Dear Colleagues,

 

The Court of Appeal has today decided Ministry of Defence v AB & Ors [2010] EWCA Civ 1317 (http://www.bailii.org/ew/cases/EWCA/Civ/2010/1317.html), which involved claims by victims of British nuclear tests in the 1950s. It was an appeal from a careful and lengthy decision by Foskett J. The case is of interest because it is another example of consideration of the section 33 of the Limitation Act, and because of the approach which the Court of Appeal takes to the claimants’ chances of establishing causation. Causation is covered at paras 122-157. It is another case of navigating the principles of the various cases – Bonnington, Wilsher, Fairchild, Barker et al, but the Court concluded:

 

154. So, we conclude that there is no foreseeable possibility that the Supreme Court would be willing to extend the Fairchild exception so as to cover conditions such as we are here concerned with, which have multiple potential causes some of which have not even been identified. We reject as highly unlikely the suggestion that the Supreme Court might be prepared, on policy grounds, to extend the exception well beyond that which was contemplated at the time of Fairchild or Barker. We say that because, to effect such a change would be to upset completely the long established principle on which proof of causation is based. It is true that Fairchild itself made a small inroad into that principle. The inroad is slight and there were strong policy reasons for it. But the inroad applies only to cases where the cause of the condition is known. It does not apply where the cause is unknown. Here the causes of the claimants' conditions are not known. All that can be said in these cases is that radiation exposure is one of several possible causes.

155. It is the task of the courts to apply the law as it presently stands. If we thought that there was any realistic possibility that the Supreme Court would change the law so as to accommodate these cases within the Fairchild exception, we would have regard to that when we applied the broad merits test. But we do not. We think that possibility is so remote that it can safely be discounted.

That conclusion is very likely correct on the facts, but it is interesting that the Court of Appeal has taken that position now, when the Supreme Court heard two conjoined appeals last month in Sienkiewicz v Greif; Knowsley Metropolitan Borough Council v Willmore and we await judgment. That judgment will see the Justices deal with the questions of how “material” a material contribution to risk has to be (Knowsley) and the scope of the Fairchild exception, the “doubling of risk” approach and the effect of s 3 of the Compensation Act 2006 (Sienkiewicz).

Best wishes,

 

James

 

 

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James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple

Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15  2TT, United Kingdom
 
Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk