Cubillo, Pedro Juan v Commonwealth of Australia [1995] FCA 1006

CATCHWORDS

TORT - Negligence - whether the Commonwealth of Australia breached its duty of care to the applicant, as his employer, to protect him from risk of injury from exposure to ionising radiation - whether any such breach of duty by the Commonwealth exposed the applicant to ionising radiation - whether any such exposure was a cause of the applicant's renal cell cancer. Birkholz v R J Gilbertson Pty Limited (1985) 38 SASR 121 McGhee v The National Coal Board [1973] 1 WLR 1 Bonnington Castings v Wardlaw [1956] AC 613 The State of Western Australia v Watson (1988) Aust Tort Rep 80-266 Bennett v Minister of Community Welfare (1992) 176 CLR 408 PEDRO JUAN CUBILLO v COMMONWEALTH OF AUSTRALIA No. NG 571 of 1991 FOSTER J 14 DECEMBER 1995 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 571 of 1991 ) GENERAL DIVISION ) BETWEEN: PEDRO JUAN CUBILLO Applicant

AND: COMMONWEALTH OF AUSTRALIA Respondent JUDGE MAKING ORDERS: FOSTER J DATE: 14 DECEMBER 1995 PLACE: SYDNEY MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

2. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 571 of 1991 ) GENERAL DIVISION ) BETWEEN: PEDRO JUAN CUBILLO Applicant

AND: COMMONWEALTH OF AUSTRALIA Respondent CORAM: FOSTER J DATE: 14 DECEMBER 1995 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR: In these proceedings, which were commenced in the High Court of Australia and transferred to this Court, the applicant, Pedro Juan Cubillo ("Cubillo"), sues the Commonwealth of Australia to recover damages for personal injury and consequential loss allegedly sustained by him as a result of his employment by the Commonwealth at Maralinga, South Australia, in the years 1957 and 1958. Cubillo was a Private in the Australian Army. He was a sapper in the Royal Australian Engineers and performed various duties in relation to the construction and dismantling of test sites and equipment used in the series of atomic explosion tests conducted in 1957 ("the Antler series"). He claims that as a result of the negligence of the Commonwealth, as his employer, he was wrongfully exposed to ionising radiation, which exposure caused him to suffer from renal cell carcinoma some 20 years later. The Commonwealth has denied liability in every respect. It has denied the acts and omissions relied upon as constituting negligence. It has also denied that the specific cancer suffered by Cubillo was caused or contributed to by any activity engaged in by the applicant during his employment at Maralinga. The evidence given in the case has covered many fields of scientific expertise. Expert witnesses, some of international renown, have provided scientific opinion from the fields of health physics, radiobiology, epidemiology, and oncology. The evidence has been complex and detailed with some significant differences of opinion. The evidence of lay witnesses has suffered from the difficulty of recalling events occurring nearly 40 years ago. Before entering upon a consideration of the evidence, it is convenient, by way of background, to set out certain matters as to which there appears to be no contest and to make findings in certain contested areas. THE MARALINGA TESTING AREA The Antler series of tests was part of the overall program of testing of atomic weapons by the British Government on the Australian mainland and adjacent islands. The Australian Government had agreed to cooperate with the British Government in the conduct of these tests which involved the detonation of nuclear weapons and devices associated with them. Pursuant to that agreement personnel of the Australian armed forces took part, at various sites and various levels, in the preparation for and conduct of the tests and the cleaning up operations which followed. It appears that in 1954 the Maralinga area had been identified as an appropriate site for the conducting of a number of these tests. The Maralinga proving ground consisted of a large area of desert country in South Australia. It had been selected to minimise any difficulties or danger which might be occasioned by the tests to centres of population. A very considerable infrastructure was established. A village, known as the Maralinga Village, was built in proximity to a railway stop on the trans-Australia railway, known as Watson. The village housed a large number of personnel involved in the tests and the logistics associated with them. There is no need to describe it. It was carefully planned to deal with the scientific necessities for the experiments and to provide for the comfort and convenience of personnel, scientific and non-scientific, military and non-military, involved in the project. Some 8 miles to the north of Maralinga Village a forward base, known as "Roadside" was established. This was in the nature of a "tent city" which housed and provided amenities for personnel working on the construction of the test sites and in the assembly of the scientific apparatus required for the tests, including the assembling and positioning of the weapons themselves. The applicant and other personnel of the Royal Australian Engineers lived in this area during the test operations. The desert area to the north of Roadside was referred to as "the forward area". It was in designated parts of this area that the nuclear tests were carried out at specially prepared