Cubillo, Pedro Juan v Commonwealth of Australia
[1995] FCA 1006
•14 DECEMBER 1995
CATCHWORDS
TORT - Negligence - whether the Commonwealth of Australia breached its duty of care to the applicant, as his employer, to protect him from risk of injury from exposure to ionising radiation - whether any such breach of duty by the Commonwealth exposed the applicant to ionising radiation - whether any such exposure was a cause of the applicant's renal cell cancer.
Birkholz v R J Gilbertson Pty Limited (1985) 38 SASR 121
McGhee v The National Coal Board [1973] 1 WLR 1
Bonnington Castings v Wardlaw [1956] AC 613
The State of Western Australia v Watson (1988) Aust Tort Rep 80-266
Bennett v Minister of Community Welfare (1992) 176 CLR 408
PEDRO JUAN CUBILLO v COMMONWEALTH OF AUSTRALIA
No. NG 571 of 1991
FOSTER J
14 DECEMBER 1995
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA)
)
NEW SOUTH WALES DISTRICT REGISTRY) No. NG 571 of 1991
)
GENERAL DIVISION )
BETWEEN: PEDRO JUAN CUBILLO
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE MAKING ORDERS: FOSTER J
DATE: 14 DECEMBER 1995
PLACE: SYDNEY
MINUTE OF ORDERS
THE COURT ORDERS THAT:
1. The application be dismissed.
2. Costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
)
NEW SOUTH WALES DISTRICT REGISTRY) No. NG 571 of 1991
)
GENERAL DIVISION )
BETWEEN: PEDRO JUAN CUBILLO
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
CORAM: FOSTER J
DATE: 14 DECEMBER 1995
PLACE: SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR: In these proceedings, which were commenced in the High Court of Australia and transferred to this Court, the applicant, Pedro Juan Cubillo ("Cubillo"), sues the Commonwealth of Australia to recover damages for personal injury and consequential loss allegedly sustained by him as a result of his employment by the Commonwealth at Maralinga, South Australia, in the years 1957 and 1958.
Cubillo was a Private in the Australian Army. He was a sapper in the Royal Australian Engineers and performed various duties in relation to the construction and dismantling of test sites and equipment used in the series of atomic explosion tests conducted in 1957 ("the Antler series"). He claims that as a result of the negligence of the Commonwealth,
as his employer, he was wrongfully exposed to ionising radiation, which exposure caused him to suffer from renal cell carcinoma some 20 years later. The Commonwealth has denied liability in every respect. It has denied the acts and omissions relied upon as constituting negligence. It has also denied that the specific cancer suffered by Cubillo was caused or contributed to by any activity engaged in by the applicant during his employment at Maralinga.
The evidence given in the case has covered many fields of scientific expertise. Expert witnesses, some of international renown, have provided scientific opinion from the fields of health physics, radiobiology, epidemiology, and oncology. The evidence has been complex and detailed with some significant differences of opinion. The evidence of lay witnesses has suffered from the difficulty of recalling events occurring nearly 40 years ago. Before entering upon a consideration of the evidence, it is convenient, by way of background, to set out certain matters as to which there appears to be no contest and to make findings in certain contested areas.
THE MARALINGA TESTING AREA
The Antler series of tests was part of the overall program of testing of atomic weapons by the British Government on the Australian mainland and adjacent islands. The Australian Government had agreed to cooperate with the British Government in the conduct of these tests which involved the detonation of nuclear weapons and devices associated with them. Pursuant to that agreement personnel of the Australian armed forces took part, at various sites and various levels, in the preparation for and conduct of the tests and the cleaning up operations which followed. It appears that in 1954 the Maralinga area had been identified as an appropriate site for the conducting of a number of these tests.
The Maralinga proving ground consisted of a large area of desert country in South Australia. It had been selected to minimise any difficulties or danger which might be occasioned by the tests to centres of population. A very considerable infrastructure was established. A village, known as the Maralinga Village, was built in proximity to a railway stop on the trans-Australia railway, known as Watson. The village housed a large number of personnel involved in the tests and the logistics associated with them. There is no need to describe it. It was carefully planned to deal with the scientific necessities for the experiments and to provide for the comfort and convenience of personnel, scientific and non-scientific, military and non-military, involved in the project.
Some 8 miles to the north of Maralinga Village a forward base, known as "Roadside" was established. This was in the nature of a "tent city" which housed and provided amenities for personnel working on the construction of the test sites and in the assembly of the scientific apparatus required for the tests, including the assembling and positioning of the weapons themselves. The applicant and other personnel of the Royal Australian Engineers lived in this area during the test operations.
The desert area to the north of Roadside was referred to as "the forward area". It was in designated parts of this area that the nuclear tests were carried out at specially prepared sites. Access to this area was controlled by security officers stationed at Roadside. There was an established sealed road from Maralinga Village to Roadside and through Roadside to the various parts of the forward area where work was being done. Permission was required to proceed beyond Roadside. Vehicular access was controlled by a boom gate operated by a "peace officer", a member of the Australian Federal Police.
SECURITY MEASURES FOR PERSONNEL IN THE FORWARD AREA
In the forward area there were elaborate security arrangements. These were put in place not only to ensure the secrecy of the tests, but also as a means of ensuring compliance with regulations imposed for the safety of personnel. To this end, observation towers were erected in the forward area to enable security officers to observe all working parties in the forward area and to determine whether they were keeping outside areas where there could be dangerous levels of radioactivity. In association with these observation towers there were roving patrols in Land Rover vehicles which could proceed quickly to any location should a problem arise. There was radio contact between these patrol vehicles and the observation towers.
It was understood that after each nuclear explosion there would be areas of danger associated with radioactive fallout. It was also understood that it would be necessary for personnel to perform work of various kinds in areas affected by radioactivity in varying degrees. Accordingly, it was necessary to take steps to prevent harm to such personnel. Procedures were put in place which were implemented by scientific personnel known as the "health physics group". This group was responsible for establishing the boundaries of zones affected by radioactive fallout immediately after each nuclear explosion, marking those boundaries, and thereafter monitoring them by taking readings with appropriate scientific instruments.
It appears that the areas of radioactivity receded with the passing of time so that the boundaries would contract in the direction of the point of the explosion, which was known as "ground zero". It was the responsibility of the health physics group to ensure that all personnel, including their own, who entered into radioactive areas were appropriately clad in protective clothing. The extent of this clothing depended upon the classification of the area as either "yellow", "red" or "blue".
Yellow, red and blue areas were defined in the "Radiological Safety Regulations Maralinga" ("the Regulations") which were agreed upon by the United Kingdom and Australian authorities concerned and promulgated in 1956. They were issued by the "Director, Atomic Weapons Research Establishment of the United Kingdom". They made detailed provision for maximum permissible levels of radiation exposure for different types of radiation and for the use of protective procedures and equipment. The colour-designated areas referred to above were defined in the Regulations as follows:-
"3.2.1 Non-Active Areas
A NON-ACTIVE area is one in which the maximum radiation levels do not exceed 1/10 of those laid down in Section 2 above for ACTIVE areas and there is no detectable loose activity. No special radiological precautions will be necessary.
3.2.2 ACTIVE Areas
Those in which there may be some radiation risk and where precautions appropriate to the degree of risk must be taken. There will be three categories:
(a) BLUE area -Risk of penetrating radiation but not of inhalation, ingestion or injection. No special clothing.
