Harry Roberts (A minor and a protected party, by his mother and litigation friend, Mrs Lauren Roberts) v Soldiers, Sailors, Airmen and Families Association
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster |
| Judgment Date | 24 April 2020 |
| Neutral Citation | [2020] EWHC 994 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2004-000001/HQ04X04213 |
| Date | 24 April 2020 |
[2020] EWHC 994 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Foster DBE
Case No: QB-2004-000001/HQ04X04213
and
Derek Sweeting QC (instructed by Simpson Millar Solicitors) for the Claimant
Charles Hollander QC & Niazi Fetto (instructed by GLD) for the Defendants
Hearing dates: 25 November 2019 – 28 November 2019
Approved Judgment
INTRODUCTION
Harry Roberts was born on 14 June 2000 in the Allegemeines Krankenhaus in Viersen, North-Rhine Westphalia, Germany (“the AKV Hospital”), a hospital providing medical services to families and members of UK Armed Forces in which his father was at the time a serving member. It is alleged that at the time of his birth, Harry suffered an acute profound hypoxic brain injury, accordingly, although aged 20, he is a protected party as a result of the injuries suffered at his birth.
He has had level 5 Cerebral Palsy and is 100% dependent on the care of others. Has bilateral dystonic athetoid cerebral palsy. He has no independent mobility; relying upon a wheelchair. His fine finger movement is limited and he is doubly incontinent. He is able to vocalise but cannot speak and suffers from some sensorineural deafness. At the special school that he attends he has full support. He feeds primarily through a gastrostomy tube and has required surgery in respect of orthopaedic issues to do with his hips and further surgery in respect of his spine is anticipated.
Harry's case (which I describe here variously as his case or, his mother's case, not intending any distinction) is that the negligent failings of Midwife Clelland who attended his mother's labour in the latter stages and who is employed by the first defendant, caused his injuries. The central allegation is that she ought to have sought the assistance of hospital doctors at a much earlier point and that such action is likely to have hastened his delivery and allowed his birth without the injuries from which he now suffers. The claimant says that the first and/or second defendant is vicariously liable for the midwife's acts or omissions.
Proceedings were issued in the High Court in London on 31 December 2004 and have been subject to a number of stays and orders since that date. The claimant brought proceedings against the first defendant Soldiers and Sailors, Airmen and Families Association – Forces Help (“SSAFA”) and the Ministry of Defence (“MoD”) on the basis of the first defendant's vicarious liability for the negligence of the midwife. They did not sue the German hospital.
A joint defence was filed on 17 February 2016 on behalf of the first and second defendants. The second defendant, who in fact indemnifies them, argues that liability is that of the first defendant. The defendants commenced Part 20 proceedings against the third party, the body responsible for the AKV Hospital where Harry was born.
Whilst the first defendant admits that Midwife Clelland was its employee, it denies that it was vicariously liable for any failings on her part saying she was working under the control and instruction of the AKV Hospital, who were the sole providers of medical obstetric expertise through its medical practitioners. It is denied that the defendants are liable for any negligent acts or omissions that may be proved against Midwife Clelland at trial, but, in any event, it is the failure of the hospital clinicians to note and react appropriately to visible decelerations which they say occurred both in the course of early antenatal treatment and in the course of Dr Baysal's examination of Harry's mother between O240 and 0250 on 13 June 2000. They say it was not a culpable failure not to call the doctor as alleged, and even were it a failure, the doctor would have done nothing different from what she did do in any event.
SSAFA and the MoD say in a nutshell:
a. that if there was any negligent action or omission then it was wholly on the part of the German obstetricians who are employed by and/or working at the AKV Hospital; that is to say no negligence by Midwife Clelland is accepted by the first or second defendant, however,
b. if she was negligent, the AKV Hospital is vicariously liable for that negligence in German law which applies to the case and
c. if and to the extent that Midwife Clelland was negligent, then so also were the doctors from the AKV Hospital.
