Dinnison v Commonwealth

REASONS FOR JUDGMENT 1 This is an action in negligence against the Commonwealth of Australia ("the Commonwealth"). It relates to the service of the applicant, Barrie Charles Dinnison, in the Royal Australian Air Force ("the RAAF") forty-five years ago. Mr Dinnison claims to have suffered psychiatric injury as a result of breach of the duty of care owed to him by the Commonwealth. The service in question took place at Maralinga in South Australia. Maralinga - Background 2 In the 1950s the Government of the United Kingdom conducted a number of atomic bomb tests in Australia. The first, codenamed Operation Hurricane, took place in 1952 on the Monte Bello Islands off the coast of Western Australia. In 1953 further tests, codenamed Operation Totem, were conducted at an area known as Emu Field in the Great Victoria Desert of South Australia. During preparations for those tests officials identified an area to the south-west as a suitable site for a permanent proving ground for atomic weapons. The area was situated on the edge of the Great Victoria Desert north of the Nullarbor Plain. The Watson rail siding on the Trans-Australian Railway line lay to the south. In 1954 the Australian Government agreed to make this area, which became known as Maralinga, available to the United Kingdom for atomic weapons tests. 3 The establishment of the permanent proving ground at Maralinga was announced in 1955, and planning and construction commenced for a series of atomic bomb explosions to be held there codenamed Operation Buffalo. Whilst that work was under way, certain "minor" trials were carried out at Maralinga in mid-1955 and in March 1956. These were part of trials codenamed Kittens and Tims designed to gain information about various components of an atomic weapon. 4 The Operation Buffalo series of explosions involved four rounds. Round 1 was a tower burst at a site named One Tree fired on 27 September 1956; round 2 was a ground burst at a site named Marcoo fired on 4 October 1956; round 3 was an air drop at a site named Kite fired on 11 October 1956; and round 4 was a tower burst at a site named Breakaway fired on 22 October 1956. 5 Mr Dinnison was stationed at Maralinga from 18 February 1957 until 12 November 1957. During that time a further series of atomic bomb explosions codenamed Operation Antler took place. This series involved three rounds. Round 1 was a tower burst at a site named Tadje fired on 14 September 1957; round 2 was a tower burst at a site named Biak fired on 25 September 1957; and round 3 was a balloon burst at a site named Taranaki fired on 9 October 1957.

Maralinga - The Witnesses 6 The bare facts set out above are not controversial. However, key aspects of Mr Dinnison's evidence were very much in dispute in the trial of this action. In addition to Mr Dinnison, four other men from the Maralinga Range Support Unit to which he was attached gave evidence. (The Support Unit comprised defence force and civilian personnel under the overall command of an army officer designated Range Commander and, after identification, I shall refer to individuals simply by their surnames.) Before I summarize the evidence of the witnesses, the basic geography and layout of the Maralinga Range should be described. 7 The administrative headquarters of the Range were located at Maralinga Village, which was sited to the west of a sealed bitumen road which ran in a generally northerly direction from the rail siding at Watson to a place called Roadside. The turn-off to the Village was a little over twenty miles from Watson and the distance from the turn-off to the Village was about four miles. Maralinga Airfield was sited to the east of the road to Roadside about a mile north from the turn-off to the Village. Roadside was approximately thirteen miles from the Airfield. At Roadside a sealed bitumen road ran off in an easterly direction to a place called Naya where minor trials were carried out. The area north of Roadside was referred to as the Forward Area. A sealed road extended into this area from Roadside in a north-westerly direction to a place called Iwara, where it turned north to a place called Mina, from which sealed roads ran to the sites used in Operation Buffalo. 8 I turn now to the oral evidence, beginning with Mr Dinnison. He was born on 10 October 1937 in Port Lincoln, South Australia. He was one of nine children and his father died when he was only four years old. All the children went to work as soon as they were old enough. Mr Dinnison completed only two years secondary school but attained the intermediate standard in a woodwork course. His first job, which he started when he turned fifteen, was as a railway porter in the tiny hamlet of Lock. Whilst in that job, Mr Dinnison lived and worked on a farm owned by relatives. He sent his railway pay home to his mother. He had a circle of friends from other farms with whom he played football and went to dances. 9 When he turned seventeen, Mr Dinnison applied to join the RAAF. He passed the medical examination and commenced his service on 24 January 1955. Mr Dinnison did his recruit training for three and a half months at Richmond outside Sydney. He then went to Wagga Wagga, where he completed a trade course as a motor mechanic, at the end of which he was posted to Mallala north of Adelaide to work on motor vehicle maintenance. Mr Dinnison was happy in the service and preferred it to the isolation of the farm. 10 On 20 August 1956 Mr Dinnison commenced a posting at the Base Squadron at East Sale. His duties were driving and maintenance of vehicles. In Sale he met Glenda Daymond, (who was later to become his wife) and soon after he learned that he was to be attached for service at Maralinga. Mr Dinnison's understanding at this time was that Maralinga was a place where atomic research was carried out and that he was going there as a mechanic. 11 After arriving by rail at Watson, Mr Dinnison was taken by bus to the Village. He was issued with a Range pass and a film badge. Mr Dinnison was accommodated in the other ranks' sleeping quarters, which comprised a series of huts to which he referred as "dongas". He worked in Motor Transport with ten or twelve other airmen as mechanics repairing vehicles and cranes at a paved concrete area to which he referred as "the slab". These mechanics also performed driving duties and provided a breakdown and towing service. The work of this section was under the supervision of Warrant Officer Freddy Duroux and Corporal Ted Lawrence. 12 Mr Dinnison recalled attending a lecture soon after his arrival in Maralinga, but he could not recall the nature of the lecture. He did recall being shown a film about precautions during an atomic war. Mr Dinnison was not prepared to deny that he was provided with other information at this time. However, he did not recall being told anything of precautions about exposure to radioactivity and of areas to which he could not go. In particular, Mr Dinnison said that he had never had knowledge of a system involving the classification of a "yellow area", which was marked off by the use of yellow tape, and that he was never told anything about different vehicles having to be used in areas believed to be radioactive. He insisted that, before he gave evidence in this case, he had never heard the expression "dirty track". 13 Job assignments were given to Mr Dinnison by either Duroux or Lawrence. He knew that, if an area was "off limits", a pass was required for entry. Breakdown jobs in the Forward Area involved vehicles driven by personnel from the various scientific groups, to whom Mr Dinnison referred as "boffins". He remarked that these men were always dressed in white overalls and wore white rubber boots, to which they referred as "wellies". Mr Dinnison thought that a respirator was incorporated in a hood forming part of their overalls, but he only ever saw that hood worn folded back. He never encountered one of these scientists wearing a face mask or using any breathing apparatus. Mr Dinnison always travelled to his jobs by way of "main roads". There was a boom gate at Roadside. Initially he was stopped there once or twice, but afterwards he was waved through. Half the time the boom gate was open, and he just drove straight through. Mr Dinnison remarked that the road from Roadside to the Kittens test area was sealed, but he could not remember whether any other roads beyond Roadside were sealed. After he located a vehicle, Mr Dinnison would fix the problem (which might be a tyre blowout or a broken fan belt), hand the vehicle back to the scientist and return to "the slab". Mr Dinnison said that he never saw a vehicle with yellow fenders. 14 Mr Dinnison said that went to the Marcoo and Breakaway sites several times, mainly to attend breakdowns, although he allowed that a couple of times he was stickybeaking. The first time he went with a soldier who was working in the area. The ground was glazed. The crater at Marcoo was deeper than Breakaway, but the crater at Breakaway was a greater size and roughly equivalent in area to a small Australian Rules football field. Mr Dinnison denied that there was "no indentation of any kind" at Breakaway. He also said that he did mechanical work on a vehicle for a boffin near One Tree, but he does not know if he "got right to One Tree". Otherwise Mr Dinnison never went north of those Buffalo sites, although he once took a party of boffins through Emu to Coober Pedy. He never walked across any yellow tape. He may have seen signs warning of imminent entry to a radioactive area. He cannot specifically recall that he did see such signs, but he said that he would, in any event, have taken no notice because he was following orders. 15 One of Mr Dinnison's visits to the vicinity of Marcoo or Breakaway (he cannot remember which) was not routine. He and another man from his section were directed to meet two boffins at Roadside. There they were given white overalls and boots to wear. They were also given a mask. Mr Dinnison and his colleague then followed the boffins to a point about 150-200 metres from a crater where another vehicle was located five to ten feet off the road. Mr Dinnison did not notice any distinctive yellow markings on this vehicle but it did have a broken axle. The boffins remained in their own vehicle while Mr Dinnison and his workmate got the damaged vehicle back on the roadway and hooked up the tow ropes. The ground "crumbled" beneath their feet. At some point in this exercise Mr Dinnison and the other man put on the masks which had been supplied to them. When the masks "fogged up" straightaway, they took them off and finished placing the damaged vehicle in position to be towed. The party then proceeded back to Roadside where the boffins produced a Geiger counter and passed it over Mr Dinnison and the other man. It made a clicking sound and they were told they would have to be decontaminated. The two men went with the scientists to a building near the Kittens area. There they went through a procedure of showering and walking through a hoop-shaped device like an airport metal detector. This procedure was repeated four or five times until Mr Dinnison and his colleague were permitted to dress in their normal uniforms which they had earlier surrendered at Roadside. (Mr Dinnison said that the Kittens area was not far from the Airfield and had a sign saying it was a "closed place".) Mr Dinnison returned to Roadside and towed the damaged vehicle from there to the Decontamination Area near the Village where they dropped it off to be decontaminated by Rod Aiton and George Yet Foy. Mr Dinnison told Duroux that he had been in a "hot" area and that his film badge had not changed colour. The service vehicle was not decontaminated, but Mr Dinnison changed his film badge. 