(b) RED area -Risk of penetrating radiation and of slight inhalation, ingestion and injection. Protective clothing will be worn in accordance with Health Physics recommendations for the particular area.
(c) YELLOW area-Risk of serious inhalation, ingestion, injection or penetrating radiation hazard. Fully protective clothing must be worn.
3.2.3 The classification of an area will be laid down by Health Physics representatives who must be informed prior to any proposed change in the work which might affect the classification. Health Physics representatives will review the classification periodically.
3.2.4 Signs showing the classification and having a patch of the appropriate colour will be displayed at all entrances to any ACTIVE area.
All areas not classified in this way will be NON-ACTIVE areas and these will not have any special marking.
3.3 No person will be allowed to enter RED or BLUE areas without permission of the Scientist, or other Officer, in charge of the area concerned. No person will be allowed to enter a YELLOW area without permission from the Health Control Officer in charge.
When it is necessary to carry out any building, engineering or other maintenance work in any ACTIVE area, a 'Permit to Work Certificate' must first be raised through the Group Leader, Range Facilities, who will consult Health Physics representatives where necessary.
4. FILM BADGES
All personnel will wear a Personal Monitoring Film at all times.
5. PROTECTIVE CLOTHING
5.1.1 All radiological protective clothing will be WHITE, and will be distinguished by RED epaulettes or a RED triangle as appropriate.
5.1.2 The wearing of the approved protective clothing with film badges and dosimeters as specified in the appropriate parts of the Regulations is compulsory.
5.1.3 To assist the rigid enforcement of these rules under no circumstances will radiological protective clothing be issued for other purposes.
5.2 Degree of Protection
5.2.1 Workers in BLUE areas - No special protective clothing necessary.
5.2.2 Workers in RED areas - Approved laboratory coats or overalls, shoes or overshoes. The above is general for all RED areas but in certain special cases additional clothing will be specified by Health Physics representatives. When worn in ACTIVE areas laboratory coats and overalls must be kept fastened at all times.
5.2.3 Workers in YELLOW areas - Complete change of all clothing into the fully protective items provided."
The full protective clothing to be worn in yellow areas consisted of a garment which covered the entire body including the head. Additionally, boots and gloves were worn to protect the hands and lower limbs and a respirator was provided to prevent the inhalation of any airborne radioactive contaminants. It is not suggested that this clothing, if worn, was inadequate to protect against radioactive contaminants relevant to this case.
After a nuclear explosion, only a portion of the forward area would be contaminated. It was possible to go north from Roadside for some miles in the direction of the relevant ground zero before any danger of radioactive contamination could occur. Before anyone proceeding into those areas actually reached them it was necessary to be processed through a health physics "caravan". This was a highly designed installation which could be moved from place to place in the forward area. It is unnecessary to describe it in detail. It is not contested that it was adequately designed for the purpose of monitoring and providing for the radiation safety of personnel going through it and beyond into contaminated areas.
Personnel going into those areas would leave the vehicles which they had used to come to the caravan in an adjacent uncontaminated area. They would then pass through the stages of the caravan where they would be issued with protective clothing appropriate to the task they were to perform and also with the film badge and, if necessary, the dosimeter referred to in the Regulations cited above. The film badge was a device which recorded the level of radiation to which its wearer was exposed. This level was ascertained subsequently by the development of the film contained within it. This was done in a laboratory in the Maralinga Village. Records were kept of the radiation doses received by the individual wearer. The dosimeter device enabled an instantaneous reading of the level of radiation to which its wearer was exposed. Although some evidence has been given in the case as to occasional defects in the operation of these devices, I am satisfied that, in general, they worked satisfactorily. There is no suggestion in the case that, in themselves, they were other than appropriate measuring devices for the purposes for which they were designed.
Upon return from radioactive areas, the personnel re-entered the health physics caravan. Their clothing was monitored for any adhering contaminants using a measuring instrument called a "geiger counter". Their clothing was then removed and their bodies similarly monitored. If any contamination was present, the person affected was required to wash until cleared of any contamination. He then resumed his own clothing, returned to the vehicle which had been left in the carpark and proceeded back to Roadside. Again, it is not suggested in this case that the procedures in relation to monitoring and decontamination in the health physics caravans were inadequate.
There was evidence tendered on behalf of the applicant that there were defects in relation to the processing of film in the film badges with the result that readings were not obtained or were defective. Countervailing evidence has been given, which I accept. I am satisfied that the health physics procedures were appropriate for the task of monitoring the radiological safety of personnel and that they were generally applied in a diligent manner. There is a question, however, as to whether, prior to the Antler trials, the ordinary health physics procedures could not be implemented because of circumstances to which I shall refer later.
In addition to the sealed roads referred to above, there were also unsealed roads leading into portions of the forward area. These roads were not for general use but were restricted to vehicles used by the health physics group. These vehicles could, from time to time, be contaminated by radioactive materials. They were painted yellow for the purpose of distinguishing them from other vehicles used by personnel in the area. They were used only on these roads which were given the name "yellow" roads. It is not suggested that the segregation of these vehicles and these roads was, in any way, ineffective in preventing personnel such as Cubillo from coming into contact with contaminated vehicles or road surfaces.
The evidence establishes to my satisfaction that a system of warning signs was put in place. These signs were placed in appropriate positions on roads in the forward area which were used by personnel working in the area. After leaving Roadside and heading north, vehicles came to a sign at the side of the road shortly to the south of a site known as "Iwara". This sign was in red on a white background. It read "WARNING - CONTROLLED AREA - NO ENTRY - UNLESS AUTHORISED BY THE RANGE COMMANDER OR HIS REPRESENTATIVE". This sign was erected well to the south of any areas which could be contaminated by radioactive fallout from the tests.
As vehicles proceeded north from Iwara, other sealed roads became available to them leading towards the explosion sites. Each of these roads was controlled by further warning signs erected in reasonable proximity to, but well short of, contaminated areas. These signs were in black on a yellow background. They read "WARNING - YOU ARE APPROACHING A RADIOACTIVE AREA".
When the roads reached the actual boundary of an area designated as subject to radioactivity, further signs were erected. These signs were red on a yellow background. They read "DANGER - RADIOACTIVE AREA - NO ENTRY - UNLESS WEARING FULL PROTECTIVE CLOTHING AND TRAVELLING IN A YELLOW VEHICLE". This sign reflected the fact that entry into radioactive areas was to occur only in health physics vehicles driven and occupied by personnel who had passed through the health physics caravan and been issued with appropriate protective clothing.
Although it might be said to have been faintly disputed in the evidence, I am quite satisfied that these signs were in position at all relevant times. Their existence and position is clearly attested to by the evidence of an Australian scientist, Mr Moroney, whose evidence in relation to this and other matters I fully accept.
In addition to these warning signs, the existence of contaminated areas was depicted upon maps. The regulations provided for the creation and distribution of such maps which were to show the boundaries of active areas. These were to be updated from time to time. I am satisfied, on the evidence of Mr Flannery, who was the Range Security Officer at relevant times, that such maps were in fact brought into existence and that they contained information supplied by Mr Turner, who was the Australian scientist in charge of health physics between the Buffalo series (referred to later) and the Antler series.
I am satisfied that a basic map came into existence at the termination of the Buffalo series and that the radioactive area at that time was depicted by hatching on the map. Mr Flannery was of the view that copies of this map, produced on a Gestetner copying machine, were in fact distributed to all personnel working on the range. His evidence satisfies me that they were at least distributed to relevant officers in sufficient numbers to enable their further distribution to men under their command.
