Tuesday, 7 December 2010

B v Ministry of Defence [2010] EWCA Civ 1317: latent illness

There is a saying that hard cases make bad law.  Often used as justification for a legally rigorous decision that seems to fly in the face of justice.  Ah, says the Court, it works in the long run.  Besides which, if it’s really that bad, Parliament can step in.  All the Court does is uncover the treasure that is common law; Parliament can stomp it into oblivion by passing a simple Act.

The cases that most often seem dreadfully unfair are those involving latent illness.  Mesothelioma is a classic example.  Also a classic example of how the Court tried, and sometimes failed, to help; in Fairchild v Glenhaven Funeral Services Ltd, the Court bent over backwards to ensure justice was truly done to victims, by fiddling with the causation test.  In Barker v Corus (UK) plc, however, the Court took such a strict line that Parliament passed the Compensation Act 2006 to reverse it.

The case of B is a classic example of a tough decision from the Court.  In the 1950s servicemen – many of them national servicemen – were exposed to radiation fall-out from nuclear testing.  Many became seriously ill as time went by.  A group litigation order was made, with over a thousand ex-servicemen claiming damages from the Government.  The Government defended the action on the basis that the servicemen could not prove that their cancers were caused by the radiation; the illness could have occurred naturally.  However, there was also a preliminary issue.  The Government argued that the servicemen were too late to bring claims.  They were well over the limitation period; at best, the servicemen had 3 years to bring a claim from when they became aware that they had a claim.  The servicemen argued that they did not know for sure that they had valid claims until a New Zealand study was published in 2007.  Given that proceedings had been issued even before then, the claims were in time.  Were they?  If not, could the Court use its discretion to waive the time limits?

The Court at first instance said yes and yes.  The Court of Appeal, however, differed.  The Court of Appeal said that the original judge had misunderstood “knowledge”.  It was not a question of knowing all the facts, or even more definite facts; after all, nobody “knows” they have a valid claim, in theory, until they get judgment in their favour.  “Knowledge” was far more diffuse.  All you need to have is something that makes you think about investigating matters further.  This meant that the servicemen had “knowledge” of their claim from some vague awareness of radiation sickness and then contracting a similar sort of sickness.  That should have made them suspect that their exposure to radiation may have caused their illness; that was sufficient knowledge; that was when the 3 year time limit started running.

Should the Court ignore the time limit?  The Limitation Act 1980, which sets the time limits, allows it to do so.  In this case the original judge looked at the injustice to the Claimants.  The Court of Appeal said that that was not a proper exercise of discretion.  There was a more delicate balancing exercise to make, throwing all sorts of factors into the scales of justice.  And the Government had some weighty factors on its side.  The sheer difficulty in proving that men in their sixties and seventies had not contracted cancer through some natural cause.  Could the Claimants have shown that, “but for” their exposure to radiation, they would not have suffered?  Could they show that it was more likely than not that their illnesses were caused by radiation?  Very difficult tests for the Claimants to pass.  The Claimants could not even show how much radiation they had absorbed. 

The Wilsher v Essex Health Authority case stated that, where there were five equally likely causes for Wilsher’s blindness, four of which were natural, Wilsher could not show that the fifth cause – negligence – had, on the balance of probabilities, caused his blindness; in the same way the Claimants would have to look over the past fifty years to verify the cause of their illnesses.  The Court of Appeal looked at some of the evidence to help decide this point, and thought that many of the Claimants were in a similar position to Wilsher; finding it impossible to prove why they had become ill.  The Claimants therefore tried to get around this by using the principles in Fairchild to help with the causation issue.  In Fairchild it was known that one – any one – of a dozen different forms of asbestos exposure had caused mesothelioma.  That was enough to make everyone who exposed Fairchild to asbestos jointly liable.  If the principle were extended, then everyone who exposed the Claimants to radiation – in likelihood, only the Ministry of Defence – would be liable for the eventual illness.  However, the Claimants could not show that radiation had caused cancer.  It could have been a number of things.  In Fairchild only asbestos could have caused mesothelioma.  Therefore the principles of Fairchild could not be extended.  Justice, said the Court, could therefore not be done by waiving the time limits.

I’m not entirely sure the Court of Appeal is correct in some of its application of the law, but that’s because the line of reasoning from Fairchild and Barker (and other similar cases involving exposure to industrial dust, like Bonnington Castings Ltd v Wardlaw) is somewhat confused, and smacks very much of trying to do as much justice as possible.  In Bonnington the Court was content to allow a claim to continue when all the Claimant could do is show that exposure to dust had increased the risk of contracting illness, rather than causing the illness itself; could the same be argued for the servicemen?  The Court of Appeal however finished its judgment with a lament on the difficulties the servicemen faced on factual grounds.  Previous cases had failed, it said, because the link between the tests and the illness was too weak.  The Court had also stated that some of the Claimants before it had poor chances of success regardless.  Perhaps the Court of Appeal was trying to let the Claimants down gently, or perhaps it wanted to stop legal expense on a claim the Court felt was doomed to failure.  Either way, the Court was looking at an exercise of discretion, and that is something which a claimant will always find difficult to rely on.

Only one of the ten test Claimants, Mr Bert Sinfield, was allowed to continue with his action.  He at least could show that he joined the action within 3 years of his diagnosis and so was not out of time.  Tragically, Mr Sinfield died a month after he joined the action. 

A hard case indeed.

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