16 Mr Dinnison was never tested again. He never again went so far "into" the area of any of the Operation Buffalo sites. Mr Dinnison believed that the white overalls protected him in an area into which he had previously ventured without such a garment. 17 Prior to the Operation Antler explosions Mr Dinnison also went to those sites, five times to Tadje, five times to Biak after the first explosion and once or twice to Taranaki. He drove a water tanker to each of the tower bomb sites in order to put water around the bomb. He was there by himself. There seemed to be no security anywhere "once you pass through the boom gates". (Mr Dinnison volunteered that his impression that there was no security was confirmed by the way in which a party of Aborigines had been able to wander into the Range from the Wild Dog area. Mr Dinnison had to manhandle these individuals, but did not think that his actions had exposed him to radiation.) He thought there was a lookout tower at Roadside, but he had never seen any other lookout towers. Mr Dinnison knew that "there was security out there" in the Forward Area, but he never came into contact with it. 18 At the Taranaki site Mr Dinnison had nothing to do with the bomb. He had been part of a convoy which took "the Scammells" out there and, if he made another visit, it was a small breakdown job, such as a wheel change. The convoy included four or five men from the transport pool, none of whom had any protective clothing. (He recognized the Health Physics caravans as a "mobile decontamination unit" from a photograph he had seen since leaving Maralinga, but he had never entered one of them.) 19 Mr Dinnison's section assembled at the Village during the firing of the rounds in Operation Antler. He was told to turn around, to face away from the blast and to cover his eyes. He did not feel any fear in rounds 1 and 2. Mr Dinnison did in round 3. He saw the bones through his hands. He felt nauseous. The cloud formation shown in the photographs forming part of exhibits 56 and 57 did not accord with his recollection. (Mr Dinnison said that watching images of the bomb detonating in that video recording caused him "a lot of discomfort". That may be so, but it was not apparent to me.) Two or three days after round 3, Mr Dinnison was told that the cloud drifted over the Village as a result of a wind shift. At the time this did not cause him any concern, and it never entered his mind that he had inhaled radioactive particles as a result of fallout. 20 Mr Dinnison regarded any area north of Roadside as contaminated. He had not felt endangered until after the occasion when he was given the white overalls to wear. Mr Dinnison then considered himself to be at risk in the Forward Area of exposure to radioactivity at hazardous levels. He only went there for a reason, that is, because he was sent. After round 3 he went to the area around Roadside fixing vehicles, but he did not go up to the blast site. Other personnel in the Motor Transport section did go to the blast site to recover jeeps used as targets in round 3. Mr Dinnison left Maralinga in November 1957. 21 Mr Dinnison's present belief is that he was sent into contaminated areas by his supervisors, who had not been informed that those areas were contaminated. Before he left the RAAF, he believed that he and his colleagues were used as guinea pigs because they had not been protected during the explosion. Mr Dinnison thinks now that he should have been provided with protective overalls every time he went to the Forward Area to recover or fix a vehicle. I shall return to Mr Dinnison's evidence after I have dealt with events at Maralinga. 22 Ronald Arthur Warren was called and gave evidence in Mr Dinnison's case. He was born on 29 October 1937 in Adelaide and joined the RAAF at the same time as Mr Dinnison. He also did recruit training at Richmond and the motor mechanics trade course at Wagga Wagga. Warren and Mr Dinnison spent time together socially, and Mr Dinnison got on well with other people. After completing his course Warren was posted to the Base Squadron at Wagga Wagga. He next saw Mr Dinnison at Mallala en route to Maralinga. Warren travelled to Maralinga with Mr Dinnison. They were taken from the rail siding at Watson by bus to the Village. He was not given any introductory talk. Warren reported for duty the next day at the workshops. He was shown over the Motor Transport section by Flight Sergeant Kitson. Warren serviced vehicles in the workshops and performed occasional driving duties, such as delivering parcels and mail, driving the water tanker and ferrying scientists around the Range. He also did some breakdown repairs and vehicle retrievals. These latter tasks were allocated by Kitson or Duroux. He would be given a job card and told where to go. Warren drove along the sealed road to such jobs. North of Roadside he noticed the observation towers used by the peace officer guards. Prior to the explosions he went to Tadje a couple of times to recover vehicles and take them back to the Village. He was told that he would know he was there when he saw some tape and that the vehicle was beyond this tape. It did appear to have been some kind of barrier, although it was on the ground. The tape was of the type depicted in the photograph exhibit 25. It did not occur to Warren that that area might be cordoned off because of hazardous levels of radiation. He cannot recall ever having to show a permit to enter a particular area. He also went twice to a place he called Emu Camp. 23 Warren thought that the rounds in Operation Antler were fired about a month apart or perhaps a little longer in the case of the last one. Warren was at "Emu Camp" for the Taranaki round. He had been directed to take a group of English scientists there. Prior to firing Warren was told to turn away from the blast area and to close his eyes. He was wearing sunglasses and placed his right hand over them. He noticed a flash and could see the bones in his hand. Then he heard a noise like great thunder and a "heatwave from the dust" came across him. Warren saw a mushroom-shaped cloud drift over him, travelling south. He felt cold with fright for a minute or so. The slouch hat he was wearing nearly blew off. 24 After the Taranaki explosion, some four hours later, he was part of a convoy of four vehicles that moved off from "Emu Camp". Each vehicle had two scientists completely clad in protective clothing. The rest of the party comprised military personnel in normal uniforms. The vehicles travelled across the desert, not on the sealed roadway, for approximately two miles in the direction of Taranaki. Warren noticed that at this point the ground was glazed. The vehicles stopped and, when the scientists alighted, they donned both the hoods on their costumes and masks with a breathing filter. The scientists walked towards the blast site with Geiger counters. He got out and walked ten or twenty paces, but the scientists at the rear of the advancing party told him to go back to the vehicle. From the vehicle he could see farther off to the north a military tank that was half melted and an aircraft that was half burnt-out. When the scientists returned to the vehicles after about an hour, Warren and the rest of the party returned to "Emu Camp". (In cross-examination, he said that he did not drive the scientists back.) At "Emu Camp" they were told that they would have to be decontaminated. They went to a shed "just out of Emu". A Geiger counter was passed over him and he was directed to shower, which he did. 25 About a week later he took a boffin out beyond "Emu Camp" to inspect a tower. This was not in the vicinity of Taranaki. Warren saw en route signs such as that depicted in exhibit 26 stating: "Danger. Radioactive Area. No Entry Unless Wearing Full Protective Clothing and Travelling in a Yellow Vehicle." He had also seen them on the day of the Taranaki blast. The tower he visited had originally been intended as a test site, but was not used. This boffin was dressed "virtually the same as I was". 26 After Taranaki Warren knew the significance of the yellow tape. He also understood yellow vehicles were used in radioactive areas. He remembered such vehicles being kept in a separate outer compound. He never went into the Health Physics caravans, although he had heard of persons having to do so on their way back from contaminated areas. 27 He left Maralinga at the same time as Mr Dinnison, although perhaps not on the same aircraft. At the end of their tour of duty he had noticed no change of personality in Mr Dinnison. He was the same easy-going fellow that he had known throughout their time together at Maralinga. Soon afterwards Warren was briefly attached to a unit at East Sale, where he caught a glimpse of Mr Dinnison at work. Otherwise he did not see Mr Dinnison again until Mr Dinnison looked him up in Wagga Wagga in the 1990s and told him about this case. 28 Graeme David Newgreengave evidence. He was born on 28 April 1937 and enlisted in the Australian Regular Army on 25 January 1952. In 1956 Newgreen became a member of the Australian Radiation Detection Unit ("ARDU"). He worked first at Emu and was assigned to Maralinga prior to the fourth round in Operation Buffalo. 29 At Breakaway survey lanes extending for nearly a mile were marked out at various angles from ground zero as part of the preparation for radiation surveys after the explosion. These lanes were numbered and members of the ARDU placed wooden stakes along them at intervals of 100 feet. 30 Newgreen saw the Breakaway explosion from Roadside. About one hour after the firing he moved into the blast area to conduct a survey. He reached a point several thousand feet from ground zero. The area was too active to go farther. It was a matter of weeks before he reached ground zero. The surveys involved plotting lines which connected points of equal radioactivity. He explained that these lines were like isobars of equal pressure on a weather map. This work permitted the measurement of the rate of radioactive decay on subsequent visits. Radiation contour surveys were also conducted at the earlier test sites for Operation Buffalo, although lanes were not marked out on those sites. Two radioactive areas were marked out by tape erected between star pickets by members of the ARDU - a Red area defined by red tape at the periphery of the test sites and an area "in further" marked out by yellow tape. The members of the ARDU also took samples of air, water and soil for testing. 31 Prior to entering the yellow areas he and the other members of the ARDU passed through a Health Physics facility at either the Decontamination Centre located about a mile east of the Village or a caravan in the Forward Area, where they were issued with dosimeters and film badges and dressed in protective gear. They were given respirators which he wore on windy days. If processed at the Decontamination Area, they took a yellow vehicle and drove "straight on" north up the "dirty track" west of the sealed road into the Forward Area. Alternatively, if processed in a caravan, a yellow vehicle was picked up there. Yellow vehicles were not allowed on sealed roads, and they travelled over "dirty" tracks into the yellow area. 32 Dosimeters were devices used by individuals to monitor their radiation exposure so that they were able to withdraw from an area well before their permitted dose limits were reached. Film badges did not change colour in radioactive areas, although people on the Range thought that they would. Newgreen was involved in the development of the film badges. When developed, they were checked against a graph which showed the "optical density versus dose rate". Records were kept of individuals' readings on their dosimeters. 