COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J
HRNG
SYDNEY, 27-28 February; 1-3, 6-9, 13-17, 21-24, 27-31 March; 3-5, 10-11, 13,
19-20, 24, 26-28 April and 1 May 1995 #DATE 14:12:1995
#ADD 18:1:1996
Counsel for the Applicant: Mr A. Puckeridge QC
with Mr R. Wilkins
Instructed By: Maurice May and Co
Counsel for the Respondent: Mr J. Mccarthy QC
with Mr P. Jones
Instructed By: Australian Government Solicitor
ORDER
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.
JUDGE1
FOSTER J 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.
2. 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.
3. 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
4. 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.
5. 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.
6. 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.
7. 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
8. 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.
9. 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.
10. 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".
11. 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."
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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".
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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
26. 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.
27. 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
28. 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".
29. 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
30. 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.
31. 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
32. 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.
33. 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.
34. 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.
35. 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).
36. 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".
37. 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.
38. 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.
39. 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.
40. 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.
41. 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
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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
48. 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.
49. 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.
50. 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.
51. 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.
52. 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.
53. 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."
54. 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.
55. 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.
56. 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?
57. 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.
58. 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
59. 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.
60. 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.
61. 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.
62. 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.
63. 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."
64. 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.
65. 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.
66. 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".
67. 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".
68. 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 beta, gamma
contaminations is 6 x 10 -8 uc/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."
69. 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.
70. 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.
71. 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.
72. 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.
73. 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.
74. 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.
75. 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.
76. 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 indicated that the hazard is slight
no special protective clothing has been recommended for people
working in these areas. Mr. Richardson supports this decision.
7. Owing to the proximity of the new sites to the Yellow Area it
will shortly be necessary for work to be done in clearing lanes
lying well inside the Yellow boundary. Mr. Turner has already
arranged that this will be a 'Yellow Entry' and that the men
working in this area will wear full protective clothing,
including respirators, and will pass through Health Control in
the usual way.
8. It is strongly recommended that every effort be made when
selecting future sites that these be in areas which can be
classed as non-active in accordance with section 3.2.1 of the
RSRM/56(5). It is in accordance with this recommendation that
the Duna site has been provisionally moved further east from that
originally chosen to prevent work being carried on inside the
Yellow boundary near Breakaway."
77. This communication is relied upon by the applicant's counsel as some
indication that Cubillo was working in "active" areas, being the areas which
Mr Turner had previously considered should have been classified as red after
the movement of the yellow boundary referred to in his March report. It must
be noted, however, that the result of this classification is much qualified by
Mr Turner's reported assessment that the concomitant hazard was so slight that
no special protective clothing had been recommended for workers in the area.
In my view, this can only mean that the assessment of the inhalation and
ingestion risks was such that the wearing of respirators was not required.
78. Mr Flannery, the Range Security Officer at Maralinga in 1957, also gave
evidence in relation to the areas in which the engineers worked in the
inter-trial period. He had no responsibility for health physics as such but,
as his evidence indicates, he worked in close cooperation with Mr Turner in
the implementation of health physics requirements. He had overall
responsibility for the entry of personnel to the forward area through Roadside
and for ensuring that only authorised personnel did so. He was also
responsible for the overall surveillance of the activities of personnel whilst
in the range area through the peace officers in the towers and the roving
patrols. He visited the forward area himself on a daily basis. He had no
responsibility, however, for personnel entering controlled radioactive areas,
this being the jurisdiction of the health physics authorities. He was an
impressive witness who was obviously most conscientious in the performance of
his duties. I am satisfied that when he described the standards of safety and
conduct at the range at Maralinga in 1957 as being "first rate" this was
indeed his firmly held opinion.
79. Mr Flannery confirmed that the boundaries of the yellow or radioactive
area were delineated by yellow tape which "was around every site of the
Buffalo series except Kite which by that time would have lost any
radioactivity". He himself did not see any preparation for the Antler series
performed within the yellow area except for the clean-up at Taranaki.
80. Mr Flannery was familiar with the map showing the "yellow control area"
hatched-in. It was part of his duties to provide this map in sufficient
numbers to officers in charge of the various groups for distribution to
personnel under their command. I am satisfied that he in fact provided the
maps in accordance with his duties. It was not part of his duties to
supervise their further distribution and he was, in those circumstances,
unable to confirm that this was done.
81. He expressed the view that no construction work was done in "the
instrument lanes" in contaminated areas, these being the areas within the
hatched yellow control area on the map. He indicated, as was clearly the
fact, that no red areas were designated before the completion of the Antler
series. They were then marked out with red tape, the boundaries having been
established after the Antler explosions through measurements made by health
physics personnel. However, before the Antler explosions, although no red
boundary was established, he was satisfied that, to his observation, no work
was done inside the area which was hatched on the official map and described
as the yellow control area. In his view, this area covered any area that could
properly be described as a red area.
82. Mr Moroney, to whose evidence I shall shortly refer, delineated the
boundary of the red area, as defined in the Regulations, on Map 7 of Exhibit
O, as at July/August 1957. Mr Flannery was satisfied that the red area as so
defined by Mr Moroney fell within the boundaries of the hatched yellow control
area of the map (Map 2 of Exhibit 4) from which he and security personnel
under him worked in performing their duties at the range.
83. It appears that all the sites for the Antler series fell outside, that is
to the south of, the boundary and were, therefore, in Mr Flannery's opinion
outside any area which could properly be classified as yellow or red within
the terms of the Regulations.
84. A further witness called on behalf of the respondent, William Gordon
McDougall, was a Major in the British Army in 1957. He was a health physicist
by training and from 30 July 1957 to 22 October 1957 was in charge of health
physics at Maralinga, having taken over from Mr Turner who had been in charge
in the inter-trial period. Mr Turner became his deputy during the British
supervision of the Antler test series. During his tenure of office there was
a cessation of monthly health physics reports but an extensive and
comprehensive report (Exhibit N) was made by him at the conclusion of his tour
of duty. Under the heading of "Takeover of the Range" the following
appeared:-
"Responsibility for HP control of the range was assumed on 15
August, 1957. The Yellow Area remained as in the inter-trial
period. It consisted of the area bounded by and including
Central Street, Fifth Avenue, East Street and the Nawa-Kite road
with the extension to the south-west to include Breakaway and
Apu.
Mr. Turner had recorded the work done on the range in the
inter-trial period. No airborne hazard existed. A gamma dose-rate
in excess of 7.5mr/h existed only in the immediate vicinity of
One Tree, Marcoo and Breakaway craters. The beta activity in the
Yellow Area was fixed almost wholly in large insoluble particles
varying in weight from 0.03 mg to as much as 82 mg. It was noted
towards the end of the trial that the glazed area of Breakaway
was tending to break up into a fine dust when walked or driven
upon.
It was clear that the Yellow Area did not in general present a
serious hazard. With the exception of the crater areas it could
have been classified as Red. As the range staff had become
accustomed to working under these conditions, and as it was
likely to become seriously contaminated in the near future, no
alteration was made."
85. Mr McDougall identified the hatched area on the second map in Exhibit 4
as correctly depicting the official yellow area at the time he took over. He
said that at that time there were, within that general area, three small areas
which could properly have been described as "yellow". These areas were around
the ground zeros of the Buffalo series. They would have been "a matter of a
few hundred yards around each". He indicated that all the intended sites for
the Antler series were in fact below the hatched area on that map, although he
stated that some of the work on the instrument lanes must have been "very near
the edge of it".
86. Major McDougall had not been aware of Mr Turner's comments in his March
health physics report. At the time he arrived at Maralinga the yellow
boundary was "the J7 Kite and Nawa line". He also said that "it was implicit
when you only lay down a yellow boundary that almost inevitably there will be
a red area on the other side of it". I take this, however, as being in the
nature of a general comment. It is clear from Major McDougall's other
evidence that at the time he took over the range from Mr Turner, the boundary
referred to could more properly be regarded as the boundary of a red rather
than a yellow area within the meaning of the Regulations.
87. Mr Moroney's evidence must also be considered in this context. Mr
Moroney was a nuclear physicist. During the Antler series he acted as Joint
Scientific Secretary for two Australian committees formed in relation to the
tests. These were the National Radiation Advisory Committee chaired by Sir
MacFarlane Burnett and the Atomic Weapons Test Safety Committee chaired by
Professor Ernest Titterton. In that capacity he went to Maralinga on 9
September. He witnessed the three firings in the Antler series with
intermittent returns to Sydney. Thereafter, he maintained a professional
interest in Maralinga, returning on a number of occasions in relation to other
trials and the clean-up activities on the range.
88. Prior to the Antler series he visited the ground zeros for the Buffalo
series. He "approached them to a reasonable distance and looked at them, with
appropriate health physics protection and instrumentation". He also visited
the three Antler sites which were all complete at that time. Mr Moroney
prepared a series of maps showing the situation (inter alia) in relation to
radioactivity on the range at various times. These maps are Exhibit O in
these proceedings. Map 6 is entitled "Health Control Maralinga Forward Area"
and dated February 1957. It is in effect basically the same map as Map 2 of
Exhibit 4. However, Mr Moroney has indicated on it the position of various
warning signs to which I have already referred, and has also depicted the
position of the yellow tape which marked the boundary of the active area.
This followed the irregular south western boundary of the hatched area and
continued in a straight line eastwards along the Kite-Nawa road. Mr Moroney
actually saw the yellow tape in position when he arrived in July.
89. The next map, Map 7, depicts the radioactive area which, in Mr Moroney's
opinion, remained from the Buffalo tests as at July/August 1957. This map
takes into account the classification of areas into red and yellow. By that
time the yellow areas had contracted to quite small circles around the sites
of the Breakaway, Marcoo and One Tree ground zeros. The line of the yellow
tape had become, in Mr Moroney's scientific opinion, the boundary of the red
area. Consequently, the area described on the official map as the yellow
control area had become, for practical purposes, a red area with its outer
boundaries along the line of the yellow tape. The whole of the Antler sites
were outside these boundaries and, consequently, were not within an area that
could be described as carrying even a slight risk of inhalation or ingestion
of radioactive material.
90. Against this background I now turn to consider the evidence of Mr Cubillo
and his lay witnesses. I have already noted the problems in relation to Mr
Cubillo's memory. He is not able to throw a great deal of light on the areas
in which he worked. He remembered that Lance Corporal Woodleigh used to send
men out to do different jobs which involved them travelling by vehicle to an
area where they were to work. As he said, "whoever was in charge just took us
to the area". He was of the opinion that he worked in the area called Kittens,
but that claim, as I have said, has been specifically abandoned. He did,
however, have a fairly specific recollection of joining cables. It is
possible, of course, that these were cables in relation to the instrument
lanes leading to the Antler sites or, perhaps, the cables leading to the
rocket sites.
91. He remembered digging post-holes using a drill attached to a compressor
on the back of a 3 tonne vehicle and that, when using the drill, he would be
on the ground beside it, the holes being fairly deep. The holes were drilled
in the areas of Tadje, Biak and Taranaki. Sometimes he assisted in blowing
holes in hard ground with explosives. The holes were in the areas already
referred to as laneways. The holes that were drilled were for the placement
of star-pickets. The areas that were exploded were to take instruments. He was
in the charge of Sapper Moore who has since died. Mr Moore would indicate
where the holes were to be dug or the explosives laid. Whilst doing this form
of work in the laneways he would not wear protective clothing, nor would he go
through the health physics caravan.
92. Cubillo gave evidence of eating meals in the laneways. Sometimes these
meals were sandwiches, although it appears from the evidence that sandwiches
were eaten when work was being done on the joining of cables. On other
occasions he would join other groups who were working in the laneways for
lunch. He said that meals of this kind were brought from Roadside in a box and
consisted of meat and eggs which were cooked on a shovel over an open fire.
The shovel would be one used for digging in the course of their work. The
shovels were "fairly clean, all you had to do was just wipe the dust off". So
far as sandwiches were concerned, they were obtained from the counter in the
canteen at Roadside and were eaten out in the open or in the trucks they were
working in.
93. When going into a radioactive area he went through health physics and was
supplied with a protective suit, rubber boots and respirator, the suit having
a hood. When wearing this clothing he would go out into the area where he
understood nuclear explosions had occurred, but had no recollection of what he
did when out there. However, he remembered that he was accompanied by a
health physicist who was taking readings in the area they were going through.
94. He also remembered going out on a truck to retrieve a camera tower. He
went from Roadside, but does not remember where he went to. He does not
remember wearing any protective clothing on this occasion. However, he had an
instrument which appears to have been a geiger counter. When they arrived at
their destination there was a dismantled tower and wooden platform lying on
the ground. They ran the counter of over it and "the needle just went right
across, straight over". They found a little bead "about the size of a
pinhead" which appeared to have caused the counter to react in this way. He
brushed it off the platform and loaded the platform onto the truck. It was
very hot and dusty and the dust would stir up as they walked. It is
reasonable to assume that one of the yellow area gamma dose readings referred
to earlier was recorded on this occasion. He had a vague recollection of
dismantling a camera tower on another occasion. He couldn't say where it was
except that it was in the forward area. He had no recollection of Mr Chasty,
another witness in the case, being present. I consider that I cannot attach
any weight to this recollection.
95. So far as his claim to have worked in the instrument lanes leading up to
the sites of the three Antler explosions are concerned, Cubillo is supported
in broad terms by Messrs Chasty, Abercrombie, Hutton and Cervetto. I am
satisfied that Cubillo and the others worked hard in the open in conditions
that were often dusty and in which they would quite frequently wipe
perspiration from their face in circumstances where they may have conveyed
dust and dirt to their mouth. I am also satisfied that from time to time they
would have inhaled some quantities of dust.
96. So far as the allegations of regular eating of meals cooked on dusty
shovels over open fires are concerned, I find myself far from satisfied as to
these activities. It is unnecessary to consider the evidence in any detail.
It suffers from the twofold vices of fading memory over the years and also
suggestibility through discussion of the evidence by the witnesses among
themselves. It appears that some slight evidence as to this activity was
given before the Royal Commission. It has now become a major feature.
97. Mr Flannery, who gave very balanced evidence, regarded this as one of the
"myths" of Maralinga. He pointed out that the lighting of fires in the open
was expressly forbidden, unless with permission, by the Regulations. It is
also clear from his evidence that any fires so lit would have been, for the
most part, clearly visible from the watchtowers with the result that action
would have been taken to prevent it.
98. I was not impressed by evidence given by Mr Hutton to the effect that
this activity was actively encouraged and aided by the officer in charge.
Neither the content of the evidence nor the manner of giving it impressed me.
I think the truth of the matter is that this activity may have occurred on
occasions but was by no means a regular thing. Like Mr Flannery, I am
unimpressed by claims that these men who were subject to military discipline
and were members of the Australian Army behaved like leaderless rabble,
regularly acting in breach of the Regulations.
99. I have considered Mr Chasty's evidence that Cubillo was working with him
on an occasion when a tower was being dismantled in circumstances where
protective clothing was being worn. On this occasion, according to Mr
Chasty's evidence, both he and Cubillo removed their respirators because of
the heat. It is possible that Chasty was working on the tower at Apu which
would have been in a yellow area, requiring the wearing of protective
clothing. He says that Cubillo was working with him. Cubillo has no
recollection of this. Mr Chasty was mistaken as to other matters, in respect
of which he had claimed a clear recollection. He was clearly wrong in
asserting that he was not issued with a film badge and equally wrong in
asserting that he came to Maralinga on the same train as Cubillo. I am
satisfied he was an honest witness but, that, over the period of time
involved, his memory is not reliable. He also demonstrated suggestibility. I
am not persuaded by his evidence that Cubillo in fact worked on the
dismantling of any tower in the circumstances deposed to by Mr Chasty.
100. In the upshot, so far as this aspect of the case is concerned, I am
satisfied that Cubillo worked in the instrument laneways leading to the Antler
sites and that he did so in conditions where dust could be stirred up through
the activities of the men, which dust could, in some circumstances, be inhaled
or swallowed. I consider that on occasions which were comparatively rare he
ate meals cooked in the field and that on other occasions he ate sandwiches
which he brought with him from Roadside. I am satisfied that he was unaware
of the designation, in terms of the Regulations, of the areas in which he was
working and that he was not issued with any protective clothing for use in
that work. He relied upon those in charge of him to take any necessary steps
for his safety in relation to radiation hazards. I am also satisfied that
there were occasions when he entered radioactive areas having passed through
the health physics procedure and having been issued with appropriate clothing.
I am satisfied that on those occasions the group he was with was accompanied
by a health physics representative, this being the established procedure. On
one such occasion he assisted on the retrieval of dismantled portions of a
camera tower and had the experience with the geiger counter to which I have
referred.
101. In relation to his work in the laneways, the question whether he was
thereby exposed to a radiation hazard through the inhalation or ingestion of
plutonium 239 must be determined by assessment of the expert evidence in the
case. I shall deal with this later. Before doing so, it is necessary that I
consider the evidence relating to Cubillo's involvement in the sweeping-up
operation at Taranaki.
(b) Taranaki Sweep-up
102. Hitherto I have been considering areas which may have been affected by
radiation hazards introduced by the Buffalo explosions. The sweeping-up
operation at Taranaki was occasioned by the explosion at Biak during the
Antler series. It appears that fallout from this explosion unexpectedly
occurred over the site where the Taranaki test was to take place.
Accordingly, it was necessary that the fallout be cleared away so that the
final preparations for the Taranaki explosion, which was to be a balloon
firing, could take place. This operation was performed whilst health physics
was under the control of Major McDougall. He deals with the operation at some
length in his report (Exhibit N). First, I shall consider Cubillo's version
of the clean-up operation.
