A (A Child), Re [2004] EWCA Civ 641

Case No B3/03/2015[2004] EWCA Civ 641
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE BELL)
Venue Royal Courts of JusticeDate Friday, 7 May 2004
Strand
London, WC2A 2LL
B E F O R E:
THE MASTER OF THE ROLLS
(Lord Phillips of Worth Matravers)
LORD JUSTICE TUCKEY
LORD JUSTICE WALL
Between
A (A CHILD)Appellant(BY HIS MOTHER AND LITIGATION FRIEND B)Appellant-v-
Between
MINISTRY OF DEFENCE & ANORRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR G TATTERSALL QC AND MR H MERCER (instructed by Messrs Simpson Millar, London, SE1 1NL) appeared for AppellantMR DAVID LLOYD JONES QC AND MR ALAN HOPKINS QC (instructed by The Treasury Solicitor, London, SW1H 9JS) appeared for Respondents
J U D G M E N T

LORD PHILLIPS, MR :

[1]The appellant is a young boy who has been referred to asa. A. He sues through his mother,b. B. His father has been referred to asc. C. C was, and is, a soldier in the British army. At the time of A’s birth C was serving in Germany, stationed at Hameln. B and their two children were living there with him. A was born on 22 June 1998 in a German hospital, the Gilead Krankenhaus at Bielefeld. Unhappily, the German obstetrician who was assisting with the birth was negligent and caused A severe brain damage, which has left him with cerebral palsy. The case advanced on his behalf is that the negligence of the German obstetrician constituted a breach of a duty of care owed to A by the Ministry of Defence ("MoD"). It is alleged that the MoD had owed A a duty to provide obstetric treatment which would be delivered with reasonable skill and care, a duty which could not be delegated ("a non-delegable duty of care"). Whether the MoD owed A such a duty was considered by Bell J as one of four issues of law under the provisions of Part 8 of the Civil Procedure Rules. He held that no such duty was owed.[2]A appeals against that finding, with permission granted by Bell J. It is common ground that the issue falls to be determined according to English law. If A’s appeal succeeds, it will be necessary to consider a further issue: does English law or German law govern the standard of care that had to be applied by the German obstetrician if the MoD’s duty to A was to be discharged? This issue is of no significance in this case, for it is accepted that, whichever standard applies, the German obstetrician fell short of what was required. This case is, however, a test case, for there are other actions awaiting the result of this appeal.[3]Under German law, where a patient claims that there has been clinical negligence, the facts are investigated by an expert commission, called a Gutachter Kommission. Such an investigation was carried out at the behest of B and C in this case. The Kommission concluded that there had been medical malpractice according to German law and standards. The English experts instructed by the parties in this action are agreed that this also constituted negligence according to English standards. Underwriters of the Gilead have admitted liability.[4]It is now common ground that, if proceedings for compensation are brought in Germany against the German obstetrician or the Gilead, there will be no issue as to breach of duty or causation and that there is no reason to expect that the damages awarded, or offered by way of settlement, will be any less than those recoverable in English proceedings. The judge nonetheless observed that it is not difficult to understand that B and C wish to take action in England, their own country, where they now live and will continue to live with A, and where the damage and losses that he has been caused will be experienced. In order to do so they must establish a cause of action against the Ministry. A claim against the German obstetrician or hospital would have to be brought in Germany.[5]In 1996 there was a fundamental change in the arrangements made by the MoD for the care in Germany of servicemen and their dependants who needed hospital treatment. Prior to 1996 that treatment would have been provided in British Military Hospitals staffed by doctors, nurses and midwives employed by the MoD. After 1996 special arrangements were made for treatment in German hospitals. In seeking to establish that the MoD owed A a non-delegable duty to ensure that obstetrical treatment was provided to A and B with due skill and care. Mr Tattersall QC put A’s case in three ways:(1) the circumstances prevailing in 1998 were such as to impose on the MoD a non-delegable duty of care to A;(2) the circumstances prevailing in 1998, as they were reasonably perceived by B, were such as to impose on the MoD a non-delegable duty of care to A;(3) the circumstances prevailing prior to 1996 were such as to impose on the MoD a non-delegable duty of care to servicemen and their dependants. Once imposed, that duty could not thereafter be removed or discharged by the changes made by the MoD in the arrangements for the provision of medical care.[6]This action is concerned with the duty of care owed to a child before and at the moment of his birth. Mr Tattersall confirmed that the foundation for many of his submissions was the following provisions of the Congenital Disabilities (Civil Liability) Act 1976:
"1. Civil liability to child born disabled (1) If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child's own mother) is under this section answerable to the child in respect of the occurrence, the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child. (2) An occurrence to which this section applies is one which- (a) affected either parent of the child in his or her ability to have a normal, healthy child; or (b) affected the mother during her pregnancy, or affected her or the child in the course of its birth, so that the child is born with disabilities which would not otherwise have been present. (3) Subject to the following subsections, a person (here referred to as 'the defendant') is answerable to the child if he was liable in tort to the parent or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability."