33 Members of the ARDU worked under the supervision of Mr Harry Turner in the Health Physics group. Newgreen worked in the Health Physics caravans. Persons proceeding to the yellow area were issued with protective clothing, boots, overshoes and gloves, together with a dosimeter and film badge. They would be allocated a yellow vehicle. When a person returned, the vehicle was left in the "dirty vehicle park". Inside the caravans the dosimeter and film badge were turned in at the first partition together with any other instruments. The individual was then checked with a radiation counter. If there were any "hot spots" on the clothing, the person undressed. The clothing was placed in bins for laundering in a special area (where incidentally Newgreen had worked). The skin was then checked and, if radioactivity was detected, the individual showered until it was "off". Newgreen observed this practice and followed it himself. If he had ever seen anyone in a radioactive area without protective gear, he would have reported "to the base straightaway". 34 As part of the preparation for the Antler series of tests, Newgreen was involved in placing pegs in a radial fashion out from ground zero at the test sites. There were observation towers at Eagle and Rainbow manned by peace officer guards. At One Tree he did see a small armoured car, three tanks and artillery pieces which had been used as targets. Newgreen never saw a bomb at any of the Antler sites. (He explained that the British were obsessed with security.) He never saw a young man watering the tower at any such site. 35 Newgreen saw all three Antler explosions from Roadside. Each time he went into the blast area an hour after the detonation to carry out a radiation survey. At Tadje and Biak he probably got as close as several hundred feet to the centre, but it was possibly weeks before he got to ground zero at Biak. 36 Taranaki was different. Newgreen could see quite clearly three balloons over the site. Although he could see something below them, he could not make it out. Roadside was about eight miles from the test site. The explosion was "very impressive". Newgreen explained that, although it was a sunny day and his group had their backs to the explosion, "you could see the flash go past you, it was that bright". 37 One hour after the explosion Newgreen traversed the site from one side to the other in a vehicle travelling at about fifty miles per hour. His party was able to drive quite easily across the road which was compacted at the point below the burst. His party was wearing "protective gear, respirators, everything". That same day Newgreen commenced measuring in the lanes of what looked like a cartwheel, but he was "quite away out", "say several hundred feet", from the hub. 38 After and during the Antler series of explosions, all access to the yellow area was controlled through the Health Physics caravans located near Boundary or south of Mina on the road from Iwara. Newgreen confirmed that they were depicted as HP1 and HP2 on exhibit 59. He himself was decontaminated at various times at all Health Physics sites in the Forward Area. Newgreen did see a "Bedford" vehicle that he thought was used as a target in the Taranaki test. 39 Newgreen left Maralinga in November 1957. He returned there in 1959 for a radiation detection course and in 1960 as an instructor. Newgreen left the Army in 1961. In February of that year he went back as a civilian to Maralinga where he worked until February 1963. 40 The other member of the ARDU who gave evidence was Valdis Page. He arrived at Maralinga ten days after the Taranaki explosion. Page was engaged in radiation surveys at the test sites. He described the kit provided and the equipment used. Geiger counters were used to measure beta activity. Page identified a dosimeter and a film badge. He used a dosimeter to assess his radiation exposure so that he knew when to "scuttle" out of an area. Film badges were handed out during his time by a Mr Peter Woods. (He was originally with the British Health Physics group but stayed on after the Antler series.) Page later worked at Lucas Heights on developing film badges. The density of a film had to be assessed in a densitometer after it was developed. 41 The principal witness for the Commonwealth was Alan Charles Flannery. He was born on 19 April 1921 and joined the Australian Imperial Force on 11 June 1940. Flannery saw active service in Egypt and Greece. He was medically evacuated from Crete. Flannery then served in Palestine and Syria as part of a wireless section on radio interception of enemy communications. In the second half of 1941 his unit operated in secret from Souk El Gharb in the mountains behind Beirut. When the war with Japan began, his section was trained in Japanese codes at Souk El Gharb and at Sarafand, which was the British intercept company's base in Palestine. Flannery's section returned to Australia in March 1942. He married in August 1943 and in October 1943 he was posted to New Guinea, where he engaged in intercept operations against the Japanese. Flannery returned to Australia in April 1944 and was assigned to the Central Bureau in Brisbane. In May 1945 he was transferred to Melbourne where he served until his discharge on 5 November 1945. 42 In January 1946 Flannery joined the Department of Post-War Reconstruction. About six months later he was appointed to a position in the Department of Supply as a security officer in the Weapons Research Establishment at Woomera and Salisbury. 43 In October 1956 Flannery took up the appointment of Range Security Officer at Maralinga. He had visited Maralinga three times previously, in 1954 when he stayed briefly at a camp site during the survey phase, in 1955 for one week during the construction phase, and in July 1956 for two weeks to relieve the Range Security Officer. In that last period he visited most of the test sites being prepared for Operation Buffalo, particularly that at One Tree where there was a very large target response element. 44 The security group at Maralinga comprised personnel from the Department of Supply and peace officer guards. When Flannery took over, the Department of Supply complement consisted of two security officers and two clerical assistants. One of the security officers left at Christmas in 1956 and the other in March 1957, and only the last of those was replaced. Security officers with field duties throughout the period Flannery was at Maralinga were himself and a deputy. The peace officers were under the command of a sub-inspector from the Commonwealth Police, who occupied an adjoining office in the Village. Until June 1957 the sub-inspector was Bill Butcher. He was succeeded by Jim McCaughey. Both men were very efficient and not likely to tolerate breaches of security. Flannery's instructions were passed on to peace officers through the sub-inspector. 45 When Flannery arrived, the security arrangements at Maralinga largely mirrored those in place at Woomera and Salisbury. However, the fact that the Buffalo test sites were radioactive required more elaborate and different procedures to be put in place. The Range Commander, Colonel Durance , directed him and Turner to prepare safety instructions for the Forward Area. Flannery prepared the Basic Security Rules (exhibit 43) which Durance approved in December 1956. 46 The whole of the Range was a prohibited area. Permission to enter was required from the Range Commander between major trials and from the Trials Director in the major trial period. An entry credential was to be carried at all times. For most personnel this was the so-called Maralinga Pass. Personnel arriving at Watson rail siding were directed by a big sign to report to the peace officer's post in an old fettlers cottage, where their names were checked off a "nominal roll" provided by the branch of the relevant service. At the Village new arrivals were then photographed and issued with a temporary pass. 47 All new arrivals were given an induction lecture by the Army at the theatre in the Village. The stores area in the Village was run by the British Atomic Weapons Research Establishment ("AWRE"). The senior stores officer was Bernie Foster. Flannery's film badge was issued by Health Physics, not stores, and it was never changed. 48 Minor trials were conducted by AWRE between the major trials. The sites where these took place were declared "closed places" as announced in signs shown in a photograph he identified. The British scientists worked there in the inter-trial period. These sites were guarded twenty-four hours a day by peace officers. He visited them virtually every working day. None of them was north of Roadside. Australians were not permitted to enter these sites. 49 The control point for the Forward Area was at Mina when Flannery arrived. He identified it in a photograph. At the time there was no general movement of personnel beyond this checkpoint. Health Physics personnel moved directly to the Buffalo test sites via the "dirty road" from the Village. 50 After Christmas 1956 Flannery visited the Marcoo site with Durance and Turner. They were processed through Health Physics caravans. They were equipped with protective gear, boots and overalls with a hood (but not a respirator) and each issued with a dosimeter. The party "ducked under" the yellow tape and went close to the lip of the crater. On return they were checked with a Geiger counter. There may also have been a device to walk through, like an airport metal detector. Flannery then showered and redressed in the clothes that he had worn to the caravan. He identified the Health Physics caravans as like those shown in the photograph in evidence as exhibit 29. 51 On 14 January 1957 the Range Commander approved a procedure that Flannery had drafted for the physical control of personnel entering the Forward Area. This document outlined arrangements for coordination of control between peace officers posted at Roadside and at Eagle Tower and on roving patrol. Persons entering the Controlled Area were required either to be listed on a group permit issued by the Department of Works or to hold a personal permit. Flannery emphasized that security and safety were different responsibilities. Reconnaissance of the Forward Area required contact each day with groups and individuals to ensure that they were in authorised areas. Continuous observation by the peace officer at Eagle Tower was directed to detecting any unauthorised movement of persons in the Forward Area. Protection in the radioactive areas was the responsibility of the Health Physics group, which was responsible for oversighting the removal of persons from unauthorised areas. The procedures required the removal of any person from "the immediate vicinity of the Marcoo crater, or the One Tree, or Boundary glazed areas" to be undertaken by members of the Health Physics group "in full protective clothing". It was necessary to implement that recovery procedure. 52 The checkpoint to the Forward Area was manned by peace officers, not Army personnel. Unauthorised vehicles were not permitted to travel past the checkpoint. The Forward Area was under Health Physics control. Flannery observed that all the Buffalo test sites, with the exception of Kite where there was no radioactivity, were cordoned off by yellow tape. He thought that the tape may have been physically placed between star pickets by Army engineers acting at the direction of the Health Physics team. Signs, such as that shown in the photograph (exhibit 26) identified by Warren, were in place along the approaches to the sites. Notices were displayed on boards throughout the Village, the Engineers camp, Roadside and the Department of Works camp warning that no one was to proceed past the tape denoting yellow areas. 