103. Cubillo said that he went to the contaminated area "to clean up
radioactive wastes so that scientists (could) work in there". He went through
health physics and was issued with protective clothing being "the lot,
respirator, protective clothing". After leaving the health physics facility
he entered a vehicle that had a circular broom attached to it. This was
inside the Taranaki area. He said that he was told that "once we got a
reading of 0.3 to get out". He had a film badge and dosimeter, the latter
being carried somewhere in his overalls. In relation to what occurred in the
Taranaki area he was asked the following questions and gave the following
answers:-
"When you got inside the Taranaki area as you have referred
to, what work did you do?---Well, we were told which part to
sweep, it was highly radioactive and the soldiers had had to work
in there and that's when we were told once we got a reading of
point 3 to get out and being so hot - - -
Well, just pausing there, please, Mr Cubillo. What did you
actually do when you were inside that area?---I'd be watching
the broom and make sure nothing goes wrong.
The broom you have described as a circular broom?---That's right.
Was attached to what sort of vehicle?---It's a Land Rover.
Then the Land Rover would go over a particular area?---That's
right.
What would the broom do?---Sweep the waste edge of it of that
certain area and then we'd go back in - - -
Where would it sweep to?---Well, an area they just told us to
sweep, sweep it over.
Could you see what you were sweeping?---Not for very long because
it was that hot, with the respirator on you couldn't see, you
were sweating like a pig so you'd have to take it off because
you'd wipe yourself you'd be sweating - wipe yourself with the
back of your hands.
Just a minute. You say you can recall taking your respirator
off?--Oh yes, it was so hot.
And doing what once you - - -?---Once you got the respirator off
I'd be sweating so much I'd have to wipe the sweat off my brow,
face - - -
With the back of your hand?---That's right.
In a manner similar to what you already indicated?---Mm. (Yes)
When you did that, did you have anything on your hand when you
wiped your face?---Gloves. You had to have gloves on.
Did you do that work for a period of time?---We weren't there for
that long, say half hour, could have been more, but - - -
How long did it seem to you?---Well, time just got away, but it
seemed to me about half hour, could have been more.
On an occasion on which you removed your respirator, did you
observe a reading on what you have referred to as the
dosimeter?---Mm, that's right.
What did you observe as the reading?---Point 3.
What did you do when you observed that?---Just packed up and went
back to health physics."
104. He gave the following evidence as to what occurred upon his return to
the health physics caravan:-
"When you went back to health physics, what happened
there?---We were checked before we went into the caravan. They
took the gloves off, took the respirator off, took the hood off,
just checked us with a counter. Then we'd go in, strip off, have
a shower.
How many showers did you have?---Well, they said, once we had to
shower, we came back out. They had a machine there that checked
your hands, your feet, and if you had a reading, you had to go to
wash basin, use hands and soap, clear yourself.
Do you recall what happened to you on that occasion?---As far as
I remember, I just went into caravan. I only remember showering
the once. My hands were clean. I might have washed a couple of
times and then that was it, got changed and left."
105. In answer to further questions in relation to the sweeping-up operation,
Cubillo said that it was performed using a circular broom that was pulled
along behind the Land Rover and that the broom "just rolled around". He
further stated that when he took his respirator off he was sitting at the back
of the Land Rover watching the broom revolve. The Land Rover was open at the
rear and sides and, perhaps, the top.
106. It is difficult to evaluate Cubillo's evidence as to the Taranaki
sweeping-up operation. His memory, in general, could only be described as
poor and it is difficult to place great reliance upon matters that he claims
to recollect specifically. Mr Cervetto, whose memory I would regard as
generally being more satisfactory, insofar as it had not been affected by any
drinking problem over the years, was present at the sweep-up. In contrast to
Cubillo, however, he has only the vaguest of recollections of being present on
the occasion. He can provide no specific recollections in any way comparable
to those that Mr Cubillo now feels that he has. Moreover, Cubillo's
recollection has, apparently, undergone some changes with the passage of time.
In a statement made for the purposes of the Royal Commission in 1984 he
expressed the view that he was riding on a tractor and that the reading
obtained on the dosimeter was a "high reading". He appears to have made no
mention of the reading being "0.3". It does not appear that, before this
litigation, he had ever claimed that a reading as high as 0.3 had been
observed by him. In fact his film badge record for the day in question
indicates that he was exposed to no more than 0.13 rem. I am not satisfied
that he ever observed any dosimeter reading of the order he now claims,
although I accept that he now believes that he did.
107. Some problems also arise in relation to the particulars supplied in the
course of the litigation. In answer to questions relating to the Taranaki
clean-up, Cubillo's solicitors provided the following information to the
solicitors for the Commonwealth:-
"Our client was required to go through the health physics
caravan, where again, he was required to put on protective
clothing. Our client then went to the bomb site. At the time,
our client would have been driven in a land rover to the Taranaki
site at the back of the land rover. When our client arrived at
the Taranaki site there would have been a concrete platform of
approximately 100 yards in diameter. Our client was then
required with the other personnel present, in turn to drive the
land rover, which had circular brooms attached to the back, and
sweep the dust off the concrete platforms. Our client would have
performed these duties just prior to the Taranaki explosion."
108. These particulars were supplied on 21 July 1994. They indicate, quite
clearly, that contrary to the evidence he gave as set out above, he was
required to drive the Land Rover during the sweeping process, a task which was
undertaken in turn with other personnel. It is a very different picture from
that portrayed in his testimony, namely of sitting, in an exposed position, on
the rear of the vehicle during what would have obviously been the most dusty
part of the operations. Whilst some allowance may, perhaps, be made for some
failure of communication between Cubillo and his solicitor during the course
of giving instructions as to this matter, the discrepancy is, however, in my
view, not one of merely minor significance.
109. Again, there are problems in relation to his assertion that he removed
his respirator. There is no doubt that he was issued with a respirator and
was required to wear it whilst working in dusty conditions in this operation.
He, obviously, would have known that it was a part of the protective clothing
issued to him for the purpose of the work he was doing. I simply do not
accept that he or, indeed, any of the sappers would have been under any
misapprehension as to why the respirator was issued or as to why it should be
worn. Equally, I am certain that they would have known that in the interests
of safety the respirator should not have been removed in dusty conditions.
110. Cubillo made a statement for the purposes of the Royal Commission. The
statement has been tendered in evidence in these proceedings. Although it
deals with what is obviously the sweeping operation with the circular broom
and refers to the "high reading" on the dosimeter, no mention is made of any
removal of the respirator during the course of the work.
111. Furthermore, in the particulars supplied to the respondent's solicitor,
the removal of the respirator at the Taranaki sweep-up is referred to in the
following terms:-
"Whilst our client was sweeping the Taranaki site he would have
taken off his respirator as it was too hot to breathe. Our client
would have suffocated and would not have been able to see as the
respirator would have fogged up."
112. Again, these assertions fall far short of the precise allegations given
in Cubillo's testimony, which are set out above, and which are to the effect
that he removed his respirator whilst sitting on the rear of the Land Rover
amidst the dust of the sweeping operations because it was fogged with
perspiration and extremely uncomfortable in the hot climatic conditions. The
removal was, also, more or less contemporaneous with the reading of 0.3 on the
dosimeter. The question is, of course, whether this recollection can be
regarded as a true recollection rather than one which Cubillo has come to
believe in the context of the case he brings. He does not, in general terms,
evince a reliable memory. This now specific version is not corroborated in any
way. The decision to leave the area must necessarily have been taken in
consultation with the driver of the vehicle who has not been identified or
called. The dosimeter reading is contradicted by the records. These are
highly significant problems.
113. I am satisfied that this operation was by no means haphazard. It was an
organised military operation under the supervision of the health physics team.
The person in command of the work has since died. However, the whole episode
is the subject of a comprehensive report by Major McDougall in Exhibit N. The
relevant part of the report reads as follows:-
"Round 2 was a tower burst at Biak. The firing was at 1000
hours on 25th September.
Soon after firing it was clear from the lane surveyor's reports
that an appreciable amount of fallout had descended upon Taranaki,
which was the intended site for Round 3. The wide extent of the
contamination resulted in a heavier call upon the Yellow vehicle
fleet than had been anticipated. Fortunately the degree of
contamination upon sites used on Round 2 was not high. All
entries that were required were made without undue delay. The
Yellow boundary was initially established from Marcoo, through a
point 500 yd east of Kudat, to Boundary and included all areas to
the north and north-east. It was subsequently established that
fallout had occurred along the whole length of East Street to 25th
Avenue.
On D2 + 1 members of DC, RF and HP Groups started work in
Taranaki. The first objective was to get the sheds assembled and
as clean as possible, The second was to remove gross
contamination from the road and compacted area. To this end the
area was swept with rotary road brushes. The sweeping was
continued on three subsequent days. It removed a considerable
amount of fallout bodily from the road. The dust was collected
and dumped. Due to the large area involved the gamma doses-rate was
not materially affected. The amount of contamination detected
upon vehicles and personnel who had been in the area was soon
small.
Whilst the actual sweeping was in progress the airborne activity
in Taranaki was higher than at any other time or place in the
trial. At D2 + 2 it reached a maximum of 0.04 tolerances. The
brush operators clothing was heavily contaminated. The men
involved in this task were changed daily. The maximum whole body
dose received by them was 0.18 r. A thyroid count failed to
reveal any measurable quantity of iodine-131. Everyone working in
Taranaki wore a respirator when in the vicinity or downwind of the
brushing operations. A member of HP Group was in the area to
direct health control."
114. I note also that the evidence indicates that the ambient temperature at
that time did not exceed 26 degrees C.
115. Reference is also made in the report to a check on airborne activity
during the sweeping operations. This was conducted by the use of "Portable
Air Samplers 1195" and "cascade impactors". Measurements taken by these means
failed to indicate the presence of any significant activity.
116. Major McDougall described the operation of the cascade impactor. He
said it was an instrument which basically took air around a number of corners
at each of which the heavier particles in the air impacted upon a plate.
After the air had passed around four corners it was drawn through a very fine
filter. The material obtained at each stage or corner could then be subjected
to geiger counter readings. This enabled a wide sample of airborne activity
to be measured. Major McDougall indicated that the advantages of the cascade
impactor were that "you can sort out those particles which are liable to be
taken into the lung". He went on the say that a great majority of particles
were very large and in fact "you couldn't breathe them into your lungs. You
only really take something into your lungs if it's below 10 micron; a micron
being a billionth part of a metre".
117. Major McDougall gave further evidence as to the Taranaki sweep-up in his
oral testimony. In relation to the time spent by any one person in the
performance of work in this operation, he said that the men were changed daily
because of exposure to "a fair amount of radiation" and also because it was a
very dirty job. He said "it was a very unpleasant job, radiation or no
radiation so we only allowed each chap to do it for one day". He stated that
the men involved in the task were fitted with full protective clothing, but
that if they were upwind of the dust they were allowed to remove their
respirators. He further said that the maximum dose received by any person in
the course of the operation was 0.18 rads.
118. He also gave evidence of a further measure of radiation exposure that
was applied to personnel working in this operation. This was a "thyroid
count" which was used to reveal any measurable quantity of the isotope iodine
131 in the thyroid gland. This procedure involved the placing of an
instrument which was extremely sensitive to beta radiation against the skin
surface above the thyroid gland to determine whether any radiation was being
emitted from the isotope in the thyroid, iodine 131 being readily detectable
in the thyroid if there has been recent exposure of the body to it. He said
that such a test was extremely relevant to the question of whether a person
had swallowed or inhaled any radioactive material, as iodine 131, being a
fission product, would have become almost immediately apparent in the thyroid
if ingestion had taken place. He said "it would have gone straight there".
119. The test was fairly time consuming and, to his recollection, only the
brush operators, being the personnel most likely to be exposed, were given the
test. There were four such people and no measurable quantity of iodine 131
was detected.
120. It must be remembered, of course, that this test, like the readings from
the dosimeter and film badge, did not record the presence of alpha emitters
such as plutonium 239. They recorded predominantly gamma emissions with some
beta. They were, however, an obvious indication of levels of radioactivity in
the areas where the readings were taken. Such radioactivity found its origin
in fissile materials, that is, direct products of the nuclear explosion.
Alpha emitters had a somewhat different source to which I will refer. I
should record at this point, however, that I accept the evidence of Major
McDougall, given on more than one occasion in his oral testimony, that the
amount of alpha emitters to be found in the vicinity of a ground zero after
the detonation of a nuclear weapon and the hazard from them, was infinitesimal
in comparison to the hazard from gamma and beta emitting fission products.
121. Major McDougall's view was that after fallout from a nuclear explosion
had occurred there was a possibility of a plutonium 239 isotope, plutonium
being used in the bomb, being resuspended in the air in the area of the
fallout. However, in his view, it presented an infinitesimal degree of risk
from the health physics point of view. Accordingly, although weapon debris
would have been present during the Taranaki sweep-up operation, "the hazard
from that debris at that point of time would have been assessed as small in
relation to the hazard from fission products". He further said that alpha
emitting plutonium 239 would have been present but, on the evidence of
previous trials, would not have been present in quantities which could be
assessed as presenting a hazard. He agreed that there was no measurement made
of the presence of alpha activity during the sweeping operation.
122. On the question of the wearing of protective clothing during the
operation, Major McDougall had this to say:-
"The people who were involved in the sweeping operation were
fully clad in protective clothing and wearing respirators and we
put a health physics member of the team there to ensure that the
people who were doing the brushing and were in the actual dust
wore their respirators. If they were operating in Taranaki and
were upwind, were not in the dust, then people were allowed to
take their, I am pretty certain, to take their respirators off,
certainly after the first morning, but carry them.
When you say upwind; was there a noticeable wind influence?---No.
No, there was very little wind on the days whilst the brushing
operation was carrying on.
Well, in those circumstances how can you define upwind?---Yes, I
mean there was a wind but there wasn't a strong wind which you
quite frequently saw at Maralinga which would actually raise the
dust. There was a gentle breeze blowing.
What, producing a perceptible drift in the dust haze as it
were?---Correct.
So, if you were upwind of that in the sense that you were not in
the direction of the drift of the dust haze, you were allowed to
remove your respirator?---I would've allowed people to remove
their respirator."
123. Major McDougall went on the say that the operation was supervised by an
extremely experienced scientist (now deceased).
124. The Major pointed out that the level of 0.3 rads had been selected on
the basis that that was the normal level of permissible exposure for a worker
in industry over a week. If a brush operator were to achieve that level of
exposure he would not be employed again in the area for a week. This
measurement was, in his view, "a very safe level" and would not exceed 15
counts per second if measured with a geiger-mueller tube. He said that a
reading of above 15 counts per second was taken as "above tolerance", but that
this inserted "an extremely large safety factor". He also expressed the view
that most of the contamination detected on the clothing of those involved in
the operation, resulted from "very large particles which would have been too
big to go into a person's lungs and which would have been spat out. They
would have been fission products resulting from the explosion". He also
expressed the view that a person actually in the cloud of dust being stirred
up by the sweeping operation would have been better off with the respirator on
unless it became completely clogged up with dust, "because once you took it
off you were breathing all this horrible muck, just sand and dirt".
125. In relation to the removal of respirators in risky conditions, a great
deal of evidence was given by lay witnesses. This evidence related to areas
of work other than the sweeping operation at Taranaki. I do not propose to
deal with this evidence in detail. I gained the impression that the topic
has, in general, assumed increasing prominence with the passage of time and in
the course of discussion amongst the Maralinga sappers.
126. The most elaborate evidence in this regard was given by Mr Hutton the
Lance Corporal who had been in charge of one of the working parties engaged in
preparing the laneways and subsequently assisting in the removal of
instruments after the explosions. Cubillo was not a member of Mr Hutton's
party but, obviously, had contact with him from time to time whilst working on
the range. It is difficult to evaluate Mr Hutton's evidence. He was a
difficult witness. He was belligerent towards counsel and, on many occasions,
apparently more intent on point-scoring rather than responding to counsel's
questions in a temperate factual way. He gave the clear impression of being
embittered in relation to his service at Maralinga and highly emotional in his
recall of events. At the very least, I am driven to regard his evidence as
exaggerated. I am not persuaded that respirators, when issued for obvious
reasons of personal safety, were removed at the first available opportunity
and with the connivance of responsible officers. In general, however, I am
satisfied that when proper supervision was temporarily lacking, there may have
been occasions when, because of heat and discomfort, respirators were removed.
In other words, I am certainly not prepared to assume that all the evidence
that has been given in this regard is the subject of fabrication, but I am
certainly not prepared to accept that respirator removal was a regular feature
of the working day in the forward area.
127. I return, then, to the question of Cubillo's activities during the
Taranaki sweeping operation. I have referred to the difficulties involved in
the acceptance at face value of his evidence in relation to the removal of his
respirator whilst working in the dust. I found Major McDougall to be a most
impressive witness. I am satisfied that the operation was organised with a
proper regard to radiation safety in accordance with the health physics
standards applicable at the time. The soldiers would have been instructed
that respirators were to be worn except in the absence of dust. Specifically,
they would have been instructed that respirators could be removed when they
were upwind of the dusty area, but were to be replaced if dusty conditions
occurred.
128. I am also satisfied that there was general supervision by appropriately
trained health physics personnel present during the sweeping operation,
although such personnel clearly could not be at the elbow of every person
involved in the operation at all times. Obviously, a reasonable degree of
reliance had to be placed upon the workers' obedience to instructions and
their commonsense in relation to avoiding obvious danger. In the upshot, I am
not persuaded that Cubillo removed his respirator in the manner and at the
time that he asserts. The best that I would be prepared to find in his favour
is that it is likely that he removed his respirator when he was upwind of the
dust cloud stirred up by the operations. This he would have been permitted to
do. It is certainly possible, however, that after removal of the respirator
he wiped his face with a dusty glove and transferred dust to his lips.
129. I come, then, to the question whether the activities in which I have
found that Cubillo was probably engaged, exposed him, on the balance of
probabilities, to the risk of inhalation or ingestion of the isotope plutonium
239. This has been the subject of conflicting scientific testimony to which I
now turn.
SCIENTIFIC EVIDENCE ON EXPOSURE TO PLUTONIUM 239
130. The applicant called a health physicist, Mr F.P.J. Robotham, who
provided two written reports which were tendered in evidence and who also gave
extensive oral testimony. In his report of 5 May 1994, Mr Robotham refers to
the Regulations and to Mr Turner's health physics reports in relation to the
inter-trial period. In relation to permitted levels of exposure, he noted
that "where the major concern was inhalation, ingestion or injection of
radioactive isotopes, the maximum exposure was defined as being a level of
surface contamination which did not exceed 10uC/m2".
