitation Act 1980 requires broad knowledge that the injury is capable of attribution to the acts or omissions complained of. A claimant needs enough knowledge to make investigation reasonably expected. Expert confirmation, credible scientific proof of the actual exposure, and knowledge that causation is probable are unnecessary. A subjective belief may amount to knowledge even if it is medically unsupported or objectively mistaken, provided it is strong enough to make investigation reasonably expected. Applying for a war pension on the basis of a causal connection will ordinarily demonstrate the necessary degree of belief.

3. A claimant has only one cause of action for personal injuries arising from a particular tort. Once a significant injury and the requisite attributability are known, time runs in respect of all consequences of that tort, including conditions developing later. A claimant concerned about later deterioration may seek provisional damages.

4. Section 33. The judge’s exercises of discretion could not stand. He materially underestimated the weakness of the causation cases and wrongly treated perceived injustice to the veterans as a weighty factor. Section 33 requires an objective balance of all circumstances, including the length and explanation of individual delay, deterioration in the evidence and the broad merits. Although a fair trial remained possible because extensive contemporary documents survived, the loss of witnesses and other prejudice remained material.

5. Causation. The claimants ordinarily had to prove on the balance of probabilities that their illnesses would not have occurred but for the tortious radiation exposure. Evidence that radiation merely increased the risk was insufficient. The material-contribution approach in Bonnington and Bailey applies to divisible conditions where the tort increases the actual harm. It did not apply to indivisible cancers.

6. The Fairchild exception remained narrow. It required competing causative agents operating through the same mechanism and could not foreseeably extend to common illnesses having multiple, sometimes unidentified, possible causes. A synergistic case required scientific evidence of the agents’ interaction, reliable exposure estimates and expert assessment of the respective risks. That foundation was absent.

7. Procedural applications. The pleaded cases disclosed reasonable grounds and could not be struck out under rule 3.4. Summary judgment under rule 24.2 was inappropriate without a formal application and unambiguous notice in litigation of this importance and complexity. Mrs Sinfield’s timely claim therefore remained able to proceed, without the court expressing a view on any future formal summary judgment application.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 1317, allowed the Ministry’s limitation appeals in all lead cases except Mrs Sinfield’s, but dismissed its appeals concerning strike-out and summary judgment.
2. High Court, Queen’s Bench Division: Foskett J held that all ten lead claims could proceed, five within time and five under section 33 of the Limitation Act 1980, and refused strike-out or summary judgment: [2009] EWHC 1225 (QB).