53 All roads north of Roadside to test sites were bitumen. In the inter-trial period there were no British teams in the Forward Area. The Australian Health Physics team was in charge of monitoring radioactive areas. Only yellow vehicles were used in the radioactive areas. Every yellow vehicle was equipped with a radio telephone. Yellow vehicles were not allowed in the Village proper. The servicing and maintenance of the yellow vehicles were carried out in the Decontamination Area by RAAF mechanics specifically assigned for that work. This was a discrete area about three kilometres east of the Village towards the Airfield. The officer in charge of the RAAF Transport section was a Flight Lieutenant Boyd. Flannery did not know Duroux or Lawrence. He identified photographs of the Motor Transport workshops in the Village and of the hard slab in front of the workshops. The slab was used for small jobs, such as running repairs and oil changes. 54 Flannery was never made aware of any breaches of security procedures at Maralinga. He was on leave in May 1957 when an Aboriginal family was discovered at a place called Pom Pom. He learned of this incident from the relieving security officer, Bertram Frederick William ("Wimpy") White. 55 The lookout tower at Eagle was clearly visible from the road to Mina. It was manned by a peace officer equipped with powerful binoculars who had radio telephone contact with a peace officer on roving patrol. From Eagle tower one could see the Buffalo test sites and preparations for the Antler series. There was a lot of construction work in the inter-trial period, not just at Tadje and Biak, but also at Gona which was originally intended as the site of an additional round. After work started at the Taranaki site the procedures implemented in January were altered. The revised procedures were set out in a memorandum Flannery sent on 30 June 1957 to the officer-in-charge of the peace officers. Controlled Area Entry Permits were now only required for persons travelling along the road to Taranaki. All other persons were permitted to proceed as far as "the Yellow Boundary" without entry permits. Entry beyond the Yellow Boundary required a Yellow Permit and such persons were to pass through the Health Physics caravans at Pom Pom. 56 The Director of the Antler trials was one Charles Adams. The chief adviser on Health Physics for the British was a Geoff Gale, and Turner's team of Australians worked under him. During the trials, the Maralinga Range Support Unit under the command of Durance provided services to the British. In practice, there was no alteration in Flannery's authority during the trials. The sites for the Antler series were guarded by peace officers who were physically stationed at those sites where they were quartered in the so-called Queen Mary caravans. Flannery never saw a bomb and he never saw a bomb being watered. Water tankers were used to top up the tanks used by peace officers stationed in the Forward Area. A young mechanic would not have been permitted to work on an actual bomb tower. The weapons were classified for "UK eyes only". British scientists worked on site until up to thirty minutes before each firing and withdrew with the peace officer guard. 57 Flannery watched all the blasts in the Antler series from Roadside. After Tadje he saw for the first time individuals clad in full protective gear such as that shown in the photograph exhibit 3 when he saw a party clad like that move forward from Roadside in yellow vehicles into the blast area. 58 Roadside was about eight miles from Taranaki. He could see three barrage balloons stacked vertically attached to a winch at ground level. However, even with binoculars, he could not see the bomb. The explosion was awesome and more spectacular than the earlier ones. Flannery felt the heat of the blast. He experienced apprehension during the countdown which he considered the most frightening time in a firing because, in the back of his mind, he always thought something might go wrong. Flannery identified a photograph (exhibit 55) of the post-flash glow and a photograph (exhibit 56) showing the stage of the fireball seconds after the explosion. (These photographs were taken from Iwara where the VIP party was located. Iwara, which was equidistant from Roadside and Mina, was about six and a half miles away from the Taranaki bomb site.) The dust cloud after the explosion drifted away in a north-easterly direction. The Village was at least twenty miles from Taranaki. 59 After the Antler series the Range Commander approved on Flannery's recommendation a slight variation in the procedures put in place after Operation Buffalo. The Controlled Area comprised distinct Red and Yellow areas designated by the Health Physics group.

Maralinga - Documentary Evidence 60 In addition to the official documents tendered by the Commonwealth through Flannery, several such documents were tendered as part of Mr Dinnison's case. These included the fifth edition of the Radiological Safety Regulations issued by the Director of the AWRE on 29 March 1956, which may be referred to by the authorised abbreviation RSRM/56(5). These so-called regulations were not, of course, statutory rules in force in Australia. They reflected the agreement between the two governments under which the United Kingdom assumed responsibility for radiological safety at Maralinga. In the period between trials, the Range Commander was to be responsible for health physics and radiological safety. He was to be assisted by a Health Physics Representative appointed by the Australian authorities. Special provision was made in respect of the minor trials carried out during the inter-trial periods. These remained the responsibility of the UK authorities. The British were to assume responsibility for the enforcement of the regulations during the trials. 61 All parties of the Range were to be classified for radiation risk by the Health Physics Representatives. Section 3.2.2 of RSRM/56(5) provided for three categories of areas in which there may be some radiation risk as follows: "(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 this particular area. (c) YELLOW area - Risk of a serious inhalation, ingestion, injection or penetrating, radiation hazard. Fully protective clothing must be worn." 62 Turner, the Australian Health Physics Representative, prepared periodical reports to his superiors in the Department of Supply, which were copied to the AWRE and to the Range Commander. They provide a contemporary account of developments at Maralinga. 63 His report for November 1956 described health control arrangements in the Forward Area, the Decontamination Area and the Village Area. 64 In respect of the Forward Area he reported separately on the "yellow area" and the "controlled area". Turner noted that on every access road to the yellow area there was a barrier at the boundary of that area displaying the internationally recognised radioactive contamination sign. He reported that: "To enter the yellow area it is necessary to adopt the following procedure:- (a) Contact the Health Physics Representative for briefing. (b) Proceed to the Health Control Centre (D.C. Area) and be issued with a film badge, personal dosimeter and protective clothing. (c) Acquire a yellow vehicle, and drive along the dirty track to the forward area. (d) Return via the dirty track to the DC area. (e) Change, shower, be monitored." Turner noted that radio contact was maintained whenever someone was "out" in a yellow vehicle. So far as the Controlled Area was concerned, every access road to the yellow area also had a barrier at an earlier point bearing a sign with a broken red circle containing the red letter R on a blue background. He also said: "Before a person may enter the controlled area; it is necessary to obtain a Controlled Area Entry Permit from the Health Physics Officer who ensures that a sufficient briefing is given for the job in hand. A peace officer who mans the barricade at Mina has instruction to prevent entry to anyone who does not possess an entry permit." Turner later noted that after 1 December 1956 the control post was set up at Roadside. 65 The Decontamination Area was a discrete section of the Range located between the Village and the Watson/Roadside road. Turner described the function of the Health Control Centre in one of the buildings in this area as follows: "This centre issues personal dosimeters, film badges when necessary, and complete sets of protective clothing. In the undressing room there are cupboards in which ordinary clothing may be hung. On return from the yellow area, personnel deposit their protective clothing in special bins, shower, are monitored and then redress." 66 Importantly Turner reported that in the Village Area all film badges were recalled and that in future only personnel entering active areas would be issued with film badges. 67 In his report for December 1956/January 1957 Turner noted that the yellow boundary was being marked out by yellow tape staked to empty cable drums at intervals of about twenty-five yards. A Health Control Map, showing principal roads and work sites in relation to the yellow area, was now issued to all personnel proceeding north of Roadside. 68 The report also noted changes that took effect on 2 January 1957 governing permits to enter the Controlled Area. Supervision of the Controlled Area was to be largely undertaken by security, although the Health Physics Representative was to be responsible for making arrangements for the issue of permits to the area. Authority was given to a nominated Army officer from the ARDU to issue permits for personnel other than Department of Works employees "proceeding north of Roadside but south of the line Boundary-Mina-Gona". The Health Physics Representative remained responsible for all personnel proceeding north of Mina. Turner noted: "Personnel proceeding north of Mina, are first fully briefed on health physics matters. In certain selected cases where frequent entries have to be made by responsible officers, a monthly pass is issued after a suitable briefing. These passes are numbered and entered in a register." 69 Under the sub-heading "Supervision", Turner commented: "To ensure that no person strays from his allotted position into the active area, it is necessary to consider the possible action of the inquisitive, the foolish, the renegade and even the temporarily berserk. With the viewpoint that all possible contingencies must be guarded against, the following procedure has been adopted. On arrival at the Roadside control barrier, all personnel show their entry permits and Range security passes. These security passes ensure that the correct person is using the entry permit. The peace officer notes the names of the personnel, the registration number and the type of vehicle and the destination. This information is phoned through to a second peace officer stationed on top of Eagle tower, who plots it on a map. This peace officer, using binoculars, scans the surrounding area, concentrating mainly on the test area. If a vehicle or person is observed to be forward of Mina and in a position different from that indicated on the map, the peace officer checks with the Roadside control point. If Roadside cannot satisfactorily explain the presence of the intruder then phone calls are made to the following:- (a) Radio operator to switch on the transmitter for the yellow net. (b) Health Physics Representative. (c) Security Officer who notifies the Range Commander. The Health Physics Representative or his Health Controller then operates the yellow net to advise a third peace officer, acting as Roving Patrol, to investigate the locality in which the intruder was reported to be. The Roving Patrol uses a Landrover fitted with a communications set which is always left switched on. If the intruder is in the yellow area, but within sight from the yellow boundary, the Roving Patrol attempts to attract his attention by calling over a public address system. If this fails, then the Patrol dons protective clothing, crosses the boundary and brings out the offender. All vehicles then return by the dirty track to the DC area for monitoring. If the intruder were to be found in a crater area and refuses to answer the loud hailer, then rescue must be effected by a health physics team dressed in protective clothing, and using a yellow vehicle. This procedure became operative on the 16thJan." 