131. He also stated that "during the inter-trials period potential inhalation
hazards were monitored using cascade impactors. These had limited value
because of the relatively small volumes sampled compared with the size of the
area involved".
132. Mr Robotham placed considerable reliance upon the passage from Mr
Turner's health physics report of March 1957 which has been cited above. He
drew from it that "the decontrolled area immediately to the south of the
marked yellow area was ... still active". The men, including presumably
Cubillo, were therefore required to work in an active area without proper
health physics protection. He spoke of the risks likely to have been incurred
by Cubillo through working in this area in the following terms:-
"My understanding is that between June and September 1957 Mr
Cubillo was required to drill holes for fences. He recalls being
issued with a film badge but not protective clothing. The sites
were Tadje, Biak and Taranaki, before the tests at these
respective sites. However, this general area had been
contaminated by the Buffalo 4 (Kite) in October 1956. It is
difficult to reconstruct a potential exposure for Mr Cubillo
although there is a significant possibility of inhalation of
radioactive material given the nature of his task and the
locale."
133. He also stated that:-
"Between April 1957 and October 1957 Mr Cubillo was required
to drill holes at various sites in the forward areas. It is not
possible to reconstruct Mr Cubillo's possible exposures from this
activity. However, given the levels of residual contamination,
especially from Breakaway, Mr Cubillo was at significant risk of
inhaling or ingesting radioactive materials."
134. After he received further information from the applicant's solicitors in
relation to the cooking of meals in these areas, this evidence, apparently,
not having been referred to by Cubillo in the first instance, he added to his
previous opinion in the following way:-
"The statement of Mr Hutton, who was the Australian NCO,
confirms the presence of Mr Cubillo during those mid-morning
cooking sessions. Mr Cervetto confirms that no monitoring for
radioactivity was carried out before these cooking sessions.
What cannot be determined are the:
. levels of radioactive contamination present;
. types and solubility of radioactive materials present;
. quantity ingested through cooking.
Thus, it is not possible to quantify any radiation exposure Mr
Cubillo may have received through eating food cooked in
restricted areas. It is possible, however, to state that such
practices should not have been allowed and the fact that the
practice appears to have been widespread demonstrated lack of
adequate supervision and training. (Mr Hutton described it as 'a
recognized practice not only amongst the Australian Servicemen
but also the British started to employ this method as well'.)
In my earlier report I concluded that Mr Cubillo's involvement in
drilling post-holes (star-pickets) could give rise to a 'possibly
significant' internal hazard. The evidence from Mr Cubillo's
workmates confirms this possibility and makes it more probable.
Mr Cervetto's evidence shows that the drilling team also assisted
in the erection of perimeter fences. The location of those
fences is not clear, however, similar considerations apply to the
digging of star-picket holes."
135. It must be noted, of course, that in forming and expressing these
opinions, Mr Robotham has accepted the evidence that these activities occurred
to a far greater extent than I have found to be the position.
136. As this part of the case forms a discrete segment, it is convenient to
consider the evidence given in relation to it by Mr Davy, the health physicist
called by the respondent.
137. In the first place, it is quite apparent that Mr Davy has had recourse
to far more factual information in relation to the areas and levels of
contamination experienced at Maralinga than has Mr Robotham. Through his
research, Mr Davy not only challenges Mr Robotham's results but also the basis
of his reasoning. In the first place, he establishes to my satisfaction, that
it is more probable than not, that the areas in which Cubillo and the other
men were required to work in the inter-trial period were not significantly
contaminated, particularly by plutonium 239. He, in effect, negatives the
concerns expressed in Mr Turner's health physics report of March 1957 and the
associated letter from Mr Richardson. He points out that Mr Turner himself,
in reports given later, resiled from the views that he had expressed in the
earlier report. It will be remembered that the result of evidence which I
have already considered was that the southern boundary of the "yellow control
area" marked on the basic map of the inter-trial period was, in terms of the
Regulations, in reality the southern boundary of the red area at the time when
the work was going on. Consequently, the work was being done in an area where
there was not even, in terms of the Regulations, a slight risk from inhalation
or ingestion.
138. Mr Davy's evidence is fully supportive of this view. I found him to be
a most credible witness and was very impressed with the extent of his
experience in relation to the radiation hazards present at Maralinga, the
depth of his research, and the reasoning processes by which he arrived at his
conclusions. He paid close regard to evidence bearing on the question of the
nature and extent of radiation hazards resulting from the Buffalo and Antler
series and ensuing trials, particularly the Vixen series. He focussed
particularly on the contamination of the relevant areas by plutonium 239.
139. It is, of course, important to bear in mind that this case is concerned
only with Cubillo's inhalation or ingestion of plutonium 239. It is not
concerned with Cubillo's exposure to gamma or beta rays resulting from the
radioactive decay of other substances dispersed on the range as a result of
the nuclear explosions, except insofar as measurements relating to the
dispersal of those substances can throw light upon the quantity of plutonium
239 which might have been present at particular locations. Mr Davy's evidence
makes very clear the nature and origin of plutonium 239 in the forward area.
The explosion of a plutonium nuclear bomb results in fallout around the ground
zero of the explosion. The radioactivity in that area is occasioned, in the
early stages after the explosion, by the presence of radioactive elements with
very short half-lives. These are subject to rapid radioactive decay which
accounts for most of the ionising radiation emitted in the area. Plutonium
239 has a long half-life in excess of 24,000 years. Accordingly, present
measurements of its existence on the range equate for practical purposes with
measurements that would have existed at the time of the explosions. As Mr
Davy points out there has been nothing worth mentioning by way of reduction in
the quantity of plutonium 239 present on the range due to radioactive decay.
140. Moreover, the chemical composition of the bomb determines the amount of
plutonium 239 which ultimately forms part of the radioactive field resulting
from fallout from the explosion. Calculations based upon the amount of
plutonium 239 produced by the ordinary processes taking place in the core of a
nuclear reactor are of limited use in gauging the presence and effect of
plutonium 239 after a nuclear explosion. It is clear from Mr Davy's evidence
that very considerable scientific work has resulted in the production of what
is named the "Baker Inventory Factor" which is used in determining the effects
of plutonium 239 resulting from the explosion of plutonium nuclear bombs. Mr
Davy explained these matters at some length in his evidence. There is no need
to repeat the explanation here. It was uncontested and insofar as it plays a
necessary part in Mr Davy's analysis of the situation at Maralinga, I accept
it.
141. It will be observed that Mr Robotham's evidence as to the contamination
of the areas in which the post-holes and other holes were being dug, was given
only in very general terms. He advanced the view that those areas would have
been contaminated by fallout from the Kite and Breakaway explosions in the
Buffalo series. According to the health physics reports to which I have
referred, these were the areas in which it was suggested that the engineers
were required to work after the shifting northward of the yellow boundary in
the inter-trial period. The nature of the contamination, if any, of these
areas is therefore highly significant for the purposes of this case. This is
a matter which Mr Davy examined in some detail. His examination is based upon
available records which are lengthy and technical and which I shall not set
out here. The results of his analysis may be broadly set out as follows.
142. The area in question is wedge shaped. It appears on the map in Schedule
1 to these reasons, the area having been copied from a map provided by Mr Davy
as an attachment to his report (Exhibit 9). It is this area which contained
fallout from the Breakaway detonation of 22 October 1956, the fallout having
fallen to the south of the Pom Pom J7, J9 Nawa road line. The area would have
been controlled as a red area by Mr Turner's health physics team if the yellow
boundary line had not been moved north to a line along the Pom Pom-Nawa road
line leaving the wedge shaped area decontrolled. There was not, however, a
total absence of control. Movement north of Mina was limited wherever
practicable, cascade impactors were run in areas where large bodies of men had
to work, all meals were required to be eaten at Mina and there was an
extensive removal of the top soil at the Tadje site. The construction of the
Tadje tower and site occurred in this area as did the preparation of the Biak
site.
143. In Mr Davy's considered opinion, the Taranaki site was never
contaminated with fallout from any detonation of the Buffalo series.
Consequently, the question whether Cubillo could have suffered harm from
inhalation or ingestion of plutonium 239 is restricted to work he may have
done in the Tadje or Biak areas. The renovation of the Gona tower also took
place within the wedge but there is no suggestion that Cubillo performed any
work there.
144. The Breakaway fallout in the wedge area was unique in the Maralinga
experience. According to Mr Turner's July 1957 report, it consisted of
"millimetre sized beads of a glass appearance" . Both Mr Robotham and Mr Davy
agreed with Mr Turner's evaluation that these beads did not constitute an
inhalation or ingestion hazard. They "came from the stem of the cloud rather
than from the mushroom of the cloud". They constituted very early fallout
from the Breakaway explosion. It is accepted that the beads themselves were
radioactive. As I understand the evidence, they emitted gamma rays. Mr
Davy's opinion, which I accept, was that the bead which Cubillo found on
portion of the dismantled tower in the yellow area was in fact a bead from the
Breakaway fallout. It emitted gamma rays as was obvious from the geiger
counter reading to which Cubillo referred in his evidence. However, because of
their size and weight the beads could not have become resuspended in the air
as a result of the work being carried out in the area. For this reason they
could not have been ingested or inhaled, even if that were possible having
regard to their size.
145. It was put to Mr Davy in cross-examination that the presence of the
beads in this area would be indicative of the presence of other radioactive
materials, including alpha emitters, which would be capable of being
resuspended and, therefore, being either inhaled or ingested by men working in
the area. Mr Davy did not agree with this suggestion. His view was that the
presence of the beads was by no means an indicator of the presence of other
fallout in the nature of "fine particulate". Such material would originate in
the mushroom of the cloud and be subject to later fallout. It was not valid
to assume that "fine particulate" would also be present in the area where the
beads were found. I do not understand any evidence of Mr Robotham to be to
the contrary. I accept Mr Davy's evidence.
146. Moreover, the Tadje site, insofar as it may have represented a radiation
hazard from the Breakaway or Kite detonations, was decontaminated by the
removal of the top soil before Cubillo commenced work at Maralinga. The Biak
site was not within the wedge of the Breakaway fallout. Nor was it subject to
any contamination from the Kite detonation. The evidence of Mr Davy based
upon the March 1957 health physics report is uncontested and, in my view,
clearly indicates that this was so.
147. I am quite satisfied, on the balance of probabilities, that Cubillo,
whilst working and eating in the "laneways" areas in the inter-trial period,
was not subject to any inhalation or ingestion hazards resulting from fallout
in those areas from any of the detonations in the Buffalo series.
148. In reaching this conclusion I have not failed to take into account
suggestions in the evidence as to the hazardous effects of dust storms and
some references to the breaking up of glazed areas in the vicinity of the
ground zeros and the disturbance of the broken up surfaces by wind. The
suggestion was that the effect of wind disturbance was the movement of
radioactive materials into the areas where the men were working. These
suggestions are only in the most general form. They are not backed up by
measurement records or by any form of considered calculation. I am satisfied
by Mr Davy's evidence that any such movements would mainly occur at ground
level and over small areas. Also, it is to be presumed that work would not be
carried out in conditions of true dust storms. Moreover, there is no
meteorological evidence tendered on behalf of the applicant to suggest that
such storms occurred to any significant degree or, indeed, that severe wind
conditions were experienced with any frequency. Mr Davy's evidence, based
upon a perusal of meteorological records, is to the contrary.
149. Mr Davy also referred to inferences that may properly be drawn in
relation to work in this wedge shaped area from film badge readings for the
period May 1957 to the commencement of the Antler series in the September. In
that period Cubillo received a total gamma ray exposure of 0.15 rem and his
commanding officer, Captain Marqueur, accumulated a dose of 0.17 rem over a
somewhat longer period. Mr Davy makes the point that both these doses are
smaller than 0.23 rem which is the anticipated annual dose that an individual
receives from natural background radiation.
150. Mr Davy also makes the point, on what appear to be quite valid grounds,
that in November 1958 Mr Turner, in the course of a review of his findings,
came to the conclusion that his earlier concerns about men working in the
decontrolled wedge shaped area were unfounded. In other words he came to the
view that, in retrospect, he had erred by referring to the area south of the
newly established yellow boundary as being potentially a red area. Mr Davy
explains this matter in his evidence. The explanation is not contested by any
evidence to the contrary. I am quite satisfied to accept it.
151. The result is that the applicant fails to satisfy me that he was
subjected to any risk of inhaling or ingesting plutonium 239 whilst working in
these areas in the inter-trial period.
152. I come, then, to consider whether the applicant has established any
scientific basis for an assertion that he was at risk of inhalation or
ingestion of plutonium 239 when he participated in the retrieval of the
dismantled tower parts. It is sufficiently clear that this must have taken
place in the yellow controlled area and was therefore subject to health
physics supervision. There is the evidence, which I accept, of the brushing
aside of the radioactive fallout bead. There is also a suggestion in the
evidence that walking about in the area produced dust. The difficulty is that
Cubillo's evidence is so vague that it is simply not possible to conclude,
even on the balance of possibilities, that he inhaled or ingested any dust.
In fact he does not assert that he did. Even if one assumes in his favour
that he was not wearing a respirator and that by wiping his face he
transferred dust to his lips or nose, there is a total absence of evidence as
to the amount of dust that he might have taken into his body in this way or of
any computation of radioactive dose that he might thereby have acquired.
153. It is convenient, in this context, to consider an argument which was put
forward on behalf of the applicant on the basis of a portion of the evidence
given by Mr Robotham and also Dr Kefford, to whom I shall refer in greater
detail later. Both these witnesses, Mr Robotham faintly and Dr Kefford quite
explicitly, espoused the view that irrespective of measurements of dose, a
person in the position of Cubillo could fall victim to a radiation hazard by
inhaling or ingesting "a small particle" of plutonium 239. Mr Robotham's
evidence was, in fact, given in relation to a speck of polonium 210 of a
microcurie in radioactivity. Dr Kefford's evidence was less specific but
certainly involved the concept of the inhalation or ingestion of an airborne
particle of pure plutonium 239. I am satisfied that the question whether this
could happen lies within the realm of health physics rather than medicine.
154. Professor Doll, who gave evidence mainly in the field of epidemiology,
an area to which I will refer later, was fully qualified by learning and
experience to speak on the medical aspects of radiation and cancer. He was
not prepared to give any opinion as to the possibility of such an inhalation
or ingestion. He regarded it as being in the field of health physics. Other
medical experts in the case gave evidence to the same effect. I am satisfied
that the opinion expressed by Dr Kefford lay outside the field of his
expertise and, accordingly, I give his view little weight.
155. It was, however, well within Mr Davy's field. He was quite positive
that the inhalation or ingestion of such a pure speck or particle of plutonium
239 was not something that could occur in nature. At most such inhalation or
ingestion would be of particles of dust or dirt to which some atoms of
plutonium 239 could adhere. Accordingly, the question was always one of
estimation of dose measured in rems. Unless the amount of material received
into the body carried with it a radiation dose at a level accepted as
hazardous, then the exposure could not be regarded as a harmful one. I accept
Mr Davy's evidence in this regard. Indeed, I prefer his evidence to that of
Mr Robotham wherever there is a conflict between the two.
156. I am unable, upon the scientific evidence, to find that Cubillo was
exposed to a hazardous level of plutonium 239 whilst involved in the retrieval
of the tower components.
157. I come, then, to the Taranaki sweeping operation. Did the removal by
Cubillo of his respirator and the wiping of his face, in the circumstances
that I have found, carry with it, on the scientific evidence, a risk of
inhalation or ingestion of plutonium 239?
158. Both Mr Robotham and Dr Kefford expressed the view that Cubillo was
exposed to such a risk. Dr Kefford's view was founded, primarily, on the
facts that the area was contaminated by fallout from the Biak detonation, that
Cubillo was exposed to dust and dirt from the surface of the ground where the
fallout had occurred, that his clothing was clearly contaminated and that he
had introduced the dust and dirt to his mouth and nose by wiping perspiration
from his face. These facts, coupled with Dr Kefford's espousal of the
"particle" theory, led him to infer that Cubillo had received plutonium 239
into his body. Mr Robotham was also impressed by these facts. In addition to
them, he undertook some calculations which led him to assert that Cubillo was
significantly at risk from exposure to plutonium 239 during this operation.
These calculations were hypothetical in nature, not being based upon any
actual measurements made at the time or in relation to the fallout from the
Biak detonation upon the Taranaki site.
159. Mr Davy, on the other hand, made calculations which were based upon
available measurements. He did not criticise Mr Robotham's methodology, but
expressed the view that his results were flawed because he had proceeded upon
erroneous assumptions. Relying on these assumptions Mr Robotham had arrived
at an estimate of Cubillo's exposure to alpha emitters in the course of the
sweeping-up operation of 1,000 millisieverts, this exposure being due to
inhalation or ingestion of plutonium 239 and being significantly high. It was
based upon an estimate that 10% of the radioactivity present in dust
resuspended into the air during the clean-up was due to the presence of the
plutonium 239. This was purely an estimate and was heavily challenged by Mr
Davy.
160. Mr Davy, in fact, went to considerable lengths to arrive at a view of
the extent of plutonium 239 present in the fallout from the Biak detonation.
In doing so he quite clearly paid careful regard to records relating to
surveys of radiation in the area which were not considered at all by Mr
Robotham. Mr Davy was able to make useful comments based upon his involvement
in the clean-up operations at the Maralinga site.
161. As has been mentioned, the long half-life of plutonium 239 means that
measurements of its presence in the area of Biak and Taranaki made many years
after the Biak explosion would not and do not differ from measurements made
shortly after it. In theory, therefore, measurement by any acceptable means
of the level of plutonium 239 in the area would give a clear indication of the
extent to which it was present after the test in 1957. However, the situation
has been complicated by the fact that the Vixen B trials, which were conducted
some time after the Antler trials, further contaminated the Taranaki area with
plutonium 239. These trials, however, did not contaminate the whole of the
area previously contaminated by the Biak detonation. Consequently, part of the
area between the Biak ground zero and the Taranaki site still contains only
the plutonium 239 that was deposited by the Biak detonation. This fact has
enabled significant calculations to be made. I accept, from Mr Davy's
evidence, that it is possible to accurately measure, by established scientific
means, the amount of plutonium 239 remaining in the relevant area.
