A v Ministry of Defence; Re A (A Child): CA 7 May 2004

The wife of a British Army soldier serving in Germany delivered a premature baby, ‘A’, with a German obstetrician in a German hospital. A suffered brain damage in the birth as a result of the obstetrician’s negligence. The mother claimed against the MoD and the English NHS Trust which had contracted with the MoD to arrange for designated German hospital providers to provide health care for servicemen and their dependents. She alleged a non-delegable duty of care in the MoD and in the Trust to ensure that she and ‘A’ were provided with medical treatment that was administered with due skill and care.
Held: Lord Phillips MR disapproved the decision in M v Calderdale and Kirklees Health Authority [1998] Lloyd’s Rep Med 157 on a number of grounds including the fact that it was based on the observations of Lord Greene MR in Gold v Essex County Council and Denning LJ in Cassidy v Ministry of Health, ‘although in neither instance did these represent the reasons for the decision of the majority of the court.’
However, he observed ‘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’. He rejected the submission that on policy grounds the non-delegable duty of care should be extended beyond cases where the hospital was actually carrying out the treatment.
A further argument advanced on behalf of ‘A’ was based on the position of the MoD before it ceased running its own hospitals.
Lord Phillips said: ‘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 dependents 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.
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 (Minors) v Bedfordshire County Council [1995] 2 AC 633 proceeded on the premise that this is established English law.
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.
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.’
Lord Phillips of Worth Matravers MR, Tuckey, Wall LJ
Times 17-May-2004, Gazette 03-Jun-2004, [2004] EWCA Civ 641, [2005] QB 183
Bailii
England and Wales
Citing:
Appeal fromA v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
DisapprovedM v Calderdale and Kirklees Health Authority 1998
(Huddersfield County Court) . .

Cited by:
Appealed toA v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
CitedFarraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
CitedWoodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
CitedWoodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .

These lists may be incomplete.
Updated: 03 March 2021; Ref: scu.197039