Limitation obstacle to British ex-servicemen’s compensation bid
Nuclear-test veterans have suffered a major setback in their campaign to prove fault on the part of the British government for exposing them to radiation.
More than 1,000 British ex-servicemen who witnessed nuclear tests on Christmas Island and in Australia in the 1950s claim their exposure to radiation caused illness, disability, or death. They argued that the Ministry of Defence (MoD) was negligent, and sought compensation. The MoD denied both the radiation exposure and causation.
The veterans, some of whom have said they saw the skeleton of their hands as they shielded their eyes from the glare of the explosion, lost their case at the Supreme Court last week in AB v Ministry of Defence [2012] UKSC 9.
Seven justices held by a 4-3 majority (Lord Phillips, Lord Kerr and Lady Hale dissenting) that the majority of the claims could not proceed due to insufficient evidence to prove the link between exposure and illness, and that many of the claims were time-barred under the Limitation Act 1980 since those claimants had acquired “knowledge” of the injury more than three years before they brought legal action.
The justices discussed the difference between subjective “belief” and “knowledge”, and whether the Court of Appeal was correct in holding that a claimant has sufficient “knowledge” of the facts—triggering the onset of the limitation period—at the point at which he comes reasonably to believe them.
In his judgment, Lord Wilson says: “The focus is upon the moment when it is reasonable for the claimant to embark on…an investigation.”
In her dissenting judgment, however, Lady Hale says: “Like it or not, time does not begin to run until the claimant has ‘knowledge’ of the essential ‘facts’.
“On the Court of Appeal authorities, a claimant who strongly believed, on no reasonable ground whatsoever, that his illness was caused by exposure to radiation ‘has knowledge of the fact that’ his injury is attributable to that exposure, whereas a claimant who strongly believed that it was not, on the reasonable ground that those in a position to know the truth denied it, has no such knowledge.”
An MoD spokesperson says: “The MoD recognises the debt of gratitude we have to the servicemen who took part in the nuclear tests. [However] the Supreme Court described the claims as having no reasonable prospect of success and that they were doomed to fail.”
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