162. The distance from the Biak ground zero to the Taranaki site is 2.7
kilometres. An aerial survey conducted in 1990 as an adjunct to reporting on
the rehabilitation of the former nuclear test sites determined that "deposited
plutonium 239 could not be delineated by the aerial survey more than 1km from
ground zero for Biak. The limit of detection at this point equates to about
60kBq/m2 (1.6uCi/m2) and the level of deposited pu/239 would be expecte d to
drop off further in the 2.7km separating Biak from Taranaki".
163. Mr Davy was asked what he could say about the concentration of plutonium
239 which could be expected as distance from the Biak ground zero increased.
He gave the following answers:-
"... the plutonium is formed mainly by nuclear reactions
within the case of the weapon. It is an integral part, its
formation is an integral part of the nuclear detonation, and
therefore it will be distributed in a constant ratio to all the
other fission products, and as - just from the point of view of
spreading out, you get a reduction in the density of fission
products as you move further and further away from the point of
detonation, so too will you get a reduction in the amount of
plutonium 239 on the ground as you move further and further away
from the point of detonation.
So, in this case we know that 1 kilometre from the ground zero
from Biak, the activity is 1.6 microcuries per square metre, is
that right?---Correct.
We know that, in fact, there is 2.7 kilometres from Biak to
Taranaki?---Correct.
What does that say about the level of activity which one would
expect at Taranaki in relation to the 1.6 microcuries per square
meter 1 kilometre from ground zero at Biak?---You know for
certain it will be less."
164. Mr Davy went on to say that it would not be proportionately less, there
being no simple relationship with distance. In fact, the amount of dispersed
plutonium 239 dropped off far more quickly than would be expected from "just
straight distance".
165. Mr Davy indicated that, although the Biak site had been cleaned up in
1964, the area where the reading had been taken had not been touched in that
clean-up. As a result the reading obtained was a clear indication of the
level of plutonium 239 present at the time of the Taranaki sweep-up. He also
indicated that the Taranaki detonation would not have had any effect upon the
area where the reading was taken. Nor was it affected by the subsequent Vixen
B firings. Consequently, the reading of 1.6 microcuries per square metre 1
kilometre from the Biak ground zero, provided "an upper bound" for
calculations of the level of plutonium 239 deposited at Taranaki by the Biak
explosion.
166. Mr Davy also said, in relation to the dispersion of plutonium 239:
"...the formation of the majority of the plutonium 239 is by a
nuclear reaction which is part of the nuclear detonation within
the case of the weapon, and over and above that there's a small
part that is unconsumed plutonium from the weapon itself, but it
is explosively dispersed in the same way as all the mixed fission
products, and it is not physically possible to have plutonium by
itself. It would always have to be along with other fission
products that were formed at the same time."
167. As a result of this, Mr Davy was able to indicate that there would be a
similar proportion of plutonium 239 to be found amongst the general fission
products (some 150 in number) at the Taranaki site after the Biak explosion.
He also stated, and I accept, that the result of research made it "technically
feasible and quite proper to relate the quantity of plutonium 239 on the
ground from the known amount of mixed fission products on the ground". He
also said that "for any detonation there is a very specific relationship
between the amount of plutonium and the amount of mixed fission products and
it is a relatively small number - and if you do not detect mixed fission
products with an efficient detector then you can be very confident that there
is no likelihood of inhalation or ingestion of plutonium".
168. This was a very significant consideration, having regard to the testing
done by the health physics personnel to detect the presence of iodine 131 in
the thyroid glands of men involved in the Taranaki sweep-up. As indicated
earlier, iodine 131 is a fission product which rapidly finds its way into the
thyroid if it has been inhaled or ingested. From the records, Mr Davy
inferred, reasonably in my view, that the four persons tested in this way were
the drivers of the vehicles. This was on the basis that the drivers would
have been the persons most exposed to radiation during the operation. There
was no iodine 131 detected in their thyroid glands. This clearly indicated
that they had not inhaled or ingested plutonium 239 either. As it is
reasonable to infer that Cubillo would have been less exposed than a driver
then, a fortiori, there is no indication that Cubillo was exposed to any risk
of inhalation or ingestion of plutonium 239 during the sweep-up operation. Mr
Davy's evidence was very firm that the absence of iodine 131 is a clear
indication that none of the potential airborne radionuclides resulting from
the detonation have entered the physiological system of the person tested. I
accept this view.
169. Mr Davy also approached the question of Cubillo's exposure using similar
methodology to that adopted by Mr Robotham. In the process, he exposed,
accurately in my view, the errors that had entered Mr Robotham's analysis by
reason of his flawed assumptions. I do not propose to set out this part of Mr
Davy's evidence. Rather, I will record Mr Davy's own analysis and the
conclusions of his analysis in relation to exposure, with accompanying
comments on Mr Robotham's evidence where appropriate.
170. Mr Davy commenced his analysis by selecting an appropriate dosimeter
reading for the Taranaki sweep-up. Whereas Mr Robotham had accepted Mr
Cubillo's alleged reading of 0.3 rem, Mr Davy had recourse to the actual
dosimeter reading recorded for Mr Cubillo. He also had regard to Cubillo's
film badge reading for that day. The relevant dosimeter reading for Cubillo
was 0.1 rem whilst the gamma dose recorded by his film badge was 0.07 rem.
The highest dose for the day recorded by any person involved in the clean-up
was 0.18 rem. Mr Davy applied in this calculation as in all other calculations
made in relation to the case, a philosophy which he described as that of
selecting "the upper bound". Accordingly, he accepted for the purpose of his
calculations the figure of 0.18 rem as an indication of the gamma dose
recorded by a dosimeter worn at waist level. He had regard to Mr Cubillo's
height and accepted that the dosimeter would be recording at a level of
approximately one metre above ground.
171. This figure provided him with the basis to make a calculation of the
density of gamma surface contamination which would be required to produce such
a dosage reading at such a level above ground. Mr Robotham had selected a
conversion factor based upon tables which, in Mr Davy's opinion, was more
appropriate to "a reactor core at equilibrium burn-up" than "for a weapon
where you have the complete range of short lived and long lived fission
products". Mr Davy selected a conversion factor appropriate to the explosion
of a nuclear weapon and a resulting radiation field 48 hours after explosion.
I am prepared to accept that Mr Davy's approach was the correct one. It has
the effect of reducing Mr Robotham's figure by a factor of three.
172. These adjustments to Mr Robotham's approach led Mr Davy to conclude that
Mr Robotham had overestimated the degree of surface contamination by a factor
of about 14 "with the same reduction applying to his estimate of airborne
concentration resulting from resuspension of the surface contamination". Mr
Robotham's calculation had produced "a gamma surface contamination level of
about 10 -2Ci/m2".
173. It was then necessary to apply "a resuspension factor" in order "to
relate the activity on the surface of the ground to that which can become
airborne and breathed in". Resuspension factors are arrived at empirically.
There was, in fact, no direct measurement made of any such factor during the
Taranaki sweep-up operation. However, by having regard to factors established
in similar situations in the Buffalo series, it was possible to make a
reasoned guess at an appropriate factor to be applied in the Taranaki
situation. Mr Davy also had regard to what Major McDougall had noted as to
features of the dust stirred up in the Taranaki operation.
174. It was also necessary for Mr Davy to consider the nature of the activity
which could become suspended. In particular, it was necessary to arrive at a
judgment as to the relevant quantities of plutonium 239. Mr Robotham had
simply hypothesised that plutonium 239 would constitute 10% of the airborne
material.
175. Mr Davy, on the other hand, had regard to the measurements available as
to the presence of plutonium 239 at the one kilometre distance from the Biak
site which "had to be less than 1.6 microcuries per square metre of plutonium
239". According to Mr Davy's expert opinion this figure had to be further
decreased by "a factor of 10 down to take into account research published in
America relating to plutonium 239 used in particular types of weapon. This
reduced the relevant figures to something between 0.1 and 0.2 microcuries of
plutonium 239 per square metre". On the "upper bound" philosophy Mr Davy
selected the higher figure. This in turn required a very substantial reduction
in the dose figure for plutonium 239 which Mr Robotham had arrived at on his
calculations. The appropriate reduction was 1/625. The result was that the
estimated dose received by Cubillo during the Taranaki clean-up due to the
presence of plutonium 239 in the suspended material was necessarily reduced
from Mr Robotham's figure of 1,000 millisieverts to 1.6 millisieverts. The
further correction factor of 10 was then applied to this figure resulting in a
dose estimate of 0.16 millisieverts which Mr Davy, on the "upper bound"
philosophy, was prepared to increase to 0.2 millisieverts.
176. I accept Mr Davy's computation as indicating the upper limit of dose
likely to have been received by Cubillo by way of inhalation of plutonium 239
during the work at Taranaki. It may be noted that this calculation assumes
the absence of a respirator.
177. There remains the question of whether Cubillo could have ingested any
plutonium 239 by transferring dirt and dust into his mouth when he wiped his
face in the manner previously described. Mr Robotham only deals with the
alleged risks of this activity in general terms. Mr Davy approaches it
differently. The matter was directly raised with Mr Davy in cross-examination
in the following passage:-
"...why would it not be possible for Mr Cubillo to ingest an
atom of plutonium 239 when wiping his face, brow, with his glove
to remove perspiration?---I would think that the transfer of
surface contamination from the glove to become surface
contamination on the lips, albeit a very reduced level, is a
feasible - a feasible process and I would accept that you could,
by licking your lips, ingest some of that dust. Is that what you
are asking me?
And in relation to that, if ingested, we do not know at this
stage the dose that was ingested if it occurred?---I can't agree
with that statement.
Why do you not agree with that statement?---I would say that the
knowledge of the weapon, the knowledge of the process of
deposition of fission products, the knowledge of the formation of
higher isotopes of uranium and their subsequent decay into
plutonium, predetermines the existence of a series of ratios
which can then be used to quantify, albeit, in an upper bound
way, the dose that could result from the hypothesis that you have
just put. And I would add the point that as I put in evidence
that the transfer of a plutonium compound, a plutonium oxide
compound, across the gut wall, is extremely small, 0.001 per cent
and 99.999 per cent of that plutonium that you envisaged being on
some of the dust on the lip would be passed straight out."
178. I shall return to the proposition in the last sentence later in these
reasons. Mr Davy was pressed with the possibility that some significant
amount of plutonium 239 could be ingested in this way. He did not accept the
suggestion. It was put to him that his calculations did not "deal with the
situation ... of just, say, one occasion when he is wiping his glove, his
contaminated glove, across his face and lips". It was put that, in such
circumstances, "we do not know how many atoms he would have ingested or could
have ingested". Mr Davy's answer was:-
"One way of doing that, and it's a standard Health Physics
approach, and you could have asked Mr Robotham to do it, is to
estimate the area of the lips, not a very hard parameter to
estimate, you can estimate the layer of dust on the lips that
leads you to the belief that your lips need licking and that's
not a terribly difficult parameter to provide your estimate for,
and you can work through the arithmetic and you'll end up by
concluding that this scenario no matter how spectacular it may
sound is not significant compared with the total dust loading
that arises with a resuspension factor of 10 to the minus 4 ...
The glove scenario is not a significant scenario, I'm sorry."
179. Later, Mr Davy had this to say in relation to this topic:-
"Perhaps if I could make my point a little clearer. If you
assume that he wore no respirator at any time then I have stated
that if you look at experiments on resuspension factors then the
amount of dust you would inhale and ingest by working in an area
where you have got a resuspension factor of 10 to the minus 4
would swamp that scenario of transferring it from the glove.
Now, if you wore your respirator at all times when you're exposed
to contaminated dust and the only time you took your respirator
off was when you're in a relatively uncontaminated area that was
upwind of the sweeping operations so that you can't inhale dust,
then of course the scenario of getting something off your glove
is obviously greater than inhaling nothing, but it is not
significant in terms of total activity.
HIS HONOUR: When you say total activity you mean the amount of
radioactive material that may have been ingested?---To lead to a
significant risk, yes.
To lead to any risk from that amount of material?---Yes."
180. I found Mr Davy's evidence on this matter quite compelling. Contrary to
the evidence of Mr Robotham and Dr Kefford in relation to the possibility of
ingestion in these circumstances, I am not prepared to attribute any
significance to the fact that Cubillo may have wiped his face with a
contaminated hand or glove. I accept Mr Davy's evidence as to the "upper
bounds" which can be applied to the inhalation and ingestion of plutonium 239
by Cubillo at Taranaki. The question remains, of course, whether the amount
that might have been inhaled or ingested, extremely small as it was, could,
nevertheless, have some bearing upon Cubillo's later development of renal cell
cancer. This matter has been dealt with in the evidence as a question of
health physics, oncology, and epidemiology. I shall now consider the health
physics evidence.
EFFECT UPON KIDNEY OF INHALATION/INGESTION OF PLUTONIUM 239 - HEAL TH
PHYSICS EVALUATION
181. This topic can be dealt with fairly briefly as, in the upshot, there is
no conflict between the evidence of Mr Davy and Mr Robotham. The evidence of
both is based upon research material, the validity of which is fully accepted
in the scientific community. This material comprised certain tables and an
associated tape devised by the International Commission on Radiological
Protection (ICRP). The tables, which were produced in an eight volume set in
1970 and described as "ICRP 30 - Limits for Intakes of Radionuclides by
Workers", incorporated all data which had been established since 1955 when the
concept of the existence of critical bodily organs for specific radionuclides
had been introduced into health physics. The critical organ is that organ
which receives the highest dose of an ingested or inhaled radionuclide as a
result of the concentration of the radionuclide in that organ, the mode of
decay of the radionuclide and the size of the organ. For instance, bone is
the critical organ for "bone seekers" such as radioactive calcium, radium,
strontium, uranium and plutonium 239.
182. In ICRP 30 the main addition was the incorporation of a factor to
account for the radiosensitivity of the various organs. This refinement was
possible as a result of the continuing studies on Japanese persons who had
survived the atomic bombs. The tables were very extensive. However,
apparently because of considerations of size, not all material was published
in this form. ICRP also kept in the form of recordings on tape a great deal
of information in relation to radionuclides and target organs which was seen
to have only limited application. The material kept on tape was, however,
readily accessible to anyone interested.
183. Mr Davy gave evidence in relation to this material. He stated that in
relation to plutonium 239 the ICRP tables simply do not mention the kidney as
a potential target organ. To obtain any information in this regard it is
necessary to have recourse to the tapes. Mr Davy then considered the
information in the tapes in relation to his calculated dose of 0.2
millisieverts of plutonium 239 received by Cubillo at Taranaki. According to
his unchallenged calculation from the tapes, the dose to the kidney through
ingestion of this quantity of plutonium 239 would be 10-12 rem which is, as he
said, "a very very small number". He stated that "virtually none of any
ingested or inhaled plutonium ends up in the kidney. It is not possible to
irradiate the kidney by ingesting or inhaling even reasonable quantities of
plutonium".
184. The figure for inhalation of plutonium 239 was similarly small. By way
of illustration Mr Davy compared these doses to what might occur in every day
circumstances. He said "in terms of spending a period of time in an ordinary
residence it is less than a second. The actual radon given off by those brick
walls in your house, you are there for less than a second and you have
exceeded by a fair degree the doses we have just been talking about".
185. Mr Davy further pointed out, in a passage already quoted, that 99.999%
of ingested plutonium 239 would not pass through the gut wall into the human
bloodstream, but would simply be harmlessly excreted. Furthermore, in relation
to plutonium 239 passing from the blood to the kidney, there was an extra
discrimination factor of 100, "so in terms of not going to the kidney 99.99999
is what we are up to".
186. In addition to this evidence, Mr Davy supplied a highly complicated and
sophisticated calculation, which was totally unchallenged, and which took into
account the Baker Inventory Factor referred to earlier. It also took into
account factors used in the calculation previously referred to in relation to
Cubillo's exposure to plutonium 239 at Taranaki. The result of the
calculation was a dose to the kidney of 0.002 rem. This was 35 times less
than the radiation dose which the kidney would receive in a year from natural
background radiation.
187. Mr Robotham did not deal with this question in his evidence-in-chief.
However, he was cross-examined in relation to it. He agreed that ICRP did not
consider the kidney as a target organ for plutonium 239. He had heard of the
ICRP 30 tapes but had not used them. On being shown the relevant portions of
the tapes he agreed that of 100,000,001 units of plutonium 239 inhaled
100,000,000 would go to the lung and only 1 to the kidney and that the
position was similar in relation to ingestion. The following exchange then
occurred:-
"Is it then the situation, Mr Robotham, that we really can
discount the relevance of all the relevance we heard about
plutonium 239 and Mr Cubillo in this case, given Mr Cubillo's
renal cell carcinoma?---Yes, I would say that the ingestion or
inhalation of plutonium under such circumstances would contribute
only a small dose to Mr Cubillo's kidney.
Small? We are talking about differences of between 8 million and
10 million?---Yes.
When you are talking about those differences, is that what you
mean by a small difference?---It's extremely small.
It is infinitesimal, is it not?---I'll grant that, yes."
188. He was then cross-examined as to the various activities engaged in by
Cubillo at Maralinga, and as to whether they could now be relied upon as
occasions when he could have suffered radiation harm to his kidney. He agreed,
in effect, that where plutonium 239 could be the only active agent, as opposed
to polonium, the activity could be removed from consideration. He agreed that
the cleaning of the Taranaki site was "gone". Similarly, the dismantling of
the camera tower. The drilling of the post-holes and the other holes had no
relevance, assuming, as was the case, that Cubillo could not have been exposed
to polonium during those activities. Also, the eating of food cooked on
shovels was irrelevant. In the upshot, Mr Robotham agreed that plutonium 239
could be excluded as having any causative effect whatsoever upon Cubillo's
renal cell cancer. Only the possible inhalation or ingestion of polonium 210
remained relevant as a cause.