70 Turner also said that, whenever a sufficiently large group of new men arrived on the Range, they are given a short lecture on health physics matters. He also noted that two RAAF fitters had been allotted to the Decontamination Area to work on the yellow vehicles. (These men are identified in subsequent reports as Aiton and Yet Foy, to whom Mr Dinnison referred.) 71 In his report for February 1957 Turner noted that the yellow tape had been extended 2.5 miles along the Kite-Nawa road as shown on an attached map, a larger copy of which was tendered by the Commonwealth and received in evidence as exhibit 63. Further he noted that very conspicuous signs measuring four feet by three feet had been erected at locations shown on that map. He said: "The signs are of three kinds:- (a) Controlled Area signs - Red on White. 'Warning - Controlled Area - No Entry - Unless authorised by the Range Commander or his Representative.' (b) Warning signs - Black on Yellow. 'Warning - You are approaching a radioactive area.' (c) Danger signs - Red on Yellow. 'Danger - Radioactive Area - No Entry - unless wearing full protective clothing and travelling in a yellow vehicle.'" Turner also remarked that as from 4 March 1957 the control post for the Forward Area would be moved from Roadside to Iwara. 72 In his March 1957 report Turner noted that certain sites already selected for Operation Antler were, according to RSRM/56(5), within a potential Red area. He described measures taken to ameliorate this situation. It was noted that a forward health control unit had been set up at Pom Pom in anticipation of operations in the yellow area. In his April/May 1957 report Turner was able to report that the caravan at Pom Pom had been able to cope quite satisfactorily with the increased number of entries into the yellow area. He noted that a yellow pass had been introduced to facilitate control of entry into the yellow area. The active area was more accurately defined and the yellow boundary around Breakaway adjusted. Under the heading "Personnel", Turner wrote: "Generally speaking, the average person on the range has an apprehension of radioactivity, which at times borders on fear. Several group lectures have been given in order to reassure those who have the need to work in the forward area, but care has to exercised to ensure that no-one becomes complacent or careless about the matter. Through the co-operation of unit commanders it has been possible to ascertain which particular individuals are unduly worried by the presence of radioactivity. Inevitably, it is found that they are worried by some particular facet e.g. sterility, genetics, sickness etc, which can be rectified by a straight-forward explanation. It is surprising how often people complain of headaches when entering the yellow area believing that it is caused by radiation. Even the medical profession is capable of thinking that a few milliroentgens could produce radiation sickness. There have been various newspaper stories and public rumours that tend to suggest that radioactive fallout is responsible for various conditions in animals and stock." 73 Turner noted in his June 1957 report that a further caravan had been added to the forward health control point in order to cope with the supply of clothing to the increased number of personnel entering the yellow area. He observed that the peace officer look-out had been moved from Eagle to Tadje, but that the road from Iwara to Taranaki was out of sight from the tower at Tadje. 74 For July 1957 Turner reported that the boundary of the yellow area east of the Breakaway was adjusted. He noted that as from 31 July an additional security look-out had been posted at Boundary in order to observe all movement on the southern and western flanks of Breakaway. He commented that this "enabled the complete de-control of the forward area south of the yellow tape and contributed to the general speed-up of the works programme." Turner also noted that the Health Physics site no. 1 in the Forward Area south of Mina had been completed and that all caravans were on site. The handover of control of the range was expected to occur shortly after the arrival of Dale, the British Health Physics adviser on 8 August. 75 At this point it is convenient to interrupt the narrative in Turner's reports and refer to the contents of other documents tendered in Mr Dinnison's case. 76 A bundle of official correspondence, including a report from Flannery's relief White to the Range Commander, deals with the so-called Pom Pom incident, from which the following facts emerge. On the morning of 14 May 1957 an Aboriginal family consisting of "man, wife, son and baby daughter" was detected near the health control caravan at Pom Pom where they had apparently camped overnight. Turner supervised their showering and monitoring and reported that there was no possibility that any of them could have experienced any radiation injury. A peace officer reported that it was ascertained the Aborigines had been walking from Ernabella Mission just below the Northern Territory border to Ooldea Reserve located to the south of Maralinga. The family was removed from the Range the same day. 77 On 1 July 1957 Durance, the Range Commander, issued the Range Standing Orders. This document is a useful source of information about Maralinga. It emphasized that the so-called Maralinga Passes were to be carried at all times. It provided that, except in the course of duty or with express permission, no personnel were to enter areas on which a "Closed Place" sign was displayed. Paragraph 45 required all personnel to "[r]ead and observe the full content of Appendix 'B' to these Orders which details defined Areas, procedures, instructions and orders anent Health Physics". In particular, no person was to be permitted entry to the Controlled Area without a current Health Physics pass. 78 The whole of Appendix B to the Range Standing Orders is significant. The system described by Flannery and Newgreen in their evidence was clearly laid out under separate headings for the Controlled Area, the Yellow Area and the Decontamination Area. I shall set out only the introductory exposition. "3. The principal everyday radiation danger to personnel lies in the forward areas which have been contaminated by fall-out from nuclear explosions, and in the vicinity of the Decontamination Areas. It is for the protection of personnel that areas are defined and controlled. They are designated as follows:- (a) Controlled Area (b) Yellow Area (c) D.C. Area 4. Yellow is the colour that is used to warn or denote the presence of harmful radioactive matter. It is employed as a background on warning notices; to signify contaminated vehicles; to identify the proscribing tape around Contaminated areas; to indicate buildings or apparatuses which house or process radioactive materials; to identify decontamination plants for aircraft, vehicles, contrivances and clothing etc." 79 The British were in charge of the Range during the Antler trials. The leader of the Health Physics Group during Operation Antler was a British Army officer attached to the AWRE, Major W G McDougall. For the duration of the trials Turner performed duties as his deputy. Excerpts from McDougall's report, No. T45/58 Operation Antler were tendered by Mr Dinnison. The following information may be gleaned from this report. 80 The UK Group assumed responsibility for the health control of the Range on 15 August 1957. It exercised control over entry to those parts of the Range known as the Health Physics Controlled Area. A health physics element of the Air Task Group exercised health control at the Airfield. McDougall commented that on the takeover of the Range the yellow area did not in general present a serious hazard and that, with the exception of the crater areas, it could have been classified as Red. On 15 August 1957 the forward health control centre located about one mile south of Mina was put into operation. Yellow vehicles were used throughout the yellow area and protective clothing was issued to all entrants to it. 81 Round 1, the tower burst at Tadje, was fired on 14 September 1957. Prior to firing the caravans were withdrawn to Roadside from the forward health control point. The "yellow fleet", spare generators and water trailers were left at Iwara. This was the practice followed on subsequent rounds. A control point was set up at Roadside, and designated personnel were allowed to re-enter the Forward Area in accordance with a fixed schedule. Following a shot the initial ground survey teams left Roadside travelling on the "clean road" in yellow vehicles that had been decontaminated. These teams were already fully kitted out. All other entrants to the yellow area were processed through the forward health control caravan train colloquially known as "the circus". It took about one hour for the circus to be in operation after leaving Roadside. The boundaries of the Controlled Area were adjusted after each round and in the light of the information from radiation surveys. Everyone on the Range was provided with a map which showed the boundaries of the Controlled Area, and alterations to them were displayed on various notice boards. McDougall reported: "6.1 Yellow Area Entrants to the Yellow Area wore full protective clothing. Personal dosimeters and film badges were issued at the controlled entry point. On firing days respirators were worn; subsequently respirators were carried in bags, to be worn in the event of dusty work being done or of the wind raising the dust. One member of each party was nominated as health escort and carried a Survey Meter No 3 (1324) and extra dosimeters. His duties involved keeping a check on the dose received by his party and ensuring that the current radiological safety regulations were complied with. HP Group possessed a number of Yellow vehicles for use in the Yellow Area (see Section 6.9). 