Held
Date of knowledge: the cases turn on when each Claimant knew he had suffered a significant injury and that it was capable of being attributed to the alleged acts or omissions. The relevant test is whether a Claimant had such a degree of belief that, objectively considered, it was reasonable to expect him to commence investigating whether or not he had a viable case.
Section 33 Limitation Act discretion: it is for the judge to take into account a broad assessment of the actual merits of the claims and defences. The need to avoid an apparent injustice was not a proper consideration. The broad merits test is important and, in this regard, it was important to consider the Claimants’ prospects of showing causation, which faced great difficulties. These were not cases to which the exception to the usual “but for” rule established by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] could foreseeably be made to apply.
Application to individual cases: the Court of Appeal concluded that it would not be equitable to allow nine of the claims to proceed. In relation to the tenth (brought by the widow of Mr Sinfield) there was no appeal by the MoD against the finding at first instance that the claim had been brought in time.
Comment
This case highlights that, whatever level of sympathy there may be for people like these Claimants who have given service to their country, it will be necessary for a Claimant to show that a claim is not prevented from proceeding on limitation grounds. This decision provides helpful guidance on the relevant tests to be applied to these and to other claims, both in relation to date of knowledge and s.33 discretion.
Even if a claim has been brought in time, and as reflected in the discussion in the Court of Appeal’s judgment on exercise of the section 33 discretion, the issue of causation will be key. In cases such as these, on the basis of current medical understanding, causation will be very uncertain.
It should be noted that servicemen who have been exposed to radiation which might have caused them injury will be entitled to a war pension which, although not as financially beneficial as damages, provides some compensation. On an application for a war pension, the burden of proving causation is reversed, and the MoD has to exclude the possibility that the applicant has been harmed by radiation.