189. In the circumstances that polonium 210 as a potential cause of Mr
Cubillo's damage was abandoned, it would appear that at the end of Mr
Robotham's evidence the applicant had no case. However, Cubillo gained some
support from the evidence of Dr Kefford, the only medical witness called on
his behalf. I turn, therefore, to the medical evidence.
THE MEDICAL EVIDENCE
190. Dr Kefford, an oncologist, supported the thesis that the ingestion of
plutonium 239 could have caused Mr Cubillo's subsequent renal cell cancer. He
based this theory on the likelihood of Cubillo having swallowed a particle of
plutonium 239 whilst working in the dusty contaminated conditions of the
Taranaki sweep-up. He said that the ingestion of a very small particle of
plutonium 239 would be sufficient to cause carcinogenic changes in the kidney
of persons of a particular genetic make-up. Radiation would cause mutation of
tissue and adversely effect tumour suppressor genes which operate to prevent
the formation of tumours by cell division.
191. It is not entirely clear whether Dr Kefford is postulating a particle of
pure plutonium 239 as he also speaks in his evidence of the deleterious effect
of specks of radioactive dust. Insofar as his views are reliant upon a
concept of the ingestion of a particle of pure plutonium 239 I reject them. I
am, indeed, satisfied that the existence or otherwise of such particles
resulting from fallout from a nuclear explosion is a matter in the field of
health physics. In this regard, I have been amply satisfied by the evidence
of Dr Davy that such particles do not in fact occur other than in controlled
conditions.
192. However, I have come to the conclusion that Dr Kefford's evidence in
this regard amounts really to an assertion that extremely small amounts of the
isotope, such as might adhere to the surface of a speck of dust, would be
sufficient, if inhaled or ingested, to induce carcinogenic effects in the
human kidney. So seen, his evidence espouses a thesis that very low doses of
radiation can cause renal cell cancer and that such a low dose can be
administered by the introduction into the area of the kidney of a small
quantity of an alpha emitter which, in this case, can only be plutonium 239.
193. Considerable criticism has been levelled at Dr Kefford's evidence by
counsel for the Commonwealth. I was not impressed with him as a witness. He
tended to be abrasive, partisan, and dogmatic. He not infrequently appeared
to assume the role of an advocate rather than of an impartial expert. I am
not prepared to find, however, that he was totally lacking in credibility
because of these blemishes on his testimony. His expertise in oncology
requires that his opinions be carefully considered in conjunction with the
rest of the expert medical testimony in the case. Moreover, because of the
final state of Mr Robotham's evidence, it is Dr Kefford's testimony that is
the linchpin of the applicant's case on causation.
194. Dr Kefford furnished reports and gave oral testimony. His first report
is dated 25 November 1994. His second report is dated 6 March 1995. The
first report followed upon an examination of Cubillo. The second contains
comment apparently based upon statements of the applicant's lay witnesses and
copies of the respondent's "epidemiological evidence" provided to Dr Kefford.
I set out two passages from the first report:-
"Between 1957 and 1958 he worked as a Field Engineer in the
Royal Australian Engineer Corp of the Australian Army at the
Maralinga Test Site for British Atomic Weapons. At this time he
was aged 28-29. His precise movements, duties and radiation
exposure during this time has been well documented by others and I
shall not enlarge upon it here, except to say that he was clearly
exposed to significant alpha emission, by inhalation, slight to
possibly significant beta exposure by inhalation, and moderate
gamma emission by external exposure. It would appear that the
most hazardous task in which he was involved was working in the
Kittens areas (Naya) where large quantities of Polonium 210 had
been dispersed. It is also clear that his protection was minimal
to non existent at time despite adequate information at the time
about the harmful effects of exposure to ionising radiation, and
that had effective control procedures been implemented his
exposure to radiation hazards during this time would probably have
been minimal. His internal exposure may have been as high as 20Sv
or more, depending on the quantity of Po 210 inhaled."
(In his oral testimony Dr Kefford observed that the figure 20 was a
typographical error and should have been 2.0. Also Po 210 (polonium 210)
should have read Pu 239 (plutonium 239).)
"The cause of Grawitz tumour (renal cell carcinoma) of the
kidney is unknown. Smoking is a definite risk factor and about
30% of renal cell carcinomas are caused by smoking. Heavy
radiation exposure of the type experienced by Mr Cubillo is
associated with the causation of this cancer as it is with most
human cancers, and the time lag of between 18 and 24 years
between exposure and induction, is consistent with a causative
link based on data from the Hiroshima bomb survivors. The high
incidence of renal cell carcinoma in patients examined with
thorotrast in the 1920's is attributed to its emission of alpha
and gamma radiation. To my knowledge alcohol abuse is not a
known risk factor for Grawitz tumours. I would regard the
occurrence of a Grawitz tumour in this man during his late
forties as being probably linked to his previously heavy
radiation exposure during the Maralinga tests".
195. The relevant portions of the second report read as follows:-
"I am appalled to read of some of the working conditions,
particularly the fact that the men working on camera towers very
close to the blast site used for the 1956 blasts had to remove
their respirators because of extreme heat. On Page 2 of Robert
Chasty's statement: 'we all removed our respirators, even the
English chap. We would wipe our faces with the back of our
gloves to wipe the perspiration off our brow and also to clean
the glass of the respirator so we could see we then put our
respirators back on again'. He states that they were not
monitored by health physics people during this time.
In relation to the BICC mast he also states 'the problems of
accidentally breathing or eating radioactive material were never
explained to me nor were the precautions to be adopted to prevent
the problems. There were times when we ate food and cooked it
near or on test sites particularly when we were doing the
star-pickets. It would have been in 1957 or so that we started
to cook food on shovels out near where we were working. I am
sure we were working in the forward areas at the time'.
It is clear that the great masses of epidemiological evidence
provided by overseas experts is irrelevant to this situation. It
is quite clear that the inhalation and ingestion of radioactive
material could have been extremely high, and therefore I am even
more convinced of my original statement that there is a high
probability that Mr Cubillo's renal cell carcinoma was caused by
exposure to radioactive material inhaled or ingested as a result
of his activities at Maralinga."
(Work in relation to the BICC mast was specifically excluded from the
applicant's case as carrying no relevant radiation hazard.)
196. It may be noted that Dr Kefford appears to have emphasised in these
reports the importance of the "heavy" nature of the alleged radiation
exposure. In this regard it is apparent from the reports and also his later
evidence that he had accepted as fact the level of internal dose of 2.0Sv,
which had been arrived at as a purely hypothetical figure by Mr Robotham. He
also emphasises the high risk factor involved in Cubillo's heavy smoking. He
accepts as "quite clear that the inhalation and ingestion of radioactive
material could have been extremely high". Finally, he dismisses "the great
masses of epidemiological evidence" as being clearly irrelevant.
197. Surprisingly, in view of the wording of these reports, in his oral
evidence Dr Kefford eschewed any reliance, in the forming of his opinion, upon
a "heavy" dosage of radiation. Indeed, he said that he regretted using the
word. He made it clear that he had no expertise in the field of radiation or
health physics and was totally reliant upon the material provided by Mr
Robotham in this regard. Furthermore, on a number of occasions he expressed
the opinion that the level of dosage received by Cubillo was not particularly
relevant insofar as the inhalation or ingestion of a small particle or speck
of alpha (and perhaps beta) emitting radioactive material would be
sufficiently carcinogenic when in proximity to Cubillo's kidneys to produce
his renal cell carcinoma.
198. He was not concerned with the problems arising from the information on
the ICRP tapes which had led Mr Robotham to exclude plutonium 239 from any
significance in the case. He agreed that those figures would indicate that in
the case of an inhalation of 100,000,000 plus one units of plutonium 239
100,000,000 "would go to the lung and one only would go to the kidney". He
disagreed, however, that "in terms of inhalation the kidney is not a target
organ". It was sufficient "that radiation producing substances are reaching
the kidney in minuscule amounts". This was because there is "no simple dose
relationship between radiation dose and carcinogenesis".
199. He expressed the opinion that the ICRP information applied only to
"distribution of dose to different organs, but said nothing as to
carcinogenesis". This would depend upon the "individual specific tissue
sensitivity to radiation". Accordingly, if an individual had a particular
sensitivity to radiation induced cancer of the kidney, the "minuscule" amount
of plutonium 239 which could reach it would, nevertheless, be sufficient to
initiate carcinogenesis. Dr Kefford further explained his approach by
reference to molecular biology. He gave evidence as to the mechanism by which
the radioactive particle acted as a cancer producing agent. He said:
"precisely what happens ... is that individuals with a
particular genetic make-up who are predisposed in certain tissues
to the effects of radiation undergo mutations, actual physical
base changes in the DNA of the cell of the tissue that is being
irradiated and that those mutations when they occur in genes that
regulate the cell cycle, release the cell from a negative effect
on cell growth, such that it goes into continuous cellular-like
division. ... these genes are called tumour suppressor genes and
they have only been recently discovered."
200. In a later passage Dr Kefford also spoke of radiation damage that could
be caused to other genes "which affect DNA repair". He said "all our cells
have a molecular machinery to protect us from DNA damage and if that machinery
itself is damaged by physical or radiating carcinogens then the cell is
particularly predisposed to another carcinogenic event".
201. In relation to the acknowledged deleterious effect of Cubillo's previous
smoking habit, Dr Kefford introduced the theory of synergism. He gave the
following evidence on this topic:-
MR PUCKERIDGE: If you could indicate what that is?---
Synergism means that the sum of the two components is greater
than the arithmetic sum, so that the effect of the two components
when given together is greater even than just the sum of the two
parts.
HIS HONOUR: One accelerates the other or - - - ?---Correct.
Perhaps you had better just tell me what is the relationship
between the history of smoking and the effect of the inhalation
or ingestion of a significantly radio-active particle?---It's a
very, very well established fact that - the best data comes from
radium miners who also smoke and their incidence of lung cancer
is much higher than the men to either only smoke or only exposed
to radium and so from that data, and there are many other
examples in the medical literature, there is strong evidence of
synergism in relation to carcinogenesis. In respect to the
kidney, the data is simply not available. We just don't know but
on the basis of carcinogenesis in other solid organs it seems a
very logical assumption to make. I am not aware of any
epidemiological evidence that addresses the point in relation to
cancer of the kidney."
He later said:
"There are two strong carcinogens acting here. It's impossible to
say which is more important but it is possible on the basis of
other epidemiology to say that having both acting together is far
worse that just having one by itself."
202. Dr Kefford dismissed as irrelevant epidemiology and the extensive
evidence of epidemiologists given on behalf of the Commonwealth, to which I
shall refer later. He expanded on his assertion as to their irrelevance in
the following passage:-
"Having read those reports, does it change your view in any
way?---It does not.
Do you have anything to say as to the relevance of those
reports?---Yes I do. I think one has to make a very clear
distinction between epidemiological studies and the very specific
and individual circumstances affecting one person. The study of
- the science of epidemiology is also removed from the recent
understanding of the molecular biology of the genesis of cancer
and for those two reasons I have serious reservations about the
conclusions of these reports.
HIS HONOUR: When you say a recent understanding could you be a
little more specific about that?---Yes, your Honour, I refer
specifically to the discovery that the causes of cancer in nearly
all cases of solid tumours of which renal cell carcinoma is one
are due to mutations in tumour suppressor genes and in genes
which regulate DNA repair."
203. He further expanded upon these statements by referring to "the important
point ... that individuals can be predisposed to carcinogenesis by their
genetic make-up". Such persons have a "particular predisposing genotype"
which, he said, was "fairly recent knowledge". He went on, as follows:-
"Now, it's an example of the fact that within our community
there are individuals who might smoke 80 cigarettes all their
life and never get cancer because they have a protective
constitutional genotype. There are other individuals who because
of the nature of their genetic makeup are predisposed to the
carcinogenic effect of radiation or carcinogens in the
environment such as cigarette smoke. Furthermore, this
constitutional makeup doesn't predispose to cancer as a whole but
to cancer in specific target organs. So that one person who
smokes might (get) cancer of the larynx and never get lung
cancer, another might get cancer of the bladder and never get
lung cancer. So that the molecular understanding of
carcinogenesis is at variance with epidemiological studies. All
that epidemiology can tell us is, it can identify in large
populations what are risk factors in the environment, that's all
it can do. It can't tell us any more about the precise quantity
of risk in an individual. For me to smoke five cigarettes a day
might be absolutely disastrous. Whereas in a population study,
it would appear to be a minimal risk. So I guess that's the
point."
204. In relation to Cubillo himself, Dr Kefford agreed that he could not
point to any evidence to suggest that he had any unique susceptibility to
radiation induced renal cell cancer. He said "all I can say is that I have no
evidence that Mr Cubillo has a particular susceptibility to radiation. I just
don't know, no one does, and there is no way of finding out".
205. Dr Kefford was extensively cross-examined and material of a
countervailing nature was put to him from the reports of expert witnesses to
be called in the respondent's case. There is no need to set out this material
in these reasons. I finally put to him the following question and received the
following answer:-
"Well, can I ask you this, because I have got to know, what
is the theory that you propound leading from Mr Cubillo's
exposure in his activities at Maralinga to plutonium or polonium
to his developing of a renal cell cancer some whatever it is, 20
years later ?---My theory is that during his activities in
Maralinga, particularly when he discarded radio protective
clothing, and particularly when he was doing duties such as
sweeping up contaminated sites with a circular broom and working
in contaminated areas and eating and so on, that on one occasion
or several occasions, wiping his hand with the back of his glove
or ingesting sandwiches or whatever, or breathing in that dust, a
particle of radioactive material entered his body, it circulated
through the blood stream, a large proportion of it was probably
distributed to his lungs and other organs as we have shown. A
small proportion of it was distributed to the renal tubules and
parenchyma cells and caused a carcinogenic mutation in a critical
tumour suppressor gene in a cell, and with the long induction
period known for that to become manifest as a detectable mass, it
took 18 years for that tumour to be clinically detectable and
furthermore that the fact that he was a heavy smoker may have in
some way as yet undetermined, predisposed to that carcinogenic
event through additional mutations in other genes within those
critical cells and therefore assisted the whole process, but that
part of it I don't know. It is equally possible that radiation
had nothing to do with it and that cigarette smoke and
carcinogens in it were sufficient to cause the event, however,
there is no other evidence of severe tobacco injury in the man,
but he was a heavy smoker. I don't know what was the most
important contributing factor, but both seem very plausible to
me."
206. He further said that an inhalation or ingestion of the isotope would be
quite sufficient to give a carcinogenic dose to the kidney, even if the
inhalation or ingestion occurred only on one occasion. However, in relation
to plutonium 239 as against polonium he appeared to be of the view that the
theory was on firmer ground if the exposure was more extensive. He gave the
following evidence:-
"Well, I would say certainly an eight hour period, based on
Robotham's calculations, to be absolutely confident, I suppose
you would say a two-day period of working in those dusty
conditions would give, given the distribution of plutonium to the
kidney, still a dose that would conceivably be carcinogenic.
So it is a dose that could be cumulative over a period of even a
day or so?---Sure.
So that one has the picture of it coming in particle by particle,
as it were, over a period of time and accumulating through the
distribution system and renal area?---Absolutely.
Kicking off this whole unfortunate process?---Exactly."
207. Dr Kefford's evidence, it may be said, is in conflict, in every
significant aspect, with the medical evidence and the epidemiological evidence
called on behalf of the respondent. Apart from that conflict it has some
obvious inherent difficulties. In the first place, despite his insistence
from time to time on the irrelevance of the size of the radiation dose, it is
quite clear that Dr Kefford has been influenced not inconsiderably in his
overall approach and assessment by the material of Mr Robotham's reports and
the general picture painted by the lay evidence. Mr Robotham's estimates,
which were entirely hypothetical, suggested a heavy dose of radiation in the
order of 2 sieverts. As I have found, the actual potential dose was very
significantly smaller. It is very difficult to reconcile the doctor's single
minuscule application of alpha emitter radiation with what he said in the
passage last quoted. Moreover, he made it abundantly clear that he had no
real concept of the effect of radiation from a health physics point of view.
I consider that he shifted ground on this topic from time to time in a manner
that betrayed a considerable absence of confidence in this area. Moreover, I
am left with a clear impression that he had in his mind, at all relevant
times, a picture of the applicant working in a dangerous, highly radioactive
dust cloud. This picture could readily enough be obtained from the lay
evidence and from Mr Robotham's report. The facts of the matter were,
however, significantly different as the evidence of Mr Davy has demonstrated.
208. However, Dr Kefford's evidence puts forward a somewhat beguiling theory,
for the testing of which, it is necessary to have regard to the evidence
called by the respondent.
209. It is convenient to commence with the evidence of Dr Richard Fox. Dr
Fox is a practicing oncologist with a most impressive curriculum vitae. Since
1985 he has been the Professor and Director of the Department of Haematology
and Medical Oncology at the Royal Melbourne Hospital and University of
Melbourne. He is an Honorary Consultant in cancer medicine at the Royal Prince
Alfred Hospital in Sydney and Honorary Professorial Associate at the Ludwig
Institute of Cancer Research, the Melbourne Tumour Biology Branch at the Royal
Melbourne Hospital. He was instrumental in the formation of the Australian
Cancer Network, a national body which deals with cancer issues at a national
level, cancer now being the major cause of death in the Australian community.
He has served on many learned committees and been an author or co-author of
numerous learned publications in relation to cancer, its causes and treatment.
He has had very wide experience in cancer research in the clinical, medical
and epidemiological fields. He has lectured extensively on cancer related
topics. He has been intimately involved in all issues relating to
understanding the significance of the relationship between tobacco smoking and
cancer and has followed for a considerable period of time the main scientific
literature in relation to this topic. Dr Kefford was one of his students in
the 1970s. He took issue with Dr Kefford's evidence in many major respects.
