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A (a child) v Ministry of Defence
[2004] EWCA Civ 641, [2005] QB 183, [2004] 3 WLR 469, 82 BMLR 149, [2004] 22 LS Gaz R 32, (2004) Times, 17 May, [2004] All ER (D) 96 (May)
Court: CA
Judgment Date: 07/05/2004
Case History
Annotations | Case Name | Citations | Court | Date | Signal |
- | A (a child) v Ministry of Defence | [2004] EWCA Civ 641, [2005] QB 183, [2004] 3 WLR 469, 82 BMLR 149, [2004] 22 LS Gaz R 32, (2004) Times, 17 May, [2004] All ER (D) 96 (May) | CA | 07/05/200 | |
Affirming | A v Ministry of Defence | [2003] EWHC 849 (QB), [2003] 26 LS Gaz R 39, (2003) Times, 16 May, [2003] All ER (D) 312 (Apr) | QBD | 16/04/200 |
Cases considered by this case
Annotations: All CasesCourt: ALL COURTS
Treatment | Case Name | Citations | Court | Date | Signal |
Considered | Cassidy v Ministry of Health | [1951] 2 KB 343, [1951] 1 All ER 574, 95 Sol Jo 253, [1951] 1 TLR 539 | CA | circa 1951 | |
Considered | Gold v Essex County Council | [1942] 2 KB 293, [1942] 2 All ER 237, 40 LGR 249, 106 JP 242, 112 LJKB 1, 86 Sol Jo 295, 167 LT 166, 58 TLR 357 | CA | circa 1942 | |
Considered | Wilsons and Clyde Coal Co Ltd v English | [1938] AC 57, [1937] 3 All ER 628, 106 LJPC 117, 81 Sol Jo 700, 157 LT 406, 53 TLR 944 | HL | circa 1938 |
NEGLIGENCE - DUTY OF CARE - MEDICAL TREATMENT - PROCUREMENT OF HEALTH CARE FOR SERVICEMEN AND DEPENDANTS POSTED TO GERMANY - FIRST DEFENDANT CONTRACTING WITH SECOND DEFENDANT TO ARRANGE FOR PROVISION OF SECONDARY HEALTH CARE BY GERMAN HOSPITALS - CLAIMANT SUFFERING PERSONAL INJURY DUE TO NEGLIGENCE OF GERMAN DOCTOR IN GERMAN HOSPITAL - FIRST DEFENDANT NOT OWING CLAIMANT NON-DELEGABLE DUTY TO ENSURE THAT DUE SKILL AND CARE EXERCISED IN GERMAN HOSPITAL
In 1996 there was a fundamental change in the arrangements made by the defendant (MoD) for the care in Germany of servicemen and their dependants who needed hospital treatment. After 1996 the MoD closed its own hospitals in Germany and did not set out to arrange directly for the provision of secondary health care by German hospitals (DGPs). Instead, it entered into a contract with the second defendant, an NHS trust, whereby the latter undertook that task, although the MoD provided the funding. The MoD had, therefore, no direct contractual nexus with the DGPs. The claimant was born in Germany in June 1998, whilst his father was stationed there with the British army. He was born in a DGP. The German obstetrician who was assisting at the birth was negligent, and caused the claimant severe brain damage, which had left him with cerebral palsy. He commenced proceedings against the MoD on the basis that it had owed him a non-delegable duty to provide obstetric treatment which would be delivered with reasonable skill and care, and that the negligence of the German obstetrician had constituted a breach of that duty. The judge considered as a preliminary issue whether the MoD had owed the claimant such a duty, and concluded that it had not. The claimant appealed. It was common ground that if the appeal failed and the claimant brought proceedings for compensation in Germany, there would be no issue as breach of duty or causation, and that there was no reason to expect that the damages awarded, or offered by way of settlement, would be any less than those recoverable in English proceedings.The claimant accepted that hitherto a non-delegable duty had only been found where a claimant had suffered an injury while in an environment over which the defendant was in control. However, he relied on public policy grounds to support his argument, namely that it was desirable that British servicemen and their dependants should be able to sue the MoD in England in respect of medical negligence suffered in a foreign hospital rather than being constrained to bring proceedings in the foreign jurisdiction in question, particularly since it was the government's policy preference that NHS patients should be able to sue the NHS in England rather than have to resort to litigation abroad if they were authorised by the NHS to receive treatment abroad in order to reduce waiting lists.
Held - The appeal would be dismissed.There was no justification for imposing a non-delegable duty on the MoD to ensure that due skill and care was exercised in the German hospitals which provided secondary health care for British servicemen and their dependants whilst stationed in Germany.Even if it were correct that an NHS trust which sent one of its patients abroad for treatment owed a non-delegable duty to ensure that the patient received careful treatment, it would not follow that the same was true of the MoD in the instant case. The MoD was no longer in the business of treating patients in hospital in Germany. Its sole role was that of arranging for such treatment to be provided by others. Moreover, the liability should ultimately come to rest on the hospital where the negligence had occurred. It was undesirable that that should involve a chain of claims based on contractual indemnities rather than that the claimant should sue the German hospital directly.
