Roberts (a minor) v Soldiers, Sailors, Airmen and Families Association & Ors

Under Private International Law (Miscellaneous Provisions) Act 1995, the law of the place where the tort occurred remains the general rule. It is displaced only where a clear preponderance of relevant factors makes it substantially more appropriate to apply another country’s law. The fact that the parties, tortfeasor or professional standards have connections with England is insufficient where the alleged negligence is embedded in a foreign clinical system.

A foreign limitation period is rarely disapplied for general public policy. Under the Foreign Limitation Periods Act 1984, undue hardship requires excessive and disproportionate hardship caused by application of the foreign period in the particular circumstances. In medical negligence cases, knowledge requires facts sufficient for a medical layperson to recognise a probable departure from ordinary standards and its causal connection with the injury.

The claimant, a protected party who suffered cerebral palsy following his birth in Germany, brought clinical negligence proceedings against SSAFA and the Ministry of Defence concerning the alleged negligence of an English-trained midwife employed by SSAFA. The defendants contended that German law governed the claim and that it was time-barred under German law.

The court determined two preliminary issues: the applicable law and whether any German limitation defence was available, suspended, waived or precluded by estoppel. It also considered whether the German limitation period would cause undue hardship under the Foreign Limitation Periods Act 1984.

1. Applicable law. The alleged tort occurred entirely within a German hospital and was closely connected with a German obstetrician-led clinical system. Those factors outweighed the claimant’s and defendants’ English connections, the midwife’s English training and the application of English professional standards. The general rule in section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 was therefore not displaced under section 12. German law applied.
2. Knowledge and limitation. Under the agreed German law, the primary limitation period was three years from relevant knowledge, with no special protection for minors. In medical negligence cases, knowledge required facts from which a medical layperson could recognise a departure from ordinary medical procedure or the omission of measures necessary to avoid or control complications, together with the causal significance of that departure. The parents’ observations at birth, the obstetrician’s anger and the child’s subsequent diagnosis did not satisfy that test. Sufficient knowledge was acquired when Dr Baysal’s statement and chronology, identifying the midwife’s alleged failure and its causal significance, were received in about June 2003. Proceedings issued on 31 December 2004 were therefore in time.
3. Suspension, waiver and estoppel. The reference to the German medical commission did not suspend limitation against SSAFA or the Ministry of Defence because neither was a party to that arrangement. The correspondence did not amount to a binding standstill, waiver or representation preventing reliance on limitation. Nor did it constitute negotiations concerning a claim against the midwife.
4. Undue hardship. If German limitation had otherwise barred the claim, its application would cause disproportionate and undue hardship under section 2(2) of the Foreign Limitation Periods Act 1984. The relevant circumstances included the claimant’s severe disability, the parents’ limited understanding of medical negligence, the foreign-language and military context, the uncertainty as to responsibility and the fragmented legal assistance.
5. The preliminary issues were determined accordingly. German law applied, but no limitation defence was available. Alternatively, the German limitation period was disapplied for undue hardship.