210. In the first place, he was entirely opposed to Dr Kefford's dismissive
view of the value of epidemiology in this case. He clearly held the view that
the material collected by way of epidemiological research is of fundamental
importance in the discernment of links between cancer in various parts of the
human body and agents to which the body is exposed. He rejected Dr Kefford's
opinion that epidemiology has been relegated to a minor insignificant role
because of advances made in the field of molecular biology. In his view,
which I accept, molecular biology is really only beginning to provide
explanations of connections that epidemiological studies have pointed to for
many years, particularly in the area of tobacco smoking and cancer. He stated
that the two fields of science are complimentary; it is not a matter of the
later superseding the earlier. In particular, Dr Fox positively disagreed
with any theory supposedly founded upon discoveries of molecular biology that
100,000,000th of a "speck" of the radionuclide plutonium 239 could reach the
kidney with carcinogenic effect, when the results of very extensive and
carefully controlled epidemiological studies point to the impossibility of
such an occurrence.
211. Dr Fox was asked to make specific comment on the following statement
made by Dr Kefford in his evidence: "... the causes of cancer in nearly all
cases of solid tumours are due to mutations in tumour suppressor genes and in
genes which regulate DNA repair". Dr Fox replied as follows:-
"Well, in general, most cases now of cancer are believed to
be due to mutations in various genes. These are either onco
genes which are genes that promote cancer or tumour suppressor
genes which have sort of been holding things in abeyance which
actually turns them into an onco gene, and as well there are
repair genes and a whole series of other genes that are involved
in control of cell cycle progression, etcetera, etcetera. It's a
very complex business and most cases of a particular malignancy
evolve over a long period of time and have to accumulate a series
of these mutations. But I do not know why this matter was raised
in terms of the relationship to the epidemiological reports. It
doesn't nullify, it just enables us to understand mechanisms by
which carcinogens can act."
212. He was then asked the following question and gave the following
answer:-
"Is there anything in particular about this point concerning
cancer being due to mutations that makes the Cubillo history
special or different in any way?---No, there's nothing that we
can see that's special about Mr Cubillo and as I said, there are
another 20 Mr Cubillo's out there with renal cell cancer and a
whole series of other cancers just on the fact that they are
Australians in this particular day and age. I think where Rick
(Kefford) has got to is, I really think he had for various
reasons concluded absolutely that Mr Cubillo's renal cancer was
due to radiation exposure and was then simply trying to explain
how radiation might have caused that."
213. I should perhaps indicate that the last sentence in this passage from Dr
Fox's evidence confirmed a view I had tentatively formed that a great deal of
Dr Kefford's evidence was rationalisation. He was seeking to support by a
process of reasoning a predetermined view.
214. Dr Fox made a clinical examination of Mr Cubillo on 13 December 1994. He
received a history consistent with what I have already recorded. Recent x-rays
of relevant areas were normal and Mr Cubillo was able to carry out normal
daily activities. He told Dr Fox that from age 16 he had smoked 20-40
cigarettes a day, stopping in 1982 after his kidney operation. At that stage
he was drinking "some 6-8 schooners of beer a day".
215. Dr Fox provided a report and gave oral testimony. He commenced by
considering the incidence of cancer in the general community, pointing to the
fact that in Australia there are approximately 60,000 new cases of cancer each
year, the incidence being closely related to age. The relevant statistics
indicate that "an individual in passing from the age of 50 to 59 has, on
average, a 1 in 20 chance of developing a cancer during that decade. In
moving from the age of 60 to 69 the risk doubles, i.e. a 1 in 10 chance, and
similarly, going from age 70 to 79 the risk doubles again". Accordingly, the
occurrence of cancer in a number of the ordinary population was predictable
without recourse to any particular category of causation. It is clear that Dr
Fox held the view that Cubillo's renal cancer could be accounted for in this
way.
216. However, on the basis of epidemiological studies which he regarded as
producing valid results, Dr Fox was able to posit the likelihood that
Cubillo's cancer was attributable to his heavy smoking up to the time that it
manifested itself in 1982. It may be remembered that in his first report Dr
Kefford said that "smoking is a definite risk factor and about 30% of renal
cell carcinomas are caused by smoking". In these circumstances, it is quite
unnecessary to set out in these reasons the detail to be found in Dr Fox's
report as to various studies which have implicated cigarette smoking as a risk
factor in the occurrence of renal cell carcinoma in men and women. He
instanced no less than six such studies. For instance, the study referred to
as the Sharpe Study published in the Canadian Medical Association Journal in
1989 found that smoking more than 20 cigarettes per day was associated with
the presence of metastatic renal carcinoma. Cubillo's consumption of
cigarettes had been well in excess of this for over 35 years before his
carcinoma was diagnosed.
217. Conversely, Dr Fox was satisfied that other important studies indicated
that there was no significant association between exposure to ionising
radiation and the occurrence of renal cell carcinoma. Of course, it has
already been observed in these reasons that the extensive research which
produced the information contained in the ICRP tapes had demonstrated the
absence of any such association.
218. Again, Dr Fox set out in his report and gave oral evidence of numerous
reported studies which point to this conclusion. Amongst these reports are
those undertaken in respect of atomic bomb survivors of Hiroshima and
Nagasaki, a cohort study of great scientific renown referred to as the Life
Span Study, to which I will refer later. Also included were the studies
conducted by Sir Richard Doll, generally regarded as the world's most esteemed
cancer epidemiologist, of participants in the United Kingdom nuclear weapons
tests in the Pacific which, of course, included the Maralinga tests. Both
Professor Schull, who was charge of the Life Span Study, and Sir Richard Doll
gave evidence in these proceedings to which I shall refer later. The result
of these studies was that there was no appreciable risk of kidney cancer from
exposure to ionising radiation.
219. Dr Fox summed up the "relative risk of induction of cancer of the kidney
by radiation versus smoking" in the following way:-
"Based on the data from survivors from the atomic bomb
explosions in Nagasaki and Hiroshima, and other groups exposed to
radiation, the risk of renal cancer is relatively very low or
non-existent. However, there is a consistent association of
induction of kidney cancer and smoking depending on the intensity
and duration of smoking a factor of two to three-fold."
220. He went on the express the opinion in relation to kidney cancer that:-
"In the final analysis, the scientific data reviewed above do
not show ionising radiation to be a significant cause of
carcinoma of the kidney. In particular, the atomic bomb data
from Nagasaki and Hiroshima when one removes bladder cancer from
the analysis, shows a slight but not significant increase. In
particular, follow up studies of UK participants in the
Australian A-bomb tests demonstrate there was no increased risk
for development of kidney cancer. Therefore, in Mr Cubillo's
case I cannot support the contention that his potential exposure
to radiation in the atomic bomb testing in Australia was
responsible. He clearly was exposed to heavy cigarette smoking
for a long duration and this, by a factor of up to two-fold,
increased his risk of the development of cancer of the
kidney."
221. Furthermore, Dr Fox rejected Dr Kefford's proposition that in the case
of the induction of renal cell carcinoma there could be a synergistic effect
between prior heavy tobacco consumption and the effect of low dose radiation.
He expressed the view that synergy was absolutely irrelevant to the present
case. Whatever might be the situation as to some interaction between smoking
and radiation in the case of lung cancer, Dr Fox was of the view that there
was no basis for postulating anything similar in the case of renal cell
carcinoma. This was because, in his words, "you don't have a radiation effect
in the first place". He said, in relation to the synergy theory of Dr
Kefford, "why develop a special theory for Mr Cubillo? I mean it just doesn't
make sense that it would have picked out Mr Cubillo and you have this
elaborate theory when there is no evidence that it is carcinogenic - that
renal cancer can be caused by radiation in the first place".
222. Dr Fox also refused to ascribe any relevance to Dr Kefford's proposition
that Cubillo might have some particular susceptibility to the development of
renal cell carcinoma through exposure to ionising radiation. In his view,
there was simply no evidence of radiation causing renal cell carcinoma, nor of
the existence of any particular individuals that were prone to develop
radiation induced cancer.
223. Dr Fox was an impressive witness. He was not cross-examined on any of
his evidence. I prefer his evidence to that of Dr Kefford in all areas in
which they are in conflict.
224. The next witness to whom I should refer is Professor Brett Delahunt, an
anatomical pathologist whose present position is Associate Professor of
Pathology at the University of Otago, New Zealand. He is a urogenital
pathologist and a recognised expert on renal cell cancer. He also has a most
impressive curriculum vitae and has been the author and co-author of a very
large number of learned papers in the area of his specialty. I found him to
be an enormously impressive witness. By use of appropriate diagrams he was
able to explain clearly the nature and situation of a renal cell carcinoma in
a way which cast considerable doubt upon the accuracy of Dr Kefford's evidence
in this regard. He provided a comprehensive report and gave oral testimony.
He had had access to Cubillo's hospital records and the medical notes in
relation to his nephrectomy operation in 1982. He had also examined 11 tissue
sections taken from Cubillo's tumour, adjacent kidney and associated
structures. He also viewed the histological slides relating to the metastatic
carcinoma in Cubillo's lung. He was satisfied that this tumour had spread
from the original renal cell carcinoma.
225. Professor Delahunt gave an exposition of factors suspected to play a
role in the aetiology of renal cell carcinomas, the details of which need not
be repeated here. Significantly, however, he stated his belief that the fact
that Mr Cubillo had been a heavy smoker for a large period of his life was "a
highly significant factor in the development of Mr Cubillo's tumour".
226. Professor Delahunt gave specific consideration to radiation exposure as
a risk factor for renal cell carcinoma. In doing so he provided a summary of
the more important studies as to the carcinogenic effects of ionising
radiation. The Professor regarded the Life Span Study of the Japanese A-bomb
survivors as one of the most, if not the most, important epidemiological study
ever undertaken. He spoke of it in his report as follows:-
"Long term follow-up of survivors from the atomic bombs
dropped on Japan at the close of the Second World War provide
valid data concerning risk of developing cancer associated with
exposure to radiation. There is almost complete case
ascertainment of deaths from the 120,000 individuals registered
for follow-up in 1950 and radiation dosage has been estimated for
95% of registered subjects.
In these studies increased risk for renal cell carcinoma was not
observed although radiation dosage of 1 Gy was associated with a
relative risk of 2.0 for malignancies of the urinary tract.
Urinary tract malignancies consist predominantly of transitional
cell carcinomas which are tumours of the lining epithelium of the
renal pelvis, ureter and bladder totally unrelated to renal cell
carcinoma.
The 1994 update of the Radiation Effects Research Foundation Life
Span Study reported no significant radiation related risk for
cancers of the kidney for survivors of the Nagasaki and Hiroshima
atomic bombs."
227. Similar results were referred to in other studies. I shall not set them
out here.
228. Professor Delahunt also dealt with renal tumours induced by radiation in
experimental animals. He had sought to induce renal tumours in experimental
mice and rats. The use of ionising radiation for this purpose had, however,
proved unsatisfactory because the doses that were required were so high that
complete failure of the animal's physiological system occurred prior to the
development of any tumour of the kidney. In this regard he gave the following
evidence:-
"Well, does that say anything about radio-sensitivity of the
kidney in these animals?---Yes, the kidney is not a
radio-sensitive organ. It is an organ that is perhaps a little
more sensitive than the heart, but the heart is an organ which is
not radio-sensitive and if you irradiate it, tumours don't occur.
If you irradiate the kidney at very very high levels you will
produce tumours, but you'll produce few tumours and the level of
irradiation is such that it effectively destroys the substance of
the kidney."
229. It was also ascertained that the level of radiation required to produce
tumours was associated with sclerosis or scarring of the kidney which implied
"that the damage to the kidney by the radiation is such that the blood supply
is compromised and as a result of that scarring occurs and the normal
structures of the kidney are lost". This knowledge, gained from animal
experiments, could be transposed to human beings because of a basic similarity
of the organs. A high dose of irradiation to the human kidney would be
productive of similar sclerosis quite visible under the microscope and
associated with the loss of renal function. An examination of the slides of
Cubillo's kidney disclosed no sclerosis and, consequently, Professor Delahunt
concluded that there was no evidence that the kidney had been exposed to high
doses of radiation.
230. In general, Professor Delahunt was of the opinion that the most
important aetiological factor in the development of renal cell carcinoma
appeared to be cigarette smoking, that being the one predisposing factor for
which there was consistent and strong evidence. Conversely, there was little
evidence to associate radiation with the development of renal cell carcinoma
except in very high doses, such high doses being associated with sclerosis of
the kidney.
231. He considered that, in Cubillo's case, cigarette smoking was "a
significant cause of his renal cell carcinoma". Alcohol consumption was also
a possible contributory factor. He emphasised by reference to particular
experiments performed upon laboratory rats that "the doses required to induce
tumours that resemble renal cell carcinoma in animals were really quite high
in comparison, especially to the radiation doses which were recorded as being
received by the applicant". Also, sclerosis developed before any tumour
formation occurred, the tumours occurring over a time span comparable, having
regard to the much shorter life of a rat, to the time span required for the
development of such tumours in a human being. It was the Professor's opinion,
quite contrary to that expressed by Dr Kefford, that had Cubillo received a
radiation dosage sufficient to cause renal cell carcinoma, he would have
suffered a severe systemic reaction involving radiation burns and possible
hair loss and loss of immune function together with obvious sclerosis to the
kidney. In the absence of any of these features, Professor Delahunt did not
believe that ionising radiation had been a contributing factor to Cubillo's
renal cell carcinoma.
232. A number of passages from Dr Kefford's evidence were put to Professor
Delahunt for his comment. I do not propose to set this material out in these
reasons. The answers he gave completely satisfy me that I should prefer the
evidence and conclusions of Professor Delahunt to those of Dr Kefford wherever
they are in conflict. His evidence, in my opinion, shows that Dr Kefford's
theorising was shallow, unsubstantiated and unacceptable.
233. Many of the highly qualified scientists who gave epidemiological
evidence on behalf of the respondent in this case were also qualified to
express medical opinions. I do not propose to set out these opinions, except
to note that none of the opinions given supported Dr Kefford's views. They
either cast severe doubt upon them or refuted them. However, because of his
extraordinary eminence in the field of epidemiology and cancer research, I
shall refer to some of the evidence given by Professor Doll.
234. The Professor gave evidence as to the risk to the kidney of inhalation
or ingestion of plutonium 239. He agreed that the ICRP tapes indicated that
in relation to any particular inhalation or ingestion of plutonium 239
100,000,000 parts would go to other organs of the body and only one part would
go to the kidneys. In this context he gave the following evidence:-
"To double the normal risk of developing kidney cancer any
such dose would have had to be enormous and it would certainly
have had to effect the risk of cancer in other organs as well
causing in the case of any ingested plutonium much higher
incidences of cancer in the lung and bone. I was not suggesting
that Mr Cubillo himself would have developed cancer of the lung
or bone. What I was intending to say was with the amounts of
plutonium that were about if one was to assume that any would
have affected the kidney, the amounts would have had to be so
enormous that many other people in Maralinga would have had to
have gone down with cancer of the lung and cancer of the bone,
where plutonium is specifically deposited. It is another way of
saying that only one hundred millionth part of plutonium that is
ingested will end up in the kidney.
So you would not see the plutonium exposure for the reasons that
you have given as being a significant contribution to any
ionising radiation exposure for Mr Cubillo at Maralinga?---I
cannot see that plutonium could have contributed to the risk of
his developing cancer of the kidney."
235. This passage, in fact, referred to some material provided by Professor
Doll in a written report which was also in evidence. There is no need to
refer to that earlier material as the essential matters concerned are in the
passage quoted. For Cubillo's cancer to have been attributable to ingestion
of plutonium 239 there would have to have been such an abundance of the
isotope present in the areas he worked in at Maralinga that it would
necessarily follow that there would have been a high incidence of lung and
bone cancer amongst those present, these being the target organs for plutonium
239. The fact that this had not occurred was a clear indication that
plutonium 239 was not present in sufficient quantities to have any effect upon
Cubillo's kidneys. Later evidence given on the same topic was as follows:-
"You exclude any possible connection with plutonium?---Yes, I do
completely, your Honour."
And again,
"I think you regard the contribution infinitesimal for plutonium
... if any at all it would be infinitesimal. Infinitesimal is
small."
236. He later said that such an infinitesimally small exposure of the kidney
to plutonium 239 "should be ignored in relation to the possibility of
producing cancer in the body". It was not a matter "as against smoking ... as
of any significance at all".
237. Of particular significance, in my view, was the evidence that Professor
Doll gave in relation to dose. It will be remembered that it was integral to
Dr Kefford's thesis that the amount of the radiation dose was, for practical
purposes, irrelevant. In effect, he said that any level of radiation, however
small, provided that it got to the kidney, could be carcinogenic. A
particular passage of Dr Kefford's evidence that related to Mr Robotham's
calculation of dose was put to Sir Richard for comment. That passage read as
follows:-
"I place little reliance on the level of exposure that was
measured. I don't think it's terribly relevant, I really don't."
238. Sir Richard was then asked the following question and gave the following
answer:-
"Sir Richard, in relation to radiation and the measure of the
possible effects of that on cancer, that is exposure there as
against other factors, what would you say about that particular
answer?---Well, I found it quite an astonishing remark. There
is, in my experience, completely uniform agreement that as far as
the induction of cancers other than leukaemia are concerned, the
risk is directly proportional to the dose. The only difference
of opinion amongst people at any rate that attend the meetings of
United Nations Scientific Committee on the Effects of Atomic
Radiation is whether low doses have any effect at all. There are
scientists who argue that very small doses of the order that we
have been considering, natural background and doses of that
order, don't have any effect at all because of the cells'
capacity to repair the damage. I'm not myself one that holds
that view but that is the only element of controversy that I am
aware of at all. Otherwise there is unanimous agreement that
risk is minimally proportional to dose, with some reduction in
the effect at very low doses and possibly some people argue, no
effect at all.
So, Sir Richard, is it fair to say that in relation to any
calculation by science or otherwise as to the relationship
between an exposure to ionising radiation and a possible
carcinoma, in this case an RCC (renal cell carcinoma), the first
matter that needs to be determined is the issue as to whether
there has been exposure and a level of that exposure?---Yes, the
level of that exposure to the tissue at risk."
239. When one considers, as the evidence demonstrates, the level of expertise
and the international renown of the scientists attending the meetings referred
to in this passage, Sir Richard's description of Dr Kefford's evidence as
"quite an astonishing remark" takes on an even greater significance than it
otherwise would have had.