The Facts[7]The judge made detailed and careful findings of fact. These have not been challenged and the account that follows is based on the judge’s findings. Arrangements for the provision of health care by the MoD[8]Article 13 of the Revised Supplementary Agreement between the Parties to the North Atlantic Treaty regarding the status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany ("SOFA"), provides, in effect, that provisions in force in Germany concerning social security, including medical assistance, shall not apply to members of the British Forces or to their civilian components or to dependants. Such people can pay contributions to German social security on a voluntary basis, and thereby take benefit of the system, but the MoD does not expect them to do so.[9]Accordingly, the MoD made its own arrangements for health care for Service personnel, civilian employees, and dependants in Germany, and sought to do so to a standard available in the UK.[10]Until 1996, secondary care was provided in Germany, and other foreign postings, by British Military Hospitals which were staffed by Army and RAF doctors and nurses and midwives, or civilian health professionals employed by the MoD, for whose negligence the MoD was vicariously liable, although in the last years to 1996 the use of the German hospital at Celle was negotiated for some maternity cases.[11]The British Military Hospitals in Germany were originally set up to provide routine secondary care for British Forces of occupation after the Second World War. More specialised hospital care was provided by referral back to Military Hospitals in England. Primary health care was provided in Germany by Medical Reception Centres, on base, staffed by military general practitioners and civilian GPs employed by the MoD. Community care was provided by nurses and midwives provided by the Sailors', Soldiers and Airmen's Families Association ("SSAFA"), very largely funded by the MoD.[12]Between 1980 and 1996, the circumstances which had justified this system of secondary care changed. The cold war ended and the enemy which had demanded a fighting force in Germany evaporated. British forces posted in Germany were reduced, with a consequent reduction in the need for hospital care. By 1994 or 1995 the number of British Military Hospitals in Germany had been reduced from a maximum of five to two, one at Rinteln in the Centre of Germany and one at Wegberg on the German/Dutch border. It became the Government's general policy to seek through "market testing" better facilities than existed, for less cost. The philosophy was that government departments or agencies, including the MoD, and the Army and Air Force in Germany, should perform their core functions and let outside bodies perform non-core functions in which they were expert. Finally, there was patient pressure. British service people and civilian employees and their families liked British Military Hospitals, but they could take a long time to get to. They were about three hours apart by road and a long way from some postings. Travel was further complicated in the early 1990s by traffic problems arising from the fall of the Berlin Wall. Generally, a view was gaining ground that the British Forces Germany Health Service ("BFGHS") was too small to provide a high quality, peacetime medical service and Army medical staff could not serve in Germany and render medical services to forces on active service in, for instance, the Gulf.[13]The market testing process began in 1993 with a priority of ensuring that the BFG health care system to be provided would be, as far as possible, both British in style and broadly equivalent to that offered in the United Kingdom by the National Health Service, the better to sustain morale of Service personnel who would know that their families would be well cared for, especially while they themselves were deployed on training or operations. A Statement of Requirement ("SOR") was prepared, and bids were invited. An in-house bid was permitted. Nineteen organisations, including the "in-house" Defence Medical Services, a directly managed part of the MoD, consisting of Army and RAF Medical, Dental and Nursing Services, showed an interest. Three organisations were eventually invited to tender. The bidders were not constrained as to how they met the SOR. The bids were evaluated in detail by the MoD and scrutinised by an independent panel of experts drawn from the NHS and the medico-academic community.[14]A group which called itself The Health Alliance ("THA") was selected as offering the best package for BFG. It consisted of Defence Medical Services, which was to provide primary health care, and SSAFA which was to provide community care and midwifery services under contract to the MoD, and Guy's and St Thomas's Hospital NHS Trust ("GST"), which was to procure secondary health care provided by Designated German Providers ("DGPs").[15]As THA had no legal personality, but was an umbrella organisation to achieve a seamless continuum of care via its three component bodies, the MoD entered into two main contracts: the first with SSAFA for the provision of general and community nursing, and the second with GST for the procuring of all elective (non-emergency) secondary healthcare at five DGPs. GST was to be accountable to THA for the delivery of all the required medical services. So far as obstetric care was concerned, it was to ensure the provision of a comprehensive service in DGPs. GST was not to manage the DGPs themselves.[16]Contemporaneously with its contract with the MoD, GST entered contracts with five DGPs. It made two original agreements with the Gilead: an In-Patient Agreement dated 6 September 1996, and an interim Out-Patient Agreement dated 21 April 1998.[17]The September 1996 agreement obliged the Gilead to provide specified clinical services, including obstetrics, to British Army and Royal Air Force Service staff and their dependants based with them and certain civilians, and the April 1998 agreement provided for similar out-patient services. It was never envisaged, nor did it come about, that GST would itself provide medical services directly to Service personnel or their families in Germany.[18]It can thus be seen that after 1996 the MoD distanced itself from the provision of secondary health care in Germany. It closed its own hospitals and did not set out to arrange directly for the provision of secondary health care by German hospitals, the DGPs. Instead it entered into a contract with GST whereby the latter undertook this task. The MoD provided the funding. Thus the MoD had no direct contractual nexus with the DGPs. Brigadier Lillywhite, the Director of BFGHS, explained that the MoD nonetheless sought to monitor the quality of service provided by the DGPs, with the assistance of GST by, for instance, analysing the results of treatment provided by the DGPs. In the case of serious concern about the adequacy of treatment, the MoD could require GST to make alternative arrangements. GST was joined as a defendant to these proceedings, but as a result of findings of Bell J, to which I shall refer later, no claim against GST is now being pursued.