sites. Access to this area was controlled by security officers stationed at Roadside. There was an established sealed road from Maralinga Village to Roadside and through Roadside to the various parts of the forward area where work was being done. Permission was required to proceed beyond Roadside. Vehicular access was controlled by a boom gate operated by a "peace officer", a member of the Australian Federal Police. SECURITY MEASURES FOR PERSONNEL IN THE FORWARD AREA In the forward area there were elaborate security arrangements. These were put in place not only to ensure the secrecy of the tests, but also as a means of ensuring compliance with regulations imposed for the safety of personnel. To this end, observation towers were erected in the forward area to enable security officers to observe all working parties in the forward area and to determine whether they were keeping outside areas where there could be dangerous levels of radioactivity. In association with these observation towers there were roving patrols in Land Rover vehicles which could proceed quickly to any location should a problem arise. There was radio contact between these patrol vehicles and the observation towers. It was understood that after each nuclear explosion there would be areas of danger associated with radioactive fallout. It was also understood that it would be necessary for personnel to perform work of various kinds in areas affected by radioactivity in varying degrees. Accordingly, it was necessary to take steps to prevent harm to such personnel. Procedures were put in place which were implemented by scientific personnel known as the "health physics group". This group was responsible for establishing the boundaries of zones affected by radioactive fallout immediately after each nuclear explosion, marking those boundaries, and thereafter monitoring them by taking readings with appropriate scientific instruments. It appears that the areas of radioactivity receded with the passing of time so that the boundaries would contract in the direction of the point of the explosion, which was known as "ground zero". It was the responsibility of the health physics group to ensure that all personnel, including their own, who entered into radioactive areas were appropriately clad in protective clothing. The extent of this clothing depended upon the classification of the area as either "yellow", "red" or "blue". Yellow, red and blue areas were defined in the "Radiological Safety Regulations Maralinga" ("the Regulations") which were agreed upon by the United Kingdom and Australian authorities concerned and promulgated in 1956. They were issued by the "Director, Atomic Weapons Research Establishment of the United Kingdom". They made detailed provision for maximum permissible levels of radiation exposure for different types of radiation and for the use of protective procedures and equipment. The colour-designated areas referred to above were defined in the Regulations as follows:- "3.2.1 Non-Active Areas A NON-ACTIVE area is one in which the maximum radiation levels do not exceed 1/10 of those laid down in Section 2 above for ACTIVE areas and there is no detectable loose activity. No special radiological precautions will be necessary. 3.2.2 ACTIVE Areas Those in which there may be some radiation risk and where precautions appropriate to the degree of risk must be taken. There will be three categories: (a) BLUE area -Risk of penetrating radiation but not of inhalation, ingestion or injection. No special clothing. (b) RED area -Risk of penetrating radiation and of slight inhalation, ingestion and injection. Protective clothing will be worn in accordance with Health Physics recommendations for the particular area. (c) YELLOW area-Risk of serious inhalation, ingestion, injection or penetrating radiation hazard. Fully protective clothing must be worn. 3.2.3 The classification of an area will be laid down by Health Physics representatives who must be informed prior to any proposed change in the work which might affect the classification. Health Physics representatives will review the classification periodically. 3.2.4 Signs showing the classification and having a patch of the appropriate colour will be displayed at all entrances to any ACTIVE area. All areas not classified in this way will be NON-ACTIVE areas and these will not have any special marking. 3.3 No person will be allowed to enter RED or BLUE areas without permission of the Scientist, or other Officer, in charge of the area concerned. No person will be allowed to enter a YELLOW area without permission from the Health Control Officer in charge. When it is necessary to carry out any building, engineering or other maintenance work in any ACTIVE area, a 'Permit to Work Certificate' must first be raised through the Group Leader, Range Facilities, who will consult Health Physics representatives where necessary. 4. FILM BADGES All personnel will wear a Personal Monitoring Film at all times. 5. PROTECTIVE CLOTHING 5.1.1 All radiological protective clothing will be WHITE, and will be distinguished by RED epaulettes or a RED triangle as appropriate. 5.1.2 The wearing of the approved protective clothing with film badges and dosimeters as specified in the appropriate parts of the Regulations is compulsory. 5.1.3 To assist the rigid enforcement of these rules under no circumstances will radiological protective clothing be issued for other purposes. 