Lord Morton of Shuna awarded pounds 17,000 to Allister McWilliams, 30, a former corporal in the Royal Scots, and his wife Marion, 28, who sued the Ministry of Defence over the death of their brain-damaged son, Martin.
The judge upheld their claim that army medical staff were negligent at the time of the baby's birth in the British Military Hospital, Munster, West Germany, in 1987.
Mr and Mrs McWilliams, formerly of Lasswade, Midlothian, now living in Camberley, Surrey, sued for damages at the Court of Session in Edinburgh. The baby was born two months prematurely by Caesarean section and he died five weeks later. Lord Morton accepted medical evidence that if a senior obstetrician had been called in earlier it would have made a material difference to Martin's chance of survival. The delay caused by the negligence materially contributed to the baby's death. Cause of death was lack of oxygen before and after birth. Lord Morton said he disagreed with his fellow judge Lord Prosser, who had ruled in an identical case that a baby in the womb was not a 'person'. Lord Prosser had rejected claims by parents who sued Fife Health Board for negligence damages when their son died three days after being delivered by forceps.
His judgment had been that when the baby was injured it was a 'foetus' and not a 'person'.
Lord Morton ruled that a child born alive and who survived had the right to sue for injuries sustained in the womb.
He made the award to Mr and Mrs McWilliams for loss of society of their baby. Lord Morton rejected the Ministry of Defence's argument that the parents had no right to sue because in law an unborn child was not a person and said the parents were entitled to succeed in their action.
Lord Prosser's earlier ruling is under appeal.Reuse content