Cubillo and other witnesses, to whom I shall refer later, and who were sappers performing similar work to him, deny ever having received such a map. It is possible that they did not. In any event, having regard to their rank and their ages, it is not likely, in my view, that they would have paid much attention to it. As army privates they would not have expected to be permitted to exercise any independent discretion as to where they travelled in the forward area to do their work. I am satisfied, however, that, in general terms, provision was made for the supply of these maps to all personnel and that a copy would have been quite readily available to anyone who was interested. I am also satisfied that the map was displayed on a noticeboard in the Roadside area. The map became the basis of other maps which have been tendered in evidence and which I shall refer to later.
It may be noted that the map in question merely delineated one "yellow control area". It did not attempt to delineate red or blue areas. Indeed, so far as I can determine on the evidence, no blue area was ever the subject of delineation. After the conclusion of the Antler trials a red area was established for the first time. I shall refer to the yellow and red areas later in these reasons.
THE BUFFALO TEST SERIES AND THE INTER-TRIAL PERIOD
Prior to the Antler series, the Maralinga range had been used for a series of experimental nuclear explosions, known as the "Buffalo" series. In that series four nuclear weapons were detonated at separate sites within the range. The first bomb was detonated on 27 September 1956 at a site referred to as "One Tree". The second was detonated on 4 October at a site referred to as "Marcoo". The third explosion occurred on 11 October at a site referred to as "Kite". The fourth occurred on 22 October at a site referred to as "Breakaway". All these sites were, of course, within the forward area. The detonations and health physics operations in relation to them were under the control and supervision of the British authorities. After the detonation at Breakaway the range was handed over to the Australian authorities for supervision until the British resumed control on 6 August 1957. In the meantime work was done in relation to the preparation of sites for the Antler series of tests.
The period between October 1956 and August 1957 is described as the "inter-trial" period. During this period the health physics requirements of the range were provided by an Australian health physics group under the command of Mr Turner, to whom I have already referred. The Court was informed that Mr Turner was too frail and old to be a witness in these proceedings. However, during the inter-trial period Mr Turner provided monthly health physics reports which have been admitted into evidence. I shall refer to relevant parts of these reports later in these reasons.
THE ANTLER TEST SERIES
There were three explosions in this series. The first was detonated at a site referred to as "Tadje". This occurred on 14 September 1957, the weapon being exploded on a tower 30 metres high and having an explosive force of one kiloton. The second was detonated at a site referred to as "Biak". The explosion occurred on 25 September. It was of the same force and was also detonated on a tower 30 metres high. The final explosion in this series was at a site referred to as "Taranaki". It took place on 9 October. The weapon was attached to a balloon at an elevation of 300 metres. The explosive force was 25 kilotons. Other sites had been prepared for this series but they were not in fact used. These sites were called "Gona" and "Tufi".
I attach to these reasons, as Schedule 1, a map, obtained from the evidence, which shows the forward area from Roadside, the relevant roads and the positions of the ground zeros for the explosions in the Buffalo and Antler series, together with other features referred to in the evidence.
THE MINOR TRIALS SERIES
A further series of tests, known as the "minor trials series", were also conducted on the Maralinga range. These were conducted in areas away from the ground zero sites of the Buffalo and Antler series. They were performed at sites referred to as "Kittens", Tims", and "Naya". The evidence of Mr Flannery and others clearly indicated that these tests were "top secret", conducted by and open to only British scientific personnel. The preparatory work was different in kind from the work associated with the Buffalo and Antler trials. It was of a highly sophisticated scientific nature and could only be performed by highly trained scientific personnel.
Cubillo's case was initially presented on the basis that he worked in these areas in relation to these trials. However, that case was abandoned during the hearing. The decision to do so was clearly correct as Mr Cubillo's extremely vague recollections in this regard could not prevail against the weight of testimony to the effect that he could not possibly have been involved in any work relating to these tests. The abandonment of this part of his claim was also of significance in another respect. The minor trials tests provided the only opportunity for possible exposure to the radionuclide polonium 210. Such exposure had also formed part of Cubillo's case. It was also abandoned and, in my opinion, on the evidence, properly so.
SOURCES OF RADIATION FROM THE BUFFALO AND ANTLER TRIALS
Considerable evidence was given as to the sources, measurement, distribution and potential physical dangers of ionising radiation from these trials. It is unnecessary to consider this evidence in great detail as the claims made by Cubillo fall within a narrow area. It is clearly established that the tests, both as a result of the explosions themselves and the fallout from them, were productive of ionising radiation in the form of gamma rays, beta rays, and alpha rays. Gamma rays achieve a high degree of penetration through objects animate and inanimate in their path. It is the ionising radiation involved in these rays which is measured by the dosimeters, film badges and geiger counters already referred to. Beta rays have considerably less penetrating power. Cubillo's case does not involve any consideration of them or their effect. I shall not refer to them further. Alpha rays have little penetrative capacity, with the result that the external exposure of the human body to them is of no significant consequence. However, the evidence establishes that if a radionuclide having the capacity to emit alpha rays actually enters the human body by being inhaled or ingested, then it has the potential to cause harm, particularly as a carcinogenic agent.
It is Cubillo's case that he was wrongfully exposed to "alpha-emitters" during the course of his work at Maralinga, and that during the course of his work he either inhaled or ingested the alpha emitters with the result that he
subsequently developed a renal cell carcinoma. As I have already indicated, at the outset of his case, he identified one such alpha-emitter as being polonium 210. The alleged inhalation or ingestion of this radionuclide was abandoned along with his contention that he worked in the minor trials areas. As a result, his case came to depend upon the contention of inhalation or ingestion of the only other alpha-emitting radionuclide present at Maralinga, namely plutonium 239.
Considerable evidence was given as to the nature and properties of plutonium 239. Evidence was also given as to its creation through the nuclear explosions of the Buffalo and Antler series and its subsequent distribution in the test areas. I shall consider the detail of this evidence later. It will also be necessary to consider conflicting scientific testimony in the case as to the potential effect on the kidney of the introduction into the human body by inhalation or ingestion of plutonium 239.
In considering this testimony regard will have to be paid to scientific terms used in relation to various aspects of the measurement of ionising radiation. It is convenient to refer to them at this point. A substance which is radioactive is so because it emits radioactive ions into the surrounding atmosphere. It does so because it is subject to radioactive decay which is measured in disintegrations per second (dps). The original unit for measuring such radioactivity was the "curie" (Ci) which is based on the radioactivity of one gram of radium. This proved to be an inconveniently large unit of measurement and has been replaced by the "becquerel" (Bq) (1 Bq = 1 dps).
For scientific purposes it is also necessary to have units of measurement for radiation. This is achieved by measuring the number of ions produced in a unit volume of air. Such a measurement establishes the quantity of radiation passing through the air and, therefore, the quantity of radiation to which an interposed object is exposed. This measurement is known as the "exposure dose". It was originally measured in "roentgens". The relevant unit is now called the "coulomb/kg".
As might be expected, health physics, with its focus upon the question of damage to the human organism through ionising radiation, is concerned not only with measurement of the exposure of the human body to radiation but, more significantly, with absorption of the radiation into human tissue in various parts of the body. A measurement is therefore necessary of the amount of energy deposited by radiation passing through tissue. This measurement is known as the "absorbed dose". Absorbed dose was originally measured in "rads" being 0.01 joules of energy per kilogram (J/kg). The rad has now been replaced by the "gray" (Gy), 1 J/kg.
