Roberts v Soldiers, Sailors, Airmen and Families Association [2020] EWHC 994
This article originally appeared in Issue 6 (September 2020).
The High Court decided two preliminary issues of private international law in a claim alleging negligence of a midwife resulting in acute profound hypoxic brain injury at a hospital in Germany.
Background
Harry Roberts was born on 14 June 2000 in the AKV Hospital in Germany, which provided medical services to members of the UK Armed Forces in which his father was serving. Harry sustained a level 5 Cerebral Palsy. His mother and litigation friend claimed that his injuries were caused by the failure of the midwife to seek the assistance of a doctor much earlier, which would have hastened his delivery and avoided his injuries.
The provision of medical care to servicemen and their families in Germany was governed by a complex series of contractual arrangements. The Ministry of Defence (“MoD”) entered into two key contracts: (1) with the Soldiers and Sailors, Airmen and Families Association – Forces Help (“SSAFA”), which provided community and nursing services, including midwifery services; and (2) with Guy’s and St Thomas’ Hospital NHS Trust (“GSST”) which procured non-emergency healthcare to be provided by certain German providers, including the AKV Hospital.
The contract between SSAFA and the MoD required that service to be consistent with British health standards and cultural expectations and delivered in English. Notwithstanding, whilst working in a German hospital, English midwives had to work under the direction of the German system and to German standards and disciplines. In particular, there was a significant cultural distinction between English midwives and the German system in that in the latter, midwives were required to work more closely under the direction of an obstetrician than in the UK ([32]-[33]).
Proceedings were issued in the High Court in London on 31 December 2004. The claim was brought against two Defendants, alleging vicarious liability for the alleged negligence of the midwife. D1, SSAFA, was her employer. D1 was indemnified by the D2, the MoD. The Defendants commenced part 20 proceedings against the third party, Allegemeines Krankenhaus Viersen GmbH, the body responsible for the AKV Hospital. SSAFA and MoD, in essence, denied any negligent action or omission on the part of the midwife, alleging that any negligence was wholly on the part of the German obstetricians employed by or working at the AKV Hospital.
Preliminary Issues
The High Court was tasked with determining:
1. The applicable law of the Claimant’s claim; and
2. Whether the claim is time-barred and/or whether the Defendants are prohibited from reliance on a limitation defence.
If English law applied, the Claimant, being under a disability from birth, would not be statute-barred. However, in the event that German law was applicable, a number of sub-issues arose, notably:
1. Under the Foreign Limitation Periods Act 1984 (“FLPA”) would the German law of limitation also apply? The Claimant argued that it fell to be disapplied because it was contrary to public policy or because of undue hardship.
2. If the German law of limitation applied, had the cause of action accrued and limitation expired by December 2004?
The Decision
Mrs Justice Foster held that German law was applicable under s.12 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”). The Claimant was only fixed with sufficient knowledge according to German law in June 2003, when a clinician’s letter implicating the midwife’s standard of care became available. The claim was in time. In the event that this was not the case, the application of the German limitation period would be disapplied for imposing undue hardship upon, pursuant to s.12(2) FLPA.
Applicable Law: PILA
It was common ground that the applicable law must be determined under PILA. The relevant law is set out in sections 11 and 12. S.11 states the “general rule” that: “(1) … the applicable law is the law of the country in which the events constituting the tort or delict in question occur.” S.12 states a secondary rule that may displace this where “it is substantially more appropriate” for the applicable law to be that of another country. The statute dictates a comparison of the significance of the factors connecting the tort or delict with the country in which it occurred and with that of the other country, including “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” (s.12(2)).
The Court noted that the correct approach to this question was as set out in Dicey, Morris & Collins on the Conflict of Laws 15th Ed at 35-148, namely that “the provisions of s.12 have been applied to displace the law applicable under s.11 on very few occasions.” The Court also noted that “the party seeking to displace the law which applies under s.11 must show a clear preponderance of factors declared relevant by s.12(2) which point towards the law of the other country. Whether that is the case will depend on the facts of the case and on the particular issue or issues which arise for decision.” ([115]).
The Claimant argued that although prima facie the case fell within the provisions of s.11, s.12 applied to take the case out of the general rule. The Claimant emphasised that Harry’s parents were in Germany because his father was serving the British Crown, their sole connection to the country; the effects of the tort would be experienced in England; the nurses were trained in England according to English standards; and in carrying out their role they sought to abide by duties and obligations imposed by their English training and regulation.
On the other hand, the Court identified numerous factors connecting the tort to Germany, notably: care was under a German obstetric team led by a German obstetrician, in a country where perinatal care was obstetrician-led; the tort took place entirely in a German hospital; and the alleged negligence 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.” In circumstances where there were a number of factors going ‘both ways’, the Court could not conclude that there was a “clear preponderance” of factors connected to the tort itself tying the case to England. The significance of the whole obstetric team, being German obstetrician-led, was a highly persuasive factor ([133]): the British midwifes were “grafted on” to the German obstetric system and “naturally subordinate to the direction of German obstetricians” ([134]).
The Foreign Limitation Periods Act (“FLPA”)
S.1 of FLPA provides that where in any action the law of any other country falls to be taken in to account, the law of that other country relating to limitation shall apply in respect of that matter except where an exception under s.2 applies, namely where its application would to any extent conflict with public policy or where its application would cause undue hardship. The Claimant relied upon the fact that having a disability has no resonance for the German law of limitation.
The Court noted that a foreign limitation period is only very seldom disapplied on grounds of public policy ([155]). The absence of protection for a person with a disability in the law of German limitation was not a ground for holding that the German limitation period was contrary to public policy: different policy choices may be made under foreign law and whereas some aspects of one jurisdiction may be less generous, others may be more beneficial ([162]-[163]).
Regarding undue hardship, the court held that this must be “over and above the hardship that is inevitably caused by the application of the foreign limitation period itself”. Hardship was interpreted as meaning “significant detriment” ([181]). The hardship exception would apply in the event that German law compelled an earlier date of knowledge than the court’s finding ([184]). The Court emphasised that if German law were to fix knowledge based on conversations in the immediate after birth, or upon receiving the devastating news of permanent impairment, there would be disproportionate hardship in the particular context of this case which included very serious injuries and a first time mother giving birth in a foreign country. The court further emphasised the complexity of the legal context and the uncertain disposition of potential liability ([185]).
Limitation
In any event, the German law of limitation required time to run from the point where the facts known to the Claimant are sufficient to “arrive at the conclusion of culpable misconduct by the defendant and of the cause of this misconduct appear obvious for the damage or the necessary subsequent operation” (sic.,[222]). The quality of knowledge would be of a relatively detailed nature and patients were protected from being required to “join the dots” from pieces of information ([230]). The court accepted that knowledge held on behalf of Harry was insufficient to commence an action until the doctor’s statement implicating the midwife in the birth became available in about June 2003 ([85]-[86], [239] – [255]).
Conclusion
The judgment provides a detailed exposition of the principles relevant to litigating claims complicated by an international element and the factors which a court will take in to account in exercising its discretion to disapply a foreign limitation period. A very close analysis of the factual circumstances will be required, with the very particular factual and legal context in this case driving the Court’s conclusion in respect of the application of the “undue hardship” exception under FLPA.
