Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

Document

THE DIVINE COMITY

Harry Sanderson*

SSAFA v Allgemeines Krankenhaus Viersen

Where an action is governed by foreign law, should English law be mandatory for any related contribution claim before an English court? In The Soldiers, Sailors, Airmen and Families Association—Forces Help v Allgemeines Krankenhaus Viersen GmbH 1 (“SSAFA”) the Supreme Court said “no”. It held that the right of contribution under the Civil Liability (Contribution) Act 1978 was to be determined by reference to the law governing the main cause of action. This decision is welcome, and resurrects considerations of comity which had been consigned to inferno by previous authorities on the point.

The question arose following proceedings brought on behalf of Harry Roberts, born in 2000 at the German hospital Allgemeines Krankenhaus Viersen GmbH. Mr Roberts alleged that he suffered an acute brain injury at birth as a result of negligence on the part of the attending midwife. A claim was made against the Soldiers, Sailors, Airmen and Families Association Forces Help (“SSAFA”), which employed the midwife present at his birth. An additional claim was made against the Ministry of Defence, which would indemnify SSAFA in the event of a successful claim. Under the Private International Law (Miscellaneous Provisions) Act 1995, s.11(1), the law governing the claims was German law, as the law of the place where the damage occurred. The SSAFA and the Ministry of Defence sought a third-party contribution from the hospital. The question of governing law for that contribution claim was central to its survival: under German law the contribution would be time-barred; under English law, not.

* Corpus Christi College, Cambridge. My thanks to William Gummow AC and Eliza Bond for their comments on a draft.