A further refinement of measurement of dose has been arrived at to take into account that some forms of radiation are more effective at producing biological damage than others. Alpha particles, whilst they present no significant risk when they impinge upon the body's outer surfaces, are hazardous when they are absorbed into the human body. Conversely, gamma rays readily penetrate the body's outer surfaces, but produce less risk of biological damage. Similarly, beta particles when absorbed into the body are less hazardous than alpha particles. These factors are taken into account by a measure of "dose equivalent". The original unit was the "rem" (rad equivalent man). This unit has been replaced by the "sievert" (Sv). The measurement of dose equivalent is of great significance in this case as there has been very considerable scientific study of the effects on various parts of the human body of exposure to radioactive substances. Such studies have involved considerations of dose received measured in rems or sieverts.
It may also be noted at this stage, that the human body is constantly exposed to ionising radiation from natural sources. Such radiation is referred to as "background radiation" and, as might be expected, the potential deleterious effects of radiation from nuclear sources can be considered in terms of whether the amount of radiation produced by those sources exceeds background radiation and, if so, to what extent.
It may be noted also that, prior to 1956, the question of the safe limitation of radiation doses to human beings had been the subject of considerable attention. The present organisation, at an international level, which assumes responsibility for the making of recommendations as to permissible exposure to ionising radiation is the International Commission on Radiological Protection (ICRP). This organisation was active in the field prior to the commencement of the nuclear testing at Maralinga and elsewhere. In 1955 the Commission had established a recommended limit for radiation dose received by workers in the field as being 0.3 rem per week. It is clear that the Radiological Safety Regulations 1956, referred to above, took account of and reflected the recommendations of the Commission. As indicated already, it is not suggested on behalf of the applicant, that these Regulations were otherwise than a proper response, in 1956, to the perceived hazards of radiation resulting from the proposed nuclear tests. In fact, the Regulations set out in some detail, in sets of scientific formulae, the permissible radiation exposure levels in active areas for external radiation exposure (beta and gamma) and for internal radiation exposure through alpha-emitters and beta/gamma emitters.
Where the hazard was seen to be related to the inhalation, ingestion or injection of radioactive isotopes the Regulations laid down a maximum permissible level of contamination of the ground surface. This took account of the obvious fact that, after fallout, contaminants would exist at ground level from which they could rise to a level where they might be ingested or inhaled as a result of disturbance by natural forces such as wind gusts or because of work being done in the area. Measuring devices known as "cascade impactors" were used to monitor the presence of radioactive contaminants in the air. These devices were in use in areas where personnel were working during the inter-trial period preparing sites for the Antler series. No criticism was levelled at these instruments other than a general observation made by Mr Robotham, a health physicist called on behalf of the applicant, that they "had limited value because of the relatively small volumes sampled compared with the size of the area involved".
THE APPLICANT, HIS SERVICE AT MARALINGA AND SUBSEQUENT HISTORY
The plaintiff was born on 23 October 1929. He left school in 1945 having failed to obtain the intermediate certificate. Thereafter he worked as a process worker, a tramways conductor and a fitter of industrial sprinkling systems. On 28 February 1956 he joined the Australian Army, performed his basic training at Kapooka and then volunteered to go to the Maralinga range. He was aware that it was a testing site for atomic bombs but, he said, he received no specific training by film or otherwise in relation to atomic explosions. He arrived at Maralinga on 8 March 1957 and performed duties as a sapper in the Engineers until finally leaving the range on 6 November 1958. Accordingly, he arrived
during the inter-trial period and left in the month following the completion of the Antler series. His work was of a labouring kind in the preparation of sites and in their subsequent dismantling. I shall refer to this in more detail later.
After leaving Maralinga and engaging in some army exercises in Queensland he served in Malaya from September 1959 to November 1961. In 1961 he received treatment for an abscess on the liver. At that time he was a very heavy drinker. He also smoked tobacco to excess. I am satisfied that he had and continued to have a drinking problem and that he continued to be a heavy smoker.
He left the army in 1962 and thereafter had a variety of jobs, one of which was the fitting of sprinklers, an occupation he had followed previously. He continued this occupation until retirement on 2 June 1994.
Early in 1982 Cubillo was diagnosed as suffering from a grawitz tumour of the right kidney, also referred to in the evidence as a renal cell carcinoma. This was removed by operation at Westmead Hospital, Sydney, in March 1982, the operating surgeon being Dr Drummond. After recovering from the operation, Cubillo continued to drink heavily to the extent that his domestic life was severely affected. His wife left him in 1983. He had also been a very heavy smoker up to the time of the operation.
As advised, Cubillo had regular medical checkups in relation to his kidney cancer and its possible recurrence or spread. One of these resulted in his being admitted to Westmead Hospital in January 1990 for suspected lung cancer. A biopsy was performed and thereafter a tumour was removed from his right lung which was a metastasis from the original grawitz tumour. There was no evidence of any other tumour and it was hoped that he would have no more problems. In 1991 he developed what he has described as a lump under the right collar bone. It appears that it was provisionally diagnosed as a recurrence of his cancer problem. Arrangements were made for its removal but, in fact, it dispersed of its own accord. He has had no recurrence, with the result that any continuing cancerous condition appears to be in remission. His retirement in 1994 was not related to any health problem claimed to be associated with his service at Maralinga.
It is clear from the medical evidence, and it is accepted by Cubillo, that he has had a long history of alcoholism and that his memory and concentration have been severely affected by it. This has manifested itself in the case by his experiencing serious difficulty in recalling many aspects of his work at Maralinga. I consider that he was basically an honest witness, not seeking to mislead the Court, but that these problems have considerably affected the weight of his testimony.
THE APPLICANT'S CASE
As already indicated, it is claimed that Cubillo's renal cell carcinoma resulted from his being wrongfully exposed by the Commonwealth, as his employer, to ionising radiation at Maralinga. At the end of the case the claimed exposure was to the isotope plutonium 239, the claim in respect of polonium 210 having been abandoned. It is asserted that the renal cell carcinoma was occasioned by the introduction of plutonium 239 into his body as a result of inhalation or, more probably, ingestion. The inhalation was said to have resulted from the radionuclide becoming suspended in the air he was breathing as a result of his working in dusty or windy conditions in contaminated areas. Ingestion was said to have occurred as a result of his wiping contaminated dust or sand across his face and mouth whilst removing perspiration when working in similar conditions in similar areas. It was also claimed to have occurred through eating radiation contaminated food in such areas.
The work being performed fell into three groups. First, it was alleged that exposure occurred whilst he was working as a sapper in areas described as "laneways". These areas were in the vicinity of the ground zero sites for the Antler series. They were being constructed for the siting of instruments and associated cabling to be used in the recording of data to be obtained from the test firings. The work consisted of the digging of trenches which, in general, radiated out from the ground zeros. This was physically hard and dirty work, carrying risk of inhalation or ingestion. In conjunction with this work, fencing was erected consisting of the forcible placing of "star-pickets" into previously drilled holes.
Secondly, exposure was alleged in relation to work done by Cubillo in relation to either the dismantling of an observation tower or the retrieval of the dismantled parts from a contaminated area.