[19]By way of experiment, a number of British midwives employed by SSAFA were seconded to DGPs. They joined DGP hospital teams and worked to German standards and practices. The experiment was not a success and was discontinued in 2000. Arrangements were, however, made for British trained midwives on secondment to be present in DGPs as "birthing partners" should the patient wish it. They do not participate in treatment.[20]The arrangements made with DGPs were designed to ensure that the experience of patients approximated as closely as possible to that which they would expect under the NHS. A Patients Charter published by the MoD described how DGPs would provide a British style service, British style food, the services of liaison officers, English language television, British newspapers, signs in English and British standards of privacy. It was accepted, however, that German hospital staff would work in accordance with German standards, which were not always the same as English standards.[21]After 1996, while secondary medical care was provided by German hospitals and staff, primary medical care continued to be provided by the Army Medical Service pursuant to a service level agreement with the MoD. General and community nursing was provided by SSAFA pursuant to the contract between SSAFA and the MoD. The MoD set out to ensure that these different elements of health care provided a “seamless” medical service for service personnel and their dependants. The position and treatment of B[22]Under the system introduced in 1996, dependants who needed hospital treatment had the option of returning to the United Kingdom to receive the treatment from the National Health Service. Initially, about one third of expectant mothers chose to return to the United Kingdom to have their babies. Subsequently, this figure dropped steadily. As far as B was concerned, this was not a practical option. She had two young children to look after, one of them at school in Germany and her husband was away in Bosnia. She had no home of her own or family in England, apart from her husband's family. In the event, A was born about a month premature and she could not have made firm plans for such an eventuality.[23]B's husband, C, arrived back from Bosnia on Sunday 21 June 1998. On Monday 22 June they went shopping together. Labour started and C drove her to the Gilead where A was born later that day. The German obstetrician who delivered A did so by vacuum (Ventouse) extraction, when A was known to be premature and to be presenting in a naso-forehead position. Delivery should have been by caesarian section. In consequence of this negligence, A sustained the brain damage that I have already described. B's perception of the arrangements for her medical care[24]The MoD provided a wealth of information about arrangements for the medical care of service personnel and their dependants in the form of both leaflets and videos. This was placed in evidence before Bell J. The relevant information is that which post-dates the changes in 1996. Mr Lloyd Jones QC, for the MoD, provided in his written submissions a summary of the information available, which he supported with a lengthy and detailed schedule of the source of the information. This was not challenged by Mr Tattersall. The information was as follows:• The MoD provides access to secondary health care for servicemen and their dependants.• In Germany secondary health care is not provided by the MoD but by German Provider Hospitals.• In Germany secondary healthcare is provided by German professionals.• In Germany secondary health care is to be provided in accordance with German procedures which are different from procedures in the United Kingdom.• In Germany secondary health care is to be provided within the constraints of German law.• Patients would receive a British style service within German provider hospitals.• Entitled personnel retained their rights to treatment in the United Kingdom under the NHS.[25]There was no evidence that B and C saw the sources of information that I have set out above. B gave evidence that, even after 1996, she thought that the Army was providing its own hospital services for her and her family. She said that her impression was that she was always under British care and that the Army was just using German facilities and the help of German Doctors. C had been told in 1996 that all British military hospitals in Germany were closing down but said that he was always under the impression that B would remain under the responsibility of the British Army Medical Services throughout pregnancy and birth.[26]Bell J did not accept this evidence from B and C. He held:
"B and C may believe this now, after the devastating event of A's disability, but their evidence is impossible to reconcile with their evidence that they were told in 1996 when C had surgery at a military hospital, that all British Military Hospitals were closing down. C, at least, was told about plans to 'contract out' the medical needs of British Forces in Germany."
That finding has not been challenged.[27]Bell J accepted B’s evidence that she had been told on one occasion that a British midwife would attend the birth, but he concluded that the reference must have been to a "birthing partner". This conclusion was based on erroneous evidence that had been given to the effect that the "experimental" British midwives had been withdrawn in 1998. It is at least possible that, at one stage, it was believed that one of these midwives would attend B. In the event, no British midwife attended A’s birth. This error in the judge’s findings is not of sufficient significance to affect his conclusions.[28]The most important finding of Bell J, in relation to the information available to B and C, was the following:
"In my judgment there was no sound basis for any feeling B or C had that secondary treatment in hospital, including the obstetric care at A's birth was actually provided by the Army (MoD), as opposed to arranged by the Army, and the MoD did nothing to foster any such feelings in Service personnel or their dependants. On the contrary, it did its best, in my view, to inform Service personnel and their dependants of the change in the health care regime, including secondary care, albeit in a reassuring way."
