In this blog post, 12KBW pupil Cressida Mawdesley-Thomas looks at the recent case of Harry Roberts v (1) SSAFA (2) MOD v AKV (Part 20) [2020] EWHC 994 (QB), which involved allegations of clinical negligence arising out of the claimant’s birth in a German hospital serving British military personnel and their families. The judgment relates to the issues of applicable law and limitation rather than substantive clinical negligence matters; however, it is useful for practitioners dealing with claims where the index treatment has occurred abroad.
The Facts
Mrs Roberts gave birth to the claimant, Harry, in June 2000 at the AKV hospital in Germany. Harry was born in Germany because his father was serving in the UK armed forces and the family lived in military accommodation there. Harry suffered from acute profound hypoxic brain injury, resulting in significant disabilities, which was alleged to have been due to the negligence of a midwife. This midwife was employed by the Soldiers, Sailors, Airmen and Families Association (“SSAFA”), the first defendant, but worked at the AKV hospital, the Part 20 defendant. The claimant’s claim against the first and second defendants was issued out of the High Court on 31 December 2004.
The MoD’s provision of secondary medical care in Germany for servicemen and their dependents was made through a complex series of arrangements and has been the subject of previous proceedings. In short, SSAFA was responsible for the provision of general and community nursing under a contract with the MoD. The MoD also entered into a contract with Guy’s and St Thomas’s Hospital NHS Trust (“GSST”) for procurement of all non-emergency secondary care, which was fulfilled by GSST entering into contracts with the German providers, one of which was the AKV hospital. Accordingly, the SSAFA-provided English midwives were required to work to English standards, but in a German hospital under the direction of the German system and to German standards. This created tensions, particularly as German birth practices were more clinician-led than midwife-led.
In this case, Mrs Justice Foster gave judgment on two preliminary issues arising out of the claimant’s claim: (1) whether German law applied; and (2) if so, whether the claim was time-barred under German law or whether the defendants were not entitled to rely on any limitation defence. Overall, the judge held that German law applied and that the claim was not time-barred. However, Mrs Justice Foster went on to say that, if the claim was time-barred, the German limitation period should be disapplied on account of the undue hardship it would cause.
Determining the Applicable law under PILA
There was no dispute between the parties that the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”) applied. This is because the alleged negligence took place in 2000 and the Rome II Regulation on the law applicable to non-contractual obligations only came into force on 11 January 2009.
The Relevant PILA Provisions
Section 11(1) reads as follows: “The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.”
However, the general rule may be displaced under s.12(1) if the factors which connect the tort with one country show that it is “substantially more appropriate” for that country’s law to apply. The factors to be taken into account, per s.12(2), are “factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.”
Counsel for the claimant agreed German law was applicable under s.11 of PILA but relied on s.12 to argue that the general rule should be displaced. The judge examined the different factors which connected the tort to Germany and England, which are set out below:
| German Law Factors | English Law Factors |
| The midwife was part of a German obstetric team, led by a German obstetrician in a country where perinatal care is led by obstetricians, not midwives. | The claimant and defendant were English. |
| The tort took place entirely in a German hospital. | The claimant’s father was in the service of the British Crown. |
| All antenatal care took place in Germany. | The defendant employer of the alleged tortfeasor, and its indemnifier, the MoD, are UK- based and represent UK institutions. |
| The presence of the Roberts family in Germany was not transitory, so they could not be classified as temporary visitors. | The defendant midwife was trained in England and posted to Germany to offer an English-type service. |
| The alleged negligence of the midwife was wholly bound up with the procedures and expectations of the German obstetric system, and with this her interrelationship with the German doctors and the hospital (which elements would necessarily be governed by German law). | English midwives were required to adhere to their English registration requirements when practising abroad. |
| The MoD was providing a German hospital obstetrics system for UK service personnel and their families, albeit they sought to ameliorate the experience by employing English-trained midwives. | The alleged negligent midwife, as a registrant of the (then) UKCC, could be called to account by reference to the standards deriving from her British registration as a midwife. |
The table illustrates that the evaluation of factors for determining the applicable law is fact-dependent. In the instant case, the judge observed that the English midwives were merely “grafted on” to a German obstetrics team working in a German hospital. It is also worth highlighting that, in respect of PILA, trying to persuade a judge that the law of the country where the tort occurred should be displaced will be an uphill battle. Mrs Justice Foster cited ‘Dicey, Morris & Collins on the Conflict of Laws’ (15th Ed.) which states “The provisions of s.12 have been applied to displace the law applicable under s.11 on very few occasions.”