Thirdly, it was claimed that inhalation or ingestion occurred whilst Cubillo was engaged in a sweeping operation conducted at the Taranaki site after it had been contaminated by fallout from the Biak explosion. It was asserted that ingestion of plutonium 239 would have occurred when, in the hot and dusty conditions that prevailed, Cubillo removed his respirator in order to wipe perspiration from his brow and face, the wiping operation being performed by his hand when clothed in a glove, the surface of which had become contaminated by radioactive material. It is also alleged that inhalation of radionuclides would have occurred in those circumstances.
Fourthly, reliance was placed upon the assertion that Cubillo, along with other sappers, had cooked and eaten meals whilst working in contaminated areas. The food consisted of meat cooked on shovels over open fires lit by the men. The shovels were used in contaminated areas and were likely to have been contaminated by sand containing plutonium 239.
These claimed exposures were alleged to be in breach of the Commonwealth's duty of care as an employer. The ultimate statement of the acts and omissions relied upon in this regard were as follows:-
"i. Failure to ensure that all personnel on the range were aware of areas where there could be a risk to them from alpha emitters when eating.
ii. Failure to warn the Applicant of `red areas' and of the risk to him from alpha-emitters when eating.
iii. Causing and/or permitting the Applicant to eat in areas where there was a risk to him of damage from plutonium.
iv. The vicarious liability of the Respondent, Hutton, in failing to supervise the activities of personnel under his direction and control to see that work was not done in areas where there was a risk from ingestion or inhalation.
v. Failure to supervise the Applicant and to ensure that all personnel involved in the Taranaki sweep-up wore respirators during such operation.
vi. Failure to warn personnel involved in the Taranaki sweep-up, including the Applicant, of the danger of removing respirators in the course of such operation.
vii. Failure to ensure that proper control procedures (wearing respirators; and advice as to danger areas) were maintained when personnel including the Applicant were carrying out activities which involved a risk by way of inhalation or ingestion of radio-active materials, specifically plutonium.
viii. Causing and/or permitting the Applicant to carry out work activities when there was risk to him of damage from inhalation or ingestion of alpha emitters, specifically plutonium, and proper control procedures were not maintained."
The reference to "the Respondent, Hutton" (he was not in fact a respondent to the application), was a reference to the Lance Corporal, referred to for the most part in the evidence as "Lance Corporal Woodleigh". He was in charge of one of the sapper work parties engaged in work in the laneways. He gave evidence to which I shall refer later.
Apart from relying upon these particularised breaches of the employer's general duty of care, counsel for the applicant made submissions based upon the principles expounded in cases such as Birkholz v R J Gilbertson Pty Limited (1985) 38 SASR 121 and McGhee v The National Coal Board [1973] 1 WLR 1. I shall refer to these submissions later.
It is plain that, however the applicant's case is put, he must establish on the balance of probabilities, that he was, during his work at Maralinga, exposed to the risk of inhaling or ingesting plutonium 239 in an amount sufficient to constitute a danger to his health. This in turn necessarily leads to the inquiry whether the applicant has established to the same standard that he was required to work in areas where that risk existed. As this is a fundamental question in the case, it is convenient to deal with it at the outset.
DID THE APPLICANT WORK IN AREAS WHERE HE WAS EXPOSED TO THE RISK OF INHALING OR INGESTING PLUTONIUM 239?
It will be remembered that the Regulations spoke of active areas being designated as "yellow" where there was a serious risk of inhalation or ingestion requiring full protective clothing, and "red" where there was slight risk of inhalation or ingestion requiring protective clothing to be worn only on the recommendation of health physics personnel. The question must, therefore, be asked whether the evidence establishes that Cubillo was required to work in areas that could properly have been designated as either yellow or red.
The sweeping-up operations at the Taranaki site merit separate consideration. I shall refer to them later.
(a) Work in the Laneways and on Towers
The applicant's evidence relating to work in other allegedly active areas consists of certain statements in the health physics reports of the inter-trial period and associated correspondence, the testimony of Cubillo and lay witnesses called on his behalf, being fellow sappers, and the evidence of Mr Robotham, a health physicist. Also, some evidence was given by Dr Kefford to which I shall refer later. Mr Davy, a health physicist gave evidence on behalf of the respondent. Further evidence was given for the respondent by Mr Flannery, the security officer at the range, and Major McDougall, who had been in charge of health physics during the Antler series. Some film badge and dosimeter records were relied upon. Also the evidence of Mr Moroney, a physicist, given in other proceedings, together with maps prepared by him, was admitted in these proceedings, Mr Moroney having recently died.
It is impossible to establish from the evidence in the case exactly where Cubillo performed his work in the forward area. The records indicate that he was one of the sappers involved in the general engineering work required in relation to the sites for the explosions. However, there are no records in evidence indicating what the daily duties of the sappers were and the areas in which those duties were performed. Film badge and dosimeter records provide some assistance and are referred to in the health physics testimony.
There was a suggestion in the evidence that labouring and fencing work in the laneways was conducted not only in the inter-trial period but also between the explosions in the Antler series, however, I am satisfied that this suggestion is not made out on the evidence. Apart from the sweeping-up operation at Taranaki, I find it impossible to determine on the evidence what work, if any, was done by Cubillo in the forward area let alone any active areas after the commencement of the Antler tests. There is, however, a serious question as to whether he was required to work in yellow or red areas in the inter-trial period after his
arrival at Maralinga and before the first explosion at the Tadje site.
On behalf of the applicant, heavy reliance is placed upon certain statements in the health physics reports issued by Mr Turner in this period. It is, therefore, necessary to set out relevant parts of those reports.
In his report of December 1956/January 1957 Mr Turner deals with health control in the forward area after the completion of the Buffalo trials. He speaks of the establishment of a "Yellow Boundary" and the issuing of a "Health Control Map" in the following terms:-
"Yellow Boundary :-
A continuous length of yellow tape has been erected from a point due west of Apu, south around Breakaway to Pom-Pom and across towards Kite. The tape is staked to empty cable drums at intervals of about 25 yards. It is intended in the near future to extend the yellow tape for 2.5 miles along the Kite-Nawa road.
Map:-
Two thousand 8in x 13in copies of a Health Control Map have been printed and are now issued to all personnel proceeding north of Roadside. This map shows the principal roads and work sites in relation to the yellow area."
I am satisfied that this "Map" is the basic map to which I referred earlier, which should have found its way into the hands of all personnel entering the forward area and have been placed upon the noticeboard at Roadside. It is basically the same map which has been reproduced as Schedule 1 to these reasons. It is the same as map 2 of Exhibit 4.
It is clear that, at least in January 1957, Mr Turner had established a demarcation line indicated by yellow tape and was intending to extend it for a considerable distance. The area to the north of this tape was designated the "yellow control area". The report refers to a fairly elaborate procedure for the issuing of permits to enter this area and for the supervision of the area from a tower manned by peace officers whose duty was to watch vehicles and personnel proceeding towards that area through the forward area. They were provided, by telephone, with relevant information enabling them to check on the legitimacy of people or vehicles moving in the area. The report also refers to the system of contact with the roving patrol vehicle, to which I have already referred, and the procedures for dealing with unauthorised intruders. In this regard, I am satisfied by the evidence of Mr Flannery that, although these procedures were in place, it was never necessary to use them.
The report also refers to the taking of measurements of radioactive decay of fallout from the Buffalo tests. It was also noted that air sampling had produced an indication "of a slight amount of activity at Gona" in the dust cloud arising from the work of heavy machinery. However, cascade impactor readings indicated that there was "insufficient activity to represent a health hazard".