The law[29]The circumstances that give rise to the non-delegable duty of care that Mr Tattersall seeks to establish are not readily identifiable in English case law. They perplexed Professor Glanville Williams nearly 50 years ago (see “Liability for Independent Contractors” [1956] CLJ 183) and they have become little clearer since then. The general rule is that a defendant will be liable for the negligent act of a servant committed in the course of his employment but not for the negligent act of an independent contractor. In Green v Fibreglass Ltd [1958] 2 QB 245 at 250, Salmon J remarked:
"There are, of course, cases where, by virtue of a contract or by the operation of law, an obligation may be imposed on a man to do an act, or to ensure that it is done and done carefully. In such cases, the defendant cannot shelter behind any independent contractor whom he may have employed. If he breaches the obligation he is liable, not in negligence but in contract ... or by reason of some breach of duty other than a duty to take care..."
The problem is to identify the circumstances in which such a duty is imposed by operation of common law.[30]Charlesworth & Percy on Negligence, 10th edition, explore at 2-278 to 2-302 the situations in which the courts have held a defendant to have been under a personal duty to exercise reasonable care which he could not delegate. In most cases it is possible to identify considerations of policy which led to the imposition of the duty. Thus, if a person intends to carry out a dangerous activity, he will owe a personal duty to ensure that reasonable care is exercised in relation to it because public policy requires that, whether he carries out the activity himself or engages another to do so, he should see that proper precautions are taken. In the field of employment, the courts have held that an employer owes a personal duty to ensure that reasonable care is taken for the safety of his workmen which he cannot delegate (Wilsons and Clyde Coal v English [1937] AC 57). This decision has been said to have been motivated by the desire to escape the injustice flowing from the doctrine of common employment.[31]Mr Tattersall placed particular reliance upon certain decisions that support the proposition that hospitals owe a personal duty of care in the treatment of patients which they cannot discharge by delegation. In particular, he submitted that there was "a rich vein of authority" in Australia which this court should follow in the interests of public policy. Before turning to Australia, however, I propose to see the extent to which decisions in this jurisdiction support the appellant’s case. In doing so, I am following in the footsteps of Bell J, who carried out a detailed analysis of the authorities.[32]Those responsible for the operation of a hospital offer a medical service to those whom they accept for treatment. Some of the authorities recognise that this acceptance for treatment carries with it personal positive duties to the patient which cannot be discharged by delegation. It is important at the outset to distinguish between four different types of duty:(1) A duty to use reasonable care to provide access to hospital care.(2) A duty to use reasonable care to ensure that the hospital staff, facilities and organisation provided are those appropriate to provide a safe and satisfactory medical service for the patient. This is an organisational duty.(3) A duty to ensure that the treatment administered by the hospital to the patient is administered with reasonable skill and care. This duty will be broken if one of the hospital staff, however competent, commits an isolated act of negligence in the treatment of the patient.(4) A duty to ensure that the patient comes to no harm while in the hospital. This is a duty that amounts to a guarantee that the patient will receive the appropriate treatment. It will be broken if there is a failure to administer the appropriate treatment, even if this does not involve negligence on the part of anyone.[33]The first type of duty is one that the MoD accepts that it owed to Service personnel and their dependants. It is the MoD’s case that it discharged this duty by exercising reasonable care in the selection and appointment of GST to arrange for the provision of secondary medical care in Germany. If this is the extent of the duty of the MoD, Mr Tattersall accepts that no breach of this duty has been made out.[34]The second type of duty is, in the MoD's submission the extent of the personal duty that English law imposes on a hospital authority, albeit that the authority may be vicariously liable for the negligence of those employed on a hospital. Mr Tattersall contends that under English law hospital authorities undertake the third type of duty and that the MoD equally undertook such a duty. Whether he is correct in the latter submission is the issue with which this court is concerned. The fourth type of duty goes beyond that found to exist in any of the cases on negligence.[35]Gold v Essex County Council [1942] 2 KB 293 is the first decision upon which Mr Tattersall relies. The issue in that case was whether a local authority was liable for the negligent acts or omissions of a professional radiographer employed in a hospital. The Court of Appeal held that it was, reversing an earlier decision. Lord Greene, MR described the approach that should be adopted by the court as follows at p 301:
"Apart from any express term governing the relationship of the parties, the extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). In the former case there is, of course, a remedy in contract, while in the latter the only remedy is in tort, but in each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill."
Lord Greene went on to apply this approach. In doing so he drew a distinction between nurses, for whose negligence the hospital would be liable, and consulting physicians and surgeons where:
"....clearly the nature of their work and the relationship in which they stand to the defendants precludes the drawing of an inference that the defendants undertake responsibility for their negligent acts."
[36]Lord Greene concluded that, as the hospital provided treatment by radiography, it owed a duty to provide such treatment with care and was liable for the negligence of the “whole-time employee engaged to give the treatment”. He reasoned at p 304:
"It is clear, therefore, that the powers of the defendants include the power of treating patients, and that they are entitled, and, indeed, bound in a proper case, to recover the just expense of doing so. If they exercise that power, the obligation which they undertake is an obligation to treat, and they are liable if the persons employed by them to perform the obligation on their behalf act without due care. I am unable to see how a body invested with such a power and to all appearance exercising it, can be said to be assuming no greater obligation than to provide a skilled person and proper alliances."
[37]MacKinnon LJ decided the case by application of the general principle that:
"One who employs a servant is liable to another person if the servant does an act within the scope of his employment so negligently as to injure that other. This is the rule of respondeat superior."
