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Leonard Abdale and Others

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IN THE FIRST-TIER TRIBUNAL WPAFCC Refs: as below WAR PENSIONS AND ARMED FORCES COMPENSATION CHAMBER Sitting at Royal Courts of Justice, Strand, London, WC2A 2LL Date: 16th December 2016 TRIBUNALS COURTS AND ENFORCEMENT ACT 2007 TRIBUNAL PROCEDURE (FIRST-TIER TRIBUNAL) (WAR PENSIONS AND ARMED FORCES COMPENSATION CHAMBER) RULES 2008 BEFORE: THE HON MR JUSTICE BLAKE MRS I MCCORD DR J RAYNER BETWEEN 1. LEONARD ABDALE (Deceased) ENT/00203/2015 2. DARRYL BEETON ENT/00202/2015 3. TREVOR BUTLER (Deceased) ENT/00258/2015 4. DEREK HATTON (Deceased) ENT/00200/2015 5. ERNEST HUGHES ENT/00254/2015 6. BRIAN LOVATT ENT/00201/2015 7. DAWN PRITCHARD (Deceased) ENT/00258/2015 8. LAURA SELBY ENT/00199/2015 9. DENIS SHAW (Deceased) ENT/00253/2015 10. JEAN SINFIELD ENT/00204/2015 11. DONALD BATTERSBY (Deceased) ENT/00250/2015 12. ANNA SMITH ENT/00251/2015 Appellants - and - SECRETARY OF STATE FOR DEFENCE Respondent Hearing Dates: 13 to 30 June 2016 Representation: Roger Ter Haar QC and Richard Sage (instructed pro bono by HOGAN LOVELLS) for Appellants 1 to 10. Christopher Busby, Hugo Charlton and Cecilia Busby acting as pro bono lay representatives for Appellants 11-12. Adam Heppinstall and Abigail Cohen instructed by the Government Legal Department for the Respondent. TRIBUNAL’S DECISION AND REASONS The unanimous DECISION of the Tribunal is: the appeal of each appellant is dismissed save for the appeal of Leonard Abdale deceased in respect of his claim for cataracts. On this issue his appeal is allowed. INDEX TO DETERMINATION PART ONE INTRODUCTION p.5 Outline of the issues [1] Litigation history [17] The applicable law [32] The further evidence [34] PART TWO SCIENTIFIC BACKGROUND p.20 Nuclear Physics [43] Radioactive Exposure [68] Measurement of dose [76] Protection of health from radiation [100] PART THREE THE UK TESTS AT MARALINGA AND CHRISTMAS ISLAND p.35 The Australia tests [111] Operation Buffalo, Maralinga [125] The Grapple tests [150] 2 Grapple X [163] Grapple Y [166] Grapple Z [202] Radiological measurement of Grapple tests [207] PART FOUR THE BS CHALLENGE TO THE ICRP RISK MODEL p.66 Introduction [226] BS witnesses [228] BS Challenge to ICRP [235] BS submissions on uranium [261] Conclusions on the BS challenge to ICRP [292] PART FIVE MR HALLARD’S EVIDENCE p.104 Expertise [302] Function of Secretary of State’s evidence [314] Hallard’s approach to dose assessment [316] Appellants’ response to Hallard [335] Conclusions on issues relating to dose [347] PART SIX THE HL APPPELLANTS CASE p.130 Wahab and Rowland [358] Conclusions on New Zealand veterans [389] Epidemiology [398] Professor Mothersill [414] PART SEVEN THE MEDICAL CONDITIONS OF THE VETERANS p.151 Introduction [438] Leonard Abdale [445] Barry John Smith [488] 3 Donald Battersby [511] Herbert Sinfield [524] Gwilym Pritchard [537] Charles Selby [560] Derek Hatton [572] Trevor Butler [580] Ernest Hughes [594] Brian Lovatt [610] Dennis Shaw [617] PART EIGHT CONCLUSIONS p.186 Introduction [623] LNT model of assessing health risk [632] Exposure on Christmas Island [639] Maximum Dose [652] Overall Conclusions [664] ANNEX A 15 June ruling p.202 4 PART ONE: INTRODUCTION Outline of the issues in these appeals: 1. Each of these appeals is brought by or on behalf of former members of the armed forces (the veterans) who took some part in the atmospheric testing of nuclear weapons conducted by the United Kingdom between 1952 and 1958. Of the twelve veterans all but three have died and the appeals of the deceased veterans are brought or pursued by their widows or other family members. Each appeal concerns a claim to a war pension by reason of a specific medical condition that is claimed to have arisen as a consequence of service in this test programme. 2. The UK test programme started in October 1952 off the coast of Western Australia (Operations Hurricane, Totem and Mosaic)1. 3. In September 1956 the Buffalo series of tests took place at the Maralinga Range, a desert area in South Australia. Of the twelve veterans with which these appeals are concerned only Donald Battersby served at Maralinga. He did so as a member of the RAF between 26 July and 19 November 1956 when he was aged 20. In 2005 he was diagnosed with chronic lymphatic leukaemia (CLL). He was also diagnosed with pancreatic cancer but this appeal is not concerned with a claim for that condition. 