240. Sir Richard was also asked to comment upon Dr Kefford's evidence as to
the potential synergistic effect of tobacco smoking in combination with
exposure to ionising radiation, in relation to the production of Cubillo's
renal cell carcinoma. He gave the following answer:-
"Well, this question of the possible synergism of different
factors in causing cancer is one of considerable scientific
interest and I think most people accept that there are
synergistic effects in the sense that the development of cancer
is a complex process requiring several changes in a cell and
different agents may cause different changes at different times
so that they can - different agents can work together in causing
cancer. We don't have very much quantitative evidence on - or
even qualitative evidence - on the effects of synergism but there
is an increasing amount and as Dr Kefford pointed out, some of
the evidence is from the radon miners whose smoking histories are
known and in whom one can see that the combined effect of
exposure to radon and cigarette smoke is greater than the effect
of radon in non-smokers - is greater than the additive, the
addition of the effect of radon in non-smokers or cigarette
smoking in the absence of exposure to radon. It would be nice if
one could say the two factors multiply each others effects and
that has been a common hypothesis until recently but it is
becoming clear that they don't, in fact, quite have as great an
effect as that. But in relation to the present case, the
possibility of synergism, and I would quite readily accept that
radiation and smoking may act synergistically in the production
of cancer, but the effect of each factor quantitatively can only
be assessed by seeing its effect in the absence of the other.
And the estimates of the effects of radiation that we have made
as a possible cause of cancer of the kidney indicates that the
increase in risk for the sort of small doses of which we have
been talking, is very small - of the order of one or two per
thousand. Now, those estimates have been obtained from
populations who are, or most of whom, are smokers so that the
synergistic effect is already seen in that estimate. What one
means by saying that smoking and radiation acts synergistically
in producing the disease is that if radiation causes a risk of,
let's say 2 per 1000, in the absence of smoking multiples the
risk from other factors by 1.002, it will have the same
quantitative effect of the smoker. It will increase the risk by,
again, another proportion of 2 per 1000 whereas the risk of
smoking in the absence of radiation, if that causes a 500 per
1000 risk in the unexposed to radiation, it will cause 500 in a
1000 times increase to the risk in a person that's exposed to
radiation. Of course, one can't talk about people not being
exposed to radiation because we are all exposed to background
radiation and as far as I've been able to assess in the present
situation, the amount of radiation to which this individual has
been exposed is not substantially great, is probably less, than
the amount of - almost certainly less - than the amount of
exposure from natural background radiation. So to suggest that
there is any equality between these two factors and their
contributions to the production of the disease, even if they are
acting synergistically, is just in my opinion, erroneous."
241. In my view, this passage on its own, and without regard to similar
expressions of expert opinion from other witnesses in the respondent's case,
is sufficient to put paid to Dr Kefford's reliance on synergy in this case.
242. In relation to Dr Kefford's hypothesis that Cubillo might have "a
specific tissue sensitivity" predisposing him to carcinoma of the kidney from
exposure to very low doses of radiation, Sir Richard had this to say in his
evidence:-
"I think it is impossible ... for the simple reason that
people would have died long ago from natural radiation. This
little bit of plutonium 239 that is being suggested might get
through to the kidney, would not be the first exposure of the
organ to radiation. They have been exposed to radiation their
whole lives.
It would be an equivalent amount to what you would get from
background radiation in effect?---Indeed, your Honour, yes.
I see?---And they would've been dead long ago if they had tissue
susceptibility to radiation of the sort he is talking about."
243. When discussing the distribution of plutonium 239 in the human body in
accordance with the data of the ICRP tapes, Sir Richard elaborated on this
point as follows:-
"It tells you something that is very important in relation to what
we're discussing. It tells you about the distribution in relation
to the body and we know that, as far as the kidney is concerned,
the dose would have to be enormous to produce, to give a dose to
the kidney which was anyway comparable to the background radiation
that he's already exposed to."
244. I am quite satisfied that this evidence effectively removes from the
case any consideration that Cubillo's renal cell carcinoma could be attributed
to a "minuscule" quantity of alpha emitting radionuclide impinging upon a
specially sensitive kidney.
EFFECT OF THE MEDICAL EVIDENCE
245. In my opinion, the medical evidence called on behalf of the respondent,
which I have sought to set out in fairly summary form above, effectively
disposes of Dr Kefford's theory that Cubillo's renal cell carcinoma could have
been caused by the inhalation or ingestion of a small particle of plutonium
239 whilst he was performing his duties at Maralinga. I am satisfied that the
evidence points inevitably to the cancer's being either idiopathic in origin,
i.e. not ascribable to any particular cause, or to its being causally related
to Cubillo's history of heavy smoking. The weight of evidence compels the
view that it was not caused by radiation at Maralinga.
246. The applicant's case, therefore, must necessarily fail. Before I part
with it, however, I should make reference to some other significant aspects of
the case. The first is the extensive epidemiological evidence called on
behalf of the respondent.
THE EPIDEMIOLOGICAL EVIDENCE
247. The whole of this evidence was called on behalf of the respondent. It
was extensive and complex. It was presented by witnesses of the highest
international reputation. Except in some peripheral ways it was uncontested.
I accept it in its entirety.
248. In effect, the only response made to it on behalf of the applicant was
that it was irrelevant. This could only be described as a bold submission
made, apparently, on the basis that Dr Kefford's evidence overwhelmingly
indicated that Cubillo had been placed at risk of incurring the renal cell
carcinoma by the inhalation or ingestion of a particle of plutonium 239. The
existence of this risk required that all the epidemiological evaluations of
radiation risk be seen as having no real significance in the case. They were
simply beside the point. Studies of the statistical relationships between
radiation and various types of cancer, one of which has extended over 50
years, could simply be swept aside as having no bearing upon the outcome of
this case.
249. There is no substance in this submission. I reject it. The
epidemiological evidence in the case adds support to the respondent's medical
evidence which I have already found is sufficient to resolve the case in its
favour. In these circumstances I do not propose to deal at length with this
material. However, the volume that was presented requires that I make
reference to the most significant parts of it.
250. Essentially, epidemiology relies upon statistical analysis of
populations to estimate the risk of developing particular diseases as a result
of exposure to particular agents. It is a highly developed science involving
complex statistical and mathematical concepts. These concepts have been
explained in the evidence at considerable length as has the methodology
employed in individual studies. The relevant material is contained in the
extensive reports of the scientists who gave evidence before me and in their
equally extensive oral testimony. Before referring to salient parts of it, it
is convenient to set out a brief explanation of some of the terms associated
with it.
251. Two such terms are "absolute risk" and "relative risk".
252. "Absolute risk" refers to the excess number of incidences of disease,
above those "normally expected" in the population being studied. "Normally
expected" means in the absence of exposure to the particular agent being
studied. In radiation studies, excess incidences are often stated in terms of
the number of years the individual, or group of individuals, have lived
following exposure. The unit used is person-year-gray (PYGy). For example, a
person who survived 5 years after exposure to 0.5 Gy would contribute an
excess of 5 x 0.5 or 2.5 PYGy.
253. "Relative risk" may be expressed in terms of a "relative risk ratio" or
in terms of "excess relative risk". A "relative risk ratio" is the ratio of
the risk in one population to that in another. A relative risk ratio of 1
means that the disease is no more frequent in the exposed population than in
the unexposed population. "Excess relative risk" refers to the difference
between the observed relative risk and 1, being the value expected in the
absence of risk. In other words, if a disease is no more frequent in an
exposed population than in an unexposed population, the excess relative risk
would be expressed as 0 (zero). To further illustrate these terms, a relative
risk ratio of 2 means that the disease is twice as frequent in the exposed
population than in the unexposed population. In these circumstances, the
excess relative risk would be expressed as 1.
254. Results may be further characterised as "statistically significant" or
"statistically non-significant". A result is "statistically significant" if
the probability that it is due to chance or random variation is 1 in 20 or
less. This probability is conventionally written as "p is less than or equal
to 0.05". Conversely a result will be characterised as "statistically
non-significant" if the probability that it is due to chance or random
variation is "p is greater than 0.05".
255. A complication is introduced into the concept of statistical
significance by the use of the terms "one-sided" and "two-sided".
Conventionally, p = 0.05 is interpreted to mean that there is a 1 in 20 chance
that the difference between the incidence of disease normally expected and the
incidence of disease observed, could occur in either direction. Unless "p" is
qualified this is what it is taken to mean. However, when there is a prior
hypothesis that the incidence of a disease in a population exposed to a
particular agent will be higher than the incidence of that disease in an
unexposed population, it is thought more appropriate to only cite the
probability of a excess of incidences being found above those normally
expected.
256. Another way of expressing whether or not a result is statistically
significant is in terms of confidence levels. A 95% confidence level is
equivalent to p is less than or equal to 0.05. That is, the probability that
the result is due merely to chance or random variation is 1 in 20 or less.
Confidence levels are often expressed in conjunction with confidence limits.
Confidence limits define the range of results supported by the data at the
chosen confidence level. For example, a study of the difference between the
incidence of a disease observed in an exposed population and the incidence
observed in a non-exposed population may be reported as lying within the
confidence limits of 2 and 4 at a 95% confidence level. This means that the
reader can be 95% sure that the true relative risk of developing cancer after
exposure to the agent lies somewhere between 2 and 4.
257. Highly significant evidence was given by Sir Richard Doll. He is of
such eminence in the field of epidemiology that it is appropriate that I make
some reference to his curriculum vitae.
258. Sir Richard Doll graduated with a Bachelor of Medicine from the
University of London in 1937. He went on to be awarded the degrees of Doctor
of Medicine and Doctor of Science from the University of London in 1945 and
1958 respectively. He holds honorary degrees of Doctor of Science from a
number of universities including Harvard, London and Oxford and of Doctor of
Medicine, also from a number of universities, including Oxford University.
259. His professional appointments have been numerous and in relation to
cancer research have included the chairmanship of the Medical Research
Council's Cancer Coordinating Committee and of the Institute of Cancer
Research Management Committee, membership of the UK Coordinating Committee on
Cancer Research, Radiation and Cancer Subcommittee, the Scientific Council of
the International Agency for Research on Cancer and the Council of the
International Union Against Cancer. He is also an honorary member of several
national and international associations including the American Association for
Cancer Research, the American Epidemiological Society, the International
Epidemiological Society, the International Association of Cancer Registries
and an honorary fellow of the Society for Radiological Protection.
260. He has received awards and professional distinctions too numerous to
relate for his contributions to medical research, particularly in the area of
cancer research. During his career he has held, amongst others, the posts of
Regius Professor of Medicine at the University of Oxford (1969-1979), Warden
of Green College at the University of Oxford, a post-graduate college with a
special interest in clinical medicine (1979-1983) and Director of the Imperial
Cancer Research Fund's Cancer Epidemiology and Clinical Trials Unit (1978-1983
and 1987-1989).
261. He is currently an honorary member of the Imperial Cancer Research
Fund's Cancer Studies Unit in Oxford. He has also been a consultant in
epidemiology to the National Radiological Protection Board since 1985 and a
member of the British Delegation to the United Nations Scientific Committee on
the Effects of Atomic Radiation (UNSCEAR) since 1989.
262. His major areas of research have included studies of the health effects
of ionising radiation, smoking and asbestos exposure. He has also studied the
causes of lung cancer, leukaemia and peptic ulcer. He has published over 400
articles since 1936, and it would not be inaccurate to say that his
professional reputation in the field of epidemiology is unsurpassed.
263. One of Sir Richard's major areas of research has been a study of
mortality and cancer incidence in UK participants in the UK atmospheric
nuclear weapons tests and experimental programs. The study was commissioned
by the British Ministry of Defence in 1983 after a number of claims in the
British media that people who had taken part in the tests had experienced a
high incidence of leukaemia. Sir Richard and Dr Sarah Darby, who was also
associated with the Imperial Cancer Research Fund, carried out the study in
conjunction with the National Radiological Protection Board.
264. All together a total of 21,358 men who had participated in the tests and
experimental programs that were carried out in Australia and the Pacific Ocean
between 1952 and 1967 were identified from archives of the Ministry of Defence
and were followed up to 1 January 1991 ("the participants"). Another 22,333
men who had served in tropical or sub-tropical areas other than the test
locations during the period when the tests were carried out were also selected
from the archives to serve the function of a control group ("the controls").
These controls were selected in order to match the participants as closely as
possible by service (army, navy, air force, or employer if civilians), rank
(officer, other rank, or socio-economic class if civilian), year of birth,
year of enlistment (or employment) and year of discharge (or termination).
265. The causes of mortality and the incidence of cancer in the participants
was determined from national records and compared with the causes of mortality
and cancer incidence in the controls. In addition, the causes of mortality in
both groups was compared with what would have been expected if the men had
experienced the same causes of death as those of men of the same ages in
England and Wales as a whole, during the same period ("the corresponding
national population").
266. Causes of mortality were compared first, over the whole period of
follow-up and secondly, ten or more years after entry to the study. This was
because a material increase in the risk of developing cancer after exposure to
radiation is seldom seen in under ten years. The results were expressed in
the form of standardised mortality ratios ("SMRs"), that is, mortality ratios
expressed as a percentage of those expected from the corresponding national
mortality rates.
267. Over the whole period of follow-up the participants were found to have
had a slightly lower mortality from cancer than the controls (the SMRs were 83
and 86 respectively), but they had exactly the same mortality rate from all
causes put together (the SMR was 84 for both groups).
268. Comparisons made ten or more years after entry to the study showed that
the participants once again had a slightly lower mortality from cancer than
the controls (the SMRs were 84 and 87 respectively), but they had exactly the
same mortality rate from all causes put together (again the SMR was 84 for
both groups).
269. Mortalities in both groups from all causes and all cancers over the
whole period of follow-up and ten or more years after entry to the study were
lower than the corresponding national population (shown by the fact that the
respective SMRs were all less than 100). This was explained by the fact that
the requirements for recruitment to the armed services means that such
recruits are, generally speaking, healthy people when they join up. The small
differences between the participants and the controls in relation to mortality
from cancer were concluded to be easily accounted for by chance.
270. Sir Richard concluded that these results indicated that participation by
UK servicemen in the UK atmospheric tests of nuclear weapons did not effect
their expectation of life at all, as far as one can detect it, neither their
total expectation of life nor their expectation of living without cancer. In
fact the participants in the nuclear test program had a healthier profile than
the population as a whole in relation to mortality from both all cancers and
all causes.
271. Causes of mortality were also examined to reveal any differences in
mortality rates for 27 different types or categories of cancer. Of relevance
to this case are the results in relation to leukaemia, because it is the type
of cancer most readily induced by ionising radiation, and for kidney cancer,
because of its special relevance to Cubillo's case.
272. Mortality from leukaemia was examined over the whole period and for the
period 2 to 25 years after entry to the study, as leukaemia induced by
irradiation tends to occur sooner than other types of radiation induced cancer
and the risk is highest in the relatively early period. For the period 2 to
25 years after entry to the study, the participants had a significantly higher
mortality from leukaemia than the controls (the SMRs were 123 and 34
respectively). Over the whole period of follow-up the participants still had
a higher mortality from leukaemia than the controls, however the difference
was less marked and only marginally significant (the SMRs were 100 and 56
respectively).
273. It was concluded that the significantly higher mortality in the
participants compared to the controls even over the whole period of follow up,
was due not to a peculiarly high instance of leukaemia in the participants,
but to a peculiarly low incidence in the controls compared to the
corresponding national population. No explanation was found for the low
incidence of leukaemia in the controls and it was concluded that despite a "p"
value of 0.01 the low incidence was a chance finding.
274. Mortality from kidney cancer was examined only for the period ten or
more years after entry to the study. Over this period, the participants had a
lower mortality from kidney cancer than the controls (the SMRs were 104 and
150 respectively). Mortality in the participants was close to that expected
from the corresponding national population, but mortality in the controls was
somewhat higher than the corresponding national population. The number of
deaths observed, however, were small (21 in the participants and 32 in the
controls). Further, the results were not statistically significant (p
one-sided = 0.11) and the higher mortality from kidney cancer in the controls
was, therefore, concluded to be a chance finding.
275. Total numbers of incident cases of cancer were also examined. Comparison
was not possible with the incidence of cancer expected from the corresponding
national population, as linkage of the study records with the National Cancer
Registration was incomplete. However comparison was possible between the
participants and the controls. The results closely paralleled those for cancer
mortalities. Total cancer incidence in the participants was almost identical
to that in the controls (the incidence in the participants was 97% of the
incidence in the controls). The incidence of kidney cancer was lower in the
participants (79% of that in the controls) and the incidence of leukaemia was
higher in the participants (345% of that in the controls for the period 2 to
25 years after entry to the study and 161% of that in the controls for the
whole period of follow-up). The higher incidence of kidney cancer in the
controls was not statistically significant (p one-sided = 0.17). However, the
higher incidence of leukaemia in the participants was statistically
significant (2 to 25 years after entry to the study, p one-sided
0.001 and for the whole period, p one-sided = 0.05).
276. Finally, the participants were examined by sub-group according to the
operations in which they participated, whether they had been identified by the
Ministry of Defence as having been "liable to exposure to radiation, and
whether they had a recorded gamma radiation dose. The examination showed that
no sub-group had experienced a total cancer mortality more than ten years
after exposure greater than that expected by reference to the corresponding
national population. In particular, the 1,548 men who participated in the
Antler series of explosions experienced a mortality rate from cancer other
than leukaemia ten or more years after first participation, that was lower
than the national average (SMR 88 based on 58 deaths) and 1 death from
leukaemia against 2.21 expected. Furthermore, examination of the incidence of
cancer in relation to the dose received among men who had been monitored for
dose, provided no evidence of any increase with dose for either leukaemia or
other cancers. This was what was expected in view of the small dose that the
men had collectively received.