Goddard LJ adopted a similar approach, drawing a distinction between staff employed by a hospital and doctors who were not so employed.[38]In Cassidy v Ministry of Health [1951] 2 KB 343, the majority of the court of appeal applied the reasoning of the majority in Gold in holding that the Ministry was liable for the negligence of doctors who were employed by it on contracts of service. Denning LJ, however, applied the wider reasoning of Lord Greene, observing at p 360:
"....whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves: they have no ears to listen through the stethoscope, and no hands to hold the surgeon's knife. They must do it by the staff which they employ; and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him."
[39]Denning LJ applied similar reasoning in Roe v Minister of Health [1954] 2 QB 66, where the negligence alleged was that of anaesthetists. In that case, Somervell LJ applied the conventional principle of "respondeat superior", holding that the anaesthetists were “part of the permanent staff” of the hospital. Morris LJ approached the problem in the following way at p 89:
"A hospital might assume the obligation of nursing: it might on the other hand assume the obligation of providing a skilful nurse. But the question as to what obligation a hospital has assumed becomes as it seems to me, ultimately a question of fact to be decided having regard to the particular circumstances of each particular case."
He went on to hold that, as the hospital had undertaken to anaesthetise its patients, there was liability if this operation was performed negligently.[40]The National Health Service Act 1977 ("NHS") imposed on the Secretary of State the duty to provide hospital and medical services to such extent as he considered necessary to meet all reasonable requirements throughout England and Wales. Thereafter authorities administering the NHS ceased to take issue on the extent of their liability for treatment negligently administered, regardless of the precise standing of the individual administering the treatment. There was thus no need for the courts to consider further the basis of such liability. Bell J drew attention, however, to a number of judicial statements of opinion that support the type of duty that is asserted in the present case. Most significant of these is the following passage in the speech of Lord Browne Wilkinson in X (minors) v Bedfordshire CC [1995] 2 AC 633:
"It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitutes a breach of that duty, whether or not the member of staff is himself in breach of a separate duty of care owed by him to the plaintiff ... Therefore in the cases under appeal, even where there is no allegation of a separate duty of care owed by a servant of the authority to the plaintiff, the negligent acts of that servant are capable of constituting a breach of the duty of care (if any) owed by the authority to the plaintiff."
[41]In Robertson v Nottingham Health Authority [1997] 8 Med LR 1, Brooke LJ held that a health authority is under the organisational duty that is the second type of duty that I have described at paragraph 33. He held that it was unnecessary to consider whether there exists the wider duty that Mr Tattersall submits is to be found in the rich vein of Australian authority.[42]The English case which lends most support to Mr Tattersall’s submissions is the decision of HH Judge Garner, sitting in the Huddersfield County Court in M v Calderdale & Kirklees Health Authority [1998] LLR(M) 157. In that case the defendant health authority referred a patient to a private hospital for a pregnancy termination which the hospital negligently failed to effect. The hospital proved to be insolvent and without insurance, hence the action against the health authority. The judge held the health authority liable on a number of different bases. The first was breach of statutory duty. It is common ground that this basis was unsound. The second was failure to take reasonable care to see that the private hospital was competent. This was a breach of the second type of duty set out in paragraph 33. The third basis, the judge expressed as follows:
"The plaintiff never left the care of the first defendant. She was its patient. She never had an opportunity to divert from the route of treatment arranged on her behalf. In those circumstances she is entitled in my view to remain in the same position as a patient who remains in house relying upon the expectation of an effective provision of services. There will be all the backing of the authority if things go wrong. There is no need to make enquiries about competence; about standards; about insurance because the umbrella of the authority remains above. The patient who remains in-house will have had that provided."
The support of this reasoning to A’s case is obvious.[43]I now turn to the Australian authorities. These are, of course, not binding on this court, but they nonetheless include reasoned analyses of principle of high persuasive authority. Once again they have been carefully analysed by Bell J. A non-delegable duty to ensure that reasonable care is exercised has been recognised in relation to the protection of children on school premises, the duty to provide an employee with a safe system of work and the duty owed to patients in a hospital. Some of the judgments are of great length and I shall simply refer to two statements of principle. Kondis v State Transport Authority [1984] 154 CLR 672 was a decision of the High Court of Australia concerned with the duty of care owed by an employer to his employees. In the leading judgment Mason J made the following observations at pp 686-7:
"The principal objection to the concept of personal duty is that it departs from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. The failure in Wilsons' Case (68) to acknowledge this departure and to advance a convincing reason for fixing the employer with a more stringent duty made the reasoning in Wilsons' Case vulnerable to criticism. However, when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. .... The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. .... In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."
[44]In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 the Court of Appeal of New South Wales had to consider the extent of the duty of care owed by a hospital. Samuels JA said this about the circumstances in which a non-delegable duty of care arises at p 606:
"It arises from a relationship which combines the dependence of A upon the reasonable care, skill and judgment of B with the legitimate expectation that B will ensure that those qualities will be exercised in protection of the person or property of A. A further policy decision will be required to determine when that peculiar combination of dependence and expectation ... exists. But it can scarcely be doubted that it does so in the case of the relationship between hospital and patient. ... The basis of the duty is, more persuasively, the satisfaction of expectations about where liability ought to be sheeted home."