4. All the other veterans served at Christmas Island (Kiritimati), a coral island about 60 kilometres long and between 6 and 30 kilometres wide that is located a few degrees north of the Equator, in what is now the Republic of Kiribati. At the time it was selected for the tests Kiritimati was an uninhabited island, although a few hundred people from the indigenous population of the surrounding islands (the Gilbertese) came to Port London in the north west of the island to work under labour contracts and were subject to the supervision of the British authorities. 5. Between May and June 1957 there were three tests in the Grapple Series over the ocean off Malden Island in the Pacific Ocean, some 700 kilometres from Christmas Island (CI). 6. On 8 November 1957 the next detonation in the Grapple series took place; Grapple X was a high altitude air burst over the ocean just off CI. 1 An informative history of the test programme was supplied to us in the form of extracts from Laura Arnold ‘Britain and the Bomb’ (2001) Palgrave (SB 17/5, 6, and 7). The full text was available in the FTT Bundle B7/34 5 7. On 28 April 1958, the most powerful detonation in the whole series took place; Grapple Y, another air drop at high altitude (estimated at 2500 metres or 8100 feet) with an explosive yield of 3 megatons. The detonation point was over the ocean 1.5 kilometres off the south eastern tip of CI, some 35 kilometres from the main camp and the neighbouring populated area of the island in the north west of the island. 8. Between August and September 1958, four smaller detonations completed the Grapple series, collectively known as Grapple Z. Two of these (Pennant and Burgee) were airbursts over land on Christmas Island detonated at 450 metres from a balloon with yields of 24 and 25 kilotons respectively. The other two (Flagpole and Halliard) were air dropped over the ocean off CI at heights of 2800 metres and with yields of 1 and 0.8 megatons respectively. 9. Thereafter, British testing of nuclear weapons was halted pending the making of an international treaty where signatory states agreed to stop such atmospheric testing. 10. Following the last British test on 23 September 1958, CI was used by the US Government for a series of high yield nuclear tests known as Operation Dominic between 1962 and 1964. Thereafter the military base was abandoned. There were various clean-up operations following the conclusion of British and US testing. 11. The veterans who were stationed on CI are as follows2. We set out here brief details of their service and medical conditions. Greater examination will be given to their medical conditions in Part Seven. (i) Leonard Abdale was at CI from 15 January 1958 to 29 November 1958 aged 22 to 23. He was thus on the island at the time of Grapple Y and the Grapple Z detonations. He served as a wireless operator at the Joint Operation Centre at the Main Camp. In 2000 and 2001 he had operations for cataracts and in 2006 was diagnosed with bladder cancer. He made a claim for both conditions in 2009. (ii) Daryl Beeton served at CI from 27 August 1957 to 10 August 1958. He was aged 19 to 20 and would have been there for the Grapple X and Y detonations only. He served as a Leading Aircraftman and had duties as a cook at the kitchens at the Port and Main camps. In 2001 and 2003 he had myocardial infarctions and had a coronary artery 2 The following data has been abstracted from the medical and service history documentation before us 6 bypass graft in 2008. The underlying disease process was assessed as atherosclerosis. (iii) Trevor Butler served at CI from 30 December 1957 to 12 December 1958 when he was aged 19 to 20. He was also there for the Grapple Y and Z detonations. He was a field engineer with the Royal Engineers. In 2006 he was diagnosed with a range of non­ carcinogenic conditions including immune system dysfunction. (iv) Derek Hatton served at CI from 21 August 1958 to 15 August 1959 aged 19 to 20. He served with the Royal Army Ordnance Corps. In 2007 he was diagnosed with polycythaemia rubra vera (PRV). (v) Ernest Hughes served at CI as a ground wireless fitter with the RAF from 29 October 1956 to 10 September 1957 when aged 22 to 23. He was thus only present during the early Grapple series 700 kilometres away and had left the area before Grapple X and Y. In 1991 he was diagnosed with myocardial infarction and in 2006 with bladder cancer. (vi) Brian Lovatt served at CI in the RAF from 9 September 1957 to 9 June 1958 aged 20. He was therefore present at the time of Grapple X and Y. In 2005 he was diagnosed with atherosclerosis and myocardial infarction. (vii) William Pritchard served at CI as an RAF telegraphist between 24 January and 28 August 1958 at the time of Grapple Y and the first of the Grapple Z tests. He was then posted 330 kilometres away before returning to CI between 3 October and 28 November 1958.
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