5.2 Degree of Protection 5.2.1 Workers in BLUE areas - No special protective clothing necessary. 5.2.2 Workers in RED areas - Approved laboratory coats or overalls, shoes or overshoes. The above is general for all RED areas but in certain special cases additional clothing will be specified by Health Physics representatives. When worn in ACTIVE areas laboratory coats and overalls must be kept fastened at all times. 5.2.3 Workers in YELLOW areas - Complete change of all clothing into the fully protective items provided." The full protective clothing to be worn in yellow areas consisted of a garment which covered the entire body including the head. Additionally, boots and gloves were worn to protect the hands and lower limbs and a respirator was provided to prevent the inhalation of any airborne radioactive contaminants. It is not suggested that this clothing, if worn, was inadequate to protect against radioactive contaminants relevant to this case. After a nuclear explosion, only a portion of the forward area would be contaminated. It was possible to go north from Roadside for some miles in the direction of the relevant ground zero before any danger of radioactive contamination could occur. Before anyone proceeding into those areas actually reached them it was necessary to be processed through a health physics "caravan". This was a highly designed installation which could be moved from place to place in the forward area. It is unnecessary to describe it in detail. It is not contested that it was adequately designed for the purpose of monitoring and providing for the radiation safety of personnel going through it and beyond into contaminated areas. Personnel going into those areas would leave the vehicles which they had used to come to the caravan in an adjacent uncontaminated area. They would then pass through the stages of the caravan where they would be issued with protective clothing appropriate to the task they were to perform and also with the film badge and, if necessary, the dosimeter referred to in the Regulations cited above. The film badge was a device which recorded the level of radiation to which its wearer was exposed. This level was ascertained subsequently by the development of the film contained within it. This was done in a laboratory in the Maralinga Village. Records were kept of the radiation doses received by the individual wearer. The dosimeter device enabled an instantaneous reading of the level of radiation to which its wearer was exposed. Although some evidence has been given in the case as to occasional defects in the operation of these devices, I am satisfied that, in general, they worked satisfactorily. There is no suggestion in the case that, in themselves, they were other than appropriate measuring devices for the purposes for which they were designed. Upon return from radioactive areas, the personnel re-entered the health physics caravan. Their clothing was monitored for any adhering contaminants using a measuring instrument called a "geiger counter". Their clothing was then removed and their bodies similarly monitored. If any contamination was present, the person affected was required to wash until cleared of any contamination. He then resumed his own clothing, returned to the vehicle which had been left in the carpark and proceeded back to Roadside. Again, it is not suggested in this case that the procedures in relation to monitoring and decontamination in the health physics caravans were inadequate. There was evidence tendered on behalf of the applicant that there were defects in relation to the processing of film in the film badges with the result that readings were not obtained or were defective. Countervailing evidence has been given, which I accept. I am satisfied that the health physics procedures were appropriate for the task of monitoring the radiological safety of personnel and that they were generally applied in a diligent manner. There is a question, however, as to whether, prior to the Antler trials, the ordinary health physics procedures could not be implemented because of circumstances to which I shall refer later. In addition to the sealed roads referred to above, there were also unsealed roads leading into portions of the forward area. These roads were not for general use but were restricted to vehicles used by the health physics group. These vehicles could, from time to time, be contaminated by radioactive materials. They were painted yellow for the purpose of distinguishing them from other vehicles used by personnel in the area. They were used only on these roads which were given the name "yellow" roads. It is not suggested that the segregation of these vehicles and these roads was, in any way, ineffective in preventing personnel such as Cubillo from coming into contact with contaminated vehicles or road surfaces. The evidence establishes to my satisfaction that a system of warning signs was put in place. These signs were placed in appropriate positions on roads in the forward area which were used by personnel working in the area. After leaving Roadside and heading north, vehicles came to a sign at the side of the road shortly to the south of a site known as "Iwara". This sign was in red on a white background. It read "WARNING - CONTROLLED AREA - NO ENTRY - UNLESS AUTHORISED BY