Twice before, the court has decided preliminary issues arising out of Harry Roberts' claim concerning contribution and the third party proceedings.
THE ISSUES
The questions of private international law arising in this trial of preliminary issues will give answers which are relevant to limitation of action against the claimant upon which the defendants wish to rely.
This judgment is in respect of two preliminary issues ordered to be heard by Master Yoxall on 31 July 2018 arising in the clinical negligence action in respect of Harry Roberts. These issues arise between the claimant and the defendants.
They were described as follows:
a. the applicable law of the claimant's claim against the defendants;
b. whether the claim is time-barred and/or whether the defendants are prohibited from reliance on it by any applicable limitation provision and, if pursued, whether the defendants are estopped from relying on, or have waived any entitlement to rely on, any applicable limitation defence.
The effect upon the claim made by Harry Roberts of the answers to these questions is considerable.
If, in answer to the first question (a), English law applies, then the claimant, being under a disability from birth, will not be statute barred. However, if German law applies then, (b) a number of sub-issues arise:
i. German limitation – is it to be disapplied? If the applicable law of the claim is German law, whilst it is clear the substantive negligence and quantum issues in the claim will be covered by German law questions then arise under the Foreign Limitation Periods Act 1984 (“FLPA”) as to whether or not the German law of limitation should also apply: the claimant's case is that it falls to be disapplied because it is contrary to public policy either generally or, because it causes undue hardship in all the circumstances including not recognising the disability of the claimant as does English law and not abrogating the limitation period of 3 years.
ii. German limitation – date of accrual of cause of action? If the German law of limitation does apply then there is a dispute as to the effect of that law upon the facts of this case: the defendants say that the claimant's cause of action had accrued and limitation had expired by December 2004 when the claim was issued.
iii. German limitation – is the period inhibited or suspended? If the defendants are correct that under German law Harry Roberts is prima facie time-barred, it is accepted that that limitation period may be “inhibited”, or maybe “suspended” by certain factors such as an assertion of legal rights or as a result of negotiations. The claimants rely on features of the negotiations between Harry Roberts mother and the Army Legal Service and a reference of the case to the Nordheim Experts Commission by the second defendant.
iv. Estoppel/waiver? Further, the claimant's assert that a letter from the Army Legal Assistance in April 2003 operates as a form of estoppel in German law prohibiting reliance on the German limitation period
SUMMARY OF CONCLUSIONS
Given the length of this judgment, and the necessity for a certain amount of detail it appears to me most practical that I give here, in brief the answers to the questions that have arisen. I use with gratitude the framework of issues provided by the claimant's counsel.
Thus:
a. Although Germany is the place where the tort took place under section 11 of PILA, is it substantially more appropriate to apply English law to the claim pursuant to section 12 of The Private International Law (Miscellaneous Provisions) Act 1995 (“PILA” or “the 1995 Act”)? Answer: No. German Law is applicable
b. If German law is the applicable law:
i. Did the claimant have sufficient knowledge to start the limitation period running prior to 31 December 2001? Answer: No, the claimant was fixed with sufficient knowledge according to German law for limitation to begin to run in respect of a claim against Midwife Clelland in June 2003 when Dr Baysal's letter and chronology were sent to the ALA and sent to Mrs Roberts.
ii. Was the running of the German limitation period suspended by reason of the reference to the Experts Commission? Answer: No
iii. Was the running of the German limitation period suspended by reason of negotiations between the parties? Answer: No
iv. Was the running of the German limitation period suspended by reason of the claimant's assertion of his legal rights? Answer: No
v. Are the defendants estopped from contending that the limitation period had expired before proceedings were issued? Answer: No
vi. Would the application of the German limitation period be contrary to public policy pursuant to section 2 of the FLPA? Answer: Yes, it would impose undue hardship upon the claimant under section 12 (2) (if I am wrong about the answers to certain of the questions above and that under German law, the claimant is time-barred).
Accordingly, German law is the appropriate law of this...
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