Family can bring a compensation claim against the MoD

However, after the family lodged a claim for negligence after they returned to the UK in 2004, the defendants in the case argued that because the midwife was working under the control and direction of the German Obstetrics team, German Law - which has a limitation period of three years - should apply.

They argued in a hard-fought Court battle that under German Law Harry’s case was out of time and must be thrown out.

But in a judgment handed down today at the High Court by Mrs Justice Alison Foster, DBE, it was found that while the claim should be brought under German Law given that’s where the injuries were sustained, to deny Harry the right to claim compensation under German Limitation Law would be disproportionate and cause him ‘undue hardship’.

The ruling went on to say that even under German Limitation Law, his parents did not acquire knowledge that there had been a deviation from the usual standard of care until the findings of the German hospitals investigation were first made available to them 3 years after his birth. 

The family’s Medical Negligence Lawyer, David Thomas from Simpson Millar’s specialist Medical Negligence team, said the ruling meant they were now in a position to bring a claim for negligence in order to secure a compensation package that would meet Harry’s current and future care needs.

He went on to say that they were ‘relieved’ that they had now succeeded in their quest after what has been an ‘extremely difficult time for them’.

He said, “The parents have fought tirelessly over the past 20 years to ensure that Harry was treated fairly and not denied the right to compensation simply because he was born in a German hospital while his father loyally served his country overseas.

“Harry is now aged 19 and his parents remain resolute as ever to ensure that he has the care he needs. They have endured a long and stressful battle for justice in which every possible obstacle and delay tactics have been put in their way. They now look forward to engaging with the MoD and SSAFA to bring this long and protracted case to its conclusion.”

Lady Justice Foster, DBE paid special tribute to Mr and Mrs Roberts when she remarked, “I must recognise the dignity and grace with which both parents gave evidence concerning these deeply traumatic events. There was no murmur of complaint or dissatisfaction from either. They displayed what appears to me to have been extraordinary resolve and resilience throughout the hearing and, indeed, have done so since these events happened now almost 20 years ago.”

Case Overview

In 2004 the family, who now live in St Helens, Merseyside, filed a negligence claim against the MoD and SSAFA alleging that the British midwife was negligent, including her failure to replace a CTG transducer which had become detached from the mother’s tummy; and her failure to replace a malfunctioning fetal scalp electrode and delays in seeking urgent assistance from the German doctors, meaning there was no effective fetal monitoring of Harry’s heartbeat.

As a result, his brain was starved of oxygen causing irreversible brain injury.

However, the right to bring a claim for compensation to fund vital care was disputed by the MOD and SSAFA, who argued that under German Law, Court proceedings were issued out of time, arguing that under German Law the 3 year limitation period runs from the parent’s knowledge of a potential claim, and the court papers were issued too late.

The legal position in England is very different to Germany in that the statute of limitations will not start to run against a claimant who lacks mental capacity because of the severity of the brain injury suffered. 

Surprisingly, the MOD and SSAFA were effectively seeking to “shut out’’ Harry’s claim by relying upon German Limitation Law.

In the judgment handed down at the High Court by Mrs Justice Alison Foster today, it ruled that:

• Application of German Limitation Law, when viewed under the microscope of the Foreign Limitations Act 1984, would cause Harry undue hardship
  
  
• Even under German Limitation Law, the parents of Harry did not acquire knowledge that there had been a deviation from the usual standard of care, until the findings of the German hospitals investigation were first made available to them 3 years after the birth of Harry. Therefore, the Court proceedings issued in December 2004 were not issued out of time. The defendants argued that the parents were fixed with knowledge as soon as Harry was born or no later than 8 months later when a Senior Physiotherapist informed them that their son had cerebral palsy and would never recover.

Medical Negligence Lawyer David Thomas continued, “They are of course relieved that the defendant’s arguments on limitation have been rejected by the Judge and they can finally bring a claim for compensation in the Courts.

“As well as there being no limitation bar to Harry’s case, Mr and Mrs Roberts can take comfort in the fact that their perseverance in the pursuit of justice may help others in a similar situation to Harry, if they can prove, as they did, that the operation of foreign limitation periods would result in undue hardship.

“We sincerely hope that the MoD and SSAFA now engage in negotiations as part of the next phase of this process so that we can secure a care package as quickly as possible that will mean a better life for Harry, and some much needed respite for his family.”

During a four-day Trial which took place at the High Court in London, the Judge heard that Harry requires round the clock care and communicates through an advanced computer which he operates through eye movement.

David added, “The extent of Harry’s injuries mean he has required regular treatment and surgery, is entirely wheelchair dependent and attends a local Special Needs School where he was voted Head Boy by his fellow students. He loves watching sport and his bedroom is a shrine to his beloved St Helens RLFC’”.