6.2 Red Area Entrants to the Red Area were issued with an individual film badge. Dosimeters were carried on a scale of one per party. The protective clothing worn consisted of rubber boots and cotton gloves. Survey instruments were not usually carried. Normally, clean vehicles were used. 6.3 Blue Area Entrants to the Blue Area travelled in their own vehicles. They carried their personal range film badge. Rubber boots and cotton gloves were worn. 6.4 Returning from Active Areas Persons returning from the Yellow Area were showered and then monitored. When large numbers were involved and the degree of contamination was expected to be low, it was found expedient to monitor them on arrival at caravan HC5 and if they were clean to direct them to change without showering. This practice was not popular as most people were glad of a shower after working in the heat. Red and Blue entrants washed their hands on leaving the area and were then monitored. Their vehicles were checked at the barrier. In the event of persons visiting a clean area forward of Health Control the vehicles in which they travelled were monitored on their return, particular attention being paid to the floor of the driver's compartment." The same routine was, according to the report, followed in the subsequent rounds. The report also said: "Film badges were issued prior to 1st September, to all persons dealing with radioactive material. Anyone entering the Yellow Area at that time was issued with a badge at the Health Control site. As the doses incurred were negligible it was the practice to leave the badge at the site and collect it again on their next entry. Those badges were developed weekly. On 1st September a general issue was made of PM1 films to everyone on the range. Badges were issued as follows: by Group Leaders to AWRE personnel; by the Adjutant Maralinga Airfield for Air Task Group, Antler; by the Adjutant Maralinga Range Support Unit for the balance of the people on the range. Arrangements were made whereby the Peace Officers at the airfield and at Watson issued badges to all new entrants after 1st September. They also collected the badges of all people leaving the range. The range badge lasted throughout the trial except for people dealing with radioactive materials whose badges were changed fortnightly. After Round 1 all entrants to the Red and Yellow Areas through the Health Control site were issued with a badge on a once-only basis. At the airfield the groundcrews concerned were given a badge on firing day and a second badge to cover the subsequent period between rounds. Once only issues were made to all aircrew involved. PM1 films were issued on all occasions except for sampling aircraft crews where PM3 films were carried in addition. All film badges were recalled by 21st October, except those held by people participating in minor trials." 82 Counsel for Mr Dinnison also tendered an excerpt from the report of Air Commodore WP Sutcliffe, the British Services Commander. It stated that there were three main units on the Range during Operation Antler: the Range Support Unit ("in which six services were represented"), the AWRE staff made up of twenty separate Scientific Groups and the Air Task Group. Sutcliffe noted that security at Maralinga was an Australian responsibility. He referred in his report to British embarrassment at the failure to obtain proper advance security clearance for members of the Air Task Group. Counsel cross-examined Flannery about this matter, but he knew nothing of it. However, it is quite apparent from the report that Sutcliffe was not concerned with issues of radiation protection and safety, but of official secrecy. 83 A short report by Durance, the Range Commander, for the period 23 August - 10 October 1957 was also received in evidence. He noted that "the maximum strength" on the Range during Operation Antler was 1,548 and that the service and civilian components of the Support Unit carried out the duties required of them. 84 After the Range reverted to Australian control, Turner apparently resumed monthly reports. His report for November 1957 is in evidence. Turner reported that the Controlled Area contained both Red and Yellow areas in accordance with RSRM/56(5) and that the boundary of the Controlled Area was also the boundary of the Red area. Nine and a half miles of Controlled Area boundary had been fenced with star pickets at twenty-five foot intervals ready to carry nine and a half miles of red tape which was due to arrive on 10 December. Barriers and signs were erected at all entry points to the Controlled Area. Entry to the Controlled Area was made via the forward health control point caravans Personnel desiring entry first contacted the Health Physics Representative who decided the mode of entry and dress. This information was passed on to the caravan attendant, who could then supply the necessary clothing and equipment. There were delays in the construction of a tower at Rainbow, which was hoped to be manned by early December. During construction of the tower, the security barrier was first at Iwara and then at Roadside. He noted that Newgreen had left Health Physics on 25 November and that the two RAAF mechanics, Yet Foy and Aiton, had been replaced. 85 Finally, there is the Range Commander's report dated 15 January 1958 covering the period from completion of Operation Antler. Durance noted that the Range complement was to be reduced to 245 servicemen, 148 British and 97 Australian, with components from all three services. He also noted that a small team of fourteen maintenance tradesmen from the Department of Works was now integrated with the service engineers. (His earlier report had noted that there were 63 civil engineers from the Department on the Range during the tests.)

Maralinga - Findings of Fact 86 The Range described in their evidence by Mr Dinnison and Warren sounds like a completely different place to that described by the other witnesses and in the documentary evidence. Mr Dinnison's claims to have visited several times the test sites at Marcoo and Breakaway, in particular, are extraordinary, as is his evidence that he actually saw the bombs at Tadje and Biak. These particular claims are not supported by Warren's evidence. It is true that Warren said that he had been to Tadje but, when asked to place it on a map, he indicated that Tadje was south of Iwara. This was plainly wrong. Warren's recall of the landscape in the Forward Area was different to Mr Dinnison's. He did recall the lookout towers manned by peace officers. However, I have little confidence that Warren's recollection of precise locations and names was reliable after such a gap in time. Plainly he was confused about the name of the place which he referred to continually as "Emu Camp". There was no camp in the Forward Area of that name, although he appears to have had in mind a camp near Iwara. Two young aircraftmen, mustered as transport mechanics, certainly had no professional reason to be intimately familiar with developments on the Range. All the other witnesses did. 87 Flannery was a most impressive witness. He had a distinguished war record and a professional's respect for security. I think that I may be permitted to know that the Central Bureau represented a highpoint in American/Australian joint intelligence operations in World War 2. He gave his evidence confidently, but carefully, and exhibited a thorough knowledge of the arrangements for control of personnel in the Forward Area. Flannery's evidence made it clear that the control systems put in place by the Australians continued under the British during Operation Antler. Counsel for Mr Dinnison cautioned me against assuming that procedures laid down in official documents were necessarily observed and reminded me of the tendency of persons charged with responsibility for safety and security to be defensive of the implementation and execution of systems they had designed. However, bearing that in mind, what is striking is the attention to detail and the seriousness with which Durance, Turner and Flannery discharged their duties. The Pom Pom incident with the Aborigines was not ignored or brushed aside. The conduct in which Mr Dinnison claims to have engaged would have constituted flagrant and repeated contraventions of the rules put in place. It cannot be supposed that it would have completely escaped the attention of the peace officer guards. Newgreen's evidence is also important. He worked continuously in radioactive areas and in the Health Physics caravans. Newgreen gave his evidence after useful detailed maps were eventually located and tendered by the Commonwealth. His evidence reinforces my satisfaction that the "yellow boundary" was physically maintained and that the control of movement beyond it was strictly monitored. 88 It is not at all to the point that Duroux and Lawrence did not give evidence. They may be dead. It does not matter. Mr Dinnison does not suggest that either of them accompanied him to any of the Buffalo or Antler test sites. I find that neither man ever sent Mr Dinnison to a job in a radioactive area. Mr Dinnison claims never to have seen yellow tape, lookout towers or vehicles with yellow mudguards. I also find that he never worked on a "yellow" vehicle. The Forward Area was not at all times a Controlled Area, and the control point was not at all times at Roadside. It is possible that Mr Dinnison was occasionally able to travel beyond Roadside without being checked by a peace officer. There is, however, simply no question but that the roads to Mina and the test sites were sealed. His suggestion that he would blithely ignore warning signs and enter a radioactive area without protective clothing because he was following orders is ridiculous. I am satisfied that Mr Dinnison never visited the Buffalo sites which were radioactive. It is more than likely that Mr Dinnison was warned in a lecture about the significance of the Yellow Area and that he saw notices in the Village informing him of its significance. His story about watering the bombs at Tadje and Biak is bizarre. There is no scientific evidence before me at all about those weapons. That is hardly surprising. Indeed, even now, forty-five years later, such evidence may be highly confidential. All the documentary evidence reeks of the importance attached to the security of such sites during the height of the Cold War. Mr Dinnison may well have had driving duties with water tankers that took him into the Forward Area, but the whole notion of a young service mechanic being left alone with an atomic weapon is a fantasy. However, I do not think that Mr Dinnison has deliberately invented a false story. He may well believe that such events occurred. He has obviously been obsessed by his experiences at Maralinga since his health deteriorated. I shall shortly come to that evidence. 89 I accept that from time to time Mr Dinnison was sent to assist vehicles whose drivers wore white overalls. This does not mean that he was sent to contaminated areas. On the contrary, as I have said, he was not sent to such areas. That leaves the single incident when Mr Dinnison claims to have been "decontaminated". This issue is not, in my view, clarified by the equivocal answers to interrogatories tendered against the Commonwealth. The Kittens areas were "closed places". I am not satisfied that Mr Dinnison was ever decontaminated in such a place. On the other hand, it is quite possible that, on the occasion he says he was given special kit and equipment at Roadside, he was subsequently processed at a Health Physics caravan. What is striking about Mr Dinnison's account of this incident is that by this stage he apparently knew Yet Foy and Aiton had a specific decontamination responsibility in the Health Physics group. The decontamination procedure described by Mr Dinnison is one Newgreen had subjected himself frequently, and I find that on the one occasion Mr Dinnison went through this process the Health Physics personnel obviously persisted until they were satisfied any contamination was removed. Taranaki was not in a radioactive area prior to the explosion at that site. It was, however, in the Controlled Area and, if Mr Dinnison did take some Scammell vehicles out there as part of a convoy, the convoy would have to have been checked by peace officers.

