Mrs. B. Dawson (Compensation Claim) (Hansard, 11 May 1987)

§ Mr. Rob Hayward (Kingswood)

I raise this evening the subject of the Status of Forces agreement 1951 as it relates to my constituent, Mrs. Dawson, and four other constituents of mine.

This is the first occasion during this Parliament on which I have had the opportunity to raise an Adjournment debate, and, throughout this Parliament, I could not be regarded as having gone over the top or been unduly aggressive about raising problems with Ministers. However, I believe that there has been a substantial miscarriage of justice in this case, which stems, apparently, from an agreement that was originally introduced in 1951. 'That was followed by a mixture of what I believe has been disinterest and incompetence in a number of places, resulting in what can most generously be described as minuscule offers of compensation to the individuals concerned.

On 3 April last year, Mrs. Dawson and four children—Philip Sinclair and Karl, Sara and Emma Boughey—were walking along a road in Germany that is classified as civilian territory. Three of the children are children of a REME officer, and the other two are civilians. While walking along the road they were hit by shrapnel from a shell fired by American forces, which had overshot a range by about 3.5 km.

All five of the individuals concerned suffered varying degrees of injuries. Emma, the most seriously injured, was rushed to a German hospital in Hanover university, and, a year later, she still has shrapnel—it passed through her skull—embedded in her brain. That shrapnel will stay there, certainly until adulthood, and possibly for the rest of her life. Mrs. Dawson suffered injuries to the back of the neck which have damaged her nervous system and have resulted in her having to spend four more days in Frenchay hospital—a local general hospital in Bristol—some 12½ months after the accident.

Philip Sinclair has scarring to the legs and foot which resulted from the shrapnel hitting his foot and having to be removed. Like Mrs. Dawson, he is still not clear of full medical treatment, and it is likely that he will suffer intermittent pains and need treatment for the rest of his life.

After the incident of 3 April, which took place on civilian territory and was not my constituents' fault, they were visited a day later by a brigade commander of the Berlin brigade of the United States forces—one General Griffin—whose urgent visit to four of the five patients in hospital showed the seriousness with which the United States forces appeared to take the case. The family was told, then and on other occasions, that they would not want for anything as a result of the accident. That, however, does not appear to be the case 13 months later.

The case was then dealt with by British Army of the Rhine legal officers, and my constituents have no complaints about the medical advice or assistance that they received from the British forces, or about the legal advice that they were given—until November. In November, Mrs. Dawson and Philip Sinclair decided, as civilians, to employ a German lawyer who is a specialist in this area, and took the case on themselves. After a few 152 months they received offers of compensation, which may or may not include sums for pain and suffering, of 3,400 deutschmarks and just over 3,000 deutschmarks respectively—the equivalent of about £1,100 and £1,000—for loss of earnings, travel expenses, clothing, telephone calls and the rest. It is clear that, for Philip Sinclair, the offer is exclusive of any compensation for pain and suffering because the German lawyer has said that there is no such concept in German law.

The family came to me to discuss the offer. Anyone who knows the injuries that have been suffered would be amazed to learn that they have been offered £1,100 and £1,000. I took the case up and asked for an urgent Adjournment debate because we understand that the family has to make a decision by 30 May to enable their German laywer to act. There was also the prospect of a general election being called.

During the past 10 days, I have written to the Ministry of Defence and the Foreign Office to draw their attention to the case. I have also attempted to draw the details of the case to the attention of what I might call agencies of the United States. I started off with the embassy and the defence attaché. I was transferred to the public affairs office, then to the judge advocate general at Burtonwood in Cheshire, to the public affairs office there, back to the defence attaché at the embassy, to the public affairs department there, to the defence attache, to the political military attaché, back to Burtonwood, back to the embassy and finally to Mildenhall on Friday.

With only one exception, I have had to instigate all of those telephone calls. On Friday, I received a telephone call from Burtonwood advising me to contact Mildenhall, but the senior officer to whom I was supposed to speak was not available. I waited for a telephone call this morning for three and a half working hours, at which point I telephoned Mildenhall. I was then referred back to the embassy.

Out of courtesy, I advised the United States ambassador's office this morning that I intended to complain about the response that I had received from the US forces and the embassy. I have received some response, but what is the net effect? I have been referred to Mannheim.

This is the result of the efforts of a Member of Parliament. What can one expect an ordinary British citizen to achieve when faced with such an impossible task? I cannot imagine that any British citizen would have had any reasonable success.