[45]These passages demonstrate that in Australia the courts have held that a hospital owes to its patients the third type of duty that I have set out at paragraph 33.[46]Before turning to apply the law to the facts of this case, it is right to draw attention to a different approach to the duty of a hospital in a decision of the Ontario Court of Appeal. In Yepremian v Scarborough General Hospital (1980) DLR (3d) 513 the issue was raised of whether a hospital owed a non-delegable duty of care to its patients. The majority held that it did not. Dealing with this question at p 532, Arnup JA said:
"No Court in Canada has ever found before that such a duty exists, and with great respect to the trial Judge, I am not persuaded by his reasons that there is such a duty. I am not dismissing those reasons perfunctorily, nor intending to denigrate them, when I say that he seems to me to be saying, in substance, 'In all the circumstances, the hospital ought to be liable.' In my view, if the criterion is to be what is fair and reasonable, it would be fair and reasonable that the highly-skilled doctor whose negligence caused the damage should be called upon to pay for it. As the trial Judge did, I must put out of my mind that the plaintiffs chose not to sue him. I agree with the trial Judge (and have said this earlier in my reasons) that the Yepremians had every right to expect that a large public hospital like Scarborough General would provide whatever was required to treat seriously ill or injured people, but I do not think it follows that the public is entitled to add the further expectation: 'and if any doctor on the medical staff makes a negligent mistake, the hospital will pay for it'. Rather, I think, a member of the public who knows the facts is entitled to expect that the hospital has picked its medical staff with great care, has checked out the credentials of every applicant, has caused the existing staff to make a recommendation in every individual case, makes no appointment for longer than one year at a time, and reviews the performance of its staff at regular intervals. Putting it in layman's language, a prospective patient or his family who knew none of the facts, would think: 'If I go to Scarborough General, I'll get a good doctor'."
This suggests that the Canadian courts have identified the second duty set out at paragraph 33 as the duty owed by a hospital to its patients. Discussion[47]I turn to the first way that Mr Tattersall put his case. In his final submissions, this proved to be the principal way that he put his case. He submitted that, having regard to the facts as they existed in 1998, the court should find that the MoD owed a non-delegable duty to ensure that A and B were provided with medical treatment that was administered with proper skill and care. He accepted that so to find would go beyond not merely the decisions of the English courts but also those of the Australian courts. This was because hitherto a non-delegable duty has only been found in a situation where the claimant suffers an injury while in an environment over which the defendant is in control. Mr Tattersall accepted that the MoD was not in control of the Gilead Krankenhaus. He submitted, however, that once B went to live with her husband in Germany, she came under the protection of the MoD. The MoD provided her with primary health care and this led seamlessly to the secondary treatment provided for her at Gilead. She had, in practice, nowhere to go but Gilead. The MoD "opened the door" of Gilead for her. It was reasonable that the MoD should have responsibility for the care administered to her once she entered the hospital.[48]Mr Tattersall, with our permission, also advanced an argument of public policy based on material of which he was unaware at the time of the hearing before Bell J. Before turning to that argument, I propose to summarise the response of Bell J to the submissions that were advanced before him. Bell J’s conclusions[49]Bell J described the factors identified by the Australian courts as giving rise to a non-delegable duty of care as being primarily the “protective attitude or acceptance of a special responsibility on the part of the defendant and dependency or lack of choice of the claimant”. He further observed that all the cases showed that the first task of the court was to ascertain the scope of any duty owed from all the circumstances of the particular case. He went on to perform that task. His conclusions appear from the following three paragraphs of his judgment:
"101. The MoD did not in fact assume responsibility for treating Service personnel or dependants, including A and B, in hospital itself after 1 April 1996. It did not accept them as patients for the purposes of hospital care. What it assumed, and put into effect by various contractual arrangements with GST was the obligation to provide access to an appropriate system or regime of secondary, hospital care provided by another. It had some teeth by its visits to DGPs which it monitored by 'outcome', although its contract with GST left management of the DGP contracts in the hands of GST which knew about such matters. .... 107. In my judgment, the features of the special relationship between the MoD and Service personnel and dependants in Germany, to which I have referred, imposed a duty on the MoD to provide access to an appropriate regime of secondary healthcare in Germany. The MoD's assumption of this duty met the reasonable expectations of Service personnel and their families. The MoD's duty of care must been seen in the context of the obligation to provide access to an appropriate regime of secondary healthcare, and was, therefore, a duty to exercise reasonable care in selecting and putting into action appropriate providers. It discharged that duty by contracting with GST to procure DGPs and to manage their contracts."
Thus Bell J accepted the MoD's contention that the extent of the MoD's duty was the first type of duty that I have set out in paragraph 33 and that the MoD had discharged that duty. He went on to consider the position of GST. He held:
"110. ... it is fair, just and reasonable that GST should be under a duty, in relation to British patients, to exercise reasonable care in procuring the service of DGPs and managing its contracts with them, but no more than that. There is no basis for a duty or obligation on GST to ensure that reasonable care and skill was used in secondary, hospital treatment in Germany."