Life After Maralinga 90 After departing Maralinga, Mr Dinnison took several weeks' accumulated leave. He then recommenced duties with the Base Squadron at East Sale. On 27 December 1958 Mr Dinnison married Glenda Daymond. He was then posted to the Adult Trainee Squadron at Wagga Wagga where he undertook a transport fitters course for six months. At the end of the course Mr Dinnison was posted back to East Sale. The Dinnisons' first child, Terry, was born on 11 January 1960. On 27 August 1960 Mr Dinnison was operated on for acute appendicitis at Sale Base Hospital. Mr Dinnison's final posting was to the Base Squadron at Wagga Wagga on 10 October 1960. He was discharged from the RAAF on 23 January 1961. 91 Mr Dinnison's first job after discharge was with Thiess Brothers on the Snowy Mountains hydro-electric project. During this employment he lived at Khancoban, and whilst there he met a carpenter called Tom. This man claimed to have been in Japan after World War 2 and told Mr Dinnison that people in Hiroshima had suffered problems which resurfaced years after the war. This information frightened Mr Dinnison. 92 Then Mr Dinnison moved to work on the Moondarra Reservoir in the Latrobe Valley. His second child, Craig, was born on 27 August 1961. In 1964 the family moved to Melbourne. Mr Dinnison worked as a duct fixer with air-conditioning firms. The family lived first at Preston in premises that included a milk bar which Mrs Dinnison ran. They "got out of that" and moved to Glenroy. A third child, Neil, was born on 20 July 1967. 93 Mr Dinnison started bleeding "from the bowel" in 1967 or 1969. His teeth started "bending" in 1969 or 1970, and over a period of six to eight months a dentist extracted them and replaced them with false teeth. About the same time his eyesight deteriorated. He was prescribed spectacles. A doctor told him that he required an operation for cataracts and pterygia. After a surgical procedure performed by a Dr English, he required stronger spectacles which he still wears. Since 1970 he has experienced bladder trouble with micturition. Mr Dinnison believed then (as he believes now) that his ailments were caused by his "contamination" at Maralinga. 94 In 1975 Mr Dinnison moved his family to Perth because his son Terry suffered badly from asthma and Perth had a drier climate than Melbourne. He continued working in air-conditioning, but he was no longer able to read plans because of difficulties with his eyesight. This meant he could not work as a leading hand and his wages were lower than he had earned in Melbourne. In 1978 he consulted a Dr Tan about his rectal bleeding because he thought he had cancer. Mr Dinnison was then referred for a colonoscopy which resulted in the removal of polyps. He subsequently had a further colonoscopy. Mr Dinnison said that as a result of these problems he got angry and had problems with his social life. (He had first noted episodes of rage in the 1970s in Melbourne.) 95 Mr Dinnison took contracting jobs as a driller in remote rural areas. This was because he felt the need to withdraw from society in Perth, not because he could get better money in the bush. Between 1981 and 1991 he undertook a series of assignments as a services supervisor or coordinator for the Aboriginal and Torres Strait Islander Commission ("ATSIC") at remote Aboriginal communities in the Northern Territory and in Western Australia. In 1983 he consulted a doctor about a rash on his scrotum and was referred to a dermatologist. His wife continued to live in Perth, but in 1987 she joined him at Punmu in the Pilbara. 96 In 1989 Mr Dinnison was aboard a light aircraft which crashed into the harbour at Port Hedland after taking off on a flight to Punmu. He was concerned about his safety because two of the other passengers, including a young girl, could not swim. However, the incident was "not really" traumatic and he considered the third bomb at Maralinga "a lot more devastating". Later, in January 1990, there was a tragic incident in which eight people from Punmu died in the desert after their truck ran out of petrol in circumstances that required ATSIC to advise Mr Dinnison and his wife to "get out" of Punmu for the sake of their safety. Mr Dinnison said that this was very stressful, but that it "did not inflict wounds on me like Maralinga did". In 1991 whilst working at Lajamanu in the Northern Territory, he suffered a stroke which caused him to leave that job. 97 Mr Dinnison then moved to a "bush block" at Darlington Point near Griffith in New South Wales. In 1994-95 he was employed at Barters Chickens in Hanwood, and afterwards he worked for seven to eight months at the rice mills in Coleambally. The Dinnisons went to live in Darlington Point because their son Terry worked nearby in Griffith. Mrs Dinnison worked as a cashier at Woolworths in Griffith. They did not socialize much "because of the problems I had". 98 In 1996 Mr Dinnison returned to Western Australia. He worked as a self-employed truck driver for two years. In cross-examination, he agreed that he recently told a doctor whom he saw for the purpose of this case that he had suffered from high blood pressure for the past five years. However, he took medication which ensured that condition was not a problem. Mr Dinnison also told the same doctor that he had a short temper and was irritable and that in the past he had obtained relief from Aboriginal healing techniques and medicine. Between 12 December 2000 and 3 February 2001 he worked as a relieving co-ordinator for Aboriginals at Wirramanu. 99 Mr Dinnison is now living in the Perth suburbs. His sleep patterns changed after the Taranaki explosion. He dreamed sporadically about it, particularly when he was having problems with his eyesight and teeth. Since 1999 he has been under the care of a Perth general practitioner, Dr Bouverie, who prescribes Zoloft tablets for him. After taking that medication, he felt much calmer and got on better with his wife with whom he used to argue. Mr Dinnison now has greater social confidence mixing with people. He now had very few bad dreams, perhaps only three or four in the last five years, and each of them was precipitated by an imminent visit to Sydney to see doctors in connection with this case. No doctor, other than Dr Bouverie, has ever suggested to Mr Dinnison that his problems, such as those with his teeth or bowels, are in any way related to his service at Maralinga. He understands Zoloft to be an anti-depressant. 100 The applicant's wife, Glenda Amanda Dinnison also gave evidence. She was born in Sale and grew up there. In 1956 she met Mr Dinnison at a dance in Sale. They went out together seriously for three months before he went off to Maralinga. Mrs Dinnison recalls him at that time as a happy-go-lucky fellow who was outgoing and the life of the party. Whilst Mr Dinnison was at Maralinga, they corresponded. When Mr Dinnison returned from Maralinga, she thought that he "wasn't the same man". He was withdrawn, frightened, fidgety, reserved and uneasy in manner. His letters had given no inkling of this change. Mr Dinnison withdrew from her circle of friends and they never went out. Nonetheless, despite her misgivings, they married at the end of the year on 27 December 1958. 101 In Wagga Wagga, whilst he was on the fitter's course, the Dinnisons did not live at the base, but in town. Mr Dinnison's sleeping patterns were quite normal. Although he was reluctant to talk about Maralinga, Mr Dinnison told his wife that he had been through the decontamination process there many times. He first told her this four or five months after his return from Maralinga. About twelve months after he came back, he commenced to have episodes of rage which continued unabated for nearly forty years until he started taking Zoloft. She could not estimate the frequency of these outbursts. After Terry was born, they had no social life. 102 Whilst they were living at Moondarra, their second son was born and they did not have any social contact. Mr Dinnison became restless and had difficulty in sleeping. The Dinnisons moved to Melbourne to start a small business. They bought a delicatessen in Preston and they lived on the premises. The shop was open seven days a week from 6.30 am until 11.00 pm. Initially they both worked in the business, but Mr Dinnison gave it away after nine months. He could not relate to customers and found it too stressful. After a short period as a salesman, Mr Dinnison got a job in the construction industry. She ran the business for about five years, although it was a bit stressful with two small children to look after. The family did not have a social life. Mr Dinnison's sleep was restless. He told her that he was dreaming of Maralinga and the bombs. They sold the business in 1965 or 1966, before Neil was born. The Dinnisons moved to Pascoe Vale. Mrs Dinnison got a job with Coles at Coburg. There were no family outings. Mr Dinnison did not watch his sons play sport. After Pascoe Vale the family moved to Glenroy. 103 In Melbourne the Dinnisons always had a family doctor. She noticed blood on Mr Dinnison's underwear. Yet Mr Dinnison did not see a doctor about it. He said they could not afford it. His teeth were treated at the Dental Hospital. Some time after Mr Dinnison's problems with his teeth, he used to wake up and tell her about his dreams. Whilst at Glenroy, they had started to socialize, but his bladder problem put an end to such activities. 104 When the family moved to Perth, they moved house a lot. Mr Dinnison did not seem settled. He would go into rages which involved verbal abuse. He was not violent, but the rage was always directed at her. The atmosphere in the family home was "pretty terrible", Mr Dinnison wanted to get away and be by himself, but she did not regard them as separated. When she went to live at Punmu, Mr Dinnison subjected her to rages once more. Mr Dinnison did not appear to be distressed by the plane crash, although he was alarmed following the Aboriginal deaths in the desert. She did not think either event affected him psychologically. 105 After Mr Dinnison's stroke they stayed with their son Terry at Griffith and that was how they came to purchase the "bush block" at Darlington Point. There they lived, first in a caravan and, later, in a house transported onto the block. The Dinnisons lived in Darlington Point for five years. The rages continued, and she occasionally sought refuge with her son in Griffith. The Dinnisons had no social life. She was the one who wanted to return to Perth. 106 Since returning to Western Australia, the Dinnisons have lived together apart from Mr Dinnison's stint at Wirramanu. The Zoloft tablets have made an immense difference to Mr Dinnison. Initially his dose needed to be increased. Now his sleeping patterns are back to normal and he is "the old Barrie" that she first met. Since taking Zoloft Mr Dinnison has not told her of any dreams about Maralinga. 107 Norman Stanley Lever gave evidence. He lives at Yenda near Griffith and has worked at Barter Enterprises' chicken processing facility at Hanwood for fifteen years. Mr Dinnison worked under his supervision for four to five months. His duties involved mechanical construction in the transport department and setting up equipment. At different times this involved working alone and as part of a small group. They did not socialize after work, but Mr Dinnison got on with everyone. He was a quiet man who got on with his work, which was performed satisfactorily. Mr Dinnison contracted ringworm infection which caused him to stop work and for which he received workers compensation. 108 The final lay witness was Brian Lorbackwho lives at Darlington Point. He has worked at the Rice Growers Co-operative in Coleambally for fourteen years and met Mr Dinnison when he was working at he mill. They became friends. Mr Lorback kept horses on the Dinnisons' block which he visited from time to time. At home and at work Mr Dinnison was a friendly and outgoing person who liked to tell a joke. Mr Dinnison was very popular at work.