THE RANGE COMMANDER OR HIS REPRESENTATIVE". This sign was erected well to the south of any areas which could be contaminated by radioactive fallout from the tests. As vehicles proceeded north from Iwara, other sealed roads became available to them leading towards the explosion sites. Each of these roads was controlled by further warning signs erected in reasonable proximity to, but well short of, contaminated areas. These signs were in black on a yellow background. They read "WARNING - YOU ARE APPROACHING A RADIOACTIVE AREA". When the roads reached the actual boundary of an area designated as subject to radioactivity, further signs were erected. These signs were red on a yellow background. They read "DANGER - RADIOACTIVE AREA - NO ENTRY - UNLESS WEARING FULL PROTECTIVE CLOTHING AND TRAVELLING IN A YELLOW VEHICLE". This sign reflected the fact that entry into radioactive areas was to occur only in health physics vehicles driven and occupied by personnel who had passed through the health physics caravan and been issued with appropriate protective clothing. Although it might be said to have been faintly disputed in the evidence, I am quite satisfied that these signs were in position at all relevant times. Their existence and position is clearly attested to by the evidence of an Australian scientist, Mr Moroney, whose evidence in relation to this and other matters I fully accept. In addition to these warning signs, the existence of contaminated areas was depicted upon maps. The regulations provided for the creation and distribution of such maps which were to show the boundaries of active areas. These were to be updated from time to time. I am satisfied, on the evidence of Mr Flannery, who was the Range Security Officer at relevant times, that such maps were in fact brought into existence and that they contained information supplied by Mr Turner, who was the Australian scientist in charge of health physics between the Buffalo series (referred to later) and the Antler series. I am satisfied that a basic map came into existence at the termination of the Buffalo series and that the radioactive area at that time was depicted by hatching on the map. Mr Flannery was of the view that copies of this map, produced on a Gestetner copying machine, were in fact distributed to all personnel working on the range. His evidence satisfies me that they were at least distributed to relevant officers in sufficient numbers to enable their further distribution to men under their command. Cubillo and other witnesses, to whom I shall refer later, and who were sappers performing similar work to him, deny ever having received such a map. It is possible that they did not. In any event, having regard to their rank and their ages, it is not likely, in my view, that they would have paid much attention to it. As army privates they would not have expected to be permitted to exercise any independent discretion as to where they travelled in the forward area to do their work. I am satisfied, however, that, in general terms, provision was made for the supply of these maps to all personnel and that a copy would have been quite readily available to anyone who was interested. I am also satisfied that the map was displayed on a noticeboard in the Roadside area. The map became the basis of other maps which have been tendered in evidence and which I shall refer to later. It may be noted that the map in question merely delineated one "yellow control area". It did not attempt to delineate red or blue areas. Indeed, so far as I can determine on the evidence, no blue area was ever the subject of delineation. After the conclusion of the Antler trials a red area was established for the first time. I shall refer to the yellow and red areas later in these reasons. THE BUFFALO TEST SERIES AND THE INTER-TRIAL PERIOD Prior to the Antler series, the Maralinga range had been used for a series of experimental nuclear explosions, known as the "Buffalo" series. In that series four nuclear weapons were detonated at separate sites within the range. The first bomb was detonated on 27 September 1956 at a site referred to as "One Tree". The second was detonated on 4 October at a site referred to as "Marcoo". The third explosion occurred on 11 October at a site referred to as "Kite". The fourth occurred on 22 October at a site referred to as "Breakaway". All these sites were, of course, within the forward area. The detonations and health physics operations in relation to them were under the control and supervision of the British authorities. After the detonation at Breakaway the range was handed over to the Australian authorities for supervision until the British resumed control on 6 August 1957. In the meantime work was done in relation to the preparation of sites for the Antler series of tests. The period between October 1956 and August 1957 is described as the "inter-trial" period. During this period the health physics requirements of the range were provided by an Australian health physics group under the command of Mr Turner, to whom I have already referred. The Court was informed that Mr Turner was too frail and old to be a witness in these proceedings. However, during the inter-trial period Mr Turner provided monthly health physics reports which have been admitted into evidence. I shall refer to relevant parts of these reports later in these reasons.