In the February 1957 report Mr Turner indicated that the yellow tape had now been extended 2.5 miles along the Kite-Nawa road. It also spoke of the erection at this stage of the warning signs to which I have already referred. The report also speaks of radiation surveys being carried out. No submissions have been made to me based upon this material. It is indicative, however, of the level of supervision being maintained in relation to the presence and extent of radioactivity following the Buffalo series. It may be noted that air sampling by means of cascade impactors had been conducted in the crater areas at the ground zeros of Breakaway and Marcoo. Calculations were made on the basis of breathing air for 56 hours per week in these areas. It was found that there was no inhalation hazard for normal winds. The further comment was made that:
"A hazard may exist for strong winds, but under such circumstances, the dust cloud that is created from non-active areas usually deters people from approaching the forward area. For the Breakaway region, it would appear that by the end of 1956, most of the loose activity had been blown away".
In the March report the following statements appear which are relied upon on behalf of the applicant:
"Active Area
Radiological Safety Regulations, Maralinga, (RSRM 56 (5)) section 3.2.1. states that a non-active area has no detectible loose activity. The maximum permissible level of loose b, g contaminations is 6 x 10-8mc/cm2 (section 2.4.3.). Unless concentrated this level cannot be detected by a geiger counter as the counting rate is an extremely small fraction of the natural background.
On D4 and D4 + 1 day, the edge of the fall-out was determined as being 0.04 miles south of Pom Pom
0.19 " " " J7
0.32 " " " J8
0.5 " " " J9
0.7 " " " Nawa
Accordingly, Health Physics barriers were erected on D4 + 2 day across the main roads to One Tree and Marcoo at the above points. On D4 + 8 day, they were found to have been moved to Kite and J7 respectively. The barriers were replaced in their earlier positions. On D4 + 17 day, U.K. representatives confirmed the moving of the yellow boundary to the J7, Kite, Nawa line.
This meant that an active area existed below the yellow boundary. Section 3.2.2. of RSRM would require that this area be declared a Red area. However, with the hundreds of men required in this area under difficult labour conditions, it would be quite beyond the capabilities of the present Health Control facilities to cope with such an area.
The future sites having already been selected within this potential Red area, there was little that could be done about the matter. The control methods chosen were:-
(a) limiting movement in the forward area to the south of Mina if at all practicable.
(b) when a large body of men had to work in the area, cascade impactors were set up and the samples counted every second day, as a check on any inhalation hazard.
(c) meals were eaten at Mina.
(d) in the case of Tadje, the topsoil was removed.
Gona
A survey on 3 Jan 57, of the Gona area showed that the gamma intensity varied from 8 c.p.s. on the southern edge to 20 c.p.s. on the north side. The beta component was about equal to these values. As the activity was confined to glass beads of about 1mm diameter, and it had been shown that these beads were insoluble in either water or HCL, then it was decided to forego the removal of top soil.
By 31st March, Gona was more than half completed and only a few workmen remained on the site.
Tadje
A survey on 22nd Feb. 57 of the Tadje area showed that gamma radiation varied from 23 to 40 c.p.s. and beta plus gamma varied from 35 to 150 c.p.s. Despite the insoluble nature of the fall out beads, it was decided that this activity warranted the removal of the top soil over a radius of 55 yards and also from a 60 foot wide access strip.
The area was cleared on March 8th, after which there was no evidence of any remaining surface contamination. A cascade impactor was maintained at Tadje for the rest of the month. By March 31st, the preliminary work was completed and the foundations were laid.
Biak
Work at Biak will commence early in April. A survey of the Biak area on March 20th showed that there is no beta activity on the ground and the background is about 2 c.p.s. of gamma."
The reference to "D4" is intended to indicate the nuclear test at the Breakaway site. The "glass beads", although being part of the fallout from the previous tests, are not of direct significance in this case. They contained no plutonium 239 and were not a relevant inhalation or ingestion hazard.
It clearly appears, however, that as at March 1957, Mr Turner was of the view that the moving of the yellow boundary to the J7 Kite-Nawa line had exposed an active area to its south, which could properly have been described as a red area. It was not possible to employ the normal health control facilities for the reasons that he sets out. Presumably this would have involved the issue of some form of protective clothing regarded as suitable by health physics personnel. It may be noted that there is nothing in the case indicating what that would have been. As inhalation and ingestion risk in a red area was said to be slight, it does not seem likely that workers in the area would have been issued with respirators as a matter of course. It is also to be noted that steps were taken, as set out, to check on
inhalation hazards. There is nothing in the report to indicate that any such hazards were detected. There is also a question whether, in later reports commented upon by Mr Davy, Mr Turner in fact changed his earlier view as to this area. I shall consider this when discussing Mr Davy's report.
The applicant relies upon this part of Mr Turner's March report as an indication that Cubillo, having arrived on 8 March, was required to work in a red area in circumstances which constituted a risk of inhalation or ingestion of alpha-emitting radionuclides, specifically, in light of the elimination of polonium 210 from the case, the isotope plutonium 239.
In the June 1957 report Mr Turner speaks of the "rocket lanes" having been completed and the dismantling of Apu and Katu towers being about to commence. From other evidence it appears that the rocket lanes would have been constructed in the yellow area. They contained cables designed to conduct electric current to ignite rockets which were positioned so that, after firing, they would leave atmospheric trails which would provide a backdrop to the nuclear explosions. It appears that their firing points were north of the Antler ground zeros and consequently in the yellow control area. It is apparent from this report that personnel working in the rocket lane areas would have done so under health physics supervision with health physics protective clothing. It may be noted that the official records kept of the readings of Cubillo's film badges indicate that he was working in the yellow area for some days in May, June and August. Gamma doses of 0.13 and 0.02 rems are recorded for these periods.
Reference is also made in this report to the lookout tower having been moved to Tadje with instructions being given to the relevant peace officer "to keep a close watch on movement in the vicinity of the yellow boundary which can be seen clearly from beyond J9 to beyond Biak". The yellow boundary had itself been adjusted, presumably to take account of the contraction of radioactivity.
The July report indicated that the dismantling of the Apu and Katu towers was continuing after which they were to be decontaminated. There was also reference to the fact that "owing to persistent westerly winds the yellow boundary had to be withdrawn 100 yards from Breakaway towards Tanka". The level of activity at the new boundary was "between 100 and 200 counts per second on a 1320 monitor" (a form of geiger counter). It may be noted that this report contains a detailed analysis of the fallout from the Breakaway explosion.
It may also be noted that the report of the Range Commander, Colonel Durance, to the Chairman of the Atomic Weapons Test Board of Management on the completion of Operation Antler stated (inter alia) that "all work required to be ready for the beginning of the operation was completed
and during the operation the Field Engineer Troop performed 44,000 man hours in assisting the Scientific Group". This group included the contingent of Australian Engineers. It lends weight to the finding that I have already made that the construction work in which Cubillo was engaged was completed before the commencement of the test series and that the brushing operation of the Taranaki site was, so far as this case is concerned, the only significant event thereafter.
In addition to the material from the March report set out above, the applicant also relies upon the contents of a letter from J.F. Richardson, Acting Director of the Commonwealth X-Ray and Radium Laboratory, to the Secretary of the Department of Supply. The letter is dated 1 May 1957. The letter reads as follows:-
"1. I refer to your memorandum 6021/1/141 of 15/4/57. Attached to this memorandum was a copy of one to you from the Range Commander, Maralinga.