Limitation under German Law
Whether the Claim Was Time-Barred
The judge then determined whether the claim was time-barred under German law (there was no dispute that German law had to be considered, as per s.1(a) Foreign Limitation Periods Act 1984 (“FLPA”)). Under German law, a party has three years to bring a claim, but the time only starts to run once the claimant has knowledge that there has been misconduct or a deviation from accepted standards. The claimant will not be imputed with knowledge or expected to “join the dots” to deduce that a required standard had not been met. Accordingly, the claimant’s mother only had the necessary knowledge to start time running when she received a letter in June 2004 which implicated the midwife as being negligent. As a consequence, when the claim was brought in December 2004, it was not out of time under German law.
Disapplication of the Foreign Limitation Period
Mrs Justice Foster went on to consider, if she was wrong in holding that Harry’s claim was not out of time under German law, whether the limitation period could be disapplied. A foreign limitation period can be disapplied pursuant to s.2 of the FLPA where it would “conflict with public policy” or “cause undue hardship”.
Public Policy
The judge was reminded that the disapplication of a foreign limitation period under s. 2(1) of the FLPA on the grounds of public policy is only exceptionally successfully invoked. The foreign law must outrage an English court’s “sense of justice or decency” and be “manifestly” incompatible with English public policy (per Scarman J in The Estate of Fuld, deceased (No.3) [1968] at p.675). This test will not be met simply because the foreign limitation period is less generous than the comparable English provision (Durham v T&N plc 1 May 1996 Court of Appeal, unreported). Further, the fundamental principle of justice with which it is said the foreign law conflicts must be clearly identifiable, and the principle must be evident in English law. It was also noted at [155] when citing ‘McGee, Limitation Periods’ (8th ed.) that “[l]imitation law is about balancing the interests of claimants and defendants and different states may legitimately take different views about where the proper balance lies. Judges should be very slow indeed to substitute their views for the views of a foreign legislature.”
Accordingly, it was held that the German law of limitation, which does not recognise the disability of the claimant (unlike in England and Wales where it abrogates the limitation period of 3 years), was not contrary to public policy. Mrs Justice Foster stated at [182] that “there is no public policy offence in the disparity between the English policy decision to remove limitation in the case of a disability such as that suffered by Harry, and/or to afford protection to a claimant during their minority, and the German system which does not protect these classes of claimant in this way.”
Undue Hardship
The disapplication of the limitation period on the basis of undue hardship under s.2(2) FLPA was also a high bar to meet. Mrs Justice Foster observed at [181] that (emphasis added) “… the hardship suffered must be properly described as over and above the hardship that is inevitably caused by the application of the foreign limitation period itself. I interpret “hardship” as meaning significant detriment, since the statute indicates is a subset of the notion of “public policy”. It must therefore be a detriment of real significance which should not be countenanced.” It was also noted that the case law (summarised at [172] and the subparagraphs thereto) “compels a highly fact sensitive assessment of undue hardship”. The judge found that this case concerned “a badly affected victim of cerebral palsy, and a primigravida giving birth in a foreign country” and that “it would be a disproportionate application of the law contrary to public policy, to deprive her of her action on behalf of her son” [185]. Accordingly, it was held (albeit obiter) that the German limitation period should be disapplied on the basis of undue hardship. Mrs Justice Foster expressly rejected the defendant’s submission that the claimant had failed to adduce sufficient evidence of undue hardship, and she concluded that it was clear from the evidence available and the “unusual circumstances” of the case [282].
Comment
These issues are unusual for clinical negligence claims, and certainly most of the cases summarised on this blog centre on allegations of negligence against healthcare providers based in England and Wales. Of particular note was the military setting of this case, which gave rise to the complex arrangements of control over the midwife against whom the allegations were focused. This case is helpful in setting out some of the considerations that the court will have when faced with cross-border clinical negligence claims, most importantly applicable law and limitation. With a cross-border case, it is crucial to ensure that, where foreign law might apply in respect of limitation, the claim is within those time limits too and not just within those time limits provided under the law of England and Wales.
Clinical Negligence Law 