Several questions must be asked, the first of which concerns the Status of Forces agreement. The family have consistently been told that the agreement must apply to all five. They are therefore bound by an agreement that was signed in 1951. I cannot imagine that it was then envisaged that people who suffered as a result of an error by a member of the American forces would receive such minimal compensation.

I am sure that my constituents would have been offered not £1,000 but tens of thousands of pounds in Britain and hundreds of thousands of pound in the United States. That is particularly the position of Emma Boughey, who received an offer of compensation this morning. The offer has been made to her parents because she is still a minor. She has shrapnel embedded in her brain, and if it moves as she continues to grow and her skull enlarges it could result in her becoming paraplegic for the rest of her life. However, she has been offered only 17,000 deutschmarks, 153 which is about £5,600. Is it realistic to expect any family to accept £5,600 in circumstances in which it may find in about 10 years that its daughter becomes paraplegic? We do not know that that will happen, but the medical advice will not become clear for 10 years. Throughout that time the parents and the rest of the family have the worry over what might or might not happen and the costs that they will be faced with for the rest of Emma's, Karl's and Sara's lives. The offers in respect of Karl and Emma have been confirmed today as being 1,000 and 2,000 deutschmarks respectively.

I do not believe that the Status of Forces agreement was ever intended to result in this gross anomaly of justice for these five British citizens. Therefore, I ask whether it is the intention that such circumstances should arise, especially when these people were not anywhere near the range from which the shell was fired. The shell overshot the range by 3.5 km as they were walking on German civilian territory, so there are implications for others who are on holiday in Germany and in other countries where the agreement applies, which means all NATO countries.

Can it really be that the American forces are able to hide behind the agreement, especially when a commitment was made, as understood by, the family, by the brigade commander, the senior officer responsible for such action, that it would want for nothing as a result of the accident that had occurred? I remind the House that the brigade commander took extreme action by arriving at the hospital one day after the accident happened. That was a clear sign of the seriousness with which he viewed the matter.

There is an apparent contradiction in whether pain and suffering is a concept that applies in German law. The letters that the family has received in respect of Philip Sinclair state specifically that there is no such allowance in German law. The implication in the letter that Mrs. Dawson has received is similar. If that is the position, what is the nature of the offer that has been made to Emma Boughey of about 17,000 deutschmarks? As I understand it, the costs associated with her case do not amount to that sum, so it would seem that within that total there is a concept of pain and suffering. If that is so, that further highlights my view and that of the family that it has been offered a ridiculously minuscule sum.

In the brief period that I have been in contact with the family I have made my best efforts on its behalf. Over the previous 13 months it has made exceptional efforts to pursue its case, that have resulted in a small offer of compensation. I would ask my hon. Friend the Minister whether he, with me, will make a plea to the United States ambassador for him to intervene in this matter to ensure that there is justice and due deserts for the family, which comprises ordinary British citizens who seem not to have secured natural justice.

§ The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Tim Eggar)

I congratulate my hon. Friend the Member for Kingswood (Mr. Hayward) on bringing this unfortunate case to the attention of the House. I commend my hon. Friend on the considerable action that he has taken in the short time that he has been involved in what is, by any standards, a complex and complicated case.

May I first extend my sympathy to Mrs. Dawson, her nephew and grandchildren and wish them a speedy recovery. I was sorry to learn that the effects of the 154 accident will remain with some of them for a very long time. My hon. Friend has referred to the 1951 Status of Forces agreement and, by inference, to the 1959 supplementary agreement relating to foreign forces stationed in the Federal Republic of Germany. I must say to my hon. Friend that I am not sure that the 1951 agreement is as relevant to this case as my hon. Friend thinks. That is because paragraph 5(a) of article VIII of the 1951 Status of Forces agreement sets out the general principle that: Claims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the receiving state with respect, to claims arising from the authorities of its own armed forces. The effect of that article is that where United States forces are responsible for an accident in the Federal Republic of Germany, the victims' remedy is governed by German law, in the German courts, as if German forces had been responsible.

In correspondence my hon. Friend raised the question whether the 1951 Status of Forces agreement applies to "civilian German territory," but it is not germane. As far as claims are concerned, the 1951 Status of Forces agreement applies to acts or omissions by the armed forces of one member state in the performance of official duties in the territory of another member state. One may assume, therefore, that the 1951 Status of Forces agreement applies whether the shell landed within or outside a military area. NATO could not function and train effectively without such an agreement. The 1951 Status of Forces agreement does not lay down scales of compensation, but provides a forum in which claims are settled. As I have said, it provides that claims should be dealt with by the host Government regardless of which NATO force was involved in the incident. The existence of the 1951 Status of Forces agreement does not, therefore, in itself, adversely affect the claimants in this case. Indeed it removes from the claimant the need to embark on the possibly lenghty and costly process of having to establish who is responsible for what and where.