2. In this memorandum, the Range Commander drew attention to certain apparent inconsistencies between the Radiological Safety Regulations (RSRM/56(5)) and a supplementary set of instructions issued by the United Kingdom Health Physics Group during Operation Buffalo. Further, the Range Commander asked:-
(a)that he be authorised to proceed with work on sites in the forward area; and
(b)that he be assured that no one was being exposed to radiation hazard at these sites.
3. Comments on the interpretation of the regulations referred to are made in the attached memorandum.
4. After discussion between Mr. Cook and Mr. W. O'Connor of your Department and Mr. Richardson of this laboratory it was decided that Mr. Richardson
should go to Maralinga to consult with the Health Physics Representative (Mr. Turner) on the points raised by the Range Commander and on any other matters relevant to Health Physics and Health Control on the Range.
5. Mr. Richardson was at Maralinga from the 24th to 26th April. During this period he had fruitful discussions with the Range Commander and Mr. Turner. Mr. Turner arranged a tour of the forward area and he and Mr. Richardson inspected the various bomb sites together.
6. As a result of this visit it is considered that:-
(a)Apart from manpower, the arrangements for Health Control both in the forward area and at base are entirely satisfactory. The various aspects of Health Control have been described in the routine reports issued by the Health Physics Representative. Those whose duties take them to the forward area at present cannot proceed beyond Iwara unless in possession of an entry permit issued by the Health Physics Representative. This permit is only issued after appropriate enquiries and instruction. It is considered that in view of the rigorous and adequate control exercised over people entering the forward area, the legitimate possession of such a permit should be sufficient authority for the people concerned to proceed to their work in this area. Once such a permit is issued the Range Commander could be absolved from responsibility for the health of the individual (insofar as this may be affected by radiation alone) if this course was considered desirable.
(b)The degree of hazard which exists at any place can be determined only by Health Physics officers using appropriate instruments. It is considered highly undesirable that work be done in areas which cannot be classified as non-active as defined in RSRM/56(5), section 3.2.1. Unfortunately, owing to the early changes made in the position of barriers defining Yellow Areas (of which changes Mr. Richardson was not aware before his visit to Maralinga) work has in fact been proceeding in active areas, for example, Tadje and Gona. The movements of the Yellow boundary and the action taken for Health Control at Tadje and Gona have been described by Mr. Turner in his report for March 1957. Mr. Turner has classed these areas as Red Areas, but as his assessment of conditions
Applying the risk estimates to the dose to the kidney of 0.002 rem calculated by Mr Davy to have been received by Mr Cubillo, Professor Schull estimated that Cubillo's risk of developing kidney cancer was increased by approximately 5.8 x 10-6. He expressed the opinion that this was a very small increase in risk. Further, he stated that Cubillo's true risk would be even smaller because this risk estimate calculation covers the risk of developing any form of kidney cancer, not just specifically a renal cell carcinoma. Further it does not take into account that the risk of developing kidney cancer has been found to be higher in females than males. Professor Schull concluded that it was most unlikely that any ionising radiation Cubillo may have been exposed to at Maralinga caused or contributed to his renal cell carcinoma.
In cross-examination, counsel for the applicant put to Professor Schull that if Cubillo was unfortunate enough to ingest radioactive material in the process of wiping a contaminated glove across his face and mouth, he might receive a high enough dose of ionising radiation to cause or contribute to a cancer of the kidney. Professor Schull rejected this proposition on the basis that if a dose of radiation was ingested which was large enough to cause kidney cancer one would expect to see other effects as well, primarily skin effects.
Professor Schull's evidence is clearly supportive of the proposition that Cubillo could not have suffered his renal cell carcinoma as a result of exposure to radiation at Maralinga.
I have dealt with the evidence of these two eminent witnesses at some length because it provides two cogent examples of the weight of epidemiological material confronting the applicant's case. I mean no disrespect to the other eminent witnesses who were called by the Commonwealth in this area when I do not seek to refer in detail to their contributions to the case.
I have had the advantage of a comprehensive report and detailed testimony from Dr Colin Muirhead, supportive of the conclusions to be drawn from the British studies in which he played a significant role. Also from Dr Shirley Fry who supplied a comprehensive summary of significant studies in the field which led her to conclude that there was no epidemiological support for a causal connection between Cubillo's cancer and exposure to radiation at Maralinga.
Emeritus Professor Warren Keith Sinclair provided a report and gave oral evidence. He also had most impressive qualifications which covered the fields of mathematics, physics, physiology, biochemistry and biophysics. His main work was in the field of radiation biology but, quite clearly, he had considerable expertise in epidemiology. Before his retirement in 1991 he had been President of the National Council on Radiation Protection (NCRP) of the United States, an independent professional organisation of great repute which evaluates radiation risks and makes reports on them to government.
At the international level he is a member of the International Commission on Radiological Protection (ICRP) and Chairman of its Committee on Biological Effects. This body provides recommendations on radiation safety standards and procedures at an international level. He is also a delegate for the United States to the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) and has also served as a consultant to that body. He has also served and serves upon other bodies of international importance in the radiation field.
Professor Sinclair provided information on a number of the topics which have been considered in the case and was in general agreement with the conclusions of Professor Doll and the other witnesses called by the respondent. His conclusions were opposed to those of Dr Kefford.
He explained at some length a methodology, the validity of which was not questioned, and which was named the "Probability of Causation Approach". This applied sophisticated mathematical and statistical analysis to data to arrive at a degree of likelihood that a particular event was caused by a particular agent. He applied this approach to the question of the causation of Cubillo's cancer through inhalation or ingestion of plutonium 239 at Maralinga. I need say no more than that the result of his calculations was that the likelihood of such causation could be described as negligible.
The evidence given by these experts quite clearly, in my view, supports the conclusion I had already reached on the evidence from the health physics and medical fields. I am satisfied, on the whole of the evidence, that Cubillo's renal cell carcinoma was not caused by exposure to ionising
radiation at Maralinga acting either directly or synergistically.
Before parting with this case, however, I should make some observations and findings on the question of negligence.
NEGLIGENCE
Earlier in these reasons I referred to the acts and omissions relied upon by the applicant. The first four related to allowing the applicant to be in areas where he was at risk from inhalation or ingestion of alpha emitters, specifically plutonium 239. In fact, the first three related to his being allowed to eat in such areas without any appropriate warning. On the findings I have made, these grounds need not be considered further. I am satisfied that he did not eat in such areas.
Similarly, neither is ground (iv) made out. I am not satisfied that Cubillo was subject to the supervision, direction and control of Lance Corporal Hutton in any areas where there was risk from inhalation or ingestion of plutonium 239.
Grounds (v), (vi) and (vii) relate to supervision and warning of the applicant in relation to the wearing of respirators. Grounds (v) and (vi) relate to the Taranaki sweep-up. Ground (vii) is in general terms. In view of the findings I have made, these grounds must be restricted to the Taranaki sweep-up. As I have found, that operation was conducted in a professional manner without any breach of standards of care appropriate at the time. The applicant was provided with a respirator. It would have been quite clear, even in the absence of very specific warning, that it should not be removed whilst work was being conducted in dusty conditions in a "yellow" controlled area. As I have found, I am satisfied that health physics personnel were in the area whilst the work was being conducted. Clearly, it would not have been possible for each engineer to be personally observed and supervised. It was reasonable, in my view, for the respondent to rely upon the engineers not removing their respirators in dangerous conditions. In any event, the relevant danger was from the alpha emitter plutonium 239. The evidence of Mr Davy, which I have accepted, effectively removes this as a risk for consideration.