It is that finding, which has not been challenged, which led to the case against GST being dropped. The policy argument[50]Mr Tattersall argued that, as a matter of public policy, it was desirable that British servicemen and their dependants should be able to sue the MoD in this country in respect of medical negligence suffered in a foreign hospital rather than being constrained to bring proceedings in the foreign jurisdiction in question. He sought to buttress his argument by reference to a paper for the guidance of primary care and acute trusts published by the Department of Health in November 2002. This shows that, in order to reduce waiting lists, the NHS has taken to authorising NHS patients to receive treatment in overseas hospitals. To this end NHS commissioners have taken responsibility for “identifying suitable foreign providers, assessing quality and performance and managing contracts on the NHS’ behalf". The lead commissioner in London for overseas treatment is GST. In the result, NHS patients may well find themselves allocated to the very DGPs that provide hospital care for those serving in Germany and their dependants. The guidance paper makes the following comments under the heading "Clinical Negligence and Liability":
"The law on the commissioner's liability for clinical issues is not wholly clear. However, should a patient sent abroad for treatment wish to raise an issue of medical negligence, the courts may regard NHS bodies as having a non-delegable duty of care, despite the fact that treatment was being provided for by a non-UK provider. Patients would therefore be able to sue the NHS in English courts, rather than having to take a case through foreign courts. This approach is in line with the Government's policy preference that patients travelling abroad for treatment should have the same rights and remedies as patients being treated in the UK."
[51]Mr Tattersall points to the statement that it is the Government’s policy preference that NHS patients should be able to sue the NHS in the English courts, rather than have to resort to litigation abroad. He submits that this public policy must be equally applicable in the case of foreign hospital treatment provided to service personnel and their dependants. More generally, he submits that it is plainly desirable that claims such as that of A should be brought against the MoD rather than the foreign hospital Conclusions[52]Mr Tattersall's submissions seek to extend the law of negligence beyond any previous decision of the English court, subject to one exception. The exception is the finding of the existence of a non-delegable duty of care made by Judge Garner as one of the grounds of his decision in Calderdale. This finding did not represent the current state of English law. It seems to have been based on the observations of Lord Greene, MR in Gold and of Denning LJ in Cassidy, although in neither instance did these represent the reasons for the decision of the majority of the court.[53]More significantly, in each of these cases the court was concerned with the duty of the hospital that was actually carrying out the treatment of the patient. The Australian cases postulated the non-delegable duty of a hospital on the basis that the hospital had accepted the patient for treatment. Judge Garner extended the principle beyond this. Thus Mr Tattersall is realistic in accepting, as he did, that, if he is to succeed on his appeal, he must persuade us on policy grounds to expand this area of tortious liability.[54]The guidance paper on which Mr Tattersall relies appears to be contemplating claims against an NHS trust for breach of an organisational duty rather than the type of duty that he seeks to establish in this case. Even if it were correct to hold that an NHS trust, which sends one of its patients abroad for treatment, owes a non-delegable duty to ensure that the patient receives careful treatment, it would not follow that the same was true of the MoD in this case.[55]The MoD is no longer in the business of treating patients in hospital in Germany. Its sole role is that of arranging for such treatment to be provided by others. If there is merit in Mr Tattersall’s argument of public policy, it can only lie in his basic proposition that it is plainly desirable that someone in the position of A and his parents should be able to bring proceedings against the MoD in England rather than against the hospital in Germany. Despite Mr Tattersall’s submissions, I remain unpersuaded of this.[56]There is, so we were told, a chain of contractual indemnities under which, if the MoD is held liable for the negligence of a DGP, it can look to GST for an indemnity whereupon the GST can seek an indemnity from the DGP. We are told that there may be some doubt as to whether the terms of these indemnities are back to back. Putting that consideration on one side, ultimately the liability should come to rest on the hospital where the negligence occurred. Why, however, is it desirable that this should involve a chain of claims rather than that the claimant should pursue the German hospital directly? Mr Tattersall sought to persuade us that this was because it would make life easier for the claimant, but I do not see that this is axiomatic.[57]The injury suffered by A in this case was not one that raised an automatic inference that there had been negligent treatment. It is a tragic fact that babies are quite often born with brain damage although all reasonable skill and care has attended the delivery. In order to get a claim off the ground against the MoD, assuming the existence of a duty of care, it was necessary to investigate what had happened at the birth. This A’s parents were able to do by initiating the process that produced the investigation by the Gutachter Kommission. As I understand it the assistance of German lawyers was necessary to achieve this. How, we asked Mr Tattersall in the course of argument, could A’s case have been established against the MoD without some form of proceedings in Germany? His answer was that there are contractual arrangements under which the MoD is entitled to obtain the hospital’s clinical records, so that those acting for A would have been able to obtain discovery of these.[58]I was not satisfied by this answer. Those acting for A were faced with the task of establishing liability on the part of the Gilead hospital. Under English procedure that task is usually achieved by means of discovery. In Germany, where a claim for clinical negligence is advanced, there is an expert commission to investigate the facts. If, instead of taking action in Germany, B had simply made a claim on behalf of her son against the MoD, it is by no means obvious that her path would have been easier.