277. Sir Richard also gave evidence on a similar study commissioned by the
New Zealand Ministry of Defence. That study was undertaken by the Department
of Community Health of the Wellington Medical School. All together 528
personnel of the Royal New Zealand Navy were identified as having participated
in UK atmospheric tests of nuclear weapons when serving on two ships. 1,504
other men who had served over the same period on three other ships that had
not participated in the tests were chosen as controls. The characteristics of
the men in each of the groups were broadly similar in regard to rank, age,
year of enlistment and smoking habits. The men were followed from the date of
first participation in 1957-58, or from 15 May 1957 in the case of the
controls, until the end of 1987. Deaths and diagnosis of cancer were obtained
from national mortality and cancer registration records and mortality and
cancer incidence rates were compared with those expected from corresponding
national rates for all men of the same ages over the same period.
278. The participants were found to have had a higher mortality from all
causes and all cancers than the controls (the respective SMRs were 119 and 180
for the participants, and 106 and 130 for the controls). Mortality in the
participants from all cancers was significantly higher than that expected from
corresponding national rates.
279. Twenty different types or categories of cancer were also separately
examined. The participants were found to have a significantly higher
mortality from leukaemia than the controls (the SMRs were 702 and 126
respectively). The participants were also found to have higher mortality from
kidney cancer than the controls (the SMRs were 500 and 273 respectively).
However, these statistics were based on a very small number of deaths (4 and 2
from leukaemia and 2 and 3 from kidney cancer in the participant group and
control group respectively). For this reason the results were not regarded as
statistically significant. Furthermore, one of the 4 deaths from leukaemia in
the participants was of a type that has not been associated with irradiation
and the other 3 occurred more than 25 years after the tests, when the risk of
radiation induced leukaemia would be expected to be low.
280. A comparison of incidences of cancer from cancer registration data
revealed a slightly higher incidence of cancer in the participants than the
controls (the standardised incidence rates were 131 and 116 respectively).
281. Sir Richard reported that no comparable study of Australian participants
had been carried out, but that there had been two smaller investigations
conducted. In the first, questionnaires were sent to individuals thought
likely to have participated in the UK tests. By the questionnaire it was
hoped to find out whether any particular type of illness could be associated
with any particular type of involvement in the test. From 2,440 responses,
the only statistically significant positive associations that were observed
for any types of cancer were between the decontamination of personnel,
equipment, vehicles or aircraft and the occurrence of melanoma, and between
the maintenance of contaminated equipment and non-melanomatous skin cancer.
In neither case was it concluded that the association was causal. (Donovan,
JW., Stevenson, CE., Ariotti, DE., "Survey of Health of Former Atomic Test
Personnel", Health of Atomic Test Personnel, 1983, Australian Government
Publishing Service, Canberra.)
282. The second investigation traced 1,560 death certificates of personnel
who had been identified as participating in the test program. These death
certificates were compared with those of 3,010 control men of similar ages
whose deaths had been registered in the same registries at the same time. A
comparison of the proportions of deaths due to different causes showed that
the proportion attributable to cancer was slightly higher in the participants
(risk ratio 1.10). The excess was, however, almost entirely accounted for by
an excess of lung cancer in the test participants other than members of the
armed services. As this group also had a higher proportion of deaths
attributed to chronic obstructive airways disease, which like lung cancer is
predominantly caused by smoking, it was concluded that the excess lung cancer
was unlikely to have been due to participation in the tests. The proportions
of deaths from leukaemia, malignant melanomas, and other skin cancers were all
lower in the participants than in the controls. No separate figure was given
for kidney cancer.
283. The study concluded that there was no excess mortality which might have
been due to exposure to ionising radiations. (Donovan, JW., " Causes of Death
of Former Atomic Test Personnel", Health of Atomic Test Personnel, 1983,
Australian Government Publishing Service, Canberra.)
284. On the basis of these studies, Sir Richard expressed the opinion that
participation in the UK tests did not expose the participants to any risk of
cancer, except possibly to a risk of leukaemia. Although the small New
Zealand study suggested the possibility that total cancer mortality amongst
participants was increased in comparison with national rates, the much larger
British study provided no such suggestion. In that study the cancer mortality
in the participants was significantly less than expected in comparison to
national rates and practically identical with that in the control group.
Moreover, none of the sub-groups that were most likely to have received any
radiation showed any increased mortality. The Australian study, although
epidemiologically much weaker, provided results that were consistent with
either the absence of risk or the existence of a small risk, but not with the
existence of a large risk.
285. The small New Zealand study also suggested that participants suffered an
increased risk of kidney cancer in comparison to both the controls and the
population as a whole. However, the much larger British study provided no
such suggestion, the mortality rate from kidney cancer being close to normal
in the participants and somewhat raised in the controls. In both the New
Zealand study and the British study, the number of deaths from kidney cancer
was small and the differences in mortality rates were not statistically
significant.
286. In relation to leukaemia, Sir Richard concluded that although both the
British and New Zealand studies provided some reason to think that
participation in the tests might have caused some risk, it seems most likely
that the higher mortality from leukaemia found in participants in comparison
with the controls in those studies, were both chance findings. He expressed
several reasons for this conclusion. First, the total mortality from
leukaemia in the British participants over the whole period of the study was
almost precisely what would have been expected if they had experienced the
normal mortality experienced by men of the same ages in the country as a
whole. Secondly, the high relative risk of mortality from leukaemia in the
participants compared to the controls in the period 2 to 25 years after entry
to the study was principally due to a significantly low incidence in the
controls, something that was not characteristic of the controls over the rest
of the period of the follow-up. Thirdly, the highest relative mortality in the
participants compared to national rates was in men who were not in any of the
groups most likely to have had any material exposure. Fourthly, it is
difficult to attribute the excess in the Royal New Zealand Navy men to
participation in the tests as (i) there is no reason to think that the men
could have had any material exposure, (ii) 1 of the 4 cases was of chronic
lymphatic leukaemia which has not been produced by radiation in other
situations, and (iii) 3 of the 4 cases occurred more than 25 years after the
tests, which would be unlikely if they had been caused by radiation at the
time of the tests.
287. Sir Richard was cross-examined in relation to the evidence he gave with
respect to the UK study. He was particularly questioned as to the reliability
of the information provided by the Ministry of Defence. Sir Richard agreed
that identification of all participants so many years after the event was not
easy and the research team had to consider the possibility that the list
provided by the Ministry of Defence may have been incomplete. As a result,
the research team carried out many checks on Ministry records to ensure that
the information was as complete and accurate as possible. Information about
test participants was also sought from all other organisations known to have
compiled independent lists. In the event, 412 participants were reported to
the National Radiological Protection Board who had not previously been
identified by the Ministry of Defence. These men were separately studied and
were found to have had almost the same risk of death from cancer as the other
participants. None of those men died of leukaemia.
288. Sir Richard was further cross-examined about his conclusion that the
statistically significant difference in the mortality from leukaemia
experienced by the participants in comparison to the controls for the period 2
to 25 years after entry to the study, was in fact a chance finding. Sir
Richard justified his conclusion by pointing to the fact that when the study
was continued for a further 7 years the controls experienced 11 deaths from
leukaemia, which was almost exactly the same as expected from national rates.
In comparison, the participant group experienced only 6 deaths from leukaemia.
Therefore, over the whole period of the study the total mortality experienced
by the participants was almost exactly what was expected in comparison to
national rates. The mortality experienced by the controls was still lower
than that expected from national rates, but the difference over the whole
period of the study in comparison to the period 2 to 25 years after entry to
the study was far less marked. Further, over the whole period of the study,
the difference in mortality from leukaemia experienced by the participants in
comparison to the controls was only marginally significant.
289. Sir Richard was also pressed as to whether the UK participants who had
died of leukaemia had suffered from any particular exposure. He indicated
that the high number of mortalities from leukaemia in the participant group
compared to the control group over the period 2 to 25 years after entry into
the study, prompted inquiries as to whether the participants who had died of
leukaemia had suffered from any particular exposure.
290. Information as to the particular tasks engaged in by the participants
who had died from leukaemia was supplied by the Ministry of Defence. The
information indicated that the subjects had participated in a variety of tasks
ranging from office clerks to sappers and signals people. The only
information available about the particular exposures of those people were the
exposures that had been recorded on their film badges and dosimeter records.
For the purposes of the study it was also assumed that people who had taken
part in the Maralinga experimental programs could have had some exposure to
alpha particles which would not have been measured by their film badges or
dosimeters.
291. In the end, the research team was unable to identify a group in relation
to activities or exposure where there could be said to have been some excess
hazard. It was found that the excess of leukaemias were in no way associated
with the Maralinga program and, in fact, the excess of leukaemias seemed to be
most associated with people who had not received any particular specified
exposure. The participants who had been identified by the Ministry of Defence
as liable to exposure to radiation, both external and internal, when studied,
were found to have experienced a lower mortality from leukaemia than other
groups as well as a lower mortality from other neoplasms. The group of
participants that experienced mortality from leukaemia had not participated in
any of the major operations, were not classified by the Ministry of Defence as
liable from exposure to radiation and had not taken part in the minor trials
at Maralinga.
292. No doubt, a survey which focussed specifically on, for instance,
personnel who had been involved in the sweeping-up operation at Taranaki, in
conjunction with some appropriate control group, might have been more
immediately relevant. Unfortunately, Professor Doll was not provided with
information of such specificity as to enable him to select out such a group
for particular study. It is possible, of course, that such a group would have
been too small a population to found a basis for reliable results. Moreover,
in light of the health physics and medical evidence in the case it is, in my
view, highly unlikely that such a survey would have revealed anything of
statistical significance.
293. Sir Richard also referred to the results of some other tests in the
following paragraph of his report, tendered in evidence:-
"Non-significant increases in kidney cancer have been
reported in patients treated with a short-lived isotope of radium
(224 Ra) (Spiess et al., 1989) and in men who were monitored for
plutonium at the Atomic Weapons Establishment in Britain (Beral
et al., 1988). In both cases the numbers were small (5 against
about 2.5 expected in the first and 3 against 1.25 expected in
the second) and the dose in the patients treated with radium was
large (46 Sv to the kidney spread out over months). No excess
was, however, seen in the combined data for 11 groups of
underground miners exposed to large amounts of radon (SMR 10 or
more years after first employment 91, based on 41 deaths) (Darby
et al., 1994b) and there is no suggestion of a hazard of kidney
cancer among the few men known to have been specifically exposed
to substantial doses of plutonium, neither in the men employed at
Rocky flats, 17 of whom have died of cancer (Wilkinson et al.,
1987) nor in the 26 men who were heavily exposed at Los Alamos
when working on the manufacture of the first nuclear weapons
during the second world war (Voelz and Lawrence, 1991)."
294. Sir Richard also gave evidence as to an ongoing study in which he had
been involved for some time. This related to the effect of radiation by
x-rays, given as treatment to a number of patients suffering from ankylosing
spondylitis. He indicated that the level of exposure was very high being 6
gray and that the kidneys, being on each side of the part of the spine which
was most heavily irradiated in the treatment, were amongst the organs which
received the highest dose of radiation. The high dose was accumulated as a
result of treatment given over several weeks. This study involved 15,000
people treated by radiotherapy for this disease. It was possible to obtain
precise measures of the radiation dose that each had received. Thirty-five
developed kidney cancer. The doses were very large, the mean average dose
being, as indicated, 6 gray. The Professor said "we found that the best
estimate of risk in relation to this was that there was a 10% increase in the
relative risk of developing cancer of the kidney for each gray of radiation".
This was a small absolute excess related to very high levels of dose.
295. The findings were compatible with those from Hiroshima and Nagasaki.
Other studies, such as one where patients in Germany had been treated for a
rare disease by the injection of radium directly into their bloodstream, also
indicated that any resulting kidney cancer was in relation to a very high,
even enormously high, dose. Such cases are clearly in major contrast to any
conceivable radiation dose that Cubillo could have received to his kidneys as
a result of work at Maralinga.
296. Another major study should be referred to. This is the Life Span Study,
which I have mentioned. Evidence in relation to this study was given by
Professor William Jackson Schull who has been intimately involved in it since
its inception. Some reference to his curriculum vitae is, accordingly,
appropriate.
297. Professor Schull was awarded the degrees of Bachelor of Science and
Master of Science from Marquette University, Milwaukee, Wisconsin in 1946 and
1947 respectively. In 1949 he was awarded the degree of Doctor of Philosophy
from Ohio State University.
298. Professor Schull has spent much of his career studying the effects of
radiation. His professional appointments in the area have been numerous and,
amongst others, have included the positions of consultant to the United
National Scientific Committee on the Effects of Atomic Radiation, member of
the National Council on Radiation Protection and Measurements and member of
Committee 1 of the International Commission on Radiation Protection, a
committee which focuses on the biological effects of ionising radiation.
299. Throughout his career Professor Schull has been intimately involved with
the Life Span Study of the survivors of the atomic bombing of Hiroshima and
Nagasaki in August 1945. He accepted his first research position with the
Atomic Bomb Casualty Commission in Japan soon after his graduation and since
then he has served as Head of the Department of Genetics of the Commission,
Vice Chairman and Chief of the Department of Epidemiology and Statistics of
the Radiation Effects Research Foundation and Permanent Director of the
Foundation with oversight responsibilities for Epidemiology, Statistics and
the Tumour and Tissue Registries. He continues to serve at the Foundation as
a Senior Scientific Consultant.
300. Professor Schull is also a member of several professional organisations
including the American Epidemiological Society, the American Society of Human
Genetics, the Radiation Research Society and the Society for Epidemiological
Research. He has been awarded several awards and professional distinctions
including the Order of the Sacred Treasure Third Class Emperor of Japan, which
he was awarded in 1992 in recognition of his involvement in studies of the
atomic bomb survivors.
301. He is currently Director of the Human Genetics Centre of the School of
Public Health at the University of Texas Health Science Centre in Houston, and
Professor of Academic Medicine. He is also currently an honorary member of
the National Council on Radiation Protection and Measurements in the United
States, a member of the Advisory Board to the Bureau of Radiation Effects
Research and Chairman of the Bureau's Committee on an Assessment of the US
Centre for Disease Control and Prevention's Radiation Studies. He also serves
on two US National Academy of Science National Research Council Committees
involved in the assessment of the biological hazards of exposure to ionising
radiation.
302. The study of cancer among the atomic bomb survivors is the largest
epidemiological study ever carried out. The study has continued for over 48
years and is still continuing. Most of what is known about the biological
consequences of human exposure to ionising radiation stems from this study,
and current regulatory standards rest largely on the experiences of these
survivors.
303. The study population consists of approximately 121,000 individuals of
whom approximately 91,000 were present in the cities at the time of the
bombings. The remaining 30,000 individuals were not present in the city at the
time of the bombings, but roughly half of them were exposed to some degree of
ionising radiation because they began entering the city within hours after the
bombing on rescue operations.
304. The study has focussed on estimating the dose of ionising radiation
received by each survivor and correlating this with information about
incidences of cancer diagnosed amongst the survivors, in order to calculate
risk estimates of developing cancer at varying levels of exposure.
305. Estimating the dose of ionising radiation received by each survivor
involved interviewing each individual identified as being present within a
1,800 metre radius of the hypocentre in order to determine their age and
gender, where they were at the time of exposure, that is, whether they were
inside or outside and, if inside, the composition of the structure of the
building they were in, the room in which they were located at the time of
exposure, whether they were standing, kneeling or supine, whether they were
facing towards or away from the hypocentre, what they were wearing and whether
they experienced any symptoms of radiation sickness at the time.
306. This information was then used to estimate the dose received by each
individual by taking into account how many structures, such as walls, ceilings
and tiled roofs, shielded the individual from the hypocentre and to what
extent the composition of the structures prevented the radiation from
penetrating inside the building. The posture of the individual at the time of
exposure and the direction in which the individual was facing were taken into
account in estimating the doses of radiation to individual organs. Currently,
estimates on doses to 15 organs are available for 86,632 of the approximately
91,000 exposed individuals in the study population.
307. The incidences of cancer amongst the survivors has been ascertained from
three sources. First, approximately 20% of the study population are
physically examined at the facilities of the Radiation Effects Research
Foundation every second year. Second, copies of death certificates are
obtained for each individual in the study population who has died, whatever
the cause of death. Third, Tumour and Tissue Registries record information
about all tumours diagnosed in Hiroshima or Nagasaki, including the identity
of the individual, the type of tumour, its method of diagnosis, whether the
tumour is a primary or a metastatic one, and the types of cells involved.
308. In terms of kidney cancer, the experiences of the atomic bomb survivors
have enabled the research team to estimate both mortality and morbidity risks.
The excess relative risk of mortality from kidney cancer has been calculated
to be 0.58 per gray of absorbed dose to the kidney (90% confidence interval
-0.09 to 1.94). The excess absolute risk has been calculated to be 0.09 (90%
confidence interval 0.02 to 0.26). It has been concluded by the research
team that neither of these risk estimates for cancer of the kidney is
statistically significantly different from 0 (zero), that is, they show no
increased risk.
309. The excess relative risk of developing cancer of the kidney per sievert
of dose to the kidney has been calculated to be 0.71 (95% confidence interval
-0.11 to 2.25). The corresponding excess absolute risk has been calculated to
be 0.29 (95% confidence interval -0.50 to 0.79). From these calculations the
researchers have concluded that there is no statistically significant increase
in cancers of the kidney with increasing dose, although they concede that the
data, when taken at face value, does suggest some small increased risk might
exist.
310. Professor Schull gave evidence that in his expert opinion these two sets
of data fail to demonstrate a statistically significant increase in the
occurrence of cancer of the kidney following exposure to ionising radiation.
311. 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.
312. 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.
313. 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.
314. 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.
315. 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.
316. 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.
317. 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.
318. 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.
319. 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.
320. 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.
321. Before parting with this case, however, I should make some observations
and findings on the question of negligence.
NEGLIGENCE
322. 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.
323. 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.
324. 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.
325. Ground (viii) adds nothing to what has gone before and may be
disregarded.
326. 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.
327. 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.
328. 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).
329. 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.
330. 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.
331. 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.
332. 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.
333. 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.
334. 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.
335. 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).
336. 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.
337. I therefore order that:-
1. The application be dismissed;
2. Costs be reserved.
