Family brings compensation claim against the MoD for cross-border negligence

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 foetal scalp electrode and delays in seeking urgent assistance from the German doctors – meaning there was no effective foetal monitoring of Harry’s heartbeat.

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

But sadly, the right to bring a claim for compensation to fund vital care was disputed by the MOD 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 in 2020, 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 hospital’s 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.

One of our Medical Negligence Lawyers 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.

Their lawyer 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’”.

How Simpson Millar Can Help you 

If your child has Cerebral Palsy because of a mistake made before, during or just after their birth by a midwife or doctor, you’ll likely be worried about the future – but Simpson Millar can help you, like we did for Harry’s family.

Our Medical Negligence Lawyers understand that your first priority will be the wellbeing of your family and new baby, so placing a claim will be the last of your worries. Our job is to take away as much of the pressure of the legal claims process as we can, so you can focus on what matters most.

We know that this will be an overwhelming time for you, and you might be unsure about where to start in terms of accessing support and making arrangements for your child’s care. Our specialist Cerebral Palsy Solicitors will outline the help that is available to you as well as securing you access to lifetime support. Call us on 0808 239 0244 and let us help you.