Ground (viii) adds nothing to what has gone before and may be disregarded.
Consequently, irrespective of the finding on causation, I am not satisfied that any of the respondent's acts and omissions specifically relied upon have been established.
Finally, as indicated earlier, the applicant sought to make out a case by reliance upon the principal underlying the decisions in cases such as Birkholz; McGhee; Bonnington Castings v Wardlaw [1956] AC 613; The State of Western Australia v Watson (1988) Aust Tort Rep 80-266; and Bennett v Minister of Community Welfare (1992) 176 CLR 408.
Counsel for the applicant placed particular reliance on the following passages:-
"Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and, by omitting those precautions he substantially increases the risk of the plaintiff contracting that disease, the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precautions materially contributed to the contracting of the disease." (per King CJ in Birkholz v R J Gilbertson Pty Limited 38 SASR 121 at 130);
"What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material." (per Lord Reid in Bonnington Castings v Wardlaw [1956] AC 613 at 621).
It was counsel's submission that the Commonwealth had breached its legal duty to protect Cubillo from the risk of injury from radiation. This breach of duty resulted in a substantial increase in the risk of Cubillo's developing renal cell carcinoma. In the absence of evidence as to the exact cause of that carcinoma the substantial increasing of the risk was a sufficient basis for an inference that the Commonwealth's breach of duty had materially contributed to
it, unless the Commonwealth could show that that contribution fell within the exception de minimis non curat lex.
It must be observed at the outset of consideration of this submission, that the principal relied upon does not obviate the necessity of an applicant establishing a breach of duty. It is only of assistance in establishing causation once that breach has been proved. As I have already held that no breach has been established, the occasion for the application of these cases does not arise. However, lest it be considered that they can have some application in subverting the finding on causation which I have already made, I deem it desirable to give this submission some further consideration.
Birkholz, McGhee, Bonnington and Watson were all cases in which the plaintiff's disease or condition could only have been caused by one agent, namely contact with infected cattle, brick dust, silica dust and asbestos dust respectively. It was established in each case that the plaintiff had come into contact with these dangerous agents in the course of his employment, it being admitted or proved that the employer had failed in its duty to take adequate precautions to protect the plaintiff from injury of the kind the plaintiff subsequently suffered.
In Birkholz, the plaintiff was suffering from brucellosis and it was accepted on the evidence that the plaintiff's disease was caused by contact with infected cattle which could have occurred in one of a number of possible ways, the precise way being impossible to identify. Only some of the possible ways in which contact may have occurred could have been prevented by reasonable precautions on the part of the employer. The question in issue was, therefore, whether in the absence of proof as to the precise way in which the plaintiff came into contact with the infected cattle, the employer's breach of duty could be held to have caused or materially contributed to the plaintiff's brucellosis.
In Bonnington, it was accepted on the evidence that the plaintiff's disease was caused by accumulated contact with silica dust in the course of employment. It was established that the plaintiff had come into contact with the silica dust both as a result of the employer's breach of duty and in circumstances in the course of employment which involved no breach of duty. The question in issue was whether exposure to the causal agent occasioned by the employer's breach of duty could be said to have caused or materially contributed to the plaintiff's disease. Although the facts of McGhee were slightly different to Bonnington, like Bonnington it also concerned causation of a disease by cumulative causes and the question in issue was substantially the same. The same may be said of Watson.
Each of these cases can be distinguished from the present case. Even if it had been proved on the balance of probabilities, first, that the Commonwealth had breached its duty of care to protect Cubillo from the risk of injury from radiation, and second, that Cubillo had been exposed to radiation as a result of the breach, this would not be a case in which the cause of the disease could be attributed to only one agent, namely, exposure to radiation. As a result, the facts of the case do not give rise to either of the issues which concerned Birkholz, McGhee, Bonnington or Watson and do not allow the question of causation to be decided as in those cases. Furthermore, any exposure to radiation must, for the purposes of this case, be confined to radiation from the alpha emitter plutonium 239. It could not be said, on any basis, that that exposure substantially increased the relevant risk.
It should also be noted that the House of Lords in Wilsher v Essex Area Health Authority [1988] 2 WLR 557 considered whether McGhee established any new approach to the law of causation. It was held that it did not. Lord Bridge of Harwich (at 569) stated:-
"...McGhee v National Coal Board laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defendant's negligence had materially contributed to the pursuer's injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one." (See also Bennett at 416).
In the result, I am of the opinion that the applicant's case fails. I accordingly dismiss the application. The applicant was legally aided. In these circumstances I have been asked to reserve the question of costs. I accordingly do so.
I therefore order that:-
1. The application be dismissed;
2. Costs be reserved.
I certify that this and the preceding one hundred and sixty two (162) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.
Associate:
Date: 14 DECEMBER 1995
A P P E A R A N C E S
COUNSEL FOR THE APPLICANT: MR A. PUCKERIDGE Q.C.
with MR R. WILKINS
INSTRUCTED BY: MAURICE MAY & CO
COUNSEL FOR THE RESPONDENT: MR J. McCARTHY Q.C.
with MR P. JONES
INSTRUCTED BY: AUSTRALIAN GOVERNMENT SOLICITOR
DATES OF HEARING: 27, 28 FEBRUARY; 1, 2, 3, 6, 7, 8, 9, 13, 14, 15, 16, 17, 21, 22, 23, 24, 27, 28, 29, 30, 31 MARCH; 3, 4, 5, 10, 11, 13, 19, 20, 24, 26, 27, 28 APRIL; 1 MAY 1995
DATE OF JUDGMENT: 14 DECEMBER 1995
TABLE OF CONTENTS
THE MARALINGA TESTING AREA........ ........ ........ ........ 2
SECURITY MEASURES FOR PERSONNEL IN THE FORWARD AREA....... 4
THE BUFFALO TEST SERIES AND THE INTER-TRIAL PERIOD....... 14
THE ANTLER TEST SERIES........ ........ ........ ........ ... 15
THE MINOR TRIALS SERIES........ ........ ........ ........ .. 16
SOURCES OF RADIATION FROM THE BUFFALO AND ANTLER TRIALS.. 17
THE APPLICANT, HIS SERVICE AT MARALINGA AND SUBSEQUENT
HISTORY........ ........ ........ ........ ........ ........ .. 22
THE APPLICANT'S CASE........ ........ ........ ........ ..... 25
DID THE APPLICANT WORK IN AREAS WHERE HE WAS EXPOSED
TO THE RISK OF INHALING OR INGESTING PLUTONIUM 239?...... 29
(a) Work in the Laneways and on Towers........ ..... 29
(b) Taranaki Sweep-up........ ........ ........ ...... 53
SCIENTIFIC EVIDENCE ON EXPOSURE TO PLUTONIUM 239........ . 68
EFFECT UPON KIDNEY OF INHALATION/INGESTION OF
PLUTONIUM 239 - HEALTH PHYSICS EVALUATION........ ........ 92
THE MEDICAL EVIDENCE........ ........ ........ ........ ..... 97
EFFECT OF THE MEDICAL EVIDENCE........ ........ ........ .. 125
THE EPIDEMIOLOGICAL EVIDENCE........ ........ ........ .... 126
NEGLIGENCE........ ........ ........ ........ ........ ...... 157
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