Medical Evidence 109 Dr Anthony Dinnen, a consultant psychiatrist in Sydney, saw Mr Dinnison on three occasions: 1 April 1993, 6 May 1999 and 5 April 2001. He believes Mr Dinnison suffers from post-traumatic stress disorder/generalised anxiety disorder as a result of his experiences at Maralinga. 110 The Commonwealth had Mr Dinnison examined in Sydney by two consultant psychiatrists, Dr John Ellard and Dr John R Champion, and a clinical psychologist, Associate Professor Richard Bryant. Dr Ellard saw him on 6 May 1999 and 4 April 2001. He did not think that Mr Dinnison had any psychiatric disorder at all. Dr Bryant saw Mr Dinnison on 4 April 2001. His opinion was that Mr Dinnison did not suffer post-traumatic stress disorder as a result of the Maralinga experience. He could see no evidence of a casual relationship between the Maralinga explosions and any psychological problems in Mr Dinnison. Dr Champion examined Mr Dinnison on 5 April 2001. It did not seem to Dr Champion that Mr Dinnison was suffering with any form of psychiatric disorder. In particular, Dr Champion did not believe that Mr Dinnison suffered any diagnosable psychiatric disorder or post-traumatic stress disorder as a result of his fear of having been exposed to ionising radiation.

Conclusions 111 Mr Dinnison's action is not one for breach of statutory duty. However, as pleaded, he has relied on the Commonwealth's alleged failure to observe the provisions of a variety of instruments made under statutory authority. In an action for negligence proof of such a failure may constitute evidence that a breach of the duty of care has occurred. 112 Counsel for Mr Dinnison put at the forefront of this aspect of their client's case an order made by the Air Board on 8 November 1954 know as ABO A125/1954. (An appendix to that order contains an interesting glossary of terms.) However, ABO A125/1954 did not apply to Mr Dinnison. First, his duties did not involve exposure to a radiological hazard. Secondly, and most importantly, he did not work in a specified area, such as that at Amberley, which had been declared an "Active Area" pursuant to ABO A125/1954. 113 There was a faint suggestion that Mr Dinnison's situation was affected by an administrative instruction dealing with radiological protection issued in 1956 by the Director General of Medical Services for the Australian Armed Forces, but it only applied to Army personnel. As I have said, RSRM/56(5) had no statutory force, but it was plainly relevant. It envisaged more specific instructions being issued to ensure radiological safety on the Range. Such instructions were set out in the procedures approved by the Range Commander for the control of the movement of personnel in the Forward Area and in Appendix B to the Range Standing Orders. There is no evidence before me from which I could conclude that the precautions in those arrangements did not provide a safe system of work for service personnel, such as Mr Dinnison, in 1957. I have already found that those arrangements were enforced. In my view, reasonable care was taken to warn young service mechanics of how the system worked and competent superiors were employed to oversight and implement the safety arrangements. 114 It is submitted that Mr Dinnison should have been issued with his own personal dosimeter, that his film badge should have been developed and replaced regularly, and that he should have been subjected to regular medical procedures, such as blood counts. The submission is that such actions would have provided reassurance to Mr Dinnison later in life, when he began to suffer a succession of physical ailments, that this deterioration in his health was not attributable to his service at Maralinga. I reject these submissions. There is no evidence before me from which I could possibly conclude that, in 1957 or, indeed, at any subsequent time, such actions on the part of the Commonwealth were required in order to make reasonable provision for Mr Dinnison's safety at work. It may well be, as counsel for the Commonwealth submit, that such actions would unnecessarily have alarmed a young serviceman for no evident good purpose, but I do not need to decide that question. 115 In my opinion, the Commonwealth did not breach the duty of care that it owed to Mr Dinnison and in his action it is entitled to a verdict in its favour. Mr Dinnison must pay the costs of the proceedings. 116 I shall say something briefly about the other issues argued in the case. It is not, strictly speaking, now necessary for me to make findings about Mr Dinnison's psychiatric condition. Dr Dinnen stuck doggedly to a diagnosis of post-traumatic stress disorder, but there was no evidence at all that Mr Dinnison was ever treated by a clinician on such a basis. Moreover, the evidence of the Taranaki explosion is all one way. Acceptance of Mr Dinnison's own account of this event does not lead to the conclusion that he experienced a stressor that could lead to the onset of such a condition. 117 Mr Dinnison's overall experience of service at Maralinga is more problematic. His supposed change in personality was remarked by only one person, his wife. Her observations are based on a comparatively short acquaintance before Mr Dinnison's posting. Warren thought him unchanged. Mrs Dinnison said that her husband told of being decontaminated several times. This seems unlikely. Mr Dinnison did not give evidence of any further episodes. It is idle to speculate about the cause of Mrs Dinnison's concern about her husband, although it must have been very difficult for her, with young children, to have run the shop at Preston. I was left with distinct impression that Mrs Dinnison was far more concerned about Mr Dinnison's state of mind than he was. She noticed his rage was only directed at her. No doubt it is a great relief for her that his behaviour has changed since he began taking new medication. 118 On the other hand, Mr Dinnison remains obviously obsessed by his service at Maralinga. He blames it for most of his physical ailments although not, I think, for the stroke and ringworm. Yet he was a very poor historian from whom it was difficult to adduce in chief a coherent picture of the changes in his health. Counsel for the Commonwealth was only able in cross-examination to obtain any degree of specificity by the use of old service records and the files relating to his claims for employees' compensation. Mr Dinnison could barely suppress his frustration and anger at the way in which servicemen who have rendered operational service overseas are treated more generously in respect of the cost of treatment for their medical conditions. 119 Another odd feature of the case is the modest impact of Mr Dinnison's physical reverses. The trouble with his eyes made it difficult for him to read plans, but otherwise he appears to have been little affected. The jobs in the remote Aboriginal communities were obviously quite responsible and required good planning skills combined with ingenuity in what must have been difficult conditions. Mr Dinnison was able to perform that work very recently, and not so many years ago he was going about his duties apparently unfazed by incidents such as the plane ditching in Port Hedland harbour with him aboard. This is not the picture of a man suffering a psychiatric condition. Of course, individuals present different aspects of their personality at home and at work. Mr Dinnison claimed limitations in his social life as a result of his problems with micturition. Lorback noticed nothing unusual in his personality, nor did Lever. They both saw him get on well in different workplaces. Indeed, Mr Dinnison did not complain that his mental condition precluded him from working. His work record would make such a claim plainly unsustainable. 120 That brings me back to Tom, the carpenter, whose information apparently set Mr Dinnison's mind to worrying about the world he had helped to unleash at Maralinga. Counsel for the Commonwealth point out, correctly, that any concerns created as a result of those conversations are not something for which the Commonwealth can be held liable. Albert Einstein, whose letter to President Roosevelt led to the Manhattan Project, is reported to have said when, later, the atomic bomb was dropped on Hiroshima: "Vey is mir", which may be translated as "Woe is me." Such a remark, whether made by a genius or by a man reflecting on his life as a young service mechanic, is not evidence of a psychiatric injury, but an entirely humane expression of remorse. I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Counsel for the applicant: JJ Graves SC with HWH Bauer

Counsel for the respondent: CT Barry QC with HN Kelly (up until 19 June 2001) and with GJ Davidson (on and after 20 June 2001)

Solicitor for the respondent: Australian Government Solicitor

Dates of hearing: 4-8, 12, 14-15, 18-22 and 25-27 June and 10-11 July 2001