I agree that in this case there was no such dispute, but if there had been such a dispute the benefit of the agreement would be obvious. In this instance liability has not been disputed, the claims have been dealt with by the claims office of the city of Luneburg and a formal offer of compensation has been made.

My hon. Friend has made it clear that he does not regard that offer as acceptable. My hon. Friend stated that there is some dispute about the extent to which the compensation offered covered pain and suffering. The Foreign Office is not in a position to offer legal advice, but is so far as it has been able to study the documents, it appears that both the letters from the claims office to Mrs. Dawson's German lawyer and the lawyer's letters to Mrs. Dawson show that the question of pain and suffering was taken into account. Of the sum offered to Philip Sinclair, approximately five sixths were for pain and suffering. In Mrs. Dawson's case it appears that the claims office considered that a final estimate for pain and suffering was not possible as her treatment had not been completed. However, of the total offered to her almost half is a provisional award for pain and suffering, which has already been paid.

My hon. Friend has described the offers of settlement as minuscule. I understand the considerations that have led him to use that word, but it is up to the claimants to 155 decide whether to accept or reject these out-of-court settlements. In this respect, the German legal system is no different from the British or indeed, American systems. Indeed, the claims office in Luneburg has made it clear that, if the claimants wish to dispute the settlements offered, they should sue the Federal Republic of Germany in the appropriate court, within two months of receiving notice of the settlement.

I do not wish in any way to underestimate the circumstances of this most unfortunate accident and the traumatic effect on the victims. However, Mrs. Dawson and Philip Sinclair are not dependants of a serving member of Her Majesty's forces, nor were members of Her Majesty's forces involved in this incident. This case, therefore, in its essentials, is a civil claim for damages and is not a matter for the Ministry of Defence. Nor is it for Her Majesty's Government to comment on the adequacy or otherwise of any particular offer of settlement, nor do Her Majesty's Government have any standing to intervene in the legal process. Our advice in all such cases is that the aggrieved party or parties should seek local expert legal advice. Mrs. Dawson has already done so and her lawyer has given her his advice. Therefore, it is for Mrs. Dawson and the parents of Philip Sinclair to decide, perhaps after further consultation with the lawyer, whether to go ahead with litigation. I must emphasise that that matter is, and can only be a private decision.

My hon. Friend has also asked whether the United States forces have any responsibility to provide compensation over and above any offer of settlement made by the German authorities or compensation that might be obtained by legal proceedings. I am sorry to have to tell my hon. Friend that United States forces have no such responsibility. Under the terms of the 1951 agreement, they are responsible only for reimbursing the Federal German authorities 75 per cent. of the compensation that is actually awarded either out of court or as a result of court action. My hon. Friend also referred to statements said to have been made by General Griffin 156 of the United States Army. That is a matter for the General, and I do not think that there is any comment that I can make on it. I will ensure that the record of the debate is passed on to the United States ambassador in London. I will make sure that his attention is drawn to my hon. Friend's remarks.

On the sums offered to the Boughey children, they are dependants of a serving member of Her Majesty's forces. Their awards are provisional and are subject to further negotiations between the British Army of the Rhine legal service and the relevant German authorities. Of course, BAOR is involved in the case because the children are dependants.

I am sure, that my hon. Friend would wish to join me in an expression of thanks to the armed forces of the Federal Republic of Germany for their prompt action immediately after the accident. A group of German soldiers who were nearby gave immediate first aid and drove Mrs. Dawson, her nephew and grandchildren to a nearby military medical centre and from there by German military ambulance to the district hospital at Soltau where her nephew and two of her grandchildren underwent surgery. The third grandchild was flown by German military helicopter to the university clinic at Hanover. As a result of that prompt action all the British citizens involved were treated for their injuries with a minimum of delay.

Although I fully understand and, indeed, sympathise with my hon. Friend's concern for his constituents following this most unfortunate incident, I am afraid that I must emphasise that Mrs. Dawson and the parents of Philip Sinclair can seek redress only through the German legal process. The decision whether to pursue litigation against the German state must remain one for the family, in consultation with its German lawyer. Much as I regret it, Her Majesty's Government have no standing to intervene in the process.