A v Ministry of Defence and Another
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS, MR,LORD JUSTICE TUCKEY,LORD JUSTICE WALL,the Master of the Rolls |
| Judgment Date | 07 May 2004 |
| Neutral Citation | [2004] EWCA Civ 641 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2004 |
| Docket Number | B3/03/2015 |
[2004] EWCA Civ 641
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE BELL)
Royal Courts of Justice
Strand
London, WC2A 2LL
The Master of the Rolls
(Lord Phillips of Worth Matravers)
Lord Justice Tuckey
Lord Justice Wall
B3/03/2015
MR G TATTERSALL QC AND MR H MERCER (instructed by Messrs Simpson Millar, London, SE1 1NL) appeared on behalf of the Appellant
MR DAVID LLOYD JONES QC AND MR ALAN HOPKINS QC (instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondents
Introduction
The appellant is a young boy who has been referred to as A. He sues through his mother, B. His father has been referred to as C. C was, and is, a soldier in the British army. At the time of A's birth C was serving in Germany, stationed at Hameln. B and their two children were living there with him. A was born on 22 June 1998 in a German hospital, the Gilead Krankenhaus at Bielefeld. Unhappily, the German obstetrician who was assisting with the birth was negligent and caused A severe brain damage, which has left him with cerebral palsy. The case advanced on his behalf is that the negligence of the German obstetrician constituted a breach of a duty of care owed to A by the Ministry of Defence ("MoD"). It is alleged that the MoD had owed A a duty to provide obstetric treatment which would be delivered with reasonable skill and care, a duty which could not be delegated ("a non-delegable duty of care"). Whether the MoD owed A such a duty was considered by Bell J as one of four issues of law under the provisions of Part 8 of the Civil Procedure Rules. He held that no such duty was owed.
A appeals against that finding, with permission granted by Bell J. It is common ground that the issue falls to be determined according to English law. If A's appeal succeeds, it will be necessary to consider a further issue: does English law or German law govern the standard of care that had to be applied by the German obstetrician if the MoD's duty to A was to be discharged? This issue is of no significance in this case, for it is accepted that, whichever standard applies, the German obstetrician fell short of what was required. This case is, however, a test case, for there are other actions awaiting the result of this appeal.
Under German law, where a patient claims that there has been clinical negligence, the facts are investigated by an expert commission, called a Gutachter Kommission. Such an investigation was carried out at the behest of B and C in this case. The Kommission concluded that there had been medical malpractice according to German law and standards. The English experts instructed by the parties in this action are agreed that this also constituted negligence according to English standards. Underwriters of the Gilead have admitted liability.
It is now common ground that, if proceedings for compensation are brought in Germany against the German obstetrician or the Gilead, there will be no issue as to breach of duty or causation and that there is no reason to expect that the damages awarded, or offered by way of settlement, will be any less than those recoverable in English proceedings. The judge nonetheless observed that it is not difficult to understand that B and C wish to take action in England, their own country, where they now live and will continue to live with A, and where the damage and losses that he has been caused will be experienced. In order to do so they must establish a cause of action against the Ministry. A claim against the German obstetrician or hospital would have to be brought in Germany.
In 1996 there was a fundamental change in the arrangements made by the MoD for the care in Germany of servicemen and their dependants who needed hospital treatment. Prior to 1996 that treatment would have been provided in British Military Hospitals staffed by doctors, nurses and midwives employed by the MoD. After 1996 special arrangements were made for treatment in German hospitals. In seeking to establish that the MoD owed A a non-delegable duty to ensure that obstetrical treatment was provided to A and B with due skill and care. Mr Tattersall QC put A's case in three ways:
(1) the circumstances prevailing in 1998 were such as to impose on the MoD a non-delegable duty of care to A;
(2) the circumstances prevailing in 1998, as they were reasonably perceived by B, were such as to impose on the MoD a non-delegable duty of care to A;
(3) the circumstances prevailing prior to 1996 were such as to impose on the MoD a non-delegable duty of care to servicemen and their dependants. Once imposed, that duty could not thereafter be removed or discharged by the changes made by the MoD in the arrangements for the provision of medical care.
This action is concerned with the duty of care owed to a child before and at the moment of his birth. Mr Tattersall confirmed that the foundation for many of his submissions was the following provisions of the Congenital Disabilities (Civil Liability) Act 1976:
'1. Civil liability to child born disabled
(1) If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child's own mother) is under this section answerable to the child in respect of the occurrence, the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.
(2) An occurrence to which this section applies is one which-
(a) affected either parent of the child in his or her ability to have a normal, healthy child; or
(b) affected the mother during her pregnancy, or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present.
(3) Subject to the following subsections, a person (here referred to as 'the defendant') is answerable to the child if he was liable in tort to the parent or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability."
The Facts
The judge made detailed and careful findings of fact. These have not been challenged and the account that follows is based on the judge's findings.
Arrangements for the provision of health care by the MoD
Article 13 of the Revised Supplementary Agreement between the Parties to the North Atlantic Treaty regarding the status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany ("SOFA"), provides, in effect, that provisions in force in Germany concerning social security, including medical assistance, shall not apply to members of the British Forces or to their civilian components or to dependants. Such people can pay contributions to German social security on a voluntary basis, and thereby take benefit of the system, but the MoD does not expect them to do so.
Accordingly, the MoD made its own arrangements for health care for Service personnel, civilian employees, and dependants in Germany, and sought to do so to a standard available in the UK.
Until 1996, secondary care was provided in Germany, and other foreign postings, by British Military Hospitals which were staffed by Army and RAF doctors and nurses and midwives, or civilian health professionals employed by the MoD, for whose negligence the MoD was vicariously liable, although in the last years to 1996 the use of the German hospital at Celle was negotiated for some maternity cases.
The British Military Hospitals in Germany were originally set up to provide routine secondary care for British Forces of occupation after the Second World War. More specialised hospital care was provided by referral back to Military Hospitals in England. Primary health care was provided in Germany by Medical Reception Centres, on base, staffed by military general practitioners and civilian GPs employed by the MoD. Community care was provided by nurses and midwives provided by the Sailors', Soldiers and Airmen's Families Association ("SSAFA"), very largely funded by the MoD.
Between 1980 and 1996, the circumstances which had justified this system of secondary care changed. The cold war ended and the enemy which had demanded a fighting force in Germany evaporated. British forces posted in Germany were reduced, with a consequent reduction in the need for hospital care. By 1994 or 1995 the number of British Military Hospitals in Germany had been reduced from a maximum of five to two, one at Rinteln in the Centre of Germany and one at Wegberg on the German/Dutch border. It became the Government's general policy to seek through "market testing" better facilities than existed, for less cost. The philosophy was that government departments or agencies, including the MoD, and the Army and Air Force in Germany, should perform their core functions and let outside bodies perform non-core functions in which they were expert. Finally, there was patient pressure. British service people and civilian employees and their families liked British Military Hospitals, but they could take a long time to get to. They were about three hours apart by road and a long way from some postings. Travel was further complicated in the early 1990s by traffic problems arising from the fall of the Berlin Wall. Generally, a view was gaining ground...
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