[59]If one postulates that the MoD is not itself subject to liability in a case such as this, I would expect that it would, through the army legal service, assist the service personnel to seek a remedy in Germany, albeit that German lawyers would almost certainly have to be involved. I am inclined to think that such a situation would be more satisfactory than one in which the MoD, being itself a defendant, can less readily assist its personnel to obtain a remedy.[60]There is no suggestion here that there has been any fault on the part of the MoD. There is no suggestion that the imposition of the duty of care for which Mr Tattersall contends would or could impact on the care actually taken by DGPs. In these circumstances I can see no justification for imposing a non-delegable duty on the MoD to ensure that due skill and care is exercised in those hospitals. It seems to me that Germany is the appropriate forum for this litigation and that the Gilead Krankenhaus is the appropriate defendant. I must, however, deal with the alternative ways in which Mr Tattersall advanced his case. B’s reasonable perception[61]Considerable evidence was devoted to what the MoD said about the medical care that was available to service personnel and their dependants and to B and C’s understanding of the position. The grounds of appeal suggested that the judge’s findings as to the latter might be challenged. In the event no challenge was made to the findings that I summarised earlier in this judgment. In the circumstances I was not able to see how the question of B’s reasonable perception advanced A’s case and that remains the position. The duty on the MoD before 1996[62]The starting point of Mr Tattersall’s argument was that, when the MoD was running its own hospitals in Germany, it owed service personnel and their dependants a non-delegable duty of care in relation to the secondary medical treatment that they received. The second stage in the argument was that, because the duty was non-delegable, it remained binding upon the MoD after the transfer in 1996 of the provision of secondary health care from the military hospitals to the DGPs.[63]As to the first limb of the argument, I was attracted by the Australian jurisprudence on which Mr Tattersall has relied. It seems to me that there are strong arguments of policy for holding that a hospital, which offers treatment to a patient, accepts responsibility for the care with which that treatment is administered, regardless of the status of the person employed or engaged to deliver the treatment. Lord Browne Wilkinson in X v Bedfordshire proceeded on the premise that this is established English law.[64]I am, however, unable to accept the second limb of Mr Tattersall’s argument. We put to him in argument the possibility that, in England, the MoD might abolish all military hospitals and leave service personnel to seek hospital treatment under the NHS. Even in that situation he contended that the non-delegable duty undertaken by the MoD before 1996 would persist.[65]The answer to Mr Tattersall’s argument, as Mr Lloyd Jones submitted, is that the basis of the duty asserted by Mr Tattersall, assuming such duty to be made out, was the fact that the MoD itself undertook the hospital care of its personnel and their dependants. Only while it continued to do so would the duty persist.[66]For these reasons, I would dismiss this appeal. I would do so in the expectation that, free of any claim against it, the MoD, in accordance with its stated concern for the welfare of service personnel and their families, will be anxious to do all that it can to assist A in obtaining the compensation to which he is entitled in Germany.

LORD JUSTICE TUCKEY: I agree.

LORD JUSTICE WALL: I also agree that the appeal must be dismissed for the reasons given by my Lord, the Master of the Rolls. I only wish to add a brief comment of my own.

[69]As a relative newcomer to the branch of the law with this appeal is concerned, I have listened with both interest and admiration to the skilful deployment of the arguments on both sides. I hope Mr Tattersall will not mind me saying that his submissions struck me as embodying many of the qualities which over the years I have come to expect from advocates on the Northern Circuit; namely clarity, economy, realism and frankness. The appellant's case could not, in my view, have been put better.[70]In my judgment, however, and for the reasons given by my Lord, the judge, in a judgment to which I would also wish to pay tribute, was right both on the question of policy and on the authorities, to reject the proposition that the MoD owed a non-delegable duty of care to ensure that all reasonable care and skill was taken in the secondary health care of Service personnel and their dependants stationed in Germany. He was equally right to identify the duty owed by the MoD as an obligation to provide access to an appropriate system or regime of hospital care provided by another; a duty which it fulfilled by the exercise of reasonable care in the selection of GST and by contracting with GST to procure DGPs to manage their contracts.[71]Listening to the important and interesting legal argument, it is easy to lose sight of the underlying fact that this case concerns a family tragedy of monumental proportions and life-long implications. It is, of course, a trite observation that no sum of money can adequately compensate A, his parents and his siblings for the damage which A has suffered. I would, however, like to conclude with two thoughts, neither of which is directly germane to the reasoning which underlies the dismissal of this appeal.[72]The first is that A is approaching his sixth birthday. I hope very much that it will be possible to resolve the issue of financial compensation for his injuries swiftly in the light of the admission of liability by the insurers of the Gilead Krankenhaus.[73]Secondly, I would like expressly to associate myself with the final paragraph of the Master of the Rolls' judgment. I hope very much that the Army will give A and his parents every assistance properly within its power to resolve the compensation issue. I recognise that there is no legally enforceable duty on the MoD in this regard, but the policy documents with which we have been provided all recognise that, in a number of different ways, the Army aims to secure the mental, physical and social well-being of its personnel and their dependants. Part of that process in my judgment, is the need for the Army to assist A's parents swiftly to resolve the outstanding financial claim for A, which, in the light of our decision, must now be dealt with in Germany.

Order

Appeal dismissed. Public funding order in respect of the Appellant's costs. Application for permission to appeal to the House of Lords refused.

